Excluded Assets. Notwithstanding the provisions of Section 1.1, the Purchased Assets shall not include any assets of the Company or any of its Affiliates other than the Purchased Assets, including the following (collectively, the “Excluded Assets”): (a) all notes and accounts receivable generated; (b) any cash, bank deposits and cash equivalents of the Company, other than the Purchased Cash; (c) all insurance policies; (d) all corporate minute books and stock transfer books and the corporate seal of the Company or its Affiliates, other than the books and records contemplated by Section 1.1(g); (e) all equity interests in any joint venture or equity interests in any other Person held by the Company or any of its Affiliates; (f) all assets arising out of or relating to employee benefits or employee benefit or compensation plans, programs, agreements or arrangements maintained or contributed to (or formerly maintained or contributed to) by the Company or its Affiliates or with respect to which the Company or any of its Affiliates has any Liability, except as expressly set forth in Section 6.14(e) and Section 6.14(f); (g) the CBAs applicable to employees of the Acquired Stores and Distribution Centers; (h) all personnel files and records, other than those expressly included in the Purchased Assets; (i) all Tax assets of the Company and its Affiliates (including any and all credits or deposits in respect of Taxes, net operating loss carryforwards, and refunds of Taxes for which the Company is liable pursuant to Section 2.2(d), Section 2.6(d) or Section 6.4 or otherwise with respect to any periods (or portions thereof) ending on or prior to the Closing (or the applicable Subsequent Closing or Distribution Center Closing)), other than as set forth in Section 1.1(k) above; (j) all Tax Returns and other Tax-related documents or information of the Company or its Affiliates not relating to the Acquired Stores; (k) any Contract to which the Company or any of its Affiliates is a party other than the Assumed Contracts; (l) except for the Purchased Intellectual Property, the Intellectual Property used or owned by the Company or any of its Affiliates (including the name and ▇▇▇▇ “Rite Aid” or the “Rite Aid” logo, or any name or ▇▇▇▇ comprised, including or derived from the foregoing or confusingly similar thereto); (m) the historical customer data related to the Company’s Wellness+ program (except as set for in Section 1.1(l) above); (n) except for the Software, databases, compilations and data, information technology systems, and technology expressly included in the Purchased Assets (including the Purchased Intellectual Property), all Software, databases, compilations and data, information technology services, and technology owned or used by the Company or any of its Affiliates, including the Software, databases, compilations and data, information technology systems, and technology set forth on Section 1.2(n) of the Company Disclosure Schedules; (o) any of the machinery, equipment, vehicles, furniture and other personal property leased by the Company or any of its Affiliates under a Contract; (p) any equity interests owned by the Company and its Affiliates of the entity or entities that own any assets related to the in-store clinics; (q) any pin pads and the encryption codes related thereto; (r) all assets exclusively related to the in-store clinics; (s) to the extent related to Excluded Liabilities, all rights, claims or causes of action against third parties relating to the assets, properties, business or operations of the Acquired Stores, the Distribution Centers or other Purchased Assets or to the Assumed Liabilities, arising out of events or transactions occurring, or facts or circumstances existing, prior to or on the Closing Date (or the applicable Subsequent Closing Date or the Distribution Center Closing, as applicable); (t) to the extent related to Excluded Liabilities, all guarantees, warranties and indemnities related to the ownership or operation of the Purchased Assets prior to or on the Closing (or the applicable Subsequent Closing or the Distribution Center Closing, as applicable); and (u) the assets set forth on Section 1.2(u) of the Company Disclosure Schedules.
Appears in 4 contracts
Sources: Asset Purchase Agreement (Rite Aid Corp), Asset Purchase Agreement (Walgreens Boots Alliance, Inc.), Asset Purchase Agreement (Walgreens Boots Alliance, Inc.)
Excluded Assets. Notwithstanding any term herein to the provisions of contrary, neither Seller is selling, assigning, transferring, or delivering to Purchaser, and Purchaser is not purchasing, accepting, or acquiring from Sellers, any assets other than those assets specifically set forth in Section 1.11.1 herein. Specifically, the Purchased Acquired Assets shall not include any assets of the Company or any of its Affiliates other than the Purchased Assets, including the following (collectively, the “Excluded Assets”):exclude without limitation:
(a) all notes and accounts receivable generatedany cash, cash equivalents, or short-term investments of Sellers, except as specifically set forth in Section 1.1(d);
(b) any cash, bank deposits rights of either Seller under this Agreement (or any other agreement between Purchaser and cash equivalents of a Seller entered into on or after the Company, other than the Purchased CashEffective Date);
(c) all insurance policiesany capital stock of either Seller or its subsidiaries;
(d) all of each Seller’s corporate minute books and related records (including its Certificate or Articles of Incorporation, qualifications to conduct business as a foreign corporation, arrangements with registered agents relating to foreign qualifications, taxpayer and other identification numbers, seals, stock transfer books books, blank stock certificates, and other documents relating to the corporate seal organization, maintenance and existence of the Company or its Affiliates, other than the books and records contemplated by Section 1.1(gSeller as a corporation);
(e) all equity interests in any joint venture or equity interests in any other Person held by of the Company or any of its Affiliatesintercompany loans and accounts receivable between Sellers;
(f) all assets arising out any receivable or payable of or either Seller relating to employee benefits state or employee benefit or compensation plans, programs, agreements or arrangements maintained or contributed to (or formerly maintained or contributed to) by the Company or its Affiliates or with respect to which the Company or federal taxes and any rights of its Affiliates has either Seller under any Liability, except as expressly set forth in Section 6.14(e) tax returns and Section 6.14(f)related tax records;
(g) any other receivable of either Seller, except to the CBAs applicable extent (i) of receivables or amounts due and unpaid which relate to employees of customer services which services were rendered on or after the Effective Date or Software for periods on or after the Effective Date under the Assumed Contracts or Acquired Stores and Distribution CentersAssets or (ii) as expressly provided in Section 8.3(b);
(h) all personnel files any corporate names of either Seller (for use as corporate names rather than in trademarks or service marks) and recordsPrimal’s “Primal Solutions No IP Transaction Left Behind” trademark (Serial No. 78729753), other than those expressly included in the Purchased Assetsstarburst design (Serial No. 78729726), and “No IP Transaction Left Behind” trademark (Serial No. 78725977);
(i) all Tax assets of the Company and any computer software used by either Seller in its Affiliates (including any and all credits accounting or deposits in respect of Taxesgeneral administrative functions, net operating loss carryforwardssoftware relating to commercially available software developer licenses for various third-party products, and refunds of Taxes for software licensed from a third-party which the Company is liable pursuant to Section 2.2(d), Section 2.6(d) or Section 6.4 or otherwise with respect to any periods (or portions thereof) ending on or prior to the Closing (or the applicable Subsequent Closing or Distribution Center Closing)), other than as set forth in Section 1.1(k) abovenot transferable;
(j) all Tax Returns permits and other Tax-related documents or information governmental licenses of the Company or Business (including but not limited to Seller’s City of Irvine, California business permit; and its Affiliates not relating to permit with the Acquired StoresOrange County Fire Authority);
(k) any Contract all personnel records and other records that either Seller is required by law to which the Company or any of retain in its Affiliates is a party other than the Assumed Contractspossession;
(l) except for the Purchased Intellectual Property, the Intellectual Property used or owned by the Company or any of its Affiliates (including the name all insurance policies and ▇▇▇▇ “Rite Aid” or the “Rite Aid” logo, or any name or ▇▇▇▇ comprised, including or derived from the foregoing or confusingly similar thereto);rights thereunder; and
(m) the historical customer data related to the Company’s Wellness+ program (except as set all rights in connection with and assets of any employee benefit plans or programs maintained for in Section 1.1(l) above);
(n) except for the Software, databases, compilations and data, information technology systems, and technology expressly included in the Purchased Assets (including the Purchased Intellectual Property), all Software, databases, compilations and data, information technology services, and technology owned or used by the Company or any employees of its Affiliates, including the Software, databases, compilations and data, information technology systems, and technology set forth on Section 1.2(n) of the Company Disclosure Schedules;
(o) any of the machinery, equipment, vehicles, furniture and other personal property leased by the Company or any of its Affiliates under a Contract;
(p) any equity interests owned by the Company and its Affiliates of the entity or entities that own any assets related to the in-store clinics;
(q) any pin pads and the encryption codes related thereto;
(r) all assets exclusively related to the in-store clinics;
(s) to the extent related to Excluded Liabilities, all rights, claims or causes of action against third parties relating to the assets, properties, business or operations of the Acquired Stores, the Distribution Centers or other Purchased Assets or to the Assumed Liabilities, arising out of events or transactions occurring, or facts or circumstances existing, prior to or on the Closing Date (or the applicable Subsequent Closing Date or the Distribution Center Closing, as applicable);
(t) to the extent related to Excluded Liabilities, all guarantees, warranties and indemnities related to the ownership or operation of the Purchased Assets prior to or on the Closing (or the applicable Subsequent Closing or the Distribution Center Closing, as applicable); and
(u) the assets set forth on Section 1.2(u) of the Company Disclosure Scheduleseither Seller.
Appears in 3 contracts
Sources: Asset Purchase Agreement (Primal Solutions Inc), Purchase Agreement (Primal Solutions Inc), Assignment of Royalties and Rights (Primal Solutions Inc)
Excluded Assets. Notwithstanding anything to the provisions contrary contained in Section 2.1, the Sellers will retain all of Section 1.1their respective right, title and interest in and to, and shall not, and shall not be deemed to, sell, assign, transfer, convey or deliver to Purchaser, and the Purchased Assets shall not, and shall not be deemed to, include any assets of the Company or any of its Affiliates other than the Purchased Assets, including the following assets (collectivelyall such retained assets, the “Excluded Assets”):
(a) all notes any cash or cash equivalents, including any marketable securities, bonds, investments, or certificates of deposit, or any collected funds or items in the process of collection at the financial institutions of any Seller and accounts receivable generatedits Affiliates through and including the Closing Date, in each case whether related to the Business, the Purchased Entities or otherwise;
(b) any cash, bank deposits and cash equivalents all refunds or credits for Taxes arising out of the Company, other than Business to the Purchased Cashextent such refunds or credits are specified as property of the Seller pursuant to Section 8.4(d);
(c) all any property, casualty or other insurance policy or related insurance services contract, held by any Seller or any of its Affiliates, including the benefit of any deposits or prepayments and any insurance proceeds to the extent covering any Excluded Liabilities, other than proceeds of third party insurance policies in respect of claims made against such policies prior to the Closing Date (in the case of “claims made” policies), or for claims in respect of Losses occurring prior to the Closing Date (in the case of “occurrence based” policies);
(d) all corporate minute books except as provided in Section 6.10, any Company Plan, including the underlying assets and stock transfer books and the corporate seal rights of the Company or its Affiliates, other than the books and records contemplated by Section 1.1(g);
(e) all equity interests in any joint venture or equity interests in any other Person held by the Company Seller or any of its Affiliates;
(fe) all assets arising out any rights of any Seller or relating to employee benefits the other Seller Indemnified Parties under this Agreement, any Ancillary Agreement or employee benefit or compensation plans, programs, agreements or arrangements maintained or contributed to (or formerly maintained or contributed to) by any other agreement between any of the Company or its Affiliates or with respect to which the Company Sellers or any of its their respective Affiliates has and Purchaser;
(f) subject to Section 6.18, any Liabilityrights in, except as expressly set forth in Section 6.14(e) and Section 6.14(f)relating to, or for use or exploitation of, any trademark, service m▇▇▇, brand name, certification m▇▇▇, trade name, corporate name, domain name or other indication of source or origin that includes, is based on, relates to or is likely to be confused with the Excluded Names;
(g) the CBAs applicable corporate charter, qualification to employees conduct business as a foreign corporation, arrangements with registered agents relating to foreign qualifications, taxpayer and other identification numbers, corporate seal, minute books, stock transfer books, blank stock certificates, Tax books and records, and any other documents relating to the governance, organization, maintenance and existence of the Acquired Stores and Distribution Centerseach Seller;
(h) all personnel files and recordsIntellectual Property (including the Intellectual Property set forth on Section 2.3(h) of the Disclosure Schedule), other than those expressly included in the Purchased AssetsAcquired Intellectual Property (it being understood that Sellers are also granting Purchaser certain Intellectual Property rights under the Intellectual Property License Agreement);
(i) all Tax assets of the Company and its Affiliates (including any and all credits or deposits in respect of Taxes, net operating loss carryforwards, and refunds of Taxes for which the Company is liable pursuant to Section 2.2(d), Section 2.6(d) or Section 6.4 or otherwise licenses with respect to any periods (or portions thereofunmodified commercially available “off-the-shelf” computer Software, and those software agreements and information technology licenses and assets listed on Section 2.3(i) ending on or prior to of the Closing (or the applicable Subsequent Closing or Distribution Center Closing)), other than as set forth in Section 1.1(k) aboveDisclosure Schedule;
(j) all Tax Returns checkbooks, canceled checks and other Tax-related documents or information bank accounts of the Company or its Affiliates not relating to the Acquired Stores;each Seller; and
(k) any Contract to which the Company or any of its Affiliates is a party other than the Assumed Contracts;
(l) except for the Purchased Intellectual Propertyassets, the Intellectual Property used or owned by the Company or any of its Affiliates (including the name rights and ▇▇▇▇ “Rite Aid” or the “Rite Aid” logo, or any name or ▇▇▇▇ comprised, including or derived from the foregoing or confusingly similar thereto);
(m) the historical customer data related to the Company’s Wellness+ program (except as set for in Section 1.1(l) above);
(n) except for the Software, databases, compilations and data, information technology systems, and technology expressly included in the Purchased Assets (including the Purchased Intellectual Property), all Software, databases, compilations and data, information technology services, and technology owned or used by the Company or any of its Affiliates, including the Software, databases, compilations and data, information technology systems, and technology properties set forth on Section 1.2(n2.3(k) of the Company Disclosure Schedules;
(o) any of the machinery, equipment, vehicles, furniture and other personal property leased by the Company or any of its Affiliates under a Contract;
(p) any equity interests owned by the Company and its Affiliates of the entity or entities that own any assets related to the in-store clinics;
(q) any pin pads and the encryption codes related thereto;
(r) all assets exclusively related to the in-store clinics;
(s) to the extent related to Excluded Liabilities, all rights, claims or causes of action against third parties relating to the assets, properties, business or operations of the Acquired Stores, the Distribution Centers or other Purchased Assets or to the Assumed Liabilities, arising out of events or transactions occurring, or facts or circumstances existing, prior to or on the Closing Date (or the applicable Subsequent Closing Date or the Distribution Center Closing, as applicable);
(t) to the extent related to Excluded Liabilities, all guarantees, warranties and indemnities related to the ownership or operation of the Purchased Assets prior to or on the Closing (or the applicable Subsequent Closing or the Distribution Center Closing, as applicable); and
(u) the assets set forth on Section 1.2(u) of the Company Disclosure SchedulesSchedule.
Appears in 3 contracts
Sources: Asset and Stock Purchase Agreement (Sensata Technologies Holding N.V.), Asset and Stock Purchase Agreement (Sensata Technologies B.V.), Asset and Stock Purchase Agreement (Sensata Technologies Holding N.V.)
Excluded Assets. Notwithstanding anything contained herein to the provisions of Section 1.1contrary, the Purchased Assets following rights and assets of ▇▇▇▇▇▇▇ Polymer (and as described in Section 4(d) below with respect to the Subsidiaries) shall be excluded from the transactions contemplated by this Agreement, shall not include any be transferred to Buyer or its Affiliates, and shall be retained by ▇▇▇▇▇▇▇ Polymer (and, with respect to certain rights and assets of the Company Subsidiaries described in Section 4(d) below, shall be distributed to and retained by ▇▇▇▇▇▇▇ Polymer or any of its Affiliates other than the Purchased AssetsJD Holdings II, as applicable) (collectively and including the following (collectivelythose items identified in Section 4(d), the “Excluded Assets”):
(ai) all notes cash and accounts receivable generatedcash equivalent items, including checking accounts, bank accounts, certificates of deposit, time deposits, mutual funds and Other Investment Securities;
(bii) except as otherwise provided in Section 12.03, all employee benefit plans and all agreements related to employment or separation that are applicable to the ▇▇▇▇▇▇▇ Polymer Employees and the Current Waxdale Employees, and any cashtrusts, bank deposits and cash equivalents insurance arrangements or other assets held pursuant to, or set aside to fund the obligations of the Company▇▇▇▇▇▇▇ Polymer under, other than the Purchased Cashany such employee benefit plans;
(ciii) any Files and Records relating to the ▇▇▇▇▇▇▇ Polymer Employees, the Current Waxdale Employees, and any other person employed by ▇▇▇▇▇▇▇ Polymer after the date hereof and prior to the Closing, to the extent transfer and sale is prohibited by Legal Requirements;
(iv) all insurance policies of ▇▇▇▇▇▇▇ Polymer, JohnsonDiversey, S.C. ▇▇▇▇▇▇▇ & Son, Inc. and their Affiliates, and all rights of ▇▇▇▇▇▇▇ Polymer, JohnsonDiversey, S.C. ▇▇▇▇▇▇▇ & Son, Inc. and their Affiliates of every nature and description under or arising out of such insurance policies;
(dv) except as otherwise provided in Section 11.03, all corporate minute books claims and stock transfer books rights to receive Tax refunds, credits and benefits relating to the corporate seal operation or ownership of the Company or its Affiliates, Business (other than the books such claims and records contemplated by Section 1.1(g);
(e) all equity interests in any joint venture or equity interests in any other Person rights held by a Subsidiary) or the Company or Purchased Assets for any of its Affiliates;
(f) all assets arising out of or relating to employee benefits or employee benefit or compensation plans, programs, agreements or arrangements maintained or contributed to Tax period (or formerly maintained or contributed to) by portion thereof, including the Company or its Affiliates or with respect to which the Company or any portion of its Affiliates has any Liability, except as expressly set forth in Section 6.14(e) and Section 6.14(f);
(g) the CBAs applicable to employees of the Acquired Stores and Distribution Centers;
(h) all personnel files and records, other than those expressly included in the Purchased Assets;
(i) all Tax assets of the Company and its Affiliates (including any and all credits or deposits in respect of Taxes, net operating loss carryforwards, and refunds of Taxes for which the Company is liable pursuant to Section 2.2(d), Section 2.6(d) or Section 6.4 or otherwise with respect to any periods (or portions thereofa Straddle Period) ending on or prior to the Closing (or the applicable Subsequent Closing or Distribution Center Closing)), other than as set forth in Section 1.1(k) aboveDate together with any net deferred tax assets;
(jvi) all Tax Returns and other Tax-related documents or information of the Company or its Affiliates not relating to the Acquired Stores;
(k) any Contract to which the Company or any of its Affiliates is a party other than the Assumed Contracts;
(l) except for the Purchased Intellectual Property, the Intellectual Property used or owned by the Company or any of its Affiliates (including the name and ▇▇▇▇▇▇▇ “Rite Aid” or Polymer’s rights under this Agreement and the “Rite Aid” logo, or any name or other agreements and instruments executed and delivered by ▇▇▇▇▇▇▇ comprisedPolymer (or either one of them) in connection with this Agreement and the transactions contemplated hereby and thereby;
(vii) the minute books and other corporate or limited liability company records of ▇▇▇▇▇▇▇ Polymer;
(viii) all right, title and interest in the Differentiated Floorcare Polymers;
(ix) except for those trademarks containing the letters “▇▇▇” which are specifically identified in the definition of Intellectual Property, all rights and interest of ▇▇▇▇▇▇▇ Polymer in and to the names “▇▇▇▇▇▇▇,” “▇▇▇▇▇▇▇ Polymer,” “JonWax” and “JohnsonDiversey,” any derivatives thereof, all trademarks and logos relating thereto, and all goodwill associated with any of the foregoing;
(x) the Excluded Leases;
(xi) the Excluded Equipment;
(xii) those Contracts (and all rights and obligations thereunder) which are listed on Exhibit 2(b)(xii) hereto or Exhibit 4(d) hereto (including or derived from the foregoing or confusingly similar theretorights and obligations of the Subsidiaries thereunder) (the “Excluded Contracts”);
(mxiii) the historical customer data related to the Company’s Wellness+ program (except as set for in Section 1.1(l) above)Waxdale Facility;
(nxiv) except for the Software, databases, compilations and data, information technology systems, and technology expressly included in the Purchased Assets (including the Purchased Intellectual Property), all Software, databases, compilations and data, information technology services, and technology owned or used by the Company or any of its Affiliates, including the Software, databases, compilations and data, information technology systems, and technology set forth on Section 1.2(n) of the Company Disclosure Schedules;
(o) any of the machinery, equipment, vehicles, furniture and other personal property leased by the Company or any of its Affiliates under a Contract;
(p) any equity interests owned by the Company and its Affiliates of the entity or entities that own any assets related to the in-store clinics;
(q) any pin pads and the encryption codes related thereto;
(r) all assets exclusively related to the in-store clinics;
(s) to the extent related to Excluded Liabilities, all rights, claims or causes of action against third parties relating to the assets, properties, business or operations of the Acquired Stores, the Distribution Centers or other Purchased Assets or to the Assumed Liabilities, arising out of events or transactions occurring, or facts or circumstances existing, prior to or on the Closing Date (or the applicable Subsequent Closing Date or the Distribution Center Closing, as applicable);
(t) to the extent related to Excluded Liabilities, all guarantees, warranties and indemnities related to the ownership or operation of the Purchased Assets prior to or on the Closing (or the applicable Subsequent Closing or the Distribution Center Closing, as applicable)Note Receivable; and
(uxv) the assets set forth on Section 1.2(u) of the Company Disclosure Schedulesall floorcare product formulations.
Appears in 3 contracts
Sources: Asset and Equity Interest Purchase Agreement (Johnsondiversey Inc), Asset and Equity Interest Purchase Agreement (Johnsondiversey Holdings Inc), Asset and Equity Interest Purchase Agreement (Johnsondiversey Inc)
Excluded Assets. Notwithstanding the provisions of Section 1.1Clause 2.1, the Purchased Assets Novartis shall not include any assets of the Company sell, transfer, or any of its Affiliates other than the Purchased Assetsconvey to Purchaser, including and Purchaser shall not purchase and acquire the following (collectively, the “Excluded Assets”):
(a) all notes and accounts receivable generatedSubject to the license rights granted to the Purchaser in the License Agreement, Licensed Assets;
(b) the name “Novartis”, “Ciba-Geigy”, “Sandoz” or “Alcon”, or any cashtrademark, bank deposits and cash equivalents of the Companyservice ▇▇▇▇, other than the Purchased Cashtrade dress, logo, trade name or corporate name similar or related thereto;
(c) all insurance policiesthe accounts receivable and the accounts payable including any accruals, pre-paid expenses and any cash or cash equivalents of Novartis or any of its Affiliates relating to the Business, the Products or the Transferred Assets for the period prior to the Closing Date;
(d) any real property or leaseholds (together with all corporate minute books fixtures and stock transfer books and the corporate seal of the Company fittings related to any property), physical plant, machinery, equipment, motor vehicles or its Affiliates, other than the books and records contemplated by Section 1.1(g)office equipment;
(e) all equity interests in any joint venture rights or equity interests in any other Person held by assets belonging to the Company generic business of Sandoz (which is the generic division of Novartis), or any of its Affiliatessuccessors, containing the Drug Substances and/or relating to the Products;
(f) all any rights or assets arising out belonging to the over-the-counter business (which is a division of or relating to employee benefits or employee benefit or compensation plansNovartis), programs, agreements or arrangements maintained or contributed to (or formerly maintained or contributed to) by the Company or its Affiliates or with respect to which the Company or any of its Affiliates has any Liabilitysuccessors, except as expressly set forth in Section 6.14(e) and Section 6.14(f)containing the Drug Substances;
(g) any rights or assets belonging to the CBAs applicable to employees business of Alcon (which is a division of Novartis), or any of its successors, containing the Acquired Stores and Distribution CentersDrug Substances;
(h) all personnel files and recordsany rights or assets belonging to Novartis Vaccines(which is a division of Novartis) or any of its successors, other than those expressly included in containing the Purchased AssetsDrug Substances;
(i) all Tax any rights or assets outside the human pharmaceutical fields (including but without limitation the use of the Company and its Affiliates (including any and all credits or deposits Drug Substances in respect of Taxes, net operating loss carryforwards, and refunds of Taxes for which the Company is liable pursuant to Section 2.2(dveterinary pharmaceutical fields), Section 2.6(d) or Section 6.4 or otherwise with respect to any periods (or portions thereof) ending on or prior to the Closing (or the applicable Subsequent Closing or Distribution Center Closing)), other than as set forth in Section 1.1(k) above;
(j) all Tax Returns and other Tax-related documents any rights or information of assets outside the Company Fields or its Affiliates not relating to for countries outside the Acquired StoresTerritory for the Products;
(k) any Contract to which the Company or any of its Affiliates is a party other than the Assumed Contracts;[**]
(l) except for any rights under Novartis’ insurance policies which are related to the Purchased Intellectual Property, the Intellectual Property used or owned by the Company or any of its Affiliates (including the name and ▇▇▇▇ “Rite Aid” or the “Rite Aid” logo, or any name or ▇▇▇▇ comprised, including or derived from the foregoing or confusingly similar thereto);Business; and
(m) originals of Books and Records that Novartis and its Affiliates are required to retain pursuant to any Law; provided however, that (i) Novartis and its Affiliates, as applicable, shall provide copies (redacted to the historical customer data extent necessary to remove any confidential information not related to the Company’s Wellness+ program (except as set for in Section 1.1(l) above);
(n) except for the SoftwareBusiness, databases, compilations and data, information technology systems, and technology expressly included Products or Drug Substances in the Purchased Assets (including the Purchased Intellectual Property), all Software, databases, compilations and data, information technology services, and technology owned or used by the Company or any of its Affiliates, including the Software, databases, compilations and data, information technology systems, and technology set forth on Section 1.2(nTerritory) of the Company Disclosure Schedules;
(o) any of the machinery, equipment, vehicles, furniture such books and other personal property leased by the Company or any of its Affiliates under a Contract;
(p) any equity interests owned by the Company and its Affiliates of the entity or entities that own any assets related to the in-store clinics;
(q) any pin pads and the encryption codes related thereto;
(r) all assets exclusively related to the in-store clinics;
(s) records to the extent related to Excluded Liabilitiesthe Business, all rights, claims Products or causes of action against third parties relating to Drug Substances in the assets, properties, business or operations of Territory upon the Acquired Stores, the Distribution Centers or other Purchased Assets or to the Assumed Liabilities, arising out of events or transactions occurring, or facts or circumstances existing, prior to or on the Closing Date Purchaser’s reasonable request and (or the applicable Subsequent Closing Date or the Distribution Center Closingii) Novartis and its Affiliates, as applicable);
(t) applicable may destroy such books and records in accordance with their prevailing records retention procedures to the extent related such books and records are no longer required to Excluded Liabilities, all guarantees, warranties be retained by Law so long as Novartis and indemnities related its Affiliates have previously provided copies of such books and records pursuant to the ownership or operation clause (i) of the Purchased Assets prior to or on the Closing (or the applicable Subsequent Closing or the Distribution Center Closing, as applicablethis Clause 2.2(m); and
(un) any Inventory (except as provided in the assets set forth on Section 1.2(u) of the Company Disclosure SchedulesSupply Agreement).
Appears in 3 contracts
Sources: Asset Purchase Agreement (Aralez Pharmaceuticals Inc.), Asset Purchase Agreement (Aralez Pharmaceuticals Inc.), Asset Purchase Agreement (Aralez Pharmaceuticals Inc.)
Excluded Assets. Notwithstanding anything to the provisions of contrary in Section 1.12.4, the Purchased Assets shall not include any assets of the Company or any of its Affiliates other than the Purchased Assets, including Purchaser expressly understands and agrees that the following assets, properties, rights and claims of Seller and its Subsidiaries (collectively, the “Excluded Assets”):) shall be retained by the Seller Group, and shall be excluded from the Purchased Assets:
(a) any and all notes Benefit Plans and accounts receivable generatedany and all assets, trust agreements or any other funding and administrative Contracts related to the Benefit Plans, other than the rights under Contracts to the extent specified in Section 2.4(g) and other than as expressly provided in Section 5.6(a);
(b) any cash, bank deposits and cash equivalents of the Companyall Intellectual Property Rights, other than the Transferred Intellectual Property Rights (and, for the avoidance of doubt, the Transferred Technology and any Contracts that are part of the Purchased CashAssets (including, for the avoidance of doubt, any Contract that becomes a Purchased Asset pursuant to Section 2.4(l)));
(ci) any and all insurance policiesTechnology, other than the Transferred Technology (and, for the avoidance of doubt, the Transferred Intellectual Property Rights); and (ii) any and all Information Technology except for the Information Technology that becomes a Purchased Asset pursuant to Section 2.4(l);
(d) (i) any and all corporate minute books owned real property; (ii) any and stock transfer books and the corporate seal of the Company or its Affiliates, all leased real property other than the books Transferred Leases; and records contemplated by (iii) any and all Tangible Personal Property other than the Tangible Personal Property that becomes a Purchased Asset pursuant to Section 1.1(g2.4(l);
(e) any and all equity interests refunds of any Excluded Business Taxes (including to the extent allocable to any Pre-Closing Period pursuant to Section 6.4), and all Tax assets of the Seller Group and deferred Tax assets of the Seller Group (other than any such Tax assets or deferred Tax assets that arise from, or are in the nature of a refund or credit of or against, any joint venture or equity interests in any other Person held by the Company or any of its AffiliatesPurchaser Taxes);
(f) any and all assets accounts receivable, trade receivables and cash, cash equivalents, loan receivables arising out of or relating from loans to employee benefits or employee benefit or compensation plansemployees, programs, agreements or arrangements maintained or contributed to (or formerly maintained or contributed to) by the Company or its Affiliates or with respect to which the Company or any of its Affiliates has any Liability, except as expressly set forth in Section 6.14(e) and Section 6.14(f)bank deposits and bank accounts;
(g) the CBAs applicable to employees of the Acquired Stores any and Distribution Centers;
(h) all personnel files prepaid assets and recordsdeposits, other than those expressly included in the Purchased Transferred Prepaid Assets;
(i) all Tax assets Returns and other books and records to the extent related to Taxes paid or payable by any member of the Company Seller Group and its Affiliates to the extent not exclusively related to the Purchased Assets, the Assumed Liabilities or the Business (including which Tax Returns include, for the avoidance of doubt, any Tax Returns filed on a consolidated, combined or other group basis by the Seller Group); and (ii) any and all credits or deposits in respect books and records other than the Business Books and Records;
(i) all Contracts, other than the Business Contracts and any other Contracts that are part of Taxesthe Purchased Assets (including, net operating loss carryforwardsfor the avoidance of doubt, and refunds of Taxes for which the Company is liable any Contract that becomes a Purchased Asset pursuant to Section 2.2(d), Section 2.6(d) or Section 6.4 or otherwise with respect to any periods (or portions thereof) ending on or prior to the Closing (or the applicable Subsequent Closing or Distribution Center Closing2.4(l)), other than as set forth in Section 1.1(k) above;
(j) all Tax Returns letters of credit, performance bonds, negotiable instruments and securities, in each case other Tax-related documents or information of than the Company or its Affiliates not relating to the Acquired StoresTransferred Financial Instruments;
(k) shares of capital stock of any Contract direct or indirect Subsidiary of Seller and any Minority Investments and any rights to which the Company or any extent appurtenant to being a stockholder of its Affiliates is a party other than the Assumed Contractssuch Minority Investment Company;
(l) except for the Purchased Intellectual Propertysubject to Section 5.9(a), the Intellectual Property used or owned by the Company or any all insurance policies and all rights of Seller and its Affiliates (including the name Subsidiaries of every nature and ▇▇▇▇ “Rite Aid” or the “Rite Aid” logo, or any name or ▇▇▇▇ compriseddescription under such insurance policies, including or derived from the foregoing or confusingly similar thereto)all claims, credits, causes of action thereunder and proceeds thereof and unearned insurance premium refunds;
(m) any and all Permits, other than the historical customer data related to the Company’s Wellness+ program (except as set for in Section 1.1(l) above)Transferred Permits;
(n) except all rights under or with respect to any and all claims, causes of action, defense, credits, rights of recovery, and rights of offset or counterclaims (in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent), and all rights in and to assert or waive the attorney-client privilege or other protection against disclosure, in each case to the extent arising out of or related to the other Excluded Assets or Retained Liabilities, and the right to retain all proceeds and monies to the extent relating thereto (collectively, the “Retained Claims”); provided that, for the Softwareavoidance of doubt, databases, compilations and data, information technology systems, and technology expressly included the litigation described in the Purchased Assets (including the Purchased Intellectual Property), all Software, databases, compilations and data, information technology services, and technology owned or used by the Company or any of its Affiliates, including the Software, databases, compilations and data, information technology systems, and technology set forth on Section 1.2(n2.5(n) of the Company Seller Disclosure SchedulesLetter and all rights with respect thereto shall not be a Retained Claim;
(o) any and all assets listed on Section 2.5(o) of the machinery, equipment, vehicles, furniture and other personal property leased by the Company or any of its Affiliates under a ContractSeller Disclosure Letter;
(p) any equity interests owned and all Contracts designated as “Excluded Assets” by Purchaser in writing in its sole discretion prior to the Company and its Affiliates Asset Selection Cut-Off Time relating to the conduct of the entity Business in the countries or entities that own any assets related to regions as described in and set forth on Section 2.5(p) of the in-store clinics;Seller Disclosure Letter; and
(q) all other assets or rights of any pin pads and the encryption codes related thereto;
(r) all assets exclusively related to the in-store clinics;
(s) to the extent related to Excluded Liabilitieskind, all rightswherever located, claims or causes of action against third parties relating to the assetswhether real, properties, business or operations of the Acquired Stores, the Distribution Centers or other Purchased Assets or to the Assumed Liabilities, arising out of events or transactions occurringpersonal, or facts mixed, tangible or circumstances existingintangible, prior to that are owned by Seller or on the Closing Date (or the applicable Subsequent Closing Date or the Distribution Center Closingany of its Subsidiaries, as applicable);
(t) to the extent related to Excluded Liabilities, all guarantees, warranties and indemnities related to the ownership or operation of in each case other than the Purchased Assets prior (including, for the avoidance of doubt, any assets or rights that become a Purchased Asset pursuant to Section 2.4(l)). The Parties acknowledge and agree that neither Purchaser nor any of its Subsidiaries will acquire or on the Closing (be permitted to retain any direct or the applicable Subsequent Closing indirect right, title or the Distribution Center Closing, as applicable); and
(u) the assets set forth on Section 1.2(u) of the Company Disclosure Schedulesinterest in any Excluded Assets.
Appears in 3 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Broadcom Inc.), Asset Purchase Agreement (Symantec Corp)
Excluded Assets. Notwithstanding the provisions of Section 1.1, the Purchased The Acquired Assets shall not include any assets of Sellers' right, title, or interest in or to any of the Company or any of its Affiliates other than the Purchased Assetsfollowing which, in each case, shall remain subject to all valid and perfected liens and interests, including any liens or interests arising under the following DIP Credit Agreement or the Stipulation and Agreement for use of Cash Collateral in the Case on file with the Bankruptcy Court (collectively, the “"Excluded Assets”"):
(a) all notes and accounts receivable generatedrights of Sellers under this Agreement, including the Purchase Price;
(b) any cash, bank deposits contracts and cash equivalents of the Company, agreements other than the Purchased CashAssumed Assets;
(c) all insurance policiesrights, demands, claims, actions, and causes of action, including, without limitation such as arise under Chapter 5 of the Bankruptcy Code, that Sellers, Sellers' estate, or any other party in interest may have other than the Claims;
(d) all corporate minute books and stock transfer books and the corporate seal of the Company or its Affiliates, other than the books and records contemplated by Section 1.1(g)Rejected Equipment;
(e) all equity interests in any joint venture or equity interests in any other Person held by the Company or any of its AffiliatesExcluded Records;
(f) all assets arising out of any capital stock or relating to employee benefits or employee benefit or compensation plans, programs, agreements or arrangements maintained or contributed to (or formerly maintained or contributed to) by the Company or its Affiliates or with respect to which the Company or other equity interest in any of its Affiliates has any Liability, except as expressly set forth in Section 6.14(e) and Section 6.14(f)Sellers' direct or indirect subsidiaries;
(g) the CBAs applicable to employees of the Acquired Stores and Distribution Centersany right, property or asset listed on Schedule 2.2(k) hereto;
(h) all personnel files any contract or lease not assumed by Buyer under Sections 2.1(a), (b), (c), (d) or (g) and records, other than those expressly included in the Purchased Assets2.6;
(i) all Tax assets of rights under the Company and its Affiliates (including any and all credits or deposits in respect of Taxes, net operating loss carryforwardsSellers' insurance policies with RLI Insurance Company, and the group of insurance companies providing Sellers' automobile and general liability coverage, including, without limitation, assets, contract rights, general intangibles, or any other claims against or relating to such policies, including insurance premium refunds, bond refunds, letter of credit refunds, and any other refunds of Taxes for which (the Company is liable pursuant to Section 2.2(d"RLI Excluded Asset"), Section 2.6(d) or Section 6.4 or otherwise with respect to any periods (or portions thereof) ending on or prior to the Closing (or the applicable Subsequent Closing or Distribution Center Closing)), other than as set forth in Section 1.1(k) above;
(j) all Tax Returns and other Tax-related documents or information any remaining balance of the Company or its Affiliates not relating Committee Retainer, as defined in the Cash Collateral Agreement, and any remaining balance of retainers applicable to the Acquired Storesprofessionals retained by Sellers;
(k) any Contract to which the Company cash and cash equivalents or any similar type investments, uncollected checks, bank accounts, certificates of its Affiliates is a party deposit, Treasury Bills, and other than the Assumed Contracts;marketable securities; and
(l) except for the Purchased Intellectual Propertyall prepaid rentals, the Intellectual Property used and refunds of any security, vendor, utility or owned by the Company or other deposits (other than with respect to insurance), real property taxes, personal property taxes and similar assessments and accruals payable in respect of any of its Affiliates (including the name and ▇▇▇▇ “Rite Aid” or the “Rite Aid” logo, or any name or ▇▇▇▇ comprised, including or derived from the foregoing or confusingly similar thereto);
(m) the historical customer data related Sellers' assets which relate to periods prior to the Company’s Wellness+ program (except as set for in Section 1.1(l) above);
(n) except for the Software, databases, compilations and data, information technology systems, and technology expressly included in the Purchased Assets (including the Purchased Intellectual Property), all Software, databases, compilations and data, information technology services, and technology owned or used by the Company or any of its Affiliates, including the Software, databases, compilations and data, information technology systems, and technology set forth on Section 1.2(n) of the Company Disclosure Schedules;
(o) any of the machinery, equipment, vehicles, furniture and other personal property leased by the Company or any of its Affiliates under a Contract;
(p) any equity interests owned by the Company and its Affiliates of the entity or entities that own any assets related to the in-store clinics;
(q) any pin pads and the encryption codes related thereto;
(r) all assets exclusively related to the in-store clinics;
(s) to the extent related to Excluded Liabilities, all rights, claims or causes of action against third parties relating to the assets, properties, business or operations of the Acquired Stores, the Distribution Centers or other Purchased Assets or to the Assumed Liabilities, arising out of events or transactions occurring, or facts or circumstances existing, prior to or on the Closing Date (or the applicable Subsequent Closing Date or the Distribution Center Closing, as applicable);
(t) to the extent related to Excluded Liabilities, all guarantees, warranties and indemnities related to the ownership or operation of the Purchased Assets prior to or on the Closing (or the applicable Subsequent Closing or the Distribution Center Closing, as applicable); and
(u) the assets set forth on Section 1.2(u) of the Company Disclosure SchedulesDate.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Simon Transportation Services Inc), Asset Purchase Agreement (Central Freight Lines Inc/Tx)
Excluded Assets. Notwithstanding the provisions of Section 1.12.1 or anything to the contrary herein, the Purchased Assets shall not include any assets and all assets, rights and properties of the Company or any of its Affiliates other than the Purchased Seller Group that are not described in Section 2.1 as Transferred Assets, including the following (each, an “Excluded Asset,” and collectively, the “Excluded Assets”):), shall be retained by the Seller Group, and Purchaser and its designees shall acquire no right, title or interest in the Excluded Assets in connection with the Transaction:
(a) all notes (i) cash and cash equivalents, wherever located, including bank balances and bank accounts receivable generatedor safe deposit boxes, monies in the possession of any banks, savings and loans or trust companies and similar cash items, (ii) escrow monies and deposits in the possession of landlords and utility companies, and (iii) investment securities and other short- and medium-term investments;
(b) except for the Owned Intellectual Property and any cashIntellectual Property included in the Assigned Contracts, bank deposits and cash equivalents all of the CompanySeller Group’s right, other than title and interest in Intellectual Property, including the Purchased CashSeller Marks and including as set forth on Schedule 2.2(b) (collectively, the “Excluded IP”);
(c) all insurance policiesany interest of the Seller Group under this Agreement or the Related Documents, including, without limitation, the right to receive the Purchase Price and to enforce the Seller’s rights and remedies thereunder;
(d) all corporate minute books Excluded Contracts and stock transfer books and the corporate seal of the Company or its AffiliatesContracts, other than the books and records contemplated by Section 1.1(g)Assigned Contracts, to which any member of the Seller Group or any of their respective Affiliates is a party;
(e) all equity interests in any joint venture (i) Attorney-Client Information arising from communications prior to the Closing Date between a member of the Seller Group (including any one or equity interests in more officers, directors or stockholders of such Seller Group member), on the one hand, and its counsel, on the other hand, and (i) claims under any other Person held by the Company or any of its Affiliates;director and officer, errors and omissions, fiduciary and commercial crime insurance policies; and
(f) except for the Leased Real Property constituting Transferred Assets, all assets arising out of or relating to employee benefits or employee benefit or compensation plansthe Seller Group’s right, programstitle and interest in owned and leased real property and other interests in real property including all such right, agreements or arrangements maintained or contributed to (or formerly maintained or contributed to) by the Company or its Affiliates or with respect title and interest under each real property lease pursuant to which the Company or any of its Affiliates has the leases, subleases (as sub-tenant) or otherwise occupies any Liabilitysuch leased real property, except as expressly set forth including all improvements, fixtures and appurtenances thereto and rights in Section 6.14(e) and Section 6.14(f)respect thereof;
(g) the CBAs applicable to employees any rights of the Acquired Stores and Distribution CentersSeller Group to Tax refunds or credits for overpayment of Taxes in lieu of a refund attributable to (i) Taxes that are Excluded Liabilities, (ii) Transfer Taxes for which the Seller is liable pursuant to Section 2.13 or (iii) Property Taxes for which the Seller is liable pursuant to Section 7.3(c);
(h) all personnel files Permits (including applications therefor and records, other than those expressly included in any trade or import/export Permits) that (i) are not related solely to the Purchased AssetsBusiness or (ii) are not transferable to Purchaser under applicable Law;
(i) all Tax assets of the Company Excluded Books and its Affiliates (including any and all credits or deposits in respect of Taxes, net operating loss carryforwards, and refunds of Taxes for which the Company is liable pursuant to Section 2.2(d), Section 2.6(d) or Section 6.4 or otherwise with respect to any periods (or portions thereof) ending on or prior to the Closing (or the applicable Subsequent Closing or Distribution Center Closing)), other than as set forth in Section 1.1(k) aboveRecords;
(j) all Tax Returns and any capital stock, shares, warrants, stock options, membership interests, partnership interests, units, or other Taxequity or equity-related documents or information linked securities of any member of the Company Seller Group or its Affiliates not relating to the Acquired Storesof any other Person;
(k) any Contract assets not otherwise designated as Transferred Assets or from time to which time designated by the Company or any of its Affiliates is a party other than the Assumed Contractsparties hereto as Excluded Assets;
(l) except for the Purchased Intellectual Property, the Intellectual Property used or owned by the Company or any of its Affiliates (including the name and ▇▇▇▇ “Rite Aid” or the “Rite Aid” logo, or any name or ▇▇▇▇ comprised, including or derived from the foregoing or confusingly similar thereto)all assets related to Seller Plans;
(m) the historical customer data related to the Company’s Wellness+ program (except as set for in Section 1.1(l) above);
(n) except for the Software, databases, compilations and data, information technology systems, and technology expressly included in the Purchased Assets (including the Purchased Intellectual Property)Acquired Claims, all Software, databases, compilations and data, information technology services, and technology owned or used by the Company or any of its Affiliates, including the Software, databases, compilations and data, information technology systems, and technology set forth on Section 1.2(n) of the Company Disclosure Schedules;
(o) any of the machinery, equipment, vehicles, furniture and other personal property leased by the Company or any of its Affiliates under a Contract;
(p) any equity interests owned by the Company and its Affiliates of the entity or entities that own any assets related to the in-store clinics;
(q) any pin pads and the encryption codes related thereto;
(r) all assets exclusively related to the in-store clinics;
(s) to the extent related to Excluded Liabilities, all Seller Group’s rights, claims or causes of action against third parties relating to the assets, properties, business or operations of the Acquired StoresSeller Group (including all guaranties, warranties, indemnities and similar rights in favor of the Distribution Centers Sellers Group or other Purchased Assets or to the Assumed Liabilities, arising out any of events or transactions occurring, or facts or circumstances existing, prior to or on the Closing Date (or the applicable Subsequent Closing Date or the Distribution Center Closing, as applicable);
(ttheir Affiliates) to the extent related arising under the Bankruptcy Code or relating to any of the Excluded Assets or Excluded Liabilities, all guaranteesin each case, warranties whether arising by way of counterclaim or otherwise, and indemnities related to the ownership whether arising out of transactions occurring prior to, on or operation of the Purchased Assets prior to or on after the Closing (or the applicable Subsequent Closing or the Distribution Center Closing, as applicable)Date; and
(un) all prepaid expenses, claims, deposits, prepayments, refunds, causes of action, demands, actions, suits, rights of recovery, rights under guarantees, warranties, indemnities and all similar rights against third parties, rights of setoff and rights of recoupment, in each case, to the assets set forth on Section 1.2(uextent exclusively related to or exclusively used in or held for use for the Excluded Assets listed in clauses (a) through (m) above. Notwithstanding anything to the contrary contained in this Agreement or any of the Company Disclosure Schedulesother Related Documents, Purchaser acknowledges and agrees that all of the following are also Excluded Assets, and all right, title and interest in and to all Excluded Assets shall be retained by the Seller Group and shall remain the property of the Seller Group (and shall expressly be excluded from the sale, transfer, assignment and conveyance to Purchaser hereunder), and neither Purchaser nor any of its Affiliates shall have any interest therein: (x) all records and reports prepared or received by the Seller Group or any of their Affiliates in connection with the sale of the Business and the Transactions, including all analyses relating to the Business or Purchaser so prepared or received; and (y) all confidentiality agreements with prospective purchasers of the Business or any portion thereof and all bids and expressions of interest received from third parties with respect thereto.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Ebix Inc), Asset Purchase Agreement (Ebix Inc)
Excluded Assets. Notwithstanding Section 2.3 or 2.4 or anything else in this Agreement to the provisions of Section 1.1contrary, the Purchased Assets following assets (the “Excluded Assets”) of Peabody and its Affiliates, on the one hand, and of Arch and its Affiliates, on the other hand, shall be retained by the respective Parties and their Affiliates and not include any assets of be transferred to the JV Company or any of its Affiliates other than the Purchased Assets, including the following (collectively, the “Excluded Assets”):Subsidiaries:
(a) all notes cash and accounts receivable generatedcash equivalents, except as provided in Section 3.4, 3.5 or 6.4(e);
(b) any cash, bank deposits and cash equivalents of the Company, other than the Purchased Cashall trade accounts receivable (whether billed or unbilled);
(c) all insurance policiespolicies and contracts maintained by Peabody, Arch or their respective Affiliates, subject to the rights of the JV Entities pursuant to Section 6.12;
(d) all corporate minute books and stock transfer books Intellectual Property, including the Peabody Retained IP and the corporate seal of the Company or its Affiliates, other than the books and records contemplated by Section 1.1(g)Arch Retained IP;
(e) all equity the real property interests set forth on Schedule 2.5(e) (as amended from time to time in accordance with this Agreement), together with any joint venture properties, assets and rights (including Mining Rights) related or equity interests in any other Person held by the Company or any of its Affiliatesappurtenant thereto;
(f) all assets arising out shares of capital stock or relating to employee benefits or employee benefit or compensation plansother equity interests of Peabody, programs, agreements or arrangements maintained or contributed to (or formerly maintained or contributed to) by the Company or its Affiliates or with respect to which the Company Arch or any of its their respective Affiliates has (other than the Peabody Transferred Subsidiaries and the Arch Transferred Subsidiaries), or any Liability, except as expressly set forth in Section 6.14(e) and Section 6.14(f)securities convertible into or exchangeable or exercisable for any of the foregoing;
(g) all minute books, stock ledgers, corporate seals and stock certificates and other records having to do with the CBAs applicable to employees corporate organization of Peabody, Arch and their respective Affiliates (other than the Acquired Stores and Distribution CentersJV Entities);
(h) all personnel files and records, other than those expressly included any records prepared in connection with the Purchased Assetstransactions contemplated by this Agreement;
(i) all Tax assets of rights and claims under this Agreement and the Company and its Affiliates (including any and all credits or deposits in respect of Taxes, net operating loss carryforwards, and refunds of Taxes for which the Company is liable pursuant to Section 2.2(d), Section 2.6(d) or Section 6.4 or otherwise with respect to any periods (or portions thereof) ending on or prior to the Closing (or the applicable Subsequent Closing or Distribution Center Closing)), other than as set forth in Section 1.1(k) aboveTransaction Documents;
(j) all Tax Returns and other Tax-related documents or information of the Company or its Affiliates not Assets relating to Contributor Taxes (“Pre-Closing Tax Assets”); provided that Pre-Closing Tax Assets shall not include any Tax Assets to the Acquired Storesextent described in Schedule 3.5 and specifically included in Peabody Net Working Capital or Arch Net Working Capital, as the case may be, as finally determined pursuant to Section 3.5(c) and specifically identified as such;
(k) all assets of any Contract to which Peabody Pension Plan or Arch Pension Plan, as the Company case may be, or any of its Affiliates other Employee Benefit Plans that is a party other than the not an Assumed ContractsBenefit Plan;
(l) except for (i) the Purchased Intellectual Propertyassets, the Intellectual Property used or owned by the Company or any other than real property interests, of Peabody and its Affiliates that are set forth in Section 2.5(l) of the Peabody Disclosure Letter and (including ii) the name assets, other than real property interests, of Arch and ▇▇▇▇ “Rite Aid” or its Affiliates that are set forth in Section 2.5(l) of the “Rite Aid” logo, or any name or ▇▇▇▇ comprised, including or derived from the foregoing or confusingly similar thereto);Arch Disclosure Letter; and
(m) the historical customer data related to the Company’s Wellness+ program (except as set for in Section 1.1(l) above);
(n) except for the Softwareall rights, databasesclaims, compilations and datacauses of action, information technology systems, and technology expressly included in the Purchased Assets (including the Purchased Intellectual Property), all Software, databases, compilations and data, information technology services, and technology owned credits or used by the Company or any rights of its Affiliates, including the Software, databases, compilations and data, information technology systems, and technology set forth on Section 1.2(n) of the Company Disclosure Schedules;
(o) any of the machinery, equipment, vehicles, furniture and other personal property leased by the Company or any of its Affiliates under a Contract;
(p) any equity interests owned by the Company and its Affiliates of the entity or entities that own any assets related to the inset-store clinics;
(q) any pin pads and the encryption codes related thereto;
(r) all assets exclusively related to the in-store clinics;
(s) off to the extent related to Excluded Liabilities, all rights, claims or causes of action against third parties relating to any Excluded Asset or Excluded Liability. Each Party may amend Schedule 2.5(e) by written notice to the assets, other Party from time to time prior to the Closing to add any undeveloped properties (and related properties, business or operations of the Acquired Stores, the Distribution Centers or other Purchased Assets or to the Assumed Liabilities, arising out of events or transactions occurring, or facts or circumstances existing, prior to or on the Closing Date (or the applicable Subsequent Closing Date or the Distribution Center Closing, as applicable);
(tassets and rights related thereto) to the extent related Schedule 2.5(e), subject to Excluded Liabilities, all guarantees, warranties and indemnities related to the ownership or operation of the Purchased Assets prior to or on the Closing (or the applicable Subsequent Closing or the Distribution Center Closing, as applicable); and
(u) the assets set forth on Section 1.2(u) of the Company Disclosure Schedules6.1.
Appears in 2 contracts
Sources: Implementation Agreement (Arch Coal Inc), Implementation Agreement (Peabody Energy Corp)
Excluded Assets. Notwithstanding anything to the provisions of Section 1.1contrary contained --------------- herein, it is expressly understood and agreed that the Purchased Station Assets shall not include any assets of the Company or any of its Affiliates other than the Purchased Assets, including the following assets along with all rights, title and interest therein (collectively, the “"Excluded Assets”"):
(a) 1.2.1 all notes and accounts receivable generated;
(b) any cash, bank deposits cash and cash equivalents of the CompanySeller on hand and/or in banks, other than the Purchased Cashincluding without limitation certificates of deposit, commercial paper, treasury bills, marketable securities, asset or money market accounts and all such similar accounts or investments;
(c) 1.2.2 all insurance policies;
(d) all corporate minute books and stock transfer books and accounts receivable or notes receivable arising in connection with the corporate seal operation of the Company or its Affiliates, other than the books and records contemplated by Section 1.1(g);
(e) all equity interests in any joint venture or equity interests in any other Person held by the Company or any of its Affiliates;
(f) all assets arising out of or relating to employee benefits or employee benefit or compensation plans, programs, agreements or arrangements maintained or contributed to (or formerly maintained or contributed to) by the Company or its Affiliates or with respect to which the Company or any of its Affiliates has any Liability, except as expressly set forth in Section 6.14(e) and Section 6.14(f);
(g) the CBAs applicable to employees of the Acquired Stores and Distribution Centers;
(h) all personnel files and records, other than those expressly included in the Purchased Assets;
(i) all Tax assets of the Company and its Affiliates (including any and all credits or deposits in respect of Taxes, net operating loss carryforwards, and refunds of Taxes for which the Company is liable pursuant to Section 2.2(d), Section 2.6(d) or Section 6.4 or otherwise with respect to any periods (or portions thereof) ending on or Stations prior to the Closing (or the applicable Subsequent Closing or Distribution Center Closing)), other than as set forth in Section 1.1(k) aboveDate;
(j) 1.2.3 all Tax Returns tangible and intangible personal property of Seller disposed of or consumed in the ordinary course of business of Seller between the date of this Agreement and the Closing Date;
1.2.4 all Contracts that have terminated or expired prior to the Closing Date in the ordinary course of business of Seller;
1.2.5 Seller's corporate seal, minute books, charter documents, corporate stock record books and such other Tax-related documents books and records as pertain to the organization, existence or information share capitalization of the Company Seller and duplicate copies of such records as are necessary to enable Seller to file its tax returns and reports as well as any other records or its Affiliates materials relating to Seller generally and not involving or relating to the Acquired Stores;
(k) any Contract to which the Company or any of its Affiliates is a party other than the Assumed Contracts;
(l) except for the Purchased Intellectual Property, the Intellectual Property used or owned by the Company or any of its Affiliates (including the name and ▇▇▇▇ “Rite Aid” Station Assets or the “Rite Aid” logo, or any name or ▇▇▇▇ comprised, including or derived from the foregoing or confusingly similar thereto);
(m) the historical customer data related to the Company’s Wellness+ program (except as set for in Section 1.1(l) above);
(n) except for the Software, databases, compilations and data, information technology systems, and technology expressly included in the Purchased Assets (including the Purchased Intellectual Property), all Software, databases, compilations and data, information technology services, and technology owned or used by the Company or any of its Affiliates, including the Software, databases, compilations and data, information technology systems, and technology set forth on Section 1.2(n) of the Company Disclosure Schedules;
(o) any of the machinery, equipment, vehicles, furniture and other personal property leased by the Company or any of its Affiliates under a Contract;
(p) any equity interests owned by the Company and its Affiliates of the entity or entities that own any assets related to the in-store clinics;
(q) any pin pads and the encryption codes related thereto;
(r) all assets exclusively related to the in-store clinics;
(s) to the extent related to Excluded Liabilities, all rights, claims or causes of action against third parties relating to the assets, properties, business operation or operations of the Acquired StoresStations;
1.2.6 contracts of insurance, and all insurance proceeds or claims made thereunder, except as provided in Section 17.1;
1.2.7 all pension, profit sharing or cash or deferred (Section 401(k)) plans and trusts and the Distribution Centers assets thereof and any other employee benefit plan or other Purchased Assets arrangement and the assets thereof, if any, maintained by Seller;
1.2.8 any right, property or to the Assumed Liabilities, arising out of events or transactions occurringasset described in Schedule 1.2.8, or facts -------------- any right, property or circumstances existing, prior to or on the Closing Date (or the applicable Subsequent Closing Date or the Distribution Center Closing, as applicable)asset not specifically described in Section 1.1 herein;
(t) 1.2.9 such portion of any Contract that is apportioned other than to the extent related Buyer pursuant to Excluded Liabilities, all guarantees, warranties and indemnities related to the ownership or operation of the Purchased Assets prior to or on the Closing (or the applicable Subsequent Closing or the Distribution Center Closing, as applicable)Section 1.3 hereof; and
(u) the assets set forth on 1.2.10 such portion of any Owned Real Estate that is retained by Seller or otherwise not transferred to Buyer pursuant to Section 1.2(u) of the Company Disclosure Schedules1.4 hereof.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Radio One Inc), Asset Purchase Agreement (Radio One Inc)
Excluded Assets. Notwithstanding The following assets, properties, and rights (the provisions of Section 1.1, the Purchased Assets shall not include any assets of the Company or any of its Affiliates other than the Purchased Assets, including the following (collectively, the “"Excluded Assets”):") are not included in the Acquired Assets and shall be retained by the Seller.
(a) all notes and accounts receivable generatedEquity Securities of the Seller or any direct or indirect subsidiary of the Seller;
(b) all receivables or interests in receivables owned by the Seller, including all receivables owned by the Seller and owed to any cash, bank deposits and cash equivalents Affiliate of the Company, other than the Purchased CashSeller;
(c) the Parmalat Receivables Purchase Agreement, any Contract referred to in Section 1.01(i) that is of no further effect as of the Closing and any Contract referred to in Section 1.01(i) in respect of which the Purchaser provides notice to the Seller prior to the Closing that it does not wish to assume such Contract pursuant to Section 1.04(i) and, in each case, any and all insurance policiesmoney payable under or with respect to any of the foregoing;
(d) all corporate minute books except as otherwise provided in respect of Acquired Assets or Assumed Liabilities by Section 1.01(k), any claims, rights or causes of action arising under sections 542, 544, 545, 547, 548, 549, 550 and stock transfer books and the corporate seal 553 of the Company or its Affiliates, other than the books and records contemplated by Section 1.1(g)Bankruptcy Code;
(e) all equity interests in any joint venture or equity interests in any other Person held by cash, cash equivalents, bank deposits, bank accounts and lock-boxes of the Company or any of its AffiliatesSeller;
(f) all assets arising out of or the Seller's rights under this Agreement and other agreements between the Purchaser, any Designee and the Seller relating to employee benefits or employee benefit or compensation plans, programs, agreements or arrangements maintained or contributed to (or formerly maintained or contributed to) by the Company or its Affiliates or with respect to which the Company or any of its Affiliates has any Liability, except as expressly set forth in Section 6.14(e) and Section 6.14(f)transactions contemplated hereby;
(g) any claims against current or former directors, officers or other employees of, or agents, accountants or other advisors of or to, the CBAs applicable to employees of the Acquired Stores and Distribution CentersSeller;
(h) minute books, articles or certificates of incorporation, by- laws, limited liability company certificates or articles of formation, limited liability company operating agreements, all personnel files amendments thereto, stock ledgers and records, other than those expressly included in stock certificates of the Purchased Assets;Seller; and
(i) all any Tax assets Refunds of the Company and its Affiliates (including any and all credits or deposits in respect of Taxes, net operating loss carryforwards, and refunds of Taxes for which the Company is liable pursuant to Section 2.2(d), Section 2.6(d) or Section 6.4 or otherwise with respect to any periods (or portions thereof) ending on or prior to the Closing (or the applicable Subsequent Closing or Distribution Center Closing)), other than as set forth in Section 1.1(k) above;
(j) all Tax Returns and other Tax-related documents or information of the Company or its Affiliates not relating to the Acquired Stores;
(k) any Contract to which the Company or any of its Affiliates is a party other than the Assumed Contracts;
(l) except for the Purchased Intellectual Property, the Intellectual Property used or owned by the Company or any of its Affiliates (including the name and ▇▇▇▇ “Rite Aid” or the “Rite Aid” logo, or any name or ▇▇▇▇ comprised, including or derived from the foregoing or confusingly similar thereto);
(m) the historical customer data related to the Company’s Wellness+ program (except as set for in Section 1.1(l) above);
(n) except for the Software, databases, compilations and data, information technology systems, and technology expressly included in the Purchased Assets (including the Purchased Intellectual Property), all Software, databases, compilations and data, information technology services, and technology owned or used by the Company or any of its Affiliates, including the Software, databases, compilations and data, information technology systems, and technology set forth on Section 1.2(n) of the Company Disclosure Schedules;
(o) any of the machinery, equipment, vehicles, furniture and other personal property leased by the Company or any of its Affiliates under a Contract;
(p) any equity interests owned by the Company and its Affiliates of the entity or entities that own any assets related to the in-store clinics;
(q) any pin pads and the encryption codes related thereto;
(r) all assets exclusively related to the in-store clinics;
(s) to the extent related to Excluded Liabilities, all rights, claims or causes of action against third parties relating to the assets, properties, business or operations of the Acquired Stores, the Distribution Centers or other Purchased Assets or to the Assumed Liabilities, arising out of events or transactions occurring, or facts or circumstances existing, prior to or on the Closing Date (or the applicable Subsequent Closing Date or the Distribution Center Closing, as applicable);
(t) to the extent related to Excluded Liabilities, all guarantees, warranties and indemnities related to the ownership or operation of the Purchased Assets prior to or on the Closing (or the applicable Subsequent Closing or the Distribution Center Closing, as applicable); and
(u) the assets set forth on Section 1.2(u) of the Company Disclosure SchedulesSeller.
Appears in 2 contracts
Excluded Assets. Notwithstanding anything to the provisions of contrary in Section 1.12.1, the Purchased Assets Buyer Sub shall not include any assets purchase, and the Seller and the Seller Stockholders shall retain (and there shall be excluded from the Transferred Assets), the following assets, properties, rights and claims of the Company or any of its Affiliates other than the Purchased Assets, including the following Seller (collectively, the “Excluded Assets”):
(a) all notes Cash and accounts receivable generatedCash Equivalents as of the Effective Time, except Transferred Cash;
(b) any cashthe minute books, bank deposits and cash equivalents stock transfer records or other records related to the corporate organization of the Company, other than the Purchased CashSeller;
(c) all insurance policiespersonnel records and other records that the Seller is required by law to retain in its possession (provided that the Seller will deliver copies thereof to the Buyer Sub at or prior to the Closing);
(d) all corporate minute books and stock transfer books and Contracts for investment banking or brokerage services in connection with this Agreement, any Ancillary Agreement and/or the corporate seal of the Company transactions contemplated hereby or its Affiliates, other than the books and records contemplated by Section 1.1(g)thereby;
(e) stock certificates representing all of the outstanding shares of capital stock or other equity interests in any joint venture of Silpada International Holdings (notwithstanding the foregoing, it being understood and agreed that (i) all of the outstanding shares of capital stock or other equity interests in of any Subsidiary of the Seller other Person held by than Silpada International Holdings, and (ii) all assets of any Subsidiary of the Company or any of its AffiliatesSeller (including Silpada International Holdings), shall be Transferred Assets);
(f) all Tax assets arising out (including duty and tax refunds and prepayments) of or relating to employee benefits or employee benefit or compensation plansthe Seller, programs, agreements or arrangements maintained or contributed to (or formerly maintained or contributed to) by the Company or its Affiliates or with respect to which the Company any Seller Stockholder or any of its Affiliates has any Liability, except as expressly set forth in Section 6.14(e) and Section 6.14(f)their respective Affiliates;
(g) the CBAs applicable to employees of the Acquired Stores and Distribution CentersSeller 401(k) Profit Sharing Plan;
(h) all personnel files and records, other than those expressly included in the Purchased AssetsPermits that are non-assignable or non-transferable;
(i) all Tax assets of the Company Seller’s directors and its Affiliates (including any and all credits or deposits in respect of Taxes, net operating loss carryforwards, and refunds of Taxes for which the Company is liable pursuant to Section 2.2(d), Section 2.6(d) or Section 6.4 or otherwise with respect to any periods (or portions thereof) ending on or prior to the Closing (or the applicable Subsequent Closing or Distribution Center Closing)), other than as set forth in Section 1.1(k) above;officers’ insurance policy; and
(j) all Tax Returns and other Tax-related documents or information rights of the Company or its Affiliates not relating to the Acquired Stores;
(k) any Contract to which the Company or any of its Affiliates is a party other than the Assumed Contracts;
(l) except for the Purchased Intellectual PropertySeller, the Intellectual Property used or owned by the Company or any of its Affiliates (including the name and ▇▇▇▇ “Rite Aid” or the “Rite Aid” logo, or any name or ▇▇▇▇ comprised, including or derived from the foregoing or confusingly similar thereto);
(m) the historical customer data related to the Company’s Wellness+ program (except as set for in Section 1.1(l) above);
(n) except for the Software, databases, compilations and data, information technology systems, and technology expressly included in the Purchased Assets (including the Purchased Intellectual Property), all Software, databases, compilations and data, information technology services, and technology owned or used by the Company or any of its Affiliates, including the Software, databases, compilations and data, information technology systems, and technology set forth on Section 1.2(n) of the Company Disclosure Schedules;
(o) any of the machinery, equipment, vehicles, furniture and other personal property leased by the Company or any of its Affiliates under a Contract;
(p) any equity interests owned by the Company and its Affiliates of the entity or entities that own any assets related to the in-store clinics;
(q) any pin pads Seller Representative and the encryption codes related thereto;
(r) all assets exclusively related to Seller Stockholders under this Agreement and the in-store clinics;
(s) to the extent related to Excluded Liabilities, all rights, claims or causes of action against third parties relating to the assets, properties, business or operations of the Acquired Stores, the Distribution Centers or other Purchased Assets or to the Assumed Liabilities, arising out of events or transactions occurring, or facts or circumstances existing, prior to or on the Closing Date (or the applicable Subsequent Closing Date or the Distribution Center Closing, as applicable);
(t) to the extent related to Excluded Liabilities, all guarantees, warranties and indemnities related to the ownership or operation of the Purchased Assets prior to or on the Closing (or the applicable Subsequent Closing or the Distribution Center Closing, as applicable); and
(u) the assets set forth on Section 1.2(u) of the Company Disclosure SchedulesAncillary Agreements.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Avon Products Inc)
Excluded Assets. Notwithstanding anything to the provisions of Section 1.1contrary contained herein, the Purchased Station Assets shall not include any the following assets of the Company or any of its Affiliates other than the Purchased Assetsright, including the following title or interest therein (collectively, the “Excluded Assets”):
(a) all notes cash and cash equivalents, including without limitation certificates of deposit, commercial paper, treasury bills, marketable securities, bank accounts, money market accounts, other depositary accounts receivable generatedand all such similar accounts or investments;
(b) any cash, bank deposits all tangible and cash equivalents intangible personal property retired or disposed of between the Company, other than date of this Agreement and the Purchased CashClosing;
(c) all insurance policiesStation Contracts that are terminated or expire prior to Closing;
(d) Seller’s corporate and trade names (including the name “Clear Channel,” and any variation or derivation thereof), and all corporate minute books URLs and stock transfer books and the corporate seal internet domain names consisting of or containing any of the Company or its Affiliatesforegoing, other than the books and records contemplated by Section 1.1(gidentified on Schedule 1.2(d);
(e) all equity interests in any joint venture or equity interests in any other Person held by the Company or any of its Affiliates;
(f) all assets arising out of or relating to employee benefits or employee benefit or compensation plans, programs, agreements or arrangements maintained or contributed to (or formerly maintained or contributed to) by the Company or its Affiliates or with respect to which the Company or any of its Affiliates has any Liability, except as expressly set forth in Section 6.14(e1.3, Seller’s trademarks and other intellectual property not exclusively used or held for use in the operation of the Stations (including without limitation any call letters used in connection with both a Station and any other station or business unit of Seller identified on Schedule 1.2(e));
(i) Seller’s charter documents, minute books and all books and records relating to the organization, existence or ownership of Seller, (ii) all records, documents, plans and financial records related to the transactions contemplated by this Agreement, (iii) duplicate copies of all Station Documents, (iv) all records relating to other Excluded Assets, (v) all personnel files for employees who do not become Transferred Employees and (vi) all files, documents, records, Tax Returns (as defined in Section 6.14(f11.6), books of account and other materials not relating exclusively to the Station Assets or the operation of the Stations;
(g) the CBAs applicable all contracts of insurance (including but not limited to employees title insurance policies), all coverages and proceeds thereunder and all rights in connection therewith, including without limitation all rights to any refunds of the Acquired Stores insurance premium payments and Distribution Centersall rights with respect to claims made thereunder;
(h) all personnel files pension and recordsprofit sharing plans, all trusts related thereto and all other than those expressly included in employee compensation and benefit plans or arrangements maintained by Seller, if any, and all assets of or relating to any of the Purchased Assetsforegoing;
(i) all Tax assets rights and claims of the Company and its Affiliates (including any and all credits Seller, whether mature, contingent or deposits in respect of Taxesotherwise, net operating loss carryforwards, and refunds of Taxes for which the Company is liable pursuant to Section 2.2(d), Section 2.6(d) or Section 6.4 or otherwise against third parties with respect to the Stations and the Station Assets, to the extent arising during or attributable to any periods (or portions thereof) ending on or period prior to the Closing Effective Time (or the applicable Subsequent Closing or Distribution Center Closing)), other than as set forth defined in Section 1.1(k) above1.9);
(j) all Tax Returns current assets (including accounts receivable, deposits and other Tax-prepaid expenses) of Seller (and rights arising therefrom or related documents or information thereto) to the extent not relating exclusively to the operation of the Company Stations or its Affiliates not relating to the Acquired StoresStation Assets and not included in the Final Net Working Capital calculation;
(k) any Contract to which the Company or any all tangible and intangible assets of Seller and its Affiliates is a party (as defined in Section 11.6) (including without limitation all management and other systems (including computers and peripheral equipment), databases, computer software (including operating systems), computer disks and similar assets, and all licenses and related rights) that are owned, used or held for use in the operation of stations or other business units other than the Assumed ContractsStations (including any such assets that are used both in Stations and in stations or other business units that are not Stations (the “Excluded Share Assets”) as listed in Schedule 1.2(k));
(l) except for the Purchased Intellectual Propertyall studio, the Intellectual Property tower and other assets (whether real or personal, tangible or intangible, or otherwise) used or held for use in the operation of any other radio or television station other than the Stations and listed on Schedule 1.2(l), together with any income-producing leases providing for use of such sites by others listed on Schedule 1.2(l);
(m) all real property identified on Schedule 1.2(m), if any, whether owned or leased, together with all towers on such sites and any income-producing leases providing for use of such sites by others;
(n) other than the Company Equity Interests, all capital stock of subsidiaries of Seller or its Affiliates and all other equity interests in any entity that are owned beneficially or of record by Seller or its Affiliates, including but not limited to all shares of stock in Broadcast Music, Inc. that are owned beneficially or of record by Seller;
(o) all intercompany debts, obligations and other contracts, leases, agreements and arrangements among Seller and its Affiliates that are not listed on Schedule 1.1(d);
(p) all Retained Party Rights;
(q) all claims for refund of Taxes (as defined in Section 11.6) of whatever nature;
(r) all claims for reimbursement of expenses incurred prior to Closing in connection with the Sprint Nextel 2GHz relocation project;
(s) any rights to receive corporate and other services provided to the Stations by Clear Channel Communications, Inc. or any of its Affiliates (including the name and ▇▇▇▇ “Rite Aid” or the “Rite Aid” logo, or any name or ▇▇▇▇ comprised, including or derived from the foregoing or confusingly similar theretomaterial services provided thereunder are identified on Schedule 1.2(s);
(m) the historical customer data related to the Company’s Wellness+ program (except as set for in Section 1.1(l) above);
(n) except for the Software, databases, compilations and data, information technology systems, and technology expressly included in the Purchased Assets (including the Purchased Intellectual Property), all Software, databases, compilations and data, information technology services, and technology owned or used by the Company or any of its Affiliates, including the Software, databases, compilations and data, information technology systems, and technology set forth on Section 1.2(n) of the Company Disclosure Schedules;
(o) any of the machinery, equipment, vehicles, furniture and other personal property leased by the Company or any of its Affiliates under a Contract;
(p) any equity interests owned by the Company and its Affiliates of the entity or entities that own any assets related to the in-store clinics;
(q) any pin pads and the encryption codes related thereto;
(r) all assets exclusively related to the in-store clinics;
(s) to the extent related to Excluded Liabilities, all rights, claims or causes of action against third parties relating to the assets, properties, business or operations of the Acquired Stores, the Distribution Centers or other Purchased Assets or to the Assumed Liabilities, arising out of events or transactions occurring, or facts or circumstances existing, prior to or on the Closing Date (or the applicable Subsequent Closing Date or the Distribution Center Closing, as applicable);
(t) all rights of Seller under this Agreement, including without limitation the right to receive the extent related to Excluded LiabilitiesPurchase Price (as defined in Section 1.6(a)), all guaranteesunder any agreement, warranties certificate, instrument or other document executed and indemnities related to the ownership or operation of the Purchased Assets prior to or on the Closing (delivered in connection with this Agreement or the applicable Subsequent Closing transactions contemplated hereby and under any side agreement between Seller and Buyer entered into on or after the Distribution Center Closing, as applicable)date of this Agreement; and
(u) the all other assets listed on Schedule 1.2(u) (if any). The parcels of real property set forth on Section 1.2(uSchedule 1.2(m) that are identified as a “New Seller Lease Property,” if any, will be leased or subleased by Seller to Buyer pursuant to a Real Property Lease (as defined below) or a new lease or sublease, in the form previously made available to Buyer (each, a “New Seller Lease”), to be executed at Closing. Each lease of real property that is included in the Company Disclosure SchedulesStation Contracts and the Station Assets is referred to herein as a “Real Property Lease.” The Owned Real Property, the real property that is leased pursuant to a Station Contract and the real property that will be leased to Buyer pursuant to a New Seller Lease are collectively referred to herein as the “Real Property.”
Appears in 1 contract
Sources: Asset Purchase Agreement (Clear Channel Communications Inc)
Excluded Assets. Notwithstanding the provisions any other provision of Section 1.1this Agreement, the Purchased Acquired Assets shall not include any assets exclude and, prior to Closing (or after Closing and upon the request of Seller), the Companies shall assign or transfer to Seller or an Affiliate of Seller, as designated by Seller, the following assets, properties and rights of the Company or any of its Affiliates other than Companies (the Purchased Assets, including the following (collectively, the “"Excluded Assets”"):
(a) all notes and accounts receivable generatedInter-Company Contracts with Affiliates that do not relate to the Transferred Projects;
(b) any cash, bank deposits and cash equivalents Cash as of the Company, other than the Purchased CashClosing Date;
(c) all insurance policiesInter-Company Receivables payable to either of the Companies by Seller or any of its Affiliates as of the Closing Date;
(d) all corporate minute books and stock transfer books and assets primarily used in the corporate seal Voice Track business of the Company or its Affiliates, other than the books and records contemplated by Section 1.1(g▇▇▇▇▇▇▇ as set forth on Schedule 1.02(d);
(e) all equity interests in any joint venture or equity interests in any other Person held insurance policies maintained by the Company Companies, Seller or any of its Seller's Affiliates;
(f) all assets refunds or credits, if any, of Taxes owed to either of the Companies as of the Closing Date (except to the extent such refunds or credits are included in the Closing Balance Sheet);
(g) any rights, including indemnification and claims for recovery under litigation of either of the Companies, against third parties arising out of or relating to employee benefits events prior to Closing or employee benefit projects or compensation plans, programs, agreements or arrangements maintained or contributed Customer Orders completed prior to Closing (or formerly maintained or contributed to) by the Company or its Affiliates or including any retainage not yet paid with respect to which such projects subject to litigation as of the Company or any of its Affiliates has any LiabilityClosing Date), except as expressly set forth in Section 6.14(e) and Section 6.14(f);
(g) the CBAs applicable any such rights relating to employees of the Acquired Stores and Distribution CentersTransferred Projects;
(h) the rights of either of the Companies in, to and under all personnel files and records, other than those expressly included in Contracts which are the Purchased Assetsresponsibility of Seller under Section 8.02;
(i) all Tax assets of the Company bank accounts, lockboxes and its Affiliates (including any safety boxes, credit card accounts and all credits or deposits in respect of Taxes, net operating loss carryforwards, and refunds of Taxes for which the Company is liable pursuant to Section 2.2(d), Section 2.6(d) or Section 6.4 or otherwise with respect to any periods (or portions thereof) ending on or prior to the Closing (or the applicable Subsequent Closing or Distribution Center Closing)), other than as set forth in Section 1.1(k) aboverelated records;
(j) all Tax Returns computer programs for the accounting and other Tax-related documents payroll systems owned by or information licensed to an Affiliate of the Company or its Affiliates not relating to Companies and used in the Acquired Stores;Business; and
(k) any Contract to which the Company or any of its Affiliates is a party other than the Assumed Contracts;
(lexcluded assets listed on Schedule 1.02(k) except for the Purchased Intellectual Property, the Intellectual Property used or owned by the Company or any of its Affiliates (including the name and ▇▇▇▇ “Rite Aid” or the “Rite Aid” logo, or any name or ▇▇▇▇ comprised, including or derived from the foregoing or confusingly similar thereto);
(m) the historical customer data related to the Company’s Wellness+ program (except as set for in Section 1.1(l) above);
(n) except for the Software, databases, compilations and data, information technology systems, and technology expressly included in the Purchased Assets (including the Purchased Intellectual Property), all Software, databases, compilations and data, information technology services, and technology owned or used by the Company or any of its Affiliates, including the Software, databases, compilations and data, information technology systems, and technology set forth on Section 1.2(n) of the Company Disclosure Schedules;
(o) any of the machinery, equipment, vehicles, furniture and other personal property leased by the Company or any of its Affiliates under a Contract;
(p) any equity interests owned by the Company and its Affiliates of the entity or entities that own any assets related to the in-store clinics;
(q) any pin pads and the encryption codes related thereto;
(r) all assets exclusively related to the in-store clinics;
(s) to the extent related to Excluded Liabilities, all rights, claims or causes of action against third parties relating to the assets, properties, business or operations of the Acquired Stores, the Distribution Centers or other Purchased Assets or to the Assumed Liabilities, arising out of events or transactions occurring, or facts or circumstances existing, prior to or on the Closing Date (or the applicable Subsequent Closing Date or the Distribution Center Closing, as applicable);
(t) to the extent related to Excluded Liabilities, all guarantees, warranties and indemnities related to the ownership or operation of the Purchased Assets prior to or on the Closing (or the applicable Subsequent Closing or the Distribution Center Closing, as applicable); and
(u) the assets set forth on Section 1.2(u) of the Company Disclosure Scheduleshereto.
Appears in 1 contract
Excluded Assets. Notwithstanding anything to the provisions contrary contained in this Agreement, from and after the Closing, each Seller shall retain all of Section 1.1its right, the Purchased Assets shall not include any assets title and interest in and to each and all of the Company or any of its Affiliates other than the Purchased Assets, including the following assets (collectivelyas related to each Seller, the “Excluded Assets”):
(a) all notes and accounts receivable generatedits Excluded Contracts;
(b) any cashrights, bank deposits claims and cash equivalents credits (including all indemnities, warranties and similar rights) in favor of such Seller or any of its Affiliates or any of its Representatives to the extent relating to (i) any other Excluded Asset of such Seller, (ii) any Excluded Liability or (iii) the operation of the Company, other than business at such Seller’s Property prior to the Purchased CashClosing Date;
(c) except for the Tray Ledger, the Markers and House Funds (which shall be purchased in accordance with Section 4.2 hereof), all insurance policiescash, cash equivalents, bank deposits or similar cash items of such Seller or its Affiliates or held at such Seller’s Property as of the Closing (whether or not reflected on the financial statements of such Seller or its Affiliates as of the Closing Date);
(d) all the corporate charter or other organizational documents, minute and stock books and stock transfer books and the records, corporate seal seals, Tax Returns (including supporting schedules) of the Company or its Affiliates, other than the books and records contemplated by Section 1.1(g);
(e) all equity interests in any joint venture or equity interests in any other Person held by the Company such Seller or any of its Affiliates;
(e) its Accounts Receivable;
(f) all assets arising out of subject to Section 4.1(a) hereof, any refund, credit, claim or relating to employee benefits or employee benefit or compensation plans, programs, agreements or arrangements maintained or contributed to (or formerly maintained or contributed to) by the Company or its Affiliates or entitlement with respect to which the Company Taxes of such Seller or any of its Affiliates has any Liability, except as expressly set forth in Section 6.14(e) and Section 6.14(f)Affiliates;
(g) all of its human resources and other employee-related files and records, other than such files and records related to the CBAs applicable to employees of the Acquired Stores and Distribution CentersTransferred Employees;
(h) all personnel files and records, other than those expressly included in the Purchased Assetsindebtedness or accounts payable owing from any Affiliate of any Seller to any such Seller;
(i) all Tax assets of the Company and its Affiliates (including any and all credits or deposits in respect of Taxes, net operating loss carryforwards, and refunds of Taxes for which the Company is liable pursuant to Section 2.2(d), Section 2.6(d) or Section 6.4 or otherwise with respect to any periods (or portions thereof) ending on or prior to the Closing (or the applicable Subsequent Closing or Distribution Center Closing)), other than as set forth in Section 1.1(k) aboveExcluded Personal Property;
(j) all Tax Returns and other Tax-related documents or information of the Company or its Affiliates not relating to the Acquired StoresExcluded Intellectual Property;
(k) any Contract to which the Company or any of its Affiliates is a party other than the Assumed ContractsCustomer Database;
(l) except for the Purchased Intellectual Propertyall data, the Intellectual Property used or owned by the Company or files and other materials located on any of its Affiliates storage device (including personal computers and servers) located at such Seller’s Property (other than Books and Records and the name and ▇▇▇▇ “Rite Aid” or the “Rite Aid” logo, or any name or ▇▇▇▇ comprised, including or derived from the foregoing or confusingly similar theretoProperty Specific Data);
(m) all assets and properties of such Seller not used exclusively in connection with the historical customer data related to the Companybusiness operated at such Seller’s Wellness+ program Property and all assets and properties owned by Affiliates of such Seller (except as set for in Section 1.1(l) aboveincluding Caesars and ▇▇▇▇▇▇’▇ and their respective Subsidiaries and Affiliates, other than such Seller);
(n) except for all assets to which such Seller is entitled under the Software, databases, compilations and data, information technology systems, and technology expressly included in the Purchased Assets (including the Purchased Intellectual Property), all Software, databases, compilations and data, information technology services, and technology owned or used by the Company or any proration provisions of its Affiliates, including the Software, databases, compilations and data, information technology systems, and technology set forth on Section 1.2(n) of the Company Disclosure SchedulesArticle IV hereof;
(o) Connection Card, Total Rewards and any player loyalty or rewards program of the machineryCaesars, equipment, vehicles, furniture and other personal property leased by the Company ▇▇▇▇▇▇’▇ or any of its Affiliates under a Contracttheir respective Affiliates;
(p) any equity interests owned by the Company and its Affiliates assets set forth on Section 1.2 of the entity or entities that own any assets related to the in-store clinicsSeller Disclosure Letter;
(q) any pin pads and with respect to Caesars Seller One, all rights in respect of payments or investments made by Caesars Seller One to the encryption codes related theretoCRDA pursuant to applicable Law which have been committed by the CRDA as of the date hereof;
(r) all assets exclusively related with respect to ▇▇▇▇▇▇’▇ Seller One, the in-store clinics;stock of Showboat Marina Finance Corporation; and
(s) to the extent related to Excluded Liabilities, all rights, claims or causes of action against third parties relating to the assets, properties, business or operations of the Acquired Stores, the Distribution Centers or any other Purchased Assets or to the Assumed Liabilities, arising out of events or transactions occurring, or facts or circumstances existing, prior to or on the Closing Date (or the applicable Subsequent Closing Date or the Distribution Center Closing, as applicable);
(t) to the extent related to Excluded Liabilities, all guarantees, warranties and indemnities related to the ownership or operation of the Purchased Assets prior to or on the Closing (or the applicable Subsequent Closing or the Distribution Center Closing, as applicable); and
(u) the assets set forth on item not included in Section 1.2(u) of the Company Disclosure Schedules1.1 hereof.
Appears in 1 contract
Sources: Asset Purchase Agreement (Harrahs Entertainment Inc)
Excluded Assets. Notwithstanding anything to the provisions of Section 1.1contrary contained herein, the Purchased Assets Seller shall not include sell, convey, assign, transfer or deliver to Purchaser, and Purchaser shall not purchase, acquire or accept, any assets of the Company or any of its Affiliates other than the Purchased Assets, including any of the following assets and properties of Seller (collectively, the “Excluded Assets”):
(ai) all notes and accounts receivable generatedany Working Capital;
(bii) any cashGE Name and ▇▇ ▇▇▇▇▇, bank deposits together with any Contracts granting rights to use the same (certain of which will be licensed pursuant to the Transitional Trademark License Agreement (as defined in Section 5.08(d));
(iii) any of Seller’s right, title and cash equivalents interest in respect of the Companyreal property, other than the Purchased CashFacility, including any improvements, fixtures or appurtenances to real property other than the Facility or rights in respect thereof;
(civ) Tax assets relating to, but not limited to, all insurance policiesrefunds (or credits) of any Tax for which Seller is liable pursuant to Section 5.07;
(dv) Seller’s plans and other employee benefit plans, programs, arrangements, agreements (including retirement benefit and post-retirement health benefit plans, programs, arrangements and agreements) and policies sponsored or maintained by the Seller or its Affiliates, and any trusts or other assets related thereto, except as provided in Article VI;
(vi) subject to Section 5.05, all policies of, or agreements for, insurance and interests in insurance pools and programs;
(vii) except as otherwise provided in Section 2.01(a)(v) or Section 2.01(a)(vii), all Software and data owned or licensed by Seller and used solely in the conduct of the operation of the Business;
(viii) any Intellectual Property other than the Product Intellectual Property and the Purchased Registered Intellectual Property;
(ix) all causes of action (including counterclaims) and defenses (A) against third parties relating to any of the Excluded Assets or the Excluded Liabilities as well as any books, records and privileged information relating thereto or (B) relating to any period through the Closing to the extent that the assertion of such cause of action or defense is necessary or useful in defending any claim that may be asserted against Seller or for which indemnification may be sought by Purchaser Indemnified Parties pursuant to Article VII or that the Seller is otherwise responsible for under the terms of this Agreement;
(A) all loans or advances by Seller to its Affiliates; and (B) all loans or advances by Seller’s Affiliates to Seller;
(xi) personnel and employment records for employees and former employees of the Seller or its Affiliates who are not Transferred Employees;
(xii) (A) all corporate minute books (and other similar corporate records) and stock transfer books and the corporate seal records of the Company or its AffiliatesSeller, other than the (B) any books and records contemplated relating to the Excluded Assets or (C) any books, records or other materials that Seller (x) is required by Section 1.1(gLaw to retain (copies of which, to the extent permitted by Law, will be made available to Purchaser upon Purchaser’s reasonable request), (y) reasonably believes are necessary to enable it to prepare and/or file Tax Returns (copies of which will be made available to Purchaser upon Purchaser’s reasonable request) or (z) is prohibited by Law from delivering to Purchaser;
(exiii) all equity interests the assets and properties listed in Section 2.01(b)(xiii) of the Disclosure Schedules;
(xiv) any joint venture assets sold or equity interests otherwise disposed of in the ordinary course of business prior to the Closing Date; and
(xv) any other Person held by assets, properties, rights, Contracts and claims of Seller that are not related exclusively to the Company Product , wherever located, whether tangible or intangible, real, personal or mixed. Notwithstanding anything to the contrary contained in this Agreement or any of the other Transaction Agreements, Purchaser acknowledges and agrees that all of the following shall remain the property of Seller, and neither Purchaser nor any of its Affiliates;
Affiliates shall have any interest therein: (fw) all assets arising out of records and reports prepared or relating to employee benefits or employee benefit or compensation plans, programs, agreements or arrangements maintained or contributed to (or formerly maintained or contributed to) received by the Company or its Affiliates or with respect to which the Company GE or any of its Affiliates has any Liability, except as expressly set forth in Section 6.14(e) and Section 6.14(f);
(g) connection with the CBAs applicable to employees sale of the Acquired Stores Purchased Assets and Distribution Centers;
Assumed Liabilities and the transactions contemplated hereby, including all analyses relating to the Business or Purchaser so prepared or received; (hx) all personnel files and records, other than those expressly included in the Purchased Assets;
(i) all Tax assets confidentiality agreements with prospective purchasers of the Company and Business or any portion thereof (except that Seller or its Affiliates (including any and Affiliates, as applicable, shall assign to Purchaser or its designee at the Closing all credits or deposits in respect of Taxes, net operating loss carryforwards, and refunds such assignor’s rights under such agreements to confidential treatment of Taxes for which the Company is liable pursuant to Section 2.2(d), Section 2.6(d) or Section 6.4 or otherwise information with respect to any periods the Purchased Assets and Assumed Liabilities and with respect to solicitation and hiring of the Transferred Employees); (or portions thereof) ending on or prior to the Closing (or the applicable Subsequent Closing or Distribution Center Closing)), other than as set forth in Section 1.1(k) above;
(jy) all Tax Returns bids and other Tax-related expressions of interest received from third parties with respect thereto; and (z) all privileged materials, documents or information and records in the possession of the Company or its Affiliates not relating to the Acquired Stores;
(k) any Contract to which the Company GE or any of its Affiliates is a party other than to the Assumed Contracts;
extent such materials, documents and records are (lA) except for not related to the Purchased Intellectual PropertyAssets and Assumed Liabilities , (B) related to any Excluded Asset or Excluded Liability, or (C) related to any matter for which Seller retains or has an obligation to indemnify the Intellectual Property used Purchaser Indemnified Parties pursuant to Article VII (without giving effect to the provisions of Section 7.01(b)). Purchaser further acknowledges and agrees that, with respect to any Action or owned by dispute between Seller or one of its Affiliates, on the Company one hand, and Purchaser or any one of its Affiliates (including post-Closing), on the name and ▇▇▇▇ “Rite Aid” or the “Rite Aid” logoother hand, or only Seller may waive any name or ▇▇▇▇ comprised, including or derived from the foregoing or confusingly similar thereto);
(m) the historical customer data related evidentiary privilege that may attach to the Company’s Wellness+ program (except as set for in Section 1.1(l) above);
(n) except for the Software, databases, compilations and data, information technology systemsa pre-closing communication that is determined by a court of competent jurisdiction to be subject to attorney-client privilege, and technology expressly included in the Purchased Assets (including the Purchased Intellectual Property)neither Purchaser, all Software, databases, compilations and data, information technology services, and technology owned or used by the Company or nor any of its Affiliates, including shall have the Software, databases, compilations and data, information technology systems, and technology set forth on Section 1.2(n) right to compel disclosure of the Company Disclosure Schedules;
(o) any of the machinery, equipment, vehicles, furniture and other personal property leased by the Company or any of its Affiliates under a Contract;
(p) any equity interests owned by the Company and its Affiliates of the entity or entities that own any assets related to the in-store clinics;
(q) any pin pads and the encryption codes related thereto;
(r) all assets exclusively related to the in-store clinics;
(s) to the extent related to Excluded Liabilities, all rights, claims or causes of action against third parties relating to the assets, properties, business or operations of the Acquired Stores, the Distribution Centers or other Purchased Assets or to the Assumed Liabilities, arising out of events or transactions occurring, or facts or circumstances existing, prior to or on the Closing Date (or the applicable Subsequent Closing Date or the Distribution Center Closing, as applicable);
(t) to the extent related to Excluded Liabilities, all guarantees, warranties and indemnities related to the ownership or operation of the Purchased Assets prior to or on the Closing (or the applicable Subsequent Closing or the Distribution Center Closing, as applicable); and
(u) the assets set forth on Section 1.2(u) of the Company Disclosure Schedulessuch privileged information.
Appears in 1 contract
Excluded Assets. Notwithstanding At the provisions of Section 1.1Closing, the Purchased Assets Mobil shall not include any assets of the Company or any of its Affiliates continue to own all assets, other than the Purchased Assets, presently owned by Mobil and its Affiliates located on or near the Real Property Assets or connected with the Real Property Assets, including the following (collectively, the “Excluded Assets”):assets:
(ai) any and all notes assets owned by MPLC, including the pipelines and accounts receivable generatedpumping stations owned by MPLC located on the Real Property Assets as shown on the survey to be delivered in accordance with this Agreement;
(bii) any cashthe real and personal property associated with the adjoining Light Products Terminal ("LPT") at N. Delaware Stre▇▇, bank deposits ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇ ▇▇▇ Retained Area Lease;
(iii) the real and personal property associated with the Mobil Technical Center at 600 Billingsport ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("▇▇▇"), ▇▇▇▇▇▇ing the personal property set forth on Schedule 2.1.6;
(iv) the real and personal property associated with the Lubricants Blending and Packaging Plant at 1001 Billingspor▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (▇▇▇ "▇▇▇▇"), ▇ncluding the personal property set forth on Schedule 2.1.6;
(v) accounts receivable;
(vi) certain prepaid expenses;
(vii) exchange differentials and exchange volumes associated with the operation of the Facilities;
(viii) all cash and cash equivalents of the Company, other than the Purchased CashMobil;
(cix) all insurance policiesbank accounts of Mobil;
(dx) all corporate minute books and stock transfer books and the corporate seal of the Company intercompany accounts due to or its Affiliates, other than the books and records contemplated by Section 1.1(g)from Mobil or a Mobil Affiliate;
(exi) except as assumed by Valero hereunder, all equity interests in rights, claims and benefits relating to or arising from any joint venture Proceeding, including any Tax Proceeding, pending as of the Closing Date, with respect to the ownership and operation of the Purchased Assets on or equity interests in any other Person held by prior to the Company or any of its AffiliatesClosing;
(fxii) all assets arising out of or relating Mobil's insurance policies, and all its rights under such insurance policies, including insurance policies related to employee benefits or employee benefit or compensation plans, programs, agreements or arrangements maintained or contributed to (or formerly maintained or contributed to) by the Company or its Affiliates or with respect to which the Company or any ownership and operation of its Affiliates has any Liability, except as expressly set forth in Section 6.14(e) and Section 6.14(f);
(g) the CBAs applicable to employees of the Acquired Stores and Distribution Centers;
(h) all personnel files and records, other than those expressly included in the Purchased Assets;
(ixiii) all Tax assets rights, claims and benefits of Mobil to the Company and its Affiliates (including any and all credits or deposits in respect of Taxes, net operating loss carryforwards, and refunds of Taxes for which the Company is liable pursuant to Section 2.2(d), Section 2.6(d) or Section 6.4 or otherwise with respect extent relating to any periods (Excluded Asset or portions thereof) ending on or prior to the Closing (or the applicable Subsequent Closing or Distribution Center Closing)), other than as set forth in Section 1.1(k) aboveany Retained Liability;
(jxiv) all Tax Returns the books and other Tax-related documents or information of the Company or its Affiliates not relating to the Acquired Stores;
records (k) any Contract to which the Company or any of its Affiliates is a party other than the Assumed Contracts;
(l) except for the Purchased Intellectual Property, the Intellectual Property used or owned by the Company or any of its Affiliates (including the name Books and ▇▇▇▇ “Rite Aid” or the “Rite Aid” logo, or any name or ▇▇▇▇ comprised, including or derived from the foregoing or confusingly similar theretoRecords);
(mxv) the historical customer data related to the Company’s Wellness+ program (except as set for in Section 1.1(l) above)Intellectual Property of Mobil or of any Third Party;
(nxvi) except for the Software, databases, compilations and data, information technology systems, and technology expressly included in railway cars located on the Purchased Assets (including the Purchased Intellectual Property), all Software, databases, compilations and data, information technology services, and technology owned or used by the Company or any of its Affiliates, including the Software, databases, compilations and data, information technology systems, and technology set forth on Section 1.2(n) of the Company Disclosure SchedulesReal Property Assets;
(oxvii) any of the machinery, equipment, vehicles, furniture equipment and other personal property leased by the Company or any of its Affiliates under a Contract;
(p) any equity interests goods not owned by the Company and its Affiliates of the entity or entities that own any assets related to the in-store clinics;
(q) any pin pads and the encryption codes related thereto;
(r) all assets exclusively related to the in-store clinics;
(s) to the extent related to Excluded Liabilities, all rights, claims or causes of action against third parties relating to the assets, properties, business or operations of the Acquired Stores, the Distribution Centers or other Purchased Assets or to the Assumed Liabilities, arising out of events or transactions occurring, or facts or circumstances existing, prior to or Mobil located on the Closing Date (or the applicable Subsequent Closing Date or the Distribution Center Closing, as applicable);
(t) to the extent related to Excluded Liabilities, all guarantees, warranties and indemnities related to the ownership or operation of the Purchased Assets prior to or on the Closing (or the applicable Subsequent Closing or the Distribution Center Closing, as applicable)Real Property Assets; and
(uxviii) the assets set forth on Section 1.2(u) of MLDW catalyst which is subject to and used under the Company Disclosure Schedules.MLDW Catalyst Lease Agreement
Appears in 1 contract
Sources: Asset Sale and Purchase Agreement (Valero Energy Corp/Tx)
Excluded Assets. Notwithstanding The following assets, properties, and rights (the provisions of Section 1.1, the Purchased Assets shall not include any assets of the Company or any of its Affiliates other than the Purchased Assets, including the following (collectively, the “"Excluded Assets”):") are not included in the Acquired Assets and shall be retained by the Sellers:
(a) all notes and accounts receivable generatedContracts other than Assumed Contracts;
(b) any cash, bank deposits and cash equivalents 100% of the Company, shares of the outstanding capital stock or other than Equity Interests of each Subsidiary of Polaroid listed in Section 2.02(b) of the Purchased CashDisclosure Schedule;
(c) all insurance policiespersonnel records and other Books and Records that any Seller is required by Law to retain in its possession;
(di) all corporate minute books causes of action, judgments, Claims and stock transfer books demands of any nature available to or being pursued by any Seller against Third Parties, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or otherwise, to the extent the foregoing relate to or arise out of the Excluded Assets or the Excluded Liabilities and (ii) all causes of action, judgments, Claims and demands of any nature available to or being pursued by any Seller against (A) any Representative of any Seller, or (B) any supplier or vendor to any Seller, or (C) any Third Party insurance, reinsurance, bonding or other similar company providing insurance to the Sellers other than with respect to causes of action, judgments, Claims and demands against Representatives, suppliers or vendors described in clause (A), (B) or (C) below, including all such causes of action, choses in action and rights of recovery actions for preferences, fraudulent conveyances, and other avoidance power claims and any recoveries under sections 506(c), 542, 544, 545, 547, 548, 549, 550, 552(b) and 553 of the Bankruptcy Code and the corporate seal proceeds, products, rents and profits of all of the Company foregoing, but only if such Representative, supplier or vendor is not a director, officer, employee or agent of, or consultant, supplier, vendor or contractor to, the Business (A) whose relationship with the Business continues immediately following the Closing Date or (B) who has been hired, retained or engaged by the Purchaser or any of its AffiliatesAffiliates within sixty (60) days after the Closing Date or (C) who, other than at the books and records contemplated by Section 1.1(g)end of such sixty (60) day period, is reasonably expected to have or resume such a continuing relationship with the Business after such sixty (60) day period;
(e) all equity interests in rights of any joint venture or equity interests in any other Person held by Seller under this Agreement and the Company or any of its AffiliatesAncillary Agreements;
(f) all assets arising out of or relating to employee benefits or employee benefit or compensation plans, programs, agreements or arrangements maintained or contributed to (or formerly maintained or contributed to) by the Company or its Affiliates or with respect to which the Company or any of its Affiliates has any Liability, except as expressly set forth provided in Section 6.14(e) 2.01(bb), all rights of Sellers, including Polaroid and Section 6.14(f)Polaroid ID, under the Digimarc Asset Purchase Agreement;
(g) the CBAs applicable to employees any intercompany receivables of the Acquired Stores and Distribution Centersany Seller held by another Seller;
(h) all personnel files and records, other than those expressly included in the Purchased Assetsprepaid expenses of Sellers relating to debt financing costs;
(i) all Tax non-current or other assets of the Company and its Affiliates (including any and all credits or deposits in respect of Taxes, net operating loss carryforwards, and refunds of Taxes for which the Company is liable pursuant to Section 2.2(d), Section 2.6(d) or Section 6.4 or otherwise with respect to any periods (or portions thereof) ending on or prior relating to the Closing (or the applicable Subsequent Closing or Distribution Center Closing)), other than as set forth in Section 1.1(k) above;Polaroid Pension Plan; and
(j) all Tax Returns and other Tax-related documents or information of the Company or its Affiliates not relating to the Acquired Stores;
(k) any Contract to which the Company or any of its Affiliates is a party other than the Assumed Contracts;
(l) except for the Purchased Intellectual Property, the Intellectual Property used or owned by the Company or any of its Affiliates (including the name and ▇▇▇▇ “Rite Aid” or the “Rite Aid” logo, or any name or ▇▇▇▇ comprised, including or derived from the foregoing or confusingly similar thereto);
(m) the historical customer data related to the Company’s Wellness+ program (except as set for in Section 1.1(l) above);
(n) except for the Software, databases, compilations and data, information technology systems, and technology expressly included in the Purchased Assets (including the Purchased Intellectual Property), all Software, databases, compilations and data, information technology services, and technology owned or used by the Company or any of its Affiliates, including the Software, databases, compilations and data, information technology systems, and technology set forth on Section 1.2(n) of the Company Disclosure Schedules;
(o) any of the machinery, equipment, vehicles, furniture and other personal property leased by the Company or any of its Affiliates under a Contract;
(p) any equity interests owned by the Company and its Affiliates of the entity or entities that own any assets related to the in-store clinics;
(q) any pin pads and the encryption codes related thereto;
(r) all assets exclusively related to the in-store clinics;
(s) to the extent related to Excluded Liabilities, all rights, claims or causes of action against third parties relating to the assets, properties, business or operations of the Acquired Stores, the Distribution Centers or other Purchased Assets or to the Assumed Liabilities, arising out of events or transactions occurring, or facts or circumstances existing, prior to or on the Closing Date (or the applicable Subsequent Closing Date or the Distribution Center Closing, as applicable);
(t) to the extent related to Excluded Liabilities, all guarantees, warranties and indemnities related to the ownership or operation of the Purchased Assets prior to or on the Closing (or the applicable Subsequent Closing or the Distribution Center Closing, as applicable); and
(u) the assets set forth on Section 1.2(u) of the Company Disclosure SchedulesRetained Related Party Accounts Receivable.
Appears in 1 contract
Excluded Assets. Notwithstanding the provisions any provision of Section 1.1this Agreement, the Purchased Assets Parties hereto acknowledge and agree that the Seller or its designee shall not include any assets of the Company retain or any of its Affiliates other than the Purchased Assetsacquire all right, including title and interest in and to the following assets (collectively, the “Excluded Assets”):
(a) all notes and bank accounts receivable generatedof the Company Group;
(b) any all cash, bank deposits and cash equivalents and accounts receivable of the Company, other than Company Group as of the Purchased CashClosing Date;
(c) all insurance policiessubject to Section 4.2(b), the remaining cash balance of the Bonds as of the Closing Date held by Governmental Authorities for mining permits and reclamation obligations of the Company Group (such bonds, the “Company Group Bonds”) (excluding any interest accruing thereon that the WVDEP is entitled to and elects to retain under applicable Laws or the terms of such Bonds) (such cash balance of the Company Group Bonds, less such excluded interest, if any, the “Company Group Bonds Proceeds”); provided, the Company Group Bonds shall be released and delivered to the Seller in accordance with the provisions of Section 4.2(a);
(d) all corporate minute books and stock transfer books and the corporate seal any Employee Benefit Plan of the Company Seller or its Affiliates, other than Affiliates or in which the books and records contemplated by Section 1.1(g)Company Group or its Affiliates participates as of the Closing Date;
(e) all equity interests in any joint venture rights relating to refunds, recovery or equity interests in any other Person held recoupment of Taxes paid or required to be paid by the Company Group or with respect to any of its Affiliates;the assets of the Company Group arising from or relating to any Pre-Closing Tax Period; and
(f) all assets arising out of or relating to employee benefits or employee benefit or compensation plans, programs, agreements or arrangements maintained or contributed to (or formerly maintained or contributed to) by the Company or its Affiliates or Company’s contract with respect to which the Company or any of its Affiliates has any Liability, except as expressly set forth in Section 6.14(e) Suddenlink Communications for phone and Section 6.14(f);
(g) the CBAs applicable to employees of the Acquired Stores and Distribution Centers;
(h) all personnel files and records, other than those expressly included in the Purchased Assets;
(i) all Tax assets of the Company and its Affiliates (including any and all credits or deposits in respect of Taxes, net operating loss carryforwards, and refunds of Taxes for which the Company is liable pursuant to Section 2.2(d), Section 2.6(d) or Section 6.4 or otherwise with respect to any periods (or portions thereof) ending on or prior to the Closing (or the applicable Subsequent Closing or Distribution Center Closing)), other than as set forth in Section 1.1(k) above;
(j) all Tax Returns and other Tax-related documents or information of the Company or its Affiliates not relating to the Acquired Stores;
(k) any Contract to which the Company or any of its Affiliates is a party other than the Assumed Contracts;
(l) except for the Purchased Intellectual Property, the Intellectual Property used or owned by the Company or any of its Affiliates (including the name and internet services at ▇▇▇▇▇ “Rite Aid” or the “Rite Aid” logo, or any name or ▇▇▇▇▇▇▇▇ comprised▇▇▇. SE, including or derived from the foregoing or confusingly similar thereto);
(m) the historical customer data related to the Company’s Wellness+ program (except as set for in Section 1.1(l) above);
(n) except for the Software▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, databases▇▇▇▇▇ ▇▇▇, compilations and data▇▇▇▇▇▇▇▇▇▇, information technology systems, and technology expressly included in the Purchased Assets (including the Purchased Intellectual Property), all Software, databases, compilations and data, information technology services, and technology owned or used by the Company or any of its Affiliates, including the Software, databases, compilations and data, information technology systems, and technology set forth on Section 1.2(n) of the Company Disclosure Schedules;
(o) any of the machinery, equipment, vehicles, furniture and other personal property leased by the Company or any of its Affiliates under a Contract;
(p) any equity interests owned by the Company and its Affiliates of the entity or entities that own any assets related to the in-store clinics;
(q) any pin pads and the encryption codes related thereto;
(r) all assets exclusively related to the in-store clinics;
(s) to the extent related to Excluded Liabilities, all rights, claims or causes of action against third parties relating to the assets, properties, business or operations of the Acquired Stores, the Distribution Centers or other Purchased Assets or to the Assumed Liabilities, arising out of events or transactions occurring, or facts or circumstances existing, prior to or on the Closing Date (or the applicable Subsequent Closing Date or the Distribution Center Closing, as applicable);
(t) to the extent related to Excluded Liabilities, all guarantees, warranties and indemnities related to the ownership or operation of the Purchased Assets prior to or on the Closing (or the applicable Subsequent Closing or the Distribution Center Closing, as applicable); and
(u) the assets set forth on Section 1.2(u) of the Company Disclosure Schedules▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
Appears in 1 contract
Sources: Securities Purchase Agreement (Ramaco Resources, Inc.)
Excluded Assets. Notwithstanding anything to the provisions of Section 1.1contrary contained herein, the Purchased Assets Seller shall not include sell, convey, assign, transfer or deliver to Purchaser, and Purchaser shall not purchase, acquire or accept, any assets of the Company or any of its Affiliates other than the Purchased Assets, including any of the following assets and properties of Seller (collectively, the “Excluded Assets”):
(ai) all notes and accounts receivable generatedany Working Capital;
(bii) any cashGE Name and ▇▇ ▇▇▇▇▇, bank deposits together with any Contracts granting rights to use the same (certain of which will be licensed pursuant to the Transitional Trademark License Agreement (as defined in Section 5.08(d));
(iii) any of Seller’s right, title and cash equivalents interest in respect of the Companyreal property, other than the Purchased CashFacility, including any improvements, fixtures or appurtenances to real property other than the Facility or rights in respect thereof;
(civ) Tax assets relating to, but not limited to, all insurance policiesrefunds (or credits) of any Tax for which Seller is liable pursuant to Section 5.07;
(dv) Seller’s plans and other employee benefit plans, programs, arrangements, agreements (including retirement benefit and post-retirement health benefit plans, programs, arrangements and agreements) and policies sponsored or maintained by the Seller or its Affiliates, and any trusts or other assets related thereto, except as provided in Article VI;
(vi) subject to Section 5.05, all policies of, or agreements for, insurance and interests in insurance pools and programs;
(vii) except as otherwise provided in Section 2.01(a)(v) or Section 2.01(a)(vii), all Software and data owned or licensed by Seller and used solely in the conduct of the operation of the Business;
(viii) any Intellectual Property other than the Product Intellectual Property and the Purchased Registered Intellectual Property;
(ix) all causes of action (including counterclaims) and defenses (A) against third parties relating to any of the Excluded Assets or the Excluded Liabilities as well as any books, records and privileged information relating thereto or (B) relating to any period through the Closing to the extent that the assertion of such cause of action or defense is necessary or useful in defending any claim that may be asserted against Seller or for which indemnification may be sought by Purchaser Indemnified Parties pursuant to Article VII or that the Seller is otherwise responsible for under the terms of this Agreement;
(A) all loans or advances by Seller to its Affiliates; and (B) all loans or advances by Seller’s Affiliates to Seller;
(xi) personnel and employment records for employees and former employees of the Seller or its Affiliates who are not Transferred Employees;
(A) all corporate minute books (and other similar corporate records) and stock transfer books and the corporate seal records of the Company or its AffiliatesSeller, other than the (B) any books and records contemplated relating to the Excluded Assets or (C) any books, records or other materials that Seller (x) is required by Section 1.1(gLaw to retain (copies of which, to the extent permitted by Law, will be made available to Purchaser upon Purchaser’s reasonable request), (y) reasonably believes are necessary to enable it to prepare and/or file Tax Returns (copies of which will be made available to Purchaser upon Purchaser’s reasonable request) or (z) is prohibited by Law from delivering to Purchaser;
(exiii) all equity interests the assets and properties listed in Section 2.01(b)(xiii) of the Disclosure Schedules;
(xiv) any joint venture assets sold or equity interests otherwise disposed of in the ordinary course of business prior to the Closing Date; and
(xv) any other Person held by assets, properties, rights, Contracts and claims of Seller that are not related exclusively to the Company Product , wherever located, whether tangible or intangible, real, personal or mixed. Notwithstanding anything to the contrary contained in this Agreement or any of the other Transaction Agreements, Purchaser acknowledges and agrees that all of the following shall remain the property of Seller, and neither Purchaser nor any of its Affiliates;
Affiliates shall have any interest therein: (fw) all assets arising out of records and reports prepared or relating to employee benefits or employee benefit or compensation plans, programs, agreements or arrangements maintained or contributed to (or formerly maintained or contributed to) received by the Company or its Affiliates or with respect to which the Company GE or any of its Affiliates has any Liability, except as expressly set forth in Section 6.14(e) and Section 6.14(f);
(g) connection with the CBAs applicable to employees sale of the Acquired Stores Purchased Assets and Distribution Centers;
Assumed Liabilities and the transactions contemplated hereby, including all analyses relating to the Business or Purchaser so prepared or received; (hx) all personnel files and records, other than those expressly included in the Purchased Assets;
(i) all Tax assets confidentiality agreements with prospective purchasers of the Company and Business or any portion thereof (except that Seller or its Affiliates (including any and Affiliates, as applicable, shall assign to Purchaser or its designee at the Closing all credits or deposits in respect of Taxes, net operating loss carryforwards, and refunds such assignor’s rights under such agreements to confidential treatment of Taxes for which the Company is liable pursuant to Section 2.2(d), Section 2.6(d) or Section 6.4 or otherwise information with respect to any periods the Purchased Assets and Assumed Liabilities and with respect to solicitation and hiring of the Transferred Employees); (or portions thereof) ending on or prior to the Closing (or the applicable Subsequent Closing or Distribution Center Closing)), other than as set forth in Section 1.1(k) above;
(jy) all Tax Returns bids and other Tax-related expressions of interest received from third parties with respect thereto; and (z) all privileged materials, documents or information and records in the possession of the Company or its Affiliates not relating to the Acquired Stores;
(k) any Contract to which the Company GE or any of its Affiliates is a party other than to the Assumed Contracts;
extent such materials, documents and records are (lA) except for not related to the Purchased Intellectual PropertyAssets and Assumed Liabilities , (B) related to any Excluded Asset or Excluded Liability, or (C) related to any matter for which Seller retains or has an obligation to indemnify the Intellectual Property used Purchaser Indemnified Parties pursuant to Article VII (without giving effect to the provisions of Section 7.01(b)). Purchaser further acknowledges and agrees that, with respect to any Action or owned by dispute between Seller or one of its Affiliates, on the Company one hand, and Purchaser or any one of its Affiliates (including post-Closing), on the name and ▇▇▇▇ “Rite Aid” or the “Rite Aid” logoother hand, or only Seller may waive any name or ▇▇▇▇ comprised, including or derived from the foregoing or confusingly similar thereto);
(m) the historical customer data related evidentiary privilege that may attach to the Company’s Wellness+ program (except as set for in Section 1.1(l) above);
(n) except for the Software, databases, compilations and data, information technology systemsa pre-closing communication that is determined by a court of competent jurisdiction to be subject to attorney-client privilege, and technology expressly included in the Purchased Assets (including the Purchased Intellectual Property)neither Purchaser, all Software, databases, compilations and data, information technology services, and technology owned or used by the Company or nor any of its Affiliates, including shall have the Software, databases, compilations and data, information technology systems, and technology set forth on Section 1.2(n) right to compel disclosure of the Company Disclosure Schedules;
(o) any of the machinery, equipment, vehicles, furniture and other personal property leased by the Company or any of its Affiliates under a Contract;
(p) any equity interests owned by the Company and its Affiliates of the entity or entities that own any assets related to the in-store clinics;
(q) any pin pads and the encryption codes related thereto;
(r) all assets exclusively related to the in-store clinics;
(s) to the extent related to Excluded Liabilities, all rights, claims or causes of action against third parties relating to the assets, properties, business or operations of the Acquired Stores, the Distribution Centers or other Purchased Assets or to the Assumed Liabilities, arising out of events or transactions occurring, or facts or circumstances existing, prior to or on the Closing Date (or the applicable Subsequent Closing Date or the Distribution Center Closing, as applicable);
(t) to the extent related to Excluded Liabilities, all guarantees, warranties and indemnities related to the ownership or operation of the Purchased Assets prior to or on the Closing (or the applicable Subsequent Closing or the Distribution Center Closing, as applicable); and
(u) the assets set forth on Section 1.2(u) of the Company Disclosure Schedulessuch privileged information.
Appears in 1 contract
Sources: Asset Purchase Agreement
Excluded Assets. Notwithstanding the provisions of Section 1.1, the Purchased Assets shall not include any assets of the Company or any of its Affiliates other than the Purchased Assets, including will exclude the following (collectively, the “"Excluded Assets”"):
(a) all notes the Companies' rights under this Agreement and accounts receivable generatedthe other Seller Documents (as defined in Section 2.2), including, without limitation, the consideration to be paid to the Companies hereunder;
(b) any cash, bank deposits and cash equivalents of the Company, other than the Purchased CashMaterial Agreements identified in Schedule 2.19(c);
(c) all insurance policiesthe minute books, corporate seals, ownership records and taxpayer and other identification numbers of each Company, and any other documents relating to the organization, maintenance and existence of the Companies;
(d) all corporate minute books and stock transfer books and records prepared in connection with the corporate seal sale of the Company or its AffiliatesAssets, other than including bids received from third persons and analyses relating to the books and records contemplated by Section 1.1(g)Assets;
(e) all equity interests consolidated cash of the Companies in any joint venture or equity interests in any other Person held by the Company or any excess of its Affiliates$250,000;
(f) all assets arising out rights, claims and causes of or action relating to employee benefits or employee benefit or compensation plans, programs, agreements or arrangements maintained or contributed to (or formerly maintained or contributed to) by the Company or its Affiliates or with respect to which the Company or any of its Affiliates has any Liability, except the Excluded Assets or the Liabilities (as expressly set forth defined in Section 6.14(e) 1.3), other than the Assumed Liabilities, including rights, claims and Section 6.14(f)causes of action under insurance policies relating thereto and to the Assets;
(g) the CBAs applicable all rights to employees claims available to or being pursued by Sellers or any affiliates of Sellers for refunds of or credits against Taxes (as defined in Section 2.11), investment Tax credits, research credits and credits for prepayment of Taxes attributable to Sellers or any affiliates of Sellers for pre-Closing Tax periods (determined as if such taxable period ended as of the Acquired Stores and Distribution Centersclose of business on the Closing Date (as defined in Section 1.6);
(h) all personnel files any consolidated, combined, unitary or separate company Tax return relating to income Taxes that include any of the Sellers or any affiliate of any of the Sellers and records, other than those expressly included records and work papers used in the Purchased Assetspreparation thereof;
(i) all Tax any asset of the Employee Plans or Controlled Group Plans (each as defined in Section 2.17) including, but not limited to, the right to receive assets of the Company and its Affiliates (including any and all credits or deposits in respect of Taxes, net operating loss carryforwards, and refunds of Taxes for which the Company is liable pursuant to Section 2.2(d), Section 2.6(d) or Section 6.4 or otherwise with respect to any periods (or portions such plan upon termination thereof) ending on or prior to the Closing (or the applicable Subsequent Closing or Distribution Center Closing)), other than as set forth in Section 1.1(k) above;
(j) all Tax Returns personal seat licenses and other Tax-related documents or information season tickets to attend games of the Company or its Affiliates not relating to the Acquired StoresTennessee Titans National Football League;
(k) any Contract to which the Company or any 401(k) Plans of its Affiliates is a party other than the Assumed ContractsCompanies;
(l) except for the Purchased Intellectual Property, the Intellectual Property used or owned by the Company or any of its Affiliates (including the name and all interests in Belle Mea▇▇ ▇▇▇▇ “Rite Aid” or the “Rite Aid” logo, or any name or ▇▇▇▇ comprised, including or derived from the foregoing or confusingly similar thereto)avel Agency;
(m) the historical customer data related to the Company’s Wellness+ program (except as set for in Section 1.1(l) above)extent that transfer to Buyers is prohibited by applicable law, employee medical records;
(n) except for the Software, databases, compilations and data, information technology systems, and technology expressly included in the Purchased Assets (including the Purchased Intellectual Property), all Software, databases, compilations and data, information technology services, and technology owned or used by the Company or any of its AffiliatesCompanies' insurance policies, including the Software, databases, compilations and data, information technology systems, and technology set forth on Section 1.2(n) of the Company Disclosure Schedules;any cash surrender value thereof; and
(o) any of the machinerycomputers, equipment, vehicles, furniture cell phones and other personal property leased by the Company or any of its Affiliates under a Contract;
(p) any equity interests owned by the Company and its Affiliates of the entity or entities that own any assets related to the in-store clinics;
(q) any pin pads and the encryption codes related thereto;
(r) all assets exclusively related to the in-store clinics;
(s) to the extent related to Excluded Liabilities, all rights, claims or causes of action against third parties relating to the assets, properties, business or operations of the Acquired Stores, the Distribution Centers or other Purchased Assets or to the Assumed Liabilities, arising out of events or transactions occurring, or facts or circumstances existing, prior to or equipment listed on the Closing Date (or the applicable Subsequent Closing Date or the Distribution Center Closing, as applicableSchedule 1.2(o);
(t) to the extent related to Excluded Liabilities, all guarantees, warranties and indemnities related to the ownership or operation of the Purchased Assets prior to or on the Closing (or the applicable Subsequent Closing or the Distribution Center Closing, as applicable); and
(u) the assets set forth on Section 1.2(u) of the Company Disclosure Schedules.
Appears in 1 contract
Excluded Assets. (a) Notwithstanding any provision herein to the provisions of Section 1.1contrary, the Purchased Assets following assets shall not include any assets of be excluded from the Company or any of its Affiliates other than the Purchased Assets, including the following transaction (collectively, the “Excluded Assets”):
(a) all notes ), and accounts receivable generated;
(b) Seller shall have the right at any cashtime prior to or at the Closing to dividend, bank deposits and cash equivalents of transfer, dispose of, extinguish, or otherwise exclude from the Company, other than the Purchased Cash;
(c) all insurance policies;
(d) all corporate minute books and stock transfer books and the corporate seal of the Company or its Affiliates, other than the books and records contemplated by Section 1.1(g);
(e) all equity interests in any joint venture or equity interests in any other Person held by the Company or any of its Affiliates;
(f) all assets arising out of or relating to employee benefits or employee benefit or compensation plans, programs, agreements or arrangements maintained or contributed to (or formerly maintained or contributed to) by the Company or its Affiliates or with respect to which the Company or any of its Affiliates has any Liability, except as expressly set forth in Section 6.14(e) and Section 6.14(f);
(g) the CBAs applicable to employees of the Acquired Stores and Distribution Centers;
(h) all personnel files and records, other than those expressly included in the Purchased Assets;Companies such assets:
(i) all Tax assets trademarks and tradenames containing “Dominion” shall remain the sole property of the Company and Seller or its Affiliates Affiliates, as applicable;
(including ii) (A) any and all credits or deposits interests in respect any Employee Plans that provide for postretirement benefits for periods of Taxes, net operating loss carryforwards, and refunds of Taxes for which service prior to the Company is liable pursuant to Section 2.2(d), Section 2.6(d) or Section 6.4 or otherwise Closing Date with respect to any Company Employee employed by Seller or its Affiliates that are (i) defined benefit pension plans subject to Title IV of ERISA or Section 412 of the Code, (ii) defined contribution plans as defined in Section 3(34) of ERISA, (iii) voluntary employees’ beneficiary associations under Section 501(c)(9) of the Code, or (iv) welfare benefit plans as defined in Section 3(1) of ERISA; and (B) all assets which relate to other post-employment benefits of the Companies as of the Closing.
(iii) any refunds or credits related to Taxes to the extent attributable to periods (or portions thereof) ending on or prior to the Closing (or the applicable Subsequent Closing or Distribution Center Closing)), other than as set forth in Section 1.1(k) aboveEffective Time;
(jiv) all Tax Returns and software used by the Companies other Tax-related documents or information of the Company or its Affiliates not relating to the Acquired Storesthan software listed on Schedule 3.17;
(kv) any Contract to which all supervisory control and data acquisition (SCADA) systems, shared critical support applications and the Company or any of its Affiliates is a party other than microwave towers, and all assets related thereto, that are used, but not owned, by the Assumed ContractsCompanies;
(lvi) except for the Purchased Intellectual Property, the Intellectual Property used or owned by the Company or any of its Affiliates (including the name and ▇▇▇▇▇▇ “Rite Aid” or storage pool gas and any proceeds related thereto; and
(vii) the Contracts listed on Schedule 5.8(a)(vii) (the “Rite Aid” logoExcluded Contracts”).
(b) To the extent that any proceeds relating to the Excluded Assets are received by Buyer after the Closing, or any name or Buyer shall remit such proceeds to Seller within ten (10) Business Days of receipt.
(c) To the extent Seller has not removed all gas from the ▇▇▇▇▇▇ comprised, including or derived from the foregoing or confusingly similar thereto);
(m) the historical customer data related storage pool prior to the Company’s Wellness+ program (except as set for in Section 1.1(l) above);
(n) except for the SoftwareClosing, databases, compilations and data, information technology systems, and technology expressly included in the Purchased Assets (including the Purchased Intellectual Property), all Software, databases, compilations and data, information technology services, and technology owned or used by the Company or any of its Affiliates, including the Software, databases, compilations and data, information technology systems, and technology set forth on Section 1.2(n) of the Company Disclosure Schedules;
(o) any of the machinery, equipment, vehicles, furniture and other personal property leased by the Company or any of its Affiliates under a Contract;
(p) any equity interests owned by the Company and its Affiliates of the entity or entities that own any assets related Buyer shall provide Seller access to the in-store clinics;
(q) ▇▇▇▇▇▇ storage pool and shall permit Seller to take any pin pads and the encryption codes related thereto;
(r) all assets exclusively related actions to the in-store clinics;
(s) to the extent related to Excluded Liabilities, all rights, claims or causes of action against third parties relating to the assets, properties, business or operations of the Acquired Stores, the Distribution Centers or other Purchased Assets or to the Assumed Liabilities, arising out of events or transactions occurring, or facts or circumstances existing, prior to or on the Closing Date (or the applicable Subsequent Closing Date or the Distribution Center Closing, as applicable);
(t) to the extent related to Excluded Liabilities, all guarantees, warranties and indemnities related to the ownership or operation of the Purchased Assets prior to or on the Closing (or the applicable Subsequent Closing or the Distribution Center Closing, as applicable); and
(u) the assets set forth on Section 1.2(u) of the Company Disclosure Schedulesremove such gas.
Appears in 1 contract
Sources: Stock Purchase Agreement (Equitable Resources Inc /Pa/)
Excluded Assets. Notwithstanding the provisions of Section 1.1foregoing, the Purchased Assets shall not include any assets of the Company or any of its Affiliates other than the Purchased Assets, including the following assets (collectively, the “Excluded Assets”):
(a) other than the Cash Banks, all notes cash or cash equivalents (including deposits and accounts receivable generatedcash in transfer from credit card sales and all cash in any automated teller machines or games at the Restaurants) except as set forth in Section 2.01(a) and all securities, bank and investment accounts;
(b) all accounts or notes receivable held by Sellers, and any cashsecurity, bank deposits and cash equivalents claim, remedy or other right related to any of the Company, other than the Purchased Cashsuch accounts or notes receivable;
(c) all insurance policiesbank accounts, bank and credit card deposits in transit, investment accounts, credit cards and debit cards;
(d) all corporate minute books and stock transfer books and the corporate seal seals, organizational documents, minute books, stock books, Tax Returns, books of account or other records having to do with the Company or its Affiliates, other than the books and records contemplated by Section 1.1(g)corporate organization of Sellers;
(e) all equity interests in any joint venture or equity interests in any other Person held by the Company or any of its AffiliatesBenefit Plans and assets attributable thereto;
(f) subject to Section 7.04, all assets arising out of or relating to employee benefits or employee benefit or compensation plans, programs, agreements or arrangements maintained or contributed to (or formerly maintained or contributed to) by the Company or its Affiliates or with respect to which the Company or any of its Affiliates has any Liability, except as expressly set forth in Section 6.14(e) insurance policies and Section 6.14(f)proceeds therefrom;
(g) all rights to any Actions relating to the CBAs applicable period prior to employees of the Acquired Stores and Distribution CentersClosing Date;
(h) all personnel files the other assets, properties and records, other than those expressly included in rights specifically set forth on Section 2.02 of the Purchased AssetsDisclosure Schedules;
(i) all Tax assets the rights which accrue or will accrue to Sellers and any Affiliates of Sellers under the Company and its Affiliates (including any and all credits or deposits in respect of Taxes, net operating loss carryforwards, and refunds of Taxes for which the Company is liable pursuant to Section 2.2(d), Section 2.6(d) or Section 6.4 or otherwise with respect to any periods (or portions thereof) ending on or prior to the Closing (or the applicable Subsequent Closing or Distribution Center Closing)), other than as set forth in Section 1.1(k) aboveTransaction Documents;
(j) all Tax Returns deposits and other Tax-rebates related documents or information of the Company or its Affiliates not relating to the Acquired StoresBusiness for the period prior to the Closing Date except as set forth in Section 2.01(i);
(k) all accounts receivable or notes receivable held by Sellers, and any Contract security, claim, remedy or other right related to which the Company or any of its Affiliates is a party other than the Assumed Contractssuch accounts receivable or notes receivable (“Accounts Receivable”);
(l) except for all of Seller’s federal, state, local, and other tax returns, reports, declarations, and applications related to Taxes (“Tax Returns”) and other records which are not directly related to or reasonably necessary to the Purchased Intellectual Property, conduct of the Intellectual Property used or owned by the Company or any of its Affiliates (including the name and ▇▇▇▇ “Rite Aid” or the “Rite Aid” logo, or any name or ▇▇▇▇ comprised, including or derived from the foregoing or confusingly similar thereto)Business;
(m) the historical customer data related any tax credits, tax refunds, tax benefits, or other benefits relating to periods prior to the Company’s Wellness+ program (except as set for in Section 1.1(l) above)Closing Date;
(n) except employment records and personnel files of employees (provided that, with respect to certain employees designated by Buyer, such files and records shall be made available to Buyer for Buyer’s review prior to Closing in accordance with the Software, databases, compilations and data, information technology systems, and technology expressly included applicable law in the Purchased Assets (including the Purchased Intellectual Propertyconnection with decisions by Buyer whether or not to employ such employees), all Software, databases, compilations and data, information technology services, and technology owned or used by the Company or any of its Affiliates, including the Software, databases, compilations and data, information technology systems, and technology set forth on Section 1.2(n) of the Company Disclosure Schedules;
(o) any related party loans listed as an asset on the books and records of the machinery, equipment, vehicles, furniture and other personal property leased by the Company or any of its Affiliates under a ContractSeller;
(p) any equity interests owned personal computers and printers located at Owners’ homes, either corporate office, cellular telephones, email addresses and telephone numbers used by the Company Owners and its Affiliates each Owners’ spouse. For purposes of the entity or entities that own any assets related to the in-store clinicsthis subsection, “Owners” shall mean ▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇;
(q) Artwork and personal effects of all employees in any pin pads and of the encryption codes related theretocorporate offices;
(r) all assets exclusively related to any ownership or beneficial interest in life insurance policies insuring the in-store clinics;lives of any Owner or any Owners’ spouse; and
(s) to all assets owned by KPW, ▇▇▇▇ ▇▇▇▇▇▇ or ▇▇▇▇▇ ▇▇▇▇▇, including all property at the extent related to Excluded Liabilities, all rights, claims or causes of action against third parties relating to the assets, properties, business or operations of the Acquired Stores, the Distribution Centers or other Purchased Assets or to the Assumed Liabilities, arising out of events or transactions occurring, or facts or circumstances existing, prior to or on the Closing Date (or the applicable Subsequent Closing Date or the Distribution Center Closing, as applicable);
(t) to the extent related to Excluded Liabilities, all guarantees, warranties and indemnities related to the ownership or operation of the Purchased Assets prior to or on the Closing (or the applicable Subsequent Closing or the Distribution Center Closing, as applicable); and
(u) the assets set forth on Section 1.2(u) of the Company Disclosure Schedulescorporate offices.
Appears in 1 contract
Sources: Asset Purchase Agreement (Diversified Restaurant Holdings, Inc.)
Excluded Assets. Notwithstanding the provisions of Section 1.1, the Purchased The assets that constitute Excluded Assets shall not include any assets of the Company or any of its Affiliates other than the Purchased Assets, including the following (collectively, the “Excluded Assets”):only:
(a) the consideration delivered to Seller pursuant to this Agreement, and all notes of Seller’s rights and accounts receivable generatedinterests arising under or in connection with this Agreement;
(b) any cashall formation and organization documents, bank deposits minute books, stock record books and cash equivalents all other documents relating to the legal existence of Seller or its Affiliates, and all income tax returns and records, gaming tax returns (including supporting schedules) and records and nontransferable licenses, permits, approvals and other authorizations; provided, however, that copies of such corporate and tax records and nontransferable licenses, permits, approvals and other authorizations shall be provided to Purchaser at the Company, other than Closing as the Purchased Cashrequest of Purchaser;
(c) all of Seller’s interests, claims and choses of action in any past or current insurance policiespolicy or Contract (other than those that may be assigned pursuant to the assignment of the Assumed Plans), and subject to Section 8.22, all rights to contribution and insurance proceeds in respect of Assets;
(d) all corporate minute books and stock transfer books and the corporate seal of the Company Seller’s interests in any claims (including cross claims or its Affiliatescounterclaims) relating to any Taxes (including any deposits, refunds, rebates, credits or other Tax benefits) (other than those that both relate to the books Assets and records contemplated by Section 1.1(garise after the Closing Date);
(e) all equity interests in any joint venture claims, causes of action or equity interests in other rights related to any other Person held by the Company or any of its AffiliatesRetained Liability;
(f) all Purchaser expressly acknowledges that Seller owns and operates the separate business entities known as the ▇▇▇▇▇▇ Station and Station Grille, which will be operated in competition with Purchaser after Closing. All assets arising of the ▇▇▇▇▇▇ Station and Station Grille, of any nature, are excluded from this sale. There are certain joint assets that include the accounting software and gaming tracking system that the parties will need to seek permission to divide out of or relating to employee benefits or employee benefit or compensation plans, programs, agreements or arrangements maintained or contributed to (or formerly maintained or contributed to) by the Company or its Affiliates or in accordance with respect to which the Company or any of its Affiliates has any Liability, except as expressly set forth in Section 6.14(e) and Section 6.14(f);their use; and
(g) the CBAs applicable to employees of the Acquired Stores and Distribution Centers;
(h) all personnel files and records, other than those expressly included in the Purchased Assets;
(i) all Tax assets of the Company and its Affiliates (including any and all credits or deposits in respect of Taxes, net operating loss carryforwards, and refunds of Taxes for which the Company is liable pursuant to Section 2.2(d), Section 2.6(d) or Section 6.4 or otherwise with respect to any periods (or portions thereof) ending on or prior to the Closing (or the applicable Subsequent Closing or Distribution Center Closing)), other than as set forth in Section 1.1(k) above;
(j) all Tax Returns and other Tax-related documents or information of the Company or its Affiliates not relating to the Acquired Stores;
(k) any Contract to which the Company or any of its Affiliates is a party other than the Assumed Contracts;
(l) except for the Purchased Intellectual Property, the Intellectual Property used or owned by the Company or any of its Affiliates (including the name and ▇▇▇▇ “Rite Aid” or the “Rite Aid” logo, or any name or ▇▇▇▇ comprised, including or derived from the foregoing or confusingly similar thereto);
(m) the historical customer data related to the Company’s Wellness+ program (except as set for in Section 1.1(l) above);
(n) except for the Software, databases, compilations and data, information technology systems, and technology expressly included in the Purchased Assets (including the Purchased Intellectual Property), all Software, databases, compilations and data, information technology services, and technology owned or used by the Company or any of its Affiliates, including the Software, databases, compilations and data, information technology systems, and technology set forth on Section 1.2(n) of the Company Disclosure Schedules;
(o) any of the machinery, equipment, vehicles, furniture and other personal property leased by the Company or any of its Affiliates under a Contract;
(p) any equity interests owned by the Company and its Affiliates of the entity or entities that own any assets related to the in-store clinics;
(q) any pin pads and the encryption codes related thereto;
(r) all assets exclusively related to the in-store clinics;
(s) to the extent related to Excluded Liabilities, all rights, claims or causes of action against third parties relating to the assets, properties, business or operations of the Acquired Stores, the Distribution Centers or other Purchased Assets or to the Assumed Liabilities, arising out of events or transactions occurring, or facts or circumstances existing, prior to or on the Closing Date (or the applicable Subsequent Closing Date or the Distribution Center Closing, as applicable);
(t) to the extent related to Excluded Liabilities, all guarantees, warranties and indemnities related to the ownership or operation of the Purchased Assets prior to or on the Closing (or the applicable Subsequent Closing or the Distribution Center Closing, as applicable); and
(u) the assets set forth on Section 1.2(u) of the Company Disclosure SchedulesCapital City Rewards”.
Appears in 1 contract
Sources: Asset Purchase Agreement (Jacobs Entertainment Inc)
Excluded Assets. Notwithstanding Seller shall retain all assets other than the provisions of Acquired Assets, and, notwithstanding Section 1.12.1(a), the Purchased Acquired Assets shall not include any of the following assets of Seller or its Affiliates, all of which shall remain the Company or exclusive property of Seller and its Affiliates, free and clear of any claim of its Affiliates other than the Purchased Assets, including the following Buyer (collectively, the “Excluded Assets”):
(ai) all notes and accounts receivable generatedCash of Seller;
(bii) any cash, all bank deposits and cash equivalents accounts of the Company, other than the Purchased CashSeller;
(ciii) all insurance policies;
Contracts (dthe “Excluded Contracts”) all corporate minute books and stock transfer books and the corporate seal of the Company or its Affiliates, other than (A) the books Assigned Contracts and records contemplated by Section 1.1(g);
(eB) all equity interests in any joint venture or equity interests in any other Person held by the Company or any of its Affiliates;
(f) all assets arising out of or relating to employee benefits or employee benefit or compensation plans, programs, agreements or arrangements maintained or contributed to (or formerly maintained or contributed to) by the Company or its Affiliates or with respect to which the Company or any of its Affiliates has any Liability, except as expressly Contracts set forth in Section 6.14(e2.1(b)(i) and Section 6.14(f)of the Disclosure Schedules;
(giv) the CBAs applicable corporate charter, qualifications to conduct business as a foreign corporation, arrangements with registered agents relating to foreign qualifications, taxpayer and other identification numbers, seals, minute books, stock transfer books, blank stock certificates, books of account or other records having to do with the corporate organization, maintenance and existence of Seller and its Affiliates, including personal information of its employees of the Acquired Stores and Distribution Centerscontractors;
(hv) all personnel files insurance policies and recordsrights thereunder, other than those expressly included in the Purchased Assetsincluding returns of charges or premiums under retrospective rating plans;
(ivi) all Tax assets the assets, properties and rights specifically set forth on Section 2.1(b)(vi) of the Company and its Affiliates (including any and all credits or deposits in respect of Taxes, net operating loss carryforwards, and refunds of Taxes for which the Company is liable pursuant to Section 2.2(d), Section 2.6(d) or Section 6.4 or otherwise with respect to any periods (or portions thereof) ending on or prior to the Closing (or the applicable Subsequent Closing or Distribution Center Closing)), other than as set forth in Section 1.1(k) aboveDisclosure Schedules;
(jvii) all Tax Returns intercompany receivables, intercompany debts and other Tax-related documents or information of the Company or its Affiliates not relating obligations due to the Acquired Stores;
(k) any Contract to which the Company or any of its Affiliates is a party other than the Assumed Contracts;
(l) except for the Purchased Intellectual Property, the Intellectual Property used or owned by the Company or Seller from any of its Affiliates (including the name and ▇▇▇▇ “Rite Aid” whether recorded or the “Rite Aid” logo, or any name or ▇▇▇▇ comprised, including or derived from the foregoing or confusingly similar theretounrecorded);
(mviii) those assets of Seller and Seller’s Affiliates that may be used, but are not used primarily, in the historical customer data operation of or in connection with, the Business, including (A) software and systems, including the email system but excluding the email assets specified in Section 2.1(a)(iv), (B) Contracts to which any Affiliate of Seller is a party (other than the Assigned Contracts), and (C) administrative and financial services provided to the Business by Seller and its Affiliates, including financial, tax, accounting, legal, administrative, management, risk management, employee benefits and other human resources, information technology, paper purchasing, production, website hosting, digital apps and video distribution, advertising operations and programmatic support, consumer marketing and other support services;
(ix) all Business Marks, Intellectual Property Registrations, and Intellectual Property Rights, including Software, Trademarks, Copyrights, and Social Media Accounts, of Seller or its Affiliates and all goodwill associated with any of the foregoing;
(x) all interests of Seller and its Affiliates in and to (i) all furniture and leasehold improvements in any facility, including those used by the Business, (ii) all furniture, fixtures, vehicles, office equipment, and supplies, and (iii) all routers, hubs, switches, file servers and other network and telecommunications equipment and computer hardware;
(xi) all interests of Seller and its Affiliates in and to their telephone numbers and facsimile numbers, including those used or held for use in connection with the Business, and all listings pertaining to Seller in all directories or similar publications relating to internet domain names;
(xii) all interests of Seller and its Affiliates in and to post office boxes;
(xiii) all claims, rights, benefits and interests arising under or resulting from any Excluded Asset or Excluded Liability;
(xiv) without limiting Section 5.4(e), any rights to Tax refunds, Tax credits or similar Tax benefits, including those related to the Company’s Wellness+ program (except as set Business or the Acquired Assets for in Section 1.1(l) above)any Pre-Closing Tax Period;
(nxv) except for the Softwaresubject to Section 5.4(f), databases, compilations and data, information technology systems, and technology expressly included in the Purchased Assets any records (including the Purchased Intellectual Property), all Software, databases, compilations accounting records and data, information technology services, Tax Returns and technology owned related records and workpapers) related to Taxes paid or used payable by the Company Seller or any of its Affiliates, including and all financial and Tax records and related workpapers relating to the Software, databases, compilations and data, information technology systems, and technology set forth on Section 1.2(n) Business that form part of the Company Disclosure Schedules;
(o) any of the machinery, equipment, vehicles, furniture and other personal property leased by the Company Seller’s or any of its Affiliates under a ContractAffiliates’ general ledger;
(pxvi) any equity interests owned by Seller’s and each of Seller’s Affiliates’ proprietary or confidential business information, records or policies, including those which relate generally to their businesses and are not used primarily in connection with the Company Business, such as strategic plans, marketing strategies and its Affiliates of the entity or entities that own any assets related to the in-store clinicsaccounting procedures;
(qxvii) all capital stock or other equity interests in any pin pads and the encryption codes related theretoSubsidiary of Seller or its Affiliates or in any other entity that are owned beneficially or of record by any of them;
(rxviii) all assets exclusively legal advice and related communications and records delivered to Seller or its Affiliates at any time regardless of whether such advice or communications concerned the in-store clinicsBusiness;
(sxix) to all records prepared in connection with the extent related to Excluded Liabilitiessale of the Business, all rights, claims or causes of action against third parties including analyses relating to the assetsBusiness;
(xx) all communications with respect to, propertiesrelating to, business arising from or operations in connection with the Transactions among ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, LLP, Seller and its Affiliates, and any of their respective Representatives, and the Acquired Storesattorney-client privilege, the Distribution Centers or expectation of client confidence, and all other Purchased Assets or rights to the Assumed Liabilities, arising out of events or transactions occurring, or facts or circumstances existing, prior any evidentiary privilege belong to or on the Closing Date such Persons with respect to such communications;
(or the applicable Subsequent Closing Date or the Distribution Center Closing, as applicablexxi) all goodwill and all other intangible property not specifically identified in Section 2.1(a);
(txxii) to all rights and privileges of Seller and its Affiliates set forth in or otherwise implied by this Agreement, each Ancillary Document and any agreement, certificate, instrument or other document executed and delivered by Seller or Buyer in connection with the extent related to Excluded Liabilities, all guarantees, warranties and indemnities related to the ownership or operation of the Purchased Assets prior to or on the Closing (or the applicable Subsequent Closing or the Distribution Center Closing, as applicable)transactions contemplated hereby; and
(uxxiii) all SRECs generated by the assets set forth on Section 1.2(u) of the Company Disclosure SchedulesProjects before October 1, 2024 and all TRECs and SREC-IIs generated before October 1, 2024.
Appears in 1 contract
Sources: Asset Purchase Agreement (Spruce Power Holding Corp)
Excluded Assets. Notwithstanding anything to the provisions of Section 1.1contrary in this Agreement, the Seller does not sell, transfer, convey, assign or deliver to the Purchaser, and the Purchaser shall not purchase or otherwise acquire, and the Purchased Assets shall not include include, any right, title and interest in or to any of the following assets of the Company or any Seller, all of its Affiliates other than which shall be retained by the Purchased Assets, including the following Seller (collectively, such assets being collectively referred to hereinafter as the “Excluded Assets”):
(a) except to the extent (and solely to the extent) set forth in Section 2.1(a), Section 2.1(c)(2), Section 2.1(e)(2), Section 2.1(f), Section 2.1(g), Section 2.1(h), Section 2.1(j), Section 2.1(k), Section 2.1(l) and Section 2.1(m), all notes the assets, rights and accounts receivable generatedproperties of every kind and description and wherever located, whether tangible or intangible, real, personal or mixed, used in, held for use in, or related to the Seller Other Businesses;
(b) any cash, bank deposits and cash equivalents all rights of the CompanySeller arising under this Agreement or the Ancillary Agreements, other than or from the Purchased Cashconsummation of the transactions contemplated hereby or thereby;
(c) all insurance policiescash and cash equivalents, securities (other than the RentWiki Holdco, LLC securities owned by the Seller) and negotiable instruments on hand, in lock boxes, in financial institutions or elsewhere, including any cash residing in any collateral cash account securing any obligation or contingent obligation;
(d) all corporate minute books receivables or accounts or rights under any Contract between the Seller and stock transfer books and any of its Members (or Affiliates of any of its Members), except for all receivables relating to wholesale fees or profit pass-over fees due from Members (or any Affiliates of Members) under the corporate seal Contracts set forth on Schedule 7.7 in respect of the Company pre-Closing sales by Members (or its such Affiliates, other than the books and records contemplated by Section 1.1(g)) of Products;
(e) except as set forth on Schedule 2.1(e), any and all equity interests right, title and interest of the Seller in and to any joint venture Real Property, whether owned, leased or equity interests in any other Person held by otherwise and whether or not related to the Company or any of its AffiliatesBusiness;
(f) all assets arising out of or relating to employee benefits or employee benefit or compensation plans, programs, agreements or arrangements maintained or contributed to (or formerly maintained or contributed to) by the Company or its Affiliates or with respect to which the Company or any of its Affiliates has any LiabilityIntellectual Property rights, except as expressly set forth in Section 6.14(e) the Business Intellectual Property and Section 6.14(f)the rights to Intellectual Property granted under the Business Contracts;
(g) all insurance policies relating to the CBAs applicable to employees Business and all claims, credits, causes of the Acquired Stores action or rights thereunder and Distribution Centersproceeds thereof;
(h) all personnel files and recordsassets of any employee or independent contractor compensation, other than benefit plan, program or arrangement that is maintained or contributed to by the Seller, except for those expressly included in assets that are transferred to the Purchased AssetsPurchaser pursuant to Article VIII;
(i) all Tax assets of the Company and its Affiliates (including any and all credits right to any refund or deposits in respect of Taxes, net operating loss carryforwards, and refunds of Taxes for which the Company is liable pursuant to Section 2.2(d), Section 2.6(d) or Section 6.4 or otherwise credit with respect to any periods (or portions thereof) ending on or prior to Taxes in accordance with the Closing (or the applicable Subsequent Closing or Distribution Center Closing)), other than as set forth in Section 1.1(k) aboveprovisions of Article IX;
(j) all Tax Returns any assets that have been disposed of in compliance with this Agreement after the date hereof and other Tax-related documents or information of the Company or its Affiliates not relating prior to the Acquired StoresClosing;
(k) any Contract all Books, Records and Files (1) to which the Company extent relating to the Seller Other Businesses, Excluded Assets or any Excluded Liabilities, wherever located, including the Tax Returns and Books, Records and Files relating to income and similar Taxes of the Seller or its Affiliates is a party other than Members, and (2) comprising minute books, transfer books, formation records and similar documents of the Assumed Contracts;Seller; and
(l) except for the Purchased Intellectual Property, the Intellectual Property used or owned by the Company or any of its Affiliates (including the name and ▇▇▇▇ “Rite Aid” or the “Rite Aid” logo, or any name or ▇▇▇▇ comprised, including or derived from the foregoing or confusingly similar thereto);
(m) the historical customer data related to the Company’s Wellness+ program (except as set for in Section 1.1(l) above);
(n) except for the Software, databases, compilations and data, information technology systems, and technology expressly included in the Purchased Assets (including the Purchased Intellectual Property), all Software, databases, compilations and data, information technology services, and technology owned or used by the Company or any of its Affiliates, including the Software, databases, compilations and data, information technology systems, and technology set forth on Section 1.2(n) of the Company Disclosure Schedules;
(o) any of the machinery, equipment, vehicles, furniture and other personal property leased by the Company or any of its Affiliates under a Contract;
(p) any equity interests owned by the Company and its Affiliates of the entity or entities that own any assets related to the in-store clinics;
(q) any pin pads and the encryption codes related thereto;
(r) all assets exclusively related to the in-store clinics;
(s) to the extent related to Excluded Liabilities, all rights, claims or causes of action against third parties relating to the assets, properties, business or operations of the Acquired Stores, the Distribution Centers or other Purchased Assets or to the Assumed Liabilities, arising out of events or transactions occurring, or facts or circumstances existing, prior to or on the Closing Date (or the applicable Subsequent Closing Date or the Distribution Center Closing, as applicable);
(t) to the extent related to Excluded Liabilities, all guarantees, warranties and indemnities related to the ownership or operation of the Purchased Assets prior to or on the Closing (or the applicable Subsequent Closing or the Distribution Center Closing, as applicable); and
(u) the assets set forth on Section 1.2(u) of the Company Disclosure SchedulesSchedule 2.2(l).
Appears in 1 contract
Excluded Assets. Notwithstanding the provisions of Section 1.1, the Purchased Assets shall The Buyer expressly understands and agrees that it is not include any assets of the Company purchasing or any of its Affiliates other than the Purchased Assets, including acquiring the following assets and properties (collectively, the “Excluded Assets”):
(a) all notes refunds for Taxes (i) relating to the Purchased Assets with respect to a Pre-Closing Tax Period (which Taxes include, by way of example and accounts receivable generatednot limitation, real and personal property Taxes), and (ii) of any member of the Seller Group, any equityholder of any Seller or any other Affiliate of any Seller (including, without limitation, any refund of Taxes due any member of the Seller Group, any equityholder of any Seller or any other Affiliate of any Seller pursuant to Section 7519 of the Code);
(b) any cash, bank deposits and cash equivalents Contract to which any member of the Company, Seller Group is a party or is bound other than the Purchased CashAssigned Contracts; provided, that, for the avoidance of doubt, all of the Retirement Benefit Agreements and Hedge Contracts (as well as any amounts owed to any member of the Seller Group upon the termination of any Hedge Contract pursuant to Section 1.7(a)(viii) herein) are Excluded Assets;
(c) all insurance policiesassets, properties and rights used by a member of the Seller Group solely in its businesses other than the Business or set forth on Section 1.2(c) of the Disclosure Schedules;
(d) all corporate minute books and stock transfer books and the corporate seal assets attributable to Benefit Plans (including, without limitation, any assets held in a rabbi trust organized by or for any member of the Company Seller Group or any of its Affiliates, other than the books and records contemplated by Section 1.1(gemployees);
(e) all equity interests in the corporate seals, organizational documents, minute books, Tax Returns, books of account or other records having to do with the corporate organization of any joint venture or equity interests in any other Person held by member of the Company or any of its AffiliatesSeller Group;
(f) all assets arising out (i) Insurance Policies and, subject to Section 4.13(b), all rights to applicable claims and proceeds thereunder, and (ii) all life insurance policies owned by or for the benefit of any member of the Seller Group (including, without limitation, any life insurance policies held in a rabbi trust organized by or relating to employee benefits or employee benefit or compensation plans, programs, agreements or arrangements maintained or contributed to (or formerly maintained or contributed to) by for any member of the Company or its Affiliates or with respect to which the Company Seller Group or any of its Affiliates has any Liability, except as expressly set forth in Section 6.14(e) and Section 6.14(femployees);
(g) the CBAs applicable to employees of the Acquired Stores and Distribution Centersall Employee Records;
(h) all personnel files the 2017 Audi Q7 Prestige SUV, the 2016 Toyota Highlander SUV, the ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, and records, other than those expressly included in the Purchased Assets2016 Hyundai Equus owned by ▇▇▇▇▇ and used by certain of its executives;
(i) all Tax the rights which accrue or will accrue to any Seller under the Transaction Documents; and
(j) the assets and properties set forth on Section 1.2(j) of the Company and its Affiliates (including Disclosure Schedules. At any and all credits or deposits in respect of Taxes, net operating loss carryforwards, and refunds of Taxes for which the Company is liable pursuant to Section 2.2(d), Section 2.6(d) or Section 6.4 or otherwise with respect to any periods (or portions thereof) ending on or time prior to the Closing (the Buyer may deliver a single notice to the Sellers setting forth that any assets, properties or the applicable Subsequent Closing or Distribution Center Closing)), other than as set forth in Section 1.1(k) above;
(j) all Tax Returns and other Tax-related documents or information rights of the Company Seller Group that would otherwise have been a Purchased Asset will instead not be assigned, transferred, conveyed or its Affiliates not relating delivered to the Acquired Stores;
(k) any Contract to which the Company Buyer or any of its Designated Affiliates is a party other than at the Assumed Contracts;
Closing and will instead be an Excluded Asset (l) except for the Purchased Intellectual Propertyan “Excluded Asset Notice”); provided, however, the Intellectual Property used or owned by the Company or Buyer may not exclude any of its Affiliates (including the name and ▇▇▇▇ “Rite Aid” or the “Rite Aid” logoAssigned Contract, or exclude any name other asset that would be a Purchased Asset if the exclusion of such asset would cause either or ▇▇▇▇ comprisedboth Sellers to incur any costs or liability that exceed $50,000 when taking into account the costs or liabilities of all assets identified on the Excluded Asset Notice, including or derived from without the foregoing or confusingly similar thereto);
(m) prior written consent of the historical customer data related Sellers’ Representative. In the event the Buyer delivers an Excluded Asset Notice, and the approval of the Sellers’ Representative is obtained, to the Company’s Wellness+ program (except as set for in Section 1.1(l) above);
(n) except for the Softwareextent required, databasesthen such asset, compilations and data, information technology systems, and technology expressly included in the Purchased Assets (including the Purchased Intellectual Property), all Software, databases, compilations and data, information technology services, and technology owned property or used by the Company or any of its Affiliates, including the Software, databases, compilations and data, information technology systems, and technology right set forth on Section 1.2(n) of the Company Disclosure Schedules;
(o) any of the machinery, equipment, vehicles, furniture and other personal property leased by the Company or any of its Affiliates under a Contract;
(p) any equity interests owned by the Company and its Affiliates of the entity or entities that own any assets related to the in-store clinics;
(q) any pin pads Excluded Asset Notice shall be deemed an Excluded Asset and the encryption codes related thereto;
(r) parties shall take all assets exclusively related actions necessary to the in-store clinics;
(s) to the extent related to Excluded Liabilities, all rights, claims or causes of action against third parties relating to the cause such assets, properties, business properties or operations rights to be treated as an Excluded Asset for purposes of the Acquired Stores, the Distribution Centers or other Purchased Assets or to the Assumed Liabilities, arising out of events or transactions occurring, or facts or circumstances existing, prior to or on the Closing Date (or the applicable Subsequent Closing Date or the Distribution Center Closing, as applicable);
(t) to the extent related to Excluded Liabilities, all guarantees, warranties and indemnities related to the ownership or operation of the Purchased Assets prior to or on the Closing (or the applicable Subsequent Closing or the Distribution Center Closing, as applicable); and
(u) the assets set forth on Section 1.2(u) of the Company Disclosure Schedulesthis Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement
Excluded Assets. Notwithstanding Anything in Section 1.2 to the provisions of Section 1.1contrary notwithstanding, the Purchased Assets shall do not include any assets of the Company or any of its Affiliates other than the Purchased Assets, including the following (collectively, the “Excluded Assets”):
include: (a) all notes Seller's cash and accounts receivable generated;
cash equivalents (bon hand, in the bank or invested) any cash, bank deposits other than cash and cash equivalents of the CompanyNippon Selas and ▇▇ ▇▇▇▇▇ in an amount up to $600,000, other than the Purchased Cash;
(b) deposits (however held) (c) all insurance policies;
any nontransferable prepaid expenses, premiums or other amounts described as such on Section 1.2.8 of the Disclosure Schedule, (d) all corporate minute books any of Seller's claims, causes of actions, rights to refunds and stock transfer books other legal rights and remedies, whether or not known at the corporate seal Closing Date (as hereinafter defined), related to Seller's ownership of the Company or its Affiliates, other than the books and records contemplated by Section 1.1(g);
(e) all equity interests in any joint venture or equity interests in any other Person held by the Company or any of its Affiliates;
(f) all assets arising out of or relating to employee benefits or employee benefit or compensation plans, programs, agreements or arrangements maintained or contributed to (or formerly maintained or contributed to) by the Company or its Affiliates or with respect to which the Company or any of its Affiliates has any Liability, except as expressly set forth in Section 6.14(e) and Section 6.14(f);
(g) the CBAs applicable to employees Assets and/or operation of the Acquired Stores and Distribution Centers;
(h) all personnel files and records, other than those expressly included in the Purchased Assets;
(i) all Tax assets of the Company and its Affiliates (including any and all credits or deposits in respect of Taxes, net operating loss carryforwards, and refunds of Taxes for which the Company is liable pursuant to Section 2.2(d), Section 2.6(d) or Section 6.4 or otherwise with respect to any periods (or portions thereof) ending on or prior to the Closing (or the applicable Subsequent Closing or Distribution Center Closing))Business, other than as set forth referenced in Section 1.1(k1.2 as being included in the Specific Assets, (e) above;
any Accounts Receivable to the extent that they have been collected, or any finished goods in Inventory that have been sold, transferred, or otherwise disposed of, as applicable, since the date of the applicable schedule in the ordinary course of business consistent with Seller's past practice, (jf) all Tax Returns any insurance policy, (g) Seller's corporate charter, qualifications to conduct business as a foreign corporation, arrangements with registered agents relating to foreign qualifications, taxpayer and other Tax-related identification numbers, seals, minute books, stock transfer books, blank stock certificates, and other documents or information of the Company or its Affiliates not relating to the Acquired Stores;
organization, maintenance, and existence of Seller as a corporation, (kh) the capital stock or other equity interest in any Contract to which subsidiary of the Company Seller or any of its Affiliates is a party other entity other than the Assumed Contracts;
(l) except for the Purchased Intellectual Property, the Intellectual Property used Nippon Selas or owned by the Company or any of its Affiliates (including the name and ▇▇▇▇ “Rite Aid” or the “Rite Aid” logo, or any name or ▇▇▇▇ comprised, including or derived from the foregoing or confusingly similar thereto);
(m) the historical customer data related to the Company’s Wellness+ program (except as set for in Section 1.1(l) above);
(n) except for the Software, databases, compilations and data, information technology systemsSelas SW, and technology expressly included in the Purchased Assets (including the Purchased Intellectual Property), all Software, databases, compilations and data, information technology services, and technology owned or used by the Company or any of its Affiliates, including the Software, databases, compilations and data, information technology systems, and technology set forth on Section 1.2(n) of the Company Disclosure Schedules;
(oi) any of the machineryrights of Seller under this Agreement, equipment, vehicles, furniture the Guaranty (as defined in Section 7.2(h)) (or under any side agreement between Seller on the one hand and Buyer and/or Parent (as defined in Section 7.2(h)) on the other personal property leased by hand entered into on or after the Company date of this Agreement) or any of its Affiliates under a Contract;
Material Contracts (pas defined in Section 3.17) any equity interests owned by other than the Company and its Affiliates of the entity or entities that own any assets related to the in-store clinics;
(q) any pin pads and the encryption codes related thereto;
(r) all assets exclusively related to the in-store clinics;
(s) to the extent related to Excluded Liabilities, all rights, claims or causes of action against third parties relating to the assets, properties, business or operations of the Acquired Stores, the Distribution Centers or other Purchased Assets or to the Assumed Liabilities, arising out of events or transactions occurring, or facts or circumstances existing, prior to or on the Closing Date (or the applicable Subsequent Closing Date or the Distribution Center Closing, as applicable);
(t) to the extent related to Excluded Liabilities, all guarantees, warranties and indemnities related to the ownership or operation of the Purchased Assets prior to or on the Closing (or the applicable Subsequent Closing or the Distribution Center Closing, as applicable); and
(u) the assets set forth on Section 1.2(u) of the Company Disclosure SchedulesAssigned Contracts.
Appears in 1 contract
Excluded Assets. Notwithstanding anything to the provisions contrary contained in Section 2.1, the Sellers will retain all of Section 1.1their respective right, title and interest in and to, and shall not, and shall not be deemed to, sell, assign, transfer, convey or deliver to Purchaser, and the Purchased Assets shall not, and shall not be deemed to, include any assets of the Company or any of its Affiliates other than the Purchased Assets, including the following assets (collectivelyall such retained assets, the “Excluded Assets”):
(a) all notes any cash or cash equivalents, including any marketable securities, bonds, investments, or certificates of deposit, or any collected funds or items in the process of collection at the financial institutions of any Seller and accounts receivable generatedits Affiliates through and including the Closing Date, in each case whether related to the Business, the Purchased Entities or otherwise;
(b) any cash, bank deposits and cash equivalents all refunds or credits for Taxes arising out of the Company, other than Business to the Purchased Cashextent such refunds or credits are specified as property of the Seller pursuant to Section 8.4(d);
(c) all any property, casualty or other insurance policy or related insurance services contract, held by any Seller or any of its Affiliates, including the benefit of any deposits or prepayments and any insurance proceeds to the extent covering any Excluded Liabilities, other than proceeds of third party insurance policies in respect of claims made against such policies prior to the Closing Date (in the case of “claims made” policies), or for claims in respect of Losses occurring prior to the Closing Date (in the case of “occurrence based” policies);
(d) all corporate minute books except as provided in Section 6.10, any Company Plan, including the underlying assets and stock transfer books and the corporate seal rights of the Company or its Affiliates, other than the books and records contemplated by Section 1.1(g);
(e) all equity interests in any joint venture or equity interests in any other Person held by the Company Seller or any of its Affiliates;
(fe) all assets arising out any rights of any Seller or relating to employee benefits the other Seller Indemnified Parties under this Agreement, any Ancillary Agreement or employee benefit or compensation plans, programs, agreements or arrangements maintained or contributed to (or formerly maintained or contributed to) by any other agreement between any of the Company or its Affiliates or with respect to which the Company Sellers or any of its their respective Affiliates has and Purchaser;
(f) subject to Section 6.18, any Liabilityrights in, except as expressly set forth in Section 6.14(e) and Section 6.14(f)relating to, or for use or exploitation of, any trademark, service ▇▇▇▇, brand name, certification ▇▇▇▇, trade name, corporate name, domain name or other indication of source or origin that includes, is based on, relates to or is likely to be confused with the Excluded Names;
(g) the CBAs applicable corporate charter, qualification to employees conduct business as a foreign corporation, arrangements with registered agents relating to foreign qualifications, taxpayer and other identification numbers, corporate seal, minute books, stock transfer books, blank stock certificates, Tax books and records, and any other documents relating to the governance, organization, maintenance and existence of the Acquired Stores and Distribution Centerseach Seller;
(h) all personnel files and recordsIntellectual Property (including the Intellectual Property set forth on Section 2.3(h) of the Disclosure Schedule), other than those expressly included in the Purchased AssetsAcquired Intellectual Property (it being understood that Sellers are also granting Purchaser certain Intellectual Property rights under the Intellectual Property License Agreement);
(i) all Tax assets of the Company and its Affiliates (including any and all credits or deposits in respect of Taxes, net operating loss carryforwards, and refunds of Taxes for which the Company is liable pursuant to Section 2.2(d), Section 2.6(d) or Section 6.4 or otherwise licenses with respect to any periods (or portions thereofunmodified commercially available “off-the-shelf” computer Software, and those software agreements and information technology licenses and assets listed on Section 2.3(i) ending on or prior to of the Closing (or the applicable Subsequent Closing or Distribution Center Closing)), other than as set forth in Section 1.1(k) aboveDisclosure Schedule;
(j) all Tax Returns checkbooks, canceled checks and other Tax-related documents or information bank accounts of the Company or its Affiliates not relating to the Acquired Stores;each Seller; and
(k) any Contract to which the Company or any of its Affiliates is a party other than the Assumed Contracts;
(l) except for the Purchased Intellectual Propertyassets, the Intellectual Property used or owned by the Company or any of its Affiliates (including the name rights and ▇▇▇▇ “Rite Aid” or the “Rite Aid” logo, or any name or ▇▇▇▇ comprised, including or derived from the foregoing or confusingly similar thereto);
(m) the historical customer data related to the Company’s Wellness+ program (except as set for in Section 1.1(l) above);
(n) except for the Software, databases, compilations and data, information technology systems, and technology expressly included in the Purchased Assets (including the Purchased Intellectual Property), all Software, databases, compilations and data, information technology services, and technology owned or used by the Company or any of its Affiliates, including the Software, databases, compilations and data, information technology systems, and technology properties set forth on Section 1.2(n2.3(k) of the Company Disclosure Schedules;
(o) any of the machinery, equipment, vehicles, furniture and other personal property leased by the Company or any of its Affiliates under a Contract;
(p) any equity interests owned by the Company and its Affiliates of the entity or entities that own any assets related to the in-store clinics;
(q) any pin pads and the encryption codes related thereto;
(r) all assets exclusively related to the in-store clinics;
(s) to the extent related to Excluded Liabilities, all rights, claims or causes of action against third parties relating to the assets, properties, business or operations of the Acquired Stores, the Distribution Centers or other Purchased Assets or to the Assumed Liabilities, arising out of events or transactions occurring, or facts or circumstances existing, prior to or on the Closing Date (or the applicable Subsequent Closing Date or the Distribution Center Closing, as applicable);
(t) to the extent related to Excluded Liabilities, all guarantees, warranties and indemnities related to the ownership or operation of the Purchased Assets prior to or on the Closing (or the applicable Subsequent Closing or the Distribution Center Closing, as applicable); and
(u) the assets set forth on Section 1.2(u) of the Company Disclosure SchedulesSchedule.
Appears in 1 contract
Sources: Asset and Stock Purchase Agreement
Excluded Assets. Notwithstanding the provisions of Section 1.1, the Purchased Assets shall The Buyer expressly understands and agrees that it is not include any assets of the Company purchasing or any of its Affiliates other than the Purchased Assets, including acquiring the following assets and properties (collectively, the “Excluded Assets”):
(a) all notes refunds for Taxes (i) relating to the Purchased Assets with respect to a Pre-Closing Tax Period (which Taxes include, by way of example and accounts receivable generatednot limitation, real and personal property Taxes), and (ii) of any member of the Seller Group, any equityholder of any Seller or any other Affiliate of any Seller (including, without limitation, any refund of Taxes due any member of the Seller Group, any equityholder of any Seller or any other Affiliate of any Seller pursuant to Section 7519 of the Code);
(b) any cash, bank deposits and cash equivalents Contract to which any member of the Company, Seller Group is a party or is bound other than the Purchased CashAssigned Contracts; provided, that, for the avoidance of doubt, all of the Retirement Benefit Agreements and Hedge Contracts (as well as any amounts owed to any member of the Seller Group upon the termination of any Hedge Contract pursuant to Section 1.7(a)(viii) herein) are Excluded Assets;
(c) all insurance policiesassets, properties and rights used by a member of the Seller Group solely in its businesses other than the Business or set forth on Section 1.2(c) of the Disclosure Schedules;
(d) all corporate minute books and stock transfer books and the corporate seal assets attributable to Benefit Plans (including, without limitation, any assets held in a rabbi trust organized by or for any member of the Company Seller Group or any of its Affiliates, other than the books and records contemplated by Section 1.1(gemployees);
(e) all equity interests in the corporate seals, organizational documents, minute books, Tax Returns, books of account or other records having to do with the corporate organization of any joint venture or equity interests in any other Person held by member of the Company or any of its AffiliatesSeller Group;
(f) all assets arising out (i) Insurance Policies and, subject to Section 4.13(b), all rights to applicable claims and proceeds thereunder, and (ii) all life insurance policies owned by or for the benefit of any member of the Seller Group (including, without limitation, any life insurance policies held in a rabbi trust organized by or relating to employee benefits or employee benefit or compensation plans, programs, agreements or arrangements maintained or contributed to (or formerly maintained or contributed to) by for any member of the Company or its Affiliates or with respect to which the Company Seller Group or any of its Affiliates has any Liability, except as expressly set forth in Section 6.14(e) and Section 6.14(femployees);
(g) the CBAs applicable to employees of the Acquired Stores and Distribution Centersall Employee Records;
(h) all personnel files the 2017 Audi Q7 Prestige SUV, the 2016 Toyota Highlander SUV, the 2▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, and records, other than those expressly included in the Purchased Assets2016 Hyundai Equus owned by C▇▇▇▇ and used by certain of its executives;
(i) all Tax assets of the Company and its Affiliates (including any and all credits rights which accrue or deposits in respect of Taxes, net operating loss carryforwards, and refunds of Taxes for which the Company is liable pursuant to Section 2.2(d), Section 2.6(d) or Section 6.4 or otherwise with respect will accrue to any periods (or portions thereof) ending on or prior to Seller under the Closing (or the applicable Subsequent Closing or Distribution Center Closing)), other than as set forth in Section 1.1(k) above;Transaction Documents; and
(j) all Tax Returns the assets and other Tax-related documents or information of the Company or its Affiliates not relating to the Acquired Stores;
(k) any Contract to which the Company or any of its Affiliates is a party other than the Assumed Contracts;
(l) except for the Purchased Intellectual Property, the Intellectual Property used or owned by the Company or any of its Affiliates (including the name and ▇▇▇▇ “Rite Aid” or the “Rite Aid” logo, or any name or ▇▇▇▇ comprised, including or derived from the foregoing or confusingly similar thereto);
(m) the historical customer data related to the Company’s Wellness+ program (except as set for in Section 1.1(l) above);
(n) except for the Software, databases, compilations and data, information technology systems, and technology expressly included in the Purchased Assets (including the Purchased Intellectual Property), all Software, databases, compilations and data, information technology services, and technology owned or used by the Company or any of its Affiliates, including the Software, databases, compilations and data, information technology systems, and technology properties set forth on Section 1.2(n) of the Company Disclosure Schedules;
(o) any of the machinery, equipment, vehicles, furniture and other personal property leased by the Company or any of its Affiliates under a Contract;
(p) any equity interests owned by the Company and its Affiliates of the entity or entities that own any assets related to the in-store clinics;
(q) any pin pads and the encryption codes related thereto;
(r) all assets exclusively related to the in-store clinics;
(s) to the extent related to Excluded Liabilities, all rights, claims or causes of action against third parties relating to the assets, properties, business or operations of the Acquired Stores, the Distribution Centers or other Purchased Assets or to the Assumed Liabilities, arising out of events or transactions occurring, or facts or circumstances existing, prior to or on the Closing Date (or the applicable Subsequent Closing Date or the Distribution Center Closing, as applicable1.2(j);
(t) to the extent related to Excluded Liabilities, all guarantees, warranties and indemnities related to the ownership or operation of the Purchased Assets prior to or on the Closing (or the applicable Subsequent Closing or the Distribution Center Closing, as applicable); and
(u) the assets set forth on Section 1.2(u) of the Company Disclosure Schedules.
Appears in 1 contract
Excluded Assets. Notwithstanding the provisions of Section 1.1, the Purchased Assets shall not include any The assets of to be contributed to the Company or any of its Affiliates other than the Purchased Assets, including by Central pursuant to Section 2.1(a) exclude the following assets (collectively, the “"Excluded Assets”"):
(a) all notes programming agreements (other than retransmission agreements and accounts receivable generatedmust-carry elections) and all other Contracts of Central that are designated on Schedule 5.11 as not being Assumed Contracts;
(b) any cashbooks and records that Central is required by any Legal Requirement to retain, bank deposits Central's corporate minute books, and cash equivalents any other books and records related to internal corporate matters of the Company, other than the Purchased CashCentral;
(c) all insurance policiesany claims, rights, and interest in and to any refunds of Taxes for periods prior to the Closing Date;
(d) all corporate minute books and stock transfer books and choses in action of Central relating to any Excluded Asset or any liability that is not assumed by the corporate seal of the Company or its Affiliates, other than the books and records contemplated by Section 1.1(g);Company,
(e) all equity interests any chose in action of Central relating to any joint venture or equity interests in circumstance giving rise to any other Person held by reduction to the Company or any net fair market value of its Affiliatesthe Assets pursuant to Section 3.2 to the extent such chose of action is not assignable;
(f) all assets arising out of or relating to employee benefits or employee benefit or compensation plansany trademarks, programsservice marks, agreements or arrangements maintained or contributed to (or formerly maintained or contributed to) by service names, logos, and similar proprietary rights incorporating the Company or its Affiliates or with respect to which the Company or any of its Affiliates has any Liability, except as expressly set forth in Section 6.14(e) and Section 6.14(f)name "Coaxial";
(g) the CBAs applicable to employees accounting system, the account books of original entry, general ledgers, and financial records used in connection with the Acquired Stores and Distribution CentersSystem;
(h) all personnel files any insurance policies and records, other than those expressly included in rights or claims thereunder relating to any Excluded Asset or any liability that is not assumed by the Purchased AssetsCompany;
(i) all Tax assets any insurance policies and rights or claims thereunder relating to any circumstance giving rise to any reduction to the net fair market value of the Company and its Affiliates (including any and all credits or deposits in respect of Taxes, net operating loss carryforwards, and refunds of Taxes for which the Company is liable Assets pursuant to Section 2.2(d), Section 2.6(d) or Section 6.4 or otherwise with respect to any periods (or portions thereof) ending on or prior 32 to the Closing (extent such insurance policies, rights, or the applicable Subsequent Closing or Distribution Center Closing)), other than as set forth in Section 1.1(k) aboveclaims are not assignable;
(j) all Tax Returns and any other Tax-related documents assets of Central not used or information held for use in connection with the business or operations of the Company or its Affiliates not relating to the Acquired Stores;System; and
(k) any Contract to which the Company or any of its Affiliates is a party other than the Assumed Contracts;
(l) except for the Purchased Intellectual Property, the Intellectual Property used or owned by the Company or any of its Affiliates assets (including the name and ▇▇▇▇ “Rite Aid” accounts receivable or the “Rite Aid” logo, or any name or ▇▇▇▇ comprised, including or derived from the foregoing or confusingly similar thereto);
(m) the historical customer data related to the Company’s Wellness+ program (except as set for in Section 1.1(l) above);
(n) except for the Software, databases, compilations and data, information technology systems, and technology expressly included in the Purchased Assets (including the Purchased Intellectual Property), all Software, databases, compilations and data, information technology services, and technology owned or used notes owed by the Company or any of its Affiliates, including the Software, databases, compilations and data, information technology systems, and technology set forth on Section 1.2(n) of the Company Disclosure Schedules;
(o) any of the machinery, equipment, vehicles, furniture and other personal property leased by the Company or any of its Affiliates under a Contract;
(p) any equity interests owned by the Company and its Affiliates of the entity or entities that own any assets related to the in-store clinics;
(qCentral) any pin pads and the encryption codes related thereto;
(r) all assets exclusively related to the in-store clinics;
(s) to the extent related to Excluded Liabilities, all rights, claims or causes of action against third parties relating to the assets, properties, business or operations of the Acquired Stores, the Distribution Centers or other Purchased Assets or to the Assumed Liabilities, arising out of events or transactions occurring, or facts or circumstances existing, prior to or described on the Closing Date (or the applicable Subsequent Closing Date or the Distribution Center Closing, as applicable);
(t) to the extent related to Excluded Liabilities, all guarantees, warranties and indemnities related to the ownership or operation of the Purchased Assets prior to or on the Closing (or the applicable Subsequent Closing or the Distribution Center Closing, as applicable); and
(u) the assets set forth on Section 1.2(u) of the Company Disclosure SchedulesSchedule 2.2.
Appears in 1 contract
Sources: Contribution Agreement (Insight Communications of Central Ohio LLC)
Excluded Assets. Notwithstanding anything to the provisions of contrary contained in Section 1.11.1 or elsewhere in this Agreement, the Purchased Assets each Seller shall not include any assets of the Company or any of its Affiliates other than the Purchased Assetsretain such Seller’s right, including title and interest in and to the following assets (collectively, the “"Excluded Assets”"):
(a) all notes except as otherwise provided in Sections 9.5 and accounts receivable generated10.2, insurance policies and causes of action, lawsuits, claims, demands, rights of recovery and set-off under or with respect to, and the proceeds of, insurance policies;
(b) any cashcauses of action, bank deposits lawsuits, claims, demands, and cash equivalents rights, including rights of recovery and set-off, with respect to, and, to the extent arising from and after the date (the "Closing Date") of the CompanyClosing, other than the Purchased Cashproceeds of, any Excluded Assets or Excluded Liability;
(c) all insurance policiesprepaid Taxes and any claims for any refund, rebate or abatement with respect to Taxes for any period or portion thereof through the Closing Date;
(d) all corporate minute books and stock transfer books and the corporate seal of the Company or its Affiliates, Contracts other than the books and records contemplated by Section 1.1(g)Included Contracts;
(e) all equity interests in any joint venture or equity interests in any other Person held by the Company or any of its Affiliates;
(f) all assets arising out of or relating to employee benefits or employee benefit or compensation plans, programs, agreements or arrangements maintained or contributed to (or formerly maintained or contributed to) by the Company or its Affiliates or with respect to which the Company or any of its Affiliates has any Liability, except as expressly set forth in Section 6.14(e) and Section 6.14(f);
(g) the CBAs applicable to employees of the Acquired Stores and Distribution Centers;
(h) all personnel files and records, other than those expressly included in the Purchased Assets;
(i) all Tax assets of the Company and its Affiliates (including any and all credits or deposits in respect of Taxes, net operating loss carryforwards, Tax Returns and refunds of Taxes related workpapers used to prepare the same for which the Company is liable pursuant to Section 2.2(d), Section 2.6(d) or Section 6.4 or otherwise with respect to any periods (or portions thereof) ending on or prior to the Closing Date;
(or the applicable Subsequent Closing or Distribution Center Closing))f) all Employee Benefit Plans, other than as set forth and Pension Plans, except those listed in Section 1.1(k10.2(b) aboveof the Company Disclosure Schedule;
(g) all indebtedness owing from officers of any Seller or from Stockholders (the "Affiliate Receivables");
(h) the outstanding capital stock of each Seller and shares of capital stock of each Seller held in treasury;
(i) the Excluded Employee Records;
(j) all Tax Returns rights of Sellers under this Agreement and the other Tax-related documents or information of the Company or its Affiliates not relating to the Acquired Stores;Transaction Documents; and
(k) any Contract to which the Company or any of its Affiliates is a party other than the Assumed Contracts;
(l) except for the Purchased Intellectual Property, the Intellectual Property used or owned by the Company or any of its Affiliates (including the name and ▇▇▇▇ “Rite Aid” or the “Rite Aid” logo, or any name or ▇▇▇▇ comprised, including or derived from the foregoing or confusingly similar thereto);
(m) the historical customer data related to the Company’s Wellness+ program (except as set for in Section 1.1(l) above);
(n) except for the Software, databases, compilations and data, information technology systems, and technology expressly included in the Purchased Assets (including the Purchased Intellectual Property), all Software, databases, compilations and data, information technology services, and technology owned or used by the Company or any of its Affiliates, including the Software, databases, compilations and data, information technology systems, and technology set forth on Section 1.2(n) of the Company Disclosure Schedules;
(o) any of the machinery, equipment, vehicles, furniture and other personal property leased by the Company or any of its Affiliates under a Contract;
(p) any equity interests owned by the Company and its Affiliates of the entity or entities that own any assets related to the in-store clinics;
(q) any pin pads and the encryption codes related thereto;
(r) all assets exclusively related to the in-store clinics;
(s) to the extent related to Excluded Liabilities, all rights, claims or causes of action against third parties relating to the assets, propertiesif any, business listed or operations of the Acquired Stores, the Distribution Centers or other Purchased Assets or to the Assumed Liabilities, arising out of events or transactions occurring, or facts or circumstances existing, prior to or described on the Closing Date (or the applicable Subsequent Closing Date or the Distribution Center Closing, as applicable);
(t) to the extent related to Excluded Liabilities, all guarantees, warranties and indemnities related to the ownership or operation of the Purchased Assets prior to or on the Closing (or the applicable Subsequent Closing or the Distribution Center Closing, as applicable); and
(u) the assets set forth on Section 1.2(u) of the Company Disclosure SchedulesSchedule II.
Appears in 1 contract
Excluded Assets. Notwithstanding Section 1.1(a) (if there is a conflict, ambiguity or other dispute, the provisions of exclusions in this Section 1.11.1(b) shall control the inclusions in Section 1.1(a)), the Purchased Assets shall not include (i) MAST’s receivables, cash, cash equivalents, bank deposits or similar cash items (other than deposits or prepayments related to a Purchased Asset or employee receivables); (ii) any assets Intellectual Property or Information of MAST, other than the Team-Related Know-how and right to performance attribution; (iii) any (A) confidential personnel records pertaining to any member of the Company Team, and (B) other Business Records which MAST or any Affiliate of MAST is required by applicable Law to retain; provided, that GP Corp or GECM , as applicable, shall have the right, to the extent permitted by applicable Law and subject to reasonable restrictions, to make copies of any portions of such retained Business Records that relate to the Team; (iv) any confidential information related to any investor in any investment fund or account managed by MAST that MAST is required by applicable Law or Contract to retain; (v) any claim, right or interest of MAST or any Affiliate of MAST in or to any refund, rebate, abatement or other recovery for Excluded Taxes, together with any interest due thereon or penalty rebate arising therefrom; (vi) the right to use MAST’s name, trademark or trade dress; (vii) any rights to or from all current or future investment funds and accounts managed by MAST, including the investment management agreements and any management fees or incentive fees in respect of such funds or accounts; (viii) any insurance policies held by MAST or any of its Affiliates other than the Purchased Assets, including the following or rights of proceeds thereof; (collectively, the “Excluded Assets”):
(a) all notes and accounts receivable generated;
(bix) any cashpermits, bank deposits licenses, franchises, approvals, authorizations, registrations, certificates, variances and cash equivalents of the Company, other than the Purchased Cash;
(c) all insurance policies;
(d) all corporate minute books and stock transfer books and the corporate seal of the Company or its Affiliates, other than the books and records contemplated similar rights obtained by Section 1.1(g);
(e) all equity interests in any joint venture or equity interests in any other Person held by the Company or any of its Affiliates;
(f) all assets arising out of or relating to employee benefits or employee benefit or compensation plans, programs, agreements or arrangements maintained or contributed to (or formerly maintained or contributed to) by the Company or its Affiliates or with respect to which the Company MAST or any of its Affiliates has any Liability, from Governmental Bodies; and (x) except as expressly set forth in Section 6.14(e) and Section 6.14(f);
(g) the CBAs applicable to employees of the Acquired Stores and Distribution Centers;
(h) all personnel files and records, other than those expressly included in among the Purchased Assets;
(i) all Tax assets , any of the Company and its Affiliates (including any and all credits or deposits in respect of Taxes, net operating loss carryforwards, and refunds of Taxes for which the Company is liable pursuant to Section 2.2(d), Section 2.6(d) or Section 6.4 or otherwise with respect to any periods (or portions thereof) ending on or prior to the Closing (or the applicable Subsequent Closing or Distribution Center Closing)), other than as set forth in Section 1.1(k) above;
(j) all Tax Returns and other Tax-related documents or information of the Company or its Affiliates not relating to the Acquired Stores;
(k) any Contract to which the Company MAST’s or any of its Affiliates is a party other than the Assumed Contracts;
(l) except for the Purchased Intellectual Property, the Intellectual Property used or owned by the Company or any of its Affiliates (including the name and ▇▇▇▇ “Rite Aid” or the “Rite Aid” logo, or any name or ▇▇▇▇ comprised, including or derived from the foregoing or confusingly similar thereto);
(m) the historical customer data related to the CompanyAffiliate’s Wellness+ program (except as set for in Section 1.1(l) above);
(n) except for the Software, databases, compilations and data, information technology systems, and technology expressly included in the Purchased Assets (including the Purchased Intellectual Property), all Software, databases, compilations and data, information technology services, and technology owned or used by the Company or any of its Affiliates, including the Software, databases, compilations and data, information technology systems, and technology set forth on Section 1.2(n) of the Company Disclosure Schedules;
(o) any of the machinery, equipment, vehicles, furniture and other personal property leased by the Company or any of its Affiliates under a Contract;
(p) any equity interests owned by the Company and its Affiliates of the entity or entities that own any assets related to the in-store clinics;
(q) any pin pads and the encryption codes related thereto;
(r) all assets exclusively related to the in-store clinics;
(s) to the extent related to Excluded Liabilities, all rights, claims or causes of action against third parties Third Parties relating to the assets, properties, business properties or operations of the Acquired Stores, the Distribution Centers or other Purchased Assets or to the Assumed Liabilities, arising out of events or transactions occurringoccurring prior to, or facts or circumstances existingand including, prior to or on the Closing Effective Date (such rights, assets and properties, whether or not reflected on MAST’s financial statements, the applicable Subsequent Closing Date or the Distribution Center Closing, as applicable“Excluded Assets”);
(t) to the extent related to Excluded Liabilities, all guarantees, warranties and indemnities related to the ownership or operation of the Purchased Assets prior to or on the Closing (or the applicable Subsequent Closing or the Distribution Center Closing, as applicable); and
(u) the assets set forth on Section 1.2(u) of the Company Disclosure Schedules.
Appears in 1 contract
Sources: Asset Purchase Agreement (Great Elm Capital Group, Inc.)
Excluded Assets. Notwithstanding Anything to the provisions of contrary in Section 1.11(a) notwithstanding, the Purchased Assets shall not include any the following assets of the Company or any of its Affiliates other than Seller (the Purchased Assets, including the following (collectively, the “"Excluded Assets”):
"): (ai) all notes and any cash or cash equivalents; (ii) any accounts receivable generated;
(b) any cashincluding wire service receivables, bank deposits charge card receivables, rebates receivable and cash equivalents of the Companyinsurance claims), allowances and/or credits, other than the Purchased Cash;
trade accounts receivable; (ciii) all insurance policies;
(d) all corporate minute books and stock transfer books deferred taxes, and the corporate seal right to receive any refunds of taxes paid by Seller prior to the Company or its Affiliates, other than the books and records contemplated by Section 1.1(g);
Closing; (eiv) all equity interests in any joint venture or equity interests in any other Person held by the Company or any of its Affiliates;
(f) all assets arising out of or relating to employee benefits or employee benefit or compensation plans, programs, agreements or arrangements maintained or contributed to (or formerly maintained or contributed to) by the Company or its Affiliates or with respect to which the Company or any of its Affiliates has any Liability, except as expressly set forth in Section 6.14(e) and Section 6.14(f);
(g) the CBAs applicable to employees of the Acquired Stores and Distribution Centers;
(h) all personnel files and records, other than those expressly included in the Purchased Assets;
(i) all Tax assets of the Company and its Affiliates (including any and all credits or deposits in respect of Taxes, net operating loss carryforwards; (v) any refunds of unearned insurance premiums; (vi) any and all employee pension, retirement, profit sharing, bonus, incentive, deferred compensation or other employee benefit plans, and refunds any related trust or assets thereof; (vii) the rights of Taxes for which the Company is liable Seller under this Agreement and any agreement entered into pursuant to Section 2.2(d), Section 2.6(d) or Section 6.4 or otherwise with respect to any periods hereto; (or portions thereof) ending on or prior to the Closing (or the applicable Subsequent Closing or Distribution Center Closing)), other than as set forth in Section 1.1(k) above;
(jviii) all Tax Returns assets, rights and properties of the Seller relating to its corporate governance and administration, including corporate minute books, corporate seals and stockholder records; (ix) the Seller's tax records and tax returns; (x) the capital stock and other Tax-related documents securities of National Flora Florida, Inc.; and (xi) all trademarks, service marks, trade names, copyrights, copyrightable materials, designs and trade dress containing or information of the Company or its Affiliates not relating to the Acquired Stores;
(k) any Contract to which the Company or any of its Affiliates is a party other than the Assumed Contracts;
(l) except for the Purchased Intellectual Property, the Intellectual Property used or owned by the Company or any of its Affiliates (including utilizing the name and "▇▇▇▇▇▇ “Rite Aid” or the “Rite Aid” logo, ▇▇▇▇▇▇▇" or any variant thereof or otherwise owned by GSI and/or its subsidiaries and affiliates (other than those assets described in Sections 1(a)(vii) and 1(a)(viii) above); provided however, that the Purchaser may, during the committed period of any published or content–committed advertisements as of the time of the Closing, continue to utilize the name or "▇▇▇▇▇▇ comprised, including or derived from the foregoing or confusingly similar thereto);
(m) the historical customer data related to the Company’s Wellness+ program (except as set for in Section 1.1(l) above);
(n) except for the Software, databases, compilations and data, information technology systems, and technology expressly included ▇▇▇▇▇▇▇" in the Purchased Assets (including the Purchased Intellectual Property), all Software, databases, compilations manner and data, information technology services, and technology owned or used by the Company or any of its Affiliates, including the Software, databases, compilations and data, information technology systems, and technology set forth on Section 1.2(n) of the Company Disclosure Schedules;
(o) any of the machinery, equipment, vehicles, furniture and other personal property leased by the Company or any of its Affiliates under a Contract;
(p) any equity interests owned by the Company and its Affiliates of the entity or entities that own any assets related to the in-store clinics;
(q) any pin pads and the encryption codes related thereto;
(r) all assets exclusively related to the in-store clinics;
(s) to the extent related to Excluded Liabilities, all rights, claims that such name appears in such advertisements or causes of action against third parties relating to the assets, properties, business or operations committed content thereof as of the Acquired StoresClosing Date; and further provided, that upon the conclusion of the committed periods of such advertisements, the Distribution Centers Purchaser shall not thereafter utilize the name "'▇▇▇▇▇▇ ▇▇▇▇▇▇▇" in any advertising or in any other Purchased Assets or to the Assumed Liabilities, arising out of events or transactions occurring, or facts or circumstances existing, prior to or on the Closing Date (or the applicable Subsequent Closing Date or the Distribution Center Closing, as applicable);
(t) to the extent related to Excluded Liabilities, all guarantees, warranties and indemnities related to the ownership or operation of the Purchased Assets prior to or on the Closing (or the applicable Subsequent Closing or the Distribution Center Closing, as applicable); and
(u) the assets set forth on Section 1.2(u) of the Company Disclosure Schedulesmanner.
Appears in 1 contract
Excluded Assets. Notwithstanding anything to the provisions contrary contained in this Agreement, from and after the Closing, each Seller shall retain all of Section 1.1its right, title and interest in and to each and all of the following assets (as related to each Seller, the Purchased Assets shall not include any assets of the Company or any of its Affiliates other than the Purchased Assets, including the following (collectively, the “"Excluded Assets”"):
(a) all notes and accounts receivable generatedits Excluded Contracts;
(b) any cashrights, bank deposits claims and cash equivalents credits (including all indemnities, warranties and similar rights) in favor of such Seller or any of its Affiliates or any of its Representatives to the extent relating to (i) any other Excluded Asset of such Seller, (ii) any Excluded Liability or (iii) the operation of the Company, other than business at such Seller's Property prior to the Purchased CashClosing Date;
(c) except for the Tray Ledger, the Markers and House Funds (which shall be purchased in accordance with Section 4.2 hereof), all insurance policiescash, cash equivalents, bank deposits or similar cash items of such Seller or its Affiliates or held at such Seller's Property as of the Closing (whether or not reflected on the financial statements of such Seller or its Affiliates as of the Closing Date);
(d) all the corporate charter or other organizational documents, minute and stock books and stock transfer books and the records, corporate seal seals, Tax Returns (including supporting schedules) of the Company or its Affiliates, other than the books and records contemplated by Section 1.1(g);
(e) all equity interests in any joint venture or equity interests in any other Person held by the Company such Seller or any of its Affiliates;
(e) its Accounts Receivable;
(f) all assets arising out of subject to Section 4.1(a) hereof, any refund, credit, claim or relating to employee benefits or employee benefit or compensation plans, programs, agreements or arrangements maintained or contributed to (or formerly maintained or contributed to) by the Company or its Affiliates or entitlement with respect to which the Company Taxes of such Seller or any of its Affiliates has any Liability, except as expressly set forth in Section 6.14(e) and Section 6.14(f)Affiliates;
(g) all of its human resources and other employee-related files and records, other than such files and records related to the CBAs applicable to employees of the Acquired Stores and Distribution CentersTransferred Employees;
(h) all personnel files and records, other than those expressly included in the Purchased Assetsindebtedness or accounts payable owing from any Affiliate of any Seller to any such Seller;
(i) all Tax assets of the Company and its Affiliates (including any and all credits or deposits in respect of Taxes, net operating loss carryforwards, and refunds of Taxes for which the Company is liable pursuant to Section 2.2(d), Section 2.6(d) or Section 6.4 or otherwise with respect to any periods (or portions thereof) ending on or prior to the Closing (or the applicable Subsequent Closing or Distribution Center Closing)), other than as set forth in Section 1.1(k) aboveExcluded Personal Property;
(j) all Tax Returns and other Tax-related documents or information of the Company or its Affiliates not relating to the Acquired StoresExcluded Intellectual Property;
(k) any Contract to which the Company or any of its Affiliates is a party other than the Assumed ContractsCustomer Database;
(l) except for the Purchased Intellectual Propertyall data, the Intellectual Property used or owned by the Company or files and other materials located on any of its Affiliates storage device (including personal computers and servers) located at such Seller's Property (other than Books and Records and the name and ▇▇▇▇ “Rite Aid” or the “Rite Aid” logo, or any name or ▇▇▇▇ comprised, including or derived from the foregoing or confusingly similar theretoProperty Specific Data);
(m) all assets and properties of such Seller not used exclusively in connection with the historical customer data related to the Company’s Wellness+ program business operated at such Seller's Property and all assets and properties owned by Affiliates of such Seller (except as set for in Section 1.1(l) aboveincluding Caesars and ▇▇▇▇▇▇'▇ and their respective Subsidiaries and Affiliates, other than such Seller);
(n) except for the Software, databases, compilations and data, information technology systems, and technology expressly included in the Purchased Assets (including the Purchased Intellectual Property), all Software, databases, compilations and data, information technology services, and technology owned or used by the Company or any of its Affiliates, including the Software, databases, compilations and data, information technology systems, and technology set forth on Section 1.2(n) of the Company Disclosure Schedules;
(o) any of the machinery, equipment, vehicles, furniture and other personal property leased by the Company or any of its Affiliates under a Contract;
(p) any equity interests owned by the Company and its Affiliates of the entity or entities that own any assets related to the in-store clinics;
(q) any pin pads and the encryption codes related thereto;
(r) all assets exclusively related to which such Seller is entitled under the in-store clinicsproration provisions of Article IV hereof;
(s) to the extent related to Excluded Liabilities, all rights, claims or causes of action against third parties relating to the assets, properties, business or operations of the Acquired Stores, the Distribution Centers or other Purchased Assets or to the Assumed Liabilities, arising out of events or transactions occurring, or facts or circumstances existing, prior to or on the Closing Date (or the applicable Subsequent Closing Date or the Distribution Center Closing, as applicable);
(t) to the extent related to Excluded Liabilities, all guarantees, warranties and indemnities related to the ownership or operation of the Purchased Assets prior to or on the Closing (or the applicable Subsequent Closing or the Distribution Center Closing, as applicable); and
(u) the assets set forth on Section 1.2(u) of the Company Disclosure Schedules.
Appears in 1 contract
Sources: Asset Purchase Agreement (Caesars Entertainment Inc)
Excluded Assets. Notwithstanding the provisions of Section 1.12.1 or any other provision of this Agreement, the Purchased Acquired Assets do not include, and Sellers shall not include transfer to Purchaser any assets of the Company or any of its Affiliates other than the Purchased Assetsfollowing assets, including the following properties, rights, interests, benefits and privileges (collectively, the “Excluded Assets”):
(a) all notes cash, bank deposits, securities and cash equivalents, including for this purpose, all cash and cash equivalents if credited to Sellers’ bank accounts receivable generatedprior to the Closing Date);
(b) any cash, bank deposits and cash equivalents of the Company, other than the Purchased Cashall Rejected Contracts;
(c) all insurance policiesPrepaid Expenses, Accounts Receivable, Inventory, and all other assets, properties and rights, in each case to the extent relating to a Rejected Contract;
(d) all corporate minute books and records of internal corporate proceedings, stock transfer books ledgers, blank stock certificates, corporate seals, tax and accounting records, work papers and other records relating to the corporate seal organization or maintenance of the Company or its Affiliates, other than the books and records contemplated by Section 1.1(g)legal existence of each Seller;
(e) all equity interests in any joint venture books, records or equity interests in any other Person held by information related solely and exclusively to the Company or any of its AffiliatesExcluded Assets;
(f) all assets arising out of or relating records that Sellers are required by law to employee benefits or employee benefit or compensation plans, programs, agreements or arrangements maintained or contributed to (or formerly maintained or contributed to) by the Company or its Affiliates or with respect to which the Company or any of its Affiliates has any Liability, except as expressly set forth in Section 6.14(e) and Section 6.14(f)retain;
(g) all refunds or credits or deposits of (i) prepaid insurance or (ii) Taxes with respect to the CBAs applicable period prior to employees the Closing Date, including any refunds, credits or deposits of (i) prepaid insurance or (ii) Taxes arising as a result of Sellers operation of the Business or ownership, operation, utilization or maintenance of the Acquired Stores and Distribution CentersAssets prior to the Closing Date;
(h) all personnel files and records, other than those expressly included in the Purchased AssetsEmployee Benefit Plans;
(i) all Tax assets of the Company and its Affiliates (equity interests, or interests convertible into or exchangeable for equity interests, held by any Seller including any and all credits or deposits such interests of any Seller in respect of Taxes, net operating loss carryforwards, and refunds of Taxes for which the Company is liable pursuant to Section 2.2(d), Section 2.6(d) or Section 6.4 or otherwise with respect to any periods (or portions thereof) ending on or prior to the Closing (or the applicable Subsequent Closing or Distribution Center Closing)), other than as set forth in Section 1.1(k) above;another Seller; and
(j) all Tax Returns and other Tax-related documents or information of the Company or its Affiliates not relating to the Acquired Stores;
(k) any Contract to which the Company or any of its Affiliates is a party other than the Assumed Contracts;
(l) except for the Purchased Intellectual Property, the Intellectual Property used or owned by the Company or any of its Affiliates (including the name and ▇▇▇▇ “Rite Aid” or the “Rite Aid” logo, or any name or ▇▇▇▇ comprised, including or derived from the foregoing or confusingly similar thereto);
(m) the historical customer data related to the Company’s Wellness+ program (except as set for in Section 1.1(l) above);
(n) except for the Software, databases, compilations and data, information technology systems, and technology expressly included in the Purchased Assets (including the Purchased Intellectual Property), all Software, databases, compilations and data, information technology services, and technology owned or used by the Company or any of its Affiliates, including the Software, databases, compilations and data, information technology systems, and technology set forth on Section 1.2(n) of the Company Disclosure Schedules;
(o) any of the machinery, equipment, vehicles, furniture and other personal property leased by the Company or any of its Affiliates under a Contract;
(p) any equity interests owned by the Company and its Affiliates of the entity or entities that own any assets related to the in-store clinics;
(q) any pin pads and the encryption codes related thereto;
(r) all assets exclusively related to the in-store clinics;
(s) to the extent related to Excluded Liabilities, all rights, claims or causes of action against third parties relating to the assets, properties, business or operations of the Acquired Stores, the Distribution Centers or other Purchased Assets or to the Assumed Liabilities, arising out of events or transactions occurring, or facts or circumstances existing, prior to or properties and rights identified on the Closing Date (or the applicable Subsequent Closing Date or the Distribution Center Closing, as applicable);
(t) to the extent related to Excluded Liabilities, all guarantees, warranties and indemnities related to the ownership or operation of the Purchased Assets prior to or on the Closing (or the applicable Subsequent Closing or the Distribution Center Closing, as applicable); and
(u) the assets set forth on Section 1.2(u) of the Company Disclosure Schedules.Schedule 2.2
Appears in 1 contract
Sources: Asset Purchase Agreement
Excluded Assets. Notwithstanding It is expressly understood and agreed that the provisions of Section 1.1, the Purchased Assets shall not include any assets of the Company or any of its Affiliates other than the Purchased Assets, including the following (collectively, the “"Excluded Assets”"):
(a) all notes and accounts receivable generatedSpecified Working Capital Items;
(b) Except as may be agreed pursuant to Section 1.7, any cash, bank deposits and cash equivalents assets of any qualified or non-qualified pension or welfare plans or other deferred compensation arrangements maintained by any Contributor or any Affiliate thereof for employees of such Contributor or any Affiliate thereof prior to the Company, other than the Purchased CashAsset Transfer Effective Time;
(c) Subject to the Master Intellectual Property Agreement, any and all insurance policiesof the Intellectual Property of Contributor or any Affiliate thereof to the extent not primarily used in the normal operation and conduct of, or to the extent not applicable to, the Contributed Business, and any and all Trademarks of Contributor or any Affiliate thereof except for the Trademarks assigned or licensed in the Master Intellectual Property Agreement;
(d) all corporate minute books All claims and stock transfer books rights against third parties (including insurance carriers, indemnitors, suppliers and service providers), to the corporate seal of extent they do not relate to the Company or its Affiliates, other than the books and records contemplated by Section 1.1(g)Assumed Liabilities;
(e) all equity interests in any joint venture or equity interests in any other Person Claims held by the Company Contributor or any Affiliate thereof for refunds of Taxes for time periods ending on or before the Asset Transfer Effective Time, which Taxes remain the liability of Contributor or its AffiliatesAffiliates under this Agreement;
(f) all assets arising out All items sold in the ordinary course of business prior to the Asset Transfer Effective Time, none of which individually or relating in the aggregate are material to employee benefits or employee benefit or compensation plans, programs, agreements or arrangements maintained or contributed to (or formerly maintained or contributed to) by the Company or its Affiliates or with respect to which normal operation and conduct of the Company or any of its Affiliates has any Liability, except as expressly set forth in Section 6.14(e) and Section 6.14(f)Contributed Business;
(g) the CBAs applicable to employees of the Acquired Stores The tangible assets, intangible assets, real properties, contracts and Distribution Centersrights described on Schedule 1.2(g);
(h) all personnel files Any of Contributor's or any Affiliates' right, title and recordsinterest in and to any dispersion PVC resin producing plant assets, other than those expressly included in the Purchased Assetsco-polymer PVC resin producing plant assets, or specialty homopolymer suspension and blending resins;
(i) all Tax assets Any real property of Contributor or any Affiliate thereof in the vicinity of but not within the metes and bounds or other descriptions of the Company Fee Interests and its Affiliates (including any and all credits related easements or deposits in respect of Taxes, net operating loss carryforwards, and refunds of Taxes for which the Company is liable rights-of-way surveyed pursuant to Section 2.2(d), Section 2.6(d) or Section 6.4 or otherwise with respect to any periods (or portions thereof) ending on or prior to the Closing (or the applicable Subsequent Closing or Distribution Center Closing)), other than as set forth in Section 1.1(k) above;
(j) all Tax Returns and other Tax-related documents or information of the Company or its Affiliates not relating to the Acquired Stores;
(k) any Contract to which the Company or any of its Affiliates is a party other than the Assumed Contracts;
(l) except for the Purchased Intellectual Property, the Intellectual Property used or owned by the Company or any of its Affiliates (including the name and ▇▇▇▇ “Rite Aid” or the “Rite Aid” logo, or any name or ▇▇▇▇ comprised, including or derived from the foregoing or confusingly similar thereto);
(m) the historical customer data related to the Company’s Wellness+ program (except as set for in Section 1.1(l) above);
(n) except for the Software, databases, compilations and data, information technology systems, and technology expressly included in the Purchased Assets (including the Purchased Intellectual Property), all Software, databases, compilations and data, information technology services, and technology owned or used by the Company or any of its Affiliates, including the Software, databases, compilations and data, information technology systems, and technology set forth on Section 1.2(n) of the Company Disclosure Schedules;
(o) any of the machinery, equipment, vehicles, furniture and other personal property leased by the Company or any of its Affiliates under a Contract;
(p) any equity interests owned by the Company and its Affiliates of the entity or entities that own any assets related to the in-store clinics;
(q) any pin pads and the encryption codes related thereto;
(r) all assets exclusively related to the in-store clinics;
(s) to the extent related to Excluded Liabilities, all rights, claims or causes of action against third parties relating to the assets, properties, business or operations of the Acquired Stores, the Distribution Centers or other Purchased Assets or to the Assumed Liabilities, arising out of events or transactions occurring, or facts or circumstances existing, prior to or on the Closing Date (or the applicable Subsequent Closing Date or the Distribution Center Closing, as applicable);
(t) to the extent related to Excluded Liabilities, all guarantees, warranties and indemnities related to the ownership or operation of the Purchased Assets prior to or on the Closing (or the applicable Subsequent Closing or the Distribution Center Closing, as applicable6.2(d); and
(uj) The interest of Contributor and its Affiliates in all railcars (whether owned or leased) utilized in the assets set forth on Section 1.2(u) operation and conduct of the Company Disclosure SchedulesContributed Business and described on Schedule 1.2(j) (the "Excluded Railcars").
Appears in 1 contract
Excluded Assets. Notwithstanding the provisions foregoing, the Assets shall --------------- not include any of the following:
1.4.1 certificates of incorporation and of limited partnership, minute books, stock books, tax returns, books of account or other records having to do with the corporate or limited partnership organization, qualifications to conduct business as a foreign corporation or limited partnership, agreements with registered agents relating to foreign qualifications, and taxpayer and similar identification numbers, as applicable, of the Sellers, Vincent, HSI General, HSI, and HSI Limited;
▇.▇.▇ ▇▇▇ ▇▇▇hts that accrue or will accrue to the Sellers under this Agreement or any other agreement between a Seller Party and the Purchaser entered into on or after the date hereof;
1.4.3 the rights to any of the Sellers' claims for any federal, state, local, or foreign tax refunds;
1.4.4 except as provided in Section 1.1, the Purchased Assets shall not include any assets of deposits, deposit accounts, and investments plus all other cash, cash equivalents, deposits, deposit accounts, and investments arising from the Company Business on or any of its Affiliates other than before the Purchased Assets, including the following (collectively, the “Excluded Assets”):
(a) all notes and accounts receivable generatedClosing Date;
(b) any cash, bank deposits and cash equivalents of the Company, other than the Purchased Cash;
(c) 1.4.5 all insurance and reinsurance, surety, bonding, or indemnity policies;
(d) all corporate minute books and stock transfer books , binders, or contracts, and the corporate seal benefits of any prior insurance coverage to the Company extent still available, as established or its Affiliates, other than the books and records contemplated by Section 1.1(g);
(e) all equity interests in any joint venture or equity interests in any other Person held by the Company or any of its Affiliates;
(f) all assets arising out of or relating to employee benefits or employee benefit or compensation plans, programs, agreements or arrangements maintained or contributed to (or formerly maintained or contributed to) by the Company or its Affiliates or obtained with respect to which the Company Business or any of its Affiliates has any Liability, except as expressly set forth in Section 6.14(e) and Section 6.14(f);
(g) the CBAs applicable to employees of the Acquired Stores and Distribution Centers;
(h) all personnel files and records, other than those expressly included in the Purchased Assets;
(i) all Tax assets of the Company and its Affiliates (including any and all credits or deposits in respect of Taxes, net operating loss carryforwards, and refunds of Taxes for which the Company is liable pursuant to Section 2.2(d), Section 2.6(d) or Section 6.4 or otherwise with respect to any periods (or portions thereof) ending Assets on or prior to the Closing (or the applicable Subsequent Closing or Distribution Center Closing)), other than as set forth in Section 1.1(k) above;
(j) all Tax Returns and other Tax-related documents or information of the Company or its Affiliates not relating to the Acquired Stores;
(k) any Contract to which the Company or any of its Affiliates is a party other than the Assumed Contracts;
(l) except for the Purchased Intellectual Property, the Intellectual Property used or owned by the Company or any of its Affiliates (including the name and ▇▇▇▇ “Rite Aid” or the “Rite Aid” logo, or any name or ▇▇▇▇ comprised, including or derived from the foregoing or confusingly similar thereto);
(m) the historical customer data related to the Company’s Wellness+ program (except as set for in Section 1.1(l) above);
(n) except for the Software, databases, compilations and data, information technology systems, and technology expressly included in the Purchased Assets (including the Purchased Intellectual Property), all Software, databases, compilations and data, information technology services, and technology owned or used by the Company or any of its Affiliates, including the Software, databases, compilations and data, information technology systems, and technology set forth on Section 1.2(n) of the Company Disclosure Schedules;
(o) any of the machinery, equipment, vehicles, furniture and other personal property leased by the Company or any of its Affiliates under a Contract;
(p) any equity interests owned by the Company and its Affiliates of the entity or entities that own any assets related to the in-store clinics;
(q) any pin pads and the encryption codes related thereto;
(r) all assets exclusively related to the in-store clinics;
(s) to the extent related to Excluded Liabilities, all rights, claims or causes of action against third parties relating to the assets, properties, business or operations of the Acquired Stores, the Distribution Centers or other Purchased Assets or to the Assumed Liabilities, arising out of events or transactions occurring, or facts or circumstances existing, prior to or on before the Closing Date (or the applicable Subsequent Closing Date or the Distribution Center Closing, as applicable"Insurance Policies");
(t) 1.4.6 all obligations owed to the extent related to Excluded LiabilitiesSellers from any of the Seller Parties or any Affiliate of any Seller Party, all guaranteesor any spouse, warranties and indemnities related child or other relative of any such Affiliate ("Affiliate" when used with reference to the ownership Sellers means any officer, director or operation owner of 5% or more, directly or indirectly, of the Purchased Assets prior outstanding limited partner interests of HSI Properties or limited partner interests in SFL; "Affiliate" when used with reference to or on the Closing (Purchaser or the applicable Subsequent Closing Parent means any officer, director or owner of 5% or more of the Distribution Center Closing, as applicableoutstanding shares of the Parent); and
1.4.7 the other assets, properties or rights disclosed in Schedule 1.4 (u) collectively with the assets set forth on other Assets listed in or pursuant to this Section 1.2(u) of 1.4, the Company Disclosure Schedules"Excluded Assets").
Appears in 1 contract
Excluded Assets. Notwithstanding anything to the provisions of contrary contained in Section 1.12.1 or elsewhere in this Agreement, the Purchased Assets shall not include any following assets of the Company or any of its Affiliates other than the Purchased Assets, including the following (collectively, the “Excluded Assets”):) are not part of the sale and purchase contemplated hereunder, are excluded from the Purchased Assets and shall remain the property of Seller and/or its Affiliates after the Closing:
(a) all notes cash and cash equivalents, including any marketable securities or certificates of deposit, or any collected funds or accounts receivable generatedor items in the process of collection at the financial institutions of Seller through and including the Closing Date, and any cash security or other similar deposits (other than as provided in Section 2.1(a)), together with all accrued but unpaid interest thereon;
(b) any cash, bank deposits and cash equivalents accounts or notes receivable or other such claims for money due to Seller from Seller Parent or any of the Company, other than the Purchased Cashits wholly-owned subsidiaries;
(c) all insurance policiespolicies and any rights of Seller or any of its Affiliates under such insurance policies (except to the extent specified in Section 2.1(l));
(d) all corporate minute books and stock transfer books and the corporate seal of the Company or its AffiliatesContracts, other than the books and records contemplated by Section 1.1(g);
(e) all equity interests in any joint venture or equity interests in any other Person held by the Company or any of its Affiliates;
(f) all assets arising out of or relating to employee benefits or employee benefit or compensation plans, programs, agreements or arrangements maintained or contributed to (or formerly maintained or contributed to) by the Company or its Affiliates or with respect to which the Company or any of its Affiliates has any Liability, except as expressly set forth in Section 6.14(e) and Section 6.14(f);
(g) the CBAs applicable to employees of the Acquired Stores and Distribution Centers;
(h) all personnel files and records, other than those expressly included in the Purchased Assets;
(i) all Tax assets of the Company and its Affiliates (including any and all credits or deposits in respect of Taxes, net operating loss carryforwards, and refunds of Taxes for which the Company is liable pursuant to Section 2.2(d), Section 2.6(d) or Section 6.4 or otherwise with respect to any periods (or portions thereof) ending on or prior to the Closing (or the applicable Subsequent Closing or Distribution Center Closing)), other than as set forth in Section 1.1(k) above;
(j) all Tax Returns and other Tax-related documents or information of the Company or its Affiliates not relating to the Acquired Stores;
(k) any Contract to which the Company or any of its Affiliates is a party other than the Assumed Contracts;
(e) all claims, demands, deposits, refunds, rebates, causes of action, choses in action, rights of recovery, rights of set-off and rights of recoupment to the extent relating to any of the Excluded Assets or Retained Liabilities;
(f) the corporate charter, qualifications to conduct business as a foreign corporation, arrangements with registered agents relating to foreign qualifications, taxpayer and other identification numbers, seals, minute books, stock transfer books, shares of capital stock, blank stock certificates, and other documents relating to the organization, maintenance and existence of Seller as a corporation;
(g) any shares of capital stock or other equity interests in any entity;
(h) all personnel records and other records that Seller is required by Law to retain in its possession or is not permitted under Law to provide to Buyer, provided that Seller shall provide copies of any portions of such retained information that relate to (i) the Business, (ii) the Purchased Assets, or (iii) the New Employees, except to the extent prohibited by Law;
(i) all rights in connection with, and assets of, any Employee Plan (except to the extent specified in Section 8.5);
(j) any credits, prepaid expenses, deferred charges, advance payments, security deposits, prepaid items, deposits and claims for refunds or reimbursements, in each case, to the extent relating to the Excluded Assets and/or the Retained Liabilities;
(k) all rights to indemnification, contribution or other reimbursement, or limitations on liability, under the Assumed Contracts, or any warranties and guarantees, in each case, from any third parties with respect to any Retained Liabilities and/or Losses for which Seller has an indemnification obligation under this Agreement;
(l) except for the Purchased Intellectual Property, the Intellectual Property used or owned by the Company any rights of Seller or any of its Affiliates (including with respect to any Tax refund relating to periods ending on or prior to the name and ▇▇▇▇ “Rite Aid” or the “Rite Aid” logo, or any name or ▇▇▇▇ comprisedClosing Date, including any ratable portion of a Tax period that includes the Closing Date (pro-rated in the manner contemplated by Section 8.6), and any rights under any Tax allocation or derived from sharing agreement relating to periods ending on or prior to the foregoing or confusingly similar thereto);Closing Date; and
(m) the historical customer data related to the Company’s Wellness+ program (except as set for in Section 1.1(l) above);
(n) except for the Software, databases, compilations and data, information technology systems, and technology expressly included in the Purchased Assets (including the Purchased Intellectual Property), all Software, databases, compilations and data, information technology services, and technology owned or used by the Company rights of Seller under this Agreement or any of its Affiliates, including the Software, databases, compilations and data, information technology systems, and technology set forth on Section 1.2(n) of the Company Disclosure Schedules;
(o) any of the machinery, equipment, vehicles, furniture and other personal property leased by the Company or any of its Affiliates under a Contract;
(p) any equity interests owned by the Company and its Affiliates of the entity or entities that own any assets related to the in-store clinics;
(q) any pin pads and the encryption codes related thereto;
(r) all assets exclusively related to the in-store clinics;
(s) to the extent related to Excluded Liabilities, all rights, claims or causes of action against third parties relating to the assets, properties, business or operations of the Acquired Stores, the Distribution Centers or other Purchased Assets or to the Assumed Liabilities, arising out of events or transactions occurring, or facts or circumstances existing, prior to or on the Closing Date (or the applicable Subsequent Closing Date or the Distribution Center Closing, as applicable);
(t) to the extent related to Excluded Liabilities, all guarantees, warranties and indemnities related to the ownership or operation of the Purchased Assets prior to or on the Closing (or the applicable Subsequent Closing or the Distribution Center Closing, as applicable); and
(u) the assets set forth on Section 1.2(u) of the Company Disclosure SchedulesTransaction Document.
Appears in 1 contract
Sources: Asset Purchase Agreement (Lawson Products Inc/New/De/)
Excluded Assets. Notwithstanding The following assets and properties of ▇▇▇▇▇▇▇▇, Tribune and/or their respective Affiliates (the provisions of Section 1.1, “Excluded Assets”) shall not be acquired by Buyer and are excluded from the Purchased Assets shall not include any assets Assets:
(a) all of the Company Cash and Cash Equivalents of ▇▇▇▇▇▇▇▇, Tribune or any of its Affiliates their respective Affiliates;
(b) all bank and other depository accounts of ▇▇▇▇▇▇▇▇, Tribune or any of their respective Affiliates;
(c) insurance policies relating to any of the Stations, and all claims, credits, causes of Proceeding or rights, including rights to insurance proceeds, thereunder;
(d) any refunds of Taxes for Pre-Closing Tax Periods (whether received in cash or used to offset Taxes for a Post-Closing Tax Period);
(e) any cause of action or claim relating to any event or occurrence prior to the Effective Time (other than as specified in Section 2.02(e) of the Disclosure Schedules) to the extent such cause of action or claim does not affect or relate to the Business of the Stations following Closing;
(f) all Accounts Receivable;
(g) intercompany accounts receivable and intercompany accounts payable of ▇▇▇▇▇▇▇▇, Tribune or any of their respective Affiliates;
(h) all (i) books, records, files and papers, whether in hard copy or computer format, relating to the preparation of this Agreement or the transactions contemplated hereby, (ii) all minute books and company records of ▇▇▇▇▇▇▇▇, Tribune or any of their respective Affiliates and (iii) duplicate copies of records of the Stations;
(i) all rights of ▇▇▇▇▇▇▇▇, Tribune or any of their respective Affiliates arising under this Agreement, the Ancillary Agreements or the transactions contemplated hereby and thereby;
(j) any Purchased Assets, Asset sold or otherwise disposed of prior to Closing as permitted under Section 5.01;
(k) Contracts that are not Assumed Contracts (including Contracts listed on Section 2.02(k) of the following Disclosure Schedules) (collectively, the “Excluded AssetsContracts”):
(a) all notes and accounts receivable generated;
(b) any cash, bank deposits and cash equivalents of the Company, other than the Purchased Cash;
(c) all insurance policies;
(d) all corporate minute books and stock transfer books and the corporate seal of the Company or its Affiliates, other than the books and records contemplated by Section 1.1(g);
(e) all equity interests in any joint venture or equity interests in any other Person held by the Company or any of its Affiliates;
(f) all assets arising out of or relating to employee benefits or employee benefit or compensation plans, programs, agreements or arrangements maintained or contributed to (or formerly maintained or contributed to) by the Company or its Affiliates or with respect to which the Company or any of its Affiliates has any Liability, except as expressly set forth in Section 6.14(e) and Section 6.14(f);
(g) the CBAs applicable to employees of the Acquired Stores and Distribution Centers;
(h) all personnel files and records, other than those expressly included in the Purchased Assets;
(i) all Tax assets of the Company and its Affiliates (including any and all credits or deposits in respect of Taxes, net operating loss carryforwards, and refunds of Taxes for which the Company is liable pursuant to Section 2.2(d), Section 2.6(d) or Section 6.4 or otherwise with respect to any periods (or portions thereof) ending on or prior to the Closing (or the applicable Subsequent Closing or Distribution Center Closing)), other than as set forth in Section 1.1(k) above;
(j) all Tax Returns and other Tax-related documents or information of the Company or its Affiliates not relating to the Acquired Stores;
(k) any Contract to which the Company or any of its Affiliates is a party other than the Assumed Contracts;
(l) except for the Purchased Intellectual Propertyother than as specifically set forth in Article VIII, the Intellectual Property used or owned any Employee Plan and any assets of any Employee Plan sponsored by the Company ▇▇▇▇▇▇▇▇, Tribune or any of its their respective Affiliates (including the name and any amounts due to such Employee Plan from ▇▇▇▇ “Rite Aid” or the “Rite Aid” logo, or any name or ▇▇▇▇ comprised▇▇, including Tribune or derived from the foregoing or confusingly similar thereto)any of their respective Affiliates;
(m) the historical customer data related to the Company’s Wellness+ program (except as set for in Section 1.1(l) above)all Tax records, other than real and personal property and sales and use Tax records;
(n) except for the Software, databases, compilations and data, information technology systems, and technology expressly included in the Purchased Assets [reserved];
(including the Purchased Intellectual o) all Excluded Duopoly Tangible Personal Property), all Software, databases, compilations and data, information technology services, and technology owned or used by the Company or any of its Affiliates, including the Software, databases, compilations and data, information technology systems, and technology set forth ;
(p) those assets which are listed on Section 1.2(n2.02(p) of the Company Disclosure Schedules;
(oq) each of ▇▇▇▇▇▇▇▇’▇, Tribune’s and their respective Affiliates’ right, title and interest in and to (i) the Retained Names and Marks, (ii) all URLs and internet domain names consisting of or containing any of the machineryforegoing, equipmentand (iii) any variations or derivations of, vehiclesor marks confusingly similar to, furniture and other personal property leased by the Company or any of its Affiliates under a Contract;
(p) any equity interests owned by the Company and its Affiliates of the entity or entities that own any assets related to the in-store clinics;
(q) any pin pads and the encryption codes related theretoforegoing;
(r) all assets exclusively related to any rights under any non-transferable shrink-wrapped or click-wrapped licenses of computer software and any other non-transferable licenses of computer software used in the in-store clinicsoperations of any of the Stations;
(s) to the extent related to Excluded Liabilities, all rights, claims or causes of action against third parties relating to the assets, properties, business or operations of the Acquired Stores, the Distribution Centers capital stock or other Purchased Assets equity securities of ▇▇▇▇▇▇▇▇, Tribune or to the Assumed Liabilitiesany of their respective Affiliates and all other equity interests in any entity that are owned beneficially or of record by ▇▇▇▇▇▇▇▇, arising out Tribune or any of events or transactions occurring, or facts or circumstances existing, prior to or on the Closing Date (or the applicable Subsequent Closing Date or the Distribution Center Closing, as applicable)their respective Affiliates;
(t) any Contracts for cable or satellite transmission or retransmission of a Station with any MVPD, except for the Assumed MVPD Contracts or Assumed TVE Agreements;
(u) any ▇▇▇ Agreements with respect to a Station;
(v) those assets located at a Hub or used primarily in connection with the extent related to Excluded Liabilities, all guarantees, warranties and indemnities related to the ownership or operation provision of the Purchased Assets prior to or on the Closing (or the applicable Subsequent Closing or the Distribution Center Closing, as applicable)Corporate Services; and
(uw) all other assets of ▇▇▇▇▇▇▇▇, Tribune or any of their respective Affiliates to the assets set forth on Section 1.2(u) extent not located at or used primarily in the operations of any of the Company Disclosure SchedulesStations.
Appears in 1 contract
Excluded Assets. Notwithstanding the provisions of Section 1.11.1 above, the Purchased Transferred Assets shall do not include include, and the Company does not hereby transfer to Purchaser any assets of the Company or any of its Affiliates other than the Purchased Assets, including the following assets (collectively, hereinafter the “Excluded Assets”):
(a) all notes and accounts receivable generatedcontracts other than the Transferred Contracts;
(b) the consideration delivered by Purchaser to the Company pursuant to this Agreement and all rights of the Company under this Agreement;
(c) the Benefit Plans and any cashassets thereof;
(d) the Company’s Income Tax Returns and Income Tax records;
(e) any books, bank deposits records or other information that are not related exclusively to the Business;
(f) all policies of insurance and fidelity, surety or similar bonds;
(g) any refunds or credits of Income Taxes (including any interest thereon) attributable to the Company’s ownership of the Transferred Assets or operation of the Business during periods or portions of periods ending prior to the Closing Date, or arising from, relating to or involving any Excluded Liability;
(h) the minute books, stock books, corporate seals and other corporate records of the Company relating to its organization and existence;
(i) all (i) cash and cash equivalents on hand, wherever located, including bank balances and bank accounts, monies in possession of any banks, savings and loans or trust companies and similar cash items on hand, and (ii) investment securities and other short- and medium-term investments of the Company;
(j) any governmental licenses, permits and approvals issued to the Company, to the extent their transfer is not permitted by law;
(k) any books and records that the Company or any of its Affiliates are required to retain pursuant to any applicable statute, rule, regulation or ordinance or which relate to the Excluded Assets or the Excluded Liabilities;
(l) all Intellectual Property owned by or held for use in the business of the Company, other than the Purchased Cash;
(c) all insurance policies;
(d) all corporate minute books and stock transfer books and the corporate seal of the Company or its Affiliates, other than the books and records contemplated by Section 1.1(g);
(e) all equity interests in any joint venture or equity interests in any other Person held by the Company or any of its Affiliates;
(f) all assets arising out of or relating to employee benefits or employee benefit or compensation plans, programs, agreements or arrangements maintained or contributed to (or formerly maintained or contributed to) by the Company or its Affiliates or with respect to which the Company or any of its Affiliates has any Liability, except as expressly set forth in Section 6.14(e) and Section 6.14(f);
(g) the CBAs applicable to employees of the Acquired Stores and Distribution Centers;
(h) all personnel files and records, other than those expressly included in the Purchased Assets;
(i) all Tax assets of the Company and its Affiliates (including any and all credits or deposits in respect of Taxes, net operating loss carryforwards, and refunds of Taxes for which the Company is liable pursuant to Section 2.2(d), Section 2.6(d) or Section 6.4 or otherwise with respect to any periods (or portions thereof) ending on or prior to the Closing (or the applicable Subsequent Closing or Distribution Center Closing)), other than as set forth in Section 1.1(k) above;
(j) all Tax Returns and other Tax-related documents or information of the Company or its Affiliates not relating to the Acquired Stores;
(k) any Contract to which the Company or any of its Affiliates is a party other than the Assumed Contracts;
(l) except for the Purchased Business Intellectual Property, the Intellectual Property used or owned by the Company or any of its Affiliates (including the name and ▇▇▇▇ “Rite Aid” or the “Rite Aid” logo, or any name or ▇▇▇▇ comprised, including or derived from the foregoing or confusingly similar thereto);
(m) the historical customer data related to the Company’s Wellness+ program (except as set for in Section 1.1(l) above);Corporate Intellectual Property; and
(n) except for the Software, databases, compilations and data, information technology systems, and technology expressly included in the Purchased Assets (including the Purchased Intellectual Property), all Software, databases, compilations and data, information technology services, and technology owned or used by the Company or any of its Affiliates, including the Software, databases, compilations and data, information technology systems, and technology set forth on Section 1.2(n) of the Company Disclosure Schedules;
(o) any of the machinery, equipment, vehicles, furniture and other personal property leased by the Company or any of its Affiliates under a Contract;
(p) any equity interests owned by the Company and its Affiliates of the entity or entities that own any assets related to the in-store clinics;
(q) any pin pads and the encryption codes related thereto;
(r) all assets exclusively related to the in-store clinics;
(s) to the extent related to Excluded Liabilities, all rights, claims or causes of action against third parties relating to the assets, properties, business or operations of the Acquired Stores, the Distribution Centers or other Purchased Assets or to the Assumed Liabilities, arising out of events or transactions occurring, or facts or circumstances existing, prior to or on the Closing Date (or the applicable Subsequent Closing Date or the Distribution Center Closing, as applicable);
(t) to the extent related to Excluded Liabilities, all guarantees, warranties and indemnities related to the ownership or operation of the Purchased Assets prior to or on the Closing (or the applicable Subsequent Closing or the Distribution Center Closing, as applicable); and
(u) the assets set forth on Section 1.2(u) of the Company Disclosure Schedulesdescribed in Schedule 1.2(n).
Appears in 1 contract
Excluded Assets. Notwithstanding anything to the provisions of contrary contained in Section 1.12.1 or elsewhere in this Agreement, the Purchased Assets shall not include any all properties, rights and assets of the Company or any of Seller and/or its Affiliates other than the Purchased Assets, including the following not expressly described in Section 2.1 (collectively, the “Excluded Assets”):) are not part of the sale and purchase contemplated hereunder, are excluded from the Acquired Assets and shall remain the property of the applicable Seller and/or its Affiliates, as the case may be, after the Closing. Without limiting the foregoing, the Excluded Assets include the following:
(a) all notes cash and accounts receivable generatedcash equivalents or similar investments, including checking accounts, bank accounts, lock box numbers, marketable securities, commercial paper, certificates of deposit and other bank deposits, and treasury bills;
(b) any cash, bank deposits all insurance policies and cash equivalents all rights of the Company, other than the Purchased Cashevery nature (including proceeds) under or arising out of such policies;
(c) all insurance policiesContracts to which any Seller or any of its Affiliates is a party other than the Business Contracts;
(d) without prejudice to Buyer’s rights pursuant to Section 7.10, all corporate minute books and stock transfer books and the corporate seal of the Company or its Affiliates, other than the books and records contemplated by Section 1.1(g)Accounts Receivable;
(e) all equity interests in any joint venture or equity interests in any other Person held by the Company or any of its Affiliates;
(f) all assets arising out of or relating to employee benefits or employee benefit or compensation plans, programs, agreements or arrangements maintained or contributed subject to (or formerly maintained or contributed tox) by the Company or its Affiliates or Sections 2.1(d), 2.1(e), 2.1(f) and 2.1(g) (with respect to which the Company right to ▇▇▇ for past, present or any of its Affiliates has any Liabilityfuture infringement, except as expressly set forth in Section 6.14(e) and Section 6.14(f);
(g) to collect and retain all damages and profits relating to the CBAs applicable to employees of Business Intellectual Property and the Acquired Stores and Distribution Centers;
(h) all personnel files and records, other than those expressly included in the Purchased Assets;
(i) all Tax assets of the Company and its Affiliates (including any and all credits or deposits Prior IP in respect of such infringement) and (y) Section 2.1(i), all claims, demands, deposits, refunds, rebates, causes of action, choses in action, rights of recovery, rights of set-off and rights of recoupment, and all claims for refunds or rebates of Taxes, net operating loss carryforwards, and refunds of Taxes for which the Company is liable pursuant in any case related to Section 2.2(d), Section 2.6(d) or Section 6.4 or otherwise with respect to any periods (or portions thereof) ending on or prior to the Closing Effective Time, and other governmental charges and the benefit of net operating loss carryforwards, carrybacks or other credits of any Seller and/or any of its Affiliates;
(f) all prepaid charges, expenses, sums and fees;
(g) all Intellectual Property Assets owned, acquired, developed or licensed by any Seller or any of its Affiliates other than the applicable Subsequent Closing or Distribution Center Closing)Business Intellectual Property and the Prior IP;
(h) without prejudice to Section 9.13(b), all proprietary or confidential business or technical information, records and policies that relate generally to any Seller and/or its Affiliates and/or are not used exclusively in their operation of the Business, including organization manuals, strategic plans and Tax records and related information;
(i) all personnel records relating to the Business Employees other than as the information set forth in Section 1.1(k2.1(k) aboveand other records that any Seller or its Affiliates is required by Law to retain in its possession or is not permitted under Law to provide to Buyer;
(j) all Tax Returns rights in connection with, and other Tax-related documents or information of the Company or its Affiliates not relating to the Acquired Storesassets of, any Nortel Employee Plan;
(k) all rights of any Contract to which the Company Seller and/or its Affiliates under this Agreement or any other Transaction Document or in respect of its Affiliates is a party other than the Assumed ContractsTransactions;
(l) except for all records prepared in connection with the Purchased Intellectual Property, sale of the Intellectual Property used or owned by the Company or any of its Affiliates (including the name and ▇▇▇▇ “Rite Aid” or the “Rite Aid” logo, or any name or ▇▇▇▇ comprised, including or derived from the foregoing or confusingly similar thereto)Business;
(m) the historical customer data without prejudice to Section 9.13(b), all books, records, accounts, ledgers, files, documents, correspondence, studies, reports and other printed or written materials related to the Company’s Wellness+ program (except as set for in Section 1.1(l) above)any Excluded Assets or Excluded Liabilities;
(n) except for all of the Softwarerights and claims of the U.S. Debtors available to the U.S. Debtors under the U.S. Bankruptcy Code, databasesof whatever kind or nature, compilations as set forth in Chapter 5 of the U.S. Bankruptcy Code and data, information technology systemsany other applicable provisions of the U.S. Bankruptcy Code, and technology expressly included in the Purchased Assets (including the Purchased Intellectual Property), all Software, databases, compilations any related claims and data, information technology services, and technology owned actions arising under Chapter 5 or used such provisions by the Company operation of law or any of its Affiliatesotherwise, including the Software, databases, compilations any and data, information technology systems, and technology set forth on Section 1.2(n) all proceeds of the Company Disclosure Schedulesforegoing;
(o) any all of the machineryrights and claims of Canadian Debtors of whatever kind of nature not expressly included in the Acquired Assets, equipment, vehicles, furniture including any and other personal property leased by all proceeds of the Company or any of its Affiliates under a Contract;foregoing; and
(p) all other properties, rights and assets of any equity interests owned by the Company and Seller and/or its Affiliates of that are not used by them exclusively in the entity or entities that own any assets related to the in-store clinics;
(q) any pin pads and the encryption codes related thereto;
(r) all assets exclusively related to the in-store clinics;
(s) to the extent related to Excluded Liabilities, all rights, claims or causes of action against third parties relating to the assets, properties, business or operations of the Acquired Stores, the Distribution Centers or other Purchased Assets or to the Assumed Liabilities, arising out of events or transactions occurring, or facts or circumstances existing, prior to or on the Closing Date (or the applicable Subsequent Closing Date or the Distribution Center Closing, as applicable);
(t) to the extent related to Excluded Liabilities, all guarantees, warranties and indemnities related to the ownership or operation of the Purchased Assets prior to or on the Closing (or the applicable Subsequent Closing or the Distribution Center Closing, as applicable); and
(u) the assets set forth on Section 1.2(u) of the Company Disclosure SchedulesBusiness.
Appears in 1 contract
Excluded Assets. Notwithstanding the provisions of Section 1.12.01, the Purchased Assets shall not include any assets of the Company Seller or any of its Affiliates other than the Purchased Assets, including the following (collectively, the “Excluded Assets”):
(a) all notes and accounts receivable generated;
(b) any cash, bank deposits and cash equivalents of the CompanySeller, other than the Purchased Cash;
(c) all Contracts of insurance policies(“Insurance Arrangements”);
(d) all corporate minute books and stock transfer books and the corporate seal of the Company Seller or its Affiliates, other than the books and records contemplated by Section 1.1(g2.01(g);
(e) all equity interests in any joint venture or equity interests in any other Person held by the Company Seller or any of its Affiliates;
(f) all assets arising out of or relating to employee benefits or employee benefit or compensation plans, programs, agreements or arrangements maintained or contributed to (or formerly maintained or contributed to) by the Company Seller or its Affiliates or with respect to which the Company or any of its Affiliates has any Liability(“Benefits Arrangements”), except as expressly set forth in Section 6.14(e) and Section 6.14(f)6.01;
(g) the CBAs applicable to employees of the Acquired Stores and Distribution Centers;
(h) all personnel files and records, other than those expressly included in accordance with Section 2.01(g) and the Purchased Assetsprovisos stated therein;
(h) all refunds of any Tax for which Seller is liable pursuant to Section 5.07;
(i) all Tax assets Returns of the Company and its Affiliates (including any and all credits or deposits in respect of Taxes, net operating loss carryforwards, and refunds of Taxes for which the Company is liable pursuant to Section 2.2(d), Section 2.6(d) or Section 6.4 or otherwise with respect to any periods (or portions thereof) ending on or prior to the Closing (or the applicable Subsequent Closing or Distribution Center Closing)), other than as set forth in Section 1.1(k) above;
(j) all Tax Returns and other Tax-related documents or information of the Company Seller or its Affiliates not relating solely to the Acquired Stores;
(kj) except as expressly set forth in Section 2.01, any Contract to which the Company Seller or any of its Affiliates is a party other than the Assumed Contractsparty;
(lk) except for the Purchased Intellectual Propertyas expressly set forth in Section 2.01(l), the Intellectual Property used or owned by the Company or any of its Affiliates (including the name and ▇▇▇▇ “Rite Aid” or the “Rite Aid” logo, or any name or ▇▇▇▇ comprised, including or derived from the foregoing or confusingly similar thereto);
(m) the historical customer data related to the Company’s Wellness+ program (except as set for in Section 1.1(l) above);
(n) except for the Software, databases, compilations and data, information technology systems, and technology expressly included in the Purchased Assets (including the Purchased Intellectual Property), all Software, databases, compilations and data, information technology services, and technology owned or used by the Company Seller or any of its Affiliates, including the Software, databases, compilations and data, information technology systems, and technology set forth on Section 1.2(n) of the Company Disclosure Schedules;
(ol) the Software and information technology systems used or owned by Seller or any of its Affiliates;
(m) any of the machinery, equipment, vehicles, furniture and other personal property leased by the Company Seller or any of its Affiliates under a Contract;
(pn) all pin-pad credit card readers;
(o) all assets related to the “RediClinic” in-store clinics and any equity interests owned by the Company Seller and its Affiliates of the entity or entities that own any assets related to the in-store clinics;
(q) any pin pads and the encryption codes related thereto;
(r) all assets exclusively related to the in-store clinics;
(s) to the extent related to Excluded Liabilities, all rights, claims or causes of action against third parties relating to the such assets, properties, business or operations of the Acquired Stores, the Distribution Centers or other Purchased Assets or to the Assumed Liabilities, arising out of events or transactions occurring, or facts or circumstances existing, prior to or on the Closing Date (or the applicable Subsequent Closing Date or the Distribution Center Closing, as applicable);
(t) to the extent related to Excluded Liabilities, all guarantees, warranties and indemnities related to the ownership or operation of the Purchased Assets prior to or on the Closing (or the applicable Subsequent Closing or the Distribution Center Closing, as applicable); and
(up) the assets set forth on Section 1.2(u2.02(p) of the Company Disclosure Schedules.
Appears in 1 contract
Sources: Asset Purchase Agreement (Freds Inc)
Excluded Assets. Notwithstanding Expressly excluded from the provisions of assets, properties and rights being sold by ▇▇▇▇▇ to Acquisition Sub pursuant to Section 1.1, the Purchased Assets shall not include any assets of the Company or any of its Affiliates other than the Purchased Assets, including 1.1 hereof are the following (collectively, the “"Excluded Assets”"):
(a) all notes cash, investment securities, bank accounts and accounts receivable generatedsafe deposit boxes;
(b) all accounts receivable due from ▇▇▇▇ or any cash, bank deposits affiliate of ▇▇▇▇ and cash equivalents of the Company, other than the Purchased Cashall unpaid interest accrued on any such accounts receivable and any security or collateral relating thereto;
(c) all insurance policiesclaims for Tax refunds to the extent such refunds relate to periods ending on or prior to the Closing;
(d) all corporate minute books computer hardware and stock transfer books and the corporate seal of the Company or its Affiliatessoftware located at ▇▇▇▇'▇ offices in Philadelphia, other than the books and records contemplated Pennsylvania that may be used from time to time by Section 1.1(g)▇▇▇▇▇;
(e) all equity interests in corporate seals, articles of incorporation, minute books, stock books, Tax Returns (as defined herein) and other records having to do with the corporate organization and capitalization of ▇▇▇▇▇ and any joint venture or equity interests in any other Person held by the Company or any of its Affiliatespredecessor organization;
(f) all assets arising out of or relating to employee benefits or employee benefit or compensation plans, programs, agreements or arrangements maintained or contributed to (or formerly maintained or contributed to) by the Company or its Affiliates or and rights with respect to the defined benefit pension plan and savings plan sponsored by ▇▇▇▇ which cover the Company or any employees of its Affiliates has any Liability, except as expressly set forth in Section 6.14(e) and Section 6.14(f)▇▇▇▇▇;
(g) all existing Records not related primarily to the CBAs applicable Business and, to employees the extent provided in Section 1.1(g) hereof, copies of all other existing Records related primarily to the Acquired Stores and Distribution CentersBusiness that do not relate exclusively to the Business;
(h) all personnel files inventions, discoveries, software, shop rights, licenses, developments, research data, designs, technology, trade secrets, test procedures, processes, research data, formulas and recordsother confidential information not used primarily in the Business and, to the extent provided in Section 1.1(i) hereof, an interest in and the right to use all such items that are used primarily in the Business and that have been used by the Sellers within one year prior to the Closing Date other than those expressly included in the Purchased AssetsBusiness;
(i) all Tax assets of the Company and its Affiliates (including any and all credits rights that accrue or deposits in respect of Taxes, net operating loss carryforwards, and refunds of Taxes for which the Company is liable pursuant to Section 2.2(d), Section 2.6(d) or Section 6.4 or otherwise with respect to any periods (or portions thereof) ending on or prior will accrue to the Closing (or the applicable Subsequent Closing or Distribution Center Closing)), other than as set forth in Section 1.1(k) aboveSellers under this Agreement;
(j) all Tax Returns and other Tax-related documents or information of the Company or its Affiliates Permits that are not relating to the Acquired Stores;transferable; and
(k) any Contract to which the Company or any of its Affiliates is a party other than the Assumed Contracts;
(l) except for the Purchased Intellectual Propertyall assets, the Intellectual Property used or owned by the Company or any of its Affiliates (including the name properties and ▇▇▇▇ “Rite Aid” or the “Rite Aid” logo, or any name or ▇▇▇▇ comprised, including or derived from the foregoing or confusingly similar thereto);
(m) the historical customer data related to the Company’s Wellness+ program (except as set for in Section 1.1(l) above);
(n) except for the Software, databases, compilations and data, information technology systems, and technology expressly included in the Purchased Assets (including the Purchased Intellectual Property), all Software, databases, compilations and data, information technology services, and technology owned or used by the Company or any of its Affiliates, including the Software, databases, compilations and data, information technology systems, and technology set forth on Section 1.2(n) of the Company Disclosure Schedules;
(o) any of the machinery, equipment, vehicles, furniture and other personal property leased by the Company or any of its Affiliates under a Contract;
(p) any equity interests owned by the Company and its Affiliates of the entity or entities that own any assets related to the in-store clinics;
(q) any pin pads and the encryption codes related thereto;
(r) all assets exclusively related to the in-store clinics;
(s) to the extent related to Excluded Liabilities, all rights, claims or causes of action against third parties relating to the assetsif any, properties, business or operations of the Acquired Stores, the Distribution Centers or other Purchased Assets or to the Assumed Liabilities, arising out of events or transactions occurring, or facts or circumstances existing, prior to or listed on the Closing Date (or the applicable Subsequent Closing Date or the Distribution Center Closing, as applicableSchedule 1.2(k);
(t) to the extent related to Excluded Liabilities, all guarantees, warranties and indemnities related to the ownership or operation of the Purchased Assets prior to or on the Closing (or the applicable Subsequent Closing or the Distribution Center Closing, as applicable); and
(u) the assets set forth on Section 1.2(u) of the Company Disclosure Schedules.
Appears in 1 contract
Excluded Assets. Notwithstanding the provisions of Section 1.1, the Purchased Assets shall exclude (and the Seller Parties and their Affiliates are not include selling, assigning or conveying to Buyer) any assets of the Company right, title or any interest of its the Seller Parties or their Affiliates other than the Purchased Assetsin, including to and under the following (collectively, herein referred to as the “Excluded Assets”):
(a) all notes cash, bank deposits, cash equivalents and accounts receivable generatedsecurities of the Seller Parties and their respective Affiliates;
(b) any cash, bank deposits all accounts receivable and cash equivalents of other receivables relating to the Company, other than Business arising from services performed prior to the Purchased CashClosing Date;
(c) all insurance policiesSeller Parent Benefit Plans and any assets related thereto;
(d) all corporate minute books deposits or advance payment with respect to Taxes, and stock transfer books any claims, rights, and the corporate seal interest in and to any refund, credit or reduction of the Company Taxes of or its Affiliates, with respect to Seller (other than the books and records contemplated by portion of any refund, credit or reduction that relates to the portion of the Apportioned Obligations that are apportioned to Buyer pursuant to Section 1.1(g6.2);
(e) all equity interests in any joint venture Medicare, Medicaid or equity interests in any other Person provider numbers and Provider Agreements held or used by the Company Seller Parties or any of its Affiliatestheir Affiliates in the Business;
(f) all assets arising out the laboratory-related information systems of or relating to employee benefits or employee benefit or compensation plans, programs, agreements or arrangements maintained or contributed to (or formerly maintained or contributed to) by the Company or its Affiliates or with respect to which the Company or any of its Affiliates has any Liability, except as expressly set forth in Section 6.14(e) and Section 6.14(f)Seller Parties;
(g) other than as set forth in the CBAs applicable to employees of IP Agreement, the Acquired Stores GENPATH® and Distribution CentersINSIGHTDX® trademarks;
(h) all personnel files and records, other than those expressly included Equity Interests in the Purchased AssetsSeller Parent’s Subsidiaries;
(i) all Tax assets of the Company and its Affiliates (including any and all credits or deposits in respect of Taxes, net operating loss carryforwards, and refunds of Taxes for which the Company is liable pursuant to Section 2.2(d), Section 2.6(d) or Section 6.4 or otherwise with respect to any periods (or portions thereof) ending on or prior to the Closing (or the applicable Subsequent Closing or Distribution Center Closing)), other than as set forth in Section 1.1(k) above4KScore prostate cancer test;
(j) all Tax Returns and other Tax-related documents or information of the Company or its Affiliates not relating to the Acquired Stores;
(k) any Contract to which the Company or any of its Affiliates is a party other than the Assumed Contracts;
(l) except for the Purchased Intellectual Property, the Intellectual Property used or owned by the Company or any of its Affiliates (including the name and ▇▇▇▇ “Rite Aid” or the “Rite Aid” logo, or any name or ▇▇▇▇ comprised, including or derived from the foregoing or confusingly similar thereto);
(m) the historical customer data related to the Company’s Wellness+ program (except as set for in Section 1.1(l) above);
(n) except for the Software, databases, compilations and data, information technology systems, and technology expressly included in the Purchased Assets (including the Purchased Intellectual Property), all Software, databases, compilations and data, information technology services, and technology owned or used by the Company or any of its Affiliates, including the Software, databases, compilations and data, information technology systems, and technology set forth on Section 1.2(n) of the Company Disclosure Schedules;
(o) any of the machinery, equipment, vehicles, furniture and other personal property leased by the Company or any of its Affiliates under a Contract;
(p) any equity interests owned by the Company and its Affiliates of the entity or entities that own any assets related to the in-store clinics;
(q) any pin pads and the encryption codes related thereto;
(r) all assets exclusively related to the in-store clinics;
(s) to the extent related to Excluded Liabilities, all rights, claims or causes of action against third parties relating to the assets, properties, business or operations of the Acquired Stores, the Distribution Centers or other Purchased Assets or to the Assumed Liabilities, arising out of events or transactions occurring, or facts or circumstances existing, prior to or on the Closing Date (or the applicable Subsequent Closing Date or the Distribution Center Closing, as applicable);
(t) to the extent related to Excluded Liabilities, all guarantees, warranties and indemnities related to the ownership or operation of the Purchased Assets prior to or on the Closing (or the applicable Subsequent Closing or the Distribution Center Closing, as applicable); and
(u) the assets set forth on Section 1.2(uSchedule B; and
(k) any other asset of the Company Disclosure SchedulesSeller Parties or their Affiliates that is not a Purchased Asset.
Appears in 1 contract
Excluded Assets. Notwithstanding anything to the provisions of Section 1.1contrary contained in this Agreement, the Purchased Assets shall not include any following assets of the Companies or the Company Subsidiaries are not Purchased Assets and shall be retained by the applicable Company or any of its Affiliates other than the Purchased Assets, including the following Company Subsidiary (collectively, the “Excluded Assets”):
(a) all notes Cash, other than the Companies’ and accounts receivable generatedthe Company Subsidiaries’ rights to the amounts set forth in Sections 2.1(i), 2.1(t), 2.1(u) and 2.1(v) and as expressly set forth in Section 2.1(c);
(b) any cash, bank deposits and cash equivalents of the Company, other than the Purchased Cash;
(c) all insurance policies;
(d) all corporate minute books and stock transfer books and the corporate seal of the Company or its Affiliates, other than the books and records contemplated by Section 1.1(g);
(e) all equity interests in any joint venture or equity interests in any other Person held by the Company ’s or any of its Affiliates;
(f) all assets arising out of or relating to employee benefits or employee benefit or compensation plans, programs, agreements or arrangements maintained or contributed to (or formerly maintained or contributed to) by the Company or its Affiliates or with respect to which the Company or any of its Affiliates has any Liability, except as expressly set forth in Section 6.14(e) and Section 6.14(f);
(g) the CBAs applicable to employees of the Acquired Stores and Distribution Centers;
(h) all personnel files and records, other than those expressly included in the Purchased Assets;
(i) all Tax assets of the Company and its Affiliates (including any and all credits or deposits in respect of Taxes, net operating loss carryforwards, and refunds of Taxes for which the Company is liable pursuant to Section 2.2(d), Section 2.6(d) or Section 6.4 or otherwise with respect to any periods (or portions thereof) ending on or prior to the Closing (or the applicable Subsequent Closing or Distribution Center Closing)), other than as set forth in Section 1.1(k) above;
(j) all Tax Returns and other Tax-related documents or information of the Company or its Affiliates not relating to the Acquired Stores;
(k) any Contract to which the Company or any of its Affiliates is a party other than the Assumed Contracts;
(l) except for the Purchased Intellectual Property, the Intellectual Property used or owned by the Company or any of its Affiliates (including the name and ▇▇▇▇ “Rite Aid” or the “Rite Aid” logo, or any name or ▇▇▇▇ comprised, including or derived from the foregoing or confusingly similar thereto);
(m) the historical customer data related to the CompanySubsidiary’s Wellness+ program (except as set for in Section 1.1(l) above);
(n) except for the Software, databases, compilations and data, information technology systems, and technology expressly included in the Purchased Assets (including the Purchased Intellectual Property), all Software, databases, compilations and data, information technology services, and technology owned or used by the Company or any of its Affiliates, including the Software, databases, compilations and data, information technology systems, and technology set forth on Section 1.2(n) of the Company Disclosure Schedules;
(o) any of the machinery, equipment, vehicles, furniture and other personal property leased by the Company or any of its Affiliates under a Contract;
(p) any equity interests owned by the Company and its Affiliates of the entity or entities that own any assets related to the in-store clinics;
(q) any pin pads and the encryption codes related thereto;
(r) all assets exclusively related to the in-store clinics;
(s) to the extent related to Excluded Liabilities, all rights, claims or causes of action against third parties relating to the assets, properties, business or operations of any Company or any Company Subsidiary with respect to the Acquired Stores, Business that might arise in connection with the Distribution Centers discharge by the Companies or the Company Subsidiaries of the Excluded Liabilities;
(c) all contracts of insurance;
(d) the capital stock or other Purchased Assets equity interests of each Company and its Subsidiaries, any capital stock or to other equity interests owned by any Company or any Subsidiary of any Company (other than capital stock or other equity interests of any Specified Entity or of BHI) and all minute books, stock transfer books and the Assumed Liabilities, arising out corporate seal of events or transactions occurring, or facts or circumstances existing, prior to or each Company and its Subsidiaries;
(e) the assets listed on Schedule 2.2(e) and the Closing Date Contracts primarily related thereto (or the applicable Subsequent Closing Date or the Distribution Center Closing, as applicable“Specifically Excluded Assets”);
(tf) any receivables or other assets as between any Company, on the one hand, and any of its Affiliates, on the other hand;
(g) except as expressly set forth in Section 2.1(q), all books and records (including purchase orders and invoices, sales orders and sales order log books, credit and collection records, correspondence and miscellaneous records with respect to customers and supply sources, and all other general correspondence, including all data and other information stored on discs, tapes or other media) relating to sales and construction of homes closed by the Companies prior to the extent Closing Date;
(h) the information technology systems and equipment, including hardware, software and servers and telephone and telephone facsimile numbers and other directory listings, set forth on Schedule 2.2(h) (the “Excluded IT Assets”);
(i) the prepaid expenses (including deposits) and other current assets specifically shown as “Retained by the Companies” in Item 7 and Item 8 of Exhibit B;
(j) all Tax Returns of the Companies and the Company Subsidiaries and all books, documents or records related to Excluded LiabilitiesTaxes of any Company or any Company Subsidiary;
(k) all Tax assets or attributes of any Company or any Company Subsidiary, including refunds;
(l) any employee-related or employee benefit-related files or records;
(m) the Company Plans and all guaranteesother employee benefit plans, warranties programs, arrangements and indemnities agreements, and any trusts, assets, properties or rights under or related thereto;
(n) the Owned Office Space;
(o) any asset of the Companies or the Company Subsidiaries that primarily relates to any Delayed Transfer Property (unless and until such time as such Delayed Transfer Property is ultimately transferred to the ownership or operation of the Purchased Assets prior to or on the Closing (or the applicable Subsequent Closing or the Distribution Center Closing, as applicableBuyer in accordance herewith); and
(up) the assets set forth on Section 1.2(u) any rights of the Company Disclosure SchedulesCompanies created under this Agreement.
Appears in 1 contract
Excluded Assets. Notwithstanding the provisions of Section 1.1foregoing, the Purchased Assets shall not include any assets of the Company or any of its Affiliates other than the Purchased Assets, including the following (collectively, the “Excluded Assets”):
(a) all notes rights of the Operating Companies, the ESOP, the ESOP Trust, and accounts receivable generatedthe ESOP Trustee under this Agreement and the Operative Documents;
(b) any cash, bank deposits and cash equivalents all Excess Cash of the Company, other than the Purchased CashJamestown;
(c) all insurance policiesCash and Cash Equivalents at the Operating Companies;
(d) all corporate minute books rights, assets, interests and stock transfer books and obligations under the corporate seal of the Company or its Affiliates, other than the books and records contemplated by Plans except as otherwise provided in Section 1.1(g)7.13 hereof;
(e) all equity interests in personnel, employment, and benefit records that relate to any joint venture or equity interests in any other Person held by the former employee of an Operating Company or any of its Affiliatesthat is not a Transferred Employee;
(f) all assets arising out of or relating to employee benefits or employee benefit or compensation plans, programs, agreements or arrangements maintained or contributed to (or formerly maintained or contributed to) by the Company or its Affiliates or with respect insurance policies to which the any Company or any of its Affiliates has any Liability, except as is a party that are not expressly set forth in Section 6.14(e) and Section 6.14(f)assumed by Buyer;
(g) the CBAs applicable any insurance claims or rights to employees of the Acquired Stores and Distribution Centersunpaid insurance proceeds;
(h) all personnel files and recordsany Contract with any of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, the ESOP, the ESOP Trust, the ESOP Trustee, or any Affiliate of the same, other than those expressly included in (i) the Purchased AssetsLeases and (ii) the existing employment agreement with ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ to be modified and assigned pursuant to Section 8.1(v) hereof;
(i) all Tax assets of the Company corporate charter, qualifications to conduct business as a foreign corporation, arrangements with registered agents relating to foreign qualifications, taxpayer and its Affiliates (including any other identification numbers, seals, minute books, stock transfer books, blank stock certificates, issued and all credits or deposits in respect of Taxes, net operating loss carryforwardsoutstanding stock, and refunds of Taxes for which the Company is liable pursuant to Section 2.2(d), Section 2.6(d) or Section 6.4 or otherwise with respect to any periods (or portions thereof) ending on or prior other documents relating to the Closing (organization, maintenance, existence and ownership of any Operating Company or the applicable Subsequent Closing or Distribution Center Closing)), other than as set forth in Section 1.1(k) aboveDefunct Subsidiary;
(j) all Tax Returns and other Tax-related documents or information any obligation of the an Operating Company or its Affiliates not relating to Defunct Subsidiary in connection with the Acquired Storesdissolution of any such Defunct Subsidiary;
(k) any Contract to which the Company or any of its Affiliates is a party other than the Assumed Contracts;; and
(l) except any security deposits held by vendors or landlords under the Assumed Contracts, or the right to receive any reimbursement for the Purchased Intellectual Property, the Intellectual Property used or owned operating expenses paid by the Company Operating Companies in connection with Leases, unless such security deposit or any of its Affiliates (including right is included as an asset in calculating the name and ▇▇▇▇ “Rite Aid” or the “Rite Aid” logo, or any name or ▇▇▇▇ comprised, including or derived from the foregoing or confusingly similar thereto);
(m) the historical customer data related to the Company’s Wellness+ program (except as set for in Section 1.1(l) above);
(n) except for the Software, databases, compilations and data, information technology systems, and technology expressly included in the Purchased Assets (including the Purchased Intellectual Property), all Software, databases, compilations and data, information technology services, and technology owned or used by the Company or any of its Affiliates, including the Software, databases, compilations and data, information technology systems, and technology set forth on Section 1.2(n) of the Company Disclosure Schedules;
(o) any of the machinery, equipment, vehicles, furniture and other personal property leased by the Company or any of its Affiliates under a Contract;
(p) any equity interests owned by the Company and its Affiliates of the entity or entities that own any assets related to the in-store clinics;
(q) any pin pads and the encryption codes related thereto;
(r) all assets exclusively related to the in-store clinics;
(s) to the extent related to Excluded Liabilities, all rights, claims or causes of action against third parties relating to the assets, properties, business or operations of the Acquired Stores, the Distribution Centers or other Purchased Assets or to the Assumed Liabilities, arising out of events or transactions occurring, or facts or circumstances existing, prior to or on the Closing Date (or the applicable Subsequent Closing Date or the Distribution Center Closing, as applicable);
(t) to the extent related to Excluded Liabilities, all guarantees, warranties and indemnities related to the ownership or operation of the Purchased Assets prior to or on the Closing (or the applicable Subsequent Closing or the Distribution Center Closing, as applicable); and
(u) the assets set forth on Section 1.2(u) of the Company Disclosure SchedulesNet Operating Working Capital.
Appears in 1 contract
Excluded Assets. Notwithstanding anything to the provisions of contrary set forth in Section 1.12.1(a) or elsewhere in this Agreement, the Purchased Acquiror expressly understands and agrees that the following assets, properties, leases, rights, interests, Contracts and claims of the Company and its Subsidiaries (collectively, the “Excluded Assets”) shall be retained by the Company and its Subsidiaries, and shall be excluded from the Transferred Assets:
(i) (A) except as set forth in Section 2.1(a)(v), all cash and cash equivalents (including marketable securities and short-term investments) held by the Company or any of its Subsidiaries or held by any bank or other third Person on the Company’s and its Subsidiaries’ behalf or for their benefit, and (B) all bank accounts;
(ii) all of the equity interests in the Company or any of its Affiliates or any other Person in which the Company or any of its Affiliates holds or owns any equity interests (including Harsco Industrial Air-X-Changers Pty. Ltd.);
(iii) all right, title and interest in and to (A) subject to Section 5.15, the Company Marks, and (B) all Intellectual Property and IT Assets shall other than the Transferred IP;
(iv) all Tax Returns and all claims, refunds, credits or prepayments, in each case, with respect to the Pre-Closing Tax Period in respect of Taxes of the Company or any of its Subsidiaries or relating to the operation of the Business or the Transferred Assets;
(v) except for the Assumed Company Plans, all Company Plans and any trusts and other assets related thereto;
(vi) all policies of or agreements for insurance, interests in insurance pools and programs and all insurance proceeds received or receivable to the extent arising out of or related to any Excluded Assets or Excluded Liabilities;
(vii) except as expressly contemplated by Section 2.1(a)(vi), all rights, claims, credits, defenses, causes of action (including counterclaims) and all other rights to bring any Action at law or in equity relating to any period through or following the Closing to the extent arising out of or relating to any Excluded Asset or Excluded Liability;
(viii) any interest or right of the Company or any of its Subsidiaries under this Agreement and the Ancillary Agreements and any other documents, instruments or certificates executed in connection with this Agreement and the Ancillary Agreements and the transactions contemplated hereby and thereby;
(ix) personnel and employment records for current or former employees and individual independent contractors of the Business, other than the Transferred Employee Records;
(x) all assets, properties, leases, rights, interests, Contracts and claims of the Company or any of its Subsidiaries that are not include Related to the Business, wherever located, whether tangible or intangible, real, personal or mixed;
(xi) all assets, properties, leases, rights, interests, Contracts and claims of Harsco Industrial Air-X-Changers Pty. Ltd.;
(xii) inter-company Receivables from the Company or any assets of its Subsidiaries;
(xiii) except for the Books and Records, (A) all corporate minute books (and other similar corporate or other governance related records) and stock records of the Company or any of its Subsidiaries, (B) any books and records relating to the Excluded Assets or Excluded Liabilities, (C) any books, records or other materials that the Company or any of its Subsidiaries (x) is required by applicable Law to retain (copies of which, to the extent permitted by applicable Law, will be made available to the Acquiror upon the Acquiror’s reasonable request), (y) reasonably believes are necessary to enable the Company or any of its Subsidiaries to prepare and/or file Tax Returns (copies of which, to the extent permitted applicable Law, will be made available to the Acquiror upon the Acquiror’s reasonable request) or (z) is prohibited by applicable Law from delivering or making available to the Acquiror;
(xiv) any interest or right of the Company or any of its Affiliates other than resulting from the Purchased Assets, including Action disclosed in Section 2.1(b)(xiv) of the following Disclosure Schedule (collectively, the “Excluded AssetsRetained Litigation”):
(a) all notes and accounts receivable generated;
(b) any cash, bank deposits and cash equivalents of the Company, other than the Purchased Cash;
(c) all insurance policies;
(d) all corporate minute books and stock transfer books and the corporate seal of the Company or its Affiliates, other than the books and records contemplated by Section 1.1(g);
(exv) all equity interests in any joint venture or equity interests in any other Person held assets disposed of by the Company or any of its AffiliatesSubsidiaries following the date of this Agreement to the extent such dispositions are not in violation of this Agreement;
(fxvi) all assets arising out of or relating the rights under Shared Contracts to employee benefits or employee benefit or compensation plans, programs, agreements or arrangements maintained or contributed the extent not transferred to (or formerly maintained or contributed to) by the Company Acquiror or its Affiliates in accordance with Section 5.5;
(xvii) the rights under the IT Asset Contracts to the extent not transferred to the Acquiror or with respect its Affiliates; and
(xviii) the assets listed or described on Section 2.1(b)(xviii) of the Disclosure Schedule. Notwithstanding anything to which the Company contrary set forth in this Agreement or any of its Affiliates has any Liabilitythe Ancillary Agreements, except as expressly set forth in Section 6.14(e) the Acquiror acknowledges and Section 6.14(f);
(g) the CBAs applicable to employees agrees that all of the Acquired Stores and Distribution Centers;
(h) all personnel files and records, other than those expressly included in following shall remain the Purchased Assets;
(i) all Tax assets property of the Company and its Affiliates (including any and all credits or deposits in respect of Taxes, net operating loss carryforwardsAffiliates, and refunds of Taxes for which neither the Company is liable pursuant to Section 2.2(d), Section 2.6(d) or Section 6.4 or otherwise with respect to any periods (or portions thereof) ending on or prior to the Closing (or the applicable Subsequent Closing or Distribution Center Closing)), other than as set forth in Section 1.1(k) above;
(j) all Tax Returns and other Tax-related documents or information of the Company or its Affiliates not relating to the Acquired Stores;
(k) any Contract to which the Company or Acquiror nor any of its Affiliates is a party other than the Assumed Contracts;
(l) except for the Purchased Intellectual Property, the Intellectual Property used shall have any interest therein: all records and reports prepared or owned received by the Company or any of its Affiliates (including in connection with the name sale of the Business and ▇▇▇▇ “Rite Aid” or the “Rite Aid” logo, or any name or ▇▇▇▇ comprisedtransactions contemplated hereby, including or derived from the foregoing or confusingly similar thereto);
(m) the historical customer data related to the Company’s Wellness+ program (except as set for in Section 1.1(l) above);
(n) except for the Software, databases, compilations and data, information technology systems, and technology expressly included in the Purchased Assets (including the Purchased Intellectual Property), all Software, databases, compilations and data, information technology services, and technology owned or used by the Company or any of its Affiliates, including the Software, databases, compilations and data, information technology systems, and technology set forth on Section 1.2(n) of the Company Disclosure Schedules;
(o) any of the machinery, equipment, vehicles, furniture and other personal property leased by the Company or any of its Affiliates under a Contract;
(p) any equity interests owned by the Company and its Affiliates of the entity or entities that own any assets related to the in-store clinics;
(q) any pin pads and the encryption codes related thereto;
(r) all assets exclusively related to the in-store clinics;
(s) to the extent related to Excluded Liabilities, all rights, claims or causes of action against third parties analyses relating to the assets, properties, business or operations of the Acquired Stores, the Distribution Centers or other Purchased Assets or to the Assumed Liabilities, arising out of events or transactions occurring, or facts or circumstances existing, prior to or on the Closing Date (Business or the applicable Subsequent Closing Date Acquiror so prepared or the Distribution Center Closing, as applicable);
(t) to the extent related to Excluded Liabilities, all guarantees, warranties and indemnities related to the ownership or operation of the Purchased Assets prior to or on the Closing (or the applicable Subsequent Closing or the Distribution Center Closing, as applicable); and
(u) the assets set forth on Section 1.2(u) of the Company Disclosure Schedulesreceived.
Appears in 1 contract
Excluded Assets. Notwithstanding anything to the provisions contrary contained in Section 2.1(a) of Section 1.1this Agreement, the Purchased Assets shall not include any following assets of the Company or any are not part of its Affiliates other than the Purchased sale and purchase contemplated hereunder, are excluded from the Assets, including shall remain the following property of the Company after the Closing and shall not be purchased or assumed by the Purchaser (collectively, the “"Excluded Assets”):
"): (aA) cash and cash equivalents, (B) all notes property and assets of the BPS Division that were not historically used or required, in any material respect, for the Business, including (aa) accounts receivable of the BPS Division and accounts receivable generated;
of the Company not associated with the IM Division, (bbb) any cashproperty, bank deposits plant and cash equivalents equipment and other tangible personal property, (cc) Intellectual Property and other intangible assets necessary or useful in the operation of the Company or the BPS Division, (dd) Permits of the Company, other than the Purchased Cash;
(c) all insurance policies;
(d) all corporate minute books and stock transfer books and the corporate seal excluding those of the Company or its AffiliatesIM Division, other than (ee) the rights and benefits of and under all Operating Contracts, (ff) the documents, books and records contemplated by Section 1.1(g);
(e) all equity interests in any joint venture or equity interests in any other Person held by the Company or any of its Affiliates;
(f) all assets arising out of or relating to employee benefits or employee benefit or compensation plans, programs, agreements or arrangements maintained or contributed to (or formerly maintained or contributed to) by the Company or its Affiliates or with respect to which the Company or any of its Affiliates has any Liability, except as expressly set forth in Section 6.14(e) and Section 6.14(f);
(g) the CBAs applicable to employees of the Acquired Stores and Distribution Centers;
(h) all personnel files and records, other than those expressly included in the Purchased Assets;
(i) all Tax assets of the Company and its Affiliates the BPS Division in any form and which are not wholly associated with the IM Division, (C) deferred income Taxes and credits of the Company, (D) prepaid assets associated with the BPS Division, including any insurance and all credits rights in and ownership of insurance policies of the Company, (E) any claims and actions by the Company against the officers and directors of the Company, (F) any non- transferable Permits and Permits associated with the BPS Division that were not historically used or deposits required (excluding general business licenses of the Company), in respect any material respect, for the Business, (G) all Benefit Plans of Taxesthe Company, net operating loss carryforwards(H) the Company's Tax returns and financial statements, and associated workpapers, and all claims for refunds of Taxes for which and other fees and charges of a Governmental Body, (I) any shares of capital stock of the Company is liable pursuant Company, (J) the corporate charter and other similar records of the Company, (K) the Company's qualifications to Section 2.2(d)conduct business, Section 2.6(d) or Section 6.4 or otherwise arrangements with respect to any periods (or portions thereof) ending on or prior registered agents, taxpayer and other identification numbers, seals, minute books, stock transfer books, and other documents relating to the Closing organization, maintenance and existence of the Company, (or the applicable Subsequent Closing or Distribution Center Closing)), other than as set forth in Section 1.1(k) above;
(jL) all Tax Returns and other Tax-related documents or information corporate names of the Company (other than the corporate names "Teltech," "Teltech Resources" or its Affiliates not a similar iteration of the use of the name "Teltech"), telephone, telex and telephone facsimile numbers and other directory listings and internet and other electronic addresses (other than "▇▇▇▇▇▇▇.▇▇▇" and "▇▇▇▇▇▇.▇▇▇"), (M) all sales, promotion, advertising, and marketing materials of whatever form or nature owned or licensed by or to the Company relating to the Acquired Stores;
(k) any Contract to which BPS Division or the Company or any of its Affiliates is a party other than the Assumed Contracts;
(l) except for the Purchased Intellectual Propertygenerally, the Intellectual Property used or owned by the Company or any of its Affiliates (including the name and ▇▇▇▇ “Rite Aid” or the “Rite Aid” logo, or any name or ▇▇▇▇ comprised, including or derived from the foregoing or confusingly similar thereto);
(m) the historical customer data related but excluding such that relates to the Business, (N) all goodwill of the Company’s Wellness+ program (except as set for in Section 1.1(l) above);
(n) except for the Software, databases, compilations and data, information technology systems, and technology expressly included in the Purchased Assets (including the Purchased Intellectual Property), all Software, databases, compilations and data, information technology services, and technology owned or used by the Company or any of its Affiliates, including the SoftwareBPS Division, databasesthat is not the goodwill of the IM Division, compilations and data, information technology systems(O) those other assets listed on Schedule 2.1(a)(ii), and technology set forth on Section 1.2(n(P) any rights of the Company Disclosure Schedules;
(o) any of the machinery, equipment, vehicles, furniture and other personal property leased by the Company or any of its Affiliates under a Contract;
(p) any equity interests owned by the Company and its Affiliates of the entity or entities that own any assets related to the in-store clinics;
(q) any pin pads this Agreement and the encryption codes related thereto;
(r) all assets exclusively related to the in-store clinics;
(s) to the extent related to Excluded Liabilities, all rights, claims or causes of action against third parties relating to the assets, properties, business or operations of the Acquired Stores, the Distribution Centers or other Purchased Assets or to the Assumed Liabilities, arising out of events or transactions occurring, or facts or circumstances existing, prior to or on the Closing Date (or the applicable Subsequent Closing Date or the Distribution Center Closing, as applicable);
(t) to the extent related to Excluded Liabilities, all guarantees, warranties and indemnities related to the ownership or operation of the Purchased Assets prior to or on the Closing (or the applicable Subsequent Closing or the Distribution Center Closing, as applicable); and
(u) the assets set forth on Section 1.2(u) of the Company Disclosure SchedulesAncillary Documents.
Appears in 1 contract
Excluded Assets. Notwithstanding At the provisions of Section 1.1Closing, the Purchased Assets shall Sellers are not include selling, assigning, transferring, conveying or delivering to Purchaser, and Purchaser is not purchasing, acquiring or accepting from Sellers, any assets of the Company Seller’s right, title or any of its Affiliates other than the Purchased Assets, including interest in or under the following (collectively, the “Excluded Assets”):
(a) all notes The parcels of real property commonly known as ▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇; ▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇; and accounts receivable generated▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇;
(b) any cash, bank deposits and cash equivalents The obligation in the principal amount of the $315,000 from Shareholder payable to ▇▇▇▇▇▇▇ Company, other than the Purchased Cash;
(c) all insurance policiesThe promissory note in the principal amount of $70,000 from I/D/E/A, Inc. payable to ▇▇▇▇▇▇▇ Company;
(d) all corporate minute books The capital stock of ▇▇▇▇▇▇▇ Special Markets and stock transfer books and the corporate seal of the Company or its Affiliates, other than the books and records contemplated by Section 1.1(g)▇▇▇▇▇▇▇ Signs;
(e) all equity interests This Agreement, including the Purchase Price, or the other agreements and instruments executed and delivered in any joint venture connection with this Agreement, including the Escrow Agreement, the Assumption Agreement, the Leases, the Persona Agreement, the ▇▇▇▇ of Sale, the Trademark Assignment Agreement and the Domain Name Transfer Agreement (collectively, the “Ancillary Agreements”), or equity interests in any other Person held by the Company transactions contemplated hereby or any of its Affiliatesthereby;
(f) all assets arising out Each Seller’s original minute books, stock records, corporate seals, corporate organizational records and records of or relating proceedings, and other corporate records having exclusively to employee benefits or employee benefit or compensation plans, programs, agreements or arrangements maintained or contributed to (or formerly maintained or contributed to) by the Company or its Affiliates or do with respect to which the Company or any of its Affiliates has any Liability, except as expressly set forth in Section 6.14(e) such Seller’s corporate organization and Section 6.14(f)capitalization;
(g) the CBAs applicable to employees of the Acquired Stores Each Seller’s original accounting ledgers and Distribution Centersbooks;
(h) all personnel files Each Seller’s original Tax filings and records, other than those expressly included in the Purchased AssetsTax Returns;
(i) all Tax Each Seller’s original banking and investment records and records relating to other finance matters;
(j) The Seller Benefit Plans (other than the Blue Cross Blue Shield of Illinois HMO, PPO and FDL (Term/AD&D) insurance plans (the “Assumed Benefit Plans”)), any assets of such plans and any related trust or other funding vehicle and any records relating thereto,;
(k) Each Seller’s original expense account records of employees;
(l) A certain Mercedes-Benz automobile (VIN#▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇) used by Shareholder;
(m) All tangible personal property (i) located at the Company residences of Shareholder in California and its Affiliates Nevada or (ii) Shareholder property kept in a designated location at Sellers’ facilities listed on Schedule 1.2(m)(ii) of the Schedule Letter;
(n) Any original records required by Law to be retained by Sellers;
(o) All of Sellers’ bank accounts and all cash on hand in Sellers’ bank accounts (including cash resulting from the clearance of checks deposited with any and all credits Seller prior to the Closing Date, whether or not such clearance occurs before, on or after the Closing Date) as of the close of business on the day immediately preceding the Closing Date;
(p) Each Seller’s income tax deposits in respect the aggregate amount reflected on Schedule 1.2(p) of Taxesthe Schedule Letter;
(q) Any insurance policy, net operating loss carryforwardsother than the Assumed Benefit Plans;
(r) Any employment agreement;
(s) Those certain oral license agreements relating to the matters covered by the Persona Agreement, and refunds of Taxes for which the Company is liable pursuant to Section 2.2(d), Section 2.6(d) or Section 6.4 or otherwise with respect to any periods (or portions thereof) ending were terminated on or prior to the Closing (or the applicable Subsequent Closing or Distribution Center Closing)), other than as set forth in Section 1.1(k) above;
(j) all Tax Returns and other Tax-related documents or information of the Company or its Affiliates not relating to the Acquired Stores;
(k) any Contract to which the Company or any of its Affiliates is a party other than the Assumed Contracts;
(l) except for the Purchased Intellectual Property, the Intellectual Property used or owned by the Company or any of its Affiliates (including the name and ▇▇▇▇ “Rite Aid” or the “Rite Aid” logo, or any name or ▇▇▇▇ comprised, including or derived from the foregoing or confusingly similar thereto);
(m) the historical customer data related to the Company’s Wellness+ program (except as set for in Section 1.1(l) above);
(n) except for the Software, databases, compilations and data, information technology systems, and technology expressly included in the Purchased Assets (including the Purchased Intellectual Property), all Software, databases, compilations and data, information technology services, and technology owned or used by the Company or any of its Affiliates, including the Software, databases, compilations and data, information technology systems, and technology set forth on Section 1.2(n) of the Company Disclosure Schedules;
(o) any of the machinery, equipment, vehicles, furniture and other personal property leased by the Company or any of its Affiliates under a Contract;
(p) any equity interests owned by the Company and its Affiliates of the entity or entities that own any assets related to the in-store clinics;
(q) any pin pads and the encryption codes related thereto;
(r) all assets exclusively related to the in-store clinics;
(s) to the extent related to Excluded Liabilities, all rights, claims or causes of action against third parties relating to the assets, properties, business or operations of the Acquired Stores, the Distribution Centers or other Purchased Assets or to the Assumed Liabilities, arising out of events or transactions occurring, or facts or circumstances existing, prior to or on the Closing Date (or the applicable Subsequent Closing Date or the Distribution Center Closing, as applicable);date hereof; and
(t) Any records relating exclusively to the extent related to Excluded Liabilities, all guarantees, warranties and indemnities related to the ownership or operation any of the Purchased Assets prior to or on the Closing (or the applicable Subsequent Closing or the Distribution Center Closing, as applicable); and
(u) the assets set forth on Section 1.2(u) of the Company Disclosure Schedulesforegoing.
Appears in 1 contract
Sources: Asset Purchase Agreement (New England Business Service Inc)
Excluded Assets. Notwithstanding the provisions foregoing or any other provision of Section 1.1this Agreement to the contrary, the Purchased Assets shall Company will retain and not include any assets of the Company transfer, and Delta will not purchase or any of its Affiliates other than the Purchased Assetsacquire, including the following (collectively, the “"Excluded Assets”"):
(a) Any and all notes Material Agreements that are not listed on Schedule 1.7(a)(i) (including, without limitation, all Leases other than Assumed Leases); any Contracts relating exclusively to any of the Excluded Assets or Excluded Liabilities; and accounts receivable generatedany employment contract or other agreement relating to compensation or severance payments with any director, officer, or employee;
(b) The Plans, the assets related thereto, and any cash, bank deposits and cash equivalents of the Company, other than the Purchased Cashrecords related thereto;
(c) all insurance policiesThe knitting, dyeing and finishing equipment and other assets of the Company described on Schedule 1.2(c);
(d) all corporate minute books and stock transfer books and Certain items of Distressed Inventory, to the corporate seal of the Company or its Affiliates, other than the books and records contemplated by extent set forth in Section 1.1(g1.5(f);
(e) all equity interests in any joint venture or equity interests in any other Person held by The minute books and corporate records of the Company or any of its AffiliatesCompany;
(f) all assets arising out of or relating to employee benefits or employee benefit or compensation plans, programs, agreements or arrangements maintained or contributed to (or formerly maintained or contributed to) by the Company or its Affiliates or with respect to which the Company or any of its Affiliates has any Liability, except as expressly set forth in Section 6.14(e) The accounts receivable and Section 6.14(fprepaid items listed on Schedule 1.5(a);
(g) the CBAs applicable to employees of the Acquired Stores and Distribution CentersThe insurance claims listed on Schedule 1.5(a);
(h) all personnel files and All books, records, files, manuals, and other than those expressly included materials (in any form or medium) relating to the Purchased Assetsemployees of the Company listed on Schedule 1.2(h) who will continue as employees of the Company after the Closing;
(i) all Tax assets All checks and drafts of the Company and its Affiliates (including any all of the Company's records and all credits or deposits in respect of Taxesfiles, net operating loss carryforwardsbanking records, Tax returns, accounting records and refunds of Taxes for which the Company is liable pursuant to Section 2.2(d), Section 2.6(d) or Section 6.4 or otherwise with respect to any periods (or portions thereof) ending on or prior such other similar books and records relating to the Closing (or the applicable Subsequent Closing or Distribution Center Closing)), other than as set forth in Section 1.1(k) aboveBusiness;
(j) all Tax Returns The items of yarn and other Tax-related documents or information of the Company or its Affiliates not relating to the Acquired Storesand greige fabric set forth on Schedule 1.2(j);
(k) All bank accounts, safe deposit boxes, checking accounts or other accounts of any Contract to which nature maintained by or on behalf of the Company or any of its Affiliates is a party other than the Assumed ContractsCompany;
(l) except for the Purchased Intellectual Property, the Intellectual Property used or owned by the Company or any of its Affiliates (including the name and ▇▇▇▇ “Rite Aid” or the “Rite Aid” logo, or any name or ▇▇▇▇ comprised, including or derived from the foregoing or confusingly similar thereto)The Company's rights under this Agreement;
(m) All indemnity and contribution rights granted to or owed by third parties to the historical customer data Company with respect to any Excluded Assets or Excluded Liabilities, and any and all rights or assets arising from and directly related to the Company’s Wellness+ program (except as set for in Section 1.1(l) above);defense, release, compromise, discharge or satisfaction by the Company of any liabilities and obligations relating thereto; and
(n) except for the Software, databases, compilations and data, information technology systems, and technology expressly included in the Purchased Assets (including the Purchased Intellectual Property), all Software, databases, compilations and data, information technology services, and technology owned or used by the Company or any of its Affiliates, including the Software, databases, compilations and data, information technology systems, and technology set forth on Section 1.2(n) All of the Company Disclosure Schedules;
(o) any of the machinery, equipment, vehicles, furniture and other personal property leased by the Company or any of its Affiliates under a Contract;
(p) any equity interests real estate owned by the Company and its Affiliates all of the entity or entities that own any assets related to the in-store clinics;
(q) any pin pads and the encryption codes related thereto;
(r) all assets exclusively related to the in-store clinics;
(s) to the extent related to Excluded Liabilities, all rights, claims or causes of action against third parties relating to the assets, properties, business or operations of the Acquired Stores, the Distribution Centers or other Purchased Assets or to the Assumed Liabilities, arising out of events or transactions occurring, or facts or circumstances existing, prior to or on the Closing Date (or the applicable Subsequent Closing Date or the Distribution Center Closing, as applicable);
(t) to the extent related to Excluded Liabilities, all guarantees, warranties and indemnities related to the ownership or operation of the Purchased Assets prior to or on the Closing (or the applicable Subsequent Closing or the Distribution Center Closing, as applicable); and
(u) the assets set forth on Section 1.2(u) of real properties leased by the Company Disclosure Schedulesother than the Leased Properties.
Appears in 1 contract
Excluded Assets. Notwithstanding the provisions purchase by Buyer of Section 1.1, the Purchased Assets shall not include any Equity Interests, Buyer acknowledges and agrees that the assets of the Company Purchased Companies and the Purchased Subsidiary shall not include, and Buyer shall not acquire or purchase, any of its Affiliates other than the Purchased Assets, including the following assets (collectively, the “Excluded Assets”):), it being agreed that any such Excluded Assets shall be assigned or transferred, prior to or substantially contemporaneously with the Closing, to one or more Sellers or their respective designees pursuant to Section 5.12:
(ai) the Seller Marks, and all notes and accounts receivable generated;
other Intellectual Property owned by Sellers or their respective Affiliates (b) any cash, bank deposits and cash equivalents of the Company, other than the Purchased Cash;
(c) all insurance policies;
(d) all corporate minute books and stock transfer books Companies and the corporate seal of the Company or its Affiliates, other than the books and records contemplated by Section 1.1(gPurchased Subsidiary);
(eii) all equity interests in any joint venture books and records which relate primarily to the Excluded Assets or equity interests in any other Person held by Retained Liabilities (the Company or any of its Affiliates;
(f) all assets arising out of or relating to employee benefits or employee benefit or compensation plans, programs, agreements or arrangements maintained or contributed to (or formerly maintained or contributed to) by the Company or “Excluded Books and Records”); provided that Buyer and its Affiliates or with respect shall be entitled to which access such Excluded Books and Records, to the Company or any of its Affiliates has any Liabilityextent related to the Business, except as expressly set forth in pursuant to Section 6.14(e) and Section 6.14(f5.04(c);
(giii) the CBAs applicable all files related to employees Taxes of the Acquired Stores and Distribution Centersany Seller;
(hiv) all personnel files and records, other than those expressly included in the Purchased Assets;
(i) all Tax assets insurance policies of the Company and its Sellers or their respective Affiliates (including any and all credits or deposits in rights with respect thereto which relate to the Business, including, for the avoidance of Taxesdoubt, net operating loss carryforwards, and refunds of Taxes for which the Company is liable pursuant to Section 2.2(d), Section 2.6(d) or Section 6.4 or otherwise with respect to any periods insurance assets arising from or related to (A) any Retained Liability, (B) any casualty loss to the extent remediated prior to the Closing or portions thereof(C) ending on or with respect to business interruption insurance coverage, any interruption period ended prior to the Closing (or collectively, the applicable Subsequent Closing or Distribution Center Closing)“Excluded Insurance Assets”), other than as set forth in each case of clauses (A) through (C), notwithstanding Section 1.1(k) above5.14;
(jv) all Tax Returns refunds, credits and other Tax-related documents or information of the Company or its Affiliates not similar benefits relating to the Acquired StoresTaxes of (x) any Seller or any of their respective Affiliates (other than the Purchased Companies and the Purchased Subsidiary) or (y) any Parent Group;
(kvi) all credit card terminals and virtual credit card terminals and all corporate credit cards and fuel cards issued to any Contract to which the Company or any of its Affiliates is a party other than the Assumed ContractsBusiness Employees;
(lvii) except for the Purchased Intellectual Property, the Intellectual Property used or owned by the Company or any of its Affiliates (including the name and all ▇▇▇▇▇ “Rite Aid” and other cash and cash equivalents on hand or in a bank that is not swept prior to or at the “Rite Aid” logo, or any name or ▇▇▇▇ comprised, including or derived from the foregoing or confusingly similar theretoClosing pursuant to Section 5.12(b);
(mviii) the historical customer data related National Accounts, except those rights expressly conferred to Buyer (or its Affiliates) pursuant to the Company’s Wellness+ program (except as set for in Section 1.1(l) above)Subcontract Agreement;
(nix) except all accounting software (Great Plains, Cognos, TM1), billing software, route management software (i.e., Trux/Tower/PC Scale), maintenance software (i.e., Dossier, TMT, M5), Workday Tablets, employee management software (i.e., Workday and Concorde for the Softwareemployee safety reports), databasescustomer relationship management software, compilations and datacustomer data entry workflow software (Laserfiche), information technology support systems, Goldtrack and technology expressly included in CEC environmental management systems, SKADA software, equipment firewalls, Agile time clocks and tablets, cellular phones (but not desk phones located at the Purchased Assets (including the Purchased Intellectual Real Property), all Softwaresoftware contained in or used in connection with GPS systems and on-truck technology, databasesGFL My Account, compilations Customer Connect & Payment Portal, GFL local website pages & GFL Connect website, Five9 systems and datacampaigns, information technology servicesuniforms, lockboxes, GFL email addresses, the GFL Customer care phone number and customer facing GFL central 1-800 numbers (including ▇-▇▇▇-▇▇▇-▇▇▇▇), and technology owned all other IT Systems owned, leased or used licensed by Sellers or their respective Affiliates (other than the Purchased Companies and the Purchased Subsidiary); provided, however, that the assets set forth in Schedule 1.01(b)(ix) shall not constitute Excluded Assets, and Seller Parent and Sellers shall, to the extent necessary, transfer and assign all such assets to a Purchased Company or any of its Affiliates, including the Software, databases, compilations and data, information technology systems, and technology set forth on Section 1.2(n) of Purchased Subsidiary prior to or at the Company Disclosure SchedulesClosing;
(ox) any (A) the Non-Active Accounts and (B) all Accounts Receivable in respect of the machinery, equipment, vehicles, furniture and other personal property leased by the Company or any of its Affiliates under a ContractNon-Active Accounts;
(pxi) the GFL Benefit Plans and any equity interests owned by the Company related trusts, insurance contracts, services agreements or other similar agreements or arrangements and its Affiliates of the entity or entities that own any all assets related to the in-store clinics;
(q) any pin pads and the encryption codes related thereto;
(r) all assets exclusively related to the in-store clinics;
(s) to the extent related to Excluded Liabilities, all rights, claims or causes of action against third parties relating to the assets, properties, business or operations of the Acquired Stores, the Distribution Centers or other Purchased Assets or to the Assumed Liabilities, arising out of events or transactions occurring, or facts or circumstances existing, prior to or on the Closing Date (or the applicable Subsequent Closing Date or the Distribution Center Closing, as applicable);
(t) to the extent related to Excluded Liabilities, all guarantees, warranties and indemnities related to the ownership or operation of the Purchased Assets prior to or on the Closing (or the applicable Subsequent Closing or the Distribution Center Closing, as applicable); and
(uxii) that certain Lease Agreement, dated June 3, 2021, by and between 1550 Pond Road, LP and, formerly, County Waste of Pennsylvania, LLC, which has been assigned to another Affiliate of Seller Parent that is not a Purchased Company or the assets set forth on Section 1.2(u) of the Company Disclosure SchedulesPurchased Subsidiary.
Appears in 1 contract
Sources: Equity Purchase Agreement (Casella Waste Systems Inc)
Excluded Assets. Notwithstanding Section 1.2 or anything to the provisions of Section 1.1contrary in this Agreement, the Purchased Assets shall not include any following assets of Seller, whether or not related to the Company or any of its Affiliates other than the Purchased Assets, including the following Business (collectively, the “Excluded Assets”):), shall be excluded from the definition of Purchased Assets and retained by Seller:
(a) Except for Prepayments (subject to Section 1.2(j)) and Customer Prepayments, all bank accounts, cash, cash equivalents and marketable securities and notes and accounts receivable generatedreceivable, including all rights to any amounts received by or on behalf of Seller in any lock-box or depository account, as of the Closing Date (collectively, “Retained Cash”);
(b) any cash, bank deposits and cash equivalents of the Company, other than the Purchased CashIPT Receivable;
(c) all insurance policies;
(d) all corporate minute books refunds and stock transfer books and the corporate seal of the Company or its Affiliates, other than the books and records contemplated by Section 1.1(g);
(e) all equity interests in any joint venture or equity interests in any other Person held by the Company or any of its Affiliates;
(f) all assets arising out of or relating rights to employee benefits or employee benefit or compensation plans, programs, agreements or arrangements maintained or contributed to (or formerly maintained or contributed to) by the Company or its Affiliates or with respect to which the Company or any of its Affiliates has any Liability, except as expressly set forth in Section 6.14(e) and Section 6.14(f);
(g) the CBAs applicable to employees of the Acquired Stores and Distribution Centers;
(h) all personnel files and records, other than those expressly included in the Purchased Assets;
(i) all Tax assets of the Company and its Affiliates (including any and all credits or deposits in respect of Taxes, net operating loss carryforwards, and refunds of any Taxes for which the Company is liable pursuant to Section 2.2(d), Section 2.6(d) or Section 6.4 or otherwise with respect to any all periods (or portions thereof) ending on or prior to the Closing Date and all Tax Returns with respect to such periods;
(d) the articles of incorporation, by-laws, minute books, stock transfer records and other corporate records of Seller;
(e) any Records that Seller is required by Applicable Law to retain, subject to Section 1.2(h);
(f) all Contracts that are not Assumed Contracts;
(g) all Prepayments listed on Schedule 1.3(g);
(h) except as provided in Section 1.2(g) and Section 1.2(n), any rights and claims of Seller, whether known or unknown, absolute or contingent, matured or unmatured, against third parties whether in tort, contract, or contingent, or otherwise, which (i) do not relate in any way to the Purchased Assets or the applicable Subsequent Business, (ii) are made under the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any of Sections 544, 547, 548, 549 and 550 of the Bankruptcy Code (iii) are against the Lenders or (iv) are against any directors, officers and/or employees of Seller relating to actions or failures to act at any time on or prior to the Closing or Distribution Center Closing)Date, including with respect to any notes receivable from any officer, director and/or employee;
(i) except as provided in Section 1.2(m), other than as set forth all insurance policies and benefits thereunder, including all refunds, all proceeds and all claims against officers and directors acting in Section 1.1(k) abovesuch capacity, and directors and officers insurance policies (collectively, “Seller Insurance Policies”);
(j) all Tax Returns intercompany claims and other Tax-related documents receivables of Seller against companies that own, are owned by or information of the Company or its Affiliates not relating to the Acquired Storesare under common ownership with Seller;
(k) any Contract to which the Company or any all other assets of its Affiliates is a party other than the Assumed Contracts;Seller not listed as Purchased Assets; and
(l) except for the Purchased Intellectual Property, the Intellectual Property used or owned by the Company or any all rights of its Affiliates (including the name and ▇▇▇▇ “Rite Aid” or the “Rite Aid” logo, or any name or ▇▇▇▇ comprised, including or derived from the foregoing or confusingly similar thereto);
(m) the historical customer data related to the Company’s Wellness+ program (except as set for in Section 1.1(l) above);
(n) except for the Software, databases, compilations and data, information technology systems, and technology expressly included in the Purchased Assets (including the Purchased Intellectual Property), all Software, databases, compilations and data, information technology services, and technology owned or used by the Company or any of its Affiliates, including the Software, databases, compilations and data, information technology systems, and technology set forth on Section 1.2(n) of the Company Disclosure Schedules;
(o) any of the machinery, equipment, vehicles, furniture and other personal property leased by the Company or any of its Affiliates Seller under a Contract;
(p) any equity interests owned by the Company and its Affiliates of the entity or entities that own any assets related to the in-store clinics;
(q) any pin pads and the encryption codes related thereto;
(r) all assets exclusively related to the in-store clinics;
(s) to the extent related to Excluded Liabilities, all rights, claims or causes of action against third parties relating to the assets, properties, business or operations of the Acquired Stores, the Distribution Centers or other Purchased Assets or to the Assumed Liabilities, arising out of events or transactions occurring, or facts or circumstances existing, prior to or on the Closing Date (or the applicable Subsequent Closing Date or the Distribution Center Closing, as applicable);
(t) to the extent related to Excluded Liabilities, all guarantees, warranties and indemnities related to the ownership or operation of the Purchased Assets prior to or on the Closing (or the applicable Subsequent Closing or the Distribution Center Closing, as applicable); and
(u) the assets set forth on Section 1.2(u) of the Company Disclosure Schedulesthis Agreement.
Appears in 1 contract
Sources: Asset Purchase and Sale Agreement (Robotic Vision Systems Inc)
Excluded Assets. Notwithstanding the provisions of Section 1.1, the Purchased The Excluded Assets shall not include any assets consist of the Company or any of its Affiliates other than the Purchased Assets, including the following (collectively, the “Excluded Assets”):following:
(a) In each case determined as of 11:59 p.m. on the day prior to the Closing Date, the cash on hand of any member of the Selling Group and all other cash in any of the bank or savings accounts of any member of the Selling Group; notes receivable, letters of credit or other similar items of any member of the Selling Group; any stocks, bonds, certificates of deposit and accounts receivable generatedsimilar investments of any member of the Selling Group; and any other cash equivalents of any member of the Selling Group;
(b) Partnership or corporate books and other books and records of any cash, bank deposits and cash equivalents member of the Company, Selling Group relating solely to internal partnership or corporate matters and any other than books and records not related to any Station or the Purchased Cashbusiness or operations of any Station;
(c) all insurance policiesAny claims, rights and interest of any member of the Selling Group in and to any (i) refunds of Taxes or fees of any nature whatsoever or (ii) deposits or utility deposits, which in each case relate solely to the period prior to the Closing Date;
(d) All insurance contracts, including the cash surrender value thereof, and all corporate minute books and stock transfer books and the corporate seal insurance proceeds or claims made by any member of the Company Selling Group relating to property or its Affiliatesequipment repaired, other than replaced or restored by Seller prior to the books and records contemplated by Section 1.1(g)Closing Date;
(e) All Employee Benefit Plans and all equity interests assets or funds held in any joint venture trust, or equity interests otherwise, associated with or used in any other Person held by connection with the Company or any of its AffiliatesEmployee Benefit Plans;
(f) all assets arising out All Choses in Action, if any, of or relating to employee benefits or employee benefit or compensation plans, programs, agreements or arrangements maintained or contributed to (or formerly maintained or contributed to) by any member of the Company or its Affiliates or with respect to which the Company or any of its Affiliates has any Liability, except as expressly set forth in Selling Group excluded from Section 6.14(e) and Section 6.14(f2.1(j);
(g) the CBAs applicable to employees of the Acquired Stores and Distribution CentersAll Accounts Receivable;
(h) all personnel files and recordsThe assets, other than those expressly included in the Purchased Assetsif any, described on Schedule 2.2(h);
(i) all Tax assets All tangible and intangible personal property disposed of or consumed in the Company ordinary course of business between the date of this Agreement and its Affiliates the Closing Date, or as otherwise permitted under the terms hereof; and
(including any j) Any Contracts not included in the Assumed Contracts and all credits Contracts that have terminated or deposits in respect of Taxes, net operating loss carryforwards, and refunds of Taxes for which the Company is liable pursuant to Section 2.2(d), Section 2.6(d) or Section 6.4 or otherwise with respect to any periods (or portions thereof) ending on or expired prior to the Closing (or the applicable Subsequent Closing or Distribution Center Closing)), other than as set forth in Section 1.1(k) above;
(j) all Tax Returns and other Tax-related documents or information of the Company or its Affiliates not relating to the Acquired Stores;
(k) any Contract to which the Company or any of its Affiliates is a party other than the Assumed Contracts;
(l) except for the Purchased Intellectual Property, the Intellectual Property used or owned by the Company or any of its Affiliates (including the name and ▇▇▇▇ “Rite Aid” or the “Rite Aid” logo, or any name or ▇▇▇▇ comprised, including or derived from the foregoing or confusingly similar thereto);
(m) the historical customer data related to the Company’s Wellness+ program (except as set for in Section 1.1(l) above);
(n) except for the Software, databases, compilations and data, information technology systems, and technology expressly included in the Purchased Assets (including the Purchased Intellectual Property), all Software, databases, compilations and data, information technology services, and technology owned or used by the Company or any of its Affiliates, including the Software, databases, compilations and data, information technology systems, and technology set forth on Section 1.2(n) of the Company Disclosure Schedules;
(o) any of the machinery, equipment, vehicles, furniture and other personal property leased by the Company or any of its Affiliates under a Contract;
(p) any equity interests owned by the Company and its Affiliates of the entity or entities that own any assets related to the in-store clinics;
(q) any pin pads and the encryption codes related thereto;
(r) all assets exclusively related to the in-store clinics;
(s) to the extent related to Excluded Liabilities, all rights, claims or causes of action against third parties relating to the assets, properties, business or operations of the Acquired Stores, the Distribution Centers or other Purchased Assets or to the Assumed Liabilities, arising out of events or transactions occurring, or facts or circumstances existing, prior to or on the Closing Date (or the applicable Subsequent Closing Date or the Distribution Center Closing, as applicable);
(t) to the extent related to Excluded Liabilities, all guarantees, warranties and indemnities related to the ownership or operation of the Purchased Assets prior to or on the Closing (or the applicable Subsequent Closing or the Distribution Center Closing, as applicable); and
(u) the assets set forth on Section 1.2(u) of the Company Disclosure SchedulesDate.
Appears in 1 contract
Sources: Asset Purchase Agreement (Capstar Broadcasting Partners Inc)
Excluded Assets. Notwithstanding the provisions of Section 1.11.1 or any other provision hereof, the Purchased Acquired Assets shall will not in any event include any assets of the Company or following Assets of any member of its Affiliates other than the Purchased Assets, including the following Seller Group (collectively, the “Excluded Assets”):
(a) all notes books and accounts receivable generatedrecords not constituting an Acquired Asset described in Section 1.1(h), including the certificate of incorporation, bylaws and similar organizational documents, minutes, stock records and similar documents of any member of the Seller Group;
(b) any all cash, bank deposits and cash equivalents (including marketable securities and short-term investments), bank accounts, lockboxes and deposits of, and any rights or interests in, the cash management system of any member of the CompanySeller Group, other than including uncleared checks and drafts received or deposited for the Purchased Cashaccount of any member of the Seller Group;
(c) all insurance policiesrights to and the use of any member of the Seller Group’s trade names and trademarks, any derivation or combination thereof and all associated goodwill, and any other Intellectual Property not specifically described in Section 1.1(e);
(d) all corporate minute books and stock transfer books and the corporate seal Contracts between any member of the Company or its AffiliatesSeller Group, on the one hand, and any Affiliate of such Person, on the other than hand, and all intercompany receivables owed to any member of the books and records contemplated Seller Group by Section 1.1(g)any Affiliate of such Person;
(e) all equity interests in rights under any joint venture or equity interests in any Contracts (i) other Person held than the Business Contracts and (ii) related to the purchase of products and services necessary to supply Buyer with the products supplied by Seller under the supply agreement between the Parties contemplated by the Company or any of its AffiliatesPCA (the “Supply Agreement”);
(f) all assets arising out of or relating to employee benefits or employee benefit or compensation plans, programs, agreements or arrangements maintained or contributed to (or formerly maintained or contributed to) used in connection with the centralized management functions provided by the Company or its Affiliates or with respect to which members of the Company or any of its Affiliates has any Liability, except as expressly set forth in Section 6.14(e) and Section 6.14(f)Seller Group;
(g) all rights to and in Employee Benefit Plans and any trusts, insurance arrangements or other assets held pursuant to, or set aside to fund the CBAs applicable to employees obligations of a member of the Acquired Stores and Distribution CentersSeller Group under, any such Employee Benefit Plans;
(h) all personnel files insurance policies and records, other than those expressly included in the Purchased Assetsall rights of every nature and description under or arising out of such insurance policies;
(i) all claims for and rights to any Tax assets asset or to receive Tax refunds, or any other Tax attribute, in each case relating to the operation or ownership of the Company and its Affiliates (including Business or the Acquired Assets for any and all credits or deposits in respect of Taxes, net operating loss carryforwards, and refunds of Taxes for which the Company is liable pursuant to Section 2.2(d), Section 2.6(d) or Section 6.4 or otherwise with respect to any periods Tax period (or portions portion thereof) ending on or prior to the Closing (or Closing, and all Tax Returns of the applicable Subsequent Closing or Distribution Center Closing)), other than as set forth in Section 1.1(k) aboveSeller Group and related work papers;
(j) except to the extent set forth in Section 1.1(i), all Tax Returns application systems and software, including all computer software, programs and source disks, and related program documentation, tapes, manuals, forms, guides and other Tax-related documents or information of the Company or its Affiliates not relating to the Acquired Storesmaterials, computer hardware and other systems hardware and networking and communications assets, including servers, databases, backups and peripherals;
(k) all rights of any Contract member of the Seller Group to which the Company owned or any of its Affiliates is a party leased real estate other than the Assumed ContractsLease;
(l) except for the Purchased Intellectual Propertyall rights under this Agreement, the Intellectual Property used PCA, the Supply Agreement, the Development Agreement, the Ancillary Agreements, the other agreements and instruments executed and delivered in connection with this Agreement, and the transactions contemplated hereby or owned by the Company or any of its Affiliates (including the name and ▇▇▇▇ “Rite Aid” or the “Rite Aid” logo, or any name or ▇▇▇▇ comprised, including or derived from the foregoing or confusingly similar thereto)thereby;
(m) the historical customer data all inventory that is not Inventory pursuant to Section 1.1(a), including all inventory not related to the Company’s Wellness+ program (except as set for in Section 1.1(l) above)Test;
(n) except for the Softwareany claims, databasescourse of action, compilations and datacredits, information technology systems, and technology expressly included in the Purchased Assets (including the Purchased Intellectual Property), all Software, databases, compilations and data, information technology services, and technology owned demands or used by the Company or any rights of its Affiliates, including the Software, databases, compilations and data, information technology systems, and technology set forth on Section 1.2(n) set-off of the Company Disclosure Schedulesmembers of the Seller Group related to any Excluded Asset or Excluded Liability, as well as any books, records and privileged information relating thereto, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or noncontingent;
(o) any of the machineryrights under any interest rate, equipment, vehicles, furniture and currency or other personal property leased by the Company similar hedging or any of its Affiliates under a Contractswap agreement;
(p) any equity interests owned by the Company personnel and its Affiliates other files (i) pertaining to any employee that is not a Transferred Employee and (ii) pertaining to any Transferred Employee or current or former employee of any member of the entity or entities that own any assets related Seller Group to the in-store clinics;extent required by Law not to be transferred; and
(q) the assets, properties and rights set forth on Exhibit 1.2(q). Notwithstanding anything to the contrary contained in this Agreement, the PCA, the Supply Agreement, the Development Agreement or any pin pads of the Ancillary Agreements, Buyer acknowledges and agrees that all of the encryption codes related thereto;
following shall remain the property of the Seller Group, and Buyer shall not have any interest therein: (rx) all assets records and other materials prepared or received by Seller or any of its Affiliates in connection with the transactions contemplated hereby and (y) all privileged materials, documents and records of Seller or any of its Affiliates except to the extent exclusively related to the in-store clinics;
(s) to the extent related to Excluded Liabilities, all rights, claims or causes of action against third parties relating to the assets, properties, business or operations of the Acquired Stores, the Distribution Centers or other Purchased Assets or to the Assumed Liabilities, arising out of events or transactions occurring, or facts or circumstances existing, prior to or on the Closing Date (Assigned Intellectual Property or the applicable Subsequent Closing Date or the Distribution Center Closing, as applicable);
(t) to the extent related to Excluded Liabilities, all guarantees, warranties and indemnities related to the ownership or operation of the Purchased Assets prior to or on the Closing (or the applicable Subsequent Closing or the Distribution Center Closing, as applicable); and
(u) the assets set forth on Section 1.2(u) of the Company Disclosure SchedulesBusiness.
Appears in 1 contract
Excluded Assets. Notwithstanding anything to the provisions of contrary set forth in Section 1.12.1(a) or elsewhere in this Agreement, the Purchased Acquiror expressly understands and agrees that the following assets, properties, leases, rights, interests, Contracts and claims of the Company and its Subsidiaries (collectively, the “Excluded Assets”) shall be retained by the Company and its Subsidiaries, and shall be excluded from the Transferred Assets:
(i) (A) except as set forth in Section 2.1(a)(v), all cash and cash equivalents (including marketable securities and short-term investments) held by the Company or any of its Subsidiaries or held by any bank or other third Person on the Company’s and its Subsidiaries’ behalf or for their benefit, and (B) all bank accounts;
(ii) all of the equity interests in the Company or any of its Affiliates or any other Person in which the Company or any of its Affiliates holds or owns any equity interests (including Harsco Industrial Air-X-Changers Pty. Ltd.);
(iii) all right, title and interest in and to (A) subject to Section 5.15, the Company Marks, and (B) all Intellectual Property and IT Assets shall other than the Transferred IP;
(iv) all Tax Returns and all claims, refunds, credits or prepayments, in each case, with respect to the Pre-Closing Tax Period in respect of Taxes of the Company or any of its Subsidiaries or relating to the operation of the Business or the Transferred Assets;
(v) except for the Assumed Company Plans, all Company Plans and any trusts and other assets related thereto;
(vi) all policies of or agreements for insurance, interests in insurance pools and programs and all insurance proceeds received or receivable to the extent arising out of or related to any Excluded Assets or Excluded Liabilities;
(vii) except as expressly contemplated by Section 2.1(a)(vi), all rights, claims, credits, defenses, causes of action (including counterclaims) and all other rights to bring any Action at law or in equity relating to any period through or following the Closing to the extent arising out of or relating to any Excluded Asset or Excluded Liability;
(viii) any interest or right of the Company or any of its Subsidiaries under this Agreement and the Ancillary Agreements and any other documents, instruments or certificates executed in connection with this Agreement and the Ancillary Agreements and the transactions contemplated hereby and thereby;
(ix) personnel and employment records for current or former employees and individual independent contractors of the Business, other than the Transferred Employee Records;
(x) all assets, properties, leases, rights, interests, Contracts and claims of the Company or any of its Subsidiaries that are not include Related to the Business, wherever located, whether tangible or intangible, real, personal or mixed;
(xi) all assets, properties, leases, rights, interests, Contracts and claims of Harsco Industrial Air-X-Changers Pty. Ltd.;
(xii) inter-company Receivables from the Company or any assets of its Subsidiaries;
(xiii) except for the Books and Records, (A) all corporate minute books (and other similar corporate or other governance related records) and stock records of the Company or any of its Subsidiaries, (B) any books and records relating to the Excluded Assets or Excluded Liabilities, (C) any books, records or other materials that the Company or any of its Subsidiaries (x) is required by applicable Law to retain (copies of which, to the extent permitted by applicable Law, will be made available to the Acquiror upon the Acquiror’s reasonable request), (y) reasonably believes are necessary to enable the Company or any of its Subsidiaries to prepare and/or file Tax Returns (copies of which, to the extent permitted applicable Law, will be made available to the Acquiror upon the Acquiror’s reasonable request) or (z) is prohibited by applicable Law from delivering or making available to the Acquiror;
(xiv) any interest or right of the Company or any of its Affiliates other than resulting from the Purchased Assets, including Action disclosed in Section 2.1(b)(xiv) of the following Disclosure Schedule (collectively, the “Excluded AssetsRetained Litigation”):
(a) all notes and accounts receivable generated;
(b) any cash, bank deposits and cash equivalents of the Company, other than the Purchased Cash;
(c) all insurance policies;
(d) all corporate minute books and stock transfer books and the corporate seal of the Company or its Affiliates, other than the books and records contemplated by Section 1.1(g);
(exv) all equity interests in any joint venture or equity interests in any other Person held assets disposed of by the Company or any of its AffiliatesSubsidiaries following the date of this Agreement to the extent such dispositions are not in violation of this Agreement;
(fxvi) all assets arising out of or relating the rights under Shared Contracts to employee benefits or employee benefit or compensation plans, programs, agreements or arrangements maintained or contributed the extent not transferred to (or formerly maintained or contributed to) by the Company Acquiror or its Affiliates in accordance with Section 5.5;
(xvii) the rights under the IT Asset Contracts to the extent not transferred to the Acquiror or with respect its Affiliates; and
(xviii) the assets listed or described on Section 2.1(b)(xvii) of the Disclosure Schedule. Notwithstanding anything to which the Company contrary set forth in this Agreement or any of its Affiliates has any Liabilitythe Ancillary Agreements, except as expressly set forth in Section 6.14(e) the Acquiror acknowledges and Section 6.14(f);
(g) the CBAs applicable to employees agrees that all of the Acquired Stores and Distribution Centers;
(h) all personnel files and records, other than those expressly included in following shall remain the Purchased Assets;
(i) all Tax assets property of the Company and its Affiliates (including any and all credits or deposits in respect of Taxes, net operating loss carryforwardsAffiliates, and refunds of Taxes for which neither the Company is liable pursuant to Section 2.2(d), Section 2.6(d) or Section 6.4 or otherwise with respect to any periods (or portions thereof) ending on or prior to the Closing (or the applicable Subsequent Closing or Distribution Center Closing)), other than as set forth in Section 1.1(k) above;
(j) all Tax Returns and other Tax-related documents or information of the Company or its Affiliates not relating to the Acquired Stores;
(k) any Contract to which the Company or Acquiror nor any of its Affiliates is a party other than the Assumed Contracts;
(l) except for the Purchased Intellectual Property, the Intellectual Property used shall have any interest therein: all records and reports prepared or owned received by the Company or any of its Affiliates (including in connection with the name sale of the Business and ▇▇▇▇ “Rite Aid” or the “Rite Aid” logo, or any name or ▇▇▇▇ comprisedtransactions contemplated hereby, including or derived from the foregoing or confusingly similar thereto);
(m) the historical customer data related to the Company’s Wellness+ program (except as set for in Section 1.1(l) above);
(n) except for the Software, databases, compilations and data, information technology systems, and technology expressly included in the Purchased Assets (including the Purchased Intellectual Property), all Software, databases, compilations and data, information technology services, and technology owned or used by the Company or any of its Affiliates, including the Software, databases, compilations and data, information technology systems, and technology set forth on Section 1.2(n) of the Company Disclosure Schedules;
(o) any of the machinery, equipment, vehicles, furniture and other personal property leased by the Company or any of its Affiliates under a Contract;
(p) any equity interests owned by the Company and its Affiliates of the entity or entities that own any assets related to the in-store clinics;
(q) any pin pads and the encryption codes related thereto;
(r) all assets exclusively related to the in-store clinics;
(s) to the extent related to Excluded Liabilities, all rights, claims or causes of action against third parties analyses relating to the assets, properties, business or operations of the Acquired Stores, the Distribution Centers or other Purchased Assets or to the Assumed Liabilities, arising out of events or transactions occurring, or facts or circumstances existing, prior to or on the Closing Date (Business or the applicable Subsequent Closing Date Acquiror so prepared or the Distribution Center Closing, as applicable);
(t) to the extent related to Excluded Liabilities, all guarantees, warranties and indemnities related to the ownership or operation of the Purchased Assets prior to or on the Closing (or the applicable Subsequent Closing or the Distribution Center Closing, as applicable); and
(u) the assets set forth on Section 1.2(u) of the Company Disclosure Schedulesreceived.
Appears in 1 contract
Excluded Assets. Notwithstanding anything to the provisions contrary contained herein, Purchaser expressly understands and agrees that the following assets and properties of Section 1.1, the Seller Entities and the Purchased Assets shall not include any assets of the Company or any of its Affiliates other than the Purchased Assets, including the following Companies (collectively, the “Excluded Assets”):) shall be retained by the Seller Entities and their Affiliates (other than the Purchased Companies), and shall be excluded from the Purchased Assets, notwithstanding any other provision of this Agreement:
(a) Any and all notes and accounts receivable generatedCash Amounts (other than any Cash Amounts of the Purchased Companies as of 11:58 p.m. local time in each applicable jurisdiction on the Closing Date to the extent such Cash Amounts are included in the determination of Closing Cash Amounts);
(b) Any and all equity interests in any cash, bank deposits and cash equivalents Affiliate of the Company, Seller (other than the Purchased CashCompanies and their respective Subsidiaries);
(c) Except as set forth in Section 5.7, (i) any and all insurance policiesassets related to the Seller Benefit Plans (other than the assets with respect to the Transferred Business Employees under the Assumed Benefit Plans) and (ii) the assets under the Post-Retirement Plans (other than related to the Mirror Trusts or otherwise related to the Mirror Plans that are transferred to Purchaser or its Affiliates or a Purchased Company);
(d) Any and all corporate minute books loans and stock transfer books and advances, if any, by the corporate seal Seller Entities to any of their Affiliates or otherwise to the Company or its Affiliates, other than the books and records contemplated by Section 1.1(g)Business;
(e) Any and all equity interests in any joint venture or equity interests in any Intellectual Property (including the JCI Marks), other Person held by than the Company or any of its AffiliatesOwned Intellectual Property;
(f) Any and all assets arising out Contracts and portions of or relating Contracts, other than the Specified Business Contracts and Transferred Leases (subject to employee benefits or employee benefit or compensation plans, programs, agreements or arrangements maintained or contributed to (or formerly maintained or contributed to) by the Company or its Affiliates or with respect to which the Company or any of its Affiliates has any Liability, except as expressly set forth in Section 6.14(e2.11(c) and Section 6.14(f2.11(d));
(g) the CBAs applicable to employees of the Acquired Stores Except as included in Section 2.4, any and Distribution Centersall owned and leased real property and other interests in real property;
(h) Any and all personnel files and records, other than those expressly included in the Purchased Assetsrefunds or credits of or against Excluded Business Taxes as determined pursuant to Section 6.5(b);
(i) Other than the Books and Records specified in Section 2.4(m), any and all Tax assets Returns and other books and records related to Taxes paid or payable by Seller, the Seller Entities or any of their respective Affiliates (other than the Purchased Companies);
(j) All of the Company rights and interests of Seller and its Affiliates (including any the Seller Entities) in and to all credits or deposits correspondence and documents, including the Confidentiality Agreement, in respect connection with the sale of Taxes, net operating loss carryforwards, and refunds of Taxes for which the Company is liable pursuant to Section 2.2(d), Section 2.6(dBusiness;
(k) or Section 6.4 or otherwise with respect to any periods (or portions thereof) ending on or prior to the Closing (or the applicable Subsequent Closing or Distribution Center Closing)), other than Except as set forth in Section 1.1(k2.4(n) above;
(j) and subject to Section 5.10, any and all Tax Returns insurance policies and other Taxbinders and interests in insurance pools and programs and self-insurance arrangements whether or not related documents or information of the Company or its Affiliates not relating to the Acquired Stores;
(k) Business, for all periods before, through and after the Closing, including any Contract and all refunds and credits due or to which become due thereunder and any and all claims, rights to make claims and rights to proceeds on any such insurance policies for all periods before, through and after the Company or any of its Affiliates is a party other than the Assumed ContractsClosing;
(l) except for Any and all Permits other than the Purchased Intellectual Property, the Intellectual Property used or owned by the Company or any of its Affiliates (including the name and ▇▇▇▇ “Rite Aid” or the “Rite Aid” logo, or any name or ▇▇▇▇ comprised, including or derived from the foregoing or confusingly similar thereto)Transferred Permits;
(m) All rights to receive administrative and corporate (overhead, shared and other) services and benefits of the historical customer data related kind provided to the Business by the Seller Entities (other than any Purchased Company’s Wellness+ program ), either directly or indirectly through third-party service providers, prior to the Closing Date, and all assets of the Seller Entities (except other than any Purchased Company) related thereto, including (A) computer and information processing services (other than as set for provided through such IT Assets that are part of the Tangible Personal Property described under Section 2.4(e)), (B) finance, accounting and payroll services, (C) facilities management services (including environmental, health and safety), (D) treasury services (including banking, insurance, administration, taxation and internal audit), (E) general and administrative services, (F) executive and management services, (G) legal services, (H) human resources services, (I) risk management services, (J) group purchasing services, (K) corporate marketing, strategy and development services, (L) corporate travel and aircraft services, and (M) investor relations services, in Section 1.1(l) above)each case unless such services are provided through Purchased Companies, Purchased Assets, Transferred Business Employees or provided pursuant to the terms of the Transition Services Agreement;
(n) except for All assets and other rights relating to the SoftwareBusiness sold or otherwise transferred or disposed of during the period from the date hereof through and including the Closing Date, databases, compilations and data, information technology systemsas expressly permitted in accordance with the provisions of this Agreement, and technology expressly included in the Purchased Assets (including the Purchased Intellectual Property), all Software, databases, compilations and data, information technology services, and technology owned rights arising under or used by the Company or relating to any of its Affiliates, including the Software, databases, compilations and data, information technology systems, and technology set forth on Section 1.2(n) of the Company Disclosure SchedulesRetained Liabilities;
(o) any of the machinery, equipment, vehicles, furniture and All other personal property leased by the Company or any of its Affiliates under a Contract;
(p) any equity interests owned by the Company and its Affiliates of the entity or entities that own any assets related to the in-store clinics;
(q) any pin pads and the encryption codes related thereto;
(r) all assets exclusively related to the in-store clinics;
(s) to the extent related to Excluded Liabilities, all rights, claims or causes of action against third parties relating to the assets, properties, business or operations of the Acquired Stores, the Distribution Centers or other Purchased Assets or to the Assumed Liabilities, arising out of events or transactions occurring, or facts or circumstances existing, prior to or on the Closing Date (or the applicable Subsequent Closing Date or the Distribution Center Closing, as applicable);
(t) to the extent related to Excluded Liabilities, all guarantees, warranties and indemnities related to the ownership or operation of the Purchased Assets prior to or on the Closing (or the applicable Subsequent Closing or the Distribution Center Closing, as applicable); and
(u) the assets set forth on Section 1.2(u2.5(o) of the Company Seller Disclosure Schedules; and
(p) Except for any Purchased Assets or any assets set forth on Section 2.4 of the Seller Disclosure Schedules, and except to the extent an asset would be excluded from the definition of “Excluded Assets” by operation of another subsection of this Section 2.5, any and all assets, business lines, properties, rights, Contracts and claims of the Seller Entities or any of their Subsidiaries (other than a Purchased Company) not primarily used, or owned or held primarily for use, in the operation or conduct of the Business, or primarily arising from the conduct of the Business, wherever located, whether tangible or intangible, real, personal or mixed. The parties acknowledge and agree that neither Purchaser nor any of its Subsidiaries will acquire or be permitted to retain any direct or indirect right, title and interest in any Excluded Assets.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Johnson Controls International PLC)