Sale and Purchase of Assets (a) At Closing, Sellers shall convey, sell, transfer, assign and deliver unto Purchaser and its successors and assigns forever, all of the right, title and interest of Sellers in the following properties and assets owned, used or held for use by Sellers in connection with the Acquired Business or, to the extent relating to the Acquired Business, by any affiliates of Sellers (hereinafter sometimes collectively referred to as the "Purchased Assets"):
(i) all tangible personal property used or held for use exclusively in connection with the Acquired Business, including without limitation all machinery, equipment, parts, tooling, vehicles, furniture, leasehold improvements, fixtures, office equipment, supplies and other items of tangible Personal property owned by Sellers and used or held for use exclusively in connection with the Acquired Business, including without limitation all such personal property located in, at or on the Purchaser's facilities located in Roseland, New Jersey, and all of the Sellers' rights and benefits under any leases and with respect to any of the foregoing items, all of the material foregoing items having been described on Schedule 1.1(a)(i) hereto (collectively, the "Equipment");
(ii) all intangible assets, including without limitation the brand names, trademarks, copyrights and registrations and applications for registrations thereof listed on Schedule 1.1
(a) (ii) and all associated goodwill (the "Principal Trademarks") and any and all patents, copyrights, trade names, trade secrets, service marks, customer lists, relationships and arrangements with suppliers (including without limitation suppliers of raw materials), customers, authors and designers, sales literature, inventions, formulae, technology, UPC codes, processes and computer software, used or held for use exclusively in connection with the Acquired Business and all licenses, agreements, applications and registrations with respect to any of the foregoing, together with any goodwill associated therewith (collectively with the Principal Trademarks, the "Intellectual Property");
(iii) all rights and benefits of Sellers under all contracts, leases, agreements, licenses, commitments (collectively, "Contracts") (i) described on Schedule 3.1(j) hereto or (ii) that (A) relate exclusively to the Acquired Business, (B) under the terms of this Agreement are not required to be disclosed pursuant to Section 3.1(j), and (C) have been entered into in the ordinary course of the Acquired Business and are consistent in nature and scope with past practices of the Acquired Business (collectively, the "Assumed Contracts"), provided, however, that the Assumed Contracts shall not include the Contracts identified on Schedule 1.1(a)(iii) hereto (the "Seller Contracts");
(iv) except as provided in Section 7.11, all inventory held for resale and all raw materials, work in process, finished products, shipments in transit, wrapping, supply and packaging items related exclusively to the Acquired Business (collectively, the "Inventory");
(v) all licenses, authorizations, permits and other approvals issued by any governmental agency, public or self-regulatory authority, and all applications therefor pending, used or held for use exclusively in connection with the Acquired Business;
(vi) all blueprints, designs, drawings, patterns, specifications, work plans and scheduling procedures, exclusively related to, or exclusively required or used in connection with, the production of products and products in development of the Acquired Business;
(vii) all books, records, files and correspondence (whether in original or photostatic form) to the extent used or held for use in connection with, or relating to the Acquired Business, including lists of past customers and suppliers;
(viii) all goodwill associated with or attributable to the Acquired Business; and
(ix) any other tangible asset owned by Sellers and used or held for use exclusively in connection with the Acquired Business which is necessary to operate the Acquired Business as presently conducted (other than the Excluded Assets, as hereafter defined).
(b) To the extent any asset of the type set forth in Section 1.1(a), other than any Excluded Assets, related exclusively to the Acquired Business is owned, used or held for use by any affiliate of Seller, such asset is included with the term "Purchased Assets" and Sellers shall cause such affiliate to convey such assets to Purchaser on the Closing Date in accordance with the provisions of this Agreement.
(c) Notwithstanding the provisions of Section 1.1(a), the Purchased Assets shall not include any right, title or interest of Sellers or their affiliates in, to or under any of the following properties, assets or items (collectively, the "Excluded Assets"):
(i) cash, including bank balances and bank accounts, cash equivalents and similar type items on hand on the Closing Date;
(ii) all accounts and notes receivable (including without limitation any claims, remedies, and other rights related thereto) entered into prior to the Closing Date and relating to the Acquired Business;
(iii) the Tax returns of Seller;
(iv) all refunds of Taxes to the extent that Taxes being refunded were an Excluded Liability;
(v) the articles or certificate of incorporation and by-laws of Sellers and the corporate minutes, corporate seals and stock books of Sellers;
(vi) all refunds, deposits, prepayments or prepaid expenses (including any prepaid insurance premiums);
(vii) all rights to insurance or indemnity, and all claims, causes of action, rights of recovery or set-off of any kind and against any person, relating to or covering the Acquired Business before the Closing or related to the Excluded Assets; and
(viii) any franchise tax or sales and use permits of Sellers.
Sale and Purchase Upon the basis of the warranties and representations and subject to the terms and conditions herein set forth, the Fund agrees to sell to the respective Underwriters and each of the Underwriters, severally and not jointly, agrees to purchase from the Fund the aggregate number of Firm Shares set forth opposite the name of such Underwriter in Schedule A attached hereto in each case at a purchase price of $14.325 per Share. The Fund is advised that the Underwriters intend (i) to make a public offering of their respective portions of the Firm Shares as soon after the effective date of the Registration Statement as is advisable and (ii) initially to offer the Firm Shares upon the terms set forth in the Prospectus. The Underwriters may from time to time increase or decrease the public offering price after the initial public offering to such extent as they may determine. In addition, the Fund hereby grants to the several Underwriters the option to purchase, and upon the basis of the warranties and representations and subject to the terms and conditions herein set forth, the Underwriters shall have the right to purchase, severally and not jointly, from the Fund, ratably in accordance with the number of Firm Shares to be purchased by each of them, all or a portion of the Additional Shares as may be necessary to cover over-allotments made in connection with the offering of the Firm Shares, at the same purchase price per share to be paid by the Underwriters to the Fund for the Firm Shares. This option may be exercised by you on behalf of the several Underwriters at any time and from time to time on or before the forty-fifth day following the date hereof, by written notice to the Fund. Such notice shall set forth the aggregate number of Additional Shares as to which the option is being exercised, and the date and time when the Additional Shares are to be delivered (such date and time being herein referred to as the "Additional Time of Purchase"); provided, however, that the Additional Time of Purchase shall not be earlier than the Time of Purchase (as defined below) nor earlier than the second business day after the date on which the option shall have been exercised nor later than the tenth business day after the date on which the option shall have been exercised. The number of Additional Shares to be sold to each Underwriter shall be the number which bears the same proportion to the aggregate number of Additional Shares being purchased as the number of Firm Shares set forth opposite the name of such Underwriter on Schedule A hereto bears to the total number of Firm Shares (subject, in each case, to such adjustment as you may determine to eliminate fractional shares). The Fund also agrees, subject to the terms and conditions set forth herein, to sell to the Investment Manager, and, upon the basis of the representations, warranties and agreements of the Fund contained herein, the Investment Manager shall have the right to purchase from the Fund, at the same purchase price per share as the Underwriters shall pay for the Additional Shares, up to an aggregate of 1,000 Shares (the "Investment Manager Shares").