Transferred Assets and Excluded Assets. (a) Upon the terms and subject to the conditions of this Agreement, Seller shall sell, assign, transfer, convey and deliver to Purchaser and the Purchaser Parties, and Purchaser agrees to, and agrees to cause the Purchaser Parties to, purchase, acquire and accept from Seller, all of Seller’s right, title and interest in, to and under the following property, rights, contracts, claims and assets as they exist at the time of Closing (collectively, the Transferred Assets): (i) the real property located at 2301 S.E. Tone’s Drive in Ankeny, Iowa, more particularly described in Section 4.7 of the Disclosure Schedule, and all of Seller’s right, title and interest therein, including all buildings, structures, improvements and fixtures located thereon and all easements and other rights and interests appurtenant thereto (the Transferred Real Property); (ii) all of Seller’s right, title and interest in the real property lease listed in Section 4.7 of the Disclosure Schedule (the Transferred Lease); (iii) all Inventory owned by Seller, wherever located, that is used or held for use exclusively in the operation or conduct of the Business (the Transferred Inventory); (iv) all Equipment owned by Seller and located on or at the Transferred Real Property or the Leased Real Property that is used or held for use exclusively in the operation or conduct of the Business and not specifically listed or described in Section 2.2(b)(i) of the Disclosure Schedule (the Transferred Equipment); (v) all United States and foreign patents (including utility and design patents) and all foreign counterparts of the United States patents (including all reissues, divisions, continuations, continuations-in-part, extensions and reexaminations thereof), and United States, foreign and international patent applications set forth in Section 2.2(a)(v) of the Disclosure Schedule (the Transferred Patents); (vi) all trademarks, trademark registrations and trademark applications set forth in Section 2.2(a)(vi) of the Disclosure Schedule together with the goodwill associated exclusively therewith (the Transferred Trademarks); (vii) all trade names and domain names set forth in Section 2.2(a)(vii) of the Disclosure Schedule and all copyrights owned by Seller that are used or held for use exclusively in the operation or conduct of the Business, including copyrights, if any, in all original content in any web sites and social media pages (which does not include layout of any sites and pages), packaging, advertisements and other promotional materials (collectively, the Other Transferred Intellectual Property and, together with the Transferred Patents and the Transferred Trademarks, the Transferred Intellectual Property); (viii) all Technology owned by Seller that is used or held for use exclusively in the operation or conduct of the Business (the Transferred Technology); (ix) all Permits that are used or held for use exclusively in the operation or conduct of the Business (the Transferred Permits); (x) all Contracts (i) set forth in Section 4.8 of the Disclosure Schedule and (ii) to which Seller is a party that relate exclusively to the operation or conduct of the Business and that have been entered into in the ordinary course of business consistent with past practice (collectively, the Transferred Contracts); (xi) all Claims and all rights to assert Claims, to the extent arising out of, relating to or in respect of any Transferred Asset or any Assumed Liability (other than any such items arising under insurance policies to the extent they relate to occurrences arising out of or resulting from the operation or conduct of the Business prior to the Closing), along with any and all recoveries by settlement, Judgment or otherwise in connection with any such Claims or rights; (xii) all books of account, general, financial and accounting records, files, copies of personnel records (limited to the name, job title, work location, date of commencement of employment, exempt or non-exempt status, current compensation paid or payable, sick and vacation leave that is accrued but unused, service dates, service credited for purposes of vesting and eligibility to participate under any Seller Benefit Plan, end date and other identifying information of the Transferred Employees), invoices, customers’ and suppliers’ lists, other distribution lists, billing records, sales and promotional literature, displays, manuals and customer and supplier correspondence owned or controlled by Seller that are used or held for use exclusively in the operation or conduct of the Business, except to the extent primarily relating to the Excluded Assets or the Retained Liabilities; (xiii) all guarantees, warranties, indemnities and similar rights in favor of Seller in respect of any Transferred Asset or any Assumed Liability; (xiv) all goodwill of the Business; (xv) all prepaid expenses that are used or held for use exclusively in, or that arise exclusively out of, the operation or conduct of the Business; (xvi) each of the manufacturer codes listed in Section 2.2(a)(xvi) of the Disclosure Schedule and all UPCs under such manufacturer codes (the Transferred UPCs); and (xvii) all other current assets of Seller that are used or held for use exclusively in the operation or conduct of the Business, other than current assets that are Excluded Assets. (b) Notwithstanding anything to the contrary contained in this Agreement, the Transferred Assets do not include any assets or rights other than the assets specifically listed or described in Section 2.2(a) and, for the avoidance of doubt, expressly exclude the following assets as they exist at the time of Closing (collectively, the Excluded Assets): (i) all assets listed in Section 2.2(b)(i) of the Disclosure Schedule; (ii) all products represented by the SKUs set forth in Section 2.2(b)(ii) of the Disclosure Schedule (the Excluded Products); (iii) all finished goods owned by Seller on the Closing Date that are Excluded Products; (iv) all cash, cash equivalents or securities of Seller; (v) all accounts, notes receivable and similar rights to receive payments of Seller that exist on or prior to the Closing Date; (vi) all Claims of Seller to the extent relating to any Excluded Asset or Retained Liability, including (A) any such items arising under insurance policies and (B) all Claims that Seller, in any capacity, ever had, now has or may or will have in the future, whether known or unknown, to the extent relating in any way to (x) the Business’s purchase or procurement of any good, service or product at any time up until the Closing or (y) Seller’s purchase or procurement of any good, service or product for, or on behalf of, the Business, at any time up until the Closing, along with any and all recoveries by settlement, Judgment or otherwise in connection with any such Claims; (vii) any shares of capital stock or other equity interests of any Affiliate of Seller; (viii) all tangible personal property and interests therein, including all machinery, equipment and molds, owned by Seller, that is not specifically listed or described in Section 2.2(a); (ix) all Seller Benefit Plans (including any trusts, insurance policies, contracts and administrative service agreements related thereto) and related assets, except as specifically provided in Section 6.6; (x) any refunds or credits, claims for refunds or credits or rights to receive refunds or credits from any Taxing Authority with respect to Excluded Taxes; (xi) any records (including accounting records) related to Taxes paid or payable by Seller or any of its Affiliates and all financial and Tax records relating to the Business that form part of Seller’s or any of its respective Affiliates’ general ledger; (xii) all records prepared in connection with the sale of the Business (or any portion thereof), including bids received from third persons and analyses relating to the sale of the Business (or any portion thereof); (xiii) all personnel records that are not Transferred Assets or to the extent transfer is not permitted by Law; (xiv) all rights of Seller under this Agreement and any other agreements, certificates and instruments relating to the sale of the Business (or any portion thereof) or otherwise delivered in connection with this Agreement; (xv) all right, title and interest in and to the Names (excluding, for the avoidance of doubt, Transferred Trademarks), together with the goodwill associated therewith; (xvi) all UPCs for the Products that are not Transferred UPCs; and (xvii) all division or corporate-level services of the type currently provided to the Business by Seller or any of its Affiliates.
Appears in 1 contract
Transferred Assets and Excluded Assets. (a) Upon On the terms and subject to the conditions of contained in this Agreement, Seller shall sell, assign, transfer, convey and deliver to Purchaser and the Purchaser Parties, and Purchaser agrees to, and agrees to cause sell to Buyer and Buyer agrees to purchase from Seller at the Purchaser Parties to, purchase, acquire "Closing" and accept from Selleron the "Closing Date" (as each is defined in ss. 1.9 below), all of Seller’s right, title and interest in, to and under the following property, rights, contracts, claims and assets as they exist at the time of Closing (collectively, the Transferred Assets):
(i) the real property located at 2301 S.E. Tone’s Drive in Ankeny, Iowa, more particularly described in Section 4.7 of the Disclosure Schedule, and all of Seller’s right, title and interest therein, including all buildings, structures, improvements and fixtures located thereon and all easements and other rights and interests appurtenant thereto (the Transferred Real Property);
(ii) all of Seller’s 's right, title and interest in and to the real property lease listed following assets and properties used in Section 4.7 connection with the operation of the Disclosure Schedule business of Seller as presently conducted at the Facility (except for the "Excluded Assets" described below): (a) equipment, furniture, fixtures, supplies, and other tangible personal property, including but not limited to those described in attached Exhibit 1.1
(c) (the "Transferred LeaseContracts");
; (iiid) all Inventory owned by Sellerpatents, wherever locatedtrademarks, that is used or held for use exclusively in the operation or conduct of the Business copyrights, permits, designs, sketches, drawings, specifications, know-how, and other intangible rights (the Transferred Inventory"Intangible Property");
; (ive) all Equipment owned by Seller deposits, reserves and located on or at the Transferred Real Property or the Leased Real Property that is used or held for use exclusively in the operation or conduct of the Business and not specifically listed or described in Section 2.2(b)(i) of the Disclosure Schedule (the Transferred Equipment);
(v) all United States and foreign patents (including utility and design patents) and all foreign counterparts of the United States patents (including all reissues, divisions, continuations, continuations-in-part, extensions and reexaminations thereof), and United States, foreign and international patent applications set forth in Section 2.2(a)(v) of the Disclosure Schedule (the Transferred Patents);
(vi) all trademarks, trademark registrations and trademark applications set forth in Section 2.2(a)(vi) of the Disclosure Schedule together with the goodwill associated exclusively therewith (the Transferred Trademarks);
(vii) all trade names and domain names set forth in Section 2.2(a)(vii) of the Disclosure Schedule and all copyrights owned by Seller that are used or held for use exclusively in the operation or conduct of the Business, including copyrights, if any, in all original content in any web sites and social media pages (which does not include layout of any sites and pages), packaging, advertisements and other promotional materials (collectively, the Other Transferred Intellectual Property and, together with the Transferred Patents and the Transferred Trademarks, the Transferred Intellectual Property);
(viii) all Technology owned by Seller that is used or held for use exclusively in the operation or conduct of the Business (the Transferred Technology);
(ix) all Permits that are used or held for use exclusively in the operation or conduct of the Business (the Transferred Permits);
(x) all Contracts (i) set forth in Section 4.8 of the Disclosure Schedule and (ii) to which Seller is a party that relate exclusively to the operation or conduct of the Business and that have been entered into in the ordinary course of business consistent with past practice (collectively, the Transferred Contracts);
(xi) all Claims and all rights to assert Claimsprepaid expenses, to the extent arising out ofthey confer a benefit to and are assignable to Buyer; provided, relating however, that the amount thereof does not exceed $10,000; if the amount is in excess thereof, Buyer shall pay the amount of such excess (the "Excess Prepayments") to or in respect Seller; (f) all of Seller's trade receivables (excluding any Transferred Asset or any Assumed Liability (other than any such items arising under insurance policies to non-trade intercompany receivables) as the extent they relate to occurrences arising out of or resulting from same may exist at the operation or conduct of Closing as set forth on the Business prior to the Closing), along with any and all recoveries by settlement, Judgment or otherwise in connection with any such Claims or rights;"Accounts Receivable Schedule" attached as Exhibit 1.1
(xiif) (the "Receivables"); and (g) all books books, records and files of accountSeller. The assets to be sold to Buyer under this Agreement are referred to as the "Assets" and shall include, general, financial and accounting records, files, copies of personnel records (but are not limited to the name, job title, work location, date of commencement of employment, exempt or non-exempt status, current compensation paid or payable, sick and vacation leave that is accrued but unused, service dates, service credited for purposes of vesting and eligibility to participate under any Seller Benefit Plan, end date and other identifying information of the Transferred Employees), invoices, customers’ and suppliers’ lists, other distribution lists, billing records, sales and promotional literature, displays, manuals and customer and supplier correspondence owned or controlled by Seller that are used or held for use exclusively in the operation or conduct of the Business, except to the extent primarily relating to the Excluded Assets or the Retained Liabilities;
(xiii) all guarantees, warranties, indemnities and similar rights in favor of Seller in respect of any Transferred Asset or any Assumed Liability;
(xiv) all goodwill of the Business;
(xv) all prepaid expenses that are used or held for use exclusively in, or that arise exclusively out ofto, the operation or conduct of the Business;
(xvi) each of the manufacturer codes listed assets set forth in Section 2.2(a)(xvi) of the Disclosure Schedule and all UPCs under such manufacturer codes (the Transferred UPCs); and
(xvii) all other current assets of Seller that are used or held for use exclusively in the operation or conduct of the Business, other than current assets that are Excluded Assetsthis ss.
(b) 1.1 and the exhibits and schedules referred to in this ss.
1.1. Notwithstanding anything to the contrary contained in this Agreement, the Transferred Assets do assets described on Exhibit 1.1(x) (the "Excluded Assets") will not include any assets or rights other than the assets specifically listed or described in Section 2.2(a) and, for the avoidance be sold to Buyer and all of doubt, expressly exclude the following assets as they exist at the time of Closing (collectively, the Excluded Assets):
(i) all assets listed in Section 2.2(b)(i) of the Disclosure Schedule;
(ii) all products represented by the SKUs set forth in Section 2.2(b)(ii) of the Disclosure Schedule (the Excluded Products);
(iii) all finished goods owned by Seller on the Closing Date that are Excluded Products;
(iv) all cash, cash equivalents or securities of Seller;
(v) all accounts, notes receivable and similar rights to receive payments of Seller that exist on or prior to the Closing Date;
(vi) all Claims of Seller to the extent relating to any Excluded Asset or Retained Liability, including (A) any such items arising under insurance policies and (B) all Claims that Seller, in any capacity, ever had, now has or may or Assets will have in the future, whether known or unknown, to the extent relating in any way to (x) the Business’s purchase or procurement of any good, service or product at any time up until the Closing or (y) Seller’s purchase or procurement of any good, service or product for, or on behalf of, the Business, at any time up until the Closing, along with any and all recoveries by settlement, Judgment or otherwise in connection with any such Claims;
(vii) any shares of capital stock or other equity interests of any Affiliate of Seller;
(viii) all tangible personal property and interests therein, including all machinery, equipment and molds, owned be retained by Seller, that is not specifically listed or described in Section 2.2(a);
(ix) all Seller Benefit Plans (including any trusts, insurance policies, contracts and administrative service agreements related thereto) and related assets, except as specifically provided in Section 6.6;
(x) any refunds or credits, claims for refunds or credits or rights to receive refunds or credits from any Taxing Authority with respect to Excluded Taxes;
(xi) any records (including accounting records) related to Taxes paid or payable by Seller or any of its Affiliates and all financial and Tax records relating to the Business that form part of Seller’s or any of its respective Affiliates’ general ledger;
(xii) all records prepared in connection with the sale of the Business (or any portion thereof), including bids received from third persons and analyses relating to the sale of the Business (or any portion thereof);
(xiii) all personnel records that are not Transferred Assets or to the extent transfer is not permitted by Law;
(xiv) all rights of Seller under this Agreement and any other agreements, certificates and instruments relating to the sale of the Business (or any portion thereof) or otherwise delivered in connection with this Agreement;
(xv) all right, title and interest in and to the Names (excluding, for the avoidance of doubt, Transferred Trademarks), together with the goodwill associated therewith;
(xvi) all UPCs for the Products that are not Transferred UPCs; and
(xvii) all division or corporate-level services of the type currently provided to the Business by Seller or any of its Affiliates.
Appears in 1 contract
Sources: Asset Purchase Agreement (Gibraltar Packaging Group Inc)