Form Apa - Asset Purchase Agreement Page 2
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461
"Affiliate" shall mean a person or entity that directly, or indirectly through one or
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more intermediaries, controls, is controlled by or is under common control with a
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specified person or entity.
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"Aggregate Amount" shall mean an amount equal to the Final Purchase Price plus
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the IP Purchase Price (as defined in the Intellectual Property Purchase and License
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Agreement) and (c) the Paid-Up Royalty (as defined in the Transition Trademark
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License).
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"Ancillary Agreements" shall mean the following: (a) the Assignment and
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Assumption Agreement and (b) the Bill of Sale.
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"Assignment and Assumption Agreement" shall mean the Assignment and
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Assumption Agreement in the form attached hereto as Exhibit A, to be executed at
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Closing by Buyer and Seller.
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"Assumed Agreements" shall mean all Contracts to the extent transferable other
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than the Excluded Contracts.
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"Assumed Current Liabilities" will mean ___________________________.
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"Assumed Liabilities" shall mean: (a) all Liabilities accruing, arising out of or
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related to each of the Assumed Agreements and the Purchased Assets on or after the
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Closing Date; (b) all Liabilities accruing, arising out of or related to the employment of
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Transferred Employees or any other events involving any Transferred Employees
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occurring on or after the Closing Date, and all other Liabilities undertaken by Buyer in
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accordance with Article IX; (c) all Liabilities accruing, arising out of or related to the
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ownership and operation of the Business on or after the Closing Date; (d) the Assumed
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Current Liabilities; and (e) any other Liabilities expressly assumed by Buyer under the
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terms of this Agreement or the Ancillary Agreements.
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"Bill of Sale" shall mean the Bill of Sale, in the form attached hereto as Exhibit B,
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to be executed at Closing by Seller in favor of Buyer.
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"Books and Records" shall mean all business records, tangible data, documents,
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files, customer lists, supplier lists, personnel records relating to the Transferred
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Employees, invoices, sales literature, and all other books and records, in each case which
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relate exclusively to the Business (collectively, "Information"); provided, however, that
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"Books and Records" shall exclude (i) all tax returns and all worksheets, notes, files or
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documents primarily related thereto, wherever located, (ii) all documents prepared in
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connection with the transactions contemplated by this Agreement and all minute books
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and corporate records of Seller and its Affiliates, (iii) all Information of Seller or Seller's
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Affiliates to the extent not related to the Business, and (iv) all documents subject to
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attorney/client privilege or any other applicable privilege.
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"Business" shall mean Seller's business, as conducted as of the date hereof, of
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_______________________________________________________________.
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Form APA.doc
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