QDHC » Topics » BUSINESS ASSETS

This excerpt taken from the QDHC 8-K filed Jul 26, 2007.

BUSINESS ASSETS

2.01 Purchase of Business Assets. Subject to the terms and conditions of this Agreement, at the Closing, Seller will sell, transfer, convey, assign and deliver to Buyer, or to such Affiliate or Affiliates of Buyer as Buyer may designate in writing to Seller prior to the Closing Date (each, a Buyer Affiliate), and Buyer (or Buyer Affiliate) will purchase and acquire from Seller, free and clear of all Liens, other than Permitted Liens, all right, title and interest in and to all tangible and intangible assets primarily or solely related to the Business, whether or not reflected on the applicable records of Seller, excepting only the Excluded Assets (as defined in Section 2.02), (the Business Assets), including all right, title and interest in and to the following:

(a) the CPR Software Products;

(b) all CPR Business Equipment and all marketing and advertising materials related to the Business;

(c) all Contracts, including those Material Contracts listed on Schedule 4.08(a), and all outstanding offers or solicitations made by or to Seller to enter into any Contract, as described on Schedule 4.08(a), excluding only the Excluded Contracts listed on Schedule 4.08(e);

(d) the Leases;

(e) subject to Section 6.04(b), all CPR Business Records;

(f) all Permits and pending applications therefor and renewals thereof, including those listed on Schedule 4.09;

(g) contact information for existing customers of the Business and, to the extent such exist, all sales information and databases compiled by or on behalf of Seller in connection with the CPR Software Products, including information on any and all sales leads, contact information for potential customers of the Business, and all requests for proposal/information with respect to the CPR Software Products during the past two (2) years;

(h) the Intellectual Property (including all Intellectual Property included in the CPR Software Products) used by Seller primarily or solely with respect to the Seller’s operation of the Business (the “Business Intellectual Property”), and goodwill associated with such Business Intellectual Property, together with all rights under, including rights to enforce, Contracts entered into with employees, consultants, agents and other persons associated with the Business to the extent such relate to the confidentiality of the Business Intellectual Property or the assignment of such person’s rights to inventions and other Business Intellectual Property to Seller;

(i) all know-how, formulae, product specifications (including compilers, interpreters, system build software, build scripts, test suites, testing tools and documentation, test

 

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scripts, bug databases, support tools, revision control systems and environments) that are used by Seller primarily or solely to build, modify, debug and operate its CPR Software Products, procedures, reports, computer programs (source code and object code) or programming and/or material documentation, manuals, charts, specifications, database architecture, templates, system models, diagrams, descriptions, screen displays, schematics, blueprint drawings, tapes, listings, inventions, designs, patterns, records, marketing research, package designs, trade secrets and confidential information developed by Seller primarily or solely related to the CPR Software Products, and any other materials primarily or solely relating to the CPR Software Products, Intellectual Property or the Business (collectively, the Trade Secrets);

(j) all Accounts Receivable, whether or not billed at the time of the Closing, and all rights to bill customers for any CPR Software Products shipped or CPR Software Products-related services rendered, whether before or after the Closing;

(k) all claims, warranties, choses in action, causes of action, rights of recovery and rights of set-off of any kind against third parties relating to the Business or the Business Assets (including any warranties from contractors, subcontractors, vendors or suppliers regarding their performance, quality of workmanship or quality of materials supplied in connection with construction, manufacturing, development, installation, repair or maintenance at the Real Property) or the Assumed Obligations, and the right to receive and retain mail and other communications relating to the Business, the Business Assets or the Assumed Obligations; and

(l) Prepaid third-party hardware and software, capitalized professional services and accrued maintenance revenue.

2.02 Excluded Assets. Notwithstanding anything in Section 2.01 to the contrary, the Business Assets will not include, and Buyer and Buyer Affiliates will not be deemed to purchase or acquire, any of the assets of Seller set forth on Schedule 2.02 (the Excluded Assets).

2.03 Assumed Obligations. As part of the consideration for the Business Assets, Buyer or one or more Buyer Affiliates will assume the following liabilities and obligations of Seller to the extent arising from or related to the CPR Software Products or the Business in the ordinary course (the Assumed Obligations):

(a) any Liability to Seller’s customers under written warranty agreements in the forms disclosed in Schedule 2.03(a) given by Seller to its customers in the ordinary course of business prior to the Effective Time (other than any Liability arising out of or relating to a Breach that occurred prior to the Effective Time);

(b) any Liability arising after the Effective Time under the Contracts included in the Business Assets (other than any Liability arising out of or relating to a Breach that occurred prior to the Effective Time);

(c) any Liability of Seller arising after the Effective Time under any Contract included in the Business Assets that is entered into by Seller after the date hereof in accordance with the provisions of this Agreement (other than any Liability arising out of or relating to a Breach that occurred prior to the Effective Time);

 

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(d) all deferred income liabilities; and

(e) any Liability of Seller described in Schedule 2.03(e).

2.04 Excluded Liabilities. Other than as specifically listed in Section 2.03 above, Buyer and Buyer Affiliates will assume no Liability whatsoever of Seller, whether or not arising from or related to Seller, the CPR Software Products, the Business or the Business Assets (the Excluded Liabilities), and Seller will fully pay, perform and discharge, as and when due, each such Excluded Liability. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, and under no circumstances shall Buyer be deemed to assume any Liability of Seller arising out of or relating to any of the following:

(a) any Debt;

(b) any accounts payable existing as of the Effective Time for the period prior to the Effective Time;

(c) any Liability for accrued compensation to any employee of Seller, including any and all Liabilities whatsoever arising in connection with any Employee Benefit Plan maintained by Seller;

(d) any Taxes of any kind or character;

(e) any Proceedings, whether or not listed on Schedule 4.06;

(f) any Liability for infringement, misappropriation or unfair competition claims arising from CPR Software Products or any related product or service, created, sold, licensed, distributed or marketed by Seller prior to the Effective Time; provided, however, that any Liability for infringement, misappropriation or unfair competition claims arising from such CPR Software Products or any such related product or service after the Effective Time will not constitute an Excluded Liability to the extent resulting from any misuse, negligence, revision, modification, improper use or unauthorized use of such CPR Software Products or any such related product after the Effective Time; further, provided, however, that any unfair competition claims arising after the Effective Time resulting from any business practices of Buyer after the Effective Time will not constitute an Excluded Liability; or

(g) any claims, choses in action, rights of recovery, rights of set-off of any kind by any third party arising out of the Business or the ownership of the Business Assets prior to the Effective Time.

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