asset acquisitions - Jackson Walker LLP

COMMENTClauses (v), (vii), (viii) and (x) of Section 1.2(a) are designed to eliminate the needfor repetitive and cumbersome use of (i) the phrase “as amended” after numerous referencesto statutes and rules, (ii) the phrase “including, but not limited to,” or “including, withoutlimitation,” in every instance in which a broad term is followed by a list of itemsencompassed by that term, (iii) “and/or” where the alternative and conjunctive are intended,and (iv) a list of all possible attachments or agreements relating to each document referencedin the Model Agreement. The REVISED MODEL BUS. CORP. ACT, Section 1.40(12)contains a similar definition: “‘Includes’ denotes a partial definition.” In certainjurisdictions, however, the rule of ejusdem generis has been applied to construe the meaningof a broad phrase to include only matters that are of a similar nature to those specificallydescribed. See, e.g., Forward Industries, Inc. v. Rolm of New York Corp., 506 N.Y.S.2d 453,455 (App. Div. 1986) (requiring the phrase “other cause beyond the control” to be limited toevents of the same kind as those events specifically enumerated); see also Buono Sales, Inc.v. Chrysler Motors Corp., 363 F.2d 43 (3d Cir.), cert. denied, 385 U.S. 971 (1966);Thaddeus Davids Co. v. Hoffman-LaRoche Chemical Works, 166 N.Y.S. 179 (App. Div.1917).2. SALE AND TRANSFER OF ASSETS; CLOSING2.1 ASSETS TO BE SOLDUpon the terms and subject to the conditions set forth in this Agreement, at the Closing, buteffective as of the Effective Time, Seller shall sell, convey, assign, transfer and deliver to Buyer, freeand clear of any Encumbrances other than Permitted Encumbrances, and Buyer shall purchase andacquire from Seller, all of Seller’s right, title and interest in and to all of Seller’s property and assets,real, personal or mixed, tangible and intangible, of every kind and description, wherever located,including the following (but excluding the Excluded Assets):(a) all Real Property, including the Real Property described in Parts 3.7 and 3.8;(b)(c)(d)all Tangible Personal Property, including those items described in Part 2.1(b);all Inventories;all Accounts Receivable;(e) all Seller Contracts, including those listed in Part 3.20(a), and all outstanding offersor solicitations made by or to Seller to enter into any Contract;(f) all Governmental Authorizations and all pending applications therefor or renewalsthereof, in each case to the extent transferable to Buyer, including those listed in Part3.17(b);(g) all data and Records related to the operations of Seller, including client and customerlists and Records, referral sources, research and development reports and Records,production reports and Records, service and warranty Records, equipment logs, operatingguides and manuals, financial and accounting Records, creative materials, advertising3148166v1- 40 -