Excluded Assets. (a) Notwithstanding any provision in this Agreement, Purchaser and the Purchaser Designated Affiliates are not purchasing or acquiring any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any assets, properties or rights other than the Purchased Assets (the “Excluded Assets”), including: (i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1; (ii) all Retained Real Property; (iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D); (iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter; (v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts; (vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products; (vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property; (viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business; (ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records; (x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash); (xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation); (xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto; (xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1; (xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith; (xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries; (xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan; (xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement; (xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1; (xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and (xx) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letter. (b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 4 contracts
Sources: Stock and Asset Purchase Agreement (Haleon PLC), Stock and Asset Purchase Agreement (Haleon PLC), Stock and Asset Purchase Agreement (Glaxosmithkline PLC)
Excluded Assets. (aNotwithstanding anything in Section 2.01(a) Notwithstanding any provision in this Agreementto the contrary, Purchaser the Sellers are not selling, and the Purchaser Designated Affiliates are Buyer expressly understands and agrees that the Buyer is not purchasing or acquiring buying, any assets and properties of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any assets, properties or rights Sellers other than those specifically listed or described more generally in Section 2.01(a), and, without limiting the Purchased Assets generality of the foregoing, the term “Transferred Assets” shall expressly exclude the following assets and properties of the Sellers and their Affiliates, all of which shall be retained by the Sellers and their Affiliates (the “Excluded Assets”), including:):
(i) other than as described in Section 2.01(a)(xv) or Section 2.01(a)(xvi), all assets constituting ownership interests incash, cash equivalents or that are used marketable securities of the Sellers and their Affiliates on hand or held for use in, by any bank or other third Person and all rights to any bank accounts of the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1Sellers and their Affiliates;
(ii) all Retained Real Propertyraw materials, work in process and, other than packaging materials and products used for repacking operations, packaging materials of the Business;
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) all accounts receivable of the Seller Disclosure LetterSellers and their Affiliates (including all such accounts receivable earned or accrued as of 11:59 p.m. Eastern Time on the Closing Date), and any personal computers loans and vehicles that are not primarily used advances by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D)Sellers;
(iv) all legal and beneficial interest in franchise rights, if any, and, except for the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries)Transferred Licensed Intellectual Property, other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IPowned by, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages otherwise authorized for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed use by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating theretoAffiliates;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xvv) except as set forth in Section 2.1(o2.01(a)(i) of the Disclosure Schedule, all of the Sellers’ right, title and interest in owned and leased real property and other interests in real property including all such right, title and interest under each real property lease pursuant to which any Seller leases, subleases (as sub-landlord or sub-tenant) or otherwise occupies any such leased real property, together in each case with the Sellers’ right, title and interest in, to and under all structures, facilities or improvements currently or as of the Closing Date located on any such real property and all easements, licenses, rights and appurtenances related to the foregoing;
(vi) all Tax Returns (other than Tax Returns related solely to the Business or the Transferred Assets, except that the Sellers and their Affiliates will retain all federal and state income Tax Returns, regardless of whether such income Tax Returns are related to the Business) and Tax Assets;
(vii) any employee benefit plans, programs, arrangements and agreements (including any retirement benefit and post-retirement health benefit plans, programs, arrangements and agreements, but not including any such agreements which are Assumed Contracts) sponsored or maintained by the Sellers or their respective Affiliates, and any trusts and other assets related thereto;
(viii) subject to Section 6.182.01(a)(xi), all current policies of, or agreements for, insurance and prior interests in insurance policies pools and programs of the Sellers;
(ix) all causes of action, lawsuits, judgments, claims and demands of any nature available to or being pursued by the Sellers (including counterclaims) and defenses (A) against third parties relating primarily to any of the Excluded Assets or the Excluded Liabilities as well as any books, records and privileged information relating thereto or (B) relating to any period through the Closing to the extent that the assertion of such cause of action or defense is necessary or useful in defending any claim that is asserted against the Sellers or for which indemnification is sought by the Buyer pursuant to Article IX;
(x) any interest of any Seller under this Agreement, any Companion Agreement and any other agreement, document or instrument entered into in connection with the transactions contemplated by this Agreement;
(xi) all personnel and employment records for employees and former employees of the Sellers, including Business Employees, except as otherwise provided in the Employee Matters Agreement;
(A) all corporate minute books (and other similar corporate records) and stock records of the Sellers; (B) any books and records relating primarily to the Excluded Assets; (C) any books, records or other materials that the Sellers (x) are required by Law to retain, (y) reasonably believe are necessary to enable the Sellers to prepare and/or file Tax Returns (copies of which will be made available to the Buyer upon the Buyer’s reasonable request) or (z) are prohibited by Law from delivering to the Buyer; and (D) copies of sales and promotional literature, manuals and data, sales and purchase correspondence, lists of suppliers and customers, and personnel and employment records that are Transferred Assets, provided that if the Sellers are required by Law to retain the originals of any such records, they may do so and in such case they will provide the Buyer with copies thereof;
(xiii) all Excluded Fountain Equipment;
(xiv) any and all rights under any bottling, manufacturing, distribution, sales or other related agreement for any TCCC brands and any of the goodwill and other intangible rights or assets associated therewith;
(xv) any nature with respect theretoother assets, including all insurance recoveries thereunder properties, rights, contracts and rights to assert claims with respect to any such insurance recoveriesof the Sellers or their Affiliates, wherever located, whether tangible or intangible, real, personal or mixed, that are specifically listed in Section 2.01(b)(xv) of the Disclosure Schedule;
(xvi) except as expressly set forth any other assets, properties, rights, contracts and claims of the Sellers or their Affiliates wherever located, whether tangible or intangible, real, personal or mixed, that are not primarily related to or primarily used or primarily held for use in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Planconnection with the Business;
(xvii) all corporate-level services (but not the assets related to such services any Shared Contract, to the extent such assets are Purchased Assets) of the type currently provided not assigned to the Business by Seller Parent or any of its Affiliates, Buyer pursuant to a Partial Assignment and without limiting Seller Parent’s obligations Release under the Transition Services AgreementSection 5.17;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1any Excluded Contract;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1Assets; and
(xx) the CBA Rights (and any and all ownership or other proprietary interest in any goodwill and other intangible rights or assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(frelating thereto or associated therewith), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested which are governed by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing DateComprehensive Beverage Agreement.
Appears in 4 contracts
Sources: Asset Purchase Agreement (Coca Cola Co), Asset Purchase Agreement (Coca Cola Co), Asset Purchase Agreement (Coca Cola Co)
Excluded Assets. (a) Notwithstanding any provision in this Agreement, Purchaser and the Purchaser Designated Affiliates are The Purchased Assets shall not purchasing or acquiring include any of Seller Parent’s or its Affiliates’ the following property and assets (including the Conveyed Subsidiaries’ or their Subsidiaries’) rightcollectively, title or interest in any assets, properties or rights other than the Purchased Assets (the “Excluded Assets”):
(a) all book debts and other debts due or accruing due to Seller prior to the Closing Time and the benefit of all security for such accounts, notes and debts, other than Accounts Receivable;
(b) receivables owing to the Seller or a Subsidiary (other than CCSC) relating to the Real Time Transaction;
(c) all cash on hand, cash equivalents, and bank deposits of the Seller or a Subsidiary (other than CCSC);
(d) all Short Term Investments of the Seller or a Subsidiary (other than CCSC);
(e) all minute books and stock ledgers of the Seller or a Subsidiary (other than CCSC);
(f) all Indebtedness to the Seller of any Affiliate or Subsidiary of the Seller;
(g) all personnel records that the Seller or a Subsidiary is required by Applicable Law to retain in its possession;
(h) all sponsorship obligations of the Seller under Employee Plans, including:Pension Plans, and Statutory Plans;
(i) all assets constituting ownership interests in, income Tax installments paid by the Seller or that are used a Subsidiary and the right to receive any refund of income Taxes paid by the Seller or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1a Subsidiary;
(iij) all Retained Real PropertyGeorgia State research and development tax credits receivables;
(iiik) Georgia State research and development deferred income;
(Al) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and all equity or other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) ownership interests in Subsidiaries of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D)CCSC;
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(viim) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, Contracts described in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their SubsidiariesSchedule 2.2(m) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash“Excluded Contracts”);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xxn) the assets set forth leases described in Section 2.3(a)(xxSchedule 2.2(n) of (the Seller Disclosure Letter“Excluded Leases”).
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 3 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Vecima Networks Inc.), Asset Purchase Agreement (Concurrent Computer Corp/De)
Excluded Assets. (a) Notwithstanding any provision in Subject to the terms of this Agreement, Purchaser and the Purchaser Designated Affiliates are Acquired Assets shall not purchasing or acquiring any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in include any assets, properties properties, rights or rights interests whether or not relating to the Product, other than those specifically listed or described in Sections 2.1 and 2.6 and, without limiting the Purchased Assets generality of the foregoing, shall expressly exclude the following assets of Reliant (collectively, the “Excluded Assets”)):
(a) all rights of Reliant arising under this Agreement, including:the Other Agreements or from the consummation of the transaction contemplated hereby or thereby;
(b) all rights of enforcement, indemnification and similar matters under the Assigned Contracts and Orders related to any periods prior to Closing; provided, however, that Reliant shall (i) all assets constituting ownership interests in, or that are used or held for use in, consult with the Retained Businesses, other than those assets identified as Purchased Assets Purchaser prior to exercising any such rights and (ii) exercise such rights in clauses (a) through (s) of Section 2.1a manner intended to minimize any adverse impact to the Purchaser’s relationship with any customers and suppliers party to the Assigned Contracts and Orders post-closing;
(iic) all Retained Real Property;
(iii) (A) the Retained Facilitiesrights, (A) any owned title and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of Reliant in and to any Person other than the Conveyed Subsidiaries (and their Subsidiaries)Intellectual Property, other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent whether now existing or any of its Affiliates is a party hereafter developed or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory acquired (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventorythe Reliant Brands) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Product Intellectual Property;
(viiid) all Governmental Authorizationsrights, including product registrations, manufacturing registrations title and environmental permits, owned, used or licensed by Seller Parent or any interest of its Affiliates Reliant in and not Related to the BusinessNizatidine Supply Agreement except as otherwise assigned to Purchaser pursuant to the Nizatidine Supply Agreement Assignment;
(ixe) all customer rights, title and vendor lists, all advertising, marketing, sales interest in and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the BusinessProduct outside of the Territory, and other than the Specified Recordslicense rights granted to Purchaser in Section 2.6(a)(ii);
(xf) all rights, title and interest of Reliant in and to Axid IR NDA and the IND (subject to the Purchaser’s right of reference under Section 2.6(g)); and
(g) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, payments received with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers thereto on or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements unpaid interest accrued on any such accounts receivable and any documents delivered security or received in connection herewith or therewith;
(xvcollateral related thereto) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) arising from sales of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), Product prior to the Closing, Seller Parent shall use commercially reasonable efforts Closing and that are accrued but unpaid on or prior to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating (collectively, the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date“Accounts Receivable”).
Appears in 3 contracts
Sources: Asset Purchase Agreement (Reliant Pharmaceuticals, Inc.), Asset Purchase Agreement (Reliant Pharmaceuticals, Inc.), Asset Purchase Agreement (Reliant Pharmaceuticals, Inc.)
Excluded Assets. Notwithstanding anything to the contrary contained herein, expressly excluded from the Assets are all of the right, title and interest of the Seller Group in and to the following (collectively, the “Excluded Assets”):
(a) Notwithstanding All corporate and Tax records of the Seller Group and any provision in this Agreementforeign subsidiaries of the Seller Group, Purchaser including corporate charters, corporate minute and stock books and records, and other documents and instruments relating solely to the Purchaser Designated organization, maintenance and existence of the Seller Group or such foreign subsidiaries or the Taxes of the Seller Group or such foreign subsidiaries;
(b) All claims (including any litigation or arbitration claims and any refunds and deposits), rights, rights of offset or causes of action that the Seller Group or their Affiliates are not purchasing may have against or acquiring from any Person relating to any of the Excluded Assets or the Excluded Liabilities;
(c) All refunds, pre-payments, net operating losses and claims relating to federal, state or municipal income Taxes of the Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ Group or their Subsidiaries’Affiliates for any period, or portion of any period, ending on or prior to the Closing Date;
(d) The capital stock of the Seller Group and each of their subsidiaries and all equity securities owned or held by any Seller Group or any of their subsidiaries, other than the Seller Group’s right, title or and interest in and to the Kobo Interest, subject to Section 2.9;
(e) All causes of action and claims that may be asserted against the Buyer and all rights of the Sellers under this Agreement or any Ancillary Agreement or any other agreements or instruments otherwise delivered in connection with this Agreement or any Ancillary Agreement;
(f) All of the interest of the Seller Group in and to all Real Property Leases other than the Assumed Real Property Leases (the “Excluded Real Property Leases”);
(g) All of the interest of the Seller Group in and to all Contracts other than the Assumed Contracts (the “Excluded Contracts”);
(h) All Equipment and leasehold improvements in the Store Closing Locations;
(i) All Excluded Licenses;
(j) All Inventory located at the Store Closing Locations;
(k) All Excluded Deposits;
(l) All confidential personnel and medical records of employees who do not become Transferred Employees;
(m) All assets, properties or rights other than relating to any Employee Plan of the Purchased Assets (the “Excluded Assets”), including:
(i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1Seller Group;
(iin) all Retained Real PropertyAll Avoidance Actions;
(iiio) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property All assets and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases rights relating to the assets described in Business sold or otherwise transferred or disposed of during the foregoing clauses (B) period from the date of this Agreement through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other RecordsClosing Date, in each case not Related to any event in accordance with the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates provisions of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xxp) All of the assets other assets, rights and properties set forth in Section 2.3(a)(xx) of the Seller Disclosure Letteron Schedule 1.3(p).
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 3 contracts
Sources: Asset Purchase Agreement (Borders Group Inc), Asset Purchase Agreement, Asset Purchase Agreement
Excluded Assets. (a) Notwithstanding Section 1.2 or any other provision hereof, the Acquired Assets will not in this Agreement, Purchaser and the Purchaser Designated Affiliates are not purchasing or acquiring any event include any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any following assets, properties properties, or rights other than the Purchased Assets of any Asset Seller (collectively, the “Excluded Assets”):
(a) all books and records not constituting an Acquired Asset described in Section 1.2(h), including:including each Asset Seller’s certificate of incorporation, bylaws and similar organizational documents, minutes, stock records and similar documents;
(b) all cash, cash equivalents (including marketable securities and short-term investments), bank accounts, lockboxes and deposits of, and any rights or interests in, the cash management system of any Asset Sellers, including uncleared checks and drafts received or deposited for the account of the Asset Sellers;
(c) all Retained Accounts Receivable;
(d) all rights to and the use of the “Newell”, “▇▇▇▇▇▇ Brands”, “Rubbermaid” or “DYMO” trade names and trademarks, any derivation or combination thereof and all associated goodwill, and any other Intellectual Property not specifically described in Section 1.2(e);
(e) all Contracts between any Asset Seller, on the one hand, and any Affiliate of such Asset Seller, on the other hand, and all intercompany receivables owed to any Asset Seller by any Affiliate of such Asset Seller;
(f) all rights under any Contracts other than the Business Contracts;
(g) all assets primarily used or held for primary use in connection with the performance of the centralized management functions provided to Purchaser and its Affiliates by Parent and its Affiliates pursuant to the terms of the Transition Services Agreement;
(h) all rights to and in Employee Benefit Plans and any trusts, insurance arrangements or other assets held pursuant to, or set aside to fund the obligations of an Asset Seller under, any such Employee Benefit Plans, other than the Assumed Benefit Plan Assets;
(i) all assets constituting ownership interests in, insurance policies and all rights of every nature and description under or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) arising out of Section 2.1such insurance policies;
(iij) all Retained Real Propertyclaims for and rights to any deferred Tax asset or to receive Tax refunds relating to the operation or ownership of the Business or the Acquired Assets for any Pre-Closing Tax Period, including any refunds or rebates of anti-dumping, countervailing or other customs duties, tariffs or charges relating to the operation of the Business or ownership of the Acquired Assets prior to Closing;
(iiik) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related except to the Business, except as extent set forth on in Section 2.1(d)(i)(B4.9(d) of the Seller Disclosure Letter, all application systems and any personal computers software, including all computer software, programs and vehicles that are not primarily used by the Transferred Employees in respect of the Businesssource disks, (A) the Information Systems of Seller Parent and its Subsidiariesrelated program documentation, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries)tapes, other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contractsmanuals, sales ordersforms, purchase orders, instruments guides and other commitmentsmaterials, obligations computer hardware and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their propertiesother systems hardware and networking and communications assets, assets or rights is subjectincluding servers, databases, backups and peripherals, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to in the Business;
(ixl) all customer uniform product codes other than the Acquired UPCs;
(m) all rights under this Agreement, the Ancillary Agreements, the other agreements and vendor lists, all advertising, marketing, sales instruments executed and promotional materials, and business and financial records, books, and documents and other Records, delivered in each case not Related to the Businessconnection with this Agreement, and the Specified Recordstransactions contemplated hereby or thereby;
(xn) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds inventory that is not Inventory as described in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net CashSection 1.2(a);
(xio) all Tax refundsmachinery, Tax credits or equipment, furniture, furnishings, fixtures, tools and other Tax Assets of tangible personal property listed on Exhibit 1.3(o) (the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation“Excluded Equipment”);
(xiip) all Seller Combined Tax Returns assets primarily related to the development, manufacture, distribution and sale of handheld label makers, label printers and other products, as conducted by Parent and certain of its Subsidiaries under the name DYMO® (the “DYMO Business”);
(q) all Tax Returns rights arising out of or relating to the action set forth on Exhibit 1.4(h);
(r) any claims of the Asset Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiariesa Purchased Company) that do not relate solely related to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;Excluded Asset; and
(xiiis) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letteron Exhibit 1.3(s).
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 3 contracts
Sources: Stock and Asset Purchase Agreement, Stock and Asset Purchase Agreement (Stanley Black & Decker, Inc.), Stock and Asset Purchase Agreement (Newell Brands Inc)
Excluded Assets. (a) Notwithstanding any provision anything contained in this AgreementAgreement (including Section 2.01) to the contrary and except to the extent of rights expressly provided in certain Transaction Agreements, Purchaser and the Purchaser Designated Affiliates are not purchasing or acquiring neither Seller nor any of Seller Parent’s its Affiliates is selling, transferring, conveying or its Affiliates’ delivering (including the Conveyed Subsidiaries’ or their Subsidiaries’) rightcausing to be sold, title transferred, conveyed or interest in delivered), and Purchaser is not purchasing, assuming or accepting any assets, properties properties, rights and contracts of Seller or rights any of its Affiliates, or any interests therein, other than the Purchased Transferred Assets (all such assets, properties, rights and contracts of Seller or any of its Affiliates, or any interests therein, other than the Transferred Assets being referred to herein as the “Excluded Assets”). Without limiting the generality of the foregoing, includingall of the following shall constitute Excluded Assets:
(ia) all assets constituting ownership interests incash and cash equivalents, or that are used or held for use inincluding checking accounts, the Retained Businessesbank accounts, other than those assets identified as Purchased Assets in clauses (a) through (s) certificates of Section 2.1;
(ii) all Retained Real Property;
(iii) (A) the Retained Facilitiesdeposit and securities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates Affiliates;
(b) all intercompany receivables and other amounts due from Seller or its Affiliates;
(c) all contracts to which Seller or any Affiliate thereof is a party or by which is otherwise bound other than the Assigned Contracts;
(d) any real estate leases, real estate title, or any installations, fixtures, and other improvements at Seller’s or any of its Affiliates’ leased real estate, whether or their properties, assets or rights is subjectnot used for the benefit of the Business, in each case other than Assumed Contractsthe Assigned Lease or as contemplated by Section 2.01(g);
(vie) all inventory furniture, fixtures, equipment (including all raw material inventorycomputer hardware), work-in-process inventory, spare parts inventory machinery and finished products inventory) other than the Inventory and any samples tangible personal property of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and that are not Related to the Businesslisted on Schedule II(c);
(ixf) all customer Permits of Seller or its Affiliates;
(g) Seller’s or any of its Affiliates’ rights under any policies of insurance or any benefits, proceeds, or premium refunds payable or paid thereunder or with respect thereto;
(h) all rights of Seller or any of its Affiliates to file for or receive any refunds, credits or similar benefits for Taxes levied and vendor listsimposed upon, all advertisingor in connection with, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related the Transferred Assets or the conduct or operation of the Business allocable to any Pre-Closing Period or to the Business, portion of the Straddle Period ending on the Closing Date;
(i) the Excluded Books and the Specified Records;
(xj) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts rights of Seller Parent or any of its Affiliates under the Transaction Agreements;
(k) all rights of Seller or any of its Affiliates to indemnification from any Person with respect to any of the Excluded Liabilities;
(l) all prepaid Taxes allocable to taxable periods or portions thereof ending on or before the Closing Date;
(m) all Intellectual Property owned by Seller or any of its Affiliates (including all rights in and to the Conveyed Subsidiaries Seller Trademarks), other than the Transferred Intellectual Property;
(n) all Intellectual Property licensed to Seller or any of their Subsidiaries) (its Affiliates, other than the accounts receivable and other assetsIntellectual Property licensed pursuant to an Assigned Contract;
(o) all of Seller’s or any of its Affiliates’ e-mail addresses, in each case included in the calculation of the Final Business Working CapitalURLs, websites, website content, and the Cash Equivalents included in the calculation of Final Business Net Cashtelephone numbers, other than as contemplated by Section 2.01(h);
(xip) all Tax refunds, Tax credits or other Tax Assets of the Sellers bank accounts and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account lockboxes used in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation)Business;
(xiiq) all Seller Combined Tax Returns and all Tax Returns assets in respect of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating theretoEmployee Benefit Plan;
(xiiir) all claimsany assets arising out of, defensesand any associated claims arising out of, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1the Excluded Liabilities;
(xivs) all rights any legal or beneficial interest in the capital stock and other equity interests of Seller Parent or its Affiliates;
(t) the accounts and notes receivable not included in the Transferred Assets;
(u) any assets transferred or otherwise disposed of by Seller or any of its Affiliates (for clarity, other than, from and after than any intercompany transfers or sales) in compliance with Section 5.01(a) prior to the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xviiv) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business accounting systems owned or used by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under whether or not used in connection with the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights operation of any Person that are not Related to the Business, including all assets, properties those that comprise the Shared Service Functions and rights constituting ownership interests in, Assets;
(w) any assets utilized by Seller or that are used or held for use in, or related to, the Retained Businesses, any of its Affiliates in each case connection with businesses other than the Business, including those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1that comprise the Shared Service Functions and Assets; and
(xxx) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure LetterShared Service Functions and Assets.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 2 contracts
Sources: Master Transaction Agreement, Master Transaction Agreement (Aetna Inc /Pa/)
Excluded Assets. Notwithstanding anything to the contrary contained herein, any and all of the Sellers’ right, title and interest in and to the following assets (the “Excluded Assets”) shall be specifically excluded from, and shall not constitute, the Purchased Assets:
(a) Notwithstanding All Seller Benefit Plans and any provision and all assets related to such Seller Benefit Plans;
(b) Any and all Contracts other than the Assigned Contracts;
(c) All owned and leased real property and other interests in this Agreementreal property;
(d) Any and all Intellectual Property other than the Purchased IP, Purchaser including all Trademarks used in connection with the Business as of Closing (the “Excluded Trademarks”) and all Intellectual Property related exclusively to Existing DH-I;
(e) Copies of the Purchaser Designated Affiliates are Purchased Documentation and other information, materials and data related exclusively to Existing DH-I;
(f) Any and all insurance policies and binders and interests in insurance pools and programs and self-insurance arrangements whether or not purchasing relating to the Business, for all periods before, through and after the Closing;
(g) Any and all non-transferrable Business Permits and Business Permits set forth or acquiring described in Schedule 2.5(g);
(h) All assets, rights and properties set forth or described in Schedule 2.5(h); and
(i) All refunds, credits, rights to refunds, adjustment or similar benefit (including interest thereon) and any other Tax assets of the Sellers or any of Seller Parent’s their Affiliates, including any such item relating to any Purchased Asset or its AffiliatesAssumed Liability for any Pre-Closing Tax Period but excluding any such item relating to Transfer Taxes allocated to Purchaser under Section 6.2 or Property Taxes specifically allocated to Purchaser under Section 6.3; and, subject to the Sellers’ obligations under Section 6.1, all Tax Returns, books and records (including work papers related thereto) of the Conveyed Subsidiaries’ Sellers or any of their Subsidiaries’) Affiliates. The Parties acknowledge and agree that neither Purchaser nor any of its Affiliates will acquire or be permitted to retain any direct or indirect right, title or interest in any assets, properties or rights other than the Purchased Assets (the “Excluded Assets”), including:
(i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1;
(ii) all Retained Real Property;
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Thoratec Corp)
Excluded Assets. (aNotwithstanding anything in Section 2.01(a) Notwithstanding any provision in this Agreementto the contrary, Purchaser Buyer shall not purchase, and the Purchaser Designated Affiliates are Purchased Assets shall not purchasing or acquiring include, any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or and interest in or to any assetsof the following assets of Parent and its Affiliates (collectively, properties or rights other than the Purchased Assets (the “Excluded Assets”), including:):
(i) all assets constituting ownership interests incash and cash equivalents, securities and negotiable instruments on hand, in lock boxes, in financial institutions or that are used elsewhere, including any cash residing in any collateral cash account securing any obligation or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1contingent obligation;
(ii) all Retained Real Propertyintercompany receivables between Parent and any of its Affiliates, or between any Affiliate of Parent and any other Affiliate of Parent, and all accounts, notes and other receivables resulting from sales by Parent or its Affiliates of products (whether or not generated by the Business) prior to Closing, whether current or noncurrent, including all file documentation related to such accounts, notes and other receivables, including invoices, shipping documents, communications and correspondence submitted to or received from customers related to such sales;
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as otherwise expressly set forth on Section 2.1(d)(i)(B) of in this Agreement or the Seller Disclosure LetterAncillary Agreements, and the ownership right in any personal computers and vehicles property, interest, right or asset, including Contracts, that are not primarily is used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and primarily in one or more other businesses of Parent (A) any leases relating to the assets described in the foregoing clauses (B) through (Deach, a “Shared Asset(s)”);
(iv) all legal Real Property of Parent and beneficial interest in the share capital its Affiliates (including any of Parent’s or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiariesits Affiliates interests therein as a tenant or otherwise), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts businesses of Parent and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contractsthe Business (the “Excluded Businesses”);
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory subject to Section 5.05 and any samples of Productslicense granted in accordance therewith, the Licensed Marks;
(vii) the Retained Names and all other Business Licensed Intellectual Property that is not Business IP, including such Intellectual Property to be licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of Buyer pursuant to the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual PropertyOut-License Agreement;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller the Parent or any of its Affiliates and not Related to the BusinessRetained Intellectual Property;
(ix) all customer Parent’s and vendor listsits Affiliates’ investments in, all advertisingor joint ventures or other partnerships with, marketingother third-party businesses (equity, sales and promotional materialsdebt or otherwise), and business and financial records, books, and documents and other Records, in each case whether or not Related related to the BusinessBusiness (collectively, and the Specified Records“Parent’s Investments”);
(x) all accounts receivable rights and other current assets and privileges under all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates Contracts of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, other than the Acquired Contracts and without limiting Seller Parent’s obligations under the Transition Services AgreementShared Contracts;
(xviiixi) all third-party warrantiesdeposits and prepaid expenses made or paid to utility companies, indemnities, further assurances and similar covenants and guarantees vendors or other than those identified as Purchased Assets in Section 2.1Persons;
(xixxii) all assetsTax assets (including, properties but not limited to, any refunds or credits with respect to any Taxes paid or incurred by Parent or any Seller, any prepaid Taxes of Parent or any Seller, and any other rights to Taxes of Parent or any of the Sellers);
(xiii) all Tax Returns (including supporting work papers and other documents relating to the Tax policies of Parent or any Seller, transfer pricing studies and other proprietary information related to the preparation and filing of Tax Returns, calculations of Tax and similar matters) that are not Purchased Assets;
(xiv) subject to Section 9.16, any attorney-client privileges and rights of Parent or any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1its Affiliates; and
(xxxv) all rights of Parent and its Affiliates arising under this Agreement or the assets set forth in Section 2.3(a)(xx) Ancillary Agreements, or from the consummation of the Seller Disclosure Lettertransactions contemplated hereby and thereby.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Minerva Surgical Inc), Asset Purchase Agreement (Minerva Surgical Inc)
Excluded Assets. (a) Notwithstanding any provision anything in this Agreement, Purchaser and the Purchaser Designated Affiliates are not purchasing or acquiring any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any assets, properties or rights other than the Purchased Assets (the “Excluded Assets”), including:
(i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1;
(ii) all Retained Real Property;
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related Agreement to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other thancontrary, from and after the Closing, the Conveyed Subsidiaries Seller’s Group shall retain all of its right, title and their interest in and to, and there shall be excluded from the direct or indirect sale, conveyance, assignment or transfer to the Purchaser or its Affiliates pursuant to Section 2.01(b), and the Transferred Assets shall not include, the following assets, rights and properties of the Seller’s Group (other than, subject to Section 2.01(d), the Transferred Subsidiaries):
(i) under this Agreement or the Ancillary Agreements and any documents delivered or received those assets set forth in connection herewith or therewithAnnex 2.01(c)(i);
(xvii) any (A) Intellectual Property Rights not Exclusively Related to the Business or (B) any Contract relating to Intellectual Property Rights that is not a Transferred Intellectual Property Contract;
(iii) the Seller Retained Marks;
(iv) any product, and any permits, licenses, certificates, registrations, marketing or other authorizations or consents issued by any Governmental Entity in any jurisdiction in respect of any product, or any applications therefore, other than the Products, Product Approvals, Products Under Registration and Marketing Authorizations transferrable under Applicable Law;
(v) all cash, marketable securities and negotiable instruments;
(vi) all real property and any leases therefor and interests therein, together with all buildings, fixtures, and improvements erected thereon, other than the Transferred Real Property;
(vii) the company seal, minute books, charter documents, stock or equity record books and such other books and records pertaining to the Seller or its Affiliates (other than the Transferred Subsidiaries), as well as any other records or material relating to the Seller or its Affiliates (other than the Transferred Subsidiaries) generally and not involving or related to the Transferred Assets or the Business;
(viii) any right of the Seller or its Affiliates to be indemnified in respect of Excluded Liabilities or any Excluded Asset;
(ix) all Tax assets (including Tax refunds and prepayments);
(x) all Tax Returns of the Seller’s Group and all books and records (including working papers) related thereto, except as set forth in Section 2.01(b)(xvi);
(xi) any intercompany receivables of the Business, other than Intra-Group Trading Balances;
(xii) all Seller’s Group Insurance Policies and rights to proceeds thereunder;
(xiii) all artwork, paintings, drawings, sculptures, prints, lithographs, photographs and other artistic works of the Seller’s Group;
(xiv) except as set forth in Section 2.1(o6.08 and Annexes 6.08(k) and subject to Section 6.186.08(l), all current and prior insurance policies and all rights in connection with any assets of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to Benefit Plan other than any such insurance recoveriesTransferred Subsidiary Benefit Plan;
(xv) any equity interest held by the Seller’s Group in any Person other than a Transferred Subsidiary;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Planthe Excluded Contracts;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) rights of the type currently provided to Seller’s Group under this Agreement and the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services AgreementAncillary Agreements;
(xviii) all third-those assets, rights and properties that are to be used by, or necessary for, the Seller’s Group or its designated third party warranties, indemnities, further assurances and similar covenants and guarantees to provide services to the Purchaser or its Affiliates under any of the Ancillary Agreements (other than those identified as Purchased Assets assets, properties or rights that are Exclusively Related to the Business and required to be listed on a statement of net assets of the Animal Health Group in Section 2.1;accordance with the Statement of Net Asset Rules); and
(xix) all assets, rights and properties and rights of any Person that are not Exclusively Related to the Business, including all . The assets, rights and properties referred to in this Section 2.01(c) and rights constituting ownership interests in, or that are used or held for use in, or related toin Section 2.01(d), the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure LetterExcluded Assets.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 2 contracts
Sources: Stock and Asset Purchase Agreement (Novartis Ag), Stock and Asset Purchase Agreement (Lilly Eli & Co)
Excluded Assets. (a) Notwithstanding any provision Buyer expressly understands and agrees that, notwithstanding anything to the contrary set forth in this AgreementSection 2.02, Purchaser and all of the Purchaser Designated Affiliates are not purchasing or acquiring any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any following assets, properties or and rights other than the Purchased Assets (the “Excluded Assets”) of Seller and its Retained Subsidiaries (and the Acquired Entities to the extent such assets, properties or rights would have been an Excluded Asset if held by Seller or one of its Retained Subsidiaries) shall be retained by, and remain the property of, Seller or a Retained Subsidiary, and shall be excluded from the Purchased Assets:
(a) (x) all contracts, agreements, licenses, commitments, sales and purchase orders and other instruments (other than the Assigned Contracts), including:including enterprise software agreements, and (y) all Transportation Contracts;
(b) all interests in the capital stock of, or any other equity interests in, Seller or any Retained Subsidiary (or securities convertible, exchangeable or exercisable therefor);
(c) all Cash (other than any Cash of the Acquired Entities);
(d) all real property (including leases thereof), and all buildings, furniture, fixtures and improvements erected thereon, equipment (including machinery) and other tangible personal property (other than as provided by Section 2.02(e) or Section 2.02(f));
(e) all insurance policies, historical and in-force;
(f) except for the Transferred Intellectual Property, Intellectual Property owned by an Acquired Entity and any Intellectual Property licensed pursuant to an Assigned Contract, all other Intellectual Property owned by or licensed to Seller or any of its Affiliates or with respect to which Seller or any of its Affiliates otherwise has any right, title, or interest, including all Seller Names and Marks;
(g) except for the Transferred IT Assets, all other IT Assets;
(h) all rights of Seller or any of the Retained Subsidiaries arising under the Transaction Documents or the transactions contemplated hereby or thereby;
(i) all assets constituting ownership interests in(i) books, records, files and papers (whether electronic or that are used otherwise) prepared or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1;
(ii) all Retained Real Property;
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities received by or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems behalf of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any in connection with the sale of its or their propertiesthe Business and the transactions contemplated hereby, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventoryanalyses relating to the Business, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and Seller or any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) prospective purchaser of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent Business or any of its their Affiliates so prepared or received, (ii) confidentiality agreements with prospective purchasers of the Business or any portion thereof (except that Seller shall, to the extent it is able, assign to Buyer at the Closing all of Seller’s rights under such agreements to confidential treatment and limited use of information with respect to the Business and with respect to solicitation and hiring of Continuing Employees) and all bids and expressions of interest received from third parties with respect thereto and (iii) all privileged materials, attorney work product, documents and records to the extent not Related related to the Business;
(ixj) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related accounting goodwill related to the Business, and the Specified Records;
(xk) all accounts receivable and other current assets and all cash and cash equivalentsSeller Tax Records, checksTax Assets, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capitalrights to Tax refunds, and tax credits;
(l) the Cash Equivalents included tariff exclusions-related receivable referenced in Seller’s management accounts as line item “Non-trade receivables #1155” (the calculation of Final Business Net Cash“Tariff Receivable”);
(xim) all Tax refunds, Tax credits any asset or other Tax class of assets excluded from Purchased Assets by virtue of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account limitations expressed in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation)definition thereof;
(xiin) all Seller Combined Tax Returns assets used for purposes of providing the services, rights and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and support described in each case any books and records relating thereto;Section 7.10; and
(xiiio) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) the other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, (including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, contracts) listed in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (sSection 2.03(o) of Section 2.1the Disclosure Schedule; and
(xxp) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement all insurance claims to the contrary but subject to Section 6.5(f), prior extent not relating to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 2 contracts
Sources: Asset and Stock Purchase Agreement (SB/RH Holdings, LLC), Asset and Stock Purchase Agreement (SB/RH Holdings, LLC)
Excluded Assets. (a) Notwithstanding any provision anything to the contrary in this Agreement, Purchaser nothing in this Agreement will constitute a transfer to Buyer, or will be construed as conferring on Buyer, and the Purchaser Designated Affiliates are Buyer will not purchasing or acquiring acquire, any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in or to any assetsof the following (collectively, properties or rights other than the Purchased Assets (the “Excluded Assets”):
(a) the real property described on Schedule 2.2(a) (collectively, the “Excluded Real Property”), including:;
(b) (i) all assets constituting ownership interests in, or of Seller’s easements in the Transferred Territory that are not primarily related to the VA Distribution Business, and (ii) all of Seller’s easements that are described on Schedule 2.2(b) (collectively, the “Excluded Easements”);
(c) the Transmission Facilities;
(d) items of Inventory excluded from the definition of Acquired Assets pursuant to Section 2.1(f);
(e) all other machinery (mobile or otherwise), equipment (including computer and office equipment), tools, furniture and furnishings and other personal property that, in each case, are not classified as inventory under GAAP and are not owned by Seller or used or held for use in, by Seller primarily in the Retained Businesses, other than those assets identified as Purchased Assets VA Distribution Business in clauses (a) through (s) of Section 2.1the Transferred Territory and any vehicles or trailers owned by Seller that are not set forth on Schedule 2.1(g);
(iif) the Equipment Leases and all Retained Real Propertyother Contracts that would be Transferred Contracts but for the fact that they relate primarily to assets or operations located outside the Transferred Territory or to assets or operations other than the VA Distribution Business (the “Shared Contracts”) and all other Contracts that are not Transferred Contracts;
(iiig) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) Permits of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily related to the VA Distributions Business in the Transferred Territory;
(h) any other asset of Seller that is not primarily used by Seller in the VA Distribution Business in the Transferred Employees Territory;
(i) cash and cash equivalents, including cash held pursuant to money pool arrangements, and all other Current Assets of Seller except as provided in respect of the BusinessSection 2.1(f), (Ag), (m) the Information Systems of Seller Parent and its Subsidiariesor (s), ;
(j) all Intellectual Property other than the Business IT Systems Intellectual Property described on Schedule 2.1(o) (the “Retained Intellectual Property”); subject to Buyer’s rights as provided in Section 7.9;
(k) the property and equipment described on Schedule 2.2(k) plus any vehicles and trailers owned by Seller that are not listed on Schedule 2.1(g) (A) any leases relating to collectively, the assets described in the foregoing clauses (B) through (D“Excluded Tangible Personal Property”);
(ivl) Seller’s Shared Equipment;
(m) subject to Section 2.5, any rights under an Equipment Lease or related equipment or vehicles that Seller is not permitted to assign at Closing;
(n) all assets disposed of by Seller after the date of this Agreement, to the extent this Agreement does not prohibit the disposition;
(o) all personnel records of Seller and its Affiliates relating to their employees other than Transferring Employee Records and other records that are required to be disclosed by applicable Laws, subpoena or legal or regulatory process;
(p) except for the assignment and beneficial interest assumption of any Power Purchase Agreement otherwise contemplated hereby, all intercompany agreements between Seller and an Affiliate of Seller, and all accounts owing by and among Seller and any of its Affiliates, whether or not any such intercompany agreement or account relates to the provision of goods and services, payment arrangements, intercompany charges or balances, or the like;
(q) subject to Section 7.7, all rights to refunds of Taxes with respect to the VA Distribution Business or the Acquired Assets attributable to taxable periods, or portions thereof, ending prior to or as of the Effective Time, and any rights to refunds of Taxes with respect to any other assets, properties or operations of Seller or any of its Affiliates;
(r) subject to Section 2.1(n), all claims, causes of action, rights of recovery, rights of set off and rights of recoupment of Seller against third parties relating to the VA Distribution Business in the share capital or equity interest of any Person other than Transferred Territory prior to the Conveyed Subsidiaries Effective Time;
(and their Subsidiariess) subject to Section 2.1(n), other than those equity interests set forth on Section 2.1(q) all insurance policies, bonds, letters of credit or similar items, and any cash surrender value in regard thereto, including deposits made by Seller with regard to workers’ compensation coverage, and any and all claims related to any of the Seller Disclosure Letterforegoing;
(t) all assets attributable to or related to Benefit Plans;
(u) the Collective Bargaining Agreement;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.187.23, all current power purchase or supply agreements, transmission service agreements, power, fuel or commodity hedging or derivative or forward purchase agreements, and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is other agreements not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets primarily related to such services to the extent such assets are Purchased Assets) construction, ownership, operation or maintenance of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1Acquired Assets; and
(xxw) the assets set forth in Section 2.3(a)(xx) real and personal property subject to the sale to the Town of Front Royal, Virginia pursuant to that certain ordinance of the Seller Disclosure Lettertown council of the Town of Front Royal, Virginia, dated January 12, 2009.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Allegheny Energy, Inc), Asset Purchase Agreement (Allegheny Energy, Inc)
Excluded Assets. (a) Notwithstanding The Purchased Assets do not include any property or assets of Seller not described in Section 2.1 and, notwithstanding any provision to the contrary contained in Section 2.1 or elsewhere in this Agreement, Purchaser and the Purchaser Designated Affiliates are not purchasing or acquiring any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any assets, properties or rights other than the Purchased Assets do not include any of the following property or assets of Seller (all assets excluded pursuant to this Section 2.2 are referred to in this Agreement as the “Excluded Assets”), including:):
(i1) all assets constituting ownership interests incash, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1cash equivalents and bank deposits;
(ii2) all Retained Real Property;
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal real property and other tangible or real property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems interests of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets not described in the foregoing clauses (B) through (Don Exhibit 2.1(1);
(iv3) all legal and beneficial interest machinery, equipment, tools, furniture, furnishings or other fixed assets of Seller not described on Exhibit 2.1(2);
(4) inventory of supplies, stores, tools, parts or materials of Seller not used in the share capital operation of the Projects;
(5) receivables or equity interest of other rights to receive payments to the extent attributable to any Person period prior to the Effective Time;
(6) books, records, or the like other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure LetterDocuments;
(v7) all Shared Contracts and all assets that have been disposed of prior to the Closing Date without violation of this Agreement;
(8) the rights of Seller arising under or in connection with this Agreement, any Ancillary Agreement, or any certificate or other Contractsdocument delivered in connection with this Agreement or any Ancillary Agreement, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party the transactions contemplated by this Agreement or by which any of its or their properties, assets or rights is subject, in each case other than Assumed ContractsAncillary Agreement;
(vi9) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts shares of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) stock (other than the accounts receivable and other assetsWVIC Shares), in each case included in the calculation securities, bonds, debentures, evidences of the Final Business Working Capitalindebtedness, and the Cash Equivalents included any other debt or equity interest in the calculation of Final Business Net Cash)any Person;
(xi10) all Tax refunds, Tax credits or other Tax Assets the names “NewPage,” “NewPage Wisconsin System,” “NewPage Wisconsin System Inc.,” “SENA,” “Stora Enso North America,” “Consolidated Water Power,” “Consolidated Water Power Company” and any derivative of any of the Sellers foregoing, and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c)related, whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilitiessimilar, and in each case any books other trade names, trademarks, service marks, and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights logos of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 2 contracts
Sources: Asset Sale Agreement, Asset Sale Agreement (NewPage CORP)
Excluded Assets. (a) Notwithstanding any provision in this AgreementNothing herein contained shall be deemed to sell, Purchaser assign, transfer, convey or deliver to Buyer, and the Purchaser Designated Seller and its Affiliates are not purchasing or acquiring any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) shall retain, all right, title or and interest in any in, to and under the following assets, properties or properties, interests and rights other than the Purchased Assets of Seller and its Affiliates (collectively, the “Excluded Assets”), including:):
(i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through all cash, cash equivalents, bank deposits, investment accounts, lockboxes, certificates of deposit, marketable securities or similar cash items of Seller and its Affiliates and all bank accounts of Seller and its Affiliates (s) of Section 2.1;
(ii) all Retained Real Property;
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(Bin Sections 1.1(l) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (Do));
(ivb) all legal Contracts of Seller and beneficial interest in the share capital or equity interest of any Person its Affiliates other than the Conveyed Subsidiaries Purchased Contracts, (and their Subsidiariesthe “Excluded Contracts”), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(vc) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements any refund that Seller is entitled to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contractsunder Section 7.6;
(vid) except as set forth in Section 1.1(o), all inventory (including all raw material inventoryinsurance policies, work-in-process inventorybinders, spare parts inventory claims or rights to proceeds thereof relating to the assets, properties, business or operations of Seller and finished products inventory) other than the Inventory and any samples of Productsits Affiliates;
(viie) the Retained Seller Names and Marks, including the Raybestos Marks, and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Selling Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, Business Intellectual Property referred to in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net CashSection 1.1(g);
(xif) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claimsactions, defenses, credits, claims, causes of action, counterclaims and demands or rights of set-off against third parties setoff of any kind (in each case at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent, including rights and claims arising from any violation of Law), and all rights under and pursuant to all indemnities, warranties, representations and guarantees made by suppliers, manufacturers, contractors, customers or other third parties that are not related to the Purchased Assets or to Assumed Liabilities, and the right to collect damages or proceeds in connection therewith;
(g) all Books and Records that are identified as Excluded Assets pursuant to Section 1.1(f);
(h) all customer (including prospective customer) and vendor lists of Seller and its Affiliates other than those identified as Purchased Assets referred to in Section 2.11.1(e);
(xivi) any other product lines, Contracts, assets or property of the Seller and its Affiliates not used in or relating to, the Business, including any product lines, Contracts, assets or property of the Excluded Businesses;
(j) the capital stock of Seller and all Affiliates of Seller;
(k) all Information Technology assets that are identified as Excluded Assets pursuant to Section 1.1(p);
(l) the Overhead and Shared Services;
(m) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) Seller’s right to the Initial Purchase Price and Section 6.6Final Purchase Price hereunder), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xviin) all corporate-level services (but not real property owned or leased by Seller and its Affiliates other than the assets related to such services Owned Real Property and the real property subject to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1Real Property Leases; and
(xxo) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letteron Schedule 1.2(o).
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Affinia Group Intermediate Holdings Inc.), Asset Purchase Agreement (Federal Mogul Corp)
Excluded Assets. (a) Notwithstanding any provision in this AgreementOther than the Purchased Assets, Purchaser Buyer expressly understands and the Purchaser Designated Affiliates are agrees that it is not purchasing or acquiring acquiring, and Seller is not selling, assigning transferring or conveying, any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any other assets, properties or rights of Seller or any of its Affiliates, and all such other than assets, properties and rights shall be excluded from the Purchased Assets (the “Excluded Assets”). The Excluded Assets include, includingwithout limitation, the following assets and properties of Seller:
(i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1[reserved];
(iib) all Retained Real Property;
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checksdeposits, money orders, marketable securitiesbank accounts, short-term instrumentsinvestments, bank securities, equity interests and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits capital stock held by Seller or similar its Affiliates;
(c) all accounts receivable of Seller Parent or its Affiliates, except to the extent that such receivable is related solely to a Purchased Asset;
(d) any agreement, Contract, obligation or other undertaking of Seller or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assetsAssigned Contracts, in each case included in including any Contract related to the calculation of the Final Business Working Capital, Excluded Businesses and the Cash Equivalents included in the calculation of Final Business Net CashContracts listed on Schedule 2.02(d) (each, an “Excluded Contract”);
(xie) all Tax refundsof Seller’s investor, Tax credits repurchase, warehouse and similar liquidity and financing agreements or other Tax Assets of the Sellers arrangements and any refund agreements or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior arrangements related to the ClosingPipeline Loans, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement including interest rate locks and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether related ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1▇;
(xivf) Seller’s Intellectual Property other than the Purchased IP;
(g) the corporate seals, Organizational Documents, minute books, stock books, Tax Returns, books of account or other records having to do with the corporate organization of Seller, and all employee-related or employee benefit-related files or records;
(h) all rights of Seller Parent or any to Tax refunds, rebates and similar repayments of its Affiliates (for clarityTaxes, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims each case with respect to any such insurance recoveriesTax period ending on or before the Closing Date;
(xvii) all insurance policies of Seller and its Affiliates and all rights to applicable claims and proceeds thereunder;
(j) all Seller Benefit Plans and trusts or other assets attributable thereto;
(k) except as expressly set forth otherwise provided in this Agreement (including Section 2.1(p) and Section 6.62.01(i), all assets rights to any Action available to or being pursued by Seller, whether arising by way of any Seller Group Plan counterclaim or Foreign Seller Group Plan that is not a Conveyed Subsidiary Planotherwise;
(xviil) all corporate-level services (but not the assets related rights which accrue or will accrue to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services AgreementTransaction Documents;
(xviiim) all third-party warrantiesany asset, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1property or right of Seller relating to the Excluded Businesses;
(xixn) all assets, properties and rights any contracts or instruments of Seller related to hedging risk related to any Person that are not Related to the Businessloan, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1Pipeline Loans; and
(xxo) for the assets set forth in Section 2.3(a)(xx) avoidance of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f)doubt, prior to the Closingany asset, Seller Parent shall use commercially reasonable efforts to take (property or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return right of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes Affiliate of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing DateSeller.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Impac Mortgage Holdings Inc), Asset Purchase Agreement (Impac Mortgage Holdings Inc)
Excluded Assets. (a) Notwithstanding any provision anything to the contrary contained in Section 2.1 or elsewhere in this Agreement, Purchaser and the Purchaser Designated Affiliates are not purchasing or acquiring any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any assets, properties or rights all Assets other than the Purchased Assets, including the following Assets (collectively, the “Excluded Assets”), includingshall not be part of the sale and purchase contemplated hereunder and shall remain the property of Seller after the Closing:
(a) All minute books and corporate seals of Seller;
(b) The capital stock or other equity securities of Seller, whether held in treasury or otherwise;
(c) The consideration paid to Seller pursuant to this Agreement;
(i) Originals of all assets constituting ownership interests in, or personnel records and (ii) originals of all other records that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets Seller is required by Law to retain in clauses (a) through (s) of Section 2.1its possession;
(iie) all Retained Real Property;
(iiiAll Contracts not expressly assigned to and assumed by Purchaser pursuant to Section 2.1(e) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D“Excluded Contracts”);
(ivf) all legal All structures, machinery, equipment, tools, furniture, fixtures and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries equipment (including fixed machinery and their Subsidiariesfixed equipment), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts computer hardware, supplies, materials, leasehold improvements, automobiles, computing and all other Contracts, sales orders, purchase orders, instruments telecommunications equipment and other commitmentsitems of tangible personal property, obligations and arrangements to which Seller Parent of every kind owned or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business leased wherever located and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset carried on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (Seller’s books other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o2.1(c) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries(the “Excluded Tangible Property”);
(xvig) except as expressly set forth in this Agreement (including Section 2.1(p) All Benefit Plans and Section 6.6), all any assets of such Benefit Plans, including the rights, title and interests of Seller and its Subsidiaries in any Seller Group Plan (i) assets of a defined benefit or Foreign Seller Group Plan that is not defined contribution retirement plan and (ii) assets of a Conveyed Subsidiary Plannon-qualified deferred compensation plan;
(xviih) all corporateAll human resources documents related to any Non-level services Transferring Employee;
(but i) All Tax identification numbers, Tax Returns and Tax refunds;
(j) All Real Property Leases;
(k) All cash, cash equivalents on hand or in bank accounts and short term investments;
(l) All products that are not the assets Business Products;
(m) The Reon and Vida Processors, other than any Acquired Proprietary Rights and any Acquired Technology related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreementproducts;
(xviiin) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1All Inventory; and
(xxo) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement All Proprietary Rights owned or purported to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined owned by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would that are not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates Acquired Proprietary Rights (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing DateSeller Licensed Proprietary Rights).
Appears in 2 contracts
Sources: Asset Purchase Agreement (Integrated Device Technology Inc), Asset Purchase Agreement (Integrated Device Technology Inc)
Excluded Assets. It is expressly understood and agreed that the Assets shall not include the following (each, an "EXCLUDED ASSET"):
(a) Notwithstanding Except to the extent expressly transferred pursuant to the provisions of Sections 1.2(a) through (l), inclusive, all assets, rights, properties, claims, contracts and business of any provision in this AgreementAsset Seller that, Purchaser after giving effect to the services to be provided to, and other rights of, Buyer under the Buyer License Agreement and the Purchaser Designated Affiliates Transition Agreements, are not purchasing necessary to conduct the Analytical Instruments Business as currently conducted;
(b) The capital stock of all direct or acquiring any indirect subsidiaries and affiliates of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any assets, properties or rights other than the Purchased Assets (the “Excluded Assets”), including:
(i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1Transferred Subsidiaries;
(iic) all Retained Real Property;
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash Cash and cash equivalents, checks, money orders, marketable securities, short-term instrumentsequivalents or similar type investments, bank and other depositary accounts, certificates of deposit, time depositsTreasury bills and other marketable securities of the Asset Sellers;
(d) All real property and leasehold interests in real property of the Asset Sellers other than the Plants and the Equipment;
(e) Any refunds or credits with respect to any Taxes paid or incurred by the Asset Sellers (plus any related interest received from the relevant taxing authority);
(f) Each Asset Seller's right, negotiable instruments, securities title and brokerage accounts, funds interest in time and demand deposits or similar accounts to the contracts listed on Section 1.2(g)(i) of the Seller Parent or any Schedule;
(g) Any Intellectual Property of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) Asset Sellers (other than the accounts receivable and other assetsIntellectual Property expressly set forth, summarized and/or described in each case included Section 1.2(a) hereof or expressly described in the calculation Section 1.2(a) of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net CashSeller Schedule);
(xih) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect theretoThe real property, including all insurance recoveries thereunder buildings, structures and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliatesother improvements situated thereon, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets assets listed in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx1.3(h) of the Seller Disclosure Letter.Schedule;
(bi) Notwithstanding anything Other than claims under insurance policies in this Agreement to the contrary but subject to Section 6.5(f)respect of Assets that are lost, damaged or destroyed or Assumed Liabilities that are incurred, in whole or in part, prior to the Closing, all right, title and interest of any Asset Seller Parent shall use commercially reasonable efforts in any insurance policies relating to take the Analytical Instruments Business and all rights of any Asset Seller to insurance claims and proceeds with respect to or relating to (or cause one or more i) occurrences prior to the Closing with respect to the operation of its Affiliates to takethe Analytical Instruments Business and (ii) such action as is necessary, advisable or desirable to transfer the Excluded Assets from and Excluded Liabilities;
(j) Any foreign currency agreements to which any Asset Seller is a party; and
(k) All rights with respect to intercompany receivables, notes or loans between any of the Conveyed Subsidiaries Transferred Subsidiaries, on the one hand, and their Subsidiaries Seller and its other subsidiaries (andexcluding Transferred Subsidiaries), if neededon the other hand, from except as listed in Section 1.3(k) of the Sellers) to Seller Parent Schedule and except for trade payables or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact receivables relating to the Purchased Assets provision of goods and services to or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect Analytical Instruments Business in the provisions ordinary course of this Section 2.3, including business of the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Analytical Instruments Business Working Capital consistent with past practice and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. custom (New York time) on the Closing Date"ORDINARY COURSE OF BUSINESS").
Appears in 2 contracts
Sources: Purchase Agreement (Eg&g Inc), Purchase Agreement (Eg&g Inc)
Excluded Assets. (a) Notwithstanding any provision in this Agreementthe terms of Section 2.1, Purchaser the Sellers will not sell, convey, assign, transfer or deliver to the Purchaser, and the Purchaser Designated Affiliates are will not purchasing purchase or acquiring acquire, and the Purchased Assets do not include, any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any assets, properties or rights assets other than the Purchased Assets Assets, including but not limited to any of the following assets (the “Excluded Assets”):
(a) all cash, cash equivalents, bank deposits, investment accounts, lockboxes, certificates of deposit, marketable securities, bank accounts, corporate credit cards and other similar cash items of the Sellers;
(b) all notes and accounts receivable of the Sellers;
(c) all minute books, records, stock ledgers, Tax records and all other materials that the Sellers are required by Law to retain (provided that copies of such records shall, to the extent legally permissible and to the extent that they constitute Purchased Intellectual Property or Purchased Assets, be provided to the Purchaser);
(d) all financial books and records with respect to the Project and the Purchased Assets, including:including receipts and invoices (provided that the Sellers shall, as soon as reasonably practicable following receipt of an itemized request from Purchaser, provide to Purchaser copies of those itemized financial records so requested by Seller to be provided);
(e) the shares of the capital stock of the Sellers and their Affiliates and all of the Sellers’ or any of their Affiliates’ ownership interest in any Subsidiary or other Person;
(f) all insurance policies, binders and claims and rights thereunder and proceeds thereof;
(g) all rights under all Contracts of the Sellers set forth on Schedule 2.2(g) and all Contracts of the Sellers other than the Included Contracts;
(h) all intellectual property rights of the Sellers other than the Purchased Intellectual Property;
(i) all assets constituting ownership interests in, or that are used or held for use in, inventory of the Retained Businesses, Sellers other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1the Inventory;
(iij) all Retained Real Propertymachinery, equipment and other items of tangible personal property of the Sellers other than the Equipment;
(iiik) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal all real property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees rights in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D)real property;
(ivl) all legal and beneficial interest in the share capital or equity interest of rights arising under any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;Excluded Liability; and
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xivm) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) Sellers under this Agreement or any of the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure LetterAgreements.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 2 contracts
Sources: Asset Sale and Purchase Agreement, Asset Sale and Purchase Agreement (Tactile Systems Technology Inc)
Excluded Assets. (a) Notwithstanding any provision in this Agreement, Purchaser Buyers expressly understand and agree that the Purchaser Designated following assets and properties of Sellers and Sellers’ Affiliates are not purchasing or acquiring any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any assets, properties or rights other than the Purchased Assets (the “Excluded Assets”), including) shall be excluded from the Purchased Assets:
(a) Sellers’ owned and leased real property other than (i) the Purchased Real Property, (ii) the right, title and interest of Sellers in and to the Leased Real Property pursuant to the Real Estate Leases set forth on Schedule 1.01(b) and (iii) all assets constituting ownership interests inright, or that are used or held for use in, title and interest created pursuant to the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1Lease Agreement and Shanghai Sublease;
(ii) all Retained Real Property;
(iii) (Ab) the Retained Facilities, Intellectual Property (A) including without limitation any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent Trademarks containing or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business word Teradyne and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (agoodwill appurtenant thereto) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the owned by Sellers or any of their Affiliates (or which Sellers or any of their Affiliates have rights to, other than the Conveyed Subsidiaries Purchased Intellectual Property and their Subsidiaries) that do not relate solely the rights granted to Purchased Assets or Assumed Liabilities, Buyers to the Licensed Intellectual Property pursuant to the License Agreement and in each case any books and records relating theretothe Intellectual Property Assignment Agreement;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xvc) except as set forth in Section 2.1(oon Schedule 2.12(b)(i), Sellers’ and their Affiliates’ cash, cash equivalents and liquid investments (plus uncollected bank deposits and less outstanding checks) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries(“Cash”);
(xvid) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6)refunds, all assets rebates or similar payments of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services Taxes to the extent such assets are Purchased Assets) Taxes were paid by or on behalf of the type currently provided to the Business by any Asset Seller Parent or any Affiliate of its any Asset Seller, or would not otherwise constitute an Assumed Liability;
(e) Sellers’ and their Affiliates’ (other than the Sold Companies’) returns, declarations, reports, claims for refund, information statements and without limiting Seller Parent’s obligations the other documents relating to Taxes, including any schedule or attachment thereto and including any amendment thereof (the “Tax Information”);
(f) Sellers’ rights under the Transition Services this Agreement and any other agreement, document or instrument entered into pursuant to this Agreement;
(xviiig) all third-party warranties, indemnities, further assurances and similar covenants and guarantees any capital stock of or any equity interest or Investment in any Person other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1a Sold Company; and
(xxh) Sellers’ and their Affiliates’ rights in the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letterlisted or described on Schedule 2.02(h).
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 2 contracts
Sources: Asset and Stock Purchase Agreement (Teradyne Inc), Asset and Stock Purchase Agreement (Amphenol Corp /De/)
Excluded Assets. (a) Notwithstanding any provision anything to the contrary in this Agreement, Seller shall retain and not transfer, and Purchaser and the Purchaser Designated Affiliates are shall not purchasing purchase or acquiring acquire, any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any following assets, properties or rights other than the Purchased Assets of Seller or its Subsidiaries (collectively, the “Excluded Assets”), including:):
(i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1;
(ii) all Retained Real Property;
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person kind (other than the Intellectual Property Assets) not primarily used in or for the Acquired Products;
(b) Seller’s TCAM1, TurboCAM and Toy CAM products, including any asset, property or right of any kind related thereto (other than the intellectual property rights and assets acquired by Purchaser in the 2006 Agreement), which consist of parts having densities of no more than 4.5 megabits and sold, directly or indirectly, only to Seller’s sole existing customer for such products as of the date of this Agreement, including, without limitation, all related inventory, work-in-process, masks and finished goods, tools, equipment, and finished goods, supplies, parts and other tangible personal property related primarily to the foregoing (collectively, the “2007 Retained Products”);
(c) all proprietary information and intellectual property rights that are not Related to exclusively or primarily used in the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case Acquired Products (other than those assetsthe intellectual property rights and assets acquired by Purchaser in the 2006 Agreement and that certain Cross-License Agreement, properties or rights identified as Purchased Assets in clauses dated February 15, 2006, by and between Seller and NetLogic US (a) through (s) of Section 2.1the “2006 Cross-License”)); and
(xxd) the assets set forth all manufacturing machines, automatic test equipment and other equipment and machinery, including equipment and machinery for manufacturing, sorting, testing, packaging and quality assurance (except as identified in Section 2.3(a)(xx2.1(d)) of and all manufacturing and process-related intellectual property, in each case, whether or not used in connection with the Seller Disclosure LetterAcquired Products, the 2007 Retained Products or otherwise.
(be) Notwithstanding anything in this Agreement all uncollected trade accounts receivable and miscellaneous receivables from the sale or other disposition of any Acquired Products or Inventory and the license or other disposition of any intellectual property related to the contrary but subject to Section 6.5(f)Acquired Assets, prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (whether billed or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Dateunbilled.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Netlogic Microsystems Inc), Purchase and Sale Agreement (Cypress Semiconductor Corp /De/)
Excluded Assets. (a) Notwithstanding any provision in this Agreementthe Transaction Documents to the contrary, Purchaser all assets, properties, rights and the Purchaser Designated Affiliates are not purchasing or acquiring any interests of Seller Parent’s and its Affiliates of every kind and description, wherever located, real, personal or its Affiliates’ (including the Conveyed Subsidiaries’ mixed, tangible or their Subsidiaries’) rightintangible, title or interest not included in any assets, properties or rights other than the Purchased Assets (herein referred to as the “Excluded Assets”)) will not be sold, transferred, assigned, conveyed or delivered to Buyer, including:
(ia) all assets constituting ownership interests ingoodwill generated by, or that are used or held for use inand associated with, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1;
(ii) all Retained Real Property;
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are good will associated with Trademarks transferred to Buyer is not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D)an Excluded Asset;
(ivb) the Dedicated Plant, together with all legal buildings, fixtures and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts improvements erected thereon and all other Contracts, sales orders, purchase orders, instruments appurtenant easements and other commitments, obligations rights and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating interests appurtenant thereto;
(xiiic) all claims, defenses, causes of action, counterclaims boat and rights of set-off against third parties (engine inventory located at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1the Dedicated Plant;
(xivd) all rights one of Seller Parent or any the two sets of its Affiliates Hammer X tooling (solely for claritythe purpose of building the Sea Ray Pachanga model), other thanincluding, from and after the Closingbut not limited to, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewithplug/masters;
(xve) all cash, bank accounts, bank deposits and cash equivalents of Seller;
(f) all notes and accounts receivable (including all intercompany receivables owed to Seller by any Affiliate of Seller) generated by the Business prior to the close of business on the Closing Date, and any collateral or other security relating thereto and the proceeds thereof;
(g) except as set forth in Section 2.1(o) and subject to Section 6.18Schedule 2.1(a), all current and prior insurance policies and all rights of any nature with respect theretocomputer, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoverieshardware, systems, networking or communications assets owned or leased by the Business;
(xvih) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6)all of Seller’s rights, all assets claims or causes of action against third parties relating primarily to any Seller Group Plan Excluded Asset or Foreign Seller Group Plan that is not a Conveyed Subsidiary PlanExcluded Liability;
(xviii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided insurance policies relating to the Business by Seller Parent and all claims, credits, causes of action or any of its Affiliates, rights thereunder and without limiting Seller Parent’s obligations under the Transition Services Agreementproceeds thereof;
(xviiij) all third-party warranties, indemnities, further assurances books and similar covenants and guarantees records of the Business other than those identified as Purchased Assets in Section 2.12.1(f) and Section 2.1(g), including construction records and quality documentation for all boats produced by Seller; provided, however, the Seller shall provide Buyer (within a reasonable time after request by Buyer at Buyer’s expense, subject to Section 6.8 hereof) with copies of any records of the Business, reasonably required by Buyer or Parent to (i) comply with any Requirements of Laws, including, without limitation, securities law, rules and regulations or (ii) to assist Buyer or Parent to investigate, analyze or defend against any Third Party Claims or (iii) to assist Buyer to assert or defend rights to any of the Purchased Assets.
(k) Seller’s rights arising under this Agreement and the other Transaction Documents or the transactions contemplated hereby or thereby;
(xixl) all assetscontracts, properties agreements, commitments, purchase orders, licenses, leases and rights of any Person that are not Related other instruments, whether written or oral, related to the Business, including ,;
(m) all assets, properties of Seller’s ERISA Plans and rights constituting ownership interests inother employee benefit plans and all assets held, or that are used or held for use inset aside to fund the obligations of Seller, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; andthereunder;
(xxn) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return refunds of any Excluded Assets Tax for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash which Seller is liable pursuant to Section 2.9 to have occurred as 6.1; and,
(o) all assets of 12:01 a.m. (New York time) on the Business sold or otherwise disposed of in the ordinary course of business during the period from the date of this Agreement until the Closing Date.
Appears in 1 contract
Sources: Asset Purchase Agreement (Fountain Powerboat Industries Inc)
Excluded Assets. Notwithstanding anything herein to the contrary, from and after Closing, Seller and the Seller Affiliates will retain all of their respective existing right, title and interest in and to, and there will be excluded from the sale, conveyance, assignment or transfer to Sub hereunder, and the Transferred Assets will not include, the following, in each case as the same exists on the Closing Date (collectively, the "Excluded Assets"):
(a) Notwithstanding any provision in this Agreementall assets, Purchaser agreements, contracts, leases, purchase orders, arrangements, commitments, licenses and the Purchaser Designated Affiliates rights which are not purchasing Primarily Related to the Business;
(b) all cash and cash equivalents, and all capital stock or acquiring other equity interests or securities, whether or not Primarily Related to the Business or related to any Transferred Asset;
(c) all accounts receivable not reflected on the accounting system maintained in the San Diego facility of the Business, and all intercompany accounts receivable;
(d) all employee benefit plans of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) righta Seller Affiliate, title or interest in any assets, properties or rights other than the Purchased Assets Transferred Benefit Plans, applicable to employees of the Business;
(e) independent contractor, consulting and similar agreements with former employees of the “Excluded Assets”)Business;
(f) other than the leasehold or possessory interests created by the Assumed Leases or the Ancillary Agreements, includingall real property, including land, buildings, structures and improvements thereon, appurtenances thereto and interests therein, and all fixtures constituting part of such real property;
(g) the following Intellectual Property:
(i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1Corporate Trademarks;
(ii) all Retained Real Propertythe Seller-Licensed Intellectual Property (other than the license interests created pursuant to Section 2.3(a));
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and all product development projects other tangible property located at the Retained Facilities or not Related to the Business, except as than those that are set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (DSchedule 2.1(f)(iii);; --------------------
(iv) all legal agreements, contracts, licenses and beneficial interest sublicenses with respect to rights in the share capital or equity interest of any Person Intellectual Property owned by third parties, other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;Transferred Licenses; and
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Transferred Intellectual Property;
(viiih) all Governmental Authorizationsparts, including product registrations, manufacturing registrations subassemblies and environmental permits, owned, used or licensed other internally sourced components customarily supplied to the Business by Seller Parent or any its Affiliates and, as of the Closing Date, not yet purchased by the Business in the Ordinary Course, and all tooling, raw materials and supplies related to such components;
(i) all assets that are used: (i) to manufacture parts, subassemblies, tooling supplies and other internally sourced components customarily supplied to the Business by Seller or its Affiliates; (ii) in Seller's or its Affiliates' product service and support operations other than those such operations Primarily Related to the Business; or (iii) for administrative purposes other than those Primarily Related to the Business (except for those such assets located at the San Diego facility of the Business);
(j) all refunds, overpayments and prepayments of Taxes and duties paid by Seller or a Seller Affiliate;
(k) all Tax Returns of Seller and its Affiliates and all other Books and Records (including work papers) related thereto;
(l) all Books and Records which are: (i) personnel files or employee medical records; or (ii) human resources manuals, training materials and similar documents not Primarily Related to the Business;
(ixm) all customer and vendor listsexcept for the items specified in Section 2.1(j), all advertisinginternet, marketingintranet and World Wide Web content, sales addresses, sites and promotional materialspages, and business and financial records, books, and documents all HTML and other Recordscode, in each case not Related to the Businessplug-ins, scripting, computer hardware and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating software related thereto;
(xiiin) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or assets used in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to located in the Business, including all assets, properties and rights constituting ownership interests in, Ordinary Course in Japan or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1Korea; and
(xxo) the assets assets, if any, that are set forth in Section 2.3(a)(xx) of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(fon Schedule 2.2(o), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.---------------
Appears in 1 contract
Sources: Asset Purchase Agreement (Roper Industries Inc /De/)
Excluded Assets. (a) Notwithstanding any provision anything in this AgreementAgreement to the contrary, Purchaser expressly understands and agrees that the Purchaser Designated Affiliates are not purchasing or acquiring any following assets and properties of the Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) rightEntities, title or interest in any assets, properties or rights other than the Purchased Assets Companies and their respective Subsidiaries (the “Excluded Assets”) shall be retained by the Seller Entities and their Affiliates (other than the Purchased Companies and their Subsidiaries), includingand shall be excluded from the Purchased Assets and may be transferred out of the Purchased Companies and their Subsidiaries prior to the Closing:
(i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1;
(ii) all Retained Real Property;
(iii) (A) the Retained Facilities, (A) any owned Any and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries Purchased Entity Shares and the Purchased Venture Interests (and their Subsidiariesthe Subsidiaries of the Purchased Companies);
(b) Any and all Contracts and portions of Contracts, other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure LetterSpecified Business Contracts and the leases relating to the Leased Real Property;
(vc) all Shared Contracts Any and all other Contracts, sales orders, purchase orders, instruments owned and leased real property and other commitmentsinterests in real property, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contractsthe Leased Real Property;
(vid) Any and all inventory Intellectual Property, other than the Business Intellectual Property;
(including e) Any and all Tangible Personal Property, other than the Transferred Tangible Personal Property;
(f) Any and all raw material inventorymaterials, work-in-process inventoryprocess, spare parts inventory finished goods, supplies and finished products inventory) other inventories, other than the Inventory and any samples of ProductsInventory;
(viig) the Retained Names Any and all Permits, other Intellectual Property that is than the Permits identified as Purchased Assets in Section 2.4;
(h) Any and all claims and defenses (including any Retained Claim), other than the claims and defenses specifically identified as Purchased Assets in Section 2.4;
(i) Any and all documents, instruments, papers, books, records, books of account, files and data, catalogs, brochures, sales literature, promotional materials, certificates and other documents not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including specifically identified as Purchased Assets in Section 2.4);
(j) Except as set forth on Section 2.3(a)(vii) in Article VI or with respect to assets of any Purchased Entity Benefit Plans that are Purchased Assets, any and all assets of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual PropertyBenefit Plans;
(viiik) Any and all Governmental Authorizationsrefunds or credits of or against Excluded Business Taxes;
(l) Tax Returns (or any portion of any Tax Return) and other books and records related to Taxes paid or payable by Seller, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by the Seller Parent Entities or any of its their respective Affiliates (other than any such Tax Returns (or any portion thereof) and not Related to the Businessother books and records specifically identified as Purchased Assets in Section 2.4);
(ixi) Any and all customer Cash Amounts (other than any Cash Amounts of the Purchased Companies and vendor lists, all advertising, marketing, sales and promotional materialstheir Subsidiaries as of immediately prior to the Closing), and business (ii) any and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets assets, prepaid expenses and all cash and cash equivalentssecurity deposits, checksincluding existing letters of credit, money orders, marketable securities, short-term instruments, bank bonds securing performance or indemnity and other depositary accountssimilar instruments (in each case, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation those arising out of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net CashBusiness);
(xin) Except for the Business Insurance Policies, any and all Tax refunds, Tax credits or other Tax Assets of the Sellers insurance policies and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), binders and interests in insurance pools and programs and self-insurance arrangements whether or not derived from related to the Business Business, for all periods before, through and whether or not existing prior to after the Closing, but excluding including any and all refunds and credits due or credits or other Tax Assets to become due thereunder and any and all claims, rights to make claims and rights to proceeds on any such insurance policies, binders and interests for all periods before, through and after the extent reflected as an asset on Closing (the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation“Excluded Insurance Policies”);
(xiio) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than Except for those assets specifically identified as Purchased Assets in clauses (a) through (p) of Section 2.1;
(xiv) 2.4, any and all rights assets, business lines, properties, rights, Contracts and claims of Seller Parent or any of its Affiliates (Subsidiaries not primarily used, or held primarily for clarityuse, other than, from and after in the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) operation of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties business lines, properties, rights, Contracts and rights claims constituting ownership interests in, or that are used or held for use in, in or related to, the Retained Businesses), in each case other than those assetswherever located, properties whether tangible or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1intangible, real, personal or mixed; and
(xxp) the The assets set forth in on Section 2.3(a)(xx2.5(p) of the Seller Disclosure Letter.
(b) Notwithstanding anything Schedules. The Parties acknowledge and agree that neither Purchaser nor any of its Subsidiaries will acquire any direct or indirect right, title and interest in this Agreement to the contrary but subject any Excluded Assets. Subject to Section 6.5(f)2.13, prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the any Excluded Assets from the Conveyed Subsidiaries Purchased Companies and their Subsidiaries (and, if needed, from the SellersSeller Entities) to Seller Parent or one or more of its Retained Subsidiaries Affiliates (other than the Purchased Companies and their Subsidiaries) for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, Purchaser shall (at the Parties shall continue to use commercially reasonable efforts to sole cost and expense of Seller) take all actions (and shall cause their its Affiliates (including the Conveyed Subsidiaries Purchased Companies and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party Seller to effect the provisions of this Section 2.3foregoing, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) paragraph after the Closing Date shall be deemed for purposes of calculating the Business Closing Working Capital Capital, the Closing Cash Amounts and the Business Net Cash Closing Funded Debt pursuant to Section 2.9 to have occurred as of immediately prior to 12:01 a.m. (New York timePacific Time) on the Closing Date.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Aecom)
Excluded Assets. (a) Notwithstanding any provision in this AgreementSellers shall retain and not sell, Purchaser convey, assign or deliver to the Buyer, and the Purchaser Designated Affiliates are Buyer shall not purchasing purchase or acquiring accept from Sellers, any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any assets, properties or rights and all other than the assets not specifically identified as Purchased Assets or used in the Business, including, without limitation, the following properties and assets of Sellers (the “Excluded Assets”):
(a) all cash held by the Sellers as of the Closing;
(b) all Intellectual Property rights identified on Schedule 2.02(b) (the “Excluded IP Rights”);
(c) all computer programs, including:Software and all licenses, manuals, disks, instructions, flowcharts and schematics identified on Schedule 2.02(c) (the “Excluded Software”);
(d) all tangible personal property that is owned or held by the Sellers that is specifically identified on Schedule 2.02(d) (the “Excluded Tangible Personal Property”);
(e) all Contracts other than the Customer Contracts, the Additional Contracts and the licenses related to any Licensed Intellectual Property;
(f) the Grand Forks Facility and the Grand Forks Real Estate Lease, except to the extent provided in Section 5.18;
(g) all prepaid expenses related to the Business, other than those identified on Schedule 2.01(k);
(h) any assets not used in or otherwise related to the Business, including but not limited to those assets identified on Schedule 2.02(h);
(i) all assets constituting ownership interests in, or personnel records of the Sellers and any other records that the Sellers are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets required by law to retain in clauses (a) through (s) of Section 2.1its possession;
(iij) all Retained Real Propertyrights and interests under any Employee Benefit Plan maintained by the Sellers or any ERISA Affiliate or to which the Sellers or any ERISA Affiliate are required to contribute;
(iiik) (A) the Retained Facilities, (A) all agreements between a Seller and any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Business Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D)or Contractors;
(ivl) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to financial records which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is do not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related directly relate to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xivm) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveriesloans made by a Seller to current or former employees or contractors of a Seller;
(xvin) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of rights with respect to any Seller Group Plan real property owned or Foreign Seller Group Plan that is not a Conveyed Subsidiary Planleased by the Sellers;
(xviio) all corporate-level services (but not other assets and properties of the assets related to such services to Sellers of every kind, character or description, other than the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warrantieswhich are owned, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in(whether or not exclusively) in connection with the Sellers’ businesses, wherever located, whether or related to, not similar to the Retained Businesses, in each case other than those assets, properties or rights identified as items detailed under Purchased Assets in clauses (a) through (s) of Section 2.1Assets; and
(xxp) all consideration to be received by the assets set forth in Section 2.3(a)(xx) Sellers under this Agreement and all other rights of the Seller Disclosure LetterSellers hereunder.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 1 contract
Excluded Assets. (a) Notwithstanding any provision anything to the contrary contained in this Agreement, Purchaser all of the assets and properties of Seller and the Purchaser Designated Affiliates are not purchasing or acquiring any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any assets, properties or rights other Asset Contributors other than the Purchased Contributed Assets (the “Excluded Assets”)) shall be retained and shall not be conveyed hereunder. Without limiting the foregoing, includingthe following assets shall be excluded from the Contributed Assets:
(i) all assets constituting ownership interests in, or that are used cash and cash equivalents on hand or held for use in, the Retained Businessesby any bank or other third Person, other than those assets identified as Purchased Assets cash and cash equivalents reflected on the Closing Date Balance Sheet or included in clauses (a) through (s) of Section 2.1Closing Date Working Capital;
(ii) all Retained of the Asset Contributors’ right, title and interest in owned and leased real property and other interests in real property, including the Owned Real PropertyProperty (subject to the terms of the Real Property Leases), and all such right, title and interest under each real property lease pursuant to which any of the Asset Contributors leases, subleases (as sub-landlord or sub-tenant) or otherwise occupies any such leased real property, including all improvements, fixtures and appurtenances thereto and rights in respect thereof;
(iii) all Intellectual Property owned by the Asset Contributors other than the Transferred Trademarks, Transferred Domain Names and Transferred Patent Rights, including (A) the Retained Facilities, (A) any owned all Trademarks and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related Domain Names to the Business, except as set forth on Section 2.1(d)(i)(B) of extent such Trademarks and Domain Names incorporate the Seller Disclosure Letter, name “West” or any variation thereof and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (Dthe Intellectual Property set forth in Schedule 2.2(b)(iii);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o8.3, the Plans and other employee benefit plans, programs, arrangements and agreements (including any retirement benefit and post-retirement health benefit plans, programs, arrangements and agreements) sponsored or maintained by the Asset Contributors or their respective ERISA Affiliates, and any trusts and other assets related thereto;
(v) all policies of or agreements for insurance and interests in insurance pools and programs;
(vi) all causes of action (including counterclaims) and subject defenses against third parties relating to Section 6.18any of the Excluded Assets or the Excluded Liabilities as well as any books, records and privileged information relating thereto;
(vii) all current books and prior insurance policies records of the Seller Group other than those book and records included in the Contributed Assets;
(viii) all rights records and reports prepared or received by Seller or any of any nature its Affiliates to the extent in connection with respect theretothe sale of the Business and the transactions contemplated hereby, including all insurance recoveries thereunder and rights analyses relating to assert claims with respect to any such insurance recoveriesthe Business or Buyer so prepared or received;
(xviix) except as expressly set forth in this Agreement (including for the assets included pursuant to Section 2.1(p) and Section 6.62.2(a)(i), all assets of any Seller Group Plan not related exclusively to, or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliatesexclusively used in, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assetsthose assets to be conveyed by a Company Group Member to another Affiliate of Seller pursuant to Section 7.4;
(x) any Commingled Contracts, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, which will be treated in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of accordance with Section 2.18.12(a); and
(xxxi) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure LetterSchedule 2.2(b)(xi).
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 1 contract
Sources: Asset Contribution and Equity Purchase Agreement (West Corp)
Excluded Assets. (a) Notwithstanding any provision in this AgreementOther than the Purchased Assets, Purchaser each Buyer expressly understands and the Purchaser Designated Affiliates are agrees that it is not purchasing or acquiring acquiring, and Seller is not selling or assigning, any other assets or properties of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) rightBusiness, title or interest in any assets, and all such other assets and properties or rights other than shall be excluded from the Purchased Assets (collectively, the “"Excluded Assets”"). Excluded Assets include, including:
(i) all assets constituting ownership interests in, or that are used or held for use inwithout limitation, the Retained Businesses, other than those assets identified as Purchased Assets in clauses following.
(a) through (s) all equipment of Section 2.1the Business related to the production of products other than LM and DMTX products, including without limitation receiver and externally modulated transmitter products;
(iib) all Retained Real Propertyaccounts receivable of the Business;
(iiic) all Contracts that relate to the Business;
(Ad) the Retained Facilitiesall inventory, (A) any owned and leased furniturefinished goods, equipmentraw materials, fixtureswork in progress, machinerypackaging, supplies, spare parts, tools, tangible personal property parts and other tangible property located at inventories of the Retained Facilities or not Related Business; and
(e) all prepaid expenses, credits, advance payments, security, deposits, charges, sums and fees related to the Business, except as set forth on Section 2.1(d)(i)(B;
(f) all books and records of the Seller Disclosure LetterSeller, EA and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, including without limitation books of account, ledgers and general, financial and accounting records (A) other than maintenance files related to the Information Systems of Seller Parent and its SubsidiariesPurchased Assets), customer lists, customer purchasing histories, price lists, distribution lists, supplier lists (other than the Business IT Systems manufacturer of any Purchased Assets), production data, quality control records and procedures, customer complaints and inquiry files, research and development files, records and data (Aincluding all correspondence with any federal, state, local or foreign government or political subdivision thereof, or any agency or instrumentality of such government or political subdivision, or any arbitrator, court or tribunal of competent jurisdiction (each, a "Governmental Authority")), sales material and records, strategic plans and marketing and promotional surveys, material and research ("Books and Records"); and
(g) all goodwill associated with any leases relating to of the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letterclauses.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 1 contract
Excluded Assets. (a) Notwithstanding any provision anything to the contrary in this Agreement, Purchaser Buyer expressly understands and the Purchaser Designated Affiliates are agrees that it is not purchasing or acquiring acquiring, and Seller is not selling, assigning or transferring, any properties, rights or assets of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any assets, properties or rights other than the Purchased Acquired Assets, and all such other properties, rights and assets shall be excluded from the Acquired Assets (collectively, the “Excluded Assets”). The Excluded Assets to be retained by Seller include all of Seller’s right, includingtitle and interest in and to the following properties, rights and assets:
(a) As identified on Schedule 2.2(a) or in the Asset Demarcation Agreement, the real and personal property comprising or constituting any or all of the T&D Assets (whether or not regarded as a “transmission,” “distribution” or “generation” asset for regulatory or accounting purposes), including all electric power, communications and telecommunications underground and aboveground lines, switchyard facilities, substation facilities, support equipment and other Improvements, the Reserved Easements, and all Permits and Contracts, to the extent they relate to the T&D Assets, and those certain assets and facilities identified for use or used by Seller or others pursuant to an agreement or agreements with Seller for telecommunications purposes;
(b) The real property and Improvements thereon described in Schedule 2.2(b);
(c) Except for Prepayments, (i) all Cash, accounts receivable, notes receivable, checkbooks and canceled checks, bank accounts and deposits, commercial paper, certificates of deposit, securities, and property or income Tax receivables, and (ii) any other Tax refunds, credits, prepayments or other rights to payment related to the Acquired Assets to the extent allocable to a period ending on or before the Closing Date; Leases;
(f) All Contracts of Seller other than the Assigned Contracts and Assigned All Permits of Seller other than the Transferable Permits; All Intellectual Property including all Seller Marks other than the Assigned Intellectual Property;
(g) Duplicate copies of all Transferred Books and Records (to the extent and subject to the conditions set forth herein), and all other records of Seller other than the Transferred Books and Records, including corporate seals, organizational documents, minute books, stock books, Tax Returns, financial records, books of account and other corporate records of Seller, and all employee-related or employee benefit-related files or records other than the Transferred Employee Records;
(i) all assets constituting ownership interests inAll insurance policies of Seller and insurance proceeds therefrom; All rights of Seller in and to any claims, causes of action, rights of recovery, rights of set-off, rights of refund and similar rights against a Third Party relating to any period through the Closing or that are used or held for use inotherwise relating to any Excluded Liability, but excluding any such rights of Seller to the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1extent relating to an Assumed Liability;
(iij) all Retained Real Property;
All of Seller’s rights arising from or associated with any Contract or the provisions of goods or services, payment arrangements, intercompany charges or balances or the like, including, but not limited to, the Terminated Contracts (iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries“Intercompany Arrangements”), other than those equity interests Assigned Contracts set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net CashSchedule 2.2(j);
(xik) all Tax refunds, Tax credits All Employee Benefit Plans and trusts or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating assets attributable thereto;
(xiiil) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights All assets of Seller Parent or any related to its ownership, construction and operation of its Affiliates (for claritya portfolio of thermal electric generation assets and related facilities, other thantogether with fuel inventories, and including generating, selling, transmitting and delivering electric energy, capacity, ancillary services and Environmental Attributes from and after the Closing, generation assets to the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as interconnection point set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1respective Interconnection Agreements; and
(xxm) the assets set forth in Section 2.3(a)(xx) of the The rights that accrue or will accrue to Seller Disclosure Letter.
(b) Notwithstanding anything in under this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing DateRelated Agreements.
Appears in 1 contract
Sources: Purchase and Sale Agreement
Excluded Assets. (a) Notwithstanding any provision anything to the contrary contained in this Agreement, Purchaser and regardless of whether such asset is disclosed herein or on any Schedule or Exhibit hereto (except solely to the Purchaser Designated Affiliates are extent constituting the Acquired Assets), Buyer shall not purchasing acquire any interest in or acquiring to, or any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any assets, properties or rights other than the Purchased Acquired Assets (such other assets, properties or rights, whether tangible, intangible, real or personal and wherever located, collectively, the “Excluded Assets”). For the avoidance of doubt, includingand notwithstanding anything to the contrary in Section 1.1(a), all of the following assets, properties and rights are Excluded Assets, regardless of whether such assets relate to the Business:
(i) all assets constituting ownership interests in, Seller’s rights under or that are used pursuant to this Agreement or held for use in, any of the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1Ancillary Documents;
(ii) all Retained Real Propertyany right to receive mail and other communications addressed to Seller relating to the Excluded Assets or the Excluded Liabilities (as defined herein);
(iii) (A) all rights of Seller under all Contracts between Seller, on the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letterone hand, and any personal computers Affiliate of Seller, on the other hand, and vehicles that are not primarily used by any other Contract listed on Exhibit 1.1(b)(iii) (collectively, the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D“Excluded Contracts”);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person Intellectual Property Rights other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure LetterTransferred Intellectual Property;
(v) any Authorizations other than the Transferred Authorizations;
(vi) any equipment, systems, hardware, furniture, furnishings, fixtures, machinery, vehicles, tools and other tangible personal property set forth on Exhibit 1.1(b)(vi) (collectively, the “Excluded Equipment”);
(vii) any assets, properties and rights used by Seller or any of its Affiliates primarily in connection with the provision of Overhead and Shared Services, including any proprietary tools and processes;
(viii) all Shared Contracts rights to refunds or credits in respect of Taxes arising from ownership, operation or conduct of the Business or the Acquired Assets during any Tax period ending prior to the Closing, during any Pre-Closing Tax Period or arising from any payment made directly to any Tax authority by Seller or any of Seller’s Affiliates (such refunds or credits, the “Excluded Tax Assets”);
(ix) all books and records not constituting Books and Records that relate primarily to the Business as described in Section 1.1(a)(ii), including any Capital Stock of any Person or any minute books and equity transfer records and similar company records, Tax Returns and other Tax-related documents (other than Tax Returns with respect to Property Taxes), books of account or other records having to do with the corporate organization of Seller or any of its Affiliates or relating to the process for the sale of the Business, all employee-related or employee benefit-related files or records and all other Contracts, sales orders, purchase orders, instruments Books and other commitments, obligations and arrangements to which Records that Seller Parent or any of its Affiliates is a party or required to retain by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory applicable Law (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed Laws relating to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Recordsdata protection);
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts any insurance policies maintained for the benefit of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash“Insurance Policies”);
(xi) all Tax refundsany cause of action, Tax credits claim, demand, right or other Tax Assets privilege against one or more third parties that relates to any of the Sellers Excluded Assets or Excluded Liabilities, including causes of actions, claims and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation)rights under insurance policies relating thereto;
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers Employee Benefit Plans, including any plans, trusts, Contracts, documents or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilitiesagreements related thereto, and in each case any books retirement and records relating theretopension plans, and any group medical, dental, life and long-term disability insurance policies maintained by Seller;
(xiii) all claims, defenses, causes of action, counterclaims any bank accounts or investment accounts (or the Cash and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;securities contained therein); and
(xiv) all any assets, properties and rights of not primarily relating to, or not primarily used or held for use by Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closingin connection with, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) operation of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 1 contract
Excluded Assets. (a) Notwithstanding any provision in this Agreement, Purchaser Buyer expressly understands and agrees that the Purchaser Designated following assets of Parent and its Affiliates are not purchasing or acquiring any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any assets, properties or rights other than the Purchased Assets (the “Excluded Assets”), including:) shall be retained by Parent and its Affiliates (other than the Companies):
(i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1Corporate Shared Services;
(ii) (A) all Retained Real Propertycash and cash equivalents other than Company Cash and (B) all rights to any bank accounts other than the Transferred Bank Accounts;
(iii) Tax assets (Aincluding any rights to any Tax refunds or credits) the Retained Facilities, and all Tax Returns (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(Bi) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, Affiliates (other than the Business IT Systems Companies and their respective Subsidiaries), including any Combined Tax Returns, or (Aii) any leases relating to any Excluded Asset or the assets described in the foregoing clauses (B) through (D)Retained Businesses;
(iv) all legal of Parent’s and beneficial its Affiliates’ right, title and interest in the share capital Owned Real Property or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests Leased Real Property set forth on Section 2.1(qSchedule 2.2(a)(iv) of the Seller Disclosure Letterand all improvements, fixtures and appurtenances thereto and rights in respect thereof;
(v) all Shared any employee benefit plans, programs, arrangements and Contracts (including any retirement benefit and all post-retirement health benefit plans, programs, arrangements and agreements and employment Contracts with Transferred Employees) sponsored or maintained by Parent or its Affiliates (other Contracts, sales orders, purchase orders, instruments than a Company and other commitmentsthan any Company Benefit Plans);
(vi) subject to Buyer’s rights under Section 6.17(a), obligations and arrangements to which Seller all Insurance Policies held by Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Productsa Company;
(vii) all Actions (including counterclaims) and defenses against third parties to the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed extent relating to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) any of the Seller Disclosure LetterExcluded Assets or the Excluded Liabilities as well as any books, records and including privileged information to the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Propertyextent relating thereto;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any Intellectual Property of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (other than the Companies and their respective Subsidiaries) to the extent not owned, held or used primarily in the Business, including the Conveyed Subsidiaries Parent Marks;
(ix) any interest of Parent or any Affiliate of their Subsidiaries) Parent (other than the accounts receivable Companies and their respective Subsidiaries) under this Agreement or in any document, certificate or instrument delivered pursuant to or in connection with this Agreement;
(x) any personnel and employment records for employees and former employees of Parent or any Affiliate of Parent (other assets, in each case included in than the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash)Companies) who are not Transferred Employees;
(xi) all Tax refunds, Tax credits or any other Tax Assets assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarityother than the Companies and their respective Subsidiaries) to the extent not primarily related to the Business, wherever located, whether tangible or intangible, real, personal or mixed;
(xii) except as may be or remain outstanding pursuant to Section 6.12, intercompany accounts receivable (including trade accounts receivable) or other thanloan, Contract or advance by Parent to any Company;
(xiii) (A) all corporate minute books (and other similar corporate records) and stock records of Parent (including as relates to any Company), (B) any books and records to the extent relating to the Excluded Assets and (C) any books, records or other materials, in each case, that Parent (1) is required by Law to retain, (2) reasonably believes are necessary to enable Parent to prepare and/or file Tax Returns (copies of which will be made available to Buyer upon Buyer’s reasonable request) or (3) is prohibited by Law from delivering to Buyer;
(xiv) any shares of capital stock or other equity securities of any Person other than any Company or any of their respective Subsidiaries; and
(xv) all assets set forth on Schedule 2.2(a)(xv). Notwithstanding anything to the contrary set forth in this Agreement or in any document, certificate or instrument delivered pursuant to or in connection with this Agreement, Buyer acknowledges and agrees that all of the following shall remain the property of Parent and its Affiliates, and neither Buyer nor any of its Affiliates (including, after the Closing, the Conveyed Subsidiaries Companies) shall have any interest therein: (w) all records and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered reports prepared or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, Affiliates in connection with the sale of the Business and without limiting Seller Parent’s obligations under the Transition Services transactions contemplated by this Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests inanalyses relating to the Business or Buyer so prepared or received; (x) all confidentiality Contracts with prospective purchasers of the Business or any portion thereof (except that Parent shall, or that are used or held for use in, or related shall cause an Affiliate to, assign to Buyer or its designee at the Retained Businesses, in each case other than those assets, properties Closing all of Parent’s or such Affiliate’s rights identified as Purchased Assets in clauses under such confidentiality Contracts to confidential treatment of information with respect to the Business and the Companies and with respect to solicitation and hiring of Transferred Employees); (ay) through (s) all bids and expressions of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx) interest received from prospective purchasers of the Seller Disclosure Letter.
Business or any portion thereof with respect thereto; and (bz) Notwithstanding anything all privileged materials, documents and records in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller possession of any of Parent shall use commercially reasonable efforts to take (or cause one or more any of its Affiliates to takethe extent such materials, documents and records are (A) not related to the Business (provided, that Parent shall be permitted to redact or segregate and retain any information in such action as is necessarymaterials, advisable documents or desirable records that relates to transfer any Retained Business prior to sharing any such information with Buyer or its Affiliates and neither Buyer nor any of its Affiliates will have any interest in any such materials, documents and records to the extent they relate to any Retained Business) or (B) related to any Excluded Assets from the Conveyed Subsidiaries Asset or Excluded Liability. Buyer further acknowledges and their Subsidiaries (andagrees that, if needed, from the Sellers) with respect to Seller any Action between Parent or one or more of its Retained Subsidiaries for such consideration or for no considerationAffiliates on the one hand, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets Buyer or the Business. After Companies (following the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York timeClosing) on the other hand, only Parent or its applicable Affiliates may waive any evidentiary privilege that may attach to a pre-Closing Datecommunication that is determined by a court of competent jurisdiction to be subject to attorney-client privilege, and neither Buyer nor the Companies (following the Closing), nor any of their Affiliates, shall have the right to compel disclosure of such privileged information.
Appears in 1 contract
Excluded Assets. The following are collectively referred to as the "Excluded Assets" and are not included in the Assets: ---------------
(a) Notwithstanding all Communications Facilities (as defined in the Sublease), including but not limited to AirTouch's Improvements and Communications Equipment (each as defined in the Sublease);
(b) the Reserved Space as described in the Sublease, including without limitation all space at a Tower Site occupied by AirTouch's Improvements and Communications Equipment (each as defined in the Sublease) and non-exclusive use of all real estate interests (including fee and leasehold interests, licenses, rights-of-way and easements) on which switch equipment and associated loading docks, patios, offices and parking lots of Sublessors or their Affiliates is located or necessary to such equipment's operation;
(c) any provision in this Agreementequipment or transmission systems used by AirTouch, Purchaser and the Purchaser Designated Affiliates are not purchasing any other Sublessor or acquiring any of Seller Parent’s Sublessors' Affiliates for the remote monitoring of the Towers;
(d) all Intellectual Property of Sublessors or its Affiliates’ any Affiliate of Sublessors, other than plans and specifications of the Towers and data (including in electronic or machine-readable form) relating to third party tenants and lessors with respect to the Conveyed Subsidiaries’ or their Subsidiaries’Towers;
(e) right, title or interest in any assets, properties or rights, including Contracts, that are not exclusively Assets;
(f) all rights that accrue or will accrue to, and all rights retained by and/or granted to, Sublessors under this Agreement, the Sublease or any of the other than Transaction Documents, including the Purchased Assets consideration paid or to be paid to Sublessors hereunder;
(g) any claims or rights against third parties except to the “Excluded extent such claims or rights relate to the Assets”), including:;
(h) assets of any Employee Plan or employee benefit arrangement;
(i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1;
(ii) all Retained Real Property;
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described specified in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1Schedule 1.14; and
(xxj) any Tower Sites (and all Towers, Tower Related Assets and other assets and rights associated with such Tower Sites) excluded from the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement Assets or excluded from becoming subject to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash Sublease pursuant to Section 2.9 2.2 (Restricted Items) hereof, or which are to have occurred as of 12:01 a.m. (New York time) on remain the Closing Dateproperty of, or are to be for the benefit of, any Sublessor pursuant to the Sublease.
Appears in 1 contract
Excluded Assets. (a) Notwithstanding any provision in this Agreement, Purchaser Purchasers acknowledge and the Purchaser Designated Affiliates agree that they are not purchasing or acquiring any rights, titles or interests in, to or under any of Seller Parent’s or its Affiliates’ the following assets (including collectively, the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any assets, properties or rights other than the Purchased Assets (the “"Excluded Assets”), including:"):
(i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1any Cash Equivalents;
(ii) all Retained Real Propertyany Accounts Receivable;
(iii) (A) the Retained Facilitiesany losses, (A) loss carryforwards and rights to receive refunds, credits and loss carryforwards with respect to any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems all Taxes of Seller Parent and or any of its Subsidiaries, other than the Business IT Systems and (A) any leases relating Affiliates that constitute Retained Liabilities pursuant to the assets described in the foregoing clauses (B) through (DSection 2.5(ix);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their SubsidiariesA) subject to Section 2.1(a)(v), other than those equity interests set forth on Section 2.1(q) the corporate books and records of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (not related solely to the extentPurchased Assets, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined including those portions of the Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries corporate books and their Subsidiaries) records that do not relate solely to the Purchased Assets, (B) all personnel records, (C) any attorney work product, attorney-client communications and other items protected by attorney-client privilege and (D) any documents that were received from third parties in connection with their proposed acquisition of the Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time the Products or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of that were prepared by Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xvv) except as set forth in Section 2.1(o) and subject to Section 6.18, all any current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvivi) except the Seller Names (other than as expressly set forth in this Agreement Section 2.1(a)(ii)) and the Excluded Trademarks (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary PlanNames relating to the combination of the word "Ortho" with any name other than "Dermatologics");
(xviivii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business any real estate owned or leased by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviiiviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1any equipment whatsoever;
(xixix) all assetsany rights, properties claims and credits of Seller or any of its Affiliates relating to any Excluded Asset or any Retained Liability, including any guarantees, warranties, indemnities and similar rights in favor of Seller or any of its Affiliates relating to any Excluded Asset or any Retained Liability;
(x) any Seller Compensation and Benefit Plan, any assets in respect of any Person Seller Compensation and Benefit Plan and any other compensation and benefit plans sponsored by Seller, any Divesting Entity or any of their Affiliates in respect of Transferred Employees;
(xi) the equity interests of any Person;
(xii) the Damaged Inventory;
(xiii) any claims or rights relating to discontinued products that are not Related to the BusinessProducts;
(xiv) all employees of Seller, including all assets, properties and rights constituting ownership interests in, any Divesting Entity or that are used or held for use in, or related to, the Retained Businesses, in each case any of their Affiliates other than those assetsthe Transferred Employees; and
(xv) any other assets (including intellectual property, software and information technology systems), properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more any of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to other than the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing DateAssets.
Appears in 1 contract
Sources: Asset Purchase Agreement (Valeant Pharmaceuticals International, Inc.)
Excluded Assets. (aNotwithstanding anything in Section 2.01(a) Notwithstanding any provision in this Agreementto the contrary, Purchaser the Sellers are not selling, and the Purchaser Designated Affiliates are Buyer expressly understands and agrees that the Buyer is not purchasing or acquiring buying, any assets and properties of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any assets, properties or rights Sellers other than those specifically listed or described more generally in Section 2.01(a), and, without limiting the Purchased Assets generality of the foregoing, the terms “Transferred Assets”, “Initial Closing Transferred Assets”, “Interim Closing Transferred Assets” and “Final Closing Transferred Assets” shall expressly exclude the following assets and properties of the Sellers and their Affiliates, all of which shall be retained by the Sellers and their Affiliates (the “Excluded Assets”), including:):
(i) other than as described in Section 2.01(a)(xiv) or Section 2.01(a)(xv), all assets constituting ownership interests incash, cash equivalents or that are used marketable securities of the Sellers and their Affiliates on hand or held for use in, by any bank or other third Person and all rights to any bank accounts of the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1Sellers and their Affiliates;
(ii) all Retained Real Propertyaccounts receivable of the Sellers and their Affiliates (including all such accounts receivable earned or accrued as of 11:59 p.m. Eastern Time on the applicable Closing Date), and any loans and advances by the Sellers;
(iii) (A) the Retained Facilitiesall franchise rights, (A) any owned and leased furnitureif any, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Businessand, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by for the Transferred Employees in respect of the BusinessLicensed Intellectual Property, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IPowned by, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages otherwise authorized for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed use by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating theretoAffiliates;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xviv) except as set forth in Section 2.1(o2.01(a)(i) of the Disclosure Schedule, all of the Sellers’ right, title and interest in owned and leased real property and other interests in real property including all such right, title and interest under each real property lease pursuant to which any Seller leases, subleases (as sub-landlord or sub-tenant) or otherwise occupies any such leased real property, together in each case with the Sellers’ right, title and interest in, to and under all structures, facilities or improvements currently or as of the applicable Closing Date located on any such real property and all easements, licenses, rights and appurtenances related to the foregoing;
(v) all Tax Returns (other than Tax Returns related solely to the Business or the Transferred Assets, except that the Sellers and their Affiliates will retain all federal and state income Tax Returns, regardless of whether such income Tax Returns are related to the Business) and Tax Assets;
(vi) any employee benefit plans, programs, arrangements and agreements (including any retirement benefit and post-retirement health benefit plans, programs, arrangements and agreements, but not including any such agreements which are Assumed Contracts) sponsored or maintained by the Sellers or their respective Affiliates, and any trusts and other assets related thereto;
(vii) subject to Section 6.182.01(a)(x), all current policies of, or agreements for, insurance and prior interests in insurance policies pools and programs of the Sellers;
(viii) all causes of action, lawsuits, judgments, claims and demands of any nature available to or being pursued by the Sellers (including counterclaims) and defenses (A) against third parties relating primarily to any of the Excluded Assets or the Excluded Liabilities as well as any books, records and privileged information relating thereto or (B) relating to any period through the applicable Closing to the extent that the assertion of such cause of action or defense is necessary or useful in defending any claim that is asserted against the Sellers or for which indemnification is sought by the Buyer pursuant to Article IX;
(ix) any interest of any Seller under this Agreement, any Companion Agreement and any other agreement, document or instrument entered into in connection with the transactions contemplated by this Agreement;
(x) all personnel and employment records for employees and former employees of the Sellers, including Business Employees, except as otherwise provided in the Employee Matters Agreement;
(xi) (A) all corporate minute books (and other similar corporate records) and stock records of the Sellers; (B) any books and records relating primarily to the Excluded Assets; (C) any books, records or other materials that the Sellers (x) are required by Law to retain, (y) reasonably believe are necessary to enable the Sellers to prepare and/or file Tax Returns (copies of which will be made available to the Buyer upon the Buyer’s reasonable request) or (z) are prohibited by Law from delivering to the Buyer; and (D) copies of sales and promotional literature, manuals and data, sales and purchase correspondence, lists of suppliers and customers, and personnel and employment records that are Transferred Assets, provided that if the Sellers are required by Law to retain the originals of any such records, they may do so and in such case they will provide the Buyer with copies thereof;
(xii) any and all rights under any bottling, manufacturing, distribution, sales or other related agreement for any TCCC brands and any of the goodwill and other intangible rights or assets associated therewith;
(xiii) any nature other assets, properties, rights, contracts and claims of the Sellers or their Affiliates, wherever located, whether tangible or intangible, real, personal or mixed, in each case that are specifically listed in Section 2.01(b)(xiii) of the Disclosure Schedule;
(xiv) any other assets, properties, rights, contracts and claims of the Sellers or their Affiliates wherever located, whether tangible or intangible, real, personal or mixed, that are not primarily related to or primarily used or primarily held for use in connection with respect theretothe Business;
(xv) any Shared Contract, including all insurance recoveries thereunder to the extent not assigned to the Buyer pursuant to a Partial Assignment and rights to assert claims with respect to any such insurance recoveriesRelease under Section 5.16;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary PlanExcluded Contract;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) Retained Assets as of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;applicable Closing; and
(xviii) the Manufacturing Rights (and any and all third-party warranties, indemnities, further assurances ownership or other proprietary interest in any goodwill and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and intangible rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used assets relating thereto or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(fassociated therewith), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested which are governed by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing DateManufacturing Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Coca Cola Bottling Co Consolidated /De/)
Excluded Assets. (a) Notwithstanding any provision in this AgreementOther than the Purchased Assets subject to Section 2.01, Purchaser Buyer expressly understands and the Purchaser Designated Affiliates are agrees that it is not purchasing or acquiring acquiring, and the Seller Parties are not selling or assigning, any other assets or properties of the Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) rightParties, title or interest in any assets, and all such assets and properties or rights other than listed below shall be excluded from the Purchased Assets (the “Excluded Assets”), including. Excluded Assets are the following assets and properties of the Seller Parties:
(i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1;
(ii) all Retained Real Property;
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checksbank accounts and securities of the Seller Parties (other than the equity interests in the Singapore Subsidiary and the Delaware Subsidiary);
(i) the first accounts or notes receivable of the Business collected after the Closing by the Seller Parties, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries Buyer or any of their Subsidiariesrespective Affiliates in an aggregate amount equal to the Net Working Capital Adjustment Amount, as set forth on the Estimated Closing Statement (“Excluded Business Accounts Receivable”), and (ii) all accounts or notes receivable of the businesses of the Seller Parties other than the Business;
(c) all Contracts that are not Assigned Contracts;
(d) all Intellectual Property of the Seller Parties other than the Intellectual Property Assets;
(e) the corporate seals, organizational documents, minute books, stock books, Tax Returns and related records and workpapers, books of account or other records having to do with the corporate organization of the Seller Parties (other than the accounts receivable Singapore Subsidiary and the Delaware Subsidiary), all employee-related or employee benefit-related files or records, other assetsthan personnel files of Transferred Employees, in each case included in and any other books and records which the calculation Seller Parties are prohibited from disclosing or transferring to Buyer under applicable Law and is required by applicable Law to retain;
(f) all insurance policies of the Final Business Working Capital, Seller Parties and the Cash Equivalents included all rights to applicable claims and proceeds thereunder except as set forth in the calculation of Final Business Net CashSection 2.01(i);
(xig) all Benefit Plans and trusts or other assets attributable thereto;
(h) all Tax refundsAssets (including duty and Tax credits, Tax credits or other Tax Assets refunds and prepayments of Taxes) of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers Parties or any of their Affiliates (other than the Conveyed Subsidiaries Singapore Subsidiary and their Subsidiariesthe Delaware Subsidiary) that do not relate solely (notwithstanding the foregoing, any Tax credit, Tax refund, prepayment or overpayment of Taxes of the Singapore Subsidiary or the Delaware Subsidiary for any period or portion thereof ending on or prior to Purchased Assets the Closing Date, determined as provided in Section 6.12, shall be an Excluded Asset hereunder and Buyer and its Affiliates shall cause the amount of any such Tax credit, Tax refund, prepayment or Assumed Liabilities, and in each case overpayment of Taxes received or paid by the Singapore Subsidiary or the Delaware Subsidiary (together with the amount of any books and records relating theretointerest thereon) for any such period to be promptly delivered to Parent);
(xiiii) all claims, defenses, causes of rights to any action, counterclaims and rights suit or claim of set-off against third parties (at any time nature available to or in any manner arising or existingbeing pursued by the Seller Parties, whether ▇▇▇▇▇▇ arising by way of counterclaim or inchoateotherwise, known to the extent relating to any Excluded Asset or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1any Liability that is not an Assumed Liability;
(xivj) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights listed on Section 2.02(j) of the Disclosure Schedules;
(k) all securities or other equity interests of any Person that are not Related owned or held by the Seller Parties other than the Singapore Subsidiary and the Delaware Subsidiary;
(i) all attorney-client privilege and attorney work-product protection of the Seller Parties or associated with the Business as a result of legal counsel representing the Seller Parties in connection with the transactions contemplated by this Agreement or any of the Transaction Documents, (ii) all documents subject to the Business, including all assets, properties and rights constituting ownership interests in, attorney-client privilege or that are used or held for use in, or related to, the Retained Businesses, work-product protection described in each case other than those assets, properties or rights identified as Purchased Assets in clauses clause (a) through (si) of Section 2.1this paragraph, and (iii) all documents maintained by the Seller Parties in connection with the transactions contemplated by this Agreement or any of the Transaction Documents; and
(xxm) the assets set forth in Section 2.3(a)(xx) of rights which accrue or will accrue to the Seller Disclosure LetterParties under the Transaction Documents.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 1 contract
Excluded Assets. (aNotwithstanding anything in Section 2.01(a) Notwithstanding any provision in this Agreementto the contrary, Purchaser Buyer shall not purchase, and the Purchaser Designated Affiliates are Assets shall not purchasing or acquiring include, any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or and interest in or to any assets, properties or rights other than of the Purchased Assets following assets (the “"Excluded Assets”), including:"):
(i) all assets constituting ownership interests incash and cash equivalents, or that are used or held for use in, the Retained Businesses, securities (other than those assets identified as Purchased Assets the Interests) and negotiable instruments on hand, in clauses (a) through (s) of Section 2.1lock boxes, in financial institutions or elsewhere, including any cash residing in any collateral cash account securing any obligation or contingent obligation;
(ii) all Retained Real Propertyintercompany receivables between Parent and any of its Affiliates, or between any Affiliate of Parent and any other Affiliate of Parent, all accounts, notes and other receivables resulting from sales prior to the Closing Date by Parent or its Affiliates of products to the extent generated by the Businesses, whether current or non-current;
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as otherwise expressly set forth on in this Agreement or the Ancillary Agreements including in Section 2.1(d)(i)(B2.01(a) hereof, the ownership right in any property or asset (other than Intellectual Property), including Contracts, that is used in the Businesses, but is used primarily in businesses of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and Businesses (A) any leases relating to the assets described in the foregoing clauses (B) through (Da "Shared Asset(s)");
(iv) all legal real property of Parent and beneficial its Affiliates (including any of Parent's or its Affiliates' right, title and interest in as a tenant or otherwise and the share capital or equity interest of any Person other than Real Property contemplated to be leased to Buyer under the Conveyed Subsidiaries (and their SubsidiariesLease Agreement), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure LetterOwned Business Real Property;
(v) all Shared Contracts the EVAR Business, the PCBA Business, the Peripheral Intervention Business, the Embolic Beads Business and all other Contracts, sales orders, purchase orders, instruments businesses of Parent and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contractsthe Businesses (collectively, the "Excluded Businesses");
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventorysubject to Section 5.06(c) other than the Inventory and any samples of Productslicense granted in accordance therewith, the Licensed Marks;
(vii) the Retained Names all rights or interests of a Transferred Subsidiary in, and all other Intellectual Property that is not Business IPassets of, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual PropertyParent Plans;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller the Parent or any of its Affiliates and not Related to the BusinessRetained Intellectual Property;
(ix) all customer Parent's and vendor listsits Affiliates' investments in, all advertisingor joint ventures or any other partnerships with, marketingother third-party businesses (equity, sales and promotional materialsdebt or otherwise), and business and financial records, books, and documents and other Records, in each case whether or not Related related to the BusinessBusinesses (collectively, and "Parent Investments"), including those listed on Section 2.01(c)(ix) of the Specified RecordsSeller Disclosure Schedule;
(x) all accounts receivable rights of Parent and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in Transferred Subsidiaries) arising under this Agreement or from the calculation consummation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash)transactions contemplated hereby;
(xi) all Tax refundsany claim, Tax credits right or interest of the Parent and any Transferred Subsidiary in or to any refund, credit or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified recovery for Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a any Pre-Closing Tax Liability in such calculation);Period; and
(xii) all Seller Combined Tax Returns any right, title and all Tax Returns interest in or to any of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect assets including Contracts related thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including listed on Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx2.01(c)(xii) of the Seller Disclosure LetterSchedule.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 1 contract
Excluded Assets. The following are collectively referred to as the --------------- "Excluded Assets" and are not included in the Assets: ---------------
(a) Notwithstanding all Communications Facilities (as defined in the Sublease), including but not limited to AirTouch's Improvements and Communications Equipment (each as defined in the Sublease);
(b) the Reserved Space as described in the Sublease, including without limitation all space at a Tower Site occupied by AirTouch's Improvements and Communications Equipment (each as defined in the Sublease) and non-exclusive use of all real estate interests (including fee and leasehold interests, licenses, rights-of-way and easements) on which switch equipment and associated loading docks, patios, offices and parking lots of Sublessors or their Affiliates is located or necessary to such equipment's operation;
(c) any provision in this Agreementequipment or transmission systems used by AirTouch, Purchaser and the Purchaser Designated Affiliates are not purchasing any other Sublessor or acquiring any of Seller Parent’s Sublessors' Affiliates for the remote monitoring of the Towers;
(d) all Intellectual Property of Sublessors or its Affiliates’ any Affiliate of Sublessors, other than plans and specifications of the Towers and data (including in electronic or machine-readable form) relating to third party tenants and lessors with respect to the Conveyed Subsidiaries’ or their Subsidiaries’Towers;
(e) right, title or interest in any assets, properties or rights, including Contracts, that are not exclusively Assets;
(f) all rights that accrue or will accrue to, and all rights retained by and/or granted to, Sublessors under this Agreement, the Sublease or any of the other than Transaction Documents, including the Purchased Assets consideration paid or to be paid to Sublessors hereunder;
(g) any claims or rights against third parties except to the “Excluded extent such claims or rights relate to the Assets”), including:;
(h) assets of any Employee Plan or employee benefit arrangement;
(i) all the assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets specified in clauses (a) through (s) of Section 2.1SCHEDULE 1.14;
(ii) all Retained Real Property;
(iii) (A) the Retained Facilities, (Aj) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and assets specified in any personal computers and vehicles of the Annexes or included within the definition of Assets herein that are not primarily used owned or leased by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits partnership or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to entity which Seller Parent is entitled pursuant to Section 6.5(c), whether or listed on EXHIBIT B hereto but does not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as become an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1Other Entity; and
(xxk) any Tower Sites (and all Towers, Tower Related Assets and other assets and rights associated with such Tower Sites) excluded from the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement Assets or excluded from becoming subject to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash Sublease pursuant to Section 2.9 2.2 (Restricted Items) hereof, or which are to have occurred as of 12:01 a.m. (New York time) on remain the Closing Dateproperty of, or are to be for the benefit of, any Sublessor pursuant to the Sublease.
Appears in 1 contract
Excluded Assets. (a) Notwithstanding any provision in this Agreement, Purchaser and the Purchaser Designated Affiliates are not purchasing or acquiring any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any The following assets, properties and businesses of the Retained Entities (the “Specified Excluded Assets”) and any other asset, property or rights other than business of Sapphire and/or any of its Subsidiaries that is not Related to the Purchased Assets Businesses (collectively, the “Excluded Assets”) shall be excluded from the Transferred Assets:
(a) any owned real property;
(b) any Specified Excluded Real Property Lease and any Contract related to the leasing or subleasing of real property and all rights thereunder other than the Transferred Real Property Leases and any subleases, licenses or occupancy agreements pertaining to such Transferred Real Property Leases;
(c) the Excluded Shared Contracts and, unless otherwise addressed in the definition of Transferred Assets or this Section 2.03, all other Contracts that are not Purchased Contracts (including, for the avoidance of doubt, any Contracts in respect of the Business Policies to which Sapphire or its Subsidiaries (other than the Transferred Entities) are a party), including:subject to, in the case of Specified Brokerage Contracts, the provisions of Section 5.20(c));
(d) all cash, cash equivalents and marketable securities on hand or in banks, including the Retained Fiduciary Accounts (except for (i) Required Cash and (ii) any cash held in a Transferred Fiduciary Account);
(e) all bank accounts, including the Retained Fiduciary Accounts (and excluding, for the avoidance of doubt, the Transferred Fiduciary Accounts);
(f) all Intellectual Property Rights, other than (i) the Business Intellectual Property Rights, and (ii) any rights to third-party Intellectual Property Rights licensed pursuant to Purchased Contracts;
(g) to the extent used or held for use in the Retained Businesses as of the Principal Closing, all copies and tangible embodiments of any Business Intellectual Property Rights licensed for use by Sellers under the Intellectual Property License Agreement including any such copies or tangible embodiments that are comprised of Software, analytical and actuarial tools and models and other technology;
(h) all Permits (excluding, for the avoidance of doubt, Permits held by a Transferred Entity);
(i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, insurance policies issued to Sapphire and its Subsidiaries other than those assets identified as Purchased Assets in clauses (a) through (s) the Transferred Entities and, subject to Section 5.09, all rights, claims, credits or causes of Section 2.1action thereunder;
(iij) all Retained Real Property;
(iii) (A) the Retained Facilitiesrefunds and credits, (A) any owned claims for refunds or credits and leased furniturerights to receive refunds or credits of Taxes with respect to Taxes arising out of, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities relating to or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, Transferred Assets and the Businesses for any Pre-Closing Tax Period;
(Ak) the Information Systems of Seller Parent and its Subsidiaries, all Business Records other than the Transferred Business IT Systems Records, including all minute books, corporate records (such as stock registers) and Organizational Documents;
(Al) Business Data otherwise forming part of the Transferred Assets which exceeds the retention periods as are provided in the document retention policies and procedures of the Business and/or which does not relate to the Business Policyholders, including, but not limited to data of any leases Retained Entities or the Excluded Assets;
(m) all Seller Employee Plans, all Assumed Employee Plans (but only to the extent not related to the Transferred Employees) and any other plan, scheme, program, policy, practice, agreement, arrangement or contract which any Seller or any of their respective Affiliates sponsors or maintains or with respect to which any Seller or any of their respective Affiliates contributes, is a party or has any liability (other than any Assumed Employee Plan), including all Contracts, insurance policies or other funding arrangements, relating to or arising from, and assets of, such arrangements;
(n) all Specified Retained Renewal Rights and Specified Retained Renewal Goodwill;
(o) all assets sold, transferred or otherwise disposed of in compliance with the assets described terms of the Transaction Documents from the date hereof until the Relevant Closing;
(p) all rights of any of the Retained Entities expressly set forth in the foregoing clauses Transaction Documents;
(Bq) through the Put Options Assets unless and until the applicable Put Option is exercised and the parties have duly executed and delivered the applicable Transfer Agreement (Dat which time the Put Option Assets shall be Transferred Assets);
(ivr) all legal (i) Retained Fiduciary Accounts Receivables and beneficial interest in the share capital (ii) any revenue that has not yet been received by Sapphire or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates in respect of each Specified Brokerage Contract for the period until such Specified Brokerage Contract (or replacement therefor) is a party or by which any of its or their properties, assets or rights is subject, assigned to Buyer in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on accordance with Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash5.20(c);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xxs) the those assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letterand properties listed on Schedule 2.03(s).
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 1 contract
Sources: Security and Asset Purchase Agreement (Willis Towers Watson PLC)
Excluded Assets. (a) Notwithstanding any provision The Seller will retain ownership of all assets and properties not identified in Section 1.1 as Purchased Assets, including all rights of the Seller under this Agreement, Purchaser Agreement and the Purchaser Designated Affiliates are not purchasing or acquiring any of Seller Parent’s or its Affiliates’ Transaction Documents and the following (including the Conveyed Subsidiaries’ or their Subsidiaries’) rightcollectively, title or interest in any assets, properties or rights other than the Purchased Assets (the “Excluded Assets”):
(a) all cash, cash deposits, bank accounts, certificates of deposit, savings and other similar cash or cash equivalents of every kind, character, nature and description;
(b) investments in marketable securities;
(c) equity interests in any Person;
(d) other than the Inventory, all crude, condensate, refined product, additives, and other product inventories located or stored in the Purchased Assets, whether owned by customers of the Business or owned by the Seller or any Affiliate of the Seller;
(e) the corporate seals, organizational documents, minute books, stock books, Tax Returns (other than Tax Returns reporting Asset Taxes), including:books of account or other records having to do with the corporate organization of the Seller and all Books and Records of the Seller not included in the Assigned Books and Records;
(f) all intellectual property rights relating to the Business (other than the software set forth on Schedule 1.1(i)), including all right, title and interest in and to the name “Motiva”, including all derivations thereof and all goodwill associated with or appurtenant to any of the foregoing (collectively, the “Excluded Intellectual Property”);
(g) any claims, counterclaims, causes of action, lawsuits, judgments, set-offs, third party indemnities, defenses and rights under all warranties, representations and guarantees made by suppliers of services, products, materials or equipment primarily related to the Excluded Assets or the Excluded Liabilities;
(h) all insurance policies and all rights to applicable claims and proceeds thereunder;
(i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1;
(ii) all Retained Real Property;
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property trade accounts receivable and other tangible property located at the Retained Facilities or not Related rights to the Business, except as set forth on Section 2.1(d)(i)(B) payment from customers of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in with respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) full benefit of all security for such accounts or rights to payment, including all trade accounts receivables representing amounts receivable in respect of goods shipped or products sold or services rendered to customers of the Seller with respect to the Business, and all other accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and Seller to the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes extent relating to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether the full benefit of all security for such accounts, and any claim, remedy or not existing other right related to any of the foregoing arising out of the operation of the Business, but in all cases, to the extent such receivables relate to, or arise out of, or are attributable or allocable to, products or services provided by the Seller prior to the Closing, but excluding any refunds whether billed or credits or other Tax Assets to unbilled (the extent reflected as an asset on the Final “Pre-Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculationReceivables”);
(xiij) all Seller Combined Tax Returns the assets and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and properties listed in each case any books and records relating theretoSchedule 1.2(j);
(xiiii) all claimsattorney-client privilege and attorney work product protection of the Seller and its Affiliates arising as a result of outside legal counsel and in-house legal counsel representing the Seller and its Affiliates in connection with or relating to the Excluded Assets, defensesthe Excluded Liabilities or negotiation, causes preparation, execution and delivery of action, counterclaims this Agreement and rights the consummation of set-off against third parties the transactions contemplated hereby; (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xivii) all rights documents maintained by outside legal counsel and in-house legal counsel arising out of representation of the Seller Parent or any of and its Affiliates (for clarity, other than, from and after in connection with or the ClosingExcluded Assets, the Conveyed Subsidiaries Excluded Liabilities or the negotiation, preparation, execution and their Subsidiaries) under delivery of this Agreement or the Ancillary Agreements consummation of the transactions contemplated hereby; and (iii) all documents subject to any documents delivered or received attorney-client privilege and attorney work product protection of the Seller and its Affiliates as a result of outside legal counsel and in-house legal counsel representing the Seller and its Affiliates in connection herewith with or therewithrelating to the Excluded Assets, the Excluded Liabilities or negotiation, preparation, execution and delivery of this Agreement and the consummation of the transactions contemplated hereby;
(xvl) except as all of the Seller’s rights, title and interest in and to all guarantees, credit support arrangements, security deposits, or surety or performance bonds, set forth in Section 2.1(oon Schedule 1.2(l) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries(the “Credit Support Instruments”);
(xvim) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Rejected Terminal Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xxn) the all other assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letter.
(b) Notwithstanding anything that are not exclusively used in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Dateare not Purchased Assets.
Appears in 1 contract
Excluded Assets. (a) Notwithstanding any provision anything to the contrary contained in this AgreementSection 2.1(a), Purchaser and will not purchase, assume or otherwise acquire any assets of the Purchaser Designated HSBC Sellers or any of their respective Affiliates that are not purchasing or acquiring any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest expressly included in any assets, properties or rights other than the Purchased Assets (collectively, the “Excluded Assets”), including, by way of example only, the following assets, properties, rights, Contracts and claims, wherever located, whether tangible or intangible, real, personal or mixed:
(i1) all assets constituting ownership interests inassets, properties, rights, Contracts and claims, including Loans and extensions of credit in process, wherever located, whether tangible or that are used intangible, real, personal or held for use inmixed, primarily related to the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1;
(ii) all Retained Real Property;
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory2) other than the Inventory Real Property Leases and any samples of Products;
(vii) the Retained Names and all other Intellectual ATM Real Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor listsLeases, all advertisingleases, marketingsubleases, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits licenses or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes Contracts pursuant to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the HSBC Sellers or any of their respective Affiliates leases, subleases or licenses real property;
(other than 3) all Nonperforming Loans, Loans to Retained Employees and Loans originated with or guaranteed by the Conveyed Subsidiaries Veterans’ Administration or the Federal Housing Administration;
(4) the Excluded Contracts;
(5) all assets related to employee benefit arrangements of any HSBC Seller or any of their respective Affiliates, including the Employee Plans;
(6) all Intellectual Property of the HSBC Sellers and their Subsidiariesrespective Affiliates, including all right, title and interest in and to all proprietary or licensed software, systems or programs or computer software agreements of the HSBC Sellers and their respective Affiliates, including any rights (ownership, licensed or otherwise) to any of the HSBC Entity Names and any other Trademarks of the HSBC Sellers or their respective Affiliates, including those identified on Schedule 2.1(b)(6);
(7) all books, records and other data that cannot, without unreasonable effort or expense, be separated from books and records maintained by the HSBC Sellers or their respective Affiliates in connection with the Retained Businesses or to the extent that such books, records and other data relate to Excluded Assets, Excluded Liabilities or Business Employees or Affiliated Employees who do not relate solely become Transferred Business Employees, and all personnel files and records; provided that, to Purchased Assets or Assumed Liabilitiesthe extent permitted under, and in each case any books and records relating thereto;
(xiii) all claimsaccordance with, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.67.1(c), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent Assignor shall use commercially reasonable efforts to take cause the HSBC Sellers to provide Purchaser with access to any such books, records and other data for which the above-referenced separation would cause the HSBC Sellers to incur unreasonable effort or expense;
(8) all licenses, charters, and legal entities of the HSBC Sellers or cause one or more their respective Affiliates;
(9) the Retained In-Process Loans;
(10) all credit card accounts and receivables;
(11) the Restricted Items;
(12) the Letters of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing DateCredit.
Appears in 1 contract
Sources: Assignment, Purchase and Assumption Agreement (Community Bank System Inc)
Excluded Assets. (a) Notwithstanding any provision in this Agreementanything to the contrary herein, Purchaser and the Purchaser Designated Affiliates are Buyer is not purchasing acquiring hereunder or acquiring otherwise any of Seller ParentSeller’s or its Affiliates’ (including the Conveyed Subsidiariesor related entities’ or their Subsidiaries’) rightright and title to, title or interest in in, and claims under any assets, properties properties, or rights other than those expressly described in Section 2.1 above, which shall therefore not constitute part of the Purchased Acquired Assets (collectively, the “Excluded Assets”), includingincluding the following assets, properties or rights of Seller or any Affiliate or related entities of Seller:
(i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1cash and cash equivalents;
(b) any names, logos, trademarks, trade names or service marks including any names, logos, trademarks, trade names or service marks (i) containing any of the “Deloitte,” “Touche” or “Tohmatsu” names, or any derivatives thereof, or (ii) all Retained Real Property;
(iii) (A) used in the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems businesses of Seller Parent and or its SubsidiariesAffiliates, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subjectother Intellectual Property Rights, in each case other than Assumed Contractsthe Acquired Intellectual Property Rights which include the Transferred ▇▇▇▇;
(vic) any and all inventory (including all raw material inventoryTechnology, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of ProductsAcquired Technology;
(viid) all (i) company seals, corporate minute books and stock records or similar corporate records of Seller and the Retained Names Business Affiliates and (ii) Tax Returns;
(e) all Books and Records (other Intellectual Property that is not Business IPthan the Acquired Books and Records) and a copy of all Acquired Books and Records;
(f) all Contracts, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement assets, properties or otherwise, and including as rights set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual PropertySchedule 2.2(f);
(viiig) all Governmental Authorizationspersonal property and computer equipment other than the Acquired Tangible Assets;
(h) all Tax assets, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by refunds due to Seller Parent or any Business Affiliate, in respect of its Affiliates and not Related periods or portions thereof ending on or prior to the Closing Date;
(i) all leases to real property other than the Acquired Leases;
(j) any bank accounts used by the Business;
(ixk) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies of Seller and the Business Affiliates and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xviil) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;Employee Benefit Plan; and
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xixm) all assets, properties and rights of any Person that are not Related subject to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure LetterTransition Services Agreement.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
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Excluded Assets. (a) Notwithstanding any provision in this AgreementIt is expressly understood and agreed that, Purchaser and notwithstanding anything to the Purchaser Designated Affiliates are contrary set forth herein, the Acquired Assets shall not purchasing or acquiring any of Seller Parentinclude Seller’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in or to any of the assets that are not identified in Section 1.1(a), including the following assets (collectively, the “Excluded Assets”):
(i) the assets, properties or rights other than the Purchased Assets (the “Excluded Assets”listed on Schedule 1.1(b)(i), including:
(i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1;
(ii) the capital stock of all Retained Real Propertysubsidiaries of Seller and any other equity ownership interests owned (beneficially or of record) by Seller;
(iii) (A) the Retained Facilitiesall cash and cash equivalents or similar type investments, (A) any owned and leased furniturebank accounts, equipmentcertificates of deposit, fixtures, machinery, supplies, spare parts, tools, tangible personal property Treasury bills and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D)marketable securities;
(iv) all legal rights and beneficial interest in the share capital or equity interest of any Person Seller under Seller’s contracts with distributors or selling personnel and the other than the Conveyed Subsidiaries (contracts and their Subsidiariesagreements listed on Schedule 1.1(b)(iv), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts intellectual property rights and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case intellectual property other than Assumed Contractsthe Designated Patents, Designated Trademarks, Designated Domain Names, Designated Intellectual Property and Expired Patents;
(vi) all inventory accounts receivable and other receivables (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventorywhether or not billed) other than as of the Inventory and any samples of ProductsClosing for the Business;
(vii) the Retained Names all insurance policies and all other Intellectual Property that is not Business IPrights of Seller to insurance claims, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, related refunds and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Propertyproceeds thereunder;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used the rights which accrue or licensed by will accrue to Seller Parent or any of its Affiliates and not Related to the Businessunder this Agreement;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materialsEmployee Benefit Plans or arrangements of Seller, and business all assets, contracts and financial records, books, insurance and documents and other Records, in each case not Related to the Business, and the Specified Recordsfunding arrangements relating thereto;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates any intercompany account of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash)kind;
(xi) all Tax refunds, Tax credits or deposits, and other Tax Assets assets of the Sellers and any refund or credit against Seller Indemnified Taxes (other than Tax refunds to which Seller Parent Buyer is entitled pursuant to Section 6.5(c), whether or not derived from the Business under Article VIII) and whether or not existing prior to the Closing, but excluding any refunds or credits or other all Tax Assets to the extent reflected as an asset on the Final Closing Statement books and taken into account in the calculation records of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);Seller; and
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilitiesactions, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims rights of recovery, choses in action and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights setoff of any nature with respect theretokind arising before, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan at or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating relating to the Business Working Capital and the Business Net Cash pursuant items set forth above in this Section 1.1(b) or to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Dateany Excluded Liabilities.
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Excluded Assets. It is expressly understood and agreed that the Assets shall not include the following (aeach, an "Excluded Asset"):
(l) Notwithstanding Except to the extent expressly transferred pursuant to the provisions of Sections 1.2(a) through (k), inclusive, all assets, rights, properties, claims, contracts and business of any provision in this Asset Seller that, after giving effect to the services to be provided to, and other rights of, Buyer under the Seller Transition Services Agreement, Purchaser and the Purchaser Designated Affiliates are not purchasing necessary to conduct the Compression Services Business as currently conducted;
(m) The capital stock and other equity interests of all direct or acquiring any indirect subsidiaries and affiliates of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any assets, properties or rights other than the Purchased Assets (the “Excluded Assets”), including:
(i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1Transferred Subsidiaries;
(iin) all Retained Real Property;
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash Cash and cash equivalents, checks, money orders, marketable securities, short-term instrumentsequivalents or similar type investments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, Treasury bills and other marketable securities of the Asset Sellers;
(o) All real property and brokerage accounts, funds leasehold interests in time real property of the Asset Sellers other than the Facilities and demand deposits the Equipment;
(p) Any refunds or similar accounts credits with respect to any Taxes (as defined in Section 2.12) paid or incurred by the Asset Sellers (plus any related interest received from the relevant Taxing Authority) (as defined in Section 2.12);
(q) Any Intellectual Property of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) Asset Sellers (other than the accounts receivable and other assetsIntellectual Property expressly set forth, summarized and/or described in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net CashSection 1.2(a) hereof);
(xir) all Tax refundsAll right, Tax credits or other Tax Assets title and interest of the Sellers and any refund or credit against Asset Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior in any insurance policies relating to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Compression Services Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all Asset Seller to insurance recoveries thereunder claims and rights to assert claims proceeds with respect to any such insurance recoveriesor relating to (i) occurrences prior to the Closing with respect to the operation of the Compression Services Business and (ii) the Excluded Assets and Excluded Liabilities;
(xvis) except as expressly set forth in this Agreement All rights with respect to intercompany receivables, notes or loans between any of the Transferred Subsidiaries, on the one hand, and Seller and its other subsidiaries (including Section 2.1(pexcluding Transferred Subsidiaries) and Section 6.6)affiliates, all assets on the other hand, except for trade payables or receivables relating to the provision of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such goods and services to or by the extent such assets are Purchased Assets) Compression Services Business in the ordinary course of business of the type currently provided to the Compression Services Business by Seller Parent or any consistent with past practice and custom ("Ordinary Course of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1"); and
(xxt) the assets set forth The rights referred to in Section 2.3(a)(xx1.3(i) of the Seller Disclosure LetterSchedule.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
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Excluded Assets. (a) Notwithstanding any other provision in of this AgreementAgreement to the contrary, Seller, the Seller Entities and their respective Affiliates will retain and not sell, transfer, assign or convey, and Purchaser shall not acquire, any of the following assets and properties of Seller and the Purchaser Designated Affiliates are Seller Entities, or any asset that is not purchasing or acquiring any of Seller Parent’s or its Affiliates’ a Purchased Asset (including the Conveyed Subsidiaries’ or their Subsidiaries’) rightcollectively, title or interest in any assets, properties or rights other than the Purchased Assets (the “Excluded Assets”):
(a) Any and all assets related to the Benefit Plans (other than with respect to the Benefit Plans assumed pursuant to Section 2.6(d));
(b) Any and all Intellectual Property Rights (including, as an Excluded Asset, the Seller Marks), other than the Business Intellectual Property and any Intellectual Property Rights granted to any of the Seller Entities to the extent in any of the Contracts transferred or assigned to Purchaser;
(c) Any and all Retained Technology (it being understood that Purchaser and its Affiliates may receive and retain copies of any Retained Technology to the extent that it is also Transferred Technology);
(d) Any and all Contracts and portions of Contracts (other than the Business Contracts) and including:
, as Excluded Assets, (i) any and all assets constituting ownership interests in, or Contracts of Seller’s Market Intelligence and Index businesses that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1;
(ii) all Retained Real Property;
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related unrelated to the Business, except (ii) any and all Excluded Enterprise Agreements, (iii) all of the right and interest in and to the Intercompany Data Contracts other than the right and interest of the applicable Seller Entity (as described in Section 2.4(a)(vi)) and (iv) the Contracts set forth on Section 2.1(d)(i)(B2.5(d) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by Schedules (the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D“Specified Excluded Contracts”);
(ive) Any and all legal owned and beneficial interest leased real property and other interests in real property;
(f) Except as expressly included in Section 2.4(d), any and all Tangible Personal Property;
(g) Any and all Information Technology;
(h) Any and all prepaid Taxes by, or refunds, credits, overpayments or similar items or recoveries of or against any Tax of, Seller, the share capital Seller Entities or equity interest any of their respective Affiliates, except, in each case, to the extent such items are taken into account as an asset in determining Net Working Capital;
(i) Any Seller Tax Returns and other books and records related to Taxes paid or payable by Seller, the Seller Entities or any Person other than the Conveyed Subsidiaries of their respective Affiliates;
(j) Any and their Subsidiaries)all Cash amounts, and any and all trade receivables, accounts receivable, current assets, prepaid expenses and security deposits (in each case, other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any Business as of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related immediately prior to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related Closing to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case extent included in the calculation of the Final Business Closing Date Net Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xik) All books and records to the extent related to the Retained Claims;
(l) Any and all Tax refundsinsurance policies and binders and interests in insurance pools and programs and self-insurance arrangements for all periods before, Tax credits or other Tax Assets of the Sellers through and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to after the Closing, but excluding including any and all refunds and credits due or credits or other Tax Assets to become due thereunder and any and all claims, rights to make claims and rights to proceeds on any such insurance policies for all periods before, through and after the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation)Closing;
(xiim) all Seller Combined Tax Returns Subject to Section 2.4(h), any and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating theretoPermits;
(xiiin) Any and all claims, defensesrights, causes of action, counterclaims defenses and rights of set-off against third parties offset or counterclaim (at any time or in each case, in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased or settlement agreements, in each case at any time to the extent arising out of or related to any of the Excluded Assets in Section 2.1;
or Retained Liabilities (xiv) including all rights and claims under any and all warranties extended by suppliers, vendors, contractors, manufacturers and licensors in favor of Seller Parent or any of its Affiliates in relation to any Excluded Assets), and the right to retain all proceeds and monies therefrom (for clarity, other than, from and after the Closingcollectively, the Conveyed Subsidiaries “Retained Claims”);
(i) all attorney-client privilege and their Subsidiaries) under attorney work-product protection of Seller or associated with the Business as a result of legal counsel representing Seller or the Business in connection with the transactions contemplated by this Agreement or any of the Ancillary Agreements Transaction Documents, (ii) all documents subject to the attorney-client privilege or work-product protection described in clause (i) of this Section 2.5(o) and any (iii) all documents delivered or received maintained by Seller in connection herewith with the transactions contemplated by this Agreement or therewithany of the Transaction Documents;
(xvp) except as Subject to Section 5.16, any and all Vendor Contracts that are Bundled, including the Contracts set forth in on Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets2.5(p) of the type currently Seller Disclosure Schedules (the “Bundled Vendor Contracts”); provided to that the Business subject matter of such Bundled Vendor Contracts other than those for inbound data shall be provided by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under to Purchaser pursuant to the Transition Services Agreement;
(xviiiq) Any and all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in on Section 2.3(a)(xx2.5(q) of the Seller Disclosure Letter.Schedules; and
(br) Notwithstanding anything Any and all assets, business lines, properties, rights and claims of Seller, the Seller Entities or any of their respective Affiliates that are not Purchased Assets. The Parties hereto acknowledge and agree that, except as otherwise provided in this Agreement to the contrary but subject to Section 6.5(f)or in any other Transaction Document, prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more neither Purchaser nor any of its Affiliates Subsidiaries will acquire or be permitted to take) such action as is necessaryretain any direct or indirect right, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries title and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result interest in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing DateAssets.
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Excluded Assets. (aNotwithstanding Section 1.05(a) Notwithstanding or any other provision hereof, the SpinCo Assets will not in this Agreement, Purchaser and the Purchaser Designated Affiliates are not purchasing or acquiring any event include any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any assets, properties or rights other than the Purchased following Assets (the “Excluded Assets”), including:):
(i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) respect of Section 2.1any and all Compensation and Benefit Plans and all Assets in respect of all other compensation and benefit plans sponsored by the Citadel Group;
(ii) all Retained Real Propertyfinancial and Tax records relating to the SpinCo Business that form part of the general ledger of Citadel or any of its Subsidiaries (other than the members of the SpinCo Group), any work papers of Citadel’s auditors and any other Tax records (including accounting records) of Citadel or any of its Subsidiaries (other than the members of the SpinCo Group); provided that Citadel will provide to SpinCo upon written request, copies of any portions of such financial and Tax records that relate to the SpinCo Entities, the SpinCo Assets, the SpinCo Liabilities or the SpinCo Business;
(iii) other than rights to enforce the provisions of any confidentiality, non-disclosure or other similar Contracts to the extent related to the SpinCo Business or as provided in Section 1.05(a) and the corresponding sections of the Citadel Disclosure Letter, all records prepared by or on behalf of Citadel or its Subsidiaries relating to the negotiation of the Transactions and all records prepared by or on behalf of Citadel or its Subsidiaries in connection with the potential divestiture of all or a part of the SpinCo Business or any other business or Asset of Citadel or its Subsidiaries, including (A) the Retained Facilities, (A) any owned proposals received from third parties and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases analyses relating to the assets described in the foregoing clauses such transactions and (B) through (D)without limiting Section 7.14, confidential communications with legal counsel representing Citadel or its Affiliates and the right to assert the attorney-client privilege with respect thereto;
(iv) all legal and beneficial interest in the share capital Contracts of either Citadel or equity interest SpinCo or any member of any Person their respective Groups other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure LetterSpinCo Contracts;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent rights of Citadel or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than members of the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their SubsidiariesSpinCo Group) under this Agreement or any Transitional Agreement and the Ancillary Agreements certificates, instruments and any documents Transfer Documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xxvi) the assets set forth in Section 2.3(a)(xx) any and all Assets that are expressly contemplated by this Agreement or any Transitional Agreement as Assets to be retained by Citadel or any other member of the Seller Disclosure LetterCitadel Group (other than SpinCo and its Subsidiaries).
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 1 contract
Sources: Transaction Agreement (Capital Product Partners L.P.)
Excluded Assets. Notwithstanding the terms of Section 2.1, no Asset Selling Affiliate will sell, convey, assign, transfer or deliver to the Purchaser (a) Notwithstanding any provision in this Agreementor its Designated Affiliates), Purchaser and the Purchaser (and its Designated Affiliates are Affiliates) will not purchasing purchase or acquiring any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) rightacquire, title or interest in any assets, properties or rights other than and the Purchased Assets do not include the following assets (together, the “Excluded Assets”):
(a) all accounts receivable of the Asset Selling Affiliates (other than the Notes Receivable) (regardless of whether such accounts receivable relate to the Business);
(b) all Cash, including:bank deposits, investment accounts, lockboxes, certificates of deposit, marketable securities, bank accounts, corporate credit cards and other similar cash items of any Asset Selling Affiliate (including for this purpose all collected funds received into bank accounts owned by any Asset Selling Affiliate through the Closing);
(c) all minute books, records, stock ledgers and Tax records of the Asset Selling Affiliates, along with personnel records and all other materials that the Asset Selling Affiliates are required by Law to retain;
(d) the shares of the capital stock or other equity securities of any Asset Selling Affiliate and any Asset Selling Affiliate’s ownership interest in any Person (other than the Acquired Companies);
(e) subject to Article 10, all insurance policies, binders, entitlements and rights of the Selling Affiliates thereunder and proceeds thereof;
(f) all rights under all Contracts of any Asset Selling Affiliate other than the Included Contracts;
(g) all rights to refunds, credits or similar benefits relating to Excluded Taxes;
(h) the “CareFusion” name, ▇▇▇▇, domain name and logo, along with all intellectual property rights of the Sellers or any Asset Selling Affiliate, other than the Purchased Intellectual Property;
(i) all assets constituting ownership interests in, or that are used or held for use in, real property and rights of the Retained BusinessesAsset Selling Affiliates in respect of real property, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1;
(ii) all Retained the Leased Real Property;
(iiij) all rights in connection with and assets of any Seller Plan (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees otherwise expressly provided in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (DArticle 10);
(ivk) all legal and beneficial interest in the share capital or equity interest of rights arising under any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure LetterExcluded Liability;
(vl) all Shared Contracts rights to use and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, otherwise in each case other than Assumed Contractsconnection with the Relevant Phone Numbers;
(vim) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory assets and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) rights of the Seller Disclosure Letter, Asset Selling Affiliates sold or otherwise transferred or disposed of during the period from the date of this Agreement through and including the right to ▇▇▇ and recover and retain damages for pastClosing Date, present and future infringement in any event in accordance with Sections 5.2 or misappropriation or any other violation of any such Intellectual Property;5.11 hereof; and
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xivn) all rights of Seller Parent or any of its Asset Selling Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or any of the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure LetterAgreements.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 1 contract
Sources: Share and Asset Purchase Agreement (Natus Medical Inc)
Excluded Assets. It is expressly understood and agreed that the Assets shall not include the following (each, an "Excluded Asset"):
(a) Notwithstanding Except to the extent expressly transferred pursuant to the provisions of Sections 1.2(a) through (l), inclusive, all assets, rights, properties, claims, contracts and business of any provision in this AgreementAsset Seller that, Purchaser after giving effect to the services to be provided to, and other rights of, Buyer under the Buyer License Agreement and the Purchaser Designated Affiliates Transition Agreements, are not purchasing necessary to conduct the Analytical Instruments Business as currently conducted;
(b) The capital stock of all direct or acquiring any indirect subsidiaries and affiliates of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any assets, properties or rights other than the Purchased Assets (the “Excluded Assets”), including:
(i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1Transferred Subsidiaries;
(iic) all Retained Real Property;
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash Cash and cash equivalents, checks, money orders, marketable securities, short-term instrumentsequivalents or similar type investments, bank and other depositary accounts, certificates of deposit, time depositsTreasury bills and other marketable securities of the Asset Sellers;
(d) All real property and leasehold interests in real property of the Asset Sellers other than the Plants and the Equipment;
(e) Any refunds or credits with respect to any Taxes paid or incurred by the Asset Sellers (plus any related interest received from the relevant taxing authority);
(f) Each Asset Seller's right, negotiable instruments, securities title and brokerage accounts, funds interest in time and demand deposits or similar accounts to the contracts listed on Section 1.2(g)(i) of the Seller Parent or any Schedule;
(g) Any Intellectual Property of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) Asset Sellers (other than the accounts receivable and other assetsIntellectual Property expressly set forth, summarized and/or described in each case included Section 1.2(a) hereof or expressly described in the calculation Section 1.2(a) of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net CashSeller Schedule);
(xih) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect theretoThe real property, including all insurance recoveries thereunder buildings, structures and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliatesother improvements situated thereon, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets assets listed in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx1.3(h) of the Seller Disclosure Letter.Schedule;
(bi) Notwithstanding anything Other than claims under insurance policies in this Agreement to the contrary but subject to Section 6.5(f)respect of Assets that are lost, damaged or destroyed or Assumed Liabilities that are incurred, in whole or in part, prior to the Closing, all right, title and interest of any Asset Seller Parent shall use commercially reasonable efforts in any insurance policies relating to take the Analytical Instruments Business and all rights of any Asset Seller to insurance claims and proceeds with respect to or relating to (or cause one or more i) occurrences prior to the Closing with respect to the operation of its Affiliates to takethe Analytical Instruments Business and (ii) such action as is necessary, advisable or desirable to transfer the Excluded Assets from and Excluded Liabilities;
(j) Any foreign currency agreements to which any Asset Seller is a party; and
(k) All rights with respect to intercompany receivables, notes or loans between any of the Conveyed Subsidiaries Transferred Subsidiaries, on the one hand, and their Subsidiaries Seller and its other subsidiaries (andexcluding Transferred Subsidiaries), if neededon the other hand, from except as listed in Section 1.3(k) of the Sellers) to Seller Parent Schedule and except for trade payables or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact receivables relating to the Purchased Assets provision of goods and services to or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect Analytical Instruments Business in the provisions ordinary course of this Section 2.3, including business of the return Analytical Instruments Business consistent with past practice and custom ("Ordinary Course of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing DateBusiness").
Appears in 1 contract
Sources: Purchase Agreement (Pe Corp)
Excluded Assets. Seller shall not sell and transfer and shall retain, and Buyer shall not purchase or acquire, all of the following assets and properties of Seller, as follows (a) Notwithstanding any provision in this Agreementcollectively, Purchaser and the Purchaser Designated Affiliates are not purchasing or acquiring any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any assets, properties or rights other than the Purchased Assets (the “Excluded Assets”):
(a) All (i) paper stock, forms and other supplies containing any logos, trade name, trademark or service ▇▇▇▇, if any, of Seller, other than all signage included in the Assets and (ii) the specific items of tangible personal property in or at, or affixed to the premises of, the Branches listed on Schedule 1.3(a), including:other than any such items that Buyer and Seller have mutually agreed to remove from or add to Schedule 1.3(a) following the date hereof, in which case such Schedule delivered on the date hereof, as so modified, shall be deemed to constitute Schedule 1.3(a) for all purposes of this Agreement.
(i) all assets constituting ownership interests in, All of Seller’s owned or that are used or held for use in, the Retained Businesses, licensed computer software programs and associated licenses (other than those assets identified as Purchased Assets manufacturer’s firmware on transferred equipment included in clauses the Personal Property), trade secrets and other intellectual property (a) through (s) of Section 2.1;
other than customer lists for the Branch Offices), (ii) all Retained Real Property;
the names “First Bank” and “First Banks,” (iii) (A) the Retained Facilitiesnames, (A) any owned descriptions and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property identifications of all account types and other tangible property located products offered by Seller (whether or not offered at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(BBranch Offices) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal logos, service marks, trade names and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries)trademarks, other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contractsadvertising materials, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory slogans and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, similar items used or licensed by Seller Parent or any of in connection with its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c)business, whether or not derived from such is copyrighted or registered.
(c) The Excluded Loans and any other non-performing loans as of the Business date hereof at the Branch Offices that are not listed on Schedule 1.1(d).
(d) Any other assets or properties of Seller not included in the Assets, including all non-divested branches of Seller.
(e) All assets, rights and whether or not existing prior interests of Seller relating to the ClosingBranches in respect of Fiduciary Relationships, but excluding any refunds or credits or other Tax Assets to except for the extent reflected as an asset on the Final Closing Statement Deposits in respect of ESAs, IRAs and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets Accounts included in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested Assumed Liabilities as contemplated by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date7.4.
Appears in 1 contract
Sources: Branch Purchase and Assumption Agreement (First Mid Illinois Bancshares Inc)
Excluded Assets. (a) Notwithstanding any provision in this Agreement, Purchaser The parties expressly understand and the Purchaser Designated Affiliates are not purchasing or acquiring any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any assets, properties or rights other than agree that the Purchased Assets shall not include, and no Asset Selling Entity is selling, assigning, transferring or conveying to any Purchaser, any right or title to or interest in, any of the following assets, properties, rights, Contracts and claims, whether tangible or intangible, real, personal or mixed (collectively, the “Excluded Assets”), including:):
(i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) all cash, cash equivalents, bank deposits, investment accounts, lockboxes, certificates of Section 2.1deposit, marketable securities or similar cash items, of such Asset Selling Entity;
(iib) all Retained Real Propertysubject to Section 10.1 through 10.4, any assets of an Employee Benefit Plan other than an Acquired Company Benefit Plan, including, any trusts, insurance arrangements or other assets held pursuant to, or set aside to fund the obligations of each Asset Selling Entity or its Affiliates under, any such Employee Benefit Plan, and any data and records (or copies thereof) required to administer the benefits of Business Employees under any such Employee Benefit Plan;
(iii) (A) the Retained Facilities, (Ac) any owned and leased furnitureall insurance policies, equipmentbinders and claims and rights thereunder and the proceeds thereof and all prepaid insurance premiums;
(d) subject to Section 7.7, fixturesall right, machinery, supplies, spare parts, tools, tangible personal property title and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) interest of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent each Asset Selling Entity and its Subsidiaries, Affiliates in all Intellectual Property other than Purchased Intellectual Property (the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D“Excluded Intellectual Property”);
(ive) all legal and beneficial interest tangible personal property disposed of or consumed in the share capital or equity interest ordinary course of any Person other than business between the Conveyed Subsidiaries (date hereof and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure LetterClosing Date as permitted by this Agreement;
(vf) the assets, Real Property Leases and Contracts of the Asset Selling Entities listed on Schedule 1.4(f);
(g) all Shared Contracts rights and all incidents in, to and under any Retention Agreements other Contractsthan Assumed Retention Agreements;
(h) any books, sales orders, purchase orders, instruments records and other commitments, obligations and arrangements to which Seller Parent materials that any Asset Selling Entity or any of its Affiliates is a party or required by which any of its or their properties, assets or rights is subject, in each case other than Assumed ContractsLaw to retain all Tax Returns (subject to Section 15.5) and related work papers and all “D▇▇▇” marked sales and promotional materials and brochures (subject to Section 7.7);
(vii) all inventory (including all raw material inventoryclaims, work-in-process inventorycounterclaims, spare parts inventory and finished products inventory) other than the Inventory and defenses, causes of action, choses in action or claims of any samples of Productskind relating primarily to either Excluded Assets or Excluded Liabilities;
(viij) all assets, business lines, properties, rights, Contracts and claims of any Asset Selling Entity not primarily related to the Retained Names and all other Intellectual Property that is not Business IPFPG Business, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement wherever located, whether tangible or otherwiseintangible, and including real, personal or mixed;
(k) except as set forth on in Section 2.3(a)(vii) of 1.3(a), all assets associated with facilities related to the Seller Disclosure Letter, and including FPG Business which have ceased operations prior to the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Propertydate hereof;
(viiil) all Governmental Authorizationsrefunds, including product registrationscredits, manufacturing registrations prepayments or deferrals of or against any Excluded Taxes;
(m) except for Transferred Intercompany Receivables, all intercompany receivables, loans and environmental permitsinvestments (i) between any Asset Selling Entity, ownedon the one hand, used or licensed by and any other Seller Parent or any of its Affiliates and not Related Affiliates, on the other hand, or (ii) required to the Businessbe settled in accordance with Section 6.7;
(ixn) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets any and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts notes receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cashlisted on Schedule 1.4(n);
(xio) any and all Tax refundscauses of action arising under Sections 510, Tax credits or other Tax Assets 544 through 550 and 553 of the Sellers and any refund Bankruptcy Code or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to under similar state laws; and
(p) except as set forth in Section 6.5(c1.3(m), whether or not derived otherwise arising from the Business and whether or not existing prior to the ClosingPurchased Intellectual Property, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of actions, choses in action, counterclaims rights of recovery, rights of set off and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letterrecoupment.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 1 contract
Excluded Assets. It is expressly understood and agreed that the Assets --------------- shall not include the following (each, an "Excluded Asset"): --------------
(a) Notwithstanding All assets and other rights (including, without limitation, all rights, properties, claims, contracts and business) used in whole or in part by any provision in this Agreement, Purchaser and the Purchaser Designated Affiliates are not purchasing or acquiring any of business conducted by Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any assets, properties or rights other than the Purchased Assets (the “Excluded Assets”), including:
(i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1Business;
(iib) All Intellectual Property of Seller or any of its Affiliates not included on Schedule 2.1(a)(i) and all Retained Real Property;
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property licenses and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements agreement to which ------------------ Seller Parent or any of its Affiliates is a party or by which Seller or any of its or their properties, assets or rights Affiliates is subject, in each case other than Assumed Contractsbound relating to Intellectual Property not included on Schedule -------- 2.1(a)(ii). -----------
(c) All management information systems and software;
(vid) The capital stock or equity interests of all inventory (including all raw material inventorysubsidiaries, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples joint ventures or investments of ProductsSeller;
(viie) the Retained Names Cash and all cash equivalents or similar type investments, bank accounts, certificates of deposit, Treasury bills and other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) marketable securities of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual PropertySeller;
(viiif) all Governmental AuthorizationsAll real property, including product registrations, manufacturing registrations leasehold interests in real property and environmental permits, owned, used or licensed by fixtures of Seller Parent or any of its Affiliates and not Related to all equipment, machinery, vehicles, tools and other tangible personal property (other than the BusinessTransferred Equipment) of the Seller;
(ixg) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts Accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates receivables of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of the Seller Parent or any of its Affiliates in existence at the Closing Date (including whether or not billed) to the Conveyed Subsidiaries extent attributable to the Business or any other business of Seller or any of their Subsidiariesits Affiliates;
(h) (other than the accounts receivable The corporate books and other assetsrecords of Seller and its Affiliates, in each case including minute books and stock ledgers, and copies of business records included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against acquired by Buyer that are reasonably required by Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights Affiliate of Seller Parent in order to permit Seller or any of its Affiliates (for clarity, to prepare any Tax Return or other than, from and filing or report to be made after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewithClosing Date;
(xvi) except as set forth Any assets of any employee benefit plan and any rights under any plan or agreement relating to employee benefits, employment or compensation of Seller and its Affiliates unless otherwise provided in Section 2.1(o7;
(j) and subject to Section 6.18, all current and prior insurance policies and all Any rights of Seller, its Affiliates or the Business which are contingent on the satisfaction of liabilities or obligations that are Excluded Liabilities;
(k) All claims which Seller or any nature of its Affiliates may have on or after the date hereof, against any Governmental Authority for refund or credit of any type with respect thereto, including all insurance recoveries thereunder and rights to assert income Taxes;
(l) All claims which Seller or any of its Affiliates may have against any Person with respect to any such insurance recoveriesExcluded Liabilities or Excluded Assets;
(xvim) except as expressly set forth Insurance policies and any prepaid premiums thereon and the cash surrender value thereof,
(n) Any assets sold or otherwise disposed of not in violation of any provisions of this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Planduring the period from the date hereof until the Closing;
(xviio) all corporate-level services Any rights of Seller under this Agreement and any agreement relating hereto between Seller and Buyer;
(but not the assets related to such services p) Any insurance recoveries, to the extent such assets are Purchased Assets) of the type currently provided relating to the Business by Seller Parent Excluded Assets or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services AgreementExcluded Liabilities;
(xviiiq) Any and all third-party warranties, indemnities, further assurances and similar covenants and guarantees portions or parts of the software listed on Schedule 2.1(a)(i) that Seller has individually incorporated into other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to programs before the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1Closing; and
(xxr) the assets set forth in Section 2.3(a)(xxThe assets, agreements and other rights identified on Schedule -------- 2.2(r) of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Businesshereto. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.------
Appears in 1 contract
Excluded Assets. (a) Notwithstanding any other provision in of this AgreementAgreement to the contrary, Purchaser Seller, the other Seller Entities and their respective Affiliates will retain and not sell, transfer, assign or convey, any of the following assets and properties of the Seller Entities and the Purchaser Designated Affiliates are Purchased Companies or any asset that is not purchasing or acquiring any of Seller Parent’s or its Affiliates’ a Purchased Asset (including the Conveyed Subsidiaries’ or their Subsidiaries’) rightcollectively, title or interest in any assets, properties or rights other than the Purchased Assets (the “Excluded Assets”), includingand Purchaser expressly understands and agrees that the Excluded Assets shall, as applicable, be transferred out of the Purchased Companies prior to the Closing, notwithstanding any other provision of this Agreement:
(a) Any and all assets related to the Benefit Plans;
(b) Other than any loans or advances from one Purchased Company to another Purchased Company, any and all loans and advances, if any, by the Seller Entities to any of their Affiliates or otherwise to the Business;
(c) Any and all Intellectual Property, other than the Business Intellectual Property;
(d) Any and all Commercial Data other than the Transferred Commercial Data and any and all Technology other than the Conveyed Technology;
(e) The Excluded Software;
(f) Any and all raw materials, packaging or other materials, stores, work-in-process, finished goods, supplies, goods in transit, models, prototypes and other inventories other than the Inventory;
(g) Any and all Tangible Personal Property Located at Seller’s W.K. ▇▇▇▇▇▇▇ Institute for Food & Nutrition Research (WKKI), Battle Creek, MI;
(h) Any and all Contracts and portions of Contracts, other than the Business Contracts and the Real Property Leases;
(i) Any and all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1Collective Bargaining Agreements;
(iij) Except as expressly included in Section 2.4(c), any and all Retained Real owned and leased real property and other interests in real property;
(k) Except as expressly included in Section 2.4(g), any and all Tangible Personal Property;
(iiil) Except as expressly included in Section 2.4(h), any and all Information Technology;
(Am) Except as expressly included Section 2.4(p), any and all personnel files other than the Transferred Personnel Files;
(n) Any and all refunds of Taxes for which Seller is responsible pursuant to Article VII (or credits received in lieu of such a refund);
(o) Tax Returns and other books and records related to Taxes paid or payable by Seller, the other Seller Entities or any of their respective Affiliates;
(p) Any and all Cash Amounts (excluding any Closing Cash Amounts);
(q) All books and records related to the Retained FacilitiesClaims;
(r) Except as provided for in Section 2.4(r) and subject to Section 5.11, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property all insurance policies and other tangible property located at the Retained Facilities binders and interests in insurance pools and programs and self-insurance arrangements whether or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of for all periods before, through and after the Seller Disclosure LetterClosing, including any and all refunds and credits due or to become due thereunder and any personal computers and vehicles that are not primarily used by all claims, rights to make claims and rights to proceeds on any such insurance policies for all periods before, through and after the Transferred Employees in respect of the Business, Closing;
(As) the Information Systems of Seller Parent Any and its Subsidiariesall Permits, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D)Transferred Permits;
(ivt) Any and all legal trade and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letteraccounts receivable;
(vu) all Shared Contracts Any and all other Contractsrights, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defensescredits, causes of action, counterclaims defenses and rights of set-off against third parties offset or counterclaim (at any time or in each case, in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businessessettlement agreements, in each case other than those assets, properties relating to or rights identified as Purchased Assets in clauses (a) through (s) arising out of Section 2.1; and
(xx) any of the assets matters set forth in on Section 2.3(a)(xx2.5(u) of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (Schedules or cause one or more out of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from or Retained Liabilities (including all rights and claims under any and all warranties extended by suppliers, vendors, contractors, manufacturers and licensors in favor of Seller, a Purchased Company or any of their respective Affiliates to the Conveyed Subsidiaries extent in relation to any Excluded Assets), and their Subsidiaries the right to retain all proceeds and monies therefrom (andcollectively, if neededthe “Retained Claims”);
(i) All attorney-client privilege and attorney work-product protection of Seller or associated with the Business as a result of legal counsel representing Seller or the Business in connection with the transactions contemplated by this Agreement or any of the other Transaction Documents, from (ii) all documents subject to the Sellersattorney-client privilege or work-product protection described in clause (i) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined this paragraph and (iii) all documents maintained by Seller Parent in its sole discretion, but in compliance connection with the transactions contemplated by this Agreement or any of the other Transaction Documents;
(w) Any and all applicable Laws and as would not result in any material adverse impact to assets of the Purchased Assets Companies other than the Purchased Company Assets;
(x) Any and all assets set forth on Section 2.5(x) of the Seller Disclosure Schedules;
(y) The equipment referred to as “Line 3” and “Line 4” located at Seller’s facilities in Rome, Georgia and the equipment located at Seller’s facilities in Cincinnati, Ohio; and
(z) Any and all other assets, business lines, properties, rights and claims of the Seller Entities or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause any of their respective Affiliates (including the Conveyed Subsidiaries Purchased Companies) not Related to the Business (including, for the avoidance of doubt, the Keebler Crackers Business) (collectively, the “Other Seller Business”). The parties hereto acknowledge and their Subsidiaries) agree that, except as otherwise provided in this Agreement or in any other Transaction Document, neither Purchaser nor any of its Affiliates will acquire or be permitted to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3retain any direct or indirect right, including the return of title and interest in any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing DateAssets.
Appears in 1 contract
Excluded Assets. (a) Notwithstanding any provision in this AgreementIt is expressly understood and agreed that, Purchaser and notwithstanding anything to the Purchaser Designated Affiliates are contrary set forth herein, the Acquired Assets shall not purchasing or acquiring any of Seller Parent’s or its Affiliatesinclude the Asset Sellers’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in or to any of the following (each, an “Excluded Asset”):
(i) Any assets (including all rights, properties, claims, contracts, business, real property, leasehold (or other equivalent) interests in real property, equipment, machinery, vehicles, tools and other tangible personal property) other than the Acquired Assets;
(ii) The assets, properties or rights other than the Purchased Assets (the “Excluded Assets”), including:
(iset forth on Schedule 1.1(c)(ii) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1;
(ii) all Retained Real Propertyattached hereto;
(iii) (A) the Retained FacilitiesThe stock, (A) shares, quotas, investment capital, membership units and interests, capital stock or other equity interests of any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, entity other than the Business IT Systems and (A) any leases relating to Acquired Companies or the assets described in the foregoing clauses (B) through (D)JV Interests;
(iv) all legal and beneficial interest in the share capital or equity interest Any intercompany account of any Person kind or nature (other than as contemplated by the Conveyed Subsidiaries Commercial Agreements (and their Subsidiariesas defined below) or Section 4.5(a)(ii), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter);
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all All cash and cash equivalents, checks, money orders, marketable securities, short-term instrumentsequivalents or similar type investments, bank and other depositary accounts, certificates of deposit, time security deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable Treasury bills and other assets, in each case marketable securities (except to the extent included in the calculation of the Final Business Working Capital, and the Closing Cash Equivalents included or Restricted Cash or as otherwise provided in the calculation of Final Business Net CashSection 1.1(b)(ii) or Section 1.1(b)(xxiii));
(xivi) all Tax refunds, Tax credits or other Tax Assets of the Sellers The contracts and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset agreements listed on the Final Closing Statement and taken into account in the calculation of (aSchedule 1.1(c)(vi) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation)attached hereto;
(xiivii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior All insurance policies and all rights of the Asset Sellers to insurance claims, related refunds and proceeds thereunder (other than as set forth in Section 1.1(b)(xvii) or Section 8.2(b));
(viii) All personnel files and other-employment related records for persons who do not become New Buyer Employees or where required consent is not obtained under Section 8.5(m);
(ix) All Employee Benefit Plans or Foreign Benefit Plans sponsored, maintained, or contributed to by PKI or any nature with respect theretoof its Affiliates other than the Acquired Benefit Plans and all assets attributable thereto (for the avoidance of doubt, including all insurance recoveries thereunder and the Acquired Benefit Plan Assets shall not constitute Excluded Assets);
(x) The rights which accrue or will accrue to assert claims PKI under this Agreement;
(xi) All refunds of Taxes (as defined in Section 2.9(a)) of the Asset Sellers or with respect to the Acquired Assets for all periods (or portions thereof) ending on or prior to the Actual Cutover Date or for Pre-Closing Tax Periods to which the Sellers are entitled pursuant to Section 7.3;
(xii) The corporate seals, governing documents, minute books, stock books, stock ledgers, Tax Returns, books of account or other records having to do with the corporate organization of any such insurance recoveriesAsset Seller;
(xiii) Any currently or formerly owned, operated or leased real property, together with all buildings, structures, improvements and fixtures thereon and all real property interests appurtenant thereto, other than the Transferred Real Property and the Leased Facilities;
(A) All attorney-client privilege and attorney work-product protection of PKI or its Affiliates (as defined below), but excluding the Acquired Companies, to the extent not related to the Business, the Acquired Companies or the Actions as a result of legal counsel representing PKI, its subsidiaries or the Business, including in connection with the sale of the Business and the transactions contemplated by this Agreement, (B) all documents subject to attorney-client privilege and work-product protection described in the foregoing subsection (A), and (C) all documents maintained by PKI, its subsidiaries or their respective Representatives in connection with the sale of the Business, including the transactions contemplated by this Agreement;
(xv) All cash and cash equivalents, certificates of deposit, security deposits, Treasury bills and securities to the extent generated, earned or received in respect of the Excluded Assets, or by the Excluded Business, during the Locked Box Period; and
(xvi) except as expressly set forth All actions, rights, claims, causes of action, rights of recovery, choses in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties action and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return setoff of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) kind, accruing or arising before, on or after the Closing Date shall be deemed for purposes of calculating to the Business Working Capital extent relating to the Excluded Assets or to any Excluded Liabilities (as defined in Section 1.1(e)) and the Business Net Cash pursuant right to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Dateretain all proceeds, damages and remedies therefrom.
Appears in 1 contract
Sources: Master Purchase and Sale Agreement (Perkinelmer Inc)
Excluded Assets. (a) Notwithstanding any provision in this Agreement, Purchaser and the Purchaser Designated Affiliates are not purchasing or acquiring any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any assets, properties or rights other Other than the Purchased Assets Assets, all of the assets and properties of Sellers shall be retained by Sellers and are not being sold or transferred to the Buyer Parties hereunder (herein referred to as the “"Excluded Assets”"). Without limiting the generality of the foregoing, includingExcluded Assets shall include, without limitation, the following assets and properties specified below:
(i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, All Cash other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1;Cash-on-Hand.
(ii) all Retained Real Property;All notes, trade and other accounts receivable, including accounts receivable from Affiliates of any Seller.
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal All intellectual property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) rights of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, Sellers other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);Transferred Intellectual Property.
(iv) all legal and beneficial interest in All of Sellers' rights, claims, rights of offset or causes of action if any, arising hereunder against the share capital or equity interest of any Person other than the Conveyed Subsidiaries (Buyer Parties and their Subsidiaries)Affiliates if any, other than those equity interests set forth on Section 2.1(q) and all of Sellers' rights, claims, rights of offset or causes of action against third parties arising under and relating to Chapter 5 of the Seller Disclosure Letter;Bankruptcy Code.
(v) all Shared Contracts All corporate minute books and all other Contracts, sales orders, purchase orders, instruments stock transfer books and other commitments, obligations and arrangements to which Seller Parent or the corporate seal of any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;Sellers.
(vi) Subject to Section 2(e)(v), all inventory (including shares of capital stock, partnership interests, membership interests or other ownership interests of each of Sellers, and all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and equity securities owned or held by any samples of Products;Sellers.
(vii) All contracts other than the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;Assumed Contracts.
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;All insurance policies.
(ix) all customer All Employee Benefit Plans and vendor listsany trusts, all advertising, marketing, sales and promotional materialsinsurance contracts or administrative service agreements pertaining thereto, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;all employment agreements.
(x) all accounts receivable To the extent non-transferable by law, any such liquor licenses and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);permits.
(xi) all Tax refundsSubject to Section 2(e)(iv), Tax credits or other Tax Assets the Sony Equipment. In no circumstances shall the rejection of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting Sony Lease be considered a Tax Liability in such calculation);Material Adverse Change.
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;Any assets owned by Jillian's Memphis.
(xiii) all claimsAny assets of Jillian's Management, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time River Vending or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) Jillian's Katy other than those identified as Purchased Assets expressly referenced in Section 2.1;
subsections 2(a)(ii), (xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(oiii) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6iv), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 1 contract
Excluded Assets. Notwithstanding anything to the contrary contained herein, any and all of the Seller's right, title and interest in and to the following assets (the "Excluded Assets") shall be specifically excluded from, and shall not constitute, the Acquired Company Assets:
(a) Notwithstanding any provision in this AgreementAny and all assets related to the Seller Benefit Plans;
(b) Any and all loans and advances, Purchaser and the Purchaser Designated Affiliates are not purchasing if any, by Seller or acquiring its Subsidiaries to Seller or any of Seller Parent’s its Affiliates or its Affiliates’ otherwise to the Ocean Business;
(including the Conveyed Subsidiaries’ or their Subsidiaries’c) rightAny and all Intellectual Property, title or interest in any assets, properties or rights other than the Purchased Assets Ocean Business Intellectual Property expressly included in subclause (the “Excluded Assets”), including:
(i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (siii) of Section 2.1;
(ii) all Retained Real Property;
(iii2.4(a) (A) including, as an Excluded Asset covered by this Section 2.5(c), the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Intellectual Property listed in Section 2.1(d)(i)(B2.5(c) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (DSchedules);
(ivd) Any and all legal and beneficial interest in the share capital or equity interest of any Person Contracts other than the Conveyed Subsidiaries Assigned Contracts;
(e) All owned and their Subsidiaries)leased real property and interests in real property;
(f) Any and all refunds for credits against Excluded Taxes;
(g) Tax Returns and other books and records related to Taxes paid or payable by Seller or any of its Affiliates;
(i) Any and all insurance policies and binders and interests in insurance pools and programs and self-insurance arrangements whether or not Relating to the Ocean Business, other than those equity interests for all periods before and through the Closing, and (ii) any claims under insurance policies set forth on Section 2.1(q2.5(h) of the Seller Disclosure LetterSchedules;
(vi) Any and all Shared Contracts non‑transferrable Ocean Business Permits, provided however that Seller will comply with Section 2.4(a)(vii) with respect thereto; and
(j) Any and all other Contracts, sales orders, purchase orders, instruments assets of Seller not specifically included in the Acquired Company Assets. The parties hereto acknowledge and other commitments, obligations and arrangements to which Seller Parent or agree that neither Purchaser nor any of its Affiliates is a party will acquire or by which be permitted to retain any direct or indirect right, title and interest in any Excluded Assets. For the avoidance of its or their propertiesdoubt, assets or rights is subjectno right, title and interest in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than to the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth described in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets 2.5 are Purchased Assets) of the type currently provided to the Business being acquired by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure LetterPurchaser.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 1 contract
Sources: Equity Interest Purchase Agreement (Ultrapetrol Bahamas LTD)
Excluded Assets. (a) Notwithstanding any provision in this Agreement, Purchaser The Parties acknowledge and agree that the Purchaser Designated Affiliates are not purchasing or acquiring any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any following assets, properties and rights of Seller or rights other than the Purchased Assets any of its Subsidiaries (collectively, the “Excluded Assets”) are not part of the sale and purchase contemplated hereunder, are excluded from the Acquired Assets and shall remain the property of Seller and its Subsidiaries after the Closing:
(a) all Real Property that is not Transferred Real Property;
(b) all Tangible Property that is not Transferred Tangible Property;
(c) the Retained Real Property Leases;
(d) all Contracts that are not Transferred Contracts, and the Contracts set forth on Schedule 2.2(d);
(e) all Permits that are not Transferred Permits;
(f) all books and records of Seller and its Subsidiaries that are not Transferred Books and Records (including all minute books, including:stock ledgers and Tax records and all employee-related or employee benefit-related files or records other than personnel files of Transferred Employees or the Transferred Employee Benefit Plans);
(g) all Cash and Cash Equivalents (other than any Transferred Restricted Cash or any proceeds under Sections 2.1(p) or 2.1(q)) of Seller and its Subsidiaries, and all uncleared checks, wires ACH settlements and drafts, but only, in each case, to the extent not included as a current asset for purposes of calculating Working Capital;
(h) all Retained Employee Benefit Plans;
(i) all assets constituting ownership interests in, or that are used or held for use in, rights of Seller and its Subsidiaries under this Agreement and the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1Transaction Agreements;
(iij) all Retained Real Property;
(iii) (A) the Retained Facilitiesrights arising from Excluded Liabilities, (A) including all claims, causes of action and rights against any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related third party to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases extent relating to the assets described in the foregoing clauses any Excluded Liabilities (B) through (Dincluding rights of set-off, rights to refunds and rights of recoupment from or against any such third party);
(ivk) all legal and beneficial interest in rights to Tax refunds, credits or similar benefits relating to the share capital Acquired Assets or equity interest the Business to the extent attributable to periods, or portions of any Person other than periods, ending on or before the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure LetterClosing Date;
(vl) except for the Conveyed Equity Interests, all Shared Contracts and all stock or other Contractsequity interests in any Person, sales orders, purchase orders, instruments and other commitments, obligations and arrangements but only to which Seller Parent the extent not primarily related to the Acquired Assets or any of its Affiliates is a party the Business or otherwise held directly or indirectly by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contractsthe Transferred Subsidiaries;
(vim) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples insurance policies of Products;
(vii) the Retained Names Seller and all other Intellectual Property that is not Business IPrights to applicable claims and proceeds thereunder, including such Intellectual Property licensed subject to Purchaser under an Ancillary Agreement or otherwise, Sections 2.1(p) and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash2.1(q);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xixn) all assets, properties and rights in the Railcar Lease Fleet, together with any railcars which have been manufactured by Seller or any Subsidiary thereof prior to the Closing, in order to be leased by Seller or any Subsidiary thereof, or any Affiliate thereof, including ITE Rail Fund L.P., to a third party, but excluding any railcars that (i) are still in the process of being manufactured or (ii) are treated as inventory under GAAP and the accounting policies of Seller, in each case, at the Closing;
(o) all corporate-level assets of Seller or any Person that of its Subsidiaries to the extent such corporate-level assets are not Related Transferred Corporate Level Assets
(p) any assets, properties and rights held by any of Longtrain Leasing I, LLC, a Delaware limited liability company, Longtrain Leasing, II LLC, a Delaware limited liability company, Longtrain Leasing, III LLC, a Delaware limited liability company, ARI Longtrain Inc., a Delaware corporation, or STL Asset, LLC, a Delaware limited liability company, including those set forth on Schedule 2.2(p);
(q) any assets, properties and rights set forth on Schedule 2.2(r);
(r) all Reporting Marks utilized in the Railcar Lease Fleet; and
(s) all right, title and interest in and to all property and assets, real, personal, mixed, tangible and intangible, of every kind and description, not primarily used or held for use in connection with the operation or conduct of the Business, including all right, title and interest in and to all property and assets, properties real, personal, mixed, tangible and rights constituting ownership interests inintangible, of every kind and description, whether or that are not reflected on the books and records of Seller and its Subsidiaries and wherever located, used or held for use in, in connection with the operation or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return conduct of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after business of Seller or its Subsidiaries as of the Closing Date shall be deemed for purposes of calculating other than the Business Working Capital and not primarily used or held for use in connection with the Business Net Cash pursuant to Section 2.9 to have occurred as operation or conduct of 12:01 a.m. (New York time) on the Closing DateBusiness.
Appears in 1 contract
Sources: Asset Purchase Agreement (Greenbrier Companies Inc)
Excluded Assets. (a) Notwithstanding any provision in this Agreementthe provisions of Section 1.1 above, Purchaser the following assets and the Purchaser Designated Affiliates properties are to be retained by Seller and shall not purchasing or acquiring any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any assets, properties or rights other than the Purchased constitute Acquired Assets (collectively, the “Excluded Assets”), including:):
(ia) all assets constituting ownership interests inreal property, buildings, structures and improvements thereon, whether owned or that are used or held for use inleased by Seller, all fixtures and fittings attached thereto, but not including any of the Retained BusinessesTangible Assets, and all security deposits with respect to any leased properties other than those assets identified as Purchased Assets explicitly included in clauses (a) through (s) of Section 2.1the Acquired Assets;
(iib) all Retained Real Property;
(iii) (A) the Retained Facilitiesright, (A) any owned title and leased furnitureinterest in, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property to and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) under all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which Seller or any of its or their properties, assets or rights properties is subject, in each case otherwise subject to or bound other than Assumed the Assigned Contracts;
(vic) all inventory (including capital stock or other equity interest in Seller or any Subsidiary, Affiliate or other Person, and all raw material inventoryoptions, work-in-process inventory, spare parts inventory and finished products inventory) warrants or other than the Inventory and any samples of Productsrights to acquire such capital stock or other equity;
(viid) all right, title and interest to any vehicles owned, leased or used by the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual PropertySeller;
(viiie) all Governmental Authorizationsright, including product registrations, manufacturing registrations title and environmental permits, owned, used or licensed by Seller Parent or any interest to all insurance policies of its Affiliates and not Related to the BusinessSeller;
(ixf) all customer minute books and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Recordsstock records of Seller;
(xg) all accounts receivable and other current assets and personnel records of all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (employees other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash)Transferred Employees;
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xivh) all rights of Seller and Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement and the Related Agreements or arising from the Ancillary Agreements and any documents delivered consummation of the transactions contemplated hereby or received in connection herewith or therewiththereby;
(xvi) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveriesEmployee Benefit Plans;
(xvij) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Planthe Southborough Lease;
(xviik) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) bank and brokerage accounts of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services AgreementSeller;
(xviiil) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1Tax records of Seller;
(xixm) all assetsrights, properties and rights claims or credits of Seller relating to any Person that are not Related to the Business, including Excluded Asset or Excluded Liability;
(n) all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1cash; and
(xxo) the assets set forth in Section 2.3(a)(xx) all inventory of the Seller Disclosure LetterUAV Business.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 1 contract
Sources: Asset Purchase Agreement (Ballard Power Systems Inc.)
Excluded Assets. Notwithstanding anything to the contrary contained in Section 1.2, the parties expressly understand and agree that the Purchased Assets shall not include, and neither Seller nor any of its Subsidiaries (other than an Acquired Company) is selling, assigning, transferring or conveying to Purchaser pursuant to Section 1.2 any right to or interest in, any of the following assets, properties, rights, Contracts and claims, whether tangible or intangible, real, personal or mixed (except with respect to assets sold, assigned, transferred or conveyed with the Acquired Companies) (collectively, the "EXCLUDED ASSETS"):
(a) Notwithstanding any provision in this Agreementall cash, Purchaser and the Purchaser Designated Affiliates are not purchasing or acquiring any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any assets, properties or rights other than the Purchased Assets (the “Excluded Assets”), including:
(i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1;
(ii) all Retained Real Property;
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checksbank deposits, money ordersinvestment accounts, marketable securities, short-term instruments, bank and other depositary accountslockboxes, certificates of deposit, time deposits, negotiable instruments, marketable securities and brokerage accounts, funds in time and demand deposits or similar accounts cash items, of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net CashAcquired Companies);
(xib) all Tax refundssubject to Sections 1.2 and 10.1, Tax credits any Seller Employee Benefit Plan, any trusts, insurance arrangements or other Tax Assets assets held pursuant to, or set aside to fund the obligations of the Sellers and Seller or its Subsidiaries under, any refund or credit against such Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c)Employee Benefit Plan, whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books data and records relating thereto;
(xiiior copies thereof) all claimsrequired to administer the benefits of Acquired Company Employees and Business Employees under any Seller Employee Benefit Plan and, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o1.4(a)(ii), the retention agreements with the Business Employees and Acquired Company Employees listed on Schedule 1.3(b) (the "RETENTION AGREEMENTS");
(c) any and all insurance policies, binders and claims and rights thereunder and the proceeds thereof and all prepaid insurance premiums;
(d) subject to Section 6.187.7, all current of Seller's right, title and prior insurance policies and all rights interest in any name, Trademark, trade dress, internet address, trade name, service mark or logo, or any derivation of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to foregoing, togethe▇ ▇▇th all of the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests ingoodwill represented thereby, or that are used or held for use in, or related to, the Retained Businesses, pertaining thereto in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) listed on the Closing Date.Schedule 1.3
Appears in 1 contract
Excluded Assets. (a) Notwithstanding any provision in this Agreementthe provisions of Section 1.1 above, Purchaser the following assets and the Purchaser Designated Affiliates properties are to be retained by Seller and shall not purchasing or acquiring any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any assets, properties or rights other than the Purchased constitute Acquired Assets (collectively, the “Excluded Assets”), including:
): (ia) all assets constituting ownership interests inreal property, buildings, structures and improvements thereon, whether owned or that are used or held for use inleased by Seller, all fixtures and fittings attached thereto, but not including any of the Retained BusinessesTangible Assets, and all security deposits with respect to any leased properties other than those assets identified as Purchased Assets explicitly included in clauses the Acquired Assets; (a) through (s) of Section 2.1;
(iib) all Retained Real Property;
(iii) (A) the Retained Facilitiesright, (A) any owned title and leased furnitureinterest in, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property to and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) under all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related assets or properties is otherwise subject to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (bound other than the accounts receivable and Assigned Contracts; (c) all capital stock or other assetsequity interest in Seller or any Subsidiary, in each case included in the calculation of the Final Business Working CapitalAffiliate or other Person, and the Cash Equivalents included in the calculation of Final Business Net Cash);
all options, warrants or other rights to acquire such capital stock or other equity; (xid) all Tax refundsright, Tax credits title and interest to any vehicles owned, leased or other Tax Assets of used by the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of Seller; (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xiie) all Seller Combined Tax Returns right, title and interest to all Tax Returns insurance policies of the Sellers or any Seller; (f) all minute books and stock records of their Affiliates Seller; (g) all personnel records of all employees other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
Transferred Employees; (xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xivh) all rights of Seller and Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement and the Related Agreements or arising from the Ancillary Agreements consummation of the transactions contemplated hereby or thereby; (i) all Employee Benefit Plans; (j) the Southborough Lease; (k) all bank and any documents delivered brokerage accounts of Seller; (l) all Tax records of Seller; (m) all rights, claims or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights credits of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect Seller relating to any such insurance recoveries;
Excluded Asset or Excluded Liability; (xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xviin) all corporate-level services cash; and (but not the assets related to such services to the extent such assets are Purchased Assetso) all inventory of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the UAV Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 1 contract
Sources: Asset Purchase Agreement
Excluded Assets. Notwithstanding any other provision of this Agreement to the contrary, the acquisition contemplated hereby shall not include the following assets of the Division (collectively, the "Excluded Assets"): (a) Notwithstanding any provision all cash on hand as of the Closing --------------- Date held by Sellers with respect to the Division or by the Company and all other cash in this Agreement, Purchaser and the Purchaser Designated Affiliates are not purchasing or acquiring any of Seller Parent’s Sellers' or its Affiliates’ the Company's bank or savings accounts; (including b) all letters of credit, stocks, bonds, notes, certificates of deposit and any other similar items or investments held by AWI with respect to the Conveyed Subsidiaries’ Division or their Subsidiaries’by the Company; (c) right, title all accounts receivable of AWI with respect to the Division or interest in any assets, properties or rights other than of the Purchased Assets Company; (the “Excluded Assets”), including:
(id) all assets constituting ownership interests inassociated with employees of the Division who do not constitute Transferred Employees (as defined in Section 5.7(a)); (e) all insurance policies relating to or associated with the Division and the Business other than (x) the ▇▇▇▇▇ Insurance and the Post Closing Insurance (each as defined in Section 5.9 hereof), or but only to the extent that such ▇▇▇▇▇ Insurance and Post Closing Insurance by their respective terms and the terms of any related agreements apply to the Company and (y) any title insurance policies issued with respect to the Real Property (as defined in Section 3.5(a)); (f) all installation tools and accessories and other outsourced products of the Division listed on Schedule 1.3(f) attached hereto, which are used manufactured or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) --------------- resale by or on behalf of Section 2.1;
(ii) all Retained Real Property;
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent AWI and its Subsidiariesaffiliates, other than the Business IT Systems and Company; (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(ivg) all legal laminate accessories manufactured or held for resale by or on behalf of AWI and beneficial interest in the share capital or equity interest of any Person its affiliates, other than the Conveyed Subsidiaries Company; (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(vh) all Shared Contracts right, title and all other Contracts, sales orders, purchase orders, instruments interest in and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to AWI's license agreement with S.C. ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
for AWI branded floor care products; (xivi) all proprietary technology and intellectual property rights of Seller Parent or in and to any of its Affiliates and all ▇▇▇▇▇▇▇▇▇ Proprietary Products (as defined in that certain Private Label Supply Agreement attached hereto as Exhibit A (the "Private Label --------- ------------- Supply Agreement")) and the specifications for clarity, other than, from the products listed and after ---------------- identified on and attached as Specifications Nos. AWI-1 through AWI-12 (the Closing, "Specifications") on that certain Specification Agreement attached hereto as -------------- Exhibit B (the Conveyed Subsidiaries "Specification Agreement") and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except incorporated herein as if set --------- ----------------------- forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect theretoits entirety, including all insurance recoveries thereunder patents, design patents, patent applications, patent disclosures, and all related continuation, continuation-in-part, divisional, reissue, reexamination, utility model, certificate of invention and industrial design registrations and applications, information, test reports, processes, operating and testing procedures, practices, formulae, trade secrets, know-how, inventions, techniques and other confidential information, and any improvements, developments and enhancements thereto; (j) all trademarks, trade names, company names or other rights containing or related to assert claims with respect to AWI and its affiliates, other than the Company, and any such insurance recoveries;
derivative thereof, including without limitation, those trademarks listed on Schedule 1.3(j); (xvik) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Employee Benefit Plan sponsored or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
--------------- maintained by AWI; (xviil) all corporate-level services (but not the those assets exclusively related to such services the manufacture of adhesives for AWI's "Place 'n Press" products, including, without limitation, the hot-melt processing equipment at the Company's plant located in Arlington, Texas ("Hot-Melt Assets"); (m) any proceeds or recovery from the sales and use --------------- tax refunds pursuant to the extent such assets are Purchased Assets) sales and use tax audit of the type currently provided to Company in the Business by Seller Parent or states of Georgia, Texas and Illinois; and (n) such other assets of AWI and its affiliates, other than the Company, which are used in connection with the operation of the Division and are listed on Schedule 1.3(n) attached hereto. To the extent that any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from constitute assets of the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing DateCompany, the Parties shall continue Company will transfer such assets to use commercially reasonable efforts AWI prior to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of Closing, except as otherwise provided in this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing DateAgreement.
Appears in 1 contract
Sources: Acquisition Agreement (Armstrong World Industries Inc)
Excluded Assets. (a) Notwithstanding any provision in this Agreementanything to the contrary set forth herein, Purchaser it is expressly understood and agreed that the Purchaser Designated Affiliates are Purchased Assets shall not purchasing or acquiring any of Seller Parentinclude Seller’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in or to any of the following (collectively, the “Excluded Assets”):
(A) any assets (including all rights, properties, claims, contracts, business, real property, leasehold interests in real property, equipment, machinery, vehicles, tools and other tangible personal property) other than those expressly set forth in Sections 1.1(A) through (M);
(B) the assets, properties or rights other than the Purchased Assets (the “Excluded Assets”), including:
(i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1;
(ii) all Retained Real Property;
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (DSchedule 1.2(B);
(ivC) all legal and beneficial interest in the share capital cash, cash equivalents or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instrumentssimilar type investments, bank and other depositary accounts, certificates of deposit, time security deposits, negotiable instrumentsTreasury bills and other marketable securities (collectively “Cash”), securities and brokerage accounts, funds in time and demand deposits or similar accounts other than any Closing Cash;
(D) the capital stock of all Subsidiaries of Seller Parent or and any other equity ownership interests of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) Seller (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net CashSinglePlatform);
(xiE) the contracts, agreements, leases and other arrangements that are not Assigned Contracts, including those identified on Schedule 1.2(E) (the “Excluded Contracts”);
(F) the rights of Seller which accrue or will accrue under this Agreement and the other Transaction Documents;
(G) all Benefit Plans and Benefit Arrangements sponsored, maintained, or contributed to by Seller or any ERISA Affiliate and all assets attributable thereto;
(H) any intercompany account of any kind or nature;
(I) all Tax refunds, Tax credits or deposits, and other Tax Assets assets of the Sellers Seller;
(J) all Tax books and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to records and Tax Returns of Seller, other than those described in Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation1.1(K);
(xiiK) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect theretoSeller to insurance claims, including all insurance recoveries thereunder related refunds and rights to assert claims with respect to any such insurance recoveriesproceeds thereunder;
(xviL) except as expressly set forth the corporate seals, governing documents, minute books, stock books, Tax Returns, books of account or other records having to do with the corporate organization of Seller or any business of Seller, other than those described in this Agreement (including Section 2.1(p) and Section 6.61.1(K), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xviiM) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreementpersonnel records;
(xviiiN) all third-party warrantiesany owned or leased real property of Seller, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets whether or not used in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to connection with the Business, including all assets, properties other than the Leased Facility; and rights constituting ownership interests in, or that are used or held for use in, or related to, (O) the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure LetterWorking Capital.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 1 contract
Sources: Asset Purchase Agreement (Endurance International Group Holdings, Inc.)
Excluded Assets. (a) Notwithstanding any provision anything to the contrary contained in Section 2.1 or elsewhere in this Agreement, Purchaser and the Purchaser Designated Affiliates are not purchasing or acquiring any following excluded assets of Seller Parent’s or its Affiliates’ the Sellers (including the Conveyed Subsidiaries’ or their Subsidiaries’) rightcollectively, title or interest in any assets, properties or rights other than the Purchased Assets (the “Excluded Assets”), includingwithout duplication, are not part of the sale and purchase contemplated hereunder, are excluded from the Acquired Assets and shall remain the property of the Sellers after the Closing:
(a) the Pension Plan;
(b) the related-party receivables (including excess tax distributions and management fees, and other such receivables between Sellers and D▇▇▇▇ Family Enterprises, LLC) of the Sellers;
(c) all Trade Accounts Receivable of the Sellers that are aged more than 12 months at the Effective Date (the “Aged Receivables”);
(d) all minute books, stock records, and corporate seals of the Sellers;
(e) the shares of equity securities and partnership interests of the Sellers;
(f) all insurance policies and rights thereunder (except for the Kaiser medical insurance policy included in the Acquired Assets and any other policies to the extent so provided in Section 4.20);
(g) all of the agreements, contracts, leases, consensual obligations, promises or undertakings of the Sellers other than the Assumed Seller Contracts, with such other contracts being listed in Section 2.2(g) of the Disclosure Letter;
(h) all personnel records and other records that the Sellers are required by law or need to retain in their possession;
(i) all assets constituting ownership interests in, or that are used or held claims for use in, the Retained Businesses, refund of Taxes and other than those assets identified as Purchased Assets in clauses (a) through (s) governmental charges of Section 2.1whatever nature;
(iij) all Retained rights in connection with and assets of the Employee Benefit Plans;
(k) all rights of the Sellers under this Agreement;
(l) personal items of the employees, shareholders, partners, officers and directors of Sellers;
(m) any monthly rental payments from the Investment Property received by Sellers prior to Closing and relating to periods prior to Closing;
(n) the B▇▇▇▇ Agreement;
(o) delinquent rent payable to Sellers, or either of them, in respect to Investment Real Property;
(iii) (Ap) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on assets expressly designated in Section 2.1(d)(i)(B) 2.2 of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(vq) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any prorated portion (prorated as of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(viiEffective Date) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived card subsidy from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, American Express Company with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature Southern Saw’s payment arrangements with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1COSTCO Wholesale Corporation; and
(xxr) the all assets set forth not enumerated in Section 2.3(a)(xx) of the Seller Disclosure Letter2.1.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 1 contract
Excluded Assets. Notwithstanding Clause 2.1, Novartis shall not sell, transfer, or convey to Purchaser, and Purchaser shall not purchase and acquire the following (a) Notwithstanding any provision in this Agreement, Purchaser and the Purchaser Designated Affiliates are not purchasing or acquiring any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any assets, properties or rights other than the Purchased Assets (the “Excluded Assets”), including:):
(i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1Subject to the license rights granted to the Purchaser in the License Agreement, Licensed Assets;
(iib) all Retained Real Propertythe name “Novartis”, “Ciba-Geigy”, “Sandoz” or “Alcon”, or any trademark, service ▇▇▇▇, trade dress, logo, trade name or corporate name similar or related thereto;
(iii) (Ac) the Retained Facilitiesaccounts receivable and the accounts payable including any accruals, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, pre-paid expenses and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect cash or cash equivalents of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent Novartis or any of its Affiliates relating to the Business, the Products or the Transferred Assets for the period prior to the Closing Date;
(d) any real property or leaseholds (together with all fixtures and fittings related to any property), physical plant, machinery, equipment, motor vehicles or office equipment; Executed copy
(e) any rights or assets belonging to the generic business of Sandoz (which is a party the generic division of Novartis), or by which any of its or their propertiessuccessors, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than containing the Inventory and any samples of Drug Substances and/or relating to the Products;
(viif) any rights or assets belonging to the Retained Names and all other Intellectual Property that over-the-counter business (which is not Business IPa division of Novartis), including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related successors, containing the Drug Substances;
(g) any rights or assets belonging to the business of Alcon (which is a division of Novartis), or any of its successors, containing the Drug Substances;
(h) any rights or assets belonging to Novartis Vaccines(which is a division of Novartis) or any of its successors, containing the Drug Substances;
(i) any rights or assets outside the human pharmaceutical fields (including but without limitation the use of the Drug Substances in the veterinary pharmaceutical fields);
(j) any rights or assets outside the Fields or for countries outside the Territory for the Products;
(k) [**]6
(l) any rights under Novartis’ insurance policies which are related to the Business;; and
(ixm) all customer originals of Books and vendor listsRecords that Novartis and its Affiliates are required to retain pursuant to any Law; provided however, all advertisingthat (i) Novartis and its Affiliates, marketingas applicable, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case shall provide copies (redacted to the extent necessary to remove any confidential information not Related related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits Products or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included Drug Substances in the calculation Territory) of the Final Business Working Capital, such books and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets records to the extent reflected as an asset on related to the Final Closing Statement and taken into account Business, Products or Drug Substances in the calculation of Territory upon the Purchaser’s reasonable request and (aii) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extentNovartis and its Affiliates, with respect to clause (b), offsetting a Tax Liability in as applicable may destroy such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and accordance with their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services prevailing records retention procedures to the extent such assets books and records are Purchased Assetsno longer required to be retained by Law so long as Novartis and its Affiliates have previously provided copies of such books and records pursuant to clause (i) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1this Clause 2.2(m); and
(xxn) any Inventory (except as provided in the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure LetterSupply Agreement).
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 1 contract
Sources: Asset Purchase Agreement (Tribute Pharmaceuticals Canada Inc.)
Excluded Assets. (aNotwithstanding anything in Section 2.01(a) Notwithstanding any provision in this Agreementto the contrary, Purchaser the Sellers are not selling, and the Purchaser Designated Affiliates are Buyer expressly understands and agrees that the Buyer is not purchasing or acquiring buying, any assets and properties of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any assets, properties or rights Sellers other than those specifically listed or described more generally in Section 2.01(a), and, without limiting the Purchased Assets generality of the foregoing, the term “Transferred Assets” shall expressly exclude the following assets and properties of the Sellers and their Affiliates, all of which shall be retained by the Sellers and their Affiliates (the “Excluded Assets”), including:):
(i) other than as described in Section 2.01(a)(xv) or Section 2.01(a)(xvi), all assets constituting ownership interests incash, cash equivalents or that are used marketable securities of the Sellers and their Affiliates on hand or held for use in, by any bank or other third Person and all rights to any bank accounts of the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1Sellers and their Affiliates;
(ii) all Retained Real Propertyraw materials, work in process and, other than packaging materials and products used for repacking operations, packaging materials of the Business;
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) all accounts receivable of the Seller Disclosure LetterSellers and their Affiliates (including all such accounts receivable earned or accrued as of 11:59 p.m. Eastern Time on the Closing Date), and any personal computers loans and vehicles that are not primarily used advances by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D)Sellers;
(iv) all legal and beneficial interest in franchise rights, if any, and, except for the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries)Transferred Licensed Intellectual Property, other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IPowned by, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages otherwise authorized for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed use by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating theretoAffiliates;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xvv) except as set forth in Section 2.1(o2.01(a)(i) of the Disclosure Schedule, all of the Sellers’ right, title and interest in owned and leased real property and other interests in real property including all such right, title and interest under each real property lease pursuant to which any Seller leases, subleases (as sub-landlord or sub-tenant) or otherwise occupies any such leased real property, together in each case with the Sellers’ right, title and interest in, to and under all structures, facilities or improvements currently or as of the Closing Date located on any such real property and all easements, licenses, rights and appurtenances related to the foregoing;
(vi) all Tax Returns (other than Tax Returns related solely to the Business or the Transferred Assets, except that the Sellers and their Affiliates will retain all federal and state income Tax Returns, regardless of whether such income Tax Returns are related to the Business) and Tax Assets;
(vii) any employee benefit plans, programs, arrangements and agreements (including any retirement benefit and post-retirement health benefit plans, programs, arrangements and agreements, but not including any such agreements which are Assumed Contracts) sponsored or maintained by the Sellers or their respective Affiliates, and any trusts and other assets related thereto;
(viii) subject to Section 6.182.01(a)(xi), all current policies of, or agreements for, insurance and prior interests in insurance policies pools and programs of the Sellers;
(ix) all causes of action, lawsuits, judgments, claims and demands of any nature available to or being pursued by the Sellers (including counterclaims) and defenses (A) against third parties relating primarily to any of the Excluded Assets or the Excluded Liabilities as well as any books, records and privileged information relating thereto or (B) relating to any period through the Closing to the extent that the assertion of such cause of action or defense is necessary or useful in defending any claim that is asserted against the Sellers or for which indemnification is sought by the Buyer pursuant to Article IX;
(x) any interest of any Seller under this Agreement, any Companion Agreement and any other agreement, document or instrument entered into in connection with the transactions contemplated by this Agreement;
(xi) all personnel and employment records for employees and former employees of the Sellers, including Business Employees, except as otherwise provided in the Employee Matters Agreement;
(xii) (A) all corporate minute books (and other similar corporate records) and stock records of the Sellers; (B) any books and records relating primarily to the Excluded Assets; (C) any books, records or other materials that the Sellers (x) are required by Law to retain, (y) reasonably believe are necessary to enable the Sellers to prepare and/or file Tax Returns (copies of which will be made available to the Buyer upon the Buyer’s reasonable request) or (z) are prohibited by Law from delivering to the Buyer; and (D) copies of sales and promotional literature, manuals and data, sales and purchase correspondence, lists of suppliers and customers, and personnel and employment records that are Transferred Assets, provided that if the Sellers are required by Law to retain the originals of any such records, they may do so and in such case they will provide the Buyer with copies thereof;
(xiii) all Excluded Fountain Equipment;
(xiv) any and all rights under any bottling, manufacturing, distribution, sales or other related agreement for any TCCC brands and any of the goodwill and other intangible rights or assets associated therewith;
(xv) any nature with respect theretoother assets, including all insurance recoveries thereunder properties, rights, contracts and rights to assert claims with respect to any such insurance recoveriesof the Sellers or their Affiliates, wherever located, whether tangible or intangible, real, personal or mixed, in each case that are specifically listed in Section 2.01(b)(xv) of the Disclosure Schedule;
(xvi) except as expressly set forth any other assets, properties, rights, contracts and claims of the Sellers or their Affiliates wherever located, whether tangible or intangible, real, personal or mixed, that are not primarily related to or primarily used or primarily held for use in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Planconnection with the Business;
(xvii) all corporate-level services (but not the assets related to such services any Shared Contract, to the extent such assets are Purchased Assets) of the type currently provided not assigned to the Business by Seller Parent or any of its Affiliates, Buyer pursuant to a Partial Assignment and without limiting Seller Parent’s obligations Release under the Transition Services AgreementSection 5.17;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1any Excluded Contract;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1Assets; and
(xx) the CBA Rights (and any and all ownership or other proprietary interest in any goodwill and other intangible rights or assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(frelating thereto or associated therewith), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested which are governed by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing DateComprehensive Beverage Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Coca Cola Bottling Co Consolidated /De/)
Excluded Assets. The Acquired Assets do not include any assets, properties, rights, contracts or claims other than those specifically listed or described in Section 2.01, and, without limiting the generality of the foregoing, expressly exclude the following:
(a) Notwithstanding all cash, cash equivalents, marketable securities, bank accounts, lockboxes and deposits of, and any provision in this Agreementrights or interests in, Purchaser and the Purchaser Designated Affiliates are not purchasing or acquiring any cash management system of Seller Parent’s and its Affiliates;
(b) all accounts and notes receivable of the Business arising prior to the Closing Date and any collateral or other security relating thereto and all proceeds thereof;
(c) all rights, title and interest in any real property owned or leased by Seller or its Affiliates’ (, together with the buildings, structures, fixtures and all other improvements on such real property, including the Conveyed Subsidiaries’ facilities used by Seller or their Subsidiaries’its Affiliates in the operation of the Business;
(d) rightall minute books, title records, files, documents and papers, whether in hard copy or interest electronic format, prepared in connection with this Agreement or the transactions contemplated hereby and all minute books and other corporate books and records, Tax Returns and work papers, accounting records and related notes, worksheets, files or documents of Seller and its Affiliates and any assetsdocuments prepared in connection with the transactions contemplated by this Agreement or any Ancillary Agreement;
(e) all raw materials, properties or rights work in progress and product supplies and all machinery, equipment, furniture, furnishings, fixtures, tools and other tangible personal property other than the Purchased Inventory and Equipment;
(f) all intellectual property assets or rights that are not included in the Acquired Assets, including (i) all rights to use each of the “KRAFT”, “NABISCO” and “CHRISTIE” trade name or trademark, any derivation thereof and all associated goodwill and (ii) the trademarks identified on Schedule 2.02(f);
(g) except as otherwise provided in Section 2.01(c)(v), all content appearing on ▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇ or any other website of Seller or its Affiliates;
(h) except as otherwise provided in Section 7.02(b), all rights of Seller and its Affiliates under any Contract other than the Assigned Contracts;
(i) all Contracts between Seller or any Affiliate of Seller, on the one hand, and Seller or any Affiliate of Seller, on the other hand (the “Related Party Contracts”), and all inter-company receivables owed by Seller or an Affiliate of Seller to Seller or an Affiliate of Seller;
(j) all UPC bar codes other than the Assigned UPC Codes;
(k) all assets used in connection with the centralized management functions provided by Seller or any of its Affiliates;
(l) all Employee Benefit Plans and Arrangements and any trusts, insurance arrangements or other assets held pursuant to, or set aside to fund the obligations of Seller or any of its Affiliates under, any Employee Benefit Plans and Arrangements;
(m) all insurance policies relating to the Business and all claims, credits, causes of action or rights thereunder and proceeds thereof;
(n) all claims and rights to receive Tax refunds or credits relating to the operation or ownership of the Business or any Acquired Assets for any Pre-Closing Tax period;
(o) except to the extent expressly set forth on Schedule 2.01(c)(v), all application systems and software, including all computer software, programs and source disks, and related program documentation, tapes, manuals, forms, guides and other materials, computer hardware and other systems hardware and networking and communications assets, including servers, databases, backups and peripherals;
(p) Seller’s rights under this Agreement and the Ancillary Agreements, and the transactions contemplated hereby and thereby;
(q) any Acquired Assets sold or otherwise disposed of in the Ordinary Course of Business during the period from the Effective Date until the Closing Date;
(r) any shares of capital stock, partnership, membership or other debt or equity securities or other interests in any Person;
(s) any works of art listed on Schedule 2.02(s) (“Works of Art”), subject to the limitations and rights of Buyer set forth in Section 7.05; and
(t) any other assets (including any related claims) that are not described in Section 2.01 (clauses (a) through (t), collectively, the “Excluded Assets”), including:
(i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1;
(ii) all Retained Real Property;
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 1 contract
Excluded Assets. (a) Notwithstanding any provision anything to the contrary in this Agreement, Purchaser the Sellers and their Affiliates shall retain, and Buyer shall not purchase or otherwise acquire (and the Purchaser Designated Affiliates are Purchased Assets shall not purchasing or acquiring include), any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or and interest in or to any assets, properties whether tangible or rights intangible, real, personal or mixed, other than the Purchased Assets (such retained assets being collectively referred to hereinafter as the “Excluded Assets”). The Excluded Assets shall include, includingwithout limitation, the following:
(a) (i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets Contracts set forth in clauses (a) through (sSection 1.2(a)(i) of Section 2.1;
the Sellers Disclosure Schedule (“Excluded Contracts”) and (ii) all Retained Real Property;
the Software, data and information set forth in Section 1.2(a)(ii) of the Sellers Disclosure Schedule (“Excluded Software, Data and Information”), (iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as Tangible Personal Property set forth on in Section 2.1(d)(i)(B1.2(a)(iii) of the Seller Sellers Disclosure LetterSchedule (“Excluded Tangible Personal Property”), and any personal computers and vehicles that are not primarily used by (iv) the Transferred Employees Trademarks set forth in respect Section 1.2(a)(iv) of the Business, Sellers Disclosure Schedule (A“Excluded Trademarks”) and (v) the Information Systems domain names set forth in Section 1.2(a)(v) of Seller Parent and its Subsidiaries, other than the Business IT Systems and Sellers Disclosure Schedule (A) any leases relating to the assets described in the foregoing clauses (B) through (D“Excluded Domain Names”);
(ivb) all legal the assets, rights and beneficial interest in properties of every kind and description and wherever located, whether now existing or hereafter acquired, whether tangible or intangible, real, personal or mixed primarily used in, or related to, the share capital conduct or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) operation of the Seller Disclosure LetterExcluded Businesses;
(vc) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including except as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Purchased Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c1.1(a)(viii), whether the corporate charter, qualification to conduct business as a foreign corporation, arrangements with registered agents relating to foreign qualifications, taxpayer and other identification numbers, corporate seal, minute books, stock transfer books, blank stock certificates, all employee-related or not derived from the Business employee benefit-related files or records and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns documents of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating theretoEntities);
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xivd) all rights of Seller Parent the Sellers or any of its their Affiliates (for clarity, other than, from and after than the Closing, the Conveyed Subsidiaries and their SubsidiariesPurchased Entities) arising under this Agreement or Agreement, the Ancillary Agreements and any documents delivered or received in connection herewith from the consummation of the transactions contemplated hereby or therewiththereby;
(xve) except as set forth in Section 2.1(oall cash and cash equivalents, securities (other than the Interests) and negotiable instruments on hand, in lock boxes, in financial institutions or elsewhere, of the Sellers or any of their Affiliates (other than the Purchased Entities), including any cash residing in any collateral cash account securing any obligation or contingent obligation;
(f) all intercompany receivables between each of the Sellers and any of their Affiliates, or between any Affiliate of the Sellers and any other Affiliate of the Sellers;
(g) all Intellectual Property rights not included in the Purchased Assets (including the Excluded Names);
(h) all Insurance Arrangements of the Sellers or any of their Affiliates and all claims, credits, causes of action or rights thereunder and proceeds thereof;
(i) all assets or rights in or underlying any compensation or benefit plan, program, agreement or arrangement that is maintained or contributed to by or on behalf of the Sellers or any of their Affiliates except for those assets that are transferred to Buyer pursuant to Article VII and any other assets or rights associated with Assumed Liabilities under any compensation or benefit plan, program, agreement or arrangement for the benefit of any Transferred Business Employees;
(j) all Tax records (including Tax Returns and supporting work papers) covering any period or transaction of the Sellers occurring on or prior to the Closing Date (other than any Tax records of the Purchased Entities or relating solely to the Business or the Purchased Assets) and, subject to Section 6.188.5, all current and prior insurance policies and all rights any refunds of any nature with respect thereto, including all insurance recoveries thereunder and rights Taxes for which Sellers are responsible pursuant to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviiik) all third-party warrantiesActions being pursued by Sellers or their Affiliates, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1Assumed Actions; and
(xxl) all Leased Real Property, other than the assets Leased Real Property set forth in on Section 2.3(a)(xx1.1(a)(v) of the Seller Sellers Disclosure LetterSchedule.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 1 contract
Excluded Assets. (a) Notwithstanding Catalyst is not acquiring pursuant to this Agreement or any provision in this Ancillary Agreement, Purchaser and the Purchaser Designated ▇▇▇▇▇▇▇ and its Affiliates are not purchasing or acquiring shall retain, any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in in, to or under any assets, properties or rights of ▇▇▇▇▇▇▇ or any of its Affiliates other than the Purchased Transferred Assets (collectively, the “Excluded Assets”). Without limiting the foregoing, includingthe following assets are Excluded Assets and will not be transferred to Catalyst at Closing pursuant to this Agreement or any Ancillary Agreement:
(ia) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, products and product rights other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1the Licensed Products;
(iib) all Retained Real Propertyrights to the Licensed Products outside the Territory;
(iiic) (A) the Retained Facilitiesall real property assets, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D)including leasehold rights;
(ivd) all legal equipment and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (fixed assets including manufacturing and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letterpackaging equipment;
(ve) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments Compound and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventorymaterials, work-in-process inventory, spare parts and inventory and finished products inventory) other than the Inventory and any samples of ProductsTransferred Materials;
(viif) all intellectual property rights other than the Retained Names Transferred Patents;
(g) all contracts, agreements, purchase orders, quality agreements and other instruments other than the Transferred Contracts;
(h) all Regulatory Filings and supporting files, writings, data, studies and reports and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, books and including as set forth on Section 2.3(a)(vii) of records and databases other than the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Transferred Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiiii) all claims, counterclaims, defenses, causes of action, counterclaims and rights under warranties, rights of recovery, rights of set-off off, rights of subrogation and other rights against third parties Third Parties other than the Transferred Claims;
(at any time j) all cash and cash equivalents on hand and in banks and all deposits and other collateral;
(k) all accounts receivable;
(l) all computer equipment and computer software;
(m) all websites, social media sites, phone, fax or in any manner arising or existing, whether similar numbers;
(n) ▇▇▇▇▇▇▇’ corporate name and derivations thereof;
(o) the labor and other services of all employees and contractors of ▇▇▇▇▇▇▇ and its Affiliates and the services of all Third Party service providers that provide services to ▇▇▇▇▇▇▇ and its Affiliates;
(p) all refunds of taxes or inchoateany prepaid taxes arising from or with respect to the Transferred Assets or Licensed IP prior to the Closing Date or arising from or with respect to the development, known manufacture, packaging, promotion, distribution, marketing, use or unknownsale of the Licensed Products prior to the Closing Date;
(q) all warranties, contingent or non-contingent) representations and guarantees made by suppliers, manufacturers, service providers and contractors other than those identified as Purchased Assets in Section 2.1related to the Transferred Materials or other Transferred Assets;
(xivr) all policies, procedures, systems and protocols of ▇▇▇▇▇▇▇ and its Affiliates with respect to the development, manufacture, packaging, promotion, distribution, marketing, use and sale of the Licensed Products;
(s) all insurance policies of ▇▇▇▇▇▇▇ and its Affiliates and rights thereunder;
(t) all other assets and other properties used by ▇▇▇▇▇▇▇ and its Affiliates in connection with the development, manufacture, packaging, promotion, distribution, marketing, use and sale of the Licensed Products, except for Transferred Assets;
(u) subject to Section 5.1(b), all Related Contracts and Related Records;
(v) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) ▇▇▇▇▇▇▇ under this Agreement or any of the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1Agreements; and
(xxw) the assets set forth material specified in Section 2.3(a)(xx) of the Seller Disclosure Letter.
section (b) Notwithstanding anything of Schedule 1.85 which is for use outside the Territory. For clarity, nothing in this Agreement Section 2.2 limits or otherwise affects the license to Catalyst under the contrary but subject to Licensed IP as provided in Section 6.5(f2.12(a), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 1 contract
Sources: License and Asset Purchase Agreement (Catalyst Pharmaceuticals, Inc.)
Excluded Assets. (a) Notwithstanding any provision in this Agreementthe provisions of Section 2.1(a), Purchaser and the Purchaser Designated Affiliates are not purchasing or acquiring any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any assets, properties or rights other than the Purchased Assets shall not include any other assets of Seller (collectively, the “Excluded Assets”), including:
(i) any of Seller’s or its Affiliates’ retail operations (including retail operations located at the same locations as the Pharmacies), and all assets constituting ownership interests inor properties located thereon or used in connection therewith, or that are used or held for use inand rights appurtenant thereto, the Retained Businessesincluding equipment, inventory, records, supplies, manufacturer warranties, Permits, prepaid expenses, deferred charges, advance payments, security deposits and prepaid items, goodwill and other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1assets;
(ii) all Retained Real Propertyover-the-counter merchandise or over-the-counter inventory, including over-the-counter merchandise or over-the-counter inventory located behind the Pharmacy counter, and durable medical equipment;
(iii) (A) the Retained Facilitiesany computer equipment and systems, (A) any owned and leased furnitureorder-entry devices, equipmentpoint-of-sale systems, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Lettersurveillance systems, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D)alarm systems;
(iv) all legal any of Seller’s licenses, permits, contracts, employee benefit plans and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (programs and their Subsidiaries)computer hardware, other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Lettersoftware programs and systems;
(v) all Shared Contracts and all other Contractsany of Seller’s websites, sales orderstrademarks, purchase orderstrade names, instruments intellectual property and other commitments, obligations and arrangements to which Seller Parent intangible property or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contractsrights;
(vi) all inventory (including all raw material inventoryInventory located at the Pharmacies having an aggregate Inventory Value in excess of $36,000,000 and, work-in-process inventorywith respect to each Pharmacy, spare parts inventory and finished products inventory) other than having a value in excess of the Applicable Pharmacy Inventory and any samples of ProductsCap;
(vii) the Retained Names any books and records related to Taxes of Seller (including accounting records and Tax Returns) and all other Intellectual Property financial and Tax records relating to the Pharmacies that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) form part of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation Seller’s or any of Seller’s Affiliates’ or any of their respective Affiliates’ general ledger other violation of any such Intellectual Propertythan, in each case, Tax records prepared solely with respect to the Purchased Assets;
(viii) all Governmental Authorizationscash, including product registrationscash equivalents, manufacturing registrations and environmental permits, owned, used or licensed by securities of Seller Parent or any of its Seller’s Affiliates and not Related (including any drawer cash), accounts receivable or proceeds thereof, trade receivables, refunds or credits, claims for refunds or credits or rights to the Businessreceive refunds or credit related to Taxes that are an Excluded Liability;
(ix) all other than any Script Assets, any (A) registration information and customer data and vendor listsother information derived from customer loyalty cards, all advertisingpromotions, marketingco-branded credit card programs and the like, sales and promotional materials(B) customer lists (including email addresses) related to Seller’s or any of Seller’s Affiliates’ internet business operations, (C) guest data related to the non-Pharmacy operations of Seller or any of Seller’s Affiliates, and business and financial records, books, and documents and other Records, in each case not Related (D) equipment related to the Business, f▇▇▇▇▇▇▇.▇▇▇ and the Specified Recordsf▇▇▇▇▇▇▇▇.▇▇▇ business operations;
(x) all accounts receivable claims, to the extent arising out of, relating to or in respect of any other Excluded Asset and other current assets Excluded Liability or the operation of the Pharmacies prior to Closing, including (A) any such items arising under insurance policies, and (B) all cash guarantees, warranties, indemnities, and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds similar rights in time and demand deposits or similar accounts favor of Seller Parent or any of its Seller’s Affiliates (including in respect of any Excluded Asset, any Excluded Liability or the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation operation of the Final Business Working Capital, and Pharmacies prior to the Cash Equivalents included in the calculation of Final Business Net Cash)applicable Closing;
(xi) shelving and similar fixtures, all Tax refundsreal property owned, Tax credits leased, subleased or otherwise occupied by Seller or any of Seller’s Affiliates, together with all buildings, fixtures, structures, and improvements situated thereon and all easements, rights-of-way and other Tax Assets of the Sellers rights and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation)privileges appurtenant thereto;
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;insurance policies; and
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those assets identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6on Schedule 2.1(c), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 1 contract
Sources: Asset Purchase Agreement (Freds Inc)
Excluded Assets. (a) Notwithstanding any provision anything to the contrary contained in this AgreementSection 2.1(a), Purchaser and will not purchase, assume or otherwise acquire any assets of the Purchaser Designated HSBC Sellers or any of their respective Affiliates that are not purchasing or acquiring any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest expressly included in any assets, properties or rights other than the Purchased Assets (collectively, the “Excluded Assets”), including, by way of example only, the following assets, properties, rights, Contracts and claims, wherever located, whether tangible or intangible, real, personal or mixed:
(i1) all assets constituting ownership interests inassets, properties, rights, Contracts and claims, including Loans and extensions of credit in process, wherever located, whether tangible or that are used intangible, real, personal or held for use inmixed, primarily related to the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1;
(ii) all Retained Real Property;
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory2) other than the Inventory Real Property Leases and any samples of Products;
(vii) the Retained Names and all other Intellectual ATM Real Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor listsLeases, all advertisingleases, marketingsubleases, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits licenses or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes Contracts pursuant to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the HSBC Sellers or any of their respective Affiliates leases, subleases or licenses real property;
(other than 3) all Nonperforming Loans, Loans to Retained Employees and Loans originated with or guaranteed by the Conveyed Subsidiaries Veterans’ Administration or the Federal Housing Administration;
(4) the Excluded Contracts;
(5) all assets related to employee benefit arrangements of any HSBC Seller or any of their respective Affiliates, including the Employee Plans;
(6) all Intellectual Property of the HSBC Sellers and their Subsidiariesrespective Affiliates, including all right, title and interest in and to all proprietary or licensed software, systems or programs or computer software agreements of the HSBC Sellers and their respective Affiliates, including any rights (ownership, licensed or otherwise) to any of the HSBC Entity Names and any other Trademarks of the HSBC Sellers or their respective Affiliates, including those identified on Schedule 2.1(b)(6);
(7) all books, records and other data that cannot, without unreasonable effort or expense, be separated from books and records maintained by the HSBC Sellers or their respective Affiliates in connection with the Retained Businesses or to the extent that such books, records and other data relate to Excluded Assets, Excluded Liabilities or Business Employees or Affiliated Employees who do not relate solely become Transferred Business Employees, and all personnel files and records; provided that, to Purchased Assets or Assumed Liabilitiesthe extent permitted under, and in each case any books and records relating thereto;
(xiii) all claimsaccordance with, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.67.1(c), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent Assignor shall use commercially reasonable efforts to take cause the HSBC Sellers to provide Purchaser with access to any such books, records and other data for which the above-referenced separation would cause the HSBC Sellers to incur unreasonable effort or expense; and
(8) all licenses, charters, and legal entities of the HSBC Sellers or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Daterespective Affiliates.
Appears in 1 contract
Sources: Assignment, Purchase and Assumption Agreement (Community Bank System Inc)
Excluded Assets. (a) Notwithstanding any provision anything to the contrary contained in this AgreementSection 2.1(a), Purchaser will not purchase, assume or otherwise acquire, and the Purchaser Designated Seller Parties and their respective Affiliates will retain all the rights, title and interest in and to, any and all assets of the Seller Parties or any of their respective Affiliates that are not purchasing or acquiring any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest expressly included in any assets, properties or rights other than the Purchased Assets (collectively, the “Excluded Assets”), includingincluding the following assets, properties, rights, Contracts and claims, wherever located, whether tangible or intangible, real, personal or mixed:
(i1) all assets, properties, rights, Contracts and claims, including Loans and extensions of credit in process, wherever located, whether tangible or intangible, real, personal or mixed, primarily related to the Retained Businesses;
(2) other than the Real Property Leases and ATM Real Property Leases, all leases, subleases, licenses or other Contracts pursuant to which the Seller Parties or any of their respective Affiliates leases, subleases or licenses real property;
(3) all Nonperforming Loans and Loans to Retained Employees;
(4) the Excluded Contracts;
(5) all assets constituting ownership interests inrelated to employee benefit arrangements of the Seller Parties or any of their respective Affiliates, including the Employee Plans;
(6) all Intellectual Property owned by or (except as included in the Assumed Contracts) licensed to the Seller Parties and their respective Affiliates, including the Seller Entity Names and the other Intellectual Property identified on Schedule 2.1(b)(6), subject to the license in Section 8.6(b);
(7) all right, title and interest in and to the IT Assets owned by or (except as included in the Assumed Contracts) leased or licensed to the Seller Parties and their respective Affiliates including the IT Assets identified on Schedule 2.1(b)(7);
(8) all Books and Records (or portions thereof) in any form or media (i) that are used relate to the Transferred Business but cannot, without unreasonable effort or held for use inexpense, be separated from Books and Records maintained by the Seller Parties or their respective Affiliates in connection with the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1;
(ii) all Retained Real Property;
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related that relate to the Wealth Management Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets Books and Records are Purchased Assets) the property of the type currently provided Third-Party Broker-Dealer and not owned by FNS or Seller, (iii) to the extent related to Excluded Assets, Excluded Liabilities or Business by Seller Parent Employees or any Affiliated Employees who do not become Transferred Business Employees or (iv) consisting of its Affiliatespersonnel files and records; provided that, to the extent permitted under, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warrantiesin accordance with, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f7.1(b), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take provide Purchaser with access to any such books, records, files and other data in clause (i) above; Table of Contents
(9) any foreclosed property and other real estate owned;
(10) any refunds or cause one credit of or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance against Taxes with all applicable Laws and as would not result in any material adverse impact respect to the Purchased Assets or the Business. After Transferred Business for a Pre-Closing Period;
(11) all licenses, charters, and legal entities of the Closing Date, Seller Parties or their respective Affiliates; and
(12) all Retained In-Process Loans; and
(13) the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3Servicing Rights, including all rights of and benefits accruing to the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after Seller Parties under the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing DateServicing Agreements.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Northwest Bancshares, Inc.)
Excluded Assets. Notwithstanding Section 2.1, the Parties acknowledge and agree that Seller is not selling, conveying, transferring, delivering or assigning to Buyer any rights whatsoever to those Assets described below or specifically listed on Schedule 2.2 (a) Notwithstanding any provision in this Agreementcollectively, Purchaser and the Purchaser Designated Affiliates are not purchasing or acquiring any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any assets, properties or rights other than the Purchased Assets (the “Excluded Assets”), includingin each case, wherever located or by whomever possessed, and Buyer is not purchasing, taking delivery of or acquiring from or through Seller any rights whatsoever in or to the Excluded Assets from Seller, which shall include the following Assets:
(a) all Assets of Seller not relating to, used in, or necessary for the operation of the Biologics SBU or the development, manufacture, distribution, marketing or sale of the Products, other than as described in Sections 2.1(b), 2.1(c) and 2.1(e), including the Excluded Real Property and the Excluded Products;
(b) the Excluded Corporate Shared Services Assets;
(c) the Excluded Intellectual Property, other than the rights to use certain Seller Marks for the transition period pursuant to the provisions of Sections 6.7(a), 8.3 and 8.5;
(d) all cash, cash equivalents, accounts, securities, notes receivable and chattel paper of Seller or any of its Affiliates;
(e) all Accounts Receivable arising before the Effective Time (except Accounts Receivable, if any, for work in progress, partially billed products, or open purchase orders relating to the Products or the Biologics SBU);
(f) any refund or credit of Taxes attributable to any Excluded Tax Liability;
(g) all insurance policies of Seller;
(h) all rights, claims and credits of Seller or any of its Affiliates to the extent relating to any Excluded Asset or any Excluded Liability, including any such items arising under insurance policies and all guarantees, warranties, indemnities and similar rights in favor of Seller or any of its Affiliates to the extent relating to any Excluded Asset or any Excluded Liability;
(i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1;
(ii) all Retained Real Property;
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems rights of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contractsunder this Agreement and the Other Agreements;
(vij) all inventory (including all raw material inventoryrights, work-in-process inventory, spare parts inventory claims and finished products inventory) other than the Inventory and any samples credits of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related arising under, in connection with, or relating to the PhosLo APA or the “PhosLo Business” as defined therein, or the Inhibitex Arbitration;
(ixk) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified RecordsRetained Information;
(xl) all accounts receivable tax attributes, tax credits and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates tax refunds of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c)Seller, whether or not derived from the Business and whether or not existing prior attributable to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns ownership of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xxm) (i) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (Shared Use Assets not split or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash segregated pursuant to Section 2.9 6.7(d), (ii) to have occurred as the extent split or segregated pursuant to Section 6.7(d), the split or segregated portion of 12:01 a.m. any Seller Shared Use Asset agreed by the Parties to be owned or held by Seller after the Effective Time, and (New York timeiii) on to the Closing Dateextent split or segregated pursuant to Section 6.7(d), the split or segregated portion of any Buyer Shared Use Asset agreed by the Parties to be owned or held by Seller after the Effective Time.
Appears in 1 contract
Excluded Assets. (a) Notwithstanding any provision in this AgreementSection 2.1 to the contrary, Purchaser Seller Parties will retain ownership of, and the Purchaser Designated Affiliates are Acquired Assets shall not purchasing or acquiring any of Seller Parent’s or its Affiliates’ include, the following assets (including the Conveyed Subsidiaries’ or their Subsidiaries’) rightcollectively, title or interest in any assets, properties or rights other than the Purchased Assets (the “Excluded Assets”):
(a) Any asset of Parent or LendingTree other than as listed in subsection (n) of Schedule 2.1;
(b) Except as provided in Sections 2.1(a), including:2.1(f) and 2.1(j), all cash, cash equivalents, short term investments and accounts receivable of Sellers or the Subsidiaries;
(c) All amounts held by Sellers in impound or escrow accounts in respect of any Mortgage Loans that are not transferred to Buyer;
(d) All bank accounts of each Seller;
(e) All Mortgage Loans (other than those portfolio loans listed in subsection (i) of Schedule 2.1);
(f) Sellers’ warehouse lines of credit, Investor Commitments, hedging arrangements (including dealer agreements, but not including the hedging instruments described in Section 2.1(a)) and Contracts related to the foregoing;
(g) All Contracts of Seller Parties and their Affiliates other than Assumed Contracts and Assumed Office Leases;
(h) All Benefit Plans of Seller Parties and their Affiliates;
(i) all Any assets constituting ownership interests in, or that which are used or held for use in, “plan assets” (within the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (smeaning of ERISA) of Section 2.1;
(ii) all Retained Real Property;
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest Benefit Plan of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers Party or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services policy to the extent such assets are Purchased Assets) policy provides benefits under any Benefit Plan of the type currently provided to the Business by any Seller Parent Party or any of its their Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviiij) all third-party warranties, indemnities, further assurances All personnel records and similar covenants and guarantees files maintained by Seller Parties or any of their Affiliates with respect to employees other than those identified as Purchased Assets in Section 2.1the Hired Employees;
(xixk) all assets, properties All insurance policies of Sellers;
(l) All Licenses of Sellers;
(m) The Organizational Documents and rights Tax Returns of any Person that are not Related each Seller;
(n) All attorney-client privileged materials to the Business, including all assets, properties extent about the Transactions and subject to the attorney-client privilege;
(o) Sellers’ rights constituting ownership interests in, under any Transaction Document;
(p) All real property owned by Sellers or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1Subsidiaries; and
(xxq) the The other assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letteron Schedule 2.2(q).
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 1 contract
Excluded Assets. (a) Notwithstanding any provision anything in this AgreementAgreement to the contrary, Purchaser expressly understands and agrees that, Seller, the Purchaser Designated Seller Entities and their respective Affiliates are not purchasing or acquiring any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any assets, properties or rights other than the Purchased Assets Companies and their Subsidiaries) will retain and not sell, transfer, assign or convey, and Purchaser will not purchase or acquire, any of the following assets and properties of the Seller Entities, or any asset that is not a Purchased Asset (collectively, the “Excluded Assets”), includingand any such Excluded Assets may be transferred out of the Purchased Companies and their Subsidiaries prior to the Closing, notwithstanding any other provision of this Agreement:
(i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1;
(ii) all Retained Real Property;
(iii) (A) the Retained Facilities, (A) any owned Any and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries Purchased Company Shares;
(b) Any and their Subsidiaries)all Contracts and portions of Contracts, other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure LetterBusiness Contracts, the Real Property Leases and the leases relating to the Transferred Leased Property;
(vc) all Shared Contracts Any and all other Contracts, sales orders, purchase orders, instruments owned and leased real property and other commitmentsinterests in real property, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contractsthe Owned Real Property and the Transferred Leased Property;
(vid) Any and all inventory Intellectual Property, other than the Business Intellectual Property;
(including e) Any and all Tangible Personal Property other than the Transferred Tangible Personal Property;
(f) Any and all raw material inventorymaterials, work-in-process inventoryprocess, spare parts inventory finished goods, supplies and finished products inventory) other inventories, other than the Inventory and any samples of ProductsInventory;
(viig) the Retained Names Any and all Permits other Intellectual Property that is than the Permits held by the Purchased Companies or any of their Subsidiaries;
(h) Any and all claims and defenses (including any Retained Claim), other than the claims and defenses specifically identified as Purchased Assets;
(i) Any and all documents, instruments, papers, books, records, books of account, files and data, catalogs, brochures, sales literature, promotional materials, certificates and other documents not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, specifically identified as Purchased Assets in Section 2.4;
(j) Any and including as set forth on Section 2.3(a)(vii) all assets of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual PropertyBenefit Plans;
(viiik) Any and all Governmental Authorizationsloans and advances, including product registrationsif any, manufacturing registrations and environmental permits, owned, used or licensed by the Seller Parent or Entities to any of its their Affiliates and not Related or otherwise to the Business;
(ixl) Any and all customer rights to refunds or credits to the extent provided in Article VI;
(m) Tax Returns and vendor listsother books and records related to Taxes paid or payable by Seller, the Seller Entities or any of their respective Affiliates (other than Tax Returns and other books and records exclusively related to Taxes of the Purchased Companies and their respective Subsidiaries);
(n) Any and all advertising, marketing, sales Cash Amounts (other than any Cash Amounts of the Purchased Companies and promotional materialstheir Subsidiaries as of immediately prior to the Closing to the extent included in the calculation of the Closing Cash Amounts), and business any and financial recordsall accounts receivable, bookscurrent assets, prepaid expenses and documents and other Records, security deposits (in each case case, other than those of the Business as of immediately prior to the Closing to the extent included in the calculation of the Closing Working Capital);
(o) Any and all insurance policies and binders and interests in insurance pools and programs and self-insurance arrangements whether or not Related to the Business, for all periods before, through and after the Specified Records;Closing, including any and all refunds and credits due or to become due thereunder and any and all claims, rights to make claims and rights to proceeds on any such insurance policies, binders and interests for all periods before, through and after the Closing; and
(xp) all accounts receivable and other current Except for those assets expressly identified as Purchased Assets in clauses (a) through (n) of Section 2.4, any and all cash assets, business lines, properties, rights, Contracts and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts claims of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, Business (including all assets, properties business lines, properties, rights, Contracts and rights claims constituting ownership interests in, or that are used or held for use in, in or related to, the Retained Businesses), wherever located, whether tangible or intangible, real, personal or mixed. The Parties acknowledge and agree that neither Purchaser nor any of its Subsidiaries will acquire any direct or indirect right, title and interest in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letter.
(b) any Excluded Assets. Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closingcontrary, Seller Parent shall use commercially reasonable efforts to may take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the any Excluded Assets from the Conveyed Subsidiaries Purchased Companies and their Subsidiaries (and, if needed, from the SellersSeller Entities) to Seller Parent or one or more of its Retained Subsidiaries Affiliates for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties Purchaser shall continue to use commercially reasonable efforts to take all actions (and shall cause their its Affiliates (including the Conveyed Subsidiaries Purchased Companies and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party Seller to effect the provisions of this Section 2.3foregoing, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) paragraph after the Closing Date shall be deemed for purposes of calculating the Business Closing Working Capital Capital, the Closing Cash Amounts and the Business Net Cash Closing Funded Debt pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) immediately prior to 11:59 p.m., Eastern Time, on the day immediately preceding the Closing Date.
Appears in 1 contract
Excluded Assets. (a) Notwithstanding any provision in this Agreement, Purchaser The Purchased Assets shall not include:
2.2.1 cash of the Vendor and the Purchaser Designated Affiliates are not purchasing Subsidiary, including cash equivalents and near cash investments such as government securities, guaranteed investment certificates, money market funds and short-term deposits at financial institutions;
2.2.2 the shares of the Subsidiary held by the Vendor and any amounts receivable from the Subsidiary on account of loans made by the Vendor to the Subsidiary;
2.2.3 amounts accruing, receivable or acquiring due to the Vendor or the Subsidiary from any (i) Affiliate or related party of Seller Parent’s the Vendor or its Affiliates’ the Subsidiary, (including ii) shareholder, director or officer of the Conveyed Subsidiaries’ Vendor or their Subsidiaries’the Subsidiary or any Affiliate or related party of the Vendor or the Subsidiary or (iii) rightany Affiliate or related party of any such shareholder, title director or officer;
2.2.4 any amount accruing to, receivable by or due to each of the Vendor and the Subsidiary from any Governmental Authority on account of Taxes;
2.2.5 the interest of each of the Vendor and the Subsidiary in any assetslitigation disclosed on Schedule 5.1.26 and in the proceeds of any judgment, properties order or rights decree issued or made in respect thereof;
2.2.6 the interest of each of the Vendor and the Subsidiary in (i) tangible capital property and equipment, including computer servers and related equipment used to run the Vendor’s electronic mail system described in Schedule 2.2.6, (ii) any contract, agreement or commitment not listed in Schedule 2.1.5, (iii) any premises lease, other than the Purchased Assets Premises Lease, and (iv) any tangible assets of the Vendor or the Subsidiary whether owned or leased located at the Subsidiary’s facility in Princeton, New Jersey;
2.2.7 the Insurance Policies and all prepaid insurance premiums in respect thereof (provided that S&N will nevertheless be covered as an insured under the insurance to be purchased by the Vendor pursuant to Section 8.10);
2.2.8 the Trade-▇▇▇▇ ‘Nucryst’ or any variation thereof or any domain name incorporating or related thereto; and
2.2.9 the Employee Plans and Pension Plans; which assets are referred to, collectively, in this Agreement as the “Excluded Assets”), including:
(i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1;
(ii) all Retained Real Property;
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 1 contract
Sources: Asset Purchase Agreement (NUCRYST Pharmaceuticals Corp.)
Excluded Assets. (a) Notwithstanding any provision to the contrary in this Agreement, Purchaser nothing in this Agreement shall constitute or be construed as requiring Seller to sell, assign, convey, transfer or deliver, and the Purchaser Designated Affiliates are Buyer shall not purchasing be entitled to purchase, assume or acquiring acquire, any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in, to or under any property, asset, business, operation or division of Seller, or any Affiliate thereof, not expressly set forth in Section 2.1, including the following assets and properties which are hereby specifically excluded from the definition of Purchased Assets (collectively, the "Excluded Assets"):
(a) The right, title and interest of Seller and its successors, assigns and Representatives in, to and under all electrical transmission or distribution facilities (as opposed to generation facilities) or information technology and telecommunications assets of Seller or any assetsof its Affiliates located at or forming a part of either of the Jointly Owned Stations (whether or not regarded as a "transmission" or "generation" asset for regulatory or accounting purposes), properties including all switchyard facilities, substation facilities and support equipment, as well as all permits, contracts and warranties, to the extent they relate to such transmission and distribution assets or rights information technology and telecommunications assets (other than the Purchased Assets (the “Excluded Assets”), including:
(i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1;
(ii) all Retained Real Property;
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as electrical 14 ______________________________________________________________________________ transmission facilities set forth on Section 2.1(d)(i)(BSchedule 2.1(d), all of which are included as Purchased Assets) of (collectively, the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D"Transmission Assets");
(ivb) all legal All certificates of deposit, shares of stock, securities, bonds, debentures, evidences of indebtedness, and beneficial interest interests (other than Seller's membership interests in the share capital or equity interest of any Person Conemaugh Fuels, LLC and Keystone Fuels, LLC) in partnerships and other entities;
(c) All cash (other than the Conveyed Subsidiaries (and their SubsidiariesStation Working Funds), other than those equity interests set forth on Section 2.1(q) cash equivalents, bank deposits, accounts and notes receivable (trade or otherwise), and prepaid expenses, including such as relate to any Excluded Assets or the operation of the Purchased Assets, and any income, sales, payroll or other Tax receivables (in each case, whether held by Seller Disclosure Letteror any third party, including under any Jointly Owned Stations Operating Agreement);
(vd) The right, title and interest of Seller and its successors, assigns and Representatives in, to and under all Shared Contracts intellectual property, including the names "Atlantic City Electric Company", "Atlantic Energy", "ACE", "Conectiv", "Pepco", "Pepco Holdings" or any derivation thereof, as well as any related or similar name, or any other trade names, trademarks, service marks, corporate names and all logos, or any part, derivation, colorable imitation or combination thereof (other Contractsthan "Conemaugh Generating Station" and "Keystone Generating Station");
(e) All tariffs, sales orders, purchase orders, instruments and other commitments, obligations agreements and arrangements to which Seller Parent or any of its Affiliates Representatives is a party for the purchase or by which any sale of its electric capacity or their propertiesenergy, assets or rights is subjectfor the purchase of transmission, in each case other than Assumed Contractsdistribution or ancillary services;
(vif) The right, title and interest of Seller and its successors, assigns and Representatives in, to and under all inventory claims against third parties, if any, relating to the ownership, lease, maintenance or operation of any Purchased Assets by Seller prior to the Closing Date, whether accruing prior to, on or after the Closing Date, including all claims for refunds, prepayments, offsets, recoupment, insurance proceeds, insurance distributions, dividends or other proceeds, condemnation awards, judgments and the like, whether received as payment or credit against future Liabilities;
(g) All Tax refunds or credits (including refunds or credits of real property Taxes paid or due with respect to the Jointly Owned Stations or any related real property), which refunds or credits are with respect to periods prior to the Closing Date, whether directly or indirectly, under the Jointly Owned Stations Operating Agreements or otherwise, regardless of when actually paid;
(h) All employment agreements and personnel records of Seller and its successors, assigns and Representatives;
(i) The minute books, stock transfer books, corporate seal and other corporate records of Seller and its successors, assigns and Representatives;
(j) The right, title and interest of Seller and its successors, assigns and Representatives in, to and under all raw material inventorycontracts, work-in-process inventoryagreements, spare parts inventory arrangements, licenses and finished products inventory) leases of any nature, other than the Inventory and any samples Seller's Agreements; 15 ______________________________________________________________________________
(k) All insurance policies relating to the ownership, lease, maintenance or operation of Productsthe Purchased Assets;
(viil) All other assets and properties owned or leased by Seller or its successors, assigns and Representatives which are not used in the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) operation of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual PropertyJointly Owned Stations;
(viiim) all Governmental AuthorizationsThe right, including product registrationstitle and interest of Seller and its successors, manufacturing registrations assigns and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates Representatives under this Agreement and not Related to the Business;Additional Agreements; and
(ixn) all customer The right, title and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts interest of Seller Parent and its successors, assigns and Representatives in, to and under all Emission Allowances of Seller or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as Emission Allowances set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6on Schedule 2.1(f), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letter).
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 1 contract
Sources: Purchase and Sale Agreement
Excluded Assets. (a) Notwithstanding any provision The assets that Sellers shall sell, transfer, assign, convey and deliver to Purchasers, and that Purchasers shall purchase, assume, accept and acquire from Sellers, at the Closing are the Assets set forth in this AgreementSection 2.1. Each Seller is not selling, Purchaser transferring, assigning, conveying or delivering to Purchasers, and the Purchaser Designated Affiliates Purchasers are not purchasing purchasing, accepting, assuming or acquiring any of Seller Parentfrom such Seller, such Seller’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in or to any assets, properties or rights other than the Purchased Assets assets (the “Excluded Assets”), includingincluding the following:
(i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1;
(ii) all Retained Real Property;
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates negotiable instruments of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of such Seller Parent or any of its Affiliates (on hand, in lock boxes, in financial institutions or elsewhere, including the Conveyed Subsidiaries or any Lockbox Account and its contents on the Closing Date, but excluding the cash and cash equivalents of their Subsidiaries) (other than the accounts receivable and other assets, in each case included e^deltacom Business received after Closing in the calculation of Lockbox Account in accordance with Section 2.1(i) and excluding the Final Business Working Capital, cash and the Cash Equivalents included cash equivalents in the calculation of Final Business Net CashOperating Accounting in accordance with Section 2.1(i) and Section 2.7(a);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (ab) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculationExcluded Improvements set forth on Schedule 2.1(a)(ii);
(xiic) all assets and properties of every kind and description owned, leased (pursuant to leases in which a Seller Combined is not the lessor) or otherwise held for use by third parties, including customers under the Customer Contracts, located at the Data Center Facility;
(d) (i) all fiber optic facilities, equipment and elements of such Seller, other than any of such facilities set forth on Schedule 2.1(b)(i), and (ii) all rights provided to Sellers by the Declaration of Easement;
(e) all contracts of insurance and the prepaid business insurance (including liability, business interruption and the like) premiums and the prepaid group insurance premiums of such Seller;
(f) all of such Seller’s rights under manufacturers’, resellers’ and vendors’ warranties other than such Seller’s rights under manufacturers’, resellers and vendors warranties transferred pursuant to Section 2.1(n);
(g) all rights to Tax Returns refunds, credits and all similar benefits, and to any Tax Returns attributes, relating to or attributable to periods ending, or relating to an event occurring prior to, the Closing Date;
(h) the minute books from the meetings of the Sellers or any boards of their Affiliates (other than directors and stockholders of such Seller, the Conveyed Subsidiaries stock records and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, corporate seal of such Seller and in each case any books the Tax returns and records relating theretoto Taxes of such Seller;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xivi) all rights of such Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or and the Ancillary Agreements and any documents delivered or received in connection herewith or therewithother Transaction Agreements;
(xvj) except as set forth all prepaid commissions owed to Sellers in Section 2.1(o) connection with the e^deltacom Business to the extent earned prior to the Closing Date and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveriesthe extent listed on Schedule 2.2(j);
(xvik) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Dinix Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xxl) the any other assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letteridentified on Schedule 2.2(l).
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 1 contract
Excluded Assets. (a) Notwithstanding any provision in this Agreement, Purchaser and the Purchaser Designated Affiliates are The Purchased Assets shall not purchasing or acquiring any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in include any assets, properties properties, or rights of Seller other than the Purchased Assets (collectively, the “Excluded Assets”). The Excluded Assets shall include, includingbut are not limited to, the following other such assets:
(a) Contracts, including Intellectual Property Licenses, that are not Assigned Contracts (the “Excluded Contracts”);
(b) any furniture, fixtures, equipment, tools, vehicles, office equipment, supplies, computers, telephones and other tangible personal property;
(c) any interest in any real property owned or leased by the Seller;
(d) any inventory, finished goods, raw materials, work in progress, packaging, supplies, parts and other inventories;
(e) the seals, organizational documents, minute books, ownership books and documents, Tax Returns, books of account or other records having to do with the organization of Seller;
(f) any Benefit Plans and assets attributable thereto;
(g) cash and cash equivalents;
(h) the claims, demands, suits, causes of action or enforcement rights of Seller as against third parties arising exclusively prior to the Closing (“Excluded Claims”), including those listed in the Disclosure Schedules in Section 2.02(h), and any settlement, recoveries, judgments, benefits, awards, damages, interest, costs, or other direct or indirect recovery arising out of or related to Excluded Claims;
(i) all assets constituting ownership interests in, the confidential or proprietary communications of Seller or its respective Affiliates regarding the transactions contemplated under this Agreement and communications of Seller or its Affiliates that are used subject to attorney-client privilege, in each case whether in tangible, electronic or held for use inother form; and
(j) the rights which accrue or will accrue to Seller under the Transaction Documents;
(k) the equity or any assets of any Affiliate of Seller, including but not limited to the Retained Businessesequity and assets of reTech and R▇▇▇▇▇ Partnership, LLC (“R▇▇▇▇▇ Partnership”);
(l) Stockholders’ personal email, reTech email, R▇▇▇▇▇ Partnership email, J▇▇ ▇▇▇▇▇▇▇'▇ email, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1;
(ii) all Retained Real Property;
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries)▇▇▇▇▇ ▇'▇▇▇▇▇'▇ email, other than those equity interests set forth on Section 2.1(q) of related to the Seller Disclosure Letter;
(v) all Shared Contracts and all other ContractsBusiness, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to J▇▇▇ and recover and retain damages for past▇▇▇▇▇▇▇'▇ email, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related than those related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether domain “r▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1▇.▇▇▇”; and
(xxm) the assets set forth in Section 2.3(a)(xx) Any right of the indemnification of Seller Disclosure Letterby any Franchisee under any Franchise Agreement.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 1 contract
Excluded Assets. (a) Notwithstanding any provision in this AgreementFrom and after the Closing Date, Purchaser and the Purchaser Designated Affiliates are not purchasing or acquiring any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) Vendor Group shall retain all right, title or and interest in any assetsand to, properties and there shall be excluded from the purchase and sale, conveyance, assignment, or rights other than transfer to the Purchased Purchaser Group hereunder, and the Assets shall exclude the following (collectively, the “Excluded Assets”):
(a) subject to Section 4.3(b), including:all refundable Taxes (or amounts credited against current cash Taxes otherwise due and payable in lieu of a refund) and interest thereon refundable to the Vendor Group or the Subsidiaries on account of the Purchased Business in respect of any Pre-Closing Tax Period (“Vendor Refundable Taxes”);
(b) the corporate seals, organizational documents, minute books or other records relating to the organization as a legal entity of the Vendor Group or any other Person other than the Subsidiaries;
(c) all outstanding equity interests in the Vendor Group, other than the equity interests of the Subsidiaries;
(d) all financial statements, Tax returns and other Tax records and related information of the Vendor or any other Person other than the Subsidiaries;
(e) any fixed assets other than those set forth on Section 2.1(b) of the Disclosure Letter;
(f) all rights of the Vendor Group in respect of any employment or contractor agreement other than employment agreements made with Transferred Personnel;
(g) other than as may be agreed in writing by the parties pursuant to the Transition Services Agreement, all employee benefit plans and assets attributable thereto;
(h) all Benefit Plans maintained by the Vendor Group and all rights thereunder;
(i) all assets constituting ownership interests in, or that are used or held for use in, insurance policies owned and maintained by the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1Vendor Group and all rights thereunder;
(iij) all the Retained Real PropertyBusiness;
(iii) (Ak) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts Software and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viiil) all Governmental Authorizationscontracts of the Vendor Group that are not Contracts, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;Specified Contracts; and
(ixm) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation claims of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off Vendor Group against third parties (at any time or in any manner arising or existingrelated to the above assets, whether ▇▇▇▇▇▇ choate or inchoate, known known, or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 1 contract
Sources: Asset Purchase Agreement (Synchronoss Technologies Inc)
Excluded Assets. (a) Notwithstanding any provision in this AgreementOther than the Purchased Assets, Purchaser the Parties expressly understand and agree that the Purchaser Designated Affiliates are Buyer is not purchasing or acquiring acquiring, and the Sellers are not selling or assigning, any other assets or properties of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) rightSellers, title or interest in any assets, and all such other assets and properties or rights other than shall be excluded from the Purchased Assets (the “Excluded Assets”), including. Excluded Assets include the following assets and properties of the Sellers:
(ia) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, intercompany receivables other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1;
(ii) all Retained Real Property;
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B2.1(d) of the Seller Confidential Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect .
(b) all other accounts receivables of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), Sellers other than those equity interests set forth identified on Section 2.1(q2.1(d) of the Seller Confidential Disclosure Letter;
(vc) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank accounts and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash)Sellers;
(xid) all assets relating to the Deferred Compensation Plans of the Sellers;
(e) all Tax refunds, assets (including Tax credits or other Tax Assets of the Sellers refunds and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (aprepayments) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates for any period or relating to the Business, the Purchased Assets or the Excluded Liabilities for any taxable period (or portion thereof) ending on or prior to the Closing Date;
(f) all Contracts other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating theretoForgivable Notes;
(xiiig) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1Intellectual Property;
(xivh) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after fixed assets owned by the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewithSellers;
(xvi) all real property leases owned by the Sellers;
(j) all insurance policies of the Sellers and all rights to applicable claims and proceeds thereunder;
(k) all Records; and
(l) except as set forth in Section 2.1(o) and subject to Section 6.182.1, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, Sellers’ books and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related torecords, the Retained Businessescorporate seals, in each case other than those assetsorganizational documents, properties or rights identified as Purchased Assets in clauses (a) through (s) minute books, stock books and Tax Returns, except for copies of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact Tax Returns relating solely to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing DateAssumed Liabilities.
Appears in 1 contract
Sources: Asset Purchase Agreement (LPL Financial Holdings Inc.)
Excluded Assets. It is expressly understood and agreed that, notwithstanding anything to the contrary set forth herein, the Assets shall not include the following (a) Notwithstanding any provision in this Agreementeach, Purchaser and the Purchaser Designated Affiliates are not purchasing or acquiring any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any assets, properties or rights other than the Purchased Assets (the “an "Excluded Assets”), including:Asset"):
(i) all assets constituting ownership of the Asset Sellers (including without limitation all rights, properties, claims, contracts, business, real property, leasehold interests inin real property, or equipment, machinery, vehicles, tools and other tangible personal property) that are used or held for use in, not utilized in the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1Technical Services Business;
(ii) the capital stock of (A) all Retained Real PropertySubsidiaries, (B) any other subsidiaries of the Seller, and (C) any subsidiaries of the Subsidiaries or any such other subsidiaries;
(iii) (A) the Retained Facilitiescash and cash equivalents or similar type investments, (A) any owned and leased furniturebank accounts, equipmentcertificates of deposit, fixtures, machinery, supplies, spare parts, tools, tangible personal property Treasury bills and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(Bmarketable securities (including without limitation money market investments and other similar short-term investments) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D)Asset Sellers;
(iv) all legal each Asset Seller's right, title and beneficial interest in and to the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their SubsidiariesContracts listed on Schedule 1.1(a)(v), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) subject to the provisions of Section 10.5(e), all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or rights of any of its Affiliates is a party or by which any of its or their propertiesthe Asset Sellers to insurance policies, assets or rights is subjectinsurance claims, in each case related refunds and proceeds other than Assumed Contractsthose relating exclusively to the Technical Services Business;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Productsrights which accrue or will accrue to the Asset Sellers under this Agreement;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed refunds of Pre-Closing Income Taxes (as defined in Section 2.9) payable to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual PropertyAsset Seller;
(viii) all Governmental Authorizationsassets of the Asset Sellers of every kind, including product registrationsnature, manufacturing registrations character and environmental permitsdescription located at, ownedor contained in, used or licensed by Seller Parent or any of its Affiliates and not Related to the BusinessSeller's offices located at 45 W▇▇▇▇▇▇ ▇▇▇▇▇▇, Wellesley, Massachusetts;
(ix) all customer assets of EG&G Florida of every kind, nature, character and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, description utilized in each case not Related to connection with EG&G Florida's operation of the Business, and the Specified RecordsKenn▇▇▇ ▇▇▇iness;
(x) all accounts receivable actions, claims, causes of action, rights of recovery, choses in action and other current assets and all cash and cash equivalentsrights of setoff of any kind arising before, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds on or after the Closing Date relating to the items set forth above in time and demand deposits this Section 1.1(b) or similar accounts of Seller Parent or to any of its Affiliates Excluded Liabilities (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, as defined in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net CashSection 1.1(e));
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior subject to the Closingprovisions of Section 4.10, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement all right, title and taken into account interest of each Asset Seller in the calculation of (a) software and related license and service agreements associated with the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extentAsset Seller's electronic mail, with respect to clause (b), offsetting a Tax Liability payroll and human resource/management information systems described in such calculationSchedule 1.1(b)(xi);
(xii) all right, title and interest of each Asset Seller Combined Tax Returns and all Tax Returns of in any corporate memberships not specifically related to the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;Technical Services Business; and
(xiii) all claimsright, defenses, causes of action, counterclaims title and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx) interest of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested amounts advanced by the other Party Seller to effect EC III, Inc. (the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date"EC III Loan").
Appears in 1 contract
Excluded Assets. (a) Notwithstanding any provision anything in this AgreementAgreement to the contrary, Purchaser expressly understands and agrees that the Purchaser Designated Affiliates are not purchasing or acquiring any following assets and properties of the Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any assets, properties or rights other than the Purchased Assets Entities (the “Excluded Assets”)) shall be retained by the Seller Entities and their Affiliates, includingand shall be excluded from the Purchased Assets:
(i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1;
(ii) all Retained Real Property;
(iii) (A) the Retained Facilities, (A) any owned Any and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than Person;
(b) Any and all Contracts and portions of Contracts, including the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests Contracts set forth on Section 2.1(q2.5(b) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other ContractsSchedules, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed the Specified Business Contracts;
(vic) Any and all inventory owned and leased real property and other interests in real property;
(including d) Any and all Intellectual Property, other than the Business Intellectual Property;
(e) Any and all Tangible Personal Property, other than the Transferred Tangible Personal Property;
(f) Any and all raw material inventorymaterials, work-in-process inventoryprocess, spare parts inventory finished goods, supplies and finished products inventory) other inventories, other than the Inventory and any samples of ProductsTransferred Inventory;
(viig) the Retained Names Any and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (prepaid expenses), other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash)Current Assets;
(xih) Any and all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation)Cash Amounts;
(xiii) all Seller Combined Tax Returns Any and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed LiabilitiesPermits, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those specifically identified as Purchased Assets in Section 2.12.4;
(xivj) Any and all rights of Seller Parent or claims and defenses (including any of its Affiliates (for clarityRetained Claim), other than, from than the claims and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those defenses specifically identified as Purchased Assets in Section 2.12.4;
(xixk) Any and all assetsdocuments, properties instruments, papers, books, records, books of account, files and rights data, catalogs, brochures, sales literature, promotional materials, certificates and other documents not specifically identified as Purchased Assets in Section 2.4;
(l) Any and all loans and advances, if any, by the Seller Entities to any of their Affiliates or otherwise to the Business;
(m) Any and all refunds or credits of or against Excluded Business Taxes, including any Person such refund or credit of or against Excluded Business Taxes that is attributable to any net operating loss or Tax credit;
(n) Any and all Tax Returns and other books and records related to Taxes of, paid or payable by Seller, the Seller Entities or any of their respective Affiliates, other than any such Tax Returns and books and records that are exclusively related to the Purchased Assets, the Assumed Liabilities, or the Business;
(o) Any and all insurance policies and binders and interests in insurance pools and programs and self-insurance arrangements whether or not Related related to the Business, for all periods before, through and after the Closing, including any and all refunds and credits due or to become due thereunder and any and all claims, rights to make claims and rights to proceeds on any such insurance policies, binders and interests for all periods before, through and after the Closing;
(p) Except for those assets expressly identified as Purchased Assets in the subsections of Section 2.4, any and all assets, business lines, properties, rights, Contracts and claims of Seller or any of its Subsidiaries not exclusively used, or held exclusively for use, in the operation of the Business (including all assets, properties business lines, properties, rights, Contracts and rights claims constituting ownership interests in, or that are exclusively used or exclusively held for use in, in or exclusively related to, the Retained Businesses), in each case other than those assetswherever located, properties whether tangible or rights identified as Purchased Assets in clauses intangible, real, personal or mixed;
(aq) through (s) of Section 2.1The Specified Insurance Policies; and
(xxr) the The assets set forth in on Section 2.3(a)(xx2.5(r) of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more Schedules. The Parties acknowledge and agree that neither Purchaser nor any of its Affiliates to take) such action as is necessarySubsidiaries will acquire any direct or indirect right, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries title and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result interest in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing DateAssets.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Agios Pharmaceuticals, Inc.)
Excluded Assets. (a) Notwithstanding any provision anything to the contrary contained in this Agreement, Purchaser expressly understands and agrees that the Purchaser Designated Affiliates are not purchasing or acquiring any following assets, business lines, properties, rights and claims of Seller Parent’s or and its Affiliates’ Subsidiaries (including the Conveyed Subsidiaries’ or their Subsidiaries’Purchased Entities) right(collectively, title or interest in any assets, properties or rights other than the Purchased Assets (the “Excluded Assets”)) will be retained by Seller and its Subsidiaries, includingand will be excluded from the Purchased Assets and, to the extent applicable, transferred out of the Purchased Entities:
(i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1;
(ii) all Retained Real Property;
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on in Section 2.1(d)(i)(B) of the 5.7, any and all Seller Disclosure LetterBenefit Plans, and any personal computers and vehicles that are not primarily used by all assets, trust agreements or any other funding and administrative Contracts related to the Transferred Employees in respect of the Business, Seller Benefit Plans;
(Ab) the Information Systems of Seller Parent any and its Subsidiariesall Intellectual Property Rights, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viiic) any and all Governmental AuthorizationsTechnology other than Business Technology (including copies of any Copyable Technology regardless of whether copies of such Copyable Technology are also Business Technology), including product registrationsand, manufacturing registrations except as expressly included in Section 2.4(g), any and environmental permitsall Information Technology;
(d) any and all Contracts (or portions of any Contracts), ownedother than the Business Contracts and the Real Property Leases;
(e) except as expressly included in Section 2.4(e), used any and all owned real property and leased real property and other interests in real property;
(f) except as expressly included in Section 2.4(f), any and all Tangible Personal Property;
(g) any and all prepaid Taxes and any and all refunds or licensed by credits of or against any Taxes of Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assetsPurchased Entities), in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c6.10;
(h) except as expressly included in Section 2.4(i), whether or not derived from any and all Cash Amounts of the Business Seller and whether or not existing its Subsidiaries as of immediately prior to the Closing;
(i) (i) Tax Returns and other Books and Records related to Taxes paid or payable by the Seller Entities or any of their respective Subsidiaries or Affiliates (other than Tax Returns and other Books and Records, but excluding including any refunds portion thereof, that are not Business Books and Records) and (ii) any and all Books and Records other than the Business Books and Records;
(j) any and all insurance policies and binders and interests in insurance pools and programs and self-insurance arrangements whether or credits or other Tax Assets not related to the extent reflected Business, for all periods before, through and after the Closing, including any and all refunds and credits due or to become due thereunder and any prepaid premiums and any and all claims, rights to make claims and rights to proceeds on any such insurance policies for all periods before, through and after the Closing;
(k) any and all Permits, other than the Transferred Permits;
(l) any and all rights to any prepaid expenses and security deposits, other than as an asset on the Final Closing Statement and taken into account expressly included in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculationSection 2.4(h);
(xiim) all Seller Combined Tax Returns any and all Tax Returns Regulatory Approvals (including any applications that are in process) held by any of the Sellers or any of their Affiliates (Seller Entities, other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating theretoTransferred Regulatory Approvals;
(xiiin) any and all Accounts Receivable, other than those expressly included in Section 2.4(m);
(o) any and all claims, defenses, causes of action, counterclaims defenses and rights of set-off against third parties offset or counterclaim, or settlement agreements (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) at any time to the extent arising out of or related to the other Excluded Assets or Retained Liabilities (including (i) all rights and claims under any and all warranties extended by suppliers, vendors, contractors, manufacturers, distributors, licensees and licensors in favor of the Seller Entities, a Purchased Entity or any of their respective Affiliates in respect of any other Excluded Assets or Retained Liabilities and (ii) the right to ▇▇▇ and recover damages for past, present or future infringement or other violation of any Intellectual Property Rights other than those Business Intellectual Property), and the right to retain all proceeds and monies therefrom (collectively, the “Retained Claims”), and any and all other claims and defenses other than the claims and defenses specifically identified as Purchased Assets in Section 2.12.4(n);
(xivp) (i) all rights attorney–client privilege and attorney work-product protection of the Seller Parent Entities, Purchased Entities or associated with the Business, the Purchased Assets or the Assumed Liabilities as a result of legal counsel representing the Seller Entities, the Purchased Entities or the Business in connection with the Transaction and the other transactions contemplated by this Agreement or any of its Affiliates the Transaction Documents, and (for clarity, other than, from and after ii) all documents or communications subject to the Closing, the Conveyed Subsidiaries and their Subsidiariesattorney–client privilege or work-product protection described in subclause (i) under of this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewithclause (p);
(xvq) except as set forth any and all finished Specified ORx Products other than those expressly included in Section 2.1(o) 2.4(k), and subject to Section 6.18, all current and prior insurance policies any and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveriesSeller Supply Agreement Materials;
(xvir) except as expressly set forth in this Agreement (including Section 2.1(p) any and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in on Section 2.3(a)(xx2.5(r) of the Seller Disclosure Letter.Schedules; and
(bs) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f)any and all assets, prior to the Closinggoodwill, business lines, properties, rights and claims of Seller Parent shall use commercially reasonable efforts to take (or cause one or more and its Subsidiaries that do not constitute Purchased Assets. The Parties acknowledge and agree that neither Purchaser nor any of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of Purchased Entities, will acquire or be permitted to retain any direct or indirect right, title or interest in any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing DateAssets.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (PERRIGO Co PLC)
Excluded Assets. (a) Notwithstanding any provision in this Agreementanything to the contrary contained herein, Purchaser expressly understands and agrees that the Purchaser Designated Affiliates are not purchasing or acquiring any following assets and properties of Seller Parent’s or and its Affiliates (excluding JCH and its controlled Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any assets, properties or rights other than the Purchased Assets (the “Excluded Assets”) shall be retained by Seller and its Affiliates (other than the Purchased Companies), includingand shall be excluded from the Purchased Assets, notwithstanding any other provision of this Agreement:
(a) Any and all Cash Amounts (other than any Cash Amounts of the Purchased Entities as of 11:58 p.m. local time in each applicable jurisdiction on the Closing Date to the extent such Cash Amounts are included in the determination of Closing Operating Cash Amounts);
(b) Any and all equity interests in any Affiliate of Seller (other than the Purchased Companies);
(c) Except as set forth in Section 5.7, any and all assets related to the Seller Benefit Plans;
(d) Any and all loans and advances, if any, by Seller or its Affiliates (other than the Purchased Companies) to any of their Affiliates or otherwise to the Business;
(e) Any and all Intellectual Property that is (i) all assets constituting ownership interests in, or that are used or held for use in, owned by the Retained BusinessesSeller and its Affiliates, other than the Business IP (including the Seller Marks and the Licensed IP, in each case, subject to the terms of those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1;
applicable Transaction Documents), (ii) all Retained Real Property;
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on in Section 2.1(d)(i)(B2.5(e) of the Seller Disclosure LetterSchedules, (iii) Registered Intellectual Property that is not listed in Section 2.4(d) of the Seller Disclosure Schedules or (iv) owned by Seller and any personal computers and vehicles its Affiliates that are not primarily used embodied in any products, services, software or components offered by the Transferred Employees Specific Retained Businesses, in respect each case, subject to the terms of those applicable Transaction Documents (collectively, the “Excluded Intellectual Property”);
(f) Any and all IT Assets (including the IT Assets set forth in Section 2.5(f) of the Business, (ASeller Disclosure Schedules) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D)Assets;
(ivg) Any and all legal Contracts and beneficial interest in the share capital or equity interest portions of any Person Contracts, other than the Conveyed Subsidiaries (and their Subsidiaries)Specified Business Contracts, other than those equity interests set forth any Contracts listed on Section 2.1(q2.4(r) of the Seller Disclosure LetterSchedules and the Transferred Leases;
(vh) all Shared Contracts Except as expressly included in Section 2.4(c), any and all other Contracts, sales orders, purchase orders, instruments owned and leased real property and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, interests in each case other than Assumed Contractsreal property;
(vii) Any and all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples refunds of Productsor credits against Excluded Business Taxes;
(viij) Other than the Retained Names Books and Records specified in Section 2.4(n), any and all Books and Records, Tax Returns and other Intellectual Property that is not Business IP, including such Intellectual Property licensed books and records related to Purchaser under an Ancillary Agreement Taxes paid or otherwise, and including as set forth on Section 2.3(a)(vii) of the payable by Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Propertyits Affiliates;
(viiik) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by All correspondence between Seller Parent or any of its Affiliates and its legal counsel, advisors or other Representatives arising out of or relating to the negotiation, execution or delivery of this Agreement or the transactions contemplated hereby (or the sales process relating to a potential strategic transaction, joint venture or sale involving the Business), including documents entered into in connection therewith;
(l) Except as set forth in Section 2.4(o), any and all insurance policies and binders and interests in insurance pools and programs and self-insurance arrangements whether or not Related related to the Business, for all periods before, through and after the Closing, including any and all refunds and credits due or to become due thereunder and any and all claims, rights to make claims and rights to proceeds on any such insurance policies for all periods before, through and after the Closing;
(ixm) Any and all customer Permits other than the Transferred Permits;
(n) All rights to receive services and vendor listsbenefits of any kind (including rebates and similar arrangements), including administrative and corporate (overhead, shared and other) services and benefits of the kind provided to the Business by any Seller Entity, either directly or indirectly through third-party service providers (whether under any umbrella, enterprise or shared ownership, license or use arrangement or otherwise), prior to the Closing Date, and all advertisingassets of any such Seller Entity related thereto (whether owned, leased or licensed), including (A) computer and information processing services (other than as may be provided through the Transferred IT Assets), (B) finance, accounting and payroll services, (C) facilities management services (including environmental, health and safety), (D) treasury services (including banking, insurance, administration, taxation and internal audit), (E) general and administrative services, (F) executive and management services, (G) legal services, (H) human resources services, (I) risk management services, (J) group purchasing services, (K) corporate marketing, sales strategy and promotional materialsdevelopment services, (L) corporate travel and aircraft services, and business and financial records, books, and documents and other Records(M) investor relations services, in each case not Related of clauses (A) through (M), other than such services that are to be provided to Purchaser or any Purchased Company for the benefit of the Business pursuant to the Business, terms of the Transition Services Agreement and the Specified RecordsControls Supply Agreement or any other supply agreements;
(xo) all accounts receivable All assets and other current assets rights relating to the Business sold or otherwise transferred or disposed of during the period from the date hereof through and including the Closing Date, in any event in accordance with the provisions hereof, and all cash rights arising under or relating to any Retained Liabilities;
(p) The Retained Businesses;
(q) All other assets set forth on Section 2.5(q) of the Seller Disclosure Schedules; and
(r) Except for those assets set forth on Section 2.4 of the Seller Disclosure Schedules, any and cash equivalentsall assets, checksbusiness lines, money ordersproperties, marketable securitiesrights, short-term instruments, bank Contracts and other depositary accounts, certificates claims of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of the Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable JCH and other assetsits controlled Affiliates) not primarily used, or held primarily for use, in each case included in the calculation operation of the Final Business Working CapitalBusiness, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c)wherever located, whether tangible or not derived from the Business intangible, real, personal or mixed. The parties acknowledge and whether or not existing prior to the Closingagree that none of Purchaser, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarityor, other than, from and after the Closing, the Conveyed Subsidiaries Purchased Companies, will acquire or be permitted to retain any direct or indirect right, title and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result interest in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing DateAssets.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Johnson Controls International PLC)
Excluded Assets. Seller shall retain and not sell to Buyer, and Buyer will not purchase from Seller: (ai) Notwithstanding any provision in this Agreement, Purchaser and the Purchaser Designated Affiliates are not purchasing or acquiring any of the Seller Parent’s or its Affiliates’ Retained Assets, and (including ii) except for the Conveyed Subsidiaries’ or their Subsidiaries’) rightrights being granted to Buyer under the Information License, title or interest in any assetsof the Licensed Information (collectively, properties or rights other than the Purchased Assets (the “"Excluded Assets”"), includingwhich shall include, without limitation:
(i1) all assets constituting ownership interests in, or that are used or held for use in, of Seller’s inventory of Collectible Coins and Sports Memorabilia (the Retained "Auction Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1;
(ii) all Retained Real Property;
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D’ Inventory");
(iv2) all legal of Seller’s accounts, notes and beneficial interest in other receivables and any other rights to payment, that arose, or may arise between the share capital or equity interest date hereof and the Closing, out of any Person other than of the Conveyed Subsidiaries operations of any of the Auction Businesses, including amounts payable by any insurers or under any manufacturer, supplier or vendor or consignor warranties, whether or not accrued and whether or not billed, and all of the proceeds thereof (and their Subsidiariescollectively, the " Auction Business Accounts Receivable "), other than those equity interests (i) the Auction Advances which Buyer has approved pursuant to Section 2.8(7), and (ii) the customer accounts outstanding as of the Closing Date under the BaM customer portfolio program described in Schedule 2.7(8) hereto (the "CPP Accounts"), which are being acquired by Buyer pursuant to Section 2.7(8) hereof, subject to the rights of Buyer as set forth in Paragraph 2.8(7)(b) below;
(3) Seller’s cash on Section 2.1(qhand or in transit, bank deposits, and all of Seller’s cash equivalents and securities or other investments;
(4) all books, records, files, and other documents relating to any of the Seller Disclosure LetterRetained Businesses or any of the operations thereof or included as part of the Licensed Information;
(v5) all Shared Contracts office furniture and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements equipment not acquired by Buyer pursuant to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed ContractsSection 2.1(11);
(vi6) all inventory (including all raw material inventoryExcept for the rights being granted to Buyer under the Software License Agreement, work-in-process inventory, spare parts inventory the Proprietary Software; and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current Seller’s web site assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, website assets identified in each case included in the calculation Section A of the Final Business Working CapitalSchedule 2.1(6), and the Cash Equivalents included Proprietary Software identified in Schedule 2.1(7) that is used in conjunction with the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets operation of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Auction Businesses, in each case other than those assets, properties which are being transferred or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1licensed to Buyer); and
(xx7) the all other assets set forth of Seller not identified as Acquired Assets in Section 2.3(a)(xx) of the Seller Disclosure Letter2.1 hereto.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
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Excluded Assets. (a) Notwithstanding any provision anything to the contrary contained in this Agreement, Purchaser the following assets and properties of the Sellers and their respective Affiliates (other than the Company and the Purchaser Designated Transferred Subsidiary) shall be retained by the Sellers and their respective Affiliates are not purchasing or acquiring any (other than the Company and the Transferred Subsidiary), and shall be excluded from the Transferred Assets (collectively, the “Excluded Assets”):
(i) (x) other than the Shares, the shares of capital stock of the Transferred Entities, the Company Minority Investments and the Asset Seller Parent’s or its Affiliates’ Minority Investments, (y) except as reflected in the Final Working Capital Statement, and (z) subject to Section 5.12, all cash and cash equivalents, securities (including all capital stock and/or equity interests in any Person) or negotiable instruments on hand or held by any bank or other third Person or elsewhere;
(ii) any and all rights to the Conveyed Subsidiaries’ ATMI Name and ATMI Marks, together with any contracts, agreements or their Subsidiaries’understandings to the extent granting rights to use the same (including ATMI Name and ATMI Marks to the extent incorporated into any Business Intellectual Property or Business Technology);
(iii) except for the Company Owned Property, the Company Leased Property and any such right, title or interest of the Transferred JV (including all improvements, fixtures and appurtenances thereto and rights in any assets, properties or rights other than the Purchased Assets (the “Excluded Assets”respect thereof), including:
(i) all assets constituting ownership interests inof the Sellers’ right, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets title and interest in clauses (a) through (s) of Section 2.1;
(ii) all Retained Real Property;
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal real property and other tangible interests in real property located at the Retained Facilities including all such right, title and interest under each real property lease pursuant to which any of them leases, subleases (as sub-landlord or not Related to the Businesssub-tenant) or otherwise occupies any such leased real property, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letterincluding all improvements, fixtures and any personal computers appurtenances thereto and vehicles that are not primarily used by the Transferred Employees rights in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D)thereof;
(iv) (A) all legal and beneficial interest in loans or advances by the share capital Sellers to ATMI or equity interest any of any Person its Affiliates (other than the Conveyed Subsidiaries (and their SubsidiariesCompany or any Transferred Entity), and (B) all loans or advances by ATMI or its Affiliates (other than those equity interests set forth on Section 2.1(qthe Company or any Transferred Entity) of to the Seller Disclosure LetterSellers;
(v) all Shared Contracts Tax Returns of, or with respect to, the Asset Sellers, and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements refunds of or credits relating to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, Taxes that are Excluded Liabilities as set forth in each case other than Assumed ContractsSection 2.02(d)(iv);
(vi) subject to Section 5.12, all inventory (including all raw material inventorypolicies of or agreements for insurance and interests in insurance pools and programs, work-in-process inventoryand any rights to proceeds thereof, spare parts inventory and finished products inventory) other than any such policies, agreements, interests or rights of the Inventory and Company or any samples of ProductsTransferred Entity;
(vii) subject to Section 5.12, any assets Related to the Retained Names Business owned on the date hereof or acquired after the date hereof and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed sold or otherwise disposed of in the ordinary course of business consistent with past practice prior to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) the Closing if permitted in accordance with the terms of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Propertythis Agreement;
(viii) all Governmental Authorizations, causes of action (including product registrations, manufacturing registrations counterclaims) and environmental permits, owned, used or licensed by Seller Parent or defenses against third parties primarily relating to any of its Affiliates the Excluded Assets or the Excluded Liabilities as well as any books, records and not Related to the Businessprivileged information relating thereto;
(ix) all customer Seller Intellectual Property and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified RecordsSeller Technology;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable Transferred Assets described in Section 2.02(a)(x) and other assetsSection 2.02(a)(xiv), in each case included in the calculation of the Final Business Working Capitalall computer software, databases, documentation and the Cash Equivalents included in the calculation of Final Business Net Cash)related materials and licenses thereto and rights under licenses thereto;
(xi) all Tax refunds, Tax credits or other Tax Assets the assets and properties listed in Section 2.02(b)(xi) of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation)Disclosure Letter;
(xii) all Seller Combined Tax Returns and all Tax Returns assets of the Employee Plans, other than Transferred Employee Plan Assets;
(xiii) any interest of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries Company and their Subsidiariesthe Transferred Entities) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1under the Transaction Agreements;
(xiv) all rights personnel and Employee Records for employees and former employees of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewithSellers who are not Transferred Employees;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets2.02(a)(xiv) of the type currently provided to the Business by Seller Parent or Disclosure Letter and Section 2.02(a), any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties properties, rights, contracts and rights claims of any Person the Asset Sellers that are not Related to the Business, wherever located, whether tangible or intangible, real, personal or mixed;
(xvi) subject to Section 5.07, accounts receivable (including trade accounts receivable) where the payor thereunder is ATMI or a Subsidiary of ATMI (other than the Company and the Transferred Subsidiary), including, except as may be or remain outstanding pursuant to Section 5.07 hereof, intercompany accounts receivable (including trade accounts receivable).
(xvii) (A) all assetscorporate minute books (and other similar corporate records) and stock records of the Sellers, properties (B) any books and rights constituting ownership interests inrecords primarily relating to any of the Excluded Assets or (C) any books, records or other materials that the Sellers (x) are required by Law to retain (copies of which, to the extent permitted by Law, will be made available to the Acquiror at the Acquiror’s reasonable request and expense), (y) reasonably believe are related to Taxes (copies of which will be made available to the Acquiror at the Acquiror’s reasonable request and expense, but in no event shall such copies include any Tax Returns) or (z) are prohibited by Law from delivering to the Acquiror;
(xviii) all governmental licenses, permits or other governmental authorizations of the Sellers that are used Related to the Business to the extent that the transfer thereof would violate or held for use in, would not be permitted or related to, effective under applicable Law or the Retained Businesses, in each case other than those assets, properties terms of such license or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1such license is otherwise not transferable; and
(xxxix) all of the assets set forth Sellers’ causes of action, claims, credits, demands, remedies, or rights of set-off against third parties, to the extent primarily related to any of the foregoing or to any Excluded Liabilities as described in Section 2.3(a)(xx) of the Seller Disclosure Letter.
(b) 2.02(d). Notwithstanding anything to the contrary contained in this Agreement to or any of the contrary but subject to Section 6.5(fAncillary Agreements, the Acquiror acknowledges and agrees that all of the following shall be included among the Excluded Assets and shall remain the property of the Sellers and their respective Affiliates (other than the Company and the Transferred Entities), and neither the Acquiror nor any of its Affiliates (including, following the Closing, the Company and the Transferred Entities) shall have any interest therein: (x) all records and reports prepared or received by the Sellers or any of their Affiliates prior to the ClosingClosing in connection with the sale of the Business and the transactions contemplated hereby, Seller Parent shall use commercially reasonable efforts including all analyses relating to take the Business or the Acquiror so prepared or received; (y) all confidentiality agreements with prospective purchasers of the Business or cause any portion thereof, and all bids and expressions of interest received from third parties with respect to the Business; and (z) all privileged materials, documents and records of the Sellers or the Sellers’ Affiliates (other than the Company and the Transferred Entities), including any privileged materials, documents and records of the Sellers or the Sellers’ Affiliates (other than the Company and the Transferred Entities) that are in the possession of the Company or the Transferred Subsidiary. The Acquiror further acknowledges and agrees that, with respect to any Action or dispute between the Sellers or one of their Affiliates (other than the Company or more the Transferred Entities), on the one hand, and the Acquiror or one of its Affiliates (including, following the Closing, the Company and the Transferred Entities), on the other hand, only the Sellers may waive any evidentiary privilege that may attach to take) such action as is necessary, advisable or desirable to transfer a pre-Closing communication of the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent Sellers or one or more of their Affiliates that is determined by a court of competent jurisdiction to be subject to attorney-client privilege, and neither the Acquiror nor any of its Retained Subsidiaries for such consideration or for no considerationAffiliates (including, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to following the Purchased Assets or the Business. After the Closing DateClosing, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital Company and the Business Net Cash pursuant Transferred Entities) shall have the right to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Datewaive any such privilege.
Appears in 1 contract
Excluded Assets. There shall be excluded from the Purchased Assets and Seller shall retain all of its right, title and interest in and to the excluded assets all tangible and intangible property or right related to Mentergy's products and services (other than LearnLinc) (i.e., other than identified in Section 1.1 above and accordingly directly related to the LearnLinc Business and LearnLinc Software). For purposes of clarification, the excluded assets (the "Excluded Assets") specifically include the following assets, and Purchaser, shall acquire no right thereto:
(a) Notwithstanding any provision in this Agreement, Purchaser and the Purchaser Designated Affiliates are not purchasing or acquiring any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any assets, properties or rights other than the Purchased Assets (the “Excluded Assets”), including:
(i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets physically located in clauses (a) through (s) of Section 2.1;
(ii) the Troy, NY office and listed on SCHEDULE 1.2, together with all Retained Real Property;
(iii) (A) cash collected from the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related Seller's accounts receivable prior to the BusinessEffective Date (except and provided in Section 1.7) cash equivalents and short-term investments, except as set forth on Section 2.1(d)(i)(B) of accounts receivable related to the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, Mentergy business (A) the Information Systems of Seller Parent and its Subsidiariesi.e., other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their SubsidiariesLearnLinc accounts receivable transferred under Section 1.7), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts minute books, stock records and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor listscorporate seals, all advertising, marketing, sales and promotional materials, and rights to any Mentergy trade or business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) name (other than related to the accounts receivable LearnLinc Software, LearnLinc Business, or TestLinc), all rights to deposits and prepaid expenses (listed on SCHEDULE 1.2), claims for refunds (listed on SCHEDULE 1.2), or rights to offset (listed on SCHEDULE 1.2); all insurance policies and rights thereto (listed on SCHEDULE 1.2); any contract of Seller not specifically identified as part of the Purchased Assets and concerning the Mentergy business, all personnel records, other records that Seller is required by law to retain in its possession, all claims for refund of taxes and other assetsgovernmental charges of whatever nature of Mentergy; all rights in connection with any employee benefit or welfare plan unrelated to the employees located in Troy, in each case included in the calculation of the Final Business Working Capital, New York and the Cash Equivalents included in the calculation of Final Business Net Cash);any employer contribution related to those Mentergy employees; and,
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or and the Ancillary Agreements and any collateral documents delivered or received executed by Seller in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 1 contract
Excluded Assets. Notwithstanding Section 2.1, the following assets (a) Notwithstanding any provision in this Agreement, Purchaser and the Purchaser Designated Affiliates are not purchasing or acquiring any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any assets, properties or rights other than the Purchased Assets (the “Excluded Assets”) are retained by Seller and the Asset Subsidiaries and are not included in the Assets:
(a) all cash (other than ▇▇▇▇▇ cash located at the Real Property), cash equivalents, marketable securities and bank accounts;
(b) all trade and other accounts receivable, including those that are owed by Seller or any Subsidiary or Affiliate of Seller;
(c) all intellectual property owned, licensed or used by Seller or any Asset Subsidiary that is not used exclusively in the conduct of the Business, including, but not limited to:
(i) all assets constituting ownership interests inthe trade names and trademarks “Visteon” and “Visteon Corporation” (“Visteon Marks”) and any other trade names, or that are used or held for use intrademarks, the Retained Businesses, other than those assets identified as Purchased Assets corporate names and logos incorporating in clauses (a) through (s) of Section 2.1;any way these names; and
(ii) all Retained Real Propertythe Proprietary Rights listed on Section 2.2(c)(ii) of the Disclosure Schedule;
(iiid) (Ai) all claims, proceedings, rights of action and defenses under Chapter 5 of the Title 11 of the United States Code that derive from or were originated as a result of Seller’s Chapter 11 bankruptcy reorganization filed on May 25, 2009, and (ii) all claims and rights relating to any of the Excluded Assets or the Retained Facilities, Liabilities;
(Ae) all assets that have been transferred or disposed of by Seller or any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related Asset Subsidiary prior to the BusinessClosing Date in transactions permitted by this Agreement, except as set forth on including Section 2.1(d)(i)(B7.1;
(f) all rights to the refund of any Tax paid by Seller or any Asset Subsidiary prior to the Closing Date;
(g) all agreements, contracts and commitments of Seller, any Stock Selling Subsidiary, Asset Subsidiary or member of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, Stock Group other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vih) copies or originals, as the case may be, of all inventory (including all raw material inventorybooks and records that Seller, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of ProductsStock Selling Subsidiaries or the Asset Subsidiaries are required by the applicable Laws to retain in their possession;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viiii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and Employee Benefit Plans that are not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect theretoEmployee Benefit Plans, including all assets held by or on behalf of Seller, any Asset Subsidiary or such Employee Benefit Plans in trust, reserve or otherwise to fund, and all insurance recoveries thereunder and rights to assert claims with respect to policies funding, any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations liabilities under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1such Employee Benefit Plans; and
(xxj) the all assets set forth in identified on Section 2.3(a)(xx2.2(j) of the Seller Disclosure LetterSchedule as Excluded Assets.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 1 contract
Excluded Assets. (a) Notwithstanding any provision anything to the contrary contained in this Agreement, Purchaser and except as expressly set forth in Section 1.1(a), the Purchaser Designated Affiliates are Buyer will not purchasing or acquiring acquire any of Seller Parent’s or its Affiliates’ the following (including the Conveyed Subsidiaries’ or their Subsidiaries’) rightcollectively, title or interest in any assets, properties or rights other than the Purchased Assets (the “Excluded Assets”), including:;
(i) all assets constituting ownership interests in, or that are used or held for use inAll of the Beneficial Owners’, the Retained BusinessesSeller Related Parties’ or the Company’s rights under this Agreement or any Ancillary Agreement and to the consideration to be delivered to the Beneficial Owners, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1the Seller Related Parties and the Company pursuant to this Agreement or any Ancillary Agreement;
(ii) all Retained Real PropertyAll minute books of the Beneficial Owners, the Seller Related Parties’ and the Company, including the organizational documents of the Beneficial Owners, the Seller Related Parties’ and the Company (collectively, the “Minute Books”);
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D)All Cash;
(iv) all legal All Company Benefit Plans and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letterassets related thereto;
(v) all Shared Contracts and all other All Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than the Assumed Contracts, including (A) all Contracts with any Affiliate of the Beneficial Owners, the Company or a Related Party, or (B) any Contract with financial, accounting, transaction, legal or tax advisors of the Beneficial Owners or the Company (collectively, the “Excluded Contracts”);
(vi) all inventory (including all raw material inventoryAny Tax Return, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples Tax records and/or refunds or credits in respect of ProductsTaxes;
(vii) Any of the Retained Names Beneficial Owners’, the Seller Related Parties’ or the Company’s (or their predecessors’) employee and all other Intellectual Property that is not Business IPpersonnel records, files, papers, data and related information, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwiseany correspondence related thereto, and including as set forth on Section 2.3(a)(vii) of in whatever form (collectively, the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property“Personnel Records”);
(viii) all Governmental AuthorizationsAny documents or other information covered by attorney-client privilege, the attorney work product doctrine, or other similar legal protection, including all attorney-client privileged or work product registrations, manufacturing registrations communication between the Company and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related legal advisors relating to the BusinessContemplated Transactions (collectively, the “Privileged Records”);
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, Any equity interests of the Company held or owned by the Beneficial Owners or equity interest in each case not the Beneficial Owners or the Seller Related to Parties held or owned by the Business, and Company or the Specified RecordsSeller Related Parties;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash)All Retained Policies;
(xi) all Tax refunds, Tax credits All equity or other Tax Assets rights of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);Related Parties; and
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (Such other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) listed on the Closing Dateattached Schedule 1.1(b)(xi).
Appears in 1 contract
Sources: Asset Purchase Agreement
Excluded Assets. (a) Notwithstanding any provision anything to the contrary contained in this Agreement, Purchaser and regardless of whether such asset is disclosed herein or on any schedule hereto, except for the Purchaser Designated Affiliates are Purchased Assets, Buyer will not purchasing acquire the following assets of any Seller or acquiring any Affiliate of any Seller Parent’s or its Affiliates’ any other assets whatsoever related to the ownership or operation of the Business or the Purchased Assets at any time (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any such assets, properties or rights other than the Purchased Assets (Assets, the “Excluded Assets”). Without limiting the generality of the foregoing, includingthe “Excluded Assets” include the following assets of any Seller or any Affiliate of any Seller, except to the extent such assets expressly constitute Purchased Assets:
(i) the Subject Facilities and all assets constituting ownership interests incurrent or former real estate (including fittings and improvements thereon, and easements, servitudes, licenses, rights of way, permits, and the other appurtenances thereto, including appurtenant rights in and to public streets, whether or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (anot vacated) through (s) of Section 2.1and all Licenses and Permits related thereto;
(ii) all Retained Real Propertyraw materials, manufactured and purchased parts, work-in-process, finished goods, inventories and supplies, whether on hand or on order (“Inventory”);
(iii) (A) the Retained Facilitiesall automobiles, (A) any owned and leased furnituretrucks, equipmenttractors, fixtures, machinery, supplies, spare parts, tools, tangible personal property trailors and other tangible property located at the Retained Facilities or not Related to the Businessvehicles (including overhead cranes, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, rail cars and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (Dforklifts);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) accounts receivable of the Seller Disclosure LetterBusiness;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments personal property and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contractslocated at the Middletown Facility;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than Sellers’ rights under or pursuant to the Inventory and any samples of ProductsTransaction Documents;
(vii) the Retained Names all cash and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Propertycash equivalents;
(viii) except as provided in Section 2.1(a)(iii), all Governmental Authorizationsbooks, including product registrationsledgers, manufacturing registrations files, documents, correspondence and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related other business records related to the Business;
(ix) all customer and vendor listsexcept as included as Purchased Assets, all advertisingassets and properties used in Sellers’ information technology and telecommunication systems (including hardware, marketingsoftware, sales servers, personal computers, phones and promotional materialsphone systems and others communications equipment), records and business office furniture and financial records, books, and documents and other Records, in each case not Related to fixtures located at the Business, and the Specified RecordsElk Grove Village Facility;
(x) Nickel Carbonate Purchase Contracts, Natural Gas Purchase Contracts, the Elk Grove Village CBA, all accounts receivable and other current assets Plans of Sellers, and all cash and cash equivalentsother Contracts of any Seller;
(xi) claims, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instrumentsprepayments, securities warranties, guarantees, refunds, causes of action, rights of recovery, rights of set-off and brokerage accountsrights of compensation of every kind and nature to the extent relating to the other Excluded Assets or Excluded Liabilities, funds in time including the Existing OSHA Matters;
(xii) any assets relating to any Plans;
(xiii) any Proprietary Rights, including “Material Sciences Corporation,” “MSC”, “Deco Steel®”, “Electrobrite®”, “Quiet Steel®”, “Viva Color®” and demand deposits “Specular+®” names and trademarks and any Proprietary Rights related to post-paint conversions of “Deco Steel®”, “Electrobrite®”, “Quiet Steel®”, “Viva Color®” and “Specular+®” products;
(xiv) any right any Seller has with respect to a refund for Taxes or similar accounts of other Tax asset, or with respect to any Tax for which a Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;responsible; and
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure LetterPeriod Orders.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 1 contract
Excluded Assets. (a) Notwithstanding anything contained in Section 2.1 to the contrary, neither the Seller nor any provision in this Agreementof its Affiliates are transferring, Purchaser assigning or conveying, and the Purchaser Designated Company Group is not accepting, any assets other than those expressly listed or described in Section 2.1, and the term “Transferred Assets” shall expressly exclude the following assets of the Seller and its Affiliates are not purchasing or acquiring any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any assets, properties or rights other than the Purchased Assets Company Group) all of which shall be retained by the Seller and its Affiliates (other than the Company Group) (collectively, the “Excluded Assets”), including:):
(i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1;
(ii) all Retained Real Property;
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related every kind and nature, whether tangible or intangible, real or personal, and wherever located, to the Business, including all assets, properties and rights constituting ownership interests in, or that are extent not used or held for use inby the Seller and its Affiliates in connection with the Business;
(b) any assets with respect to the manufacturing, development, sale or distribution of consumer and professional tissue products, including bath tissue, towels, table napkins, hard rolls, facial tissue, and wipe products to the extent not used by the Seller or its Affiliates in (i) the IFP Segment or (ii) the ABU Geographic Regions (including those assets set forth on Schedule 2.2(b) of the Disclosure Schedules);
(c) the Equity Interests of the Seller and each Excluded Affiliate other than the Purchased Shares, the Company Interests and the Company Group Equity Interests;
(d) all of the Seller’s and its Affiliates’ cash and cash equivalents (other than, for the avoidance of doubt, ▇▇▇▇ held by members of the Company Group as of the Calculation Time, including the Minimum Cash);
(e) all accounts receivable, including trade accounts receivable and other receivables, of Seller or any of its Affiliates (other than members of the Company Group), in each case, at the Calculation Time;
(f) (i) the personnel records of the Transferred Employees that are prohibited from transfer by applicable Law, (ii) the Seller’s and any of its Affiliates’ (other than any member of the Company Group’s) (x) books and records of, or related to, internal corporate proceedings and regulatory and compliance matters, (y) Tax records (including Returns) and (z) work papers and (iii) copies of the Retained Businessesbooks and records set forth in Section 2.1(m) that the Seller or any of its Affiliates (other than members of the Company Group) are prohibited from disclosing or transferring to the Buyer under applicable Law;
(g) all Intellectual Property that is not Transferred Intellectual Property, including, (i) trade dress rights, design rights and copyrights in any product or packaging and (ii) rights in the following names and marks and any variation, translation, combination, or derivation thereof, and all confusingly similar names and trademarks: (v) the Japan Trademarks, solely until the Japan Assignment Date, (w) “RIGHTCYCLE,” (x) “▇▇▇▇▇▇▇▇-▇▇▇▇▇ PROFESSIONAL” and “▇▇▇▇▇▇▇▇-▇▇▇▇▇,” (y) names and marks licensed by the Seller or its Affiliates pursuant to the Trademark License Agreement, and (z) names and marks that begin with the constituent element “▇▇▇” and that are not expressly listed in Schedule 3.14(a) of the Disclosure Schedules;
(h) all of the Seller’s and its Affiliates’ bank accounts (other than any bank accounts of any member of the Company Group);
(i) all (i) Tax assets and attributes of Seller and its Affiliates (other than the Transferred Subsidiaries) and of any Seller Consolidated Group and (ii) Tax assets and attributes in respect of any Excluded Asset, any Excluded Liability or otherwise with respect to the Excluded Business;
(j) except as specifically provided in Section 2.1(n) and subject to Section 5.21(b), any of the Seller’s or its Affiliates’ insurance policies and rights, claims or causes of action thereunder;
(k) except as specifically provided in Section 5.9, any assets relating to any Employee Plan (other than any Transferred Subsidiary Plan or Assumed Plan);
(l) all assets sold, or otherwise disposed of, in each case compliance with the terms of this Agreement during the period from the date hereof until the Closing Date;
(m) all consideration received by the Seller and its Affiliates, and all rights of the Seller and its Affiliates under, this Agreement, the Company Transfer Agreements or any Ancillary Agreements, subject to the terms hereof and thereof;
(n) subject to Section 5.13, the Comingled Contracts and the Contracts listed on Schedule 2.2(n) of the Disclosure Schedules;
(o) except as specifically provided in Section 2.1(s) and subject to Section 5.14, the Comingled Permits;
(p) all credits, prepaid expenses, deferred charges, advance payments, refunds, security deposits, prepaid items and duties of the Seller and its Affiliates (other than those assetsmembers of the Company Group) included in the calculation of the Asset Jurisdiction Net Working Capital;
(q) each Divestiture Compensation Agreement;
(r) all rights to Actions, properties causes of action, judgments, defenses, rights of subrogation, rights of set-off and demands of any nature in favor of such Seller or any of its Affiliates set forth on Schedule 2.2(r) of the Disclosure Schedules, including all rights identified as Purchased Assets under all guarantees, warranties, indemnities and similar rights and rights to contribution, indemnification, reimbursement and all other rights of recovery in clauses (a) through connection thereto in favor of such Seller or any of its Affiliates;
(s) of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xxon Schedule 2.2(s) of the Seller Disclosure Letter.Schedules; and
(bt) Notwithstanding anything in all confidential communications between the Company, the Seller and its Affiliates (including any Transferred Subsidiary prior to the Closing Date), on the one hand, and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP (“K&E”) or ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, on the other hand, to the extent relating to (i) the negotiation, execution or delivery of this Agreement to or the contrary but transactions contemplated hereby, including any attendant attorney-client privilege, attorney work product protection, and expectation of client confidentiality applicable thereto, and including any information or files in any format of K&E in connection therewith, or (ii) subject to Section 6.5(f)5.27, the Business, the Company, the Transferred Assets or the Transferred Subsidiaries (in each case, prior to the ClosingClosing Date), Seller Parent shall use commercially reasonable efforts solely to take (the extent such transfer, assignment or cause one conveyance would reasonably be expected to contravene any attendant attorney-client privilege, attorney work product protection, and expectation of client confidentiality applicable thereto, and including any information or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result files in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions format of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing DateK&E in connection therewith.
Appears in 1 contract
Sources: Equity and Asset Purchase Agreement (Kimberly Clark Corp)
Excluded Assets. (a) Notwithstanding any provision The Purchased Assets shall include only those assets and interests specifically listed in this Agreement, Purchaser Section 1.1 above and the Purchaser Designated Affiliates are not purchasing or acquiring any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) shall in all events exclude all right, title or interest of Sellers in or to any assetsof the following (collectively, properties or rights other than the Purchased Assets (the “Excluded Assets”)):
(a) all cash and cash equivalents of Sellers, other than Cash on Premises
(b) any bank accounts of Sellers;
(c) the Purchase Price and Sellers’ rights thereto under this Agreement, subject to the offset provisions set forth in Section 2.1 of this Agreement with respect to the Purchase Price of Unencumbered Property;
(d) any Excluded Contracts;
(e) any Claims including the AMC Claims, other than those Claims with respect to or in connection with any Purchased Contract or Purchased Asset;
(f) (I) a copy of any books and records relating to any pre-Closing period, including:, without limitation, (i) Tax Returns, financial statements, and corporate or other Entity filings, (ii) minute books, stock ledgers, and stock certificates of any Subsidiaries of Sellers, and (II) all originals and copies of documents relating to proposals to acquire the Business by Persons other than Purchaser;
(g) all securities, whether capital stock or debt, and other ownership interests issued by any of the Sellers;
(h) all assets of any Section 401(k) or other Seller benefit plan (including any Company Benefit Plan);
(i) all assets constituting ownership interests in, or that are used or held for use in, any item expressly excluded pursuant to the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) provisions of Section 2.11.1 above;
(iij) all Retained Real Propertyintercompany claims by any Seller against any other Seller or any Subsidiary or other Affiliate of any Seller;
(iiik) all Avoidance Actions;
(Al) Tax credits, prepayments and refunds but only to the Retained Facilities, extent attributable to Excluded Taxes; and
(Am) any owned personnel and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property employment records for current or former employees and other tangible property located at the Retained Facilities or not Related to individual independent contractors of the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages provided for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letter13.9.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 1 contract
Excluded Assets. (a) Notwithstanding any provision in this Agreement, Purchaser and the Purchaser Designated Affiliates are not purchasing or acquiring any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any All assets, properties properties, rights, contracts and claims, wherever located, whether tangible or rights other than intangible, real or personal, of the Asset Sellers not included in the definition of Purchased Assets (collectively, the “"Excluded Assets”)") will not be sold, assigned, transferred or delivered to Purchaser or the Subsidiary Purchasers, including:
(ia) all assets constituting ownership All cash, cash equivalents, marketable securities and similar investments, bank accounts, lockboxes and deposits, and any rights or interests in, to, or that are used or held for use in, with the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) cash management system of Section 2.1the Asset Sellers;
(iib) all Retained Real PropertyAll Excluded Receivables;
(iiic) (A) the Retained Facilities, (A) All intercompany receivables owed to any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities Asset Seller by Seller or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems Subsidiary of Seller Parent and its Subsidiaries, (other than the Business IT Systems Acquired Companies and (A) any leases relating except to the assets described in extent any such receivables are included on the foregoing clauses (B) through (DUnaudited Balance Sheet);
(ivd) all legal and beneficial interest in All rights of the share capital or equity interest of Asset Sellers under any Person Contract other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of Contracts included in the Seller Disclosure LetterPurchased Assets;
(ve) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other All Intellectual Property that is not Business IPincluded in the Purchased Assets, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) all rights of the Seller Disclosure LetterAsset Sellers to use the "Newell Rubbermaid Inc." trade name or trademark, and including the right to ▇or any par▇ ▇▇ and recover and retain damages for pastderivation thereof, present and future infringement together with all goodwill associated therewith, represented thereby or misappropriation or pertaining thereto;
(f) All real property, including any other violation of any such Intellectual Closed Property;
(viiig) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, All assets used or licensed in connection with the centralized management functions provided by Seller Parent or any of its Affiliates and not Related to the BusinessSeller;
(ixh) all customer and vendor listsAll refunds of or credits with respect to any Excluded Tax, all advertisingas further described in SECTION 10.3(a), marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related plus any interest paid by the relevant taxing authority with respect to the Business, and the Specified Recordssuch refund or credit;
(xi) all accounts receivable All Employee Benefit Plans and any trusts, insurance arrangements or other current assets and all cash and cash equivalentsheld pursuant to, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts set aside to fund the obligations of Seller Parent or its Subsidiaries under, any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (such Employee Benefit Plans, other than the accounts receivable as provided in SECTIONS 7.3 and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash7.4(b);
(xij) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior All insurance policies and all rights of any the Asset Sellers of every nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any description under or arising out of such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1policies; and
(xxk) the The assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letterlisted on SCHEDULE 1.3(k).
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Newell Rubbermaid Inc)
Excluded Assets. (a) Notwithstanding Seller shall retain, and Buyer shall not purchase from Seller, any provision in this Agreement, Purchaser and the Purchaser Designated Affiliates are not purchasing or acquiring any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any all assets, properties or and rights other than that are not included among the Purchased Assets Assets, including (collectively, the “Excluded Assets”), including:):
(i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1;
(ii) all Retained Real Property;
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checksincluding credit card receivables and checks received pending collection as of the close of business on the Closing Date, money orders, marketable securities, short-term instrumentsnotes, bank and other depositary accountsdeposits, certificates of deposit, time deposits, negotiable instruments, securities deposit and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash)marketable securities;
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o1.1(g), all fixed assets, including all fixtures, furniture, furnishings, machinery, equipment, tools, jigs, dies, patterns, molds, parts, engineering equipment, communications equipment, accessories, computers and peripheral devices, office and other equipment and appliances, and any replacement and spare parts for any such assets;
(c) all contracts and agreements other than the Assumed Contracts;
(d) all Intellectual Property other than the Conveyed Intellectual Property (collectively, the “Retained Intellectual Property”);
(e) all Permits to the extent not transferable;
(f) Business Records that contain information that does not relate primarily to the Business or the Purchased Assets or that Seller is required to retain by Law (the “Excluded Business Records”);
(g) the Purchase Price to be paid to Seller by Buyer pursuant to this Agreement (excluding any adjustments to the Purchase Price in favor of Buyer pursuant to Section 1.5 or Article V of this Agreement) and subject all rights of Seller under this Agreement and all other agreements, documents, certificates and instruments to be delivered at the Closing pursuant to Section 6.181.6 hereof;
(h) the Inventory set forth on Section 1.2(h) of the Seller Disclosure Schedule in an amount (based on cost) equal to the Negative Reserve;
(i) any interests in any real estate;
(j) all rights and interests under all Seller Employee Plans and funding media, reserves, insurance and assets associated with such Seller Employee Plans;
(k) all claims with respect to any balance or amount due from any Affiliate of Seller;
(l) all security deposits, ▇▇▇▇▇▇▇ deposits and all other forms of deposit or security placed by Seller or ▇▇▇▇▇*s in connection with the Business, but only to the extent such deposits are not included as an asset for purposes of determining Closing Book Value (and, to the extent any deposit is included as an asset for purposes of determining Closing Book Value, such deposit shall be deemed to be a Purchased Asset);
(m) all claims, deposits, prepayments, refunds, rebates, credits, causes of action, rights of recovery, rights of setoff and rights of recoupment relating to or arising out of the Excluded Assets or Excluded Liabilities;
(n) regardless of whether such assets are owned by Seller, all current and assets used in connection with the centralized management functions identified on Section 1.2(n) of the Seller Disclosure Schedule provided by Seller, its Affiliates or third party service providers;
(o) all accounts receivable arising from the operation of the Business prior to the Closing;
(p) all insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveriesproceeds thereof;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xviiq) all corporate-level services (but not the assets Returns and Tax and accounting records and any related to such services to the extent such assets are Purchased Assets) notes, worksheets, files or documents of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related relating to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xxr) the assets set forth in Section 2.3(a)(xx) all minute books, corporate seals, stock record books and stock transfer records of the Seller Disclosure LetterSeller.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 1 contract
Excluded Assets. (a) Notwithstanding any provision The Transferred Assets shall include only those assets included in this AgreementSection 2.1, Purchaser and it being the Purchaser Designated Affiliates are not purchasing or acquiring any intention of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any assetsparties that all other rights, properties and assets of the Seller and its Subsidiaries are to be retained and not sold or rights other than assigned to Purchaser, including, without limitation, the Purchased Assets rights, properties and assets listed or described below (collectively, the “Excluded Assets”), including:):
(i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) all cash, cash equivalents, marketable securities and intercompany accounts receivable of Section 2.1Seller or its Subsidiaries;
(iib) all Retained Real Propertyrights in connection with, and assets of the employee benefit plans (the “Benefit Plans”) of Seller and its Subsidiaries;
(iiic) all minute books, stock books, Tax Returns and similar corporate records of Seller and its Subsidiaries;
(Ad) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) all employees of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o5.7 hereof;
(e) all claims, counterclaims and subject rights of offset against Liabilities to Section 6.18, the extent not assumed by Purchaser;
(f) all current rights of Seller under this Agreement and prior the Transaction Documents;
(g) the shares of capital stock of the Seller held in treasury;
(h) the shares of capital stock of the Seller’s Subsidiaries;
(i) all insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveriesthereunder;
(xvij) except as expressly set forth in this Agreement all Contracts of the Seller other than the Assumed Contracts and the Assumed Leases (including Section 2.1(p) and Section 6.6the “Excluded Contracts”), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xviik) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by personnel records and other records that Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services AgreementSubsidiaries are required by law to retain in its possession;
(xviiil) all third-party warranties, indemnities, further assurances claims for refund of Taxes and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights governmental charges of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1whatever nature; and
(xxm) the all information assets set forth in Section 2.3(a)(xx) of the or other property, including any Intellectual Property, owned by a party other than Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more any of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
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Excluded Assets. (a) Notwithstanding any provision in this Agreementthe terms of Section 2.1, Purchaser no member of the Seller Group will sell, convey, assign, transfer or deliver to the Purchaser, and the Purchaser Designated Affiliates are will not purchasing purchase or acquiring acquire, and the Purchased Assets do not include, any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any assets, properties or rights assets other than the Purchased Assets Assets, including any of the following assets (the “Excluded Assets”):
(a) all Cash and Cash Equivalents, bank deposits, investment accounts, lockboxes, certificates of deposit, marketable securities, bank accounts, corporate credit cards and other similar cash items of the Seller Group;
(b) all inventory as of the Closing Date, to the extent used or held for use primarily in the ICU Acquired Business, including all finished goods, work in process and raw materials, to the extent not included in the Working Capital;
(c) all notes and accounts receivable, including all trade accounts receivable and other rights to payment from customers, to the extent (i) not included in the Closing Date Flush Working Capital (as determined in accordance with Section 2.6) or (ii) related to the ICU Acquired Business;
(d) all minute books, records, stock ledgers, Tax records, personnel records and all other materials (other than the Flush Books and Records that constitute Purchased Assets under Section 2.1(i));
(e) the shares of the capital stock of any member of the Seller Group and all of the Seller’s or any other Seller Group member’s ownership interest in any Subsidiary or other Person;
(f) all insurance policies, including:binders and claims and rights thereunder and proceeds thereof;
(g) all Contracts of the Seller Group, but excluding (i) the Included Contracts and (ii) the portion of any Shared Contract that constitutes a Purchased Asset under Section 2.1(c);
(h) all machinery, equipment, furniture and other items of tangible personal property used or held for use by the Seller Group that does not constitute a Purchased Asset under Section 2.1(e);
(i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1;
(ii) all Retained Real Property;
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) goodwill of the Seller Disclosure Letter, and any personal computers and vehicles Group that are does not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (Dconstitute a Purchased Asset under Section 2.1(g);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viiij) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and Approvals that do not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cashconstitute a Purchased Asset under Section 2.1(h);
(xik) all Tax rights to refunds, Tax credits or similar benefits relating to Taxes and other Tax Assets governmental charges of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to whatever nature, except as provided in Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation2.1(j);
(xiil) all Seller Combined Tax Returns and all Tax Returns subject to the express terms of the Sellers IP License Agreement, all Intellectual Property rights of the Seller Group, including all of the Seller Group’s rights in the Hyprotek License (whether with respect to the ML Acquired Business or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating theretoICU Acquired Business);
(xiiim) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at arising under any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1Excluded Liability;
(xivn) all assets and other rights relating to the ICU Acquired Business or the ML Acquired Business sold or otherwise transferred or disposed of during the period from the date of this Agreement through and including the Closing Date, in any event in accordance with the provisions of the Stock Purchase Agreement or this Agreement; and
(o) all rights of the Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) Group under this Agreement or any of the Ancillary Agreements and to which any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx) member of the Seller Disclosure LetterGroup is a party.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
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Excluded Assets. Notwithstanding anything to the contrary contained in Section 1.2, the parties expressly understand and agree that the Purchased Assets shall not include, and neither Seller nor any of its Subsidiaries (other than an Acquired Company) is selling, assigning, transferring or conveying to Purchaser pursuant to Section 1.2 any right to or interest in, any of the following assets, properties, rights, Contracts and claims, whether tangible or intangible, real, personal or mixed (except with respect to assets sold, assigned, transferred or conveyed with the Acquired Companies) (collectively, the "EXCLUDED ASSETS"):
(a) Notwithstanding any provision in this Agreementall cash, Purchaser and the Purchaser Designated Affiliates are not purchasing or acquiring any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any assets, properties or rights other than the Purchased Assets (the “Excluded Assets”), including:
(i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1;
(ii) all Retained Real Property;
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checksbank deposits, money ordersinvestment accounts, marketable securities, short-term instruments, bank and other depositary accountslockboxes, certificates of deposit, time deposits, negotiable instruments, marketable securities and brokerage accounts, funds in time and demand deposits or similar accounts cash items, of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net CashAcquired Companies);
(xib) all Tax refundssubject to Sections 1.2 and 10.1, Tax credits any Seller Employee Benefit Plan, any trusts, insurance arrangements or other Tax Assets assets held pursuant to, or set aside to fund the obligations of the Sellers and Seller or its Subsidiaries under, any refund or credit against such Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c)Employee Benefit Plan, whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books data and records relating thereto;
(xiiior copies thereof) all claimsrequired to administer the benefits of Acquired Company Employees and Business Employees under any Seller Employee Benefit Plan and, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o1.4(a)(ii), the retention agreements with the Business Employees and Acquired Company Employees listed on Schedule 1.3(b) (the "RETENTION AGREEMENTS");
(c) any and all insurance policies, binders and claims and rights thereunder and the proceeds thereof and all prepaid insurance premiums;
(d) subject to Section 6.187.7, all current of Seller's right, title and prior insurance policies and all rights interest in any name, Trademark, trade dress, internet address, trade name, service ▇▇▇▇ or logo, or any derivation of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to foregoing, together with all of the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests ingoodwill represented thereby, or that are used or held for use in, or related to, the Retained Businesses, pertaining thereto in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) listed on the Closing Date.Schedule 1.3
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Wix Filtration Media Specialists, Inc.)
Excluded Assets. (a) Notwithstanding any other provision in of this Agreement, Seller shall retain and shall not sell, transfer, convey, assign or deliver to Purchaser and the Purchaser Designated Affiliates are not purchasing or acquiring any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any assetsproperties, properties assets or rights other than the that are not Purchased Assets Assets, that are set forth on Schedule 1.2 or that are described in this Section 1.2 (collectively, the “Excluded Assets”), including:):
(i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1;
(ii) all Retained Real Property;
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalentscash, checks, money orders, marketable securities, short-term instruments, bank instruments and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accountscash equivalents, funds in time and demand deposits or similar accounts accounts, and any evidence of indebtedness issued or guaranteed by any Governmental Authority;
(b) any contracts of Seller Parent or rights therein or thereunder, other than the Assigned Contracts;
(c) any real estate owned or leased by Seller or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (Affiliates, other than the accounts receivable and Facility Leases;
(d) any Governmental Approvals, other assets, than as set forth in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net CashSchedule 1.1(c);
(xie) all Tax refunds, Tax credits or other Tax Assets the corporate books and records of the Sellers Seller and its Affiliates and any refund attorney work product, attorney-client communications and other items protected by attorney-client or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation)similar privilege;
(xiif) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies of Seller and its Affiliates and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvig) except as expressly set forth in this Agreement any Intellectual Property Rights of Seller and its Affiliates, other than the Transferred Intellectual Property (including Section 2.1(p) and Section 6.6)for clarity, the Excluded Assets include all assets of any Seller Group Plan Patents owned or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business controlled by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement);
(xviiih) all thirdany clinical or non-party warranties, indemnities, further assurances clinical data of Seller and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1its Affiliates;
(xixi) any assets directly and principally related to one or more of Seller’s proprietary programs;
(j) the biomanufacturing and analytical equipment listed on Schedule 1.2(j) (the “Retained Equipment”);
(k) Facility Records directly and principally related to one or more of Seller’s proprietary programs;
(l) information technology and phone systems owned or leased by Seller listed on Schedule 1.2(l);
(m) all assets, properties and rights of any Person that are not Related to the Business, including BCD Facility Cash Deposit;
(n) the 20FF Facility LOC;
(o) all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1accounts receivable; and
(xxp) the assets set forth in Section 2.3(a)(xx) any right, title and interest of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more any of its Affiliates relating to take) such action as is necessaryany Excluded Asset or any Excluded Liability, advisable including any guarantees, warranties, indemnities and similar rights in favor of Seller or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more any of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact Affiliates relating to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing DateAsset or any Excluded Liability.
Appears in 1 contract
Excluded Assets. (a) Notwithstanding any provision in this AgreementThe Seller Companies will not sell, Purchaser and assign, transfer or deliver to the Purchaser Designated Affiliates are not purchasing or acquiring any of Seller Parent’s or its Affiliates’ Companies the following assets (including the Conveyed Subsidiaries’ or their Subsidiaries’) rightcollectively, title or interest in any assets, properties or rights other than the Purchased Assets (the “Excluded Assets”):
(a) Any assets, properties, rights, contracts and claims, wherever located, whether tangible or intangible, real or personal, of any Seller Company that are not used, held for use or intended to be used primarily in the operation or conduct of the Business;
(b) Except as set forth in Section 1.1(h), including:
(i) all assets constituting ownership cash, cash equivalents, bank accounts, lockboxes and deposits, and any rights or interests in, to or that are used or held for use in, with the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) cash management system of Section 2.1;
(ii) all Retained Real Property;
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent Company and its Subsidiaries, other than the Business IT Systems and Affiliates (A) any leases relating to the assets described as defined in the foregoing clauses (B) through (DSection 11.7(a));
(ivc) all legal and beneficial interest in All rights of the share capital or equity interest of any Person other than Seller Companies under the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests Contracts set forth on Section 2.1(qSchedule 1.2(c) of and any other Contract not included in the Seller Disclosure Letter;
(v) all Shared Contracts Purchased Assets and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements Equipment identified on Exhibit A to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Schedule 1.1(a) as “Remains with Seller” located at facilities leased pursuant to such Contracts;
(vid) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other All Intellectual Property that is not Business IPincluded in the Purchased Assets, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) all rights of the Seller Disclosure Letter, and including its Subsidiaries to use the right to “▇▇▇ ▇▇▇▇” and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether “▇▇▇▇▇▇ Highland Group” trade names or inchoatetrademarks, known or unknownany part or derivation thereof, contingent together with all goodwill associated therewith, represented thereby or non-contingent) other than those identified as Purchased Assets in Section 2.1pertaining thereto;
(xive) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except Except as expressly set forth in Section 2.1(o) and subject to Section 6.186.8, all current Benefit Plans (as defined in Section 4.16(a)) of the Seller Companies and prior any trusts, insurance arrangements or other assets held pursuant to, or set aside to fund the obligations of Seller or its Subsidiaries under, any such Benefit Plans;
(f) All insurance policies and all rights of the Seller Companies of every nature and description under or arising out of such insurance policies;
(g) All financial and accounting Business Records that form part of Seller’s and its Affiliates’ general ledgers, all Tax Returns of any nature with respect thereto, including Seller Company and all insurance recoveries thereunder and rights Business Records of any Seller Company that do not relate primarily to assert claims any Purchased Asset or any Assumed Liability;
(h) All intercompany receivables owed by any Affiliate of a Seller Company to such Seller Company;
(i) Any refunds or credits with respect to any such insurance recoveriesTaxes, plus any related interest received or due from the relevant taxing authority;
(xvij) except as expressly set forth Any equity interest in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary PlanCompany;
(xviik) all corporate-level services (but not the assets related All equity securities and warrants to such services to the extent such assets are Purchased Assets) acquire equity securities of a current or former client of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services AgreementBusiness;
(xviiil) all third-party warrantiesThe Seller Companies’ minute books, indemnities, further assurances stock records and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1corporate seals;
(xixm) all assets, properties and All rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related toSeller Companies under this Agreement, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1Purchaser Documents and the Seller Documents; and
(xxn) All rights, claims and credits of any Seller Company to the assets set forth extent related to any other Excluded Asset or any of the Excluded Liabilities (as defined in Section 2.3(a)(xx) 1.4), including any such items arising under insurance policies and all guarantees, warranties, indemnities and similar rights in favor of any Seller Company in respect of any other Excluded Asset or any of the Seller Disclosure LetterExcluded Liabilities.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 1 contract
Excluded Assets. (a) Notwithstanding any provision in this Agreement, Purchaser and the Purchaser Designated Affiliates are not purchasing or acquiring any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any assets, properties or rights other than the Purchased Assets (the “Excluded Assets”), including:
(i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1;
(ii) all Retained Real Property;
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement to the contrary contrary, the Asset Sellers will retain and not transfer, the following assets of the Asset Sellers (the “Excluded Assets”):
(a) Cash and Cash Equivalents, except to the extent included in the Closing Working Capital Balance;
(b) any rights to refunds or prepaid Taxes to the extent not included in the Closing Working Capital Balance;
(c) all books and records of the Asset Sellers to the extent relating to the Excluded Assets or Excluded Liabilities, including the corporate charter, related organizational documents and minute books and Returns of the Asset Sellers;
(d) all rights with respect to any Proceedings the Asset Sellers may have to the extent pertaining to the Excluded Liabilities or any of the Excluded Assets;
(e) except for assets leased by the Asset Sellers, all assets in possession of the Asset Sellers but owned by third parties;
(f) any Employee Plan and any other Plan maintained, sponsored or contributed to by Weatherford, the Asset Sellers or any of their respective ERISA Affiliates;
(g) the rights of any Asset Seller under this Agreement and under any Ancillary Agreement to which it is a party and the proceeds payable to the Asset Sellers pursuant to this Agreement;
(h) the real and tangible personal property listed in Schedule 1.2(h);
(i) the contracts set forth on Schedule 1.2(i) (the “Retained Contracts”);
(j) except for the equity or other ownership interests of the Target Companies, any and all equity or ownership interests in any entity, including stock, membership interests, partnership interests, joint venture interests, or other similar interests;
(k) the Owned Real Property set forth on Schedule 1.2(k);
(l) subject to Section 6.5(f)4.8, prior any trademarks, service marks, brand names or trade, corporate or business names of Weatherford or of any of Weatherf▇▇▇’▇ ▇▇▇▇▇▇▇tes or divisions, whether or not used in the Business;
(m) the accounts receivable, whether billed or unbilled, of the Asset Sellers, including those related to the ClosingBusiness, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact except to the Purchased Assets or the Business. After extent included in the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital Balance; and
(n) all other assets and properties not included within the Business Net Cash pursuant to Section 2.9 to have occurred as definition of 12:01 a.m. (New York time) on the Closing Date“Assets.”
Appears in 1 contract
Sources: Acquisition Agreement (Weatherford International PLC)
Excluded Assets. Notwithstanding anything contained in this Agreement to the contrary, the following assets, properties and rights will not be included in the Adaptive Assets (the "Excluded Assets"):
(a) Notwithstanding Adaptive's equity interests or investments in third parties, including its wholly-owned subsidiaries, Adaptive Broadband Foreign Sales Corporation, a Barbados, West Indies corporation and ABL (together with ABCL, collectively, the "Adaptive Subsidiaries"), but excluding CBL, Fuzion and ABCL;
(b) All avoidance actions against entities other than Purchaser, including under Sections 542-544 and 547-551 of the Bankruptcy Code and any provision amounts or other property received or receivable in this Agreementany such actions;
(c) All executory contracts and unexpired leases of Adaptive not being assumed and assigned to Purchaser;
(d) All accounts, Purchaser deposit accounts, security deposits, cash, investment securities or other cash equivalents held by Adaptive, the Adaptive Subsidiaries or third parties on behalf of Adaptive or the Adaptive Subsidiaries or in which Adaptive or the Adaptive Subsidiaries claim an interest, including any and all amounts held on behalf of deferred compensation or similar plans (except for the Purchaser Designated Affiliates are not purchasing or acquiring Pre-Paid Deposits listed in Section 1.1(i) hereof);
(e) All intercompany receivables and intercompany claims between Adaptive and any of Seller Parent’s the Adaptive Subsidiaries and amongst any of the Adaptive Subsidiaries;
(f) All insurance policies, insurance claims or its Affiliates’ insurance proceeds;
(g) All attorney-client privileged materials; files of employees; and other books and records, correspondence, files and computer programs and data not directly related to the Adaptive Assets (including the Conveyed ABL Assets) being sold to Purchaser;
(h) All claims against Adaptive's and the Adaptive Subsidiaries’ or their Subsidiaries’) right, title or interest in any assets, properties or rights other than the Purchased Assets (the “Excluded Assets”), including:' officers and directors including claims under directors' and officers' liability insurance;
(i) all assets constituting ownership interests inAll tort claims against third parties, except those directly relating to (i) the Adaptive Accounts Receivable, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1;
(ii) all Retained Real Property;
(iii) (A) the Retained Facilities, (A) Adaptive Intellectual Property and the ABL Intellectual Property such as any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) claims of infringement of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Adaptive Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such ABL Intellectual Property;
(viiij) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used All contract claims against third parties (except those claims relating to (i) the Adaptive Accounts Receivable or licensed by Seller Parent (ii) the Adaptive Intellectual Property or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net CashABL Intellectual Property);
(xik) all Tax refundsAll office supplies, Tax credits or equipment, furniture, fixtures, leasehold improvements, electronic and computer equipment required by Adaptive's employees in the principal U.S. office of Adaptive to continue to complete the Chapter 11 process;
(l) Such other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes assets as Purchaser shall expressly elect not to acquire, which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing such election must be made prior to the ClosingClosing Date;
(m) All license fees and prepaid amounts collected as of the Closing Date for goods, but excluding any refunds or credits or other Tax Assets to services and the extent reflected as an asset Adaptive Intellectual Property on the Final Closing Statement and taken into account Assumed Contracts (as defined in the calculation of (aSection 1.1(d) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculationhereto);
(xiin) all Seller Combined Tax Returns All tax refunds or reductions, net operating losses, letter of credit rights and payment intangibles (except to the extent included in Section 1.1(m) hereto);
(o) All intellectual property licenses of Adaptive or ABL to the extent determined by the Court that such licenses are nontransferable;
(p) All "employee benefit plans" (as such term is defined by Section 3(3) of the Employee Retirement Security Act of 1974, as amended ("ERISA")), "employee pension benefit plans" (as such term is defined by Section 3(2) of ERISA) and all Tax Returns of the Sellers other pension, profit sharing or cash or deferred compensation plans and trusts and assets thereof and any other employee benefit plan or arrangement thereof, if any, maintained by Adaptive, ABL or any of their Affiliates (the other than the Conveyed Adaptive Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any third party on behalf of its Affiliates (for clarityAdaptive, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement ABL or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1Adaptive Subsidiaries; and
(xx) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 1 contract
Excluded Assets. (a) Notwithstanding any other provision in of this AgreementAgreement to the contrary, Purchaser Seller shall retain ownership of and shall not hereby or otherwise sell or transfer, and the Purchaser Designated Affiliates are Assets shall not purchasing or acquiring any of Seller Parentinclude, the Seller’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or and interest in any in, to and under all of its assets, properties or and rights other than not specifically included in the Purchased Assets Assets, including the following (collectively, the “Excluded Assets”), including:):
(i) all assets constituting ownership interests inAll cash, or that are used or held for use incash equivalents, marketable securities and bank accounts of the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1Seller;
(ii) Other than the Transferred Permits, all Retained Real PropertyPermits of the Seller;
(iii) Other than the Acquired Contracts, all Contracts to which the Seller is a party;
(iv) Other than the Transferred Personal Property, all equipment and personal property of the Seller (including, for the avoidance of doubt, all injection molding machines, computer numerical control (CNC) machines and tool room equipment and tools);
(v) Other than the Transferred Inventory, all inventory and raw materials of the Seller;
(vi) Other than the Transferred Accounts Receivable, all accounts, notes and other receivables of the Seller;
(vii) Other than the Transferred Intellectual Property, all intellectual property rights of the Seller;
(viii) Other than the Transferred Prepaids, all prepaid deposits and prepaid expenses of the Seller;
(ix) Other than the Transferred Claims, all claims of the Seller against third parties;
(x) Other than the contractual rights afforded to Buyer under the Lease Agreement (as defined in Section 1.01(c)(iii)), all rights of the Seller in or to any real property owned or leased by the Seller;
(xi) All tax refunds and credits (whether by payment, credit, offset or otherwise);
(xii) All insurance policies issued to or for the benefit of the Seller or any of its affiliates, all proceeds therefrom and all rights, claims, credits or causes of action thereunder;
(xiii) The shares of stock or other ownership interests in the Seller;
(xiv) The corporate or company seal, minute books, stock books, blank share certificates, and other records relating to the corporate or other legal organization of the Seller and returns of Taxes (as defined below in Section 3.18) for Taxes accruing before the Closing Date
(xv) Other than the Specified Transferred Items, all computers, furniture and office and desk supplies;
(xvi) All (A) office phones and (B) personal computers used by any of the Retained Facilities, Transferred Employees;
(Axvii) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the BusinessAll warehouse racking and, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6Schedule 1.01(a)(xii), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
material handling equipment (xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliatese.g., and without limiting Seller Parent’s obligations under the Transition Services Agreementpallet jacks, forklifts, conveyor systems, shrink wrap devices, etc.);
(xviii) Except as set forth on Schedule 1.01(a)(xiii), all third-party warrantiescars, indemnities, further assurances trucks and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1vehicles;
(xix) all assetsAll compensation, properties incentive, retirement, stock or stock-based employee benefit or employment-related plans, policies, arrangements or agreements and rights in the assets of any Person that are not Related to the Businesssuch plans, including all assetspolicies, properties and rights constituting ownership interests in, arrangements or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1agreements; and
(xx) the assets set forth in Section 2.3(a)(xx) The rights which accrue to any of the Seller Disclosure Letter.
(b) Notwithstanding anything in Parties under this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing DateRelated Instrument.
Appears in 1 contract
Sources: Asset Purchase Agreement (Communications Systems Inc)
Excluded Assets. Notwithstanding anything in Section 2.1 or elsewhere in this Agreement to the contrary, the Purchased Assets shall not include any assets other than the assets specifically listed or described in Section 2.1, and any corresponding Schedules, and, without limiting the generality of the foregoing and for greater certainty, shall expressly exclude the following (collectively, "Excluded Assets"):
(a) Notwithstanding any provision cash and cash equivalents, all bank account balances and all ▇▇▇▇▇ cash;
(b) any Taxes, including duty drawbacks or duty refunds, and property Taxes, refundable to the Vendor or a Vendor Affiliate in connection with the Purchased Business in respect of transactions, or in respect of the period, prior to the Effective Time, and any refundable Taxes or Tax credits;
(c) subject to Section 5.20, any refunds due from, or payments due on, claims with the insurers of the Vendor or a Vendor Affiliate;
(d) the minute books and corporate records of each of the Vendor and the Vendor Affiliates;
(e) all Accounts Receivable;
(f) all books, documents, records and files prepared in connection with or relating to the transactions contemplated by this Agreement, Purchaser including bids received from other parties and analyses relating to the Purchased Assets, the Assumed Liabilities or the Purchased Business;
(g) other than as provided in the Transition Services Agreement, any rights of the Purchased Business to receive from the Vendor or a Vendor Affiliate corporate overhead and shared services, including treasury, corporate information services, corporate sales and account management, legal, tax, human resources, risk management, finance and group purchasing plans;
(h) all corporate, financial, taxation and other records of the Vendor and the Purchaser Designated Vendor Affiliates are not purchasing or acquiring any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any assets, properties or rights other than the Purchased Assets (the “Excluded Assets”), including:Business Information;
(i) rights in any real property, whether owned or leased, other than such rights relating to (i) the Leased Properties and (ii) the temporary co-location arrangements pursuant to the Premises License Agreement;
(j) except for the Transferred Equipment, all assets constituting ownership interests in, or other equipment that are is both (i) owned and (ii) used or held for use in, by the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1Vendor or any Vendor Affiliate and the leased furniture;
(iik) all Retained Real Property;
(iii) (A) the Retained Facilitiesextra-provincial, (A) any owned and leased furnituresales, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and excise or other tangible property located at the Retained Facilities licenses or not Related registrations issued to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used or held by the Transferred Employees Vendor and Vendor Affiliates, whether in respect of the Business, Purchased Business or otherwise;
(Al) any rights of the Information Systems Vendor and the Vendor Affiliates under this Agreement or any other Transaction Document;
(m) any and all Intellectual Property of Seller Parent the Vendor and its Subsidiaries, the Vendor Affiliates and any tangible embodiments of any such property other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Transferred Intellectual Property;
(viiin) any and all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to employee data other than the BusinessEmployee Information;
(ixo) all customer the books and vendor lists, all advertising, marketing, sales records that the Vendor and promotional materials, and business and financial records, books, and documents and other Recordsthe Vendor Affiliates are, in each case not Related the reasonable opinion of Vendor's counsel, required by Law to the Business, and the Specified Recordskeep;
(xp) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, Desktop Software and the Cash Equivalents included in the calculation of Final Business Net Cash)Application Software;
(xiq) all Tax refunds, Tax credits stock or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or equity interests in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1Person; and
(xxr) the other assets set forth and rights listed in Section 2.3(a)(xx) of the Seller Disclosure LetterSchedule 2.2(r).
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 1 contract
Excluded Assets. Notwithstanding anything in this Agreement to the contrary, except for the Purchased Assets, all other assets, properties or rights (including Contracts), wherever located, whether real, personal or mixed, tangible or intangible, of the Seller Entities, the Rexam Entities and each of their respective Affiliates (provided, however, that for purposes of this Section 1.2 (except Section 1.2(c), 1.2(d), 1.2(j), 1.2(m), 1.2(n), 1.2(o) and 1.2(p)), no Purchased Entity shall be considered an Affiliate of Seller, Rexam, or any of their other Affiliates that is not a Purchased Entity) (collectively, and including the assets listed below, the “Excluded Assets”) shall be retained by the Seller Entities, the Rexam Entities and each of their respective Affiliates, and shall be excluded from the Purchased Assets, including the Seller Entities’, the Rexam Entities’ and each of their respective Affiliates’ right, title and interest to, the following assets, properties and rights:
(a) Notwithstanding any provision and all cash and Cash Equivalents;
(b) any and all Accounts Receivable (other than Accounts Receivable of the Purchased Entities);
(c) the equity, equity participation, voting rights or other participations and interests in the entities listed on Schedule 1.2(c) held by the Purchased Entities as of the date of this Agreement (the “Excluded Entities”) and transferred to Seller, Rexam or one or more of their respective Affiliates that is not a Purchased Entity in accordance with the Restructuring Steps Plan;
(d) the assets owned by the Purchased Entities as of the date of this Agreement and to be transferred to Seller, Rexam or one or more of their respective Affiliates that is not a Purchased Entity in accordance with the Restructuring Steps Plan;
(e) (i) any and all Tax refunds and prepayments of Excluded Taxes and (ii) any net operating losses or other tax attributes of Seller or its Affiliates related to any Pre- Closing Tax Periods;
(f) any and all Tax Returns except as set forth in Section 1.1(b)(iii)(B);
(g) any and all Real Property other than the Business Real Property;
(h) any and all Business Permits and Environmental Permits except as set forth in Section 1.1(b)(vi) and any Permits other than Business Permits;
(i) any and all assets and rights related to Employee Benefit Plans (except as set forth in Section 1.1(b)(ix));
(j) except as set forth on Schedule 4.8, any and all insurance policies (including self-insurance arrangements) and all rights and proceeds thereunder, whether or not related to the Business;
(k) any and all credits, prepaid expenses, deferred charges, advance payments, security deposits, prepaid rent, prepaid items and duties;
(l) any (1) personnel records with respect to the Transferred Business Employees that Seller, Rexam or any of their Affiliates are required by Law to maintain in their possession and (2) Books and Records relating to any Purchased Asset or Assumed Liability that Seller, Rexam or any of their Affiliates are required by Law to maintain in their possession;
(m) all Excluded Fixtures, Equipment and Tangible Personal Property;
(n) any and all rights under (i) the Customer Contracts (or portions thereof) set forth on Schedule 1.2(n)(i), (ii) the Contracts (or portions thereof) set forth on Schedule 1.2(n)(ii), (iii) any Shared Contract (or portions thereof) which Seller or its Affiliates are to retain or receive, as described in Section 1.13, (iv) any other Contract with respect to Intellectual Property other than any Business IP License (the Contracts described under the foregoing clauses (i) – (iv) being the “Excluded Business Contracts”) and (v) any other Contract that is not a Specified Business Contract;
(o) any and all Seller and Rexam Marks, without limiting the license set forth in Section 4.9;
(p) any and all Intellectual Property other than Transferred Intellectual Property, without limiting the licenses set forth in Section 4.9 and Section 4.10;
(q) any and all rights to all causes of action, lawsuits, judgments, claims, defenses against third parties and demands of any nature (1) arising prior to the Closing Date, whether arising by way of counterclaim or otherwise, in each case whether or not related to the Business, the Purchased Assets (other than any of the foregoing held by the Purchased Entities) or the Assumed Liabilities and (2) arising on or after the Closing Date, other than as set forth in Section 1.1(b)(v);
(r) any and all guaranties, warranties, indemnities and similar rights (1) in respect of the Business or a Purchased Asset (other than any of the foregoing held by the Purchased Entities) for the period prior to the Closing Date and (2) arising on or after the Closing Date, other than as set forth in Section 1.1(b)(viii);
(s) all rights of Seller, Rexam or their Affiliates arising under this Agreement, Purchaser the Ancillary Agreements or from the consummation of the Transaction and the Purchaser Designated Affiliates are not purchasing consummation of the transactions contemplated by the Ancillary Agreements;
(t) the corporate charter, qualification to conduct business as a foreign corporation, arrangements with registered agents relating to foreign qualifications, taxpayer and other identification numbers, corporate seal, minute books, stock transfer books and blank stock certificates for any entity other than a Purchased Entity;
(u) any intercompany receivables between (i) any Seller Entity or acquiring Rexam Entity and any of their respective Affiliates, or between any such Affiliate and any other such Affiliate or (ii) any Purchased Entity and any Affiliate of a Seller Parent’s Entity or Rexam Entity; and
(v) any and all assets listed on Schedule 1.2(v). Seller and Purchaser acknowledge and agree that neither Purchaser nor any of its Affiliates’ (including the Conveyed Subsidiaries’ Affiliates will acquire or their Subsidiaries’) be permitted to retain hereunder any direct or indirect right, title or interest in any assets, properties or rights other than the Purchased Assets (the “Excluded Assets”), including:
(i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1;
(ii) all Retained Real Property;
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth provided in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 1 contract
Sources: Equity and Asset Purchase Agreement