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. 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 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. (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 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 anything in the Transaction Agreements to the contrary, any provision in assets which are not Transferred Assets shall not be Transferred to Purchaser or any of the Purchasing Subsidiaries pursuant to this Agreement, Purchaser and shall be retained by Seller and the Purchaser Designated Affiliates are not purchasing or acquiring any of Seller Parent’s or its Affiliates’ (Selling Subsidiaries, including the Conveyed Subsidiaries’ or their Subsidiaries’) rightfollowing (collectively, 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 any interests of Seller or any other Selling Company in, to or under any of its owned real property or any lease of real property or in, to or under any other interest in real property (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 provided in the Seller Disclosure Letter, Real Estate Agreements 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 (DSubsidiary Leases);
(ivb) 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 Excluded A/R 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 ;
(c) any interest of Seller Parent or any other Selling Company in any contract entered into prior to the applicable Closing Date providing for the provision of Customer Care Services to Seller or any of its Affiliates Subsidiaries;
(including the Conveyed Subsidiaries or d) all interests in any of their SubsidiariesShared Customer Care Split Contracts (that are not Customer Care Split Interests), Shared GPS Split Contracts (that are not GPS Split Interests) and Shared Other Contracts (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 Cashsubject to Section 5.01(e));
(xie) all Tax refundsIntellectual Property Rights other than Intellectual Property Rights conveyed pursuant to the IP Agreements;
(f) all rights, Tax claims, credits and causes of action of Seller or other Tax Assets any of the Sellers and other Selling Companies arising under or relating to any refund or credit against Seller Indemnified Taxes Transferred Asset to which Seller Parent is entitled pursuant the extent they relate to Section 6.5(c), whether or not derived from the Business and whether or not existing periods prior to the Closing, but excluding any refunds or credits or other Tax Assets applicable Closing Date (except 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 (they relate to the extent, with respect to clause (b), offsetting a Tax Liability in such calculationany Assumed Liabilities);
(xiig) all files, documents, books and records of Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other Selling Company, other than the Conveyed Subsidiaries Acquired Books and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating theretoRecords;
(xiiih) all claims, defenses, causes records prepared in connection with the Transfer of action, counterclaims the Transferred Assets and rights Assumed Liabilities and the negotiation 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 Transaction Agreements;
(xivi) all rights of Seller Parent and its Subsidiaries under this Agreement and the other Transaction Agreements;
(j) any equity interest or security in or of any of its Affiliates (for clarityPerson, other thanthan the Transferred Subsidiary Interests;
(k) except as otherwise specifically provided in the Employee Matters Agreement or in a Local Acquisition Agreement, from all the assets of and after all the assets relating to the Seller Benefit Plans and the Required Benefit Plans;
(l) any and all Tax assets, including any Tax refunds, credits or claims, attributable in each case to any Pre-Closing Tax Period (except to the extent they relate to any Assumed Liabilities); and
(m) all assets required by Seller and its Subsidiaries solely to provide the services to the Customer Care Business under the Transaction Agreements with respect to the Transferred Assets to be transferred in a Subsequent Closing, except to the Conveyed Subsidiaries extent that any such assets will be Transferred upon the expiration or termination of the applicable Transaction Agreement in accordance with the terms thereof. All intellectual property matters, including the Transfer or licensing of intellectual property constituting Transferred Assets and their Subsidiaries) under any representations and warranties relating thereto, are addressed exclusively in the IP Agreements (except for Article X to the extent it applies to matters addressed in the IP Agreements). Except as otherwise expressly provided in this Agreement or the Ancillary Agreements and other Transaction Agreements, neither Purchaser nor any documents delivered Purchasing Subsidiary shall have any proprietary or received in connection herewith other ownership interest 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 claim 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 relating to or underlying 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 BusinessTransferred Contract, 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 Letterintellectual property.
(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 Asset Purchase Agreement, Master Asset Purchase Agreement (Synnex Corp)
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 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 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. (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 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. 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. 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. (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. (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 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 anything contained in this AgreementSection 2.1 to the contrary, Purchaser Seller is not selling, and the Purchaser Designated Affiliates Buyer Parties are not purchasing or acquiring purchasing, 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 those specifically described in Section 2.1, and without limiting the Purchased Assets generality of the foregoing, the term “Transferred Assets” shall expressly exclude the following assets of Seller, all of which shall be retained by Seller (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 Parties’ cash and cash equivalents, checksaccounts receivable, money ordersdeferred charges and prepaid items, 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(o2.1(h);
(b) the Seller Parties’ corporate books and records of internal corporate proceedings, tax records, work papers and books and records, except as set forth in Section 2.1(j);
(c) all of the Seller Parties’ bank accounts;
(d) all accounting records (including records relating to Taxes) and subject internal reports relating to the business activities of the Seller Parties, except as set forth in Section 6.182.1(j);
(e) any interest in or right to any refund of Excluded Taxes relating to the Business, the Transferred Assets or the Assumed Liabilities for, or applicable to, any Pre-Closing Tax Period;
(f) all current Permits of the Seller Parties, including import and prior export licenses, except as set forth in Section 2.1(k);
(g) all rights of the Seller Parties with respect to Contracts that are not Assumed Contracts (including all Shared Contracts, except as set forth in Section 5.8(f) through (i)) (the “Excluded Contracts”);
(h) all rights of the Seller Parties with respect to the Patents other than the Transferred Patents (the “Excluded Patents”);
(i) all rights of the Seller Parties with respect to the Intellectual Property (other than Patents and Technology) other than the Transferred Intellectual Property (the “Excluded Intellectual Property”);
(j) all rights of the Seller Parties with respect to the Technology other than the Transferred Technology (the “Excluded Technology”);
(k) interests in real property other than pursuant to the Assumed Leases;
(l) any insurance policies and all rights rights, claims or causes of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveriesaction thereunder;
(xvim) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all any assets of relating to any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Employee Plan;
(xviin) all corporate-level services (but not the assets related rights, claims and causes of action relating to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent any Excluded Asset or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services AgreementExcluded Liability;
(xviiio) 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 Seller Parties under this Agreement 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 2.1Ancillary Agreements; and
(xxp) all confidential communications between Seller and its Affiliates, on the assets set forth in Section 2.3(a)(xxone hand, and DLA Piper LLP (US) (“DLA Piper”), on the other hand, relating to the Business or the Transferred Assets or arising out of or relating to the Seller Disclosure Letter.
(b) Notwithstanding anything in negotiation, execution or delivery of this Agreement to or the contrary but subject to Section 6.5(f)transactions contemplated hereby, prior to the Closingincluding any attendant attorney-client privilege, Seller Parent shall use commercially reasonable efforts to take (attorney work product protection, and expectation of client confidentiality applicable thereto, and including any information 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 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 DateDLA Piper in connection therewith.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Silicon Laboratories Inc.), Asset Purchase Agreement (Skyworks Solutions, 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. Each of Buyer and VS Holdco, on behalf of itself and each other Acquired Company, expressly understands and agrees that (ai) 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 and businesses of Parent and its Subsidiaries that are not included in the Transferred Assets and (ii) the following assets, properties and businesses of Parent and its Subsidiaries (regardless of whether they are owned, held or rights other than used in each case primarily in the Purchased Assets conduct of the Business) (the items in clauses (i) and (ii), the “Excluded Assets”), including) shall be excluded from the Transferred Assets:
(ia) 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 equity interests of 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 SubsidiariesPerson, other than the Business IT Systems Transferred Equity Interests and (A) the equity interests of any leases relating to the assets described in the foregoing clauses (B) through (D)Acquired Company;
(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 6.182.02(c), all current Cash of Parent and prior its Subsidiaries;
(c) all insurance policies of Parent and its Subsidiaries;
(d) all books, records, files and papers, whether in hard copy or computer format, prepared in connection with this Agreement or the transactions contemplated hereby and all minute books and corporate records of Parent and its Subsidiaries (the “Retained Records”);
(e) all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveriesParent arising under this Agreement or the transactions contemplated hereby;
(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;
(xviif) 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 Intellectual Property Rights owned by Seller Parent or any of its AffiliatesSubsidiaries that are not included in the Transferred IP, including all Retained Marks and without limiting Seller Parent’s obligations under the Transition Services AgreementIntellectual Property Rights set forth on Section 2.03(f) of the Parent Disclosure Schedule;
(xviiig) all third-party warrantiessubject to Section 5.01(b), indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased any Transferred Assets sold or otherwise disposed of in Section 2.1the ordinary course of business during the period from the date hereof until the Closing Date;
(xixh) all the 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 (sbusinesses set forth on Section 2.03(h) of Section 2.1the Parent Disclosure Schedule; and
(xxi) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure LetterExcluded Distribution Center Equipment.
(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: Transaction Agreement, Transaction Agreement (L Brands, Inc.)
Excluded Assets. (a) Notwithstanding any provision in this Agreementthe provisions of Section 2.1 hereof, 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 following assets, properties and rights, to the extent owned by or rights other than inuring to the Purchased Assets benefit of any one or more Sellers (collectively, the “Excluded Assets”)) are expressly excluded from the purchase and sale contemplated hereby and from the definition of the term “Purchased Assets” hereunder, including:
(i) all assets constituting ownership interests in, in each case whether or that are not related to or used or held for use inin connection with the Purchased Assets, the Retained BusinessesFreeport Facility or the Business:
(a) all Cash;
(b) all Accounts Receivable, other than those assets identified as Purchased the Accounts Receivable, if any, to be transferred by Goodyear Canada pursuant to Section 2.1(c) hereof, which will not constitute Excluded Assets, except for the portion thereof that constitute Excluded Assets in clauses (a) through (s) of under Section 2.16.16. hereof;
(iic) all Retained Real Propertyassets not owned by Sellers as of the Closing, including, without limitation, all raw materials held under consignment agreements or arrangements with third parties, all property owned by any third party and leased or held by any Seller under any of the Assumed Leases or Assumed Contracts (including, without limitation, the Nitrogen Storage Tank and all the equipment owned by TBC Corporation or Universal Cooperatives, Inc. or held under either of the Custom Label Contracts) in each case identified in Schedule 2.2(c) hereof;
(iiid) subject to the Trademark License Agreement, all of the Goodyear Names and Marks, including, without limitation, the Licensed Marks;
(e) all rights and obligations under any and all employee benefit plans of each Seller, including, without limitation, the Employee Benefit Plans, and all assets, records and vendor arrangements associated with any such plan, whether held by one or more Sellers, in trust or otherwise;
(f) all casualty, liability or other insurance policies owned by or obtained on behalf of any Seller and all claims or rights under any such insurance policies;
(g) any federal, state or local, or any foreign, claim, cause of action, right of recovery or refund with respect to any Tax including, without limitation, income Tax refunds, franchise Tax refunds, duty draw backs on export sales; sales and use Tax refunds; real property Tax refunds; and personal property Tax refunds (except in respect of any refunds of Taxes, in respect of and relating to periods following the Closing) and all other claims and rights in respect of the foregoing;
(h) other than the Owned Real Property, all owned real property, all leased real property and any other interest in real property along with all appurtenant rights, easements and privileges appertaining or relating thereto;
(i) (A) all of each Seller’s finished goods, work-in process inventories, raw materials, consumables and supplies that are not Inventories; and (B) any Inventories that constitute Excluded Assets under Section 2.1(a)(ii) hereof;
(j) all rights under the Retained FacilitiesContracts pertaining to the Purchased Assets or the Business listed on Schedule 2.2(j) or Schedule 6.15 hereto (collectively, the “Excluded Contracts”);
(k) subject to the Technology Agreement, all Intellectual Property, and all (i) inventions, whether or not patentable, whether or not reduced to practice or whether or not yet made the subject of a pending patent application or applications, (Aii) ideas and conceptions of potentially patentable subject matter, including, without limitation, any owned patent disclosures, whether or not reduced to practice and leased furniturewhether or not yet made the subject of a pending patent application or applications, equipment(iii) national (including the United States) and multinational statutory invention registrations, fixturespatents, machinerypatent registrations and patent applications (including all reissues, suppliesdivisions, spare partscontinuations, toolscontinuations-in-part, extensions and reexaminations) and all rights therein provided by multinational treaties or conventions and all improvements to the inventions disclosed in each such registration, patent or application, (iv) copyrights (registered or otherwise) and registrations and applications for registration thereof, and all rights therein provided by multinational treaties or conventions, (v) moral rights (including, without limitation, rights of paternity and integrity), and waivers of such rights by others, (vi) trade secrets and confidential, technical or business information (including ideas, formulas, compositions, inventions, and conceptions of inventions whether patentable or unpatentable and whether or not reduced to practice), (vii) whether or not confidential, technology (including know-how and show-how), manufacturing and production processes and techniques, research and development information, drawings, specifications, designs, plans, proposals, technical data, copyrightable works, financial, marketing and business data, pricing and cost information, business and marketing plans and customer and supplier lists and information, (viii) copies and tangible personal property embodiments of all the foregoing, in whatever form or medium and other tangible property (ix) rights to obtain and rights to apply for patents, and to register trademarks and copyrights;
(l) except in respect of the Assumed Leases, all leases in respect of any computer hardware or equipment located at the Retained Facilities Freeport Facility and listed on Schedule 2.2(l)(i), all computer hardware and leased equipment not located at the Freeport Facility, and, subject to the Software License Agreement, all computer software (located at or used on the computer equipment located at the Freeport Facility or otherwise), including, without limitation, source code, operating systems and specifications, applications and configurations, data, data bases, files, documentation and other materials related thereto, data and documentation, including, without limitation, those described on Schedule 2.2(l)(ii), and all licenses and sublicenses in respect of any such computer software, data and documentation as well as all Internet addresses, websites and URLs, including, without limitation, “w▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇”;
(m) all prepaid expenses, advances and deposits of each Seller, whether or not Related related to the Business, except as set forth on Section 2.1(d)(i)(B) and all rights of the each Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees under or in respect of the Businessthereof, (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)each case whether recorded or unrecorded;
(n) the automobile leases listed in Schedule 2.2(n) hereto, and the automobiles leased thereunder;
(o) all inter-company receivables and inter-company prepaid expenses of any Seller or any Affiliate, division or business sector or unit thereof, including the Business;
(p) all Contracts identified on Schedule 2.2(p)(ii) and all molds and all unique drums identified in Schedule 2.2(p)(iii) (each as defined in the Offtake Agreement), used or held for use by any Seller in connection with, the manufacture, distribution or sale of the categories of tires listed in Schedule 2.2(p)(i) hereto;
(q) all of the Books and Records (including all books of account and all supporting vouchers, invoices and other records and materials) of each Seller, (i) relating to any Taxes of such Seller (subject to the rights of Purchaser under Section 6.9 hereof), (ii) constituting personnel records, (subject to the rights of Purchaser under Article VII) corporate records, articles of incorporation, by-laws, minute books, stock or stock transfer records or other organizational documents or records of such Seller, (iii) which such Seller is required by Law to retain in its possession or (iv) which are subject to or protected by any privilege from disclosure under applicable Law;
(r) all legal telephone, telecopy and beneficial interest e-mail addresses and listings of each Seller;
(s) all claims, causes of action, choses in the share capital action, rights of recovery and rights to set off or equity interest compensation of any Person other than the Conveyed Subsidiaries kind (including rights under and their Subsidiaries)pursuant to all warranties, other than those equity interests set forth on Section 2.1(qrepresentations and guarantees made by suppliers) against third parties, but excluding all such assets (including rights under and pursuant to all warranties, representations and guarantees made by suppliers) relating to or arising out of the Seller Disclosure LetterPurchased Assets or the Business or related to any raw materials or contracts in respect thereof;
(t) all of each Seller’s rights under this Agreement and each of the agreements, documents and instruments contemplated to be executed or delivered hereunder or in connection herewith, including, without limitation, each of the Ancillary Agreements;
(u) all of each Seller’s assets not used in connection with the manufacture of Farm Tires at the Freeport Facility and not located at the Freeport Facility;
(v) all Shared Contracts of each Seller’s rights and assets under or related to any and all other Contractsagreements, sales orders, purchase orderscontracts, instruments and other commitments, obligations and and/or arrangements to which between such 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 utility service provider, including, without limitation, any provider of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IPelectricity, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement gas, water, sewerage, telephone 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) internet access services other than those identified as that relate to the Freeport Facility or that constitute Purchased Assets in under Section 2.1;
(xiv2.1(a)(vi) 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 2.1hereof; and
(xxw) the assets set forth in Section 2.3(a)(xx) all of the Seller Disclosure Letterother property and assets described on Schedule 2.2(w) 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.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Titan International Inc), Asset Purchase Agreement (Titan International 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 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 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. Notwithstanding the terms of Section 1.01 of this Agreement, Seller is not selling, transferring or assigning to Buyer any of its assets other than the Assets specifically described in Section 1.01 of this Agreement and Sections 1.01(a)-(j) of the Disclosure Memorandum ("Excluded Assets"). Without limiting the generality of the immediately preceding sentence, Seller is retaining all of 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 all assets, properties or rights other than the Purchased Assets (the “Excluded Assets”)if any, 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 listed in clauses (a) through (sSection 1.02(a) of Section 2.1the Disclosure Memorandum;
(iib) all Retained Real Property[Reserved];
(iii) (Ac) the Retained Facilitiesnames and marks "Hanco", (A) "Hanco Systems, Inc.," "▇▇▇▇▇▇" 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 name or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter▇▇▇▇ derived therefrom, and any personal computers all corporate certificates of authority, corporate minute books, tax returns, corporate records and vehicles the corporate stock record or register of Seller;
(d) such licenses, permits or other certificates of authority that are not primarily used by assignable or transferable or are not related to the Transferred Employees in respect of the Business, Assets;
(Ae) the Information Systems all rights of Seller Parent and its Subsidiariesto receive refunds, returns, reimbursements, credits or similar rights with respect to any Taxes, Excluded Assets or any other than the Business IT Systems and (A) any leases Retained Liabilities of Seller relating to the assets described in operation or ownership of the foregoing clauses (B) through (D)Business or Assets, whether arising on, prior to or after the Closing Date;
(ivf) all legal the EFT Services and beneficial interest in the share capital or equity interest Data Processing Services Agreement, dated as of any Person other than the Conveyed Subsidiaries (November 16, 1998, between Seller and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure LetterM&I Data Services;
(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;
(viig) 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 warehouse lease (the "Warehouse Lease") on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to warehouse space at ▇▇▇ 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▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ (the "Warehouse");
(xivh) all rights of Seller Parent Seller's catalogs, stationery and other materials bearing the Seller's name, tradenames, marks, logos or any images, and all of its Affiliates (for claritySeller's training manuals, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements tapes and any documents delivered other material that is used by Seller or received in connection herewith or therewithits affiliates outside the United States of America;
(xvi) except as set forth in Section 2.1(oall Contracts of Seller (including all independent sales representative and distributor Contracts) and subject not specifically conveyed to Buyer pursuant to Section 6.18, all current and prior insurance policies and all rights 1.01 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;
(xviiij) any payments from 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 of Hanco's rights to payment of any Person that are not Related interchange, residuals or other amounts ("collectively, "Residuals") with respect to all periods ending on the BusinessClosing Date from ▇▇▇▇, including all assetsM&I Data Services, properties a division of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ Corporation 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 2.1Money Access Service Inc. and their respective successors and assigns; and
(xxk) the assets set forth any books, records and other documents and information (whether in Section 2.3(a)(xxdocumentary, electronic or other form) of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement not relating to the contrary but subject to Section 6.5(f), prior to Assets and/or 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 DateAssumed Liabilities.
Appears in 1 contract
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. 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 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 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”), 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 shall be retained by the Seller Disclosure Letter, Entities and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, their Affiliates (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 Companies and their Subsidiaries), and shall be excluded from the Purchased Assets and transferred out of the Purchased Companies and their Subsidiaries prior to the Closing, notwithstanding any other than those equity interests provision of this Agreement:
(a) Except as set forth on in Section 2.1(q2.4(n) of or Section 5.7, any and all assets related to the Seller Disclosure LetterBenefit Plans;
(vb) all Shared Contracts Any and all other Contractsloans and advances, sales ordersif any, purchase orders, instruments and other commitments, obligations and arrangements by the Seller Entities to which Seller Parent or any of its their 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 otherwise to the Business;
(ixc) Any and all customer and vendor listsIntellectual Property, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to than the Business, Business Intellectual Property and the Specified Recordslicenses set forth in Section 5.16(a);
(xd) Any and all accounts receivable Contracts and portions of Contracts, other than the Specified Business Contracts and the Real Property Leases;
(e) Except as expressly included in clause (c) of Section 2.4, any and all owned and leased real property and other current assets interests in real property;
(f) Any and all cash Information Technology, other than the Business Information Technology;
(g) Any and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank all refunds or credits of or against Excluded Business Taxes;
(h) Tax Returns and other depositary accountsbooks and records related to Taxes paid or payable by Seller, certificates 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 Entities 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 respective Affiliates (other than the Conveyed Subsidiaries Purchased Companies 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) Any and all claims, defenses, causes of action, counterclaims and rights of set-off against third parties Cash Amounts (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified the Closing Cash Amounts and any Cash Amounts of the Purchased Ventures and their Subsidiaries as Purchased Assets in Section 2.1of immediately prior to the Closing);
(xivj) Except to the extent attributable to the Purchased Company Benefit Plans, any and all rights of Seller Parent insurance policies and binders and interests in insurance pools and programs and self-insurance arrangements whether or any of its Affiliates (not related to the Business, for clarityall periods before, other than, from through and after the Closing, the Conveyed Subsidiaries including any and their Subsidiaries) under this Agreement all refunds and credits due or the Ancillary Agreements to become due thereunder and any documents delivered or received in connection herewith or therewithand all claims, rights to make claims and rights to proceeds on any such insurance policies for all periods before, through and after the Closing;
(xvk) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies Any and all rights of any nature with respect theretoBusiness Permits, 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 2.1Transferred Permits; and
(xxl) 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 and all HomeLink Purchased Assets. The parties acknowledge and agree that neither Purchaser nor any of its Affiliates Subsidiaries will acquire or be permitted to take) such action as is necessaryretain hereunder 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 Agreement (Visteon Corp)
Excluded Assets. (a) Notwithstanding any provision in this Agreement, Purchaser It is expressly understood and agreed that the Purchaser Designated Affiliates are 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 following (each, an “Excluded Asset”):
(i) any assets, properties or rights other than the Purchased Assets (the “Excluded Assets”), including:
(iset forth on Schedule 1.1(b)(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 2.1attached hereto;
(ii) all Retained Real Propertyany equipment, machinery, vehicles, tools or other tangible personal property of Seller other than the Acquired Equipment;
(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 Product INDs and (A) the Product NDAs, any leases relating to the assets described in the foregoing clauses (B) through (D)licenses, permits or franchises issued by any federal, state, municipal or foreign authority;
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (Acquired Equipment, any management information systems, including hardware and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Lettersoftware;
(v) all Shared Contracts and all any shares of capital stock of, or other Contractsequity interests in, 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 Contractsentity;
(vi) all inventory (including all raw material inventorythe corporate charter, work-in-process inventoryqualifications to conduct business as a foreign corporation, spare parts inventory arrangements with registered agents relating to foreign qualifications, taxpayer and finished products inventory) other than identification numbers, seals, minute books, stock transfer books and other documents relating to the Inventory organization and any samples existence of ProductsSeller as a corporation;
(vii) the Retained Names and all any cash, cash equivalents or similar type investments, bank accounts, certificates of deposit, Treasury bills or 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 Propertymarketable securities;
(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 Contracts other than the BusinessAssigned Contracts (“Excluded Contracts”);
(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 real property or leasehold interest in each case not Related to the Business, and the Specified Recordsreal property;
(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 any patent or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (patent application other than to the accounts receivable and other assets, in each case extent included in the calculation of the Final Business Working CapitalTransferred IP, and the Cash Equivalents included in the calculation of Final Business Net Cash)including all rights to ▇▇▇ for past infringement thereof;
(xi) all Tax refunds, Tax credits any trademark registration or trademark registration application (together with the goodwill associated therewith) 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 than to the extent reflected as an asset on the Final Closing Statement and taken into account included in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (Transferred IP, including all rights to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation)▇▇▇ for past infringement thereof;
(xii) all Seller Combined Tax Returns and all Tax Returns any insurance policies 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 theretoSeller;
(xiii) all claims, defenses, causes of action, counterclaims and rights of setany personnel or other employment-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 2.1related records;
(xiv) all any 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 therewithother Transaction Document;
(xv) except as set forth any prepayments, deposits, or refunds of Taxes of Seller in Section 2.1(o) and subject connection with the Business or the Acquired Assets that are attributable solely 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 recoveriesTaxes paid during a Pre-Closing Tax Period;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) all Employee Benefit Plans and Section 6.6), all any trusts or other assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Planattributable thereto;
(xvii) all corporate-level services (but not the assets related accounts receivable arising prior 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;Closing; and
(xviii) all third-party warrantiesany actions, indemnitiesclaims, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assetscauses of action, properties and rights of any Person that are not Related to the Businessrecovery, 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, choses in each case other than those assets, properties action 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 arising before, on or after the Closing Date shall be deemed for purposes of calculating relating to the Business Working Capital and the Business Net Cash pursuant items referred to above in this Section 2.9 1.1(b) or to have occurred as of 12:01 a.m. (New York time) on the Closing Dateany Excluded Liabilities.
Appears in 1 contract
Sources: Asset Purchase Agreement (Kala Pharmaceuticals, 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. (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. (a) Notwithstanding any provision in this AgreementAnything to the contrary notwithstanding, Purchaser and the Purchaser Designated Affiliates are is not purchasing pursuant to this Agreement or acquiring any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) transactions contemplated hereby any right, title or interest in or to any other assets, properties or rights properties, rights, title and interests of the Seller and its affiliates (other than the Purchased Assets Properties), including, without limitation, any of the following (collectively, the “Excluded Assets”), including:):
(i) 1.2.1. 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, furnishings, machinery, suppliesautomobiles, trucks, spare parts, supplies, testing equipment, computer hardware (including servers and network infrastructure), tools, quality control equipment and gauges and other tangible personal property owned and/or used by the Seller or any of its affiliates, whether or not located in the Buildings or on the Land;
1.2.2. all inventory of the Seller and its affiliates, including any active pharmaceutical ingredient, other supplies, works-in-progress and finished goods inventory, whether or not located in the Buildings or on the Land;
1.2.3. all past, present, and future rights of the following types, which may exist or be created under the laws of any jurisdiction in the world: (i) rights associated with works of authorship, including exclusive exploitation rights, copyrights, moral rights, software, technical databases, and mask works; (ii) trademarks, service marks, trade dress, logos, trade names and other tangible source identifiers, domain names and URLs and similar rights and any goodwill associated therewith; (iii) rights associated with trade secrets, know how, inventions, invention disclosures, methods, processes, protocols, specifications, techniques and other forms of technology; (iv) patents and industrial property located at rights; (v) other proprietary rights in intellectual property of every kind and nature; (vi) rights of publicity; and (vii) all registrations, renewals, extensions, combinations, statutory invention registrations, provisional patent applications, continuation patent applications, continuations-in-part patent applications, divisional patent applications, international PCT applications, or reissues of, and applications for, any of the Retained Facilities rights referred to in clauses (i) through (vi) (whether or not Related in tangible form and including all tangible embodiments of any of the foregoing, such as samples, studies and summaries), along with all rights to prosecute and perfect the same through administrative prosecution, registration, recordation or other administrative proceeding, and all causes of action and rights to sue or seek other remedies, including post-grant review proceedings, arising from or relating to the Businessforegoing;
1.2.4. all permits, except as set forth on Section 2.1(d)(i)(Blicenses, approvals, registrations, submissions and authorizations made to, received from or issued by a governmental entity held by the Seller or any of its affiliates, other than the Approvals;
1.2.5. All (i) records and lists pertaining to the Business (defined below) of the Seller Disclosure Letterand its affiliates or to past, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect present or prospective customers, suppliers, distributors or personnel of the Business, (Aii) the Information Systems of Seller Parent past, present or prospective product, business and its Subsidiariesmarketing plans, other than the Business IT Systems sales literature and (A) any leases promotional literature relating to the assets described in the foregoing clauses Business, (Biii) through (D);
(iv) all legal books, ledgers, files, reports, plans, drawings and beneficial interest in the share capital or equity interest operating records of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of every kind maintained by 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 propertiesaffiliates in connection with the Business, assets or rights is subject(iv) corporate charters, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventorycorporate seal, work-in-process inventoryminute books, 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 otherwiseequity books, and including as set forth on Section 2.3(a)(vii) other documents relating to the incorporation, organization, maintenance and existence 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 affiliates as corporations or other Tax Assets of the Sellers legal entities; 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 (v) 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 theretoto the Business (including books and records relating to Taxes);
1.2.6. all goodwill and the going concern value of the business of the Seller and its affiliates (xiii) the “Business”), including Seller’s and its affiliates’ current business relationships and goodwill with customers and prospective customers and all operational know-how, service requirements, pricing and other information related to the development and maintenance of the Seller’s and its affiliates’ business relationships and all potential customer leads;
1.2.7. all claims, defenses, causes of action, counterclaims and choses in action, rights of set-off against third parties (at any time recovery for reimbursement, contribution, refunds, indemnity 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 similar payment recoverable by the Seller Parent or any of its Affiliates (for clarityaffiliates from or against any third party to the extent relating to any other Excluded Asset or the Business;
1.2.8. all insurance policies of the Seller or any of its affiliates;
1.2.9. all cash and cash equivalents of the Seller and its affiliates and any and all rights of the Seller and its affiliates in respect of current assets, prepaid expenses, credits, advance payments, claims, security, refunds, rights of recovery, rights of set off, rights of recoupment, deposits and other than, from and after similar items; and
1.2.10. all rights which accrue or will accrue to the Closing, the Conveyed Subsidiaries and their Subsidiaries) Seller or any of its affiliates under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
Master Lease (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 6.6defined below), 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 in this AgreementAll assets, Purchaser properties, rights, contracts and the Purchaser Designated Affiliates are not purchasing claims, wherever located, whether tangible or acquiring any intangible, real or personal, of Seller Parent’s or its Affiliates’ (including not included in the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any assets, properties or rights other than the Purchased definition of Acquired Assets (collectively, the “Excluded Assets”)) are retained by Seller, including:
(ia) All books and records not constituting Business Records, including Seller’s charter, bylaws and similar organizational documents, minutes, stock records and similar documents;
(b) Except for the Acquired Cash, all assets constituting ownership Cash or cash equivalents, including any marketable or other securities, and accrued interest, dividends or other earnings thereon, wherever located, deposits of, and any rights or interests in, or that are used or held for use inthe cash management system of Seller and its Affiliates, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1bank accounts and lockboxes;
(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 LetterAll goodwill generated by, and any personal computers associated with, Seller 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;
(ixd) 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 RecordsAll Accounts Receivable;
(xe) all accounts receivable All rights to 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 use 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 “▇▇▇▇▇▇ Rubbermaid” and “Calphalon” trade names and trademarks, any derivation or inchoatecombination thereof and all associated goodwill, known or unknown, contingent or non-contingent) and any other than those identified as Purchased Assets Intellectual Property not specifically described in Section 2.11.1(d);
(xivf) all All rights of Seller Parent or under (i) any of its Affiliates Contracts other than the Business Contracts and (for clarity, other than, from and after ii) 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 therewithContracts listed on Schedule 1.2(f);
(xvg) except All Contracts between Seller or any Affiliate of Seller, and all intercompany receivables owed to Seller by any Affiliate of Seller;
(h) Exhibit C of the Contract noted in Schedule 4.8 as “*Contract Partially Retained by Seller”;
(i) All assets used in connection with the centralized management functions provided by or to Seller, including SAP;
(j) All Employee Benefit Plans and any trusts, insurance arrangements or other assets held pursuant to, or set forth aside to fund the obligations of Seller under, any such Employee Benefit Plans, other than as provided in Section 2.1(o7.1;
(k) and subject to Section 6.18, all current and prior All insurance policies and all rights of Seller of every nature and description under or arising out of such insurance policies;
(l) All claims for and right to receive any nature with respect theretodeferred Tax asset or to receive any Tax refunds relating to the operation or ownership of the Business or the Acquired Assets for any Tax period (or portion thereof) ending on or prior to the Closing Date, including any refunds or rebates of anti-dumping, countervailing or other customs duties, tariffs or charges relating to the operation or ownership of the Business or the Acquired Assets prior to the Closing Date;
(m) All application systems and software, including all insurance recoveries thereunder computer software, programs and rights to assert claims with respect to any such insurance recoveriessource 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, except for those application systems and software items specifically listed on Schedule 1.1(i);
(xvin) except as expressly set forth Seller’s rights under this Agreement, the other agreements and instruments executed and delivered in connection with 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 AffiliatesAgreement, 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, transactions contemplated hereby 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 2.1thereby; and
(xxo) the assets set forth in Section 2.3(a)(xx) Any claims 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 related 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 DateAsset.
Appears in 1 contract
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 Seller and its Affiliates will retain all the Purchaser Designated rights, title and interest in and to, any and all assets of Seller and its 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 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 2.1Banking Centers;
(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 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 Real Property Leases and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) ATM Real Property Leases, all legal and beneficial interest in the share capital leases, subleases, licenses 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 pursuant to which Seller Parent or any of its Affiliates is a party leases, subleases or by which any of its or their properties, assets or rights is subject, in each case other than Assumed licenses real property;
(3) all Nonperforming Loans and Loans to Retained Employees;
(4) the Excluded Contracts;
(vi5) 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) employee benefit arrangements of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under including the Transition Services AgreementEmployee Plans;
(xviii6) all third-party warrantiesIntellectual Property of Seller and its Affiliates, indemnitiesincluding all right, further assurances title and similar covenants interest in and guarantees to all proprietary or licensed software, systems or programs or computer software agreements of Seller and its Affiliates, including any rights (ownership, licensed or otherwise) to any of the Seller Names and any other than Trademarks or logos of Seller or its Affiliates, including those identified as Purchased Assets in Section 2.1on Schedule 2.1(b)(6);
(xix7) all assetsbooks, properties records and rights of any Person other data that are not Related cannot, without unreasonable effort or expense, be separated from books and records maintained by Seller or its Affiliates in connection with the retained businesses or to the Businessextent that such books, including records and other data relate to Excluded Assets, Excluded Liabilities or Banking Center Employees who do not become Transferred Banking Center Employees, and all assetspersonnel files and records; provided that, properties to the extent permitted under, and rights constituting ownership interests inin accordance with, Section 7.1(b), Seller shall provide Purchaser with access to any such books, records and other data for which the above-referenced separation would cause Seller to incur unreasonable effort or that are used expense;
(8) all licenses, charters, and legal entities of Seller 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
(xx9) the assets set forth in Section 2.3(a)(xxlisted on and operations described on Schedule 2.1(b)(9) of (collectively, the Seller Disclosure Letter.“Additional Excluded Assets”); and
(b10) 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 Credit Card Accounts 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 DateReceivables.
Appears in 1 contract
Sources: Purchase and Assumption Agreement (Financial Institutions Inc)
Excluded Assets. (a) Notwithstanding any provision It is expressly understood and agreed that, notwithstanding anything to the contrary set forth in this AgreementAgreement or in any exhibit or schedule thereto, Purchaser and other than the Purchaser Designated Affiliates are Purchased Assets, Buyer is not purchasing or acquiring acquiring, and Seller is not selling or assigning, any other assets, rights, properties, claims, contracts and business of Seller Parent’s or its Affiliates’ (including that is not part of the Conveyed Subsidiaries’ or their Subsidiaries’) rightBusiness, title or interest in and that any assets, properties or rights other than rights, properties, claims, contracts and business of Seller, as listed below, shall be excluded from the Purchased Assets (the “Excluded Assets”), including:):
(i) all assets constituting ownership interests inany cash, cash equivalents, marketable securities or similar type investments, bank accounts, securities and brokerage accounts, certificates of deposit and checks (that are used or held is not for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) avoidance of Section 2.1doubt Closing Cash);
(ii) any and all Retained Real PropertyContracts, other than the Assumed 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 Subsidiariesall Intellectual Property, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D)Acquired IP;
(iv) all legal insurance policies and beneficial interest in all insurance proceeds received or receivable to the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiariesextent not purchased under 2.1(a)(xvii), 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 the rights that accrue or will accrue to which Seller Parent under this Agreement or any of its Affiliates is a party exhibit or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contractsschedule thereto;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory refunds or credits of Taxes and finished products inventory) other than the Inventory and any samples of ProductsTax assets;
(vii) the Retained Names all organizational documents, minute books, corporate seals, Tax records, books and all records 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) similar documents 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 of its Affiliates, other violation of any such Intellectual Propertythan books and records transferred to Buyer pursuant to Section 2.1(a)(a)(ix);
(viii) all Governmental Authorizationstangible personal property, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to other than the BusinessTangible Personal Property;
(ix) all customer owned and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents leased real property and other Recordsinterests in real property, in each case not Related to other than the Business, Yehud Real Property and the Specified RecordsReal Property Leases transferred pursuant to Section 2.1;
(x) all accounts receivable and securities or other current assets and all cash and cash equivalentsequity interests of any Person owned or held by the Seller, 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 assetsSubsidiary Shares and, in each case included in for the calculation avoidance of doubt, equity interests of any Person held or owned by the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash)Acquired Subsidiaries;
(xi) (i) all Tax refunds, Tax credits or other Tax Assets attorney-client privilege and attorney work-product protection of the Sellers and Seller as a result of legal counsel representing the Seller in connection with the transactions contemplated by this Agreement or any refund exhibit or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c)schedule thereto, whether or not derived from the Business and whether or not existing prior (ii) all documents subject to the Closing, but excluding any refunds attorney-client privilege or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account work-product protection described in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b)i) of this paragraph, offsetting a Tax Liability and (iii) all documents maintained by the Seller in such calculation);connection with the transactions contemplated by this Agreement or in any exhibit or schedule thereto; 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 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 setoff relating 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. or any Excluded Liabilities (New York time) on the Closing Date“Retained Claims”).
Appears in 1 contract
Sources: Share and Asset Purchase Agreement (Magal Security Systems LTD)
Excluded Assets. The Purchased Assets shall not include any assets other than the assets specifically listed or described in Section 2.1 and, without limiting the generality of the foregoing, shall expressly exclude the following assets (collectively, the "Excluded Assets"), which shall not be sold or transferred to Buyer:
(a) Notwithstanding any provision in this Agreement, Purchaser and shares of capital stock or other equity interests of the Purchaser Designated Affiliates are not purchasing or acquiring any of Seller Parent’s Company or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any assets, properties or rights Subsidiaries other than 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 2.1Transferred Subsidiaries;
(iib) all Retained Real Propertythe Company's and its Subsidiaries' qualifications to conduct business as a foreign corporation, arrangements with registered agents relating to foreign qualifications, taxpayer and other identification numbers, seals, minute books, stock transfer books and other documents relating to the organization, maintenance and existence of the Company as a corporation, in each such case other than such as relate exclusively to the Transferred Subsidiaries;
(iiic) (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) insurance policies 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 those held by the Business IT Systems and (A) any leases relating Transferred Subsidiaries, all to the assets described extent provided in the foregoing clauses (B) through (D)Insurance Claims Agreement;
(ivd) all legal tax returns and beneficial interest in tax books and tax records of the share capital or equity interest of any Person other than the Conveyed Subsidiaries (Company and their its Subsidiaries), other than those equity interests set forth on of the Transferred Subsidiaries;
(e) any and all rights in and to the Intellectual Property owned or used by the Company or its Subsidiaries which is either referred to in Section 2.1(q2.2(e) of the Seller Disclosure LetterLetter or does not constitute Business-Related Intellectual Property, except as licensed to Buyer or its Affiliates under the Ancillary Agreements;
(vf) all Shared Contracts any assets relating to Compensation and all other ContractsBenefit Plans, 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(o9.1(g) 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 recoveries9.1(h);
(xvig) except as expressly set forth in the Company's rights under 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 Ancillary Agreements;
(xviih) all corporateany cash, cash equivalents and short term investments (i) held by the Company or its Subsidiaries other than the Transferred Subsidiaries (other than Carter-level services Horner Inc.), and (but not ii) held by Carter-Horner Inc. in excess o▇ ▇▇▇ ▇▇▇▇▇▇-Horner Retained Cash Amou▇▇; ▇▇▇
(i) the assets related to such services to the extent such assets are Purchased Assetsref▇▇▇▇▇ ▇▇ ▇▇ ▇ection 2.2(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 2.1; 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 (Church & Dwight Co Inc /De/)
Excluded Assets. Except as set forth in Section 1.01(b), the Seller shall not sell, transfer, assign, convey or deliver to the Buyer (a) Notwithstanding or any provision in this Agreementdesignated advisory Subsidiary of the Buyer), Purchaser and the Purchaser Designated Affiliates are Buyer (nor any designated advisory Subsidiary of the Buyer) will not purchasing purchase or acquiring accept any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any assetsrights, properties or rights other than assets owned by the Purchased Assets Seller or its Affiliates (collectively the “Excluded Assets”), includingand all such Excluded Assets shall be retained by the Seller and its Affiliates, including any:
(i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, Intellectual Property other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1the Assigned Intellectual Property;
(ii) all Retained Real Propertycash and cash equivalents, securities, receivables and any other assets owned by the Seller or its Affiliates;
(iii) (A) the Retained Facilitiespersonal property, (A) real property and any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible rights under real or 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)leases;
(iv) rights, recoveries, refunds, counterclaims, rights to offset, choses in actions, rights under all legal warranties, representations and beneficial interest in the share capital guarantees made by suppliers of products, materials or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries)equipment or components thereof, other than those equity interests set forth on Section 2.1(qrights and claims (whether known or unknown, matured or unmatured, contingent or accrued) of against third parties, in each case relating to the Seller Disclosure LetterExcluded Assets or Excluded Liabilities;
(v) all Shared rights under any 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 the Assigned Contracts;; 114399-0014/143865664.11
(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 ProductsPermits;
(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 therewithAgreements;
(xvviii) 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 prepaid income 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) other Taxes of the type currently provided Seller and any income or other Tax refunds to which the Business by Seller Parent may be 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 2.1may become entitled; and
(xxix) any rights to the assets set forth in Section 2.3(a)(xx) of Seller’s or its Affiliates’ Organizational Documents, minute books, stock books, taxpayer identification numbers, Tax Returns and related work papers, Form ADVs and other corporate records (other than Business Records), as well as any attorney-client privileged communications, information or documents belonging to the Seller Disclosure Letteror its Affiliates.
(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 (Federated Investors Inc /Pa/)
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 Agreementanything to the contrary set forth herein, Purchaser and the Purchaser Designated Affiliates are Assets shall not purchasing or acquiring any of Seller Parent’s or its Affiliates’ (including include the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any following assets, properties and rights of the Sellers or rights other than the Purchased Assets their Affiliates (collectively, the “Excluded Assets”), including:):
(ia) all assets constituting ownership interests inand other rights with respect to the Seller Benefit Plans;
(b) any License that by its terms is not transferable to the Purchaser, including those indicated on Schedule 4.19 as not being transferable, 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 does 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 relate 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;
(ixc) all customer Receivables and vendor all Intercompany Debt;
(d) the charter documents of the Sellers and the minute books, stock ledgers, Tax Returns and taxpayer identification numbers, books of account and other constituent records relating to the corporate or other organization of the Sellers;
(e) the rights that accrue to the Sellers under this Agreement;
(f) any deposits, advances, pre-paid expenses and credits (other than the Business Deposits), any prepaid insurance, prepaid Taxes, cash, cash equivalents or marketable securities and all rights to any bank accounts of the Sellers;
(g) the Huntsman Name and all rights and licenses therein and all other trademarks, tradenames, service marks, service names, trade dress and logos referencing the names of the Sellers or their Affiliates or confusingly similar thereto, except as provided in Section 6.13;
(h) all assets, properties, goodwill and rights of the Sellers not primarily used in or associated with the Business;
(i) all media, whether paper or electronic (including electronic mail), containing information, files, correspondence (including correspondence with Governmental Entities), records (including records maintained pursuant to Environmental Laws), data, plans, reports, and recorded knowledge, including customer, supplier, price and mailing lists, all advertising, marketing, sales accounting and promotional materialsother books and records of the Sellers to the extent primarily relating to the Excluded Assets or the Retained Liabilities, and business any documents or information the disclosure of which would cause or result in the waiver of any attorney client or work product privileges of the Sellers and financial records, books, and documents and other Recordstheir Affiliates, in each case not Related except for any such documents or information that the Purchaser must possess in original form at a Site in order to comply with applicable Law (which shall be part of the Assets and transferred 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 SubsidiariesPurchaser) (other than collectively, the accounts receivable “Retained Books 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 CashRecords”);
(xij) all Tax refunds, Tax credits or other Tax Assets of the Sellers’ rights to causes of action, lawsuits, judgments, claims and demands of any nature, against any Person or Persons, for Losses suffered by the Sellers during the Sellers’ ownership or operation of the Assets prior to the Closing; provided, however, that such causes of action, lawsuits, judgments, claims and any refund demands shall not be considered Excluded Assets to the extent the same are necessary for the Purchaser to defend its title to, or credit against Seller Indemnified Taxes enforce or preserve its ownership or use rights with respect to, the Assets;
(k) all rights to which Seller Parent is entitled pursuant claims for insurance in respect of damage or claims arising or existing with respect to Section 6.5(c), whether or not derived from the Business and whether or not existing Assets prior to the Closing, but excluding except as provided for in Section 6.9 and except for any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account claims in respect of any Inventory included in the calculation determination of the Inventory Value pursuant to Section 3.4;
(al) the Final Business Working Capital any asset or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculationcontract specifically identified on Schedule 2.3(l);
(xiim) all Seller Combined Tax Returns assets and all Tax Returns of rights (including easement, leasehold, access and other rights and interests) retained by the Sellers or in 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 theretoSeller Ancillary Documents;
(xiiin) all claims, defenses, causes of action, counterclaims the properties and rights assets that shall have been transferred or disposed 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 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 therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and Sellers 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) Closing and not in violation 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 this Agreement;
(xviiio) the Excluded Software License Agreements, the Excluded Information Technology Hardware, the Seller Proprietary Software and all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets Intellectual Property used but not primarily used in Section 2.1the Business;
(xixp) 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, Seller Retained Easements;
(q) the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses Peru Site;
(ar) through the Excluded Computer Data;
(s) all of Section 2.1; andthe Sellers’ rights in and to any APAO Non-PPE Assets;
(xxt) all of the Sellers’ rights and any of their Affiliates’ rights under the Texaco Agreement other than the Assigned Indemnity; and (u) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure LetterStrategic Transaction Confidentiality Agreements.
(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 (Huntsman International LLC)
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. (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.
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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, properties, rights, contracts and claims of the Sellers or their Affiliates, wherever located, whether tangible or intangible, real, personal or mixed, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveriesthe make-ready center assets located at the Louisville Facility, 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.
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Excluded Assets. (a) Notwithstanding any provision in this Agreement, Purchaser Buyer expressly understands and agrees that all of the assets 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 Retained Subsidiaries other than the Purchased Transferred Assets shall remain the property of Seller or such Retained Subsidiaries (collectively, the “Excluded Assets”), includingwhich shall include the following:
(ia) 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 cash and cash equivalents on hand and in clauses (a) through (s) of Section 2.1banks;
(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 bank accounts 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 exclusively related to the Business;
(ixc) all customer and vendor listssubject to Section 5.06, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case insurance policies not Related exclusively related to the BusinessBusiness and all claims, and the Specified Recordscredits, causes of action or rights thereunder;
(xd) 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) real property (other than the accounts receivable Real Property), together with all buildings, fixtures and other assets, in each case included in the calculation of the Final Business Working Capitalimprovements erected thereon, and the Cash Equivalents included leases of, and other interests in the calculation of Final Business Net Cash)such real property;
(xie) 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 Intellectual Property Rights (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed LiabilitiesAssigned Intellectual Property Rights), 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 including the ▇▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1Trademarks and the ASCO Trademarks;
(xivf) all Software (other than the Assigned Software) (the “Excluded Software”);
(g) all IT Assets (other than the Assigned IT Assets) (the “Excluded IT Assets”);
(h) all books, records, files and papers, whether in hard copy or electronic format, prepared in connection with this Agreement, the other Transaction Documents or the announced spinoff of the Business from Seller or the transactions contemplated #88639600v31 hereby or thereby, all minute books and corporate records of Seller and the Retained Subsidiaries, and Information to the extent not included within Transferred Assets;
(i) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, Retained Subsidiaries arising under the Conveyed Subsidiaries and their Subsidiaries) under this Agreement Transaction Documents or the Ancillary Agreements and any documents delivered or received in connection herewith or therewithtransactions contemplated thereby;
(xvj) all assets of the Business Benefit Plans (other than the Transferred Subsidiary Benefit Plans and the Assumed Plans as provided in Section 2.02(p)), except as set forth otherwise expressly provided 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 recoveriesArticle 9;
(xvik) except as expressly set forth in this Agreement the personnel records (including Section 2.1(pall human resources and other records) and Section 6.6), all assets of any Seller Group Plan or Foreign a Retained Subsidiary relating to employees of Seller Group Plan that is not a Conveyed Subsidiary Planor such Retained Subsidiary;
(xviil) any Existing Litigation Right;
(m) all corporate-level services hedging or swap contracts, agreements or similar arrangements (but not the assets related to such services contracts, 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 relating primarily to the Business, including all assetsthe “Hedging Contracts”);
(n) the Master Supply Agreements listed in Section 2.03(n) of the Disclosure Schedule (such contracts, properties agreements and rights constituting ownership interests in, or that are used or held for use in, or related toobligations collectively, the Retained Businesses“Master Supply Agreements”);
(o) all Tax Assets, as well as any rights to Tax refunds or credits in each case respect of Tax overpayments;
(p) all equity interests of Seller in entities other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1the Transferred Subsidiaries; and
(xxq) the other property and assets set forth described in Section 2.3(a)(xx2.03(q) 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 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 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. The Weider Assets shall not include (aand Sellers shall retain all rights in) Notwithstanding any provision in this Agreement, Purchaser and the Purchaser Designated Affiliates are not purchasing or acquiring any 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 Sellers other than the Purchased Weider Assets (the “Excluded Assets”). Without limiting the generality of the foregoing, includingthe Excluded Assets shall include, and Buyer acknowledges that there shall be excluded from the Weider Assets, 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 Sellers’ and their subsidiaries’ (sexcluding the International Subsidiaries) of Section 2.1;
(ii) all Retained Real Property;
(iii) (A) the Retained Facilitiescorporate books and records, (A) any owned and leased furnituretax records, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property work papers 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, books 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 Subsidiariesrecords, other than the Business IT Systems Weider Books and Records;
(Ab) any leases relating Weider Books and Records that Sellers are required by Applicable Laws to retain;
(c) all human resources and other employee-related files and records related to non-Weider Employees and, to the assets described in extent required by Applicable Law, Weider Employees;
(d) all software, software systems, databases and database systems, whether owned, leased or licensed by Sellers except those listed on Schedule 2.2(b) (excluding those owned exclusively by the foregoing clauses (B) through (DInternational Subsidiaries);
(ive) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries)computers, other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contractsprinters, sales ordersphotocopiers, purchase orders, instruments and other commitments, obligations and arrangements to which similar tangible personal property owned by any 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 except those listed 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 SubsidiariesSchedule 2.2(j) (other than excluding those owned exclusively by 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 CashInternational Subsidiaries);
(xif) all Tax refunds, Tax credits any insurance policies of Sellers or other Tax Assets of its Subsidiaries (excluding the Sellers and any refund International Subsidiaries) or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether rights thereunder 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)proceeds thereof;
(xiig) all Seller Combined Tax Returns guarantees, warranties, indemnities and all Tax Returns similar rights in favor of the Sellers or any of their Affiliates to the extent relating to (i) any other Excluded Asset, (ii) any Excluded Liability or (iii) any matter to the extent Sellers indemnify Buyer pursuant to Article X hereof;
(h) any interest in or right to any refund of Taxes of Sellers or their subsidiaries for any period, and any interest in or right to any refund of Taxes relating to the Weider Assets (other than refunds of Taxes to any International Subsidiary), the Conveyed Subsidiaries and their SubsidiariesWeider Branded Business or the Weider Liabilities for, or applicable to, any taxable period (or portion thereof) that do not relate solely ending on or prior to Purchased Assets or Assumed Liabilities, and in each case any books and records relating theretothe Effective Date (a “Pre-Effective Tax Period”);
(xiiii) all claims, defenses, causes any other assets 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 2.1Sellers listed on Schedule 2.3(i);
(xivj) all rights of Seller Parent or any of its Affiliates Contracts listed on Schedule 2.3(j) (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“Excluded Contracts”), 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
(xxk) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement all intellectual property rights not related exclusively to the contrary but subject Weider Branded Business, including, without limitation, related to Section 6.5(f)Sellers’ Schiff, prior to the ClosingTiger’s Milk, 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 Multipower 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 DateMultaben branded products.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Weider Nutrition International Inc)
Excluded Assets. (a) Notwithstanding any provision in this AgreementSection 2.1, Purchaser ▇▇▇▇▇ 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 other assets and properties or rights other than shall be excluded from the Purchased Assets (the “Excluded Assets”). Excluded Assets include, includingwithout limitation the following assets, properties and rights 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;
(b) all accounts receivable by the Seller Parties up to and prior to the Closing Date;
(c) all Contracts other than the Assumed Contracts (collectively, money ordersthe “Excluded Contracts”);
(d) the seals, marketable securitiesOrganizational Documents, short-term instrumentsminute books, bank stock record books, Tax Returns, books of account or other records having to do with the corporate organization of the Seller Parties, and any other depositary accountsbooks and records that the Seller Parties are prohibited from disclosing or transferring to Buyer under applicable Law and are required by applicable Law to retain;
(e) all insurance policies of the Seller Parties and all rights to applicable claims, certificates proceeds, and refunds thereunder;
(f) all Tax assets (including duty and Tax refunds and prepayments) of depositthe Seller Parties;
(g) all intercompany receivables or Debt owed to a Seller Party by any of its Affiliates;
(h) the Licensed Intellectual Property, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits all Intellectual Property owned or similar accounts of Seller used by Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other Seller Parties other than the accounts receivable and other Purchased Intellectual Property Assets;
(i) the rights which accrue or will accrue to the Seller Parties under any of the Transaction Documents;
(j) all assets, in each case properties, claims and rights (of every kind, nature, character and description, whether real, personal or mixed, tangible or intangible, accrued, contingent or otherwise, regardless of whether reflected on the books of Parent) that are not related to the Purchased Assets;
(k) any fixed assets, leases or premises;
(l) all other assets not expressly included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);Purchased Assets; 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 (am) 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 specifically set forth in Section 2.3(a)(xx) of the Seller Disclosure Letteron Schedule 2.2(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: Asset Purchase Agreement (Wd 40 Co)
Excluded Assets. Subject to the provisions herein, the assets listed in this Section 1.2 are being retained by the Seller Parties (the "Excluded Assets"):
(a) Notwithstanding any provision all of the Seller Parties' accounts receivable, cash, commercial paper and cash equivalents, on hand or in this Agreementbank accounts, Purchaser including, without limitation, all accounts receivable and tax refunds whether or not relating to or arising out of the Purchaser Designated Affiliates are not purchasing or acquiring any operation 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 Business (the “Excluded Assets”"Receivables"), 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 (a) through (s) of Section 2.1Receivables listed on SCHEDULE 1.2(A);
(ii) all Retained Real Property;
(iii) (A) the Retained Facilities, (Ab) any owned and leased furniture, equipment, all fixtures, machinery, suppliesinstallations, equipment, furniture, tools, spare parts, toolssupplies, tangible materials, molds, dies and other 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 Parties 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 related to the Business;
(ixc) all customer corporate minute books, stock records, tax returns, financial records (including, without limitation, checkbooks, books of original entry and vendor listsbank statements) and supporting materials of the Seller Parties not related to the Business for all periods, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related of which shall be subject to the Business, Buyer's right to inspect and the Specified Recordscopy;
(xd) all accounts receivable insurance policies, including, without limitation, all refunds of unearned insurance premiums and other current assets claims and rights to payments under such policies;
(e) all cash claims, causes of and cash equivalentschoses in action of any sort that Seller Parties may have, checksincluding, money orderswithout limitation, 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 under any of its Affiliates (including the Conveyed Subsidiaries or Seller Parties' insurance policies, against any of their Subsidiaries) (other than the accounts receivable and other assetsofficers, in each case included in the calculation directors and/or shareholders of any of the Final Business Working CapitalSeller Parties and/or the parents, spouses and lineal descendants of any such persons;
(f) rights of set-off, counterclaim and/or recoupment respecting any liabilities or obligations of the Cash Equivalents Seller Parties not included in within the calculation of Final Business Net CashAssumed Liabilities (as hereinafter defined);
(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 (ag) the Final Business Working Capital or Consideration (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculationas hereinafter defined);
(xiih) 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;leased assets; and
(xiiii) 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 inventories of any nature with respect theretokind whatsoever (including, including all insurance recoveries thereunder without limitation, materials, work-in-process, finished goods 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 6.6supplies), all assets regardless of any Seller Group Plan or Foreign Seller Group Plan that is location, 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 relating to the Business, including the Excluded Fabric Inventory (the "Excluded Inventory");
(j) all assetsproceeds, properties products, income, payments and rights constituting ownership interests indistributions arising from or relating to any Excluded Assets;
(k) credit support, or credit enhancement, and other supporting obligations that are used or held for use in, or related to, have been provided by third parties with respect 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 2.1Excluded Assets; and
(xxl) the assets set forth in Section 2.3(a)(xx) rights and causes 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 against account debtors 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 2.3obligors, including the return interest and fees payable, in respect of any Receivable or any other 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.
Appears in 1 contract
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.
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Excluded Assets. (a) Notwithstanding any provision in this Agreementanything herein to the contrary, Purchaser 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 interest in any following assets, properties or and rights other than the Purchased Assets of Seller (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 FacilitiesCash, (A) any owned and leased furniturebank accounts, equipmentsecurities, 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 assets of any such Seller, except for assets associated with Country Stampede and the Country Stampede Intellectual Property;
(viiib) all Governmental AuthorizationsThe logo, including product registrationstradenames, manufacturing registrations trademarks, service marks, corporate names, and environmental permits, owned, used Internet domain names containing or licensed by Seller Parent or any consisting of its Affiliates the words JC Entertainment and not Related specifically relating to the BusinessCountry Stampede Intellectual Property;
(ixc) all customer and vendor listsAll Contracts, all advertisingleases, marketing, sales and promotional materials, and business and financial records, books, and documents licenses and other Records, in each case not Related agreements to the Business, and the Specified Recordswhich Seller is a party unless specifically assumed herein with regard to Purchased Assets;
(xd) all accounts receivable and other current assets and all cash and cash equivalentsAll inventories, checkshardware, money orderssupplies, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds work 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 Capitalprocess, and the Cash Equivalents included in the calculation of Final Business Net Cash)finished goods not relating to Purchased Assets;
(xie) all Tax refundsThe financial records of Seller, Tax credits or except as expressly included herein pertaining to the Purchased Assets;
(f) All hardware, software, intellectual property, and other Tax Assets business property of Seller exclusively relating to JC Entertainment and not used exclusively in conjunction with the Sellers Purchased Assets, and any refund or credit against other property of Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c)not utilized in connection with the Purchased Assets not specifically defined in Article 2, whether or not derived from the Business such property is reflected on Seller’s books 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)records;
(xiig) all Seller Combined Tax Returns and all Tax Returns The organizational documents of the Sellers or any of their Affiliates (other than Seller, including the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilitiesminute books, ownership ledgers, and in each case any books and other constituent records relating theretoto the organization of the Seller;
(xiiih) The name, logo, and any tradenames, trademarks, service marks, corporate names, and Internet domain names of any and all claims, defenses, causes other assets of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether C▇▇▇▇▇▇▇▇▇▇ 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 clarityentity in which C▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ is a member/shareholder/owner, 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 exclusively 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
(xxi) Personal property, mementos, gifts, or the assets set forth in Section 2.3(a)(xx) like given to any owner, officer, employee, or agent of JC Entertainment relating to the Seller Disclosure LetterPurchased Assets, or any artist who performed over the years.
(bj) Notwithstanding anything in this Agreement Contracts not assigned to the contrary but subject to Section 6.5(f)Buyer, 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 considerationwhich will be cancelled by Seller, 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) set forth on the Closing DateSchedule 8(c).
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 Sellers shall retain their Subsidiaries’) right, title or and interest to, in any and under the following assets, properties or and rights other than of the Purchased Assets Sellers (such assets to be retained by Sellers, 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 ITAR-Controlled Assets;
(ii) all Retained Real PropertyIntellectual Property Rights exclusively developed under the DOD/Security Contracts or the Other USG Contracts or provided to Sellers exclusively in connection with the performance of the DOD/Security Contracts or the Other USG Contracts (the “Excluded IP”) (the parties will agree on the list of Intellectual Property Rights that constitute Excluded IP within three (3) Business Days of the date of this Agreement);
(iii) the Excluded Leases (A) including 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▇▇▇ Arbor Lease);
(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 in Section 2.1(q) 2.1(a)(xvii), all avoidance claims or causes of action available to the Sellers under chapter 5 of title 11, including Sections 544, 545, 547, 548, 549, 550 and 553 of the Seller Disclosure LetterBankruptcy Code;
(v) all Shared the Excluded Agreements (including the DOD/Security Contracts and the Other USG Contracts) and any 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 thereunder (other than Assumed Contractsaccounts receivable);
(vi) all inventory (including all raw material inventoryInventory, work-in-process inventoryEquipment and other personal property located as of the Closing Date at the Sellers’ research and development facilities in Ann Arbor, spare parts inventory and finished products inventory) Michigan, other than personal computers of the Inventory Powder R&D Team and any samples of Productsall laboratory Equipment primarily used by the Powder R&D Team and all other Inventory, Equipment and other personal property exclusively used by the Government Research Team and Government Solutions Team;
(vii) such other facilities and assets that may be identified through the Retained Names parties’ additional engagement with the Committee on Foreign Investment in the United States as being integral to the operations and all other Intellectual Property business of the Government Research Team and Government Solutions Team or the performance of the DOD/Security Contracts and Other USG Contracts; provided however, that is no facility or asset shall be included in the definition of “Excluded Assets” pursuant to this clause (vii), unless Purchaser consents to such inclusion, which consent may not Business IP, including be unreasonably withheld or delayed unless such Intellectual Property licensed inclusion would reasonably be expected to materially and adversely affect the expected economic or commercial benefits to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of arising from 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 Propertytransactions contemplated hereby;
(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 prepaid Property Tax with respect to the BusinessPurchased Assets that are attributable to Pre-Closing Tax Periods, and any refund of Excluded Taxes (for the avoidance of doubt, other than any refund of Property Taxes to which the Purchasers are entitled pursuant to Section 7.4(c));
(ix) all customer except for any security deposits made in respect of any Assumed Leases and vendor listsany prepaid amounts that are a Purchased Asset, 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, including checks, money orderscommercial paper, marketable securities, short-term instruments, bank and other depositary accountstreasury bills, certificates of deposit, time deposit and other bank deposits, negotiable instrumentssecurities, securities entitlements, instruments and brokerage other investments and all bank accounts and securities accounts, funds in time including any cash collateral that is collateralizing any letters of credit and demand deposits or similar all bank accounts of Seller Parent or any of its Affiliates the Sellers;
(including the Conveyed Subsidiaries or any of their Subsidiariesx) (other than the accounts receivable Foreign Equity Interests and stock or other assetsequity interests in Fisker Automotive, Inc. or 24M Technologies, Inc., any capital stock, securities or other interest of any Seller held 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)any Person;
(xi) all Tax rights, claims, actions, refunds, Tax credits causes of action, choses in action, actions, suits or proceedings, rights of recovery, rights of setoff, rights of recoupment, rights of indemnity or contribution and other Tax Assets similar rights (known and unknown, matured and unmatured, accrued or contingent, regardless of the Sellers whether such rights are currently exercisable) against any Person, including all warranties, representations, guarantees, indemnities and any refund other contractual claims (express, implied or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(cotherwise), whether or not derived from the Business and whether or not existing prior to the Closingin each case, 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 (related to the extentassets, with respect to clause (b), offsetting a Tax Liability rights and properties set forth in such calculation)this Section 2.2(a) or the Excluded Liabilities;
(xii) all Seller Combined Tax Returns prepayments made with regard to insurance policies not assumed by Purchasers and all Tax Returns of security deposits, pre-paid expenses or prepayments to the Sellers extent made in connection with any Excluded Asset 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 theretoExcluded Liability;
(xiii) Sellers’ rights under this Agreement and under any other Transaction Document and all claims, defenses, causes of action, counterclaims 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 2.1cash consideration payable or deliverable to or for the account of any Seller by Purchaser pursuant and subject to the terms and provisions of this Agreement or any Ancillary Agreement;
(xiv) all rights the assets of Seller Parent any Foreign Benefit Plan or U.S. Benefit Plan not assumed by 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;Purchaser; and
(xv) except as set forth in Section 2.1(oRetained Books and Records; provided that Sellers shall provide, at the Seller’s cost and expense, Purchasers with a copy (and shall allow Purchasers to make a copy) 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 Retained Books 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 Records that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets are related to such services to the extent such assets are Purchased Assets, the Assumed Liabilities or the Sellers’ Business or the Joint Venture (other than the Retained Books and Records described in clause (D) of the type currently provided to the Business by Seller Parent or any definition of its Affiliates, Retained 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 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 LetterRecords).
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f)contrary, Wanxiang may, in its sole and absolute discretion, at any time on or prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause date that is 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 Business Day before the Closing Date, elect not to acquire any of the Parties shall continue to use commercially reasonable efforts to take all actions (assets, properties 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 rights of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date Seller, and any asset so designated by Wanxiang shall be deemed an Excluded Asset for all purposes of calculating the Business Working Capital hereunder; provided, however, that with respect to Contracts and the Business Net Cash pursuant to Leases, such designation shall be made in accordance with Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date2.9.
Appears in 1 contract
Sources: Asset Purchase Agreement
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 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 any of Sellers in or to any assetsof the following (collectively, 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 equivalentsequivalents of Sellers, 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 ▇▇Restaurant P▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1Cash and Large Party Deposits;
(xivb) all rights any bank accounts 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;
(xvc) except the Purchase Price and Sellers’ rights under this Agreement;
(d) any Excluded Contracts, including any refund, rebate, credit or payment due to Sellers thereunder;
(e) any Claims, other than (i) as set forth in Section 2.1(o1.1(j) and subject to Section 6.181.1(l), 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 (ii) those arising post-Closing with respect to or in connection with any such insurance recoveriesPurchased Asset;
(xvif) except as expressly set forth in this Agreement all securities, whether capital stock or debt, and other ownership interests issued by any of Sellers;
(including Section 2.1(pg) and Section 6.6), all assets of any Section 401(k) or other Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Planbenefit plan;
(xviih) 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 intercompany claims by any Seller Parent against any other Seller or any Subsidiary or other Affiliate of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreementany Seller;
(xviiii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in any item expressly excluded pursuant to the provisions of Section 2.11.1 above;
(xixj) all assets[Intentionally Omitted]
(k) any premium refunds (including, properties and rights of without limitation, for 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 (sprepaid premiums) of Section 2.1Sellers arising from their insurance policies on account of reduction in workforce, liability coverage, and the like; and
(xxl) the assets set forth except only as provided in Section 2.3(a)(xxSections 1.1(f) and 1.1(l), all rights and Claims to deposits (including, without limitation, any cash collateral for any obligation of Sellers and all Post-Petition deposits made by Sellers), credits, prepaid amounts (including, without limitation, as to Taxes), refunds, reimbursements, vendor and other rebates, set-offs and similar rights and claims of Sellers, including, without limitation, any of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement foregoing relating 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 Contract 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 DateContracts.
Appears in 1 contract
Sources: Asset Purchase Agreement (ONE Group Hospitality, Inc.)
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.
Appears in 1 contract
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.
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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. (a) Notwithstanding any provision anything to the contrary set forth in Section 2.1 or elsewhere in this Agreement, Purchaser Seller and the Purchaser Designated Affiliates are SYC shall not purchasing or acquiring (and shall not cause any of Seller Parent’s their respective Subsidiaries) sell, transfer, convey, assign and deliver to Buyer or any of its Affiliates’ Subsidiaries any assets, properties and rights of Seller, SYC or any of their respective Subsidiaries other than the Transferred Assets, and Buyer shall not purchase (including the Conveyed Subsidiaries’ or cause any of its Subsidiaries to purchase) from Seller, SYC or any of their Subsidiaries’) right, title or interest in respective Subsidiaries any assets, properties or rights of Seller, SYC or any of their respective Subsidiaries other than the Purchased Transferred Assets. Without limiting the generality of the foregoing, for all purposes of and under this Agreement, “Transferred Assets” shall not include any assets, properties or rights of Seller or any of its Subsidiaries other than the Transferred Assets (each, an “Excluded Asset” and collectively, the “Excluded Assets”), including:
(i) all assets constituting ownership interests inand shall expressly exclude the following, in each case whether or that are not used or held for use in, necessary for or that primarily relate to the Retained Businesses, other than those assets identified as Purchased Assets in clauses Business:
(a) through (s) all Equity Interests and the corporate charter and bylaws, qualifications to transact business as a foreign corporation, arrangements with registered agents relating to foreign qualifications, taxpayer and other identification numbers, seals, minute books, stock transfer books, records and ledgers, blank stock certificates and other documents relating to organization, maintenance and existence of Section 2.1any Subsidiaries of Seller;
(ii) all Retained Real Property;
(iii) (Ab) 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 identified 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 2.2(b);
(ivc) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their SubsidiariesRegistered Intellectual Property identified on Schedule 2.2(c), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(vd) 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, interests in each case real property other than Assumed Contractspursuant to the Montreal Sublease;
(vie) 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 ProductsContracts identified on Schedule 2.2(e);
(viif) 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 Permits identified 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 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 Businessinsurance policies;
(ixh) the claims, actions, causes of action, choses in action, rights of recovery, rights of setoff, rights of recoupment and rights of indemnification identified in Schedule 2.2(h), as well as all customer claims, actions, causes of action, choses in action, rights of recovery, rights of setoff, rights of recoupment 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 rights of indemnification that directly relate to the Business, and the Specified Recordsor arise out of any Excluded Assets or Excluded Liabilities;
(xi) the books, records, ledgers, files, documents and correspondence, all customer, supplier, advertiser, circulation and other lists (including subscriber lists), all invoices and sales data, and all studies, reports and other printed or written materials or data identified in Schedule 2.2(i);
(j) all accounts receivable assets of and other current assets and rights under any Seller Employee Benefit Plans;
(k) 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);
(xil) 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);for Taxes; 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 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 ClosingSYC under this Agreement, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Related Agreements and any documents other agreements, contracts, certificates or instruments executed and delivered by Seller or received SYC 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 2.1transactions contemplated hereby; and
(xxn) the other assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letteridentified on Schedule 2.2(n).
(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 Agreementthe provisions of Section 2.2.1, 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’) Buyer shall acquire no right, title or interest in any Excluded Asset under or pursuant to this Agreement or as a result of the transactions contemplated hereby. The “Excluded Assets” consist of all assets, properties or and rights of Seller and its respective Affiliates other than the Purchased Assets (Assets, including the “Excluded Assets”), includingfollowing:
(ia) all assets constituting ownership interests inowned, or that are leased, 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 by 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 primarily in connection with any of its their businesses or their properties, assets or rights is subject, in each case operations 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;
(ixb) 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, money ordersdeposits, marketable securitiessecurities and prepaid items other than prepaid items and deposits of the Business included in the calculation of the Closing Date Working Capital Amount;
(c) all claims and rights of action of any nature whatsoever against any Person relating to any of the Excluded Assets or Excluded Liabilities;
(d) all rights under, short-term instrumentsand assets held by, bank the Employee Benefit Plans and other depositary accountsemployee benefit plans, certificates programs, arrangements and agreements, including any retirement benefit and post-retirement health benefit plans, programs, arrangements and agreements, but not including any agreements set forth in Schedule 2.2.1(f) to this Agreement;
(e) all claims for refunds of depositTaxes attributable to the Business relating to periods ending on or before the Effective Time and claims for refunds of any other Taxes paid by Seller or any of its Affiliates;
(f) all Intellectual Property rights owned by Seller or its Affiliates other than the Purchased IP Rights;
(g) Seller’s, time depositsand its Affiliates’ (i) minute books, negotiable instrumentsGoverning Documents, securities share records and brokerage accountsTax Returns other than Tax Returns in Section 2.2.1(k); (ii) all books and records which Seller or any of its Affiliates are required by Law to retain or that Seller determines are necessary or advisable to retain; provided, funds however, that copies of such books and records are, to the extent permitted by Law, included in time the Purchased Assets to the extent primarily related to the Business; (iii) all records, reports, correspondence and demand deposits memoranda prepared or similar accounts of received by Seller Parent or any of its Affiliates (including all analyses relating to the Conveyed Subsidiaries Business or any Buyer so prepared or received), and all valuations, expressions of their Subsidiaries) (other than the accounts receivable interest and other assetsbids received from all Persons, in each case included case, in connection with the calculation sale of the Final Business Working Capital, and or the Cash Equivalents included in the calculation of Final Business Net Cash);
transactions contemplated hereby; (xiiv) all Tax refunds, Tax credits financial statements of Seller 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 its Affiliates (other than those that relate primarily to the Conveyed Subsidiaries Business) and their Subsidiariesall records (including working papers) that do not relate solely related thereto; (v) a copy of all consolidating and consolidated financial information and all other accounting records prepared or used in connection with the preparation of the Financial Statements (including working papers); and (vi) any document or other item subject to Purchased Assets attorney-client or Assumed Liabilities, and in each case any books and records relating theretosimilar privilege;
(xiiih) 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 6.187.15, all current and prior insurance policies and all of Seller’s rights of any nature with respect theretothereunder, including insurance policies in respect of directors and officers and to all claims against insurance recoveries thereunder carriers;
(i) any claims, rights and rights interest in and to assert claims any refunds of income Taxes of Seller, and its Affiliates with respect to the operation of the Business or the Purchased Assets for taxable years or periods ending on or prior to the Closing Date, and all beneficial interests in any portion of such insurance recoveriesa refund with respect to the operation of the Business or the Purchased Assets for any taxable year or period beginning before and ending after the Closing Date, for the portion of such taxable year or period ending on or prior to the Closing Date;
(xvij) except as expressly set forth in this Agreement Contracts that do not constitute Assumed Contracts or Shared Contracts;
(including Section 2.1(pk) and Section 6.6), all assets the portion of any Seller Group Plan or Foreign Seller Group Plan that is not Shared Contracts which relate to a Conveyed Subsidiary business other than the Business;
(l) Employee Benefit Plans and any assets related to any Employee Benefit Plan;
(xviim) all corporate-level services (but not rights which accrue or will accrue to Seller under this Agreement and 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 2.1Delivered Documents; and
(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)any receivables or amounts due from eHealthInsurance Services, 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.Inc.
Appears in 1 contract
Sources: Asset Purchase Agreement (Tabula Rasa HealthCare, Inc.)
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 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 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 anything to the contrary in this Agreement, Purchaser the following assets of Sellers shall be retained by Sellers and the Purchaser Designated Affiliates are not purchasing being sold or acquiring assigned to any Purchaser hereunder (all 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 following are referred to collectively as the Purchased Assets (the “"Excluded Assets”), including:"):
(i) the Carve Out Cash Amount and all assets constituting ownership interests in, or that are used or held for use in, rights of Sellers in and to the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1bank accounts containing such Carve Out Cash Amount;
(ii) any and all Retained Real Propertyrights under this Agreement and avoidance Claims or causes of action arising under the Bankruptcy Code or applicable state Law, including all rights and avoidance Claims of Sellers arising under Chapter 5 of the Bankruptcy Code;
(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 all Owned Real Property of each Seller 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);Schedule
(iv) all legal and beneficial interest in the share capital or equity interest Facility Leases of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests each Seller set forth on Section 2.1(qSchedule 2.2(a)(iv) of (the Seller Disclosure Letter"Excluded Facility Leases");
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which the equipment leases of each 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 Contractsset forth on Schedule 2.2(a)(v) (the "Excluded Equipment Leases");
(vi) all inventory Contracts of each Seller set forth on Schedule 2.2(a)(vi) (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"Excluded Contracts");
(vii) all Employee Benefit Plans of each Seller other than the Retained Names and all other Intellectual Property that is not Business IPAssumed Employee Benefit Plans (the "Excluded Employee Benefit Plans"), including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as the Employee Benefit Plans set forth on Section 2.3(a)(viiSchedule 2.2(a)(vii) and, for avoidance of the Seller Disclosure Letterdoubt, 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 PropertyPension Plans;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations originals of any Seller's minute books and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Businessstock books;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and the equity securities or other Records, in each case not Related to ownership interest of the Business, and the Specified RecordsCompany or any U.S. Operating Subsidiary;
(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 Capitalrights, pre-payments, deposits and the Cash Equivalents included in the calculation of Final Business Net Cash)refunds under any Excluded Employee Benefit Plan;
(xi) all Tax refunds, Tax credits or other Tax Assets Leasehold Improvements of the Sellers and any refund or credit against each 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 set forth 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);Schedule
(xii) to the extent related (in whole or in part) to the Excluded Assets, all Seller Combined Tax Returns insurance policies of Sellers and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries credits, refunds and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;proceeds thereunder; 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 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 6.6assets listed on Schedule 2.2(a)(xiii), 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
Excluded Assets. (a) Notwithstanding any provision anything to the contrary in this Agreement, Purchaser in no event shall Sellers be deemed to sell, transfer, assign, convey or deliver, 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’) Sellers shall retain all right, title or and interest to, in any assetsand under all properties, properties or rights rights, interests and other than the Purchased assets of Sellers that are not Acquired Assets (the “Excluded Assets”), includingincluding the following:
(a) all rights, properties and other assets explicitly excluded from Section 1.1 and all bank accounts (but not, for the avoidance of doubt, any Cash and Cash Equivalents of Sellers (other than Tupperware Nederland B.V.), subject to Section 1.6);
(b) all rights, properties and other assets of the Cash Consideration Sellers that are not Cash Acquired Assets;
(c) subject to Section 1.5, all Contracts of Sellers that are not Assigned Contracts (collectively, the “Excluded Contracts”);
(d) (i) all assets constituting ownership interests inreal property owned by any Seller (together with all of Sellers’ right, or that are used or held for use intitle and interest in and to all land, buildings, structures, easements, appurtenances and improvements thereto, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a“Excluded Owned Real Property”) through (s) of Section 2.1;
and (ii) all Retained Leases pursuant to which any Seller holds any Real Property (the “Excluded Leases”, and such real property, together with all of such Seller’s right, title and interest in and to all land, buildings, structure, easements, appurtenances and improvements thereon, the “Excluded Leased Real Property;
(iii) (A) ” and together with the Retained FacilitiesExcluded Owned Real Property, (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 Real Property”);
(e) all Documents (including information stored on the computer systems, data networks or servers of any Seller) (i) to the extent they relate solely to any of the Excluded Assets or Excluded Liabilities, (ii) that are Sellers’ financial accounting Documents, all minute books, Organizational Documents, stock certificates or other Equity Interests instrument, stock registers and such other books and records of any Seller pertaining to the ownership, organization or existence of such Seller, Tax Returns and records (and any related work papers) (other than books, records and, Tax Returns of any Acquired Entity), corporate seal, checkbooks, and canceled checks, (iii) that any Seller is required by Law to retain or (iv) all legal and beneficial interest in that are governed under applicable Privacy Laws that prohibit the share capital transfer or equity interest sale of Personal Information (other than to the extent held by any Acquired Entity); provided that Purchaser shall have the right to make copies of any Person reasonably relevant portions of such Documents (other than Excluded Tax Returns) to the Conveyed Subsidiaries extent not prohibited by applicable Law or if consented to by the relevant Seller (and their Subsidiaries“Excluded Documents”), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(vf) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which documents prepared or received by any Seller Parent or any of its Affiliates is a party or by which any on their behalf in connection with the sale of its the Acquired Assets, this Agreement or their propertiesthe other Transaction Agreements, assets the Transactions, or rights is subjectthe Bankruptcy Cases, in each case other than Assumed Contracts;
including (vii) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory records 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 reports prepared 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 received 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 respective Affiliates or Advisors in connection with the sale of the Acquired Assets and the Transactions, including all analyses relating to the business of any Seller or its Affiliates so prepared or received, (other than ii) all bids and expressions of interest received from third parties with respect to the Conveyed Subsidiaries and their Subsidiariesacquisition of any of Sellers’ businesses or assets, (iii) that do not relate solely to Purchased Assets or Assumed Liabilitiesall privileged materials, and in each case any books documents 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 Affiliates, including any privileged materials, documents and records that are in the possession of any Acquired Entity, (for clarityiv) copies of the documents, other thanmaterials and data related to the Acquired Assets or Assumed Liabilities prior to the Closing Date, from and after (v) confidentiality agreements with prospective purchasers of the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement Acquired Assets or the Ancillary Agreements Assumed Liabilities or any portion thereof, and (vi) any documents delivered other files or received in connection herewith records to the extent relating exclusively to any Excluded Assets, Excluded Liabilities or therewiththe Bankruptcy Cases;
(xvg) all Employee Benefit Plans of any Seller or its Affiliates (except as set forth in Section 2.1(ofor the Acquired Entity Benefit Plans);
(h) all director and subject to Section 6.18officer insurance policies, all current and prior insurance policies and all rights and benefits of any nature of Sellers or its Affiliates with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries, except as contemplated by Section 1.1(g);
(xvii) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets Equity Interests of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Planany of their respective Subsidiaries, in all cases, other than any of the foregoing issued by any Acquired Entity (“Excluded Subsidiaries”);
(xviij) other than claims released pursuant to Section 6.11, the Purchased Claims and the Acquired Avoidance Actions, (i) 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 preference or any of its Affiliates, and without limiting Seller Parent’s obligations avoidance claims or actions arising under the Transition Services Agreement;
Bankruptcy Code or applicable Law relating to Excluded Assets or Excluded Liabilities, (xviiiii) all thirdother rights, claims, causes of action, rights of recovery, rights of set-party warrantiesoff, 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 recoupment as of the Closing of any Seller, in each case, arising out of or relating to events occurring on or prior to the Closing Date relating to any Excluded Assets or Excluded Liabilities, and (iii) all claims that any Seller may have against any Person that are not Related with respect to the Business, including all assets, properties and rights constituting ownership interests in, any other Excluded Assets or that are used or held for use in, or related to, the Retained Businessesany Excluded Liabilities, in each case of (i)-(iii), other than the those listed in Sections 1.1(g) - 1.1(j);
(k) Sellers’ claims, causes of action or other rights under this Agreement, including the Purchase Price hereunder, or any agreement, certificate, instrument, or other document executed and delivered between any Seller or its Affiliates and Purchaser in connection with the Transactions, or any other agreement between any Seller or its Affiliates and Purchaser entered into on or after the date hereof;
(l) all Tax refunds, Tax attributes and Tax assets, properties or rights identified other than (i) Tax assets that transfer to Purchaser by automatic operation of law as Purchased Assets a result of Purchaser acquiring the Acquired Assets, and (ii) Tax refunds, Tax attributes and Tax assets attributable directly to any Acquired Entity and not otherwise included in clauses (a) through (s) of Section 2.1a Seller Combined Tax Return; and
(xxm) the assets set forth in Section 2.3(a)(xx) every asset of the Seller Disclosure Letter.
Sellers or their Affiliates that would otherwise constitute an Acquired Asset (b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), if owned immediately prior to the Closing, Seller Parent shall use commercially reasonable efforts to take () if conveyed or cause one or more otherwise disposed of its Affiliates to take) such action as is necessary, advisable or desirable to transfer during the Excluded Assets period 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 date hereof until the Closing Date (i) in the Ordinary Course, or (ii) as otherwise permitted by the terms of this Agreement. To the extent that an asset may be viewed as both an Acquired Asset and an Excluded Asset, it 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 Datean Acquired Asset.
Appears in 1 contract
Excluded Assets. (a) Notwithstanding any provision anything to the contrary set forth in this Agreement, Purchaser except for the assets and properties of the Business Companies that are transferred and conveyed indirectly to Buyer in the Share Sale (other than pursuant to Section 2.02(l)) and the Purchaser Designated Affiliates Transferred Assets that are not purchasing or acquiring any transferred and conveyed to Buyer in the Asset Sale, Parent and the other Parent Entities shall retain all of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or and interest in any and to, and there shall be excluded from the Sale to Buyer hereunder, all the assets, properties or rights of Parent and the other than the Purchased Assets Parent Entities (collectively, the “Excluded Assets”). Solely for purpose of non-exhaustive illustration, includingthe Excluded Assets shall include:
(ia) all assets constituting ownership interests inassets, 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 properties 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 rights 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 Entity not Related to the Business;
(ixb) all customer Cash 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 Cash Equivalents of Parent or another Parent Entity (except 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 extent reflected in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Closing Date Cash);
(xic) 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 any Parent Entity 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, subject to Section 5.17;
(xvid) except all Intellectual Property other than the Company-Owned Intellectual Property and Intellectual Property Assets;
(e) any rights, properties and assets used for the purpose of providing, or that otherwise consist of, Overhead and Shared Services and, other than as expressly set forth provided in this Agreement the TSA, any rights of the Business to receive any Overhead and Shared Services from any Parent Entity;
(f) all Tax assets (including Section 2.1(pduty and Tax refunds and prepayments) and Section 6.6), all of any Parent Entity;
(g) any assets of or relating to any Seller Group Benefit Plan (other than any assets of or Foreign Seller Group relating to any Benefit Plan to the extent transferred pursuant to Section 5.06);
(h) all Shared Contracts;
(i) all credits, prepaid expenses, deferred charges, advance payments, refunds, security deposits, prepaid items and duties, to the extent related to any asset that is not a Conveyed Subsidiary PlanTransferred Asset;
(xviij) all corporate-level services Intracompany Receivables;
(but not k) any and all accounts and notes receivable of Parent or another Parent Entity (other than accounts receivable referred to in Section 2.01(b)(xii));
(l) the assets related to such services to the extent such assets are Purchased Assetslisted on Section 2.02(l) 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 2.1Disclosure Schedule; and
(xxm) the assets set forth in Section 2.3(a)(xx) all rights of the Seller Disclosure Letter.
(b) Notwithstanding anything in Parent and its Affiliates under, and all consideration received by Parent and its Affiliates pursuant to, this Agreement or any other Transaction Document, 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 terms hereof 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 Datethereof.
Appears in 1 contract
Sources: Share and Asset Purchase Agreement (Sonoco Products Co)
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 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. (a) Notwithstanding any provision in Purchaser acknowledges and agrees that it is not acquiring, pursuant to this Agreement, Purchaser and the Purchaser Designated Affiliates are not purchasing or acquiring any of Seller Parent’s the Ancillary Agreements or its Affiliates’ (including any of the Conveyed Subsidiaries’ or their Subsidiaries’) rightTransactions, any rights, title or interest in in, to or under any assetsasset that is not expressly included as a Purchased Asset (all such assets that are not expressly included as Purchased Assets, properties or rights other than the Purchased Assets (collectively, the “Excluded Assets”). Specifically, includingnotwithstanding anything in Section 2.1 to the contrary, neither Seller nor any of its Affiliates is contributing, and Purchaser is not acquiring, the following Excluded Assets:
(ia) 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) Cash and Investments of Section 2.1Seller;
(iib) all Retained Real PropertyAccounts Receivable of Seller other than the Purchased Accounts Receivable;
(iii) (Ac) the Retained Facilities, Excluded Inventory;
(Ad) 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 all Contracts of Seller set forth on Section 2.1(d)(i)(BSchedule 2.3(d) 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”);
(ive) all legal Contracts between or among Seller and beneficial interest in any of its Affiliates or between or among Affiliates of Seller, whether arising before, on or after the share capital Closing Date (including any contracts, agreements or equity interest of commitments related to Shared Services) (each, an “Intercompany Contract” and collectively, the “Intercompany Contracts”);
(f) other than any Assumed Contract, all Contracts under which a 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 provides assets, services, rights or by which any benefits with respect to the Purchased Assets or the Facility Operations and one or more other operations or businesses of Seller or 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 Affiliates 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 SubsidiariesSchedule 2.3(f) (other than each, a “Shared Contract” and collectively, 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“Shared Contracts”);
(xig) all Tax refundsof Seller’s and its Affiliates’ rights under any policies of insurance purchased by or on behalf of Seller or its Affiliates, 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 benefits, proceeds 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 premium refunds payable or in any manner arising paid thereunder 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 rights to insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries, whether arising before, on or after the Closing Date;
(xvih) except as expressly set forth all books, records, files and papers prepared and maintained by Seller or any of its Affiliates other than the Facility Books, Documents and Records, in this Agreement each case, whether in hard copy or electronic format (including Section 2.1(p) and Section 6.6the “Excluded Records”), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
and further excluding (xviiclauses (i) through (vii), the “Specifically Excluded Records”): (i) all corporate-level services (but not the assets documentation, samples, and product and packaging specifications related to reagents, compounds and products, including batch records or any proprietary information related to such services reagents, compounds and products, (ii) all personnel, payroll and employment records, (iii) any books, records, files and papers relating to the extent such assets are Purchased AssetsTaxes (including Tax Returns) 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;
(xviiiiv) 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 Businessstandard operating procedures, 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) any description of the Seller Disclosure Letter.
steps used to manufacture reagents, compounds and products, (bv) Notwithstanding anything financial information, (vi) books, records, files and papers prepared in this Agreement to connection with the contrary but subject to Section 6.5(f)Transactions, prior to the Closingincluding bids, Seller Parent shall use commercially reasonable efforts to take (or cause one or more letters of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets intent and expressions of interest received from the Conveyed Subsidiaries other Persons 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 analyses relating to the Purchased Assets or the Business. After Facility Operations and (vii) any attorney work product, attorney-client communications and other items protected by attorney-client privilege;
(i) (i) other than the Closing DateTransferred Governmental Authorizations, all Governmental Authorizations of Seller or any of its Affiliates and (ii) all Transferred Governmental Authorizations that are not transferable without the Parties shall continue consent of the applicable Governmental Authority and with respect to use commercially reasonable efforts which such required consent is not obtained;
(j) all (i) Tax attributes of Seller and (ii) rights to take receive refunds or credits with respect to any and all actions Taxes that constitute Excluded Liabilities;
(k) any rights, claims and shall cause their credits of Seller or any of its Affiliates 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 relating to any Excluded Asset or any Excluded Liability;
(including l) all Intellectual Property not expressly included in 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 2.3Purchased Assets, including the return of Intellectual Property set forth on Schedule 2.3(l);
(m) all IT Assets and Software not included in the Transferred Business Systems or not included in the Assumed Contracts (the “Excluded Business Systems”); and
(n) any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after other assets, properties or rights not expressly included in 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 DatePurchased Assets.
Appears in 1 contract
Excluded Assets. (a) Notwithstanding The Purchased Assets shall not include, and Seller shall not Transfer, and Buyer shall not purchase or acquire, 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 or to any assetsof the following properties and assets (collectively, properties or rights other than the Purchased Assets (the “"Excluded Assets”), including:"):
(i) all assets constituting ownership interests inany cash and cash equivalents or similar types of investments owned by Seller, or that are used or held for use inincluding certificates of deposit, the Retained Businesses, treasury bills and other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1marketable securities;
(ii) all Retained Real Propertythe certificate of formation, Taxpayer and other identification numbers, minute and limited liability company interest record books and the company seals of Seller;
(iii) (A) the Retained Facilitiesany Intellectual Property not listed on Annex 5, (A) including any owned and leased furnituretrademarks, equipmentcorporate names, fixturestrade names, machinerylogos, suppliesdomain names, 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 Letterany variation thereof, and any personal computers rights or interests therein and vehicles that are not primarily used by the Transferred Employees in respect of goodwill associated therewith incorporating the Businessname "Westinghouse," the "Circle W" logo ▇▇▇▇, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) slogan "You can be sure. ... if it's Westinghouse" or "Washington," or any leases relating to the assets described in the foregoing clauses (B) through (D)abbreviation thereof;
(iv) all legal and beneficial interest the WEC Technology (as defined in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their SubsidiariesTeaming Agreement), other than those equity interests set forth on except to the extent that Buyer shall have the right to use such WEC Technology pursuant to the assumption agreement contemplated by Section 2.1(q) of the Seller Disclosure Letter5.16;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which any items of finished goods Inventory that are sold by Seller Parent or any in the Ordinary Course of its Affiliates is a party or by which any Business of its or their properties, assets or rights is subject, in each case other than Assumed Contractsthe Division after the date of this Agreement;
(vi) all inventory (including all raw material inventoryany rights to any refunds, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples deposits of ProductsSeller with any Governmental Authority, relating to Taxes;
(vii) the Retained Names properties 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 Propertyassets described in Annex 6;
(viii) all Governmental Authorizationsbooks, including product registrationsrecords, manufacturing registrations manuals and environmental permitsother materials that (A) originate from the corporate headquarters of Seller and set forth accounting, ownedfinancial, used personnel or licensed by Seller Parent other corporate policies applicable to substantially all the operations of Seller, (B) are held for use primarily in connection with any Excluded Liability, (C) are at any location other than the Cheswick Facility or any of its Affiliates the Mount Pleasant Facility and do not Related relate substantially to the Business;Business or (D) are the subject of Section 5.17; and
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materialsthe rights of Seller under, and business any funds and financial records, books, and documents and other Records, property held 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 trust or any of its Affiliates (including the Conveyed Subsidiaries other funding vehicle pursuant to, or any of their Subsidiaries) (other than the accounts receivable and other assetsinsurance contract providing funding for, in each case included in the calculation of the Final Business Working Capitalany Employee Plan, 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 except 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.ARTICLE VI. 2.2
Appears in 1 contract
Sources: Asset Purchase Agreement (Washington Group 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 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 packaging materials (other than packaging materials and products used for repacking operations) 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 12:01 a.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 of the Sellers and/or their Affiliates, 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. (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, rights and properties or rights of Sellers other than the Purchased Assets (collectively, the “Excluded Assets”)) are excluded from the sale, includingassignment, conveyance, transfer and delivery provided for in this Agreement and shall be retained by Sellers. Without limiting the generality of the foregoing, the Excluded Assets shall include the following assets, properties and rights, which, for clarity, shall not constitute Purchased Assets:
(i) all assets constituting ownership interests incash and cash equivalents held by Sellers, 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) and all bank accounts of Section 2.1Sellers;
(ii) all accounts and notes receivable of Sellers and all ordinary course of business rebates, reimbursements or payments that are or may become due to Sellers from vendors, customers or dealers arising out of or related to (A) the Business for the periods through Closing, or (B) the Retained Real PropertyBusiness for all periods;
(iii) (A) the Retained Facilitiesall prepaid expenses, (A) any owned advance payments, prepayments, overpayments, credits and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property security 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) deposits 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 SubsidiariesSellers, other than the Business IT Systems Purchased Prepaid Expenses and Deposits (A) any leases relating to collectively, the assets described in the foregoing clauses (B) through (D“Excluded Prepaid Expenses and Deposits”);
(iv) all legal and beneficial interest in the share capital or equity interest tangible property of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests Sellers set forth on Section 2.1(qSchedule 2.1(b)(iv) of (the Seller Disclosure Letter“Excluded Tangible Property”);
(v) all Shared Contracts the Business IT Systems set forth on Schedule 2.1(b)(v), 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(including copyrights) therein (the “Excluded Business IT Systems”);
(vi) all inventory (including all raw material inventorycorporate seals, work-in-process inventoryGoverning Documents, spare parts inventory equity record books, corporate record books containing minutes of meetings of directors and finished products inventory) stockholders, and other than similar records of Sellers having to do with the Inventory and any samples organization or ownership of ProductsSellers;
(vii) all books, records, ledgers, logs, documentation, correspondence, lists, specifications, reports, manuals, surveys and files or other similar materials and information of Sellers, whether in paper, electronic or other form, in each case, that contain information regarding both (A) the Business, the Purchased Assets or the Assumed Liabilities, on the one hand, and (B) the Retained Names Business, Excluded Assets or Excluded Liabilities, on the other hand, which materials and all other Intellectual Property that is information cannot Business IPbe reasonably separated (the “Retained Books and Records”), including such Intellectual Property licensed but subject 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 Property6.20;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations Employee Benefit Plans and environmental permits, owned, used or licensed by Seller Parent or all assets related to any of its Affiliates and not Related to the BusinessEmployee Benefit Plan;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and Contracts of Sellers (other Records, in each case not Related to than the Business, and the Specified RecordsAssigned Contracts);
(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 Permits 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) Sellers (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 CashAssigned Permits);
(xi) all Tax refunds, Tax credits or other Tax Assets insurance policies 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)Sellers;
(xii) all Seller Combined Tax Returns insurance and all Tax Returns indemnity claims of Sellers relating to any pre-Closing period, except 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 extent provided in each case any books and records relating theretoSection 2.1(a)(xi);
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or Sellers 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;Deal Communications; and
(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) Sellers 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 LetterAncillary Document.
(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 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.
Appears in 1 contract
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. Anything in Section 2.1 to the contrary notwithstanding, the Purchased Assets shall not include, and neither Seller nor any of the Subsidiaries is selling, transferring, assigning, conveying or delivering to Buyer, and Buyer is not purchasing, acquiring or accepting from Seller or any of the Subsidiaries, any of the rights, properties or assets set forth or described in paragraphs (a) Notwithstanding through (j) below (the rights, properties and assets expressly excluded by this Section 2.2 being referred to herein as the "Excluded Assets"): ---------------
(a) any provision in this Agreementcash, Purchaser and the Purchaser Designated Affiliates are not purchasing cash equivalents, bank deposits or acquiring any similar cash items, lines of credit, banking facilities, employee receivables of Seller Parent’s or its Affiliates’ any Affiliate of Seller, inter-company accounts receivable, or any accounts of Seller or any Subsidiary not meeting the criteria set forth on Schedule 1.1 or collected in ------------ the ordinary course consistent with past practice prior to the Closing Date;
(including the Conveyed Subsidiaries’ b) any Proprietary Information of Seller or their Subsidiaries’) rightany Affiliate of Seller, title or interest in any assets, properties or rights other than the Purchased Assets Assigned Intellectual Property;
(the “Excluded Assets”), including:
c) any (i) all assets constituting ownership interests inpersonnel and medical records pertaining to any Business Employee which Seller determines, in its exercise of reasonable business judgment, are confidential; (ii) other books and records that Seller or any Affiliate of Seller is required by Law to retain or that are Seller is prohibited by law from transferring; provided, that Buyer shall have the right to make copies -------- of any portions of such retained books and records that directly relate to the Business or any of the Purchased Assets; and (iii) any information management system of Seller or any Affiliate of Seller, other than those used or held for use in, primarily 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 operation or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) conduct of the Seller Disclosure Letter, Business 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 contained within computer hardware included as a Purchased Asset pursuant to the assets described in the foregoing clauses (B) through (DSection 2.1(c);
(ivd) all legal and beneficial interest in the share capital any claim, right or equity interest of Seller or any Person Affiliate of Seller in or to any refund, rebate, abatement or other than the Conveyed Subsidiaries (and their Subsidiaries)recovery for Taxes, other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Lettertogether with any interest due thereon or penalty rebate arising therefrom, for any Pre- Closing Tax Period;
(ve) subject to Section 5.9, all Shared Contracts "Lucent Technologies"-marked sales and all marketing or packaging materials, samples, prototypes, other Contracts, similar Lucent- identified sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent marketing 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 Contractspackaging materials;
(vif) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory the Excluded Contracts and finished products inventory) other than the Inventory and any samples of ProductsNonassignable Licenses;
(viig) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement any insurance policies or otherwise, and including as set forth on Section 2.3(a)(vii) rights 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 thereof;
(viiih) all Governmental Authorizationsthe Excluded Leased Equipment, including product registrationsif any, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related pursuant 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 CashSection 5.6(b);
(xii) except as specifically provided in Section 5.5, all the assets of the Benefit Plans; and
(j) all Tax refundsother assets, 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)properties, 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 interests and rights of set-off against third parties (at Seller or 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 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, primarily in 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) conduct of the Seller Disclosure LetterBusiness.
(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 (CSG Systems International Inc)
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 in this Agreement, Purchaser Seller and the Purchaser Designated Affiliates are not purchasing or acquiring any Seller Entities shall retain all of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) rightexisting assets, properties, rights, title or interest and interests in any assetsand to, properties or rights other than and there shall be excluded from the Purchased Transfer to Buyer hereunder, and the Transferred Assets shall not include the following (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 and Restricted Cash, bank accounts and lockboxes of Section 2.1Seller and the Seller Entities;
(iib) subject to Section 5.8(b), all Retained Real PropertyInsurance Policies and binders of Seller and the Seller Entities, and all rights of action, lawsuits, benefits, claims, demands, rights of recovery and set-off, and proceeds, under or with respect to such Insurance Policies;
(iiic) all Intellectual Property owned by Seller or any of its Affiliates (A) other than the Transferred IP), including the Retained FacilitiesNames, (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 Intellectual Property in or not Related to the Business, except as set forth technologies described on Section 2.1(d)(i)(B2.3(c) of the Seller Disclosure Letter, and any personal computers Seller Licensed IP (collectively, the “Seller Retained IP”), including all rights of priority and vehicles that are renewals, all rights to sue for past, present, or future infringement, misappropriation or other violation thereof, and to retain any damages and profits due or accrued for any such past, present or future infringement, misappropriation or other violation;
(d) all Excluded Books and Records, wherever located;
(e) any asset which is not primarily used included as a Transferred Asset by the Transferred Employees in respect virtue of the Business, provisions of Section 2.2(a)-(q) by virtue of the express limitations set forth therein;
(Af) the Information Systems all Tax assets (including duty and tax refunds and prepayments) of Seller Parent and or its Subsidiaries, Affiliates (other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (DTransferred Subsidiary);
(ivg) all legal rights in connection with and beneficial interest in assets of the share capital Benefit Plans and any other employee benefit or equity interest of any Person compensation plan, program, policy, agreement or arrangement sponsored or maintained by Seller or its Affiliates (other than the Conveyed Subsidiaries Assumed Plans);
(h) all invoices, shipping documents, purchase orders and their other preprinted business forms that do not have any Transferred Trademark thereon and are not Related to the Business;
(i) all credits, prepaid expenses, deferred charges, advance payments, security deposits, prepaid items and duties to the extent not related to a Transferred Asset or Transferred Subsidiary;
(j) all Intracompany Receivables;
(k) all licenses to Seller or any of its Affiliates with respect to Software and related databases and all Seller Owned Software;
(l) all corporate-wide or division-wide systems, properties and assets, including management information systems and software, computer and communications systems and software and related third-party software, internet protocol address spaces, voicemail, and messaging systems and related Intellectual Property and technology and assets, including the assets that shall be utilized by Seller in providing services to Buyer under the Transition Services Agreement;
(m) all confidential communications between Seller and any of its Affiliates and its legal counsel and other advisors solely to the extent arising out of or relating to the negotiation, execution or delivery of this Agreement or the Transaction (or the sales process relating to the potential sale of the Business), including any attendant attorney-client privilege, attorney work product protection, and expectation of client confidentiality applicable thereto, in each case, including information or files in any format in connection therewith;
(n) other than the Transferred Subsidiary Shares, any shares or other interests in any Person or any securities of any Person;
(o) subject to Section 5.18, all Commingled Contracts;
(p) all Contracts between the Seller and/or its Affiliates, on the one hand, and any product or service supplier, provider, vendor, contractor, or subcontractor, on the other hand, that serve or are otherwise related to the PSA Sites (including, for the avoidance of doubt, such Contracts that are Related to the Business);
(q) subject to Section 5.19, all Commingled Permits;
(r) all Contracts solely between Seller and any of its Affiliates (other than the Transferred Subsidiaries) or between Affiliates of Seller (other than the Transferred Subsidiaries), whether arising before, on or after the Closing Date;
(s) all rights of, and all consideration received by, Seller and its Affiliates (other than those equity interests the Transferred Subsidiaries) pursuant to, and all rights of Seller and its Affiliates (other than the Transferred Subsidiaries) under, this Agreement or any Ancillary Agreement, subject to the terms hereof and thereof;
(t) all assets set forth on Section 2.1(q2.3(t) 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;
(xu) 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) Business (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 CashTransferred Subsidiaries);; and
(xiv) all Tax refunds, Tax credits Actions available to or other Tax Assets of the Sellers and being pursued by Seller or 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 Entity 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 (related 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 Excluded Assets or Assumed Excluded Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes whether arising by way of action, counterclaims and rights of set-off against third parties (at any time counterclaim or in any manner arising or existingotherwise, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent absolute or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent , matured or any of its Affiliates (for clarityunmatured, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement determined 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 Letterundeterminable.
(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 (Goodyear Tire & Rubber Co /Oh/)
Excluded Assets. (a) Notwithstanding The Purchased Assets do not include, and neither Seller nor any provision in this Agreementother member of the Retained Companies is selling, Purchaser assigning, transferring, conveying or delivering, and neither Buyer nor any Subsidiary of Buyer is purchasing, acquiring or accepting from Seller or any other member of the Purchaser Designated Affiliates are not purchasing or acquiring Retained Companies, 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 set forth in this Section 2.2 (collectively, the “Excluded Assets”):
(a) subject to Section 2.1(b)(xii) and (xiv) of this Agreement, all cash and cash equivalents of the Seller Group;
(b) all Contracts (the “Excluded Contracts”) that are not Assigned Contracts, and all contracts set forth on Schedule 2.2(b), including:including without limitation the In-Bound Extra Territory Licenses and the In-Bound Licenses (collectively, the “Excluded In-Bound Licenses”);
(c) the corporate seals, Charter Documents, minute books, stock books, Tax Returns other than Tax Returns of the Acquired Companies and Tax Returns reporting Asset Level Taxes, books of account or other records having to do with the corporate organization of any of the members of the Seller Group that are not also an Acquired Company;
(d) all Policies and, subject to Section 2.1(b)(x) hereof, all rights and benefits thereunder;
(e) the assets, properties and rights specifically set forth on Schedule 2.2(e);
(f) the shares of Capital Stock of any of the members of the Seller Group that are not also an Acquired Company;
(g) all Accounts Receivable, other than the Accounts Receivable of Alphatec Spine Italy and Alphatec Spine UK;
(h) all insurance benefits, including rights and proceeds, arising from or relating to the Excluded Assets or the Excluded Liabilities;
(i) all assets constituting ownership interests in, or that are used or held for use in, related to the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1Benefit Plans;
(iij) all Retained Real Property;
(iii) (A) of 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 Seller Group’s interest in Intellectual Property except for the Retained Facilities or not Related to the Business, except as items 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(b)(iii);
(ivk) all legal assets of Scient’x S.A.S. and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries)Surgiview, other than those equity interests except for distribution agreements 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 SubsidiariesSchedule 2.2(k) (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“French Distribution Agreements”);
(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
(xxl) the assets set forth in Section 2.3(a)(xx) of the rights which 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 DateAncillary Agreements.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Alphatec Holdings, 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 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. (a) Notwithstanding any provision anything in this AgreementAgreement to the contrary (including Section 2.4), Purchaser expressly understands and the agrees that Seller and its Affiliates shall retain, and Purchaser Designated Affiliates are shall not purchasing or acquiring purchase, 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, rights or rights other than interests of the Purchased Assets Seller Entities, whether tangible or intangible (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 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 Person;
(b) Any and all Contracts and portions of Contracts, other than the Conveyed Subsidiaries Business Contracts and the Transferred Lease;
(c) Any and their Subsidiaries)all owned and leased real property and other interests in real property, other than those equity interests the Owned Real Property and the Leased Real Property;
(d) All Retained Names and Marks;
(e) Any and all Intellectual Property Rights, other than the Business Intellectual Property and the rights with respect to the Business Intellectual Property described in Section 2.4(c);
(f) Any and all Information Technology, other than the Business Information Technology;
(g) Any and all Tangible Personal Property other than the Transferred Tangible Personal Property;
(h) Any and all accounts receivable, notes receivable and other current assets relating to the Business as of the Closing;
(i) Any and all raw materials, work-in-process, finished goods, supplies and other inventories, other than the Business Inventory;
(j) Any and all Permits, other than the Business Permits;
(k) Any and all claims (including any claims arising under insurance policies of Seller and its Affiliates), causes of action and defenses (including any Retained Claim), rights under warranties, indemnities and all similar rights against third parties (i) to the extent related to the Retained Business, any Excluded Assets or Retained Liabilities or (ii) relating to the matters set forth on in Section 2.1(q2.5(k) of the Seller Disclosure LetterSchedules;
(vl) all Shared Contracts and all All distribution centers (other Contractsthan those distribution centers located on the Owned Real Property or included in the Leased Real Property) owned, sales ordersleased, purchase orders, instruments and other commitments, obligations and arrangements to which operated or used by Seller Parent or any of its Affiliates is a party Affiliates, whether or by which any not such distribution centers were or are used in the operation of its or their properties, assets or rights is subject, in each case other than Assumed Contractsthe Business;
(vim) Any and all inventory (including all raw material inventorydocuments, work-in-process inventoryinstruments, spare parts inventory papers, books, records, books of account, files and finished products inventory) data, catalogs, brochures, sales literature, promotional materials, certificates and other than the Inventory and any samples of Productsdocuments not specifically identified as Purchased Assets in Section 2.4;
(viin) 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) in Article VI, 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;
(viiio) 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;
(ixp) Any and all customer and vendor listsrefunds, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents credits and other Records, in each case not Related Tax assets with respect 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 Taxes of Seller Parent or any of its Affiliates or Excluded Business Taxes;
(including q) Tax Returns and other books and records related to Taxes paid or payable by Seller, the Conveyed Subsidiaries Seller Entities or any of their Subsidiariesrespective Affiliates;
(r) Any and all Cash Amounts and any and all prepaid expenses and security deposits;
(s) Any and all letters of credit, performance bonds, negotiable instruments and securities;
(t) All rights and interests in and to any and all bank accounts of the Seller Entities;
(u) Any and all insurance policies and binders and interests in insurance pools and programs and self-insurance arrangements held by Seller and its Affiliates, 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;
(v) Any and all GS1 Company Prefixes or Global Trade Item Numbers associated with the finished goods inventory used, or held for use, by Seller or any of its Affiliates in connection with the Excluded Assets or otherwise, 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 Codes;
(xiw) 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 Except for those assets expressly identified as Purchased Assets in 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 exclusively used, or held exclusively 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
(xxx) the The assets set forth in Section 2.3(a)(xx2.5(x) of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f)Schedules. The Parties acknowledge and agree that none of Parent, prior to the ClosingPurchaser or any of their Affiliates will acquire any direct or indirect right, 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 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
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. (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. The Acquired Assets shall not include any of the following (collectively, the ³Excluded Assets´):
(a) Notwithstanding any provision in the Purchase Price delivered to Sellers pursuant to 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;
(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, including checks, money orderscommercial paper, marketable securities, short-term instruments, bank and other depositary accountstreasury bills, 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 deposit and other assetsbank deposits as of the Closing Date, in each case excluding any item described in Section 2.1(ii)(m) and excluding any deposit amounts included in the calculation Pre-Paid Expenses;
(c) all Owned Real Property not listed or described on Schedule 2.1(d) and not otherwise comprising any portion of the Final Business Working Capital, Facilities or the Office Building (it being understood that it is the intention of Sellers to convey to Buyer all real property and interests in real property comprising any portion of the Facilities and the Cash Equivalents included in the calculation of Final Business Net CashOffice Building);
(xid) subject to Section 7.15, all oil extraction equipment described on
(e) all Tax refunds, Tax credits Trade Secrets;
(f) all capitalized leases;
(g) any shares of capital stock or other equity interest of any Seller or any of Sellers¶ Subsidiaries or any securities convertible into, exchangeable or exercisable for shares of capital stock or other equity interest of any Seller or any of Sellers¶ Subsidiaries; of Sellers;
(h) all minute books, stock ledgers, corporate seals and stock certificates
(i) any Contract that is not an Assigned Contract;
(j) any Lease that is not an Assigned Lease;
(k) any refunds of Taxes paid by Sellers with respect to a Pre-Closing Tax Period and not otherwise reimbursed by Buyer hereunder;
(l) all Accounts Receivable;
(m) all insurance policies and rights to proceeds thereof;
(n) all telephone, telex and telephone facsimile numbers and other directory listings, other than telephone, telex and facsimile numbers specific exclusively to the Facilities and included in Acquired Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c2.1(n);
(o) all Permits and pending applications therefor other than those specified in Section 2.1(ii)(f);
(p) any properties and assets of the Company or VeraSun Marketing, LLC, a Delaware limited liability company, not related exclusively to, used exclusively in or held for use exclusively in the Business, other than those specifically identified as included in ³Acquired Assets´ in Section 2.1(ii);
(q) all Excluded Deposits;
(r) shares of capital stock of Qteros (formerly SunEthanol) owned by Sellers (the ³Qteros Shares´); provided that, if Buyer so requests by notice to Sellers not later than ten (10) days prior to the Sale Hearing (the ³Qteros Option Notice´), whether or not derived from the Business Qteros Shares shall, subject to Buyer paying the Qteros Asset Consideration at the Closing, be an Acquired Asset and whether or not existing prior shall be transferred to Buyer at the Closing, but excluding any refunds or credits or other Tax Assets only if and to the extent reflected as an asset on that the Final Qteros Shares are freely assignable and transferable at the Closing Statement pursuant to any Contracts governing Sellers¶ rights with respect thereto and taken into account pursuant to applicable Legal Requirements; provided further that, in the calculation of event that (aI) Buyer has timely delivered and not withdrawn the Qteros Option Notice and irrevocably agreed to pay the Qteros Asset Consideration to Sellers upon Sellers having the right to freely assign and transfer the Qteros Shares to Buyer and (II) the Final Business Working Capital or (b) Seller Accrued Income Taxes (Qteros Shares are not freely assignable and transferable at the Closing, Sellers shall, in accordance with and subject to Section 2.6 and Section 2.9, use reasonable efforts in cooperating with Buyer to obtain the right to freely assign and transfer the Qteros Shares to Buyer as soon as possible after the Closing and, upon obtaining such right, Sellers shall assign and transfer the Qteros Shares to Buyer and Buyer shall pay to Sellers the Qteros Asset Consideration, provided further that, notwithstanding anything to the extentcontrary in this Agreement, in connection with respect the transfer (including efforts to clause (b)obtain the right to freely assign and transfer) of the Qteros Shares to Buyer, offsetting a Tax Liability Buyer shall be responsible for all costs and expenses, and Sellers shall not be required to make any expenditure or incur any obligation on their own or on behalf of Buyer or Parent for which funds in the full amount of such calculation)expenditure or obligation are not provided to Sellers by Buyer in advance in cash;
(xiis) all Seller Combined Tax Returns and all Tax Returns of subject to Section 8.9, 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;Avoidance Actions; and
(xiiit) all claimsany rights, defenses, claims or causes of action, counterclaims and rights action 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) Sellers 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 LetterTransaction Document.
(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. (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 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 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 assets of Seller Parent’s or its Affiliates’ 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”)) are not part of the sale and purchase contemplated hereunder, includingare excluded from the Acquired Assets and shall remain the property of Sellers after the Closing:
(a) all cash, cash equivalents, and short-term investments;
(b) all Accounts Receivable other than the International Accounts Receivable and the Acquired Domestic Accounts Receivable;
(c) all of the capital stock and other equity interests of BDI and BSI that are owned by BSML or any Subsidiary of BSML;
(d) all of the Contracts of Sellers listed or described on Exhibit B;
(e) all personnel Records and other Records that Sellers are required by law to retain in their possession, and all data and Records (in electronic and written form) exclusively relating to the operation of the Spa Business or which are general, administrative and accounting records that relate to the overall business of BSML and not specifically to the Associated Center Business;
(f) all claims for refund of Taxes and other governmental charges of whatever nature;
(g) all Employee Plans and all rights in connection therewith and assets thereof;
(h) all rights of Sellers under this Agreement and the Assumption 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 2.1Tangible Personal Property and Inventory set forth on Exhibit B;
(ii) all Retained Real Property;
(iii) (Aj) the Retained Facilities, (A) any owned rights 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 assets used by Sellers to manufacture and use the Transferred Employees in respect of the BusinessMagic Mirror product (including source code and object code for all proprietary Software, (A) the Information Systems of Seller Parent manufacturing contracts, manufacturing specifications, trademark licenses and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (Dtooling);
(ivk) all legal information for persons from (i) BSML’s email Respondent Non Buyer database and beneficial interest in (ii) BSML’s direct mail Respondent Non Buyer database for 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 Letterzip codes within a 25 mile radius around each existing BSML spa center;
(vl) all Shared Contracts Proprietary Rights consisting of shrink-wrap, readily available commercial software and all other Contracts, sales orders, purchase orders, instruments software and other commitments, obligations and arrangements programs listed on Exhibit B to which Seller Parent or any of its Affiliates is a party or be retained 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 2.1Sellers; and
(xxm) the other property and 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) expressly designated on the Closing Date.Exhibit B.
Appears in 1 contract
Excluded Assets. Notwithstanding anything in Section 2.1 to the contrary, it is hereby expressly acknowledged and agreed that Seller and Aerojet are not selling, transferring, assigning, conveying or delivering to Purchaser, and Purchaser is not purchasing, acquiring or accepting from Seller and Aerojet, any of the Excluded Assets. The “Excluded Assets” include but are not limited to the following:
(a) Notwithstanding any provision all cash and cash equivalents on hand, all cash in this Agreementbanks, Purchaser all bank accounts, cash deposits, all lock boxes and the Purchaser Designated Affiliates are not purchasing lock box receipts and all certificates of deposit and other bank deposits owned or acquiring any held by or on behalf 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 ContractsAffiliates;
(vib) 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 policies 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) insurance 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 all of 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 rights 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)thereunder;
(xic) all Tax refundsrights, 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 recoveries and rights of set-off against third parties (at any time reimbursement arising out of, relating to or otherwise in any manner arising way in respect of, the Excluded Assets, Pre-Closing Environmental Liabilities or existingthe Retained Tax Liabilities, whether ▇▇▇▇▇▇ or inchoateincluding all rights, known or unknownguaranties, contingent or non-contingent) other than those identified as Purchased Assets warranties, indemnities and similar rights in Section 2.1;
(xiv) all rights favor of Seller Parent or any of its Affiliates (for clarityin respect of any Excluded Asset, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement Excluded Liability or the Ancillary Agreements and any documents delivered or received in connection herewith or therewithRetained Tax Liability;
(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;
(xviid) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) Employee Benefit Plans except as specified in Section 6.2 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 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;
(xixe) all assets, properties and rights of Seller or any Person that are not Related of its Affiliates identified on Schedule 2.2(e);
(f) subject to the Business, including all assets, properties provisions of Sections 8.1 and rights constituting ownership interests in, or that are used or held for use in, or related to8.2 below, the Retained Businessesincome tax records covering transactions of the Business occurring prior to the Closing Date;
(g) the corporate minute books and stock registers or similar items of Seller;
(h) any patents not set forth on Schedule 4.8(b), subject to the license grant set forth in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.17.10 hereof; and
(xxi) all buildings and related improvements other than 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 2.3Owned Property, 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) those buildings identified on the Closing DateSchedule 2.2(i).
Appears in 1 contract
Sources: Purchase Agreement (Gencorp Inc)
Excluded Assets. Notwithstanding anything in Section 2.1 to the contrary, it is hereby expressly acknowledged and agreed that the Purchased Assets shall not include, and neither Seller nor any of the Affiliates is selling, transferring, assigning, conveying or delivering to Buyer, and Buyer is not purchasing, acquiring or accepting from Seller or any of the Subsidiaries, any of the rights, properties or assets set forth on or described in paragraphs (a) Notwithstanding any provision in this Agreement, Purchaser and through (i) below (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 assetsrights, properties or rights other than and assets expressly excluded by this Section 2.2 from the Purchased Assets (being referred to herein 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) any cash, cash equivalents, bank deposits or similar cash items or employee receivables of Section 2.1Seller or any Affiliate of Seller;
(ii) all Retained Real Property;
(iii) (A) the Retained Facilities, (Ab) 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 Proprietary Subject Matter of Seller Parent and its Subsidiariesor any Affiliate of Seller, 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) all Governmental Authorizationsany claim, including product registrations, manufacturing registrations and environmental permits, owned, used right or licensed by interest of Seller Parent or any Affiliate of its Affiliates and not Related Seller in or to the Businessany refund, rebate, abatement or other recovery for Taxes, together with any interest due thereon or penalty rebate arising therefrom, for any Pre-Closing Tax Period;
(ixd) 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 RecordsExcluded Contracts;
(xe) any insurance policies or rights of proceeds thereof;
(f) all invoiced and accrued 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 pertaining to inventory shipments prior to the Closing Date;
(including the Conveyed Subsidiaries or any of their Subsidiariesg) (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 Cashitems listed on Schedule 2.2(g);
(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 (ah) the Final Business Working Capital or (b) Retained 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 Intellectual Property 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 2.1Patents; and
(xxi) the assets set forth in Section 2.3(a)(xx) each of the Seller Disclosure LetterSeller’s HP 93000 and HP 83000 integrated circuit test equipment.
(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 Sellers shall retain their Subsidiaries’) right, title or and interest to, in any and under the following assets, properties or and rights other than of the Purchased Assets Sellers (such assets to be retained by Sellers, 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 ITAR-Controlled Assets;
(ii) all Retained Real PropertyIntellectual Property Rights exclusively developed under the DOD/Security Contracts or the Other USG Contracts or provided to Sellers exclusively in connection with the performance of the DOD/Security Contracts or the Other USG Contracts (the “Excluded IP”) (the parties will agree on the list of Intellectual Property Rights that constitute Excluded IP within three (3) Business Days of the date of this Agreement);
(iii) the Excluded Leases (A) including 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▇▇▇ Arbor Lease);
(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 in Section 2.1(q) 2.1(a)(xvii), all avoidance claims or causes of action available to the Sellers under chapter 5 of title 11, including Sections 544, 545, 547, 548, 549, 550 and 553 of the Seller Disclosure LetterBankruptcy Code;
(v) all Shared the Excluded Agreements (including the DOD/Security Contracts and the Other USG Contracts) and any 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 thereunder (other than Assumed accounts receivable under Excluded Agreements that are not DOD/Security Contracts or Other USG Contracts);
(vi) all inventory (including all raw material inventoryInventory, work-in-process inventoryEquipment and other personal property located as of the Closing Date at the Sellers’ research and development facilities in Ann Arbor, spare parts inventory and finished products inventory) Michigan, other than personal computers of the Inventory Powder R&D Team and any samples of Productsall laboratory Equipment primarily used by the Powder R&D Team and all other Inventory, Equipment and other personal property exclusively used by the Government Research Team and Government Solutions Team;
(vii) such other facilities and assets that may be identified through the Retained Names parties’ additional engagement with the Committee on Foreign Investment in the United States as being integral to the operations and all other Intellectual Property business of the Government Research Team and Government Solutions Team or the performance of the DOD/Security Contracts and Other USG Contracts; provided however, that is no facility or asset shall be included in the definition of “Excluded Assets” pursuant to this clause (vii), unless Purchaser consents to such inclusion, which consent may not Business IP, including be unreasonably withheld or delayed unless such Intellectual Property licensed inclusion would reasonably be expected to materially and adversely affect the expected economic or commercial benefits to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of arising from 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 Propertytransactions contemplated hereby;
(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 prepaid Property Tax with respect to the BusinessPurchased Assets that are attributable to Pre-Closing Tax Periods, and any refund of Excluded Taxes (for the avoidance of doubt, other than any refund of Property Taxes to which the Purchasers are entitled pursuant to Section 7.4(c));
(ix) all customer except for any security deposits made in respect of any Assumed Leases and vendor listsany prepaid amounts that are a Purchased Asset, 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, including checks, money orderscommercial paper, marketable securities, short-term instruments, bank and other depositary accountstreasury bills, certificates of deposit, time deposit and other bank deposits, negotiable instrumentssecurities, securities entitlements, instruments and brokerage other investments and all bank accounts and securities accounts, funds in time including any cash collateral that is collateralizing any letters of credit and demand deposits or similar all bank accounts of Seller Parent or any of its Affiliates the Sellers;
(including the Conveyed Subsidiaries or any of their Subsidiariesx) (other than the accounts receivable Foreign Equity Interests and stock or other assetsequity interests in Fisker Automotive, Inc. or 24M Technologies, Inc., any capital stock, securities or other interest of any Seller held 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)any Person;
(xi) all Tax rights, claims, actions, refunds, Tax credits causes of action, choses in action, actions, suits or proceedings, rights of recovery, rights of setoff, rights of recoupment, rights of indemnity or contribution and other Tax Assets similar rights (known and unknown, matured and unmatured, accrued or contingent, regardless of the Sellers whether such rights are currently exercisable) against any Person, including all warranties, representations, guarantees, indemnities and any refund other contractual claims (express, implied or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(cotherwise), whether or not derived from the Business and whether or not existing prior to the Closingin each case, 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 (related to the extentassets, with respect to clause (b), offsetting a Tax Liability rights and properties set forth in such calculation)this Section 2.2(a) or the Excluded Liabilities;
(xii) all Seller Combined Tax Returns prepayments made with regard to insurance policies not assumed by Purchasers and all Tax Returns of security deposits, pre-paid expenses or prepayments to the Sellers extent made in connection with any Excluded Asset 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 theretoExcluded Liability;
(xiii) Sellers’ rights under this Agreement and under any other Transaction Document and all claims, defenses, causes of action, counterclaims 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 2.1cash consideration payable or deliverable to or for the account of any Seller by Purchaser pursuant and subject to the terms and provisions of this Agreement or any Ancillary Agreement;
(xiv) all rights the assets of Seller Parent any Foreign Benefit Plan or U.S. Benefit Plan not assumed by 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;Purchaser; and
(xv) except as set forth in Section 2.1(oRetained Books and Records; provided that Sellers shall provide, at the Seller’s cost and expense, Purchasers with a copy (and shall allow Purchasers to make a copy) 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 Retained Books 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 Records that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets are related to such services to the extent such assets are Purchased Assets, the Assumed Liabilities or the Sellers’ Business or the Joint Venture (other than the Retained Books and Records described in clause (D) of the type currently provided to the Business by Seller Parent or any definition of its Affiliates, Retained 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 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 LetterRecords).
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f)contrary, Wanxiang may, in its sole and absolute discretion, at any time on or prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause date that is 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 Business Day before the Closing Date, elect not to acquire any of the Parties shall continue to use commercially reasonable efforts to take all actions (assets, properties 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 rights of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date Seller, and any asset so designated by Wanxiang shall be deemed an Excluded Asset for all purposes of calculating the Business Working Capital hereunder; provided, however, that with respect to Contracts and the Business Net Cash pursuant to Leases, such designation shall be made in accordance with Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date2.9.
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’) 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 Agreement, Purchaser and the Purchaser Designated Affiliates are The Acquired Assets shall not purchasing or acquiring include any of Seller Parent’s Sellers' or its Affiliates’ (including the Conveyed Operating Subsidiaries’ or their Subsidiaries’) ' right, title or interest in or to any assets, assets or properties of Sellers or rights other than the Purchased Assets (the “Excluded Assets”), including:
(i) all assets constituting ownership interests in, or Operating Subsidiaries that are used or held for use inexpressly enumerated below (collectively, the Retained Businesses, other than those assets identified as Purchased Assets in clauses "EXCLUDED ASSETS"):
(a) through (s) of Section 2.1;
(ii) all Retained Real Property;
(iii) (A) Subject to SECTION 2.1(q), cash and cash equivalents, short-term and long-term investments, or similar type investments, uncollected checks and funds in transit to the Retained Facilitiesextent there is a corresponding reduction in accounts receivable included in Acquired Assets, (A) any owned and leased furniture, equipment, 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 marketable securities existing 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, Closing Date (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"CASH AND CASH EQUIVALENTS");
(ivb) all legal Bank accounts and beneficial interest in lock-boxes described as "Excluded Assets" on SCHEDULE 2.1(n) OF THE DISCLOSURE SCHEDULES;
(c) Any security, vendor, utility or other deposits (but only to the share capital extent such deposits specifically relate to Excluded Assets or equity interest of any Person Excluded Liabilities);
(d) Any Contracts 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;
(vie) 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 All Claims 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 respective Affiliates may have against any third party, including any Governmental Entity, for causes of action based on Chapter 5 of the Bankruptcy Code (other than "AVOIDANCE ACTIONS") and for refund or credit of any type with respect to Taxes accrued or paid with respect to periods (or any portion thereof) ending on or prior to the Conveyed Subsidiaries and Closing Date;
(f) All Claims which Sellers or any of their Subsidiariesrespective Affiliates may have against any third Person with respect to any Excluded Asset or Excluded Liability;
(g) that do The capital stock of Shared Technologies, which is a Subsidiary of ATCW, but is not relate solely to Purchased Assets or Assumed Liabilitiesa Seller hereunder, its assets, and assets used primarily in the Shared Technology business and set forth in SCHEDULE 2.2(g) OF THE DISCLOSURE SCHEDULES;
(h) The Shared Hosting Business, including Contracts, accounts receivable, equipment and Intellectual Property specifically related thereto;
(i) The capital stock of each case any Seller and each Seller's corporate books and records relating theretoto its organization and existence;
(xiiij) all claimsAny director and officer, defenseserrors and omissions, causes of action, counterclaims fiduciary or commercial crime insurance policies 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 2.1related insurance claims and insurance proceeds;
(xivk) all rights of Seller Parent or All insurance policies;
(l) Any real property which is owned by any of its Affiliates Sellers (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries"OWNED REAL PROPERTY") under this Agreement or the Ancillary Agreements and including any documents delivered or proceeds received in connection herewith or therewithwith the sale thereof;
(xvm) except as set forth in Section 2.1(o) and subject Any loans or notes payable to Section 6.18, all current and prior insurance policies and all rights any Seller or Operating Subsidiary from any employee of any nature with respect theretoSeller or Operating Subsidiary, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveriesother than Ordinary Course of Business employee advances;
(xvin) 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 corporatePre-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 BusinessPetition carrier gross accounts receivable, including all assetsthose of ILECs, properties which were recorded on Allegiance's books and rights constituting ownership interests inrecords as of May 14, or that are used or held for use in, or related to, the Retained Businesses2003, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1an amount up to $58.3 million; and
(xxo) the Any assets set forth in Section 2.3(a)(xxSCHEDULE 2.2(o) of the Seller Disclosure LetterOF THE DISCLOSURE SCHEDULES.
(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 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 Agreementthe provisions of Section 2.1, 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 the following (herein referred to as the “Excluded Assets”):
(a) any property interests or rights not owned by Seller;
(b) the assets of any Employee Benefit Plan covering the Employees;
(c) Seller’s rights, defenses, claims or causes of action against third parties relating to any Excluded Liabilities or Excluded Assets;
(d) the name “Aquila” or any related or similar trade names, trademarks, service marks or logos to the extent the same incorporate the name “Aquila” or any variation thereof;
(e) all corporate minute books and stock transfer books and the corporate seals of Seller;
(f) all surveys, books and records which by law Seller is required to retain in its possession, subject to Section 2.1(k), including:;
(g) any assets that have been disposed of in the ordinary course of business consistent with past practice or otherwise in compliance with this Agreement prior to the Closing;
(h) any equity securities owned by 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;
(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 all other assetsreceivables (including income, in each case included in the calculation of the Final Business Working Capitalsales, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits payroll or other Tax Assets of tax receivables) arising or relating to 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 periods prior to the Closing, but excluding any refunds including amounts owed (or credits or other Tax Assets reportedly owed) 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)by MISO;
(xiij) all Seller Combined Tax Returns Seller’s membership interest in ▇▇▇▇▇ County Purchaser 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 theretoequity security owned by Seller;
(xiiik) all claimsthe blanket market-based rate tariff of Seller on file with FERC, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether designated as ▇▇▇▇▇▇ or inchoate▇▇▇▇▇ County Power, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1L.L.C. FERC Electric Tariff Original Volume No. 1;
(xivl) all rights the Exempt Wholesale Generator status of Seller Parent or any of its Affiliates (for claritySeller, 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 as determined by FERC in connection herewith or therewithDocket No. EG03-58-000;
(xvm) 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 recoveriesthe Installment Sale Arrangement;
(xvin) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets used for performance of any the central or shared services by the Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary PlanParties;
(xviio) 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) insurance policies of the Seller Disclosure Letter.
(b) Notwithstanding anything Parties and rights thereunder, including any such policies and rights 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 respect 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 Project;
(p) the Closing Date, Software listed on Schedule 2.2(p) (the Parties shall continue to use commercially reasonable efforts to take “Excluded Software”); and
(q) all actions (and shall cause their Affiliates other assets (including agreements and contracts) of the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by Seller Parties not owned, leased or used primarily in the other Party to effect operation of 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 DateProject.
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 but subject contrary, the Purchased Assets shall not include any right, title or interest in or to any of the following properties, rights or assets of the Selling Entities (collectively, the “Excluded Assets”):
(a) Cash, cash equivalents and short-term securities;
(b) Any and all claims for refunds, carry backs or carry forwards of the Selling Entities in connection with “Taxes“ (as defined in Section 6.5(f3.18) and all Tax Returns and other documents filed by the Selling Entities with any taxing authority;
(c) Any intercompany receivable balance due from UNOVA or any of its subsidiaries (other than intercompany trade receivables between the ▇▇▇▇▇▇ Group);
(d) All insurance policies and self-insurance programs and any coverage or other rights under such policies and self-insurance programs;
(e) Any property or asset designated as “assets held for sale” on the books and records of the Selling Entities and which are set forth on Schedule 1.2(e) (collectively, the “Assets Held for Sale”);
(f) Any property, right or asset to the extent exclusively relating to any other Excluded Asset or any of the “Excluded Liabilities” (as defined in Section 1.7);
(g) All assets of all “Employee Benefit Plans“ (as defined in Section 3.13(k)), prior including assets held in trust, including assets held in medical trusts, or insurance contracts for the benefit of Employee Benefit Plan participants or beneficiaries;
(h) All books, records, files and data pertaining 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 or any of the Conveyed Subsidiaries Excluded Liabilities;
(i) Subject to Section 8.5, all rights in, to and their Subsidiaries under the name “UNOVA” and the logos of the Selling Entities other than those logos that are primarily or exclusively related to the Business (andincluding, if neededwithout limitation, from any logos with the Sellersnames or brands listed in Section 1.1(r));
(j) Any rights of any of the Selling Entities under this Agreement;
(k) The franchise of each of the Selling Entities to be a corporation and its articles or certificate of incorporation, bylaws and other records pertaining to its corporate existence, and all books and records of a nature required by “Law” (as defined in Section 3.1(e)) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no considerationbe maintained by the Selling Entities, as may be determined by Seller Parent in its sole discretion, but in compliance with including all applicable Laws financial and as would not result in any material adverse impact tax records relating to the Purchased Assets or Business that form part of the Business. After Selling Entities’ general ledger, provided that the Closing Selling Entities shall make available for duplication at the Purchasing Entities’ expense copies of such financial and tax records as such documents exist as of the December Balance Sheet Date, the Parties shall continue June Balance Sheet Date and the Transfer Date to use commercially reasonable efforts the extent such records are related to take all actions (the Business and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) as reasonably requested by the Purchasing Entities;
(l) All shares of capital stock or other Party to effect equity interests in any other Person (as defined below) owned by the provisions of this Section 2.3Selling Entities, including Honsberg Lamb Sonderwekzeugmaschinen GmbH;
(m) The real property located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, South Beloit, Illinois (the return of any “South Beloit Facility”);
(n) The real property located at ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ (the “Waynesboro Facility”); and
(o) All rights existing under each contract set forth on Schedule 1.2(o) (the “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 DateContracts”).
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