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 to the contrary, no Designated Purchaser shall purchase or otherwise 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 and interest in or to any assets, rights or properties of ▇▇▇▇▇▇, Seller or rights other than their respective Affiliates, regardless of kind, description or location or whether tangible or intangible, real, personal or mixed, except for the Purchased Assets (the “Excluded Assets”), includingincluding the following:
(i) all assets constituting ownership interests incash and Cash Equivalents, including any cash or that are used Cash Equivalents residing in any collateral 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) any and all Retained Real PropertyAccounts Receivable;
(iii) (A) any Contracts used in the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related Triage Business that relate to the Businessdivision, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Lettercorporate office, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems overhead or back-office functions 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)Affiliates;
(iv) all legal and beneficial interest except to the extent included in the share capital Purchased Assets under Section 2.01(a)(v) or equity interest of any Person other than the Conveyed Subsidiaries (and their SubsidiariesSection 2.01(a)(xviii), other than those equity interests set forth any Contracts pursuant to which rights in Intellectual Property are granted to any Asset Seller Entity, including Contracts described on Section 2.1(q) of the Seller Disclosure LetterSchedule 2.01(b)(iv);
(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 Intellectual Property other than Assumed Contracts(A) the Transferred Intellectual Property, and (B) the Additional Assigned Intellectual Property;
(vi) all inventory (including all raw material inventorythe machinery, work-in-process inventoryequipment, mechanical and spare parts inventory parts, supplies, tools, tooling, jigs, molds, dies, production supplies, samples, media and finished products inventory) other than the Inventory and any samples of Productsfixtures described on Schedule 2.01(b)(vi);
(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 Contracts 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 received or receivable thereunder;
(xviviii) except as expressly set forth all owned or leased desktop computers, laptops, tablets, mobile phones and similar assets primarily used by employees of Seller or its Affiliates other than the Transferred Employees;
(ix) all other Information Technology Assets other than those described in this Agreement Section 2.01(a)(xviii) or Section 2.01(a)(xix);
(including Section 2.1(px) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan any similar benefit plan, program or arrangement that is not a Conveyed Subsidiary Planmaintained or contributed to by any Seller or Affiliate of Seller;
(xviixi) subject to the provisions of Article VIII, any right to any refund or credit with respect to Taxes relating to any Pre-Closing Tax Period;
(xii) the Registrations used in the manufacturing of the Products set forth on Schedule 2.01(b)(xii);
(xiii) all corporateclaims, counterclaims, causes of action, choses in action, rights of recovery, and rights of set-level services off of any kind (but not including all damages and payments for past, present or future infringement or misappropriation of Intellectual Property, the assets related right to such services use and recover for past infringements or misappropriations of Intellectual Property, and any and all corresponding rights that have been, now or hereafter may be secured throughout the world with respect to any Intellectual Property) to the extent such assets are Purchased Assets) of the type currently provided related to the Business by Seller Parent items described in this Section 2.01(b) or any of its Affiliates, and without limiting Seller Parent’s obligations not otherwise included in Purchased Assets under the Transition Services AgreementSection 2.01(a)(xvi);
(xviiixiv) all third-party warranties, indemnities, further assurances and similar covenants and guarantees cells lines other than those identified as described in Section 2.01(a)(xx), including the remaining portion of any cell line of which an aliquot thereof is included in the Purchased Assets in pursuant to 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 2.12.01(a)(xx); and
(xxxv) any real property or interest in real property other than the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure LetterTransferred Real 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 4 contracts
Sources: Triage Purchase Agreement (Alere Inc.), Triage Purchase Agreement (Quidel Corp /De/), Purchase Agreement (Alere Inc.)
Excluded Assets. (a) Notwithstanding any provision in this AgreementThe Company and its Subsidiaries are not selling, Purchaser conveying, assigning, transferring or delivering to Purchaser, and the Purchaser Designated Affiliates are term “Purchased Assets” shall not purchasing or acquiring any of Seller Parent’s or its Affiliates’ include, the following assets (including the Conveyed Subsidiaries’ or their Subsidiaries’) rightcollectively, title or interest in any assets, properties or rights other than the Purchased Assets (the “Excluded Assets”)):
(a) trade accounts receivable, including:customer purchase orders, notes receivable, negotiable instruments and chattel paper not arising from the STB Business, the NXP Note and any Excluded Royalties;
(b) All (i) existing products and products under development of the Company’s DTV Business, PC TV Business, Audio Business and the Terrestrial Demod Product Business and (ii) all masks for such products;
(c) the Company’s and each Subsidiary’s right, title and interest in, to or under (i) each Contract for Licensed Intellectual Property Assets that are not used in the STB Business, (ii) each Contract listed on Schedule 1.2(c) (the Contracts in (i) and (ii) collectively, the “Excluded Licensed Intellectual Property Assets”) and (iii) each Retained Contract;
(d) all commercial off-the-shelf Software loaded on desktop or laptop computers that are not part of the Tangible Personal Property;
(e) all of the Company’s and each Subsidiary’s cash and cash equivalents except for (i) any cash and cash equivalents included in the Working Capital Statement, if any, or taken into account in calculating the Final Working Capital, and (ii) the Required Cash;
(f) claims (and benefits arising therefrom) that relate to any Liability other than the Assumed Liabilities;
(g) the Company’s and each Seller Subsidiary’s financial accounting books and records, corporate charter, minute and stock record books, income tax returns, corporate seal, checkbooks and canceled checks;
(h) all rights (including any claims, rights and interest in and to any refunds for Taxes with respect to the Purchased Assets and STB Business for Pre-Closing Tax Periods) relating to the Retained Liabilities;
(i) all assets constituting ownership interests in, or that are used or held for use inexcept as provided in Section 7.11, the Retained Businessesnames and trademarks “Trident Microsystems, Inc.”, any other than those assets identified as Purchased Assets in clauses (a) through (s) use of Section 2.1“Trident Microsystems” together with any other word or phrase, including the Trident Microsystems logo;
(iij) all Retained Real Property;
(iii) (A) the Retained Facilities, (A) any owned preference or avoidance claims 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) actions of the Seller Disclosure LetterCompany arising under Sections 544, 547, 548, 549 and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect 550 of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, Bankruptcy Code other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);Preference Avoidance Claims; and
(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;
(xivk) 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) Company 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: Asset Purchase Agreement, Asset Purchase Agreement (Entropic Communications Inc), Asset Purchase Agreement (Entropic Communications Inc)
Excluded Assets. (aNotwithstanding anything in Section 2.01(a) Notwithstanding any provision in this Agreementto the contrary, Purchaser the Sellers are not selling, and the Purchaser Designated Affiliates are Buyer expressly understands and agrees that the Buyer is not purchasing or acquiring buying, any assets and properties of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any assets, properties or rights Sellers other than those specifically listed or described more generally in Section 2.01(a), and, without limiting the Purchased Assets generality of the foregoing, the term “Transferred Assets” shall expressly exclude the following assets and properties of the Sellers and their Affiliates, all of which shall be retained by the Sellers and their Affiliates (the “Excluded Assets”), including:):
(i) other than as described in Section 2.01(a)(xv) or Section 2.01(a)(xvi), all assets constituting ownership interests incash, cash equivalents or that are used marketable securities of the Sellers and their Affiliates on hand or held for use in, by any bank or other third Person and all rights to any bank accounts of the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1Sellers and their Affiliates;
(ii) all Retained Real Propertyraw materials, work in process and, other than packaging materials and products used for repacking operations, packaging materials of the Business;
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) all accounts receivable of the Seller Disclosure LetterSellers and their Affiliates (including all such accounts receivable earned or accrued as of 11:59 p.m. Eastern Time on the Closing Date), and any personal computers loans and vehicles that are not primarily used advances by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D)Sellers;
(iv) all legal and beneficial interest in franchise rights, if any, and, except for the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries)Transferred Licensed Intellectual Property, other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IPowned by, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages otherwise authorized for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed use by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating theretoAffiliates;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xvv) except as set forth in Section 2.1(o2.01(a)(i) of the Disclosure Schedule, all of the Sellers’ right, title and interest in owned and leased real property and other interests in real property including all such right, title and interest under each real property lease pursuant to which any Seller leases, subleases (as sub-landlord or sub-tenant) or otherwise occupies any such leased real property, together in each case with the Sellers’ right, title and interest in, to and under all structures, facilities or improvements currently or as of the Closing Date located on any such real property and all easements, licenses, rights and appurtenances related to the foregoing;
(vi) all Tax Returns (other than Tax Returns related solely to the Business or the Transferred Assets, except that the Sellers and their Affiliates will retain all federal and state income Tax Returns, regardless of whether such income Tax Returns are related to the Business) and Tax Assets;
(vii) any employee benefit plans, programs, arrangements and agreements (including any retirement benefit and post-retirement health benefit plans, programs, arrangements and agreements, but not including any such agreements which are Assumed Contracts) sponsored or maintained by the Sellers or their respective Affiliates, and any trusts and other assets related thereto;
(viii) subject to Section 6.182.01(a)(xi), all current policies of, or agreements for, insurance and prior interests in insurance policies pools and programs of the Sellers;
(ix) all causes of action, lawsuits, judgments, claims and demands of any nature available to or being pursued by the Sellers (including counterclaims) and defenses (A) against third parties relating primarily to any of the Excluded Assets or the Excluded Liabilities as well as any books, records and privileged information relating thereto or (B) relating to any period through the Closing to the extent that the assertion of such cause of action or defense is necessary or useful in defending any claim that is asserted against the Sellers or for which indemnification is sought by the Buyer pursuant to Article IX;
(x) any interest of any Seller under this Agreement, any Companion Agreement and any other agreement, document or instrument entered into in connection with the transactions contemplated by this Agreement;
(xi) all personnel and employment records for employees and former employees of the Sellers, including Business Employees, except as otherwise provided in the Employee Matters Agreement;
(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 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 Business Assets shall not purchasing or acquiring include any of Seller Parent’s the following assets owned by Trimble or any of its Affiliates’ controlled Affiliates (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any such assets, properties or rights other than the Purchased Assets (collectively, the “Excluded Assets”), including:):
(i) all assets constituting ownership the equity interests in, of (A) each Subsidiary of Trimble (or that are used or held for use in, the Retained Businesses, any other entity) other than those assets identified as Purchased Assets in clauses the Company and the Transferred Subsidiaries and (aB) through (s) of Section 2.1the entities set forth on Schedule 2.2(b)(i);
(ii) all Retained Real PropertyCash of the Business (except as the same are held by the Company or any of its Subsidiaries at the Closing);
(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 Letter, and any personal computers and vehicles that are not primarily used by Business as of the Closing other than accounts receivable of the Transferred Employees in respect Subsidiaries specified on Schedule 2.2(a)(iv) as 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)Closing;
(iv) all legal inventory, finished goods, raw materials, work in progress, packaging, supplies, parts and beneficial interest in other inventories not owned by the share capital or equity interest of any Person other than the Conveyed Transferred Subsidiaries (and their Subsidiaries), other than those equity interests set forth specified on Section 2.1(qSchedule 2.2(a)(iv) as of the Seller Disclosure LetterClosing;
(v) all Shared Contracts data including Personal Data, files, documents, and all other Contractsrecords in any form or media (whether print, sales ordersdigital or electronic) of Trimble and its controlled Affiliates, 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 Transferred Data;
(vi) all inventory (including all raw material inventoryIntellectual Property Rights owned by Trimble and its controlled Affiliates, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory Transferred IP, including (x) Marks to the extent containing confusingly similar to the name “Trimble”, and (y) any samples of Productssuch Intellectual Property Rights to the extent related to (A) Excluded Core Positioning Technology or (B) Correction Services;
(vii) the Retained Names and all other Intellectual Property that is not Business IPfollowing Contracts (collectively, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as the “Excluded Contracts”): (A) the Contracts set forth on Section 2.3(a)(viiSchedule 2.2(b)(vii) of hereto; (B) all Business Inbound Licenses that are Patent cross-licenses set forth on Schedule 2.2(b)(vii) hereto; and (C) all settlement agreements to the Seller Disclosure Letter, extent relating to claims directed at products and including services that are not in the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual PropertyBusiness;
(viii) all Governmental Authorizationspersonnel, employee compensation, medical and benefits and labor relations records relating to the Business Employees who are not Transferred Employees; provided, however, that copies (or, where required by applicable Law, originals) of any such records relating to any Transferred Employee will be delivered to the Company unless disclosure of such records would be prohibited by applicable data privacy or data protection Laws or if the written consent of the employee is otherwise required, then subject to such consent; provided, further, however, that where Trimble has delivered originals of such records, the Company or a Company Employer will deliver copies of such records to Trimble upon ▇▇▇▇▇▇▇’▇ written request to the extent allowed by applicable Law;
(ix) all assets relating to any Employee Plan (other than any Transferred Employing Subsidiary Plan or any Employee Plan that is required to transfer to the Company Group by operation of applicable Law);
(x) assets, properties, equity interests and business, of every kind and description, located in the Russian Federation;
(xi) assets, rights and properties as described in Schedule 2.2(b)(xi);
(xii) all past, current or future rights to bring an Action in law or in equity against third parties, including product registrationsunliquidated rights under manufacturers’ and vendors’ warranties (and the right to receive all monies, manufacturing registrations proceeds, settlements and environmental permitsrecoveries in connection therewith) to the extent not Related to the Business or the Business Assets, ownedand all rights and remedies under all settlement agreements, used releases and similar Contracts resolving claims (A) to the extent involving Employees, other than the Transferred Employees or licensed the Business Employees, other than as prohibited by Seller Parent applicable Law or any the terms of its Affiliates and such settlement agreements, releases or similar Contracts or (B) to the extent not Related to the products or services 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 claimsExcluded French Assets until and unless the relevant Consultation Finalizations have occurred and Trimble has effected a French Put Option Exercise, 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 accordance with Section 2.1;7.16(a); 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) 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, rights and 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 LetterBusiness 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 3 contracts
Sources: Sale and Contribution Agreement (Trimble Inc.), Sale and Contribution Agreement (Agco Corp /De), Sale and Contribution Agreement (Agco Corp /De)
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 Section 1.2 or any other provision hereof, the Acquired Assets will not in this Agreement, Purchaser and the Purchaser Designated Affiliates are not purchasing or acquiring any event include any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any following assets, properties properties, or rights other than the Purchased Assets of any Asset Seller (collectively, the “Excluded Assets”):
(a) all books and records not constituting an Acquired Asset described in Section 1.2(h), including:including each Asset Seller’s certificate of incorporation, bylaws and similar organizational documents, minutes, stock records and similar documents;
(b) all cash, cash equivalents (including marketable securities and short-term investments), bank accounts, lockboxes and deposits of, and any rights or interests in, the cash management system of any Asset Sellers, including uncleared checks and drafts received or deposited for the account of the Asset Sellers;
(c) all Retained Accounts Receivable;
(d) all rights to and the use of the “Newell”, “▇▇▇▇▇▇ Brands”, “Rubbermaid” or “DYMO” trade names and trademarks, any derivation or combination thereof and all associated goodwill, and any other Intellectual Property not specifically described in Section 1.2(e);
(e) all Contracts between any Asset Seller, on the one hand, and any Affiliate of such Asset Seller, on the other hand, and all intercompany receivables owed to any Asset Seller by any Affiliate of such Asset Seller;
(f) all rights under any Contracts other than the Business Contracts;
(g) all assets primarily used or held for primary use in connection with the performance of the centralized management functions provided to Purchaser and its Affiliates by Parent and its Affiliates pursuant to the terms of the Transition Services Agreement;
(h) all rights to and in Employee Benefit Plans and any trusts, insurance arrangements or other assets held pursuant to, or set aside to fund the obligations of an Asset Seller under, any such Employee Benefit Plans, other than the Assumed Benefit Plan Assets;
(i) all assets constituting ownership interests in, insurance policies and all rights of every nature and description under or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) arising out of Section 2.1such insurance policies;
(iij) all Retained Real Propertyclaims for and rights to any deferred Tax asset or to receive Tax refunds relating to the operation or ownership of the Business or the Acquired Assets for any Pre-Closing Tax Period, including any refunds or rebates of anti-dumping, countervailing or other customs duties, tariffs or charges relating to the operation of the Business or ownership of the Acquired Assets prior to Closing;
(iiik) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related except to the Business, except as extent set forth on in Section 2.1(d)(i)(B4.9(d) of the Seller Disclosure Letter, all application systems and any personal computers software, including all computer software, programs and vehicles that are not primarily used by the Transferred Employees in respect of the Businesssource disks, (A) the Information Systems of Seller Parent and its Subsidiariesrelated program documentation, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries)tapes, other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contractsmanuals, sales ordersforms, purchase orders, instruments guides and other commitmentsmaterials, obligations computer hardware and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their propertiesother systems hardware and networking and communications assets, assets or rights is subjectincluding servers, databases, backups and peripherals, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to in the Business;
(ixl) all customer uniform product codes other than the Acquired UPCs;
(m) all rights under this Agreement, the Ancillary Agreements, the other agreements and vendor lists, all advertising, marketing, sales instruments executed and promotional materials, and business and financial records, books, and documents and other Records, delivered in each case not Related to the Businessconnection with this Agreement, and the Specified Recordstransactions contemplated hereby or thereby;
(xn) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds inventory that is not Inventory as described in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net CashSection 1.2(a);
(xio) all Tax refundsmachinery, Tax credits or equipment, furniture, furnishings, fixtures, tools and other Tax Assets of tangible personal property listed on Exhibit 1.3(o) (the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation“Excluded Equipment”);
(xiip) all Seller Combined Tax Returns assets primarily related to the development, manufacture, distribution and sale of handheld label makers, label printers and other products, as conducted by Parent and certain of its Subsidiaries under the name DYMO® (the “DYMO Business”);
(q) all Tax Returns rights arising out of or relating to the action set forth on Exhibit 1.4(h);
(r) any claims of the Asset Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiariesa Purchased Company) that do not relate solely related to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;Excluded Asset; and
(xiiis) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letteron Exhibit 1.3(s).
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 3 contracts
Sources: Stock and Asset Purchase Agreement, Stock and Asset Purchase Agreement (Stanley Black & Decker, Inc.), Stock and Asset Purchase Agreement (Newell Brands Inc)
Excluded Assets. (a) Notwithstanding any provision anything 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 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 Section 1.1(a), Seller will retain and will not sell, convey, transfer or assign, and Purchaser will not purchase by virtue of this Agreement or the Transactions, 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 assetsrights, properties or rights other than the assets that are not expressly included as Purchased Assets in Section 1.1(a) (the “Excluded Assets”), including, without limitation, the following:
(i) all assets constituting ownership securities or other equity interests in, or that are used of any Person owned or held for use in, the Retained Businesses, by Seller or any of Seller’s Affiliates other than those assets identified as Purchased Assets expressly provided in clauses (aSection 1.1(a) through (s) of Section 2.1above;
(ii) all Retained Real PropertyContracts that are not Purchased Contracts (the “Excluded Contracts”);
(iii) all refunds or credits, if any, of Taxes due to Seller or Seller’s Affiliates (Aor to any holder of any equity interest in Seller) by reason 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 ownership of the Retained Facilities Purchased Assets or not Related the operation of the Business to the Businessextent attributable to any taxable period or portion thereof ending on or prior to the Closing Date, 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 extent such refund or credits relate to Taxes for which Purchaser actually bore the foregoing clauses (B) through (D)economic cost pursuant to Section 4.7;
(iv) all legal rights, claims and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries credits (including all indemnities, warranties and their Subsidiariessimilar rights), other than those equity interests defenses or causes of action in favor of Seller, Seller’s Affiliates or any of their respective Representatives to the extent relating to (A) any insurance policies (except as set forth on in Section 2.1(q1.1(a)(xii)), (B) any other Excluded Asset, (C) any Excluded Liability, (D) the assets, properties, business or operations of Seller or any Affiliate of Seller (excluding Canton Renewables and ▇▇▇▇ ▇▇▇▇▇▇) related to, arising from or incurred in connection with conditions or events occurring prior to the Valuation Date, (E) any matter for which Seller Disclosure Letterindemnifies Purchaser hereunder or (F) this Agreement or any other Transaction Agreement;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which information technology or management systems of Seller Parent or any Affiliate of its Affiliates is a party Seller not specified in Section 1.1(a) above, whether or by which any of its not used (exclusively or their properties, assets otherwise) in the Business or rights is subject, in each case other than Assumed Contractsconnection with the Purchased Assets;
(vi) all inventory (including all raw material inventoryinsurance policies, work-in-process inventory, spare parts inventory binders and finished products inventory) other than the Inventory claims 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 otherwiserights thereunder, 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(o1.1(a)(xii)) and subject to Section 6.18all proceeds therefrom, all current and prior insurance policies and all rights of any nature whether or not used (exclusively or otherwise) in the Business or in connection with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveriesthe Purchased Assets;
(xvivii) 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 Mavrix 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) operations of the type currently provided to the Business by Seller Parent Canton Renewables 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
(xxviii) the all employee benefit plans and assets set forth in Section 2.3(a)(xx) underlying employee benefit plans of the Seller Disclosure Letteror Seller’s 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 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Clean Energy Fuels Corp.)
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)(xiv) or Section 2.01(a)(xv), all assets constituting ownership interests incash, cash equivalents or that are used marketable securities of the Sellers and their Affiliates on hand or held for use in, by any bank or other third Person and all rights to any bank accounts of the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1Sellers and their Affiliates;
(ii) all Retained Real Propertyaccounts receivable of the Sellers and their Affiliates (including all such accounts receivable earned or accrued as of 11:59 p.m. Eastern Time on the Closing Date), and any loans and advances by the Sellers;
(iii) (A) the Retained Facilitiesall franchise rights, (A) any owned and leased furnitureif any, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Businessand, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by for the Transferred Employees in respect of the BusinessLicensed Intellectual Property, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IPowned by, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages otherwise authorized for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed use by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating theretoAffiliates;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xviv) except as set forth in Section 2.1(o2.01(a)(i) of the Disclosure Schedule, all of the Sellers’ right, title and interest in owned and leased real property and other interests in real property including all such right, title and interest under each real property lease pursuant to which any Seller leases, subleases (as sub-landlord or sub-tenant) or otherwise occupies any such leased real property, together in each case with the Sellers’ right, title and interest in, to and under all structures, facilities or improvements currently or as of the Closing Date located on any such real property and all easements, licenses, rights and appurtenances related to the foregoing;
(v) all Tax Returns (other than Tax Returns related solely to the Business or the Transferred Assets, except that the Sellers and their Affiliates will retain all federal and state income Tax Returns, regardless of whether such income Tax Returns are related to the Business) and Tax Assets;
(vi) any employee benefit plans, programs, arrangements and agreements (including any retirement benefit and post-retirement health benefit plans, programs, arrangements and agreements, but not including any such agreements which are Assumed Contracts) sponsored or maintained by the Sellers or their respective Affiliates, and any trusts and other assets related thereto;
(vii) subject to Section 6.182.01(a)(x), all current policies of, or agreements for, insurance and prior interests in insurance policies pools and programs of the Sellers;
(viii) all causes of action, lawsuits, judgments, claims and demands of any nature available to or being pursued by the Sellers (including counterclaims) and defenses (A) against third parties relating primarily to any of the Excluded Assets or the Excluded Liabilities as well as any books, records and privileged information relating thereto or (B) relating to any period through the Closing to the extent that the assertion of such cause of action or defense is necessary or useful in defending any claim that is asserted against the Sellers or for which indemnification is sought by the Buyer pursuant to Article IX;
(ix) any interest of any Seller under this Agreement, any Companion Agreement and any other agreement, document or instrument entered into in connection with the transactions contemplated by this Agreement;
(x) all personnel and employment records for employees and former employees of the Sellers, including Business Employees, except as otherwise provided in the Employee Matters Agreement;
(xi) (A) all corporate minute books (and other similar corporate records) and stock records of the Sellers; (B) any books and records relating primarily to the Excluded Assets; (C) any books, records or other materials that the Sellers (x) are required by Law to retain, (y) reasonably believe are necessary to enable the Sellers to prepare and/or file Tax Returns (copies of which will be made available to the Buyer upon the Buyer’s reasonable request) or (z) are prohibited by Law from delivering to the Buyer; and (D) copies of sales and promotional literature, manuals and data, sales and purchase correspondence, lists of suppliers and customers, and personnel and employment records that are Transferred Assets, provided that if the Sellers are required by Law to retain the originals of any such records, they may do so and in such case they will provide the Buyer with copies thereof;
(xii) any and all rights under any bottling, manufacturing, distribution, sales or other related agreement for any TCCC brands and any of the goodwill and other intangible rights or assets associated therewith;
(xiii) any nature other assets, properties, rights, contracts and claims of the Sellers or their Affiliates, wherever located, whether tangible or intangible, real, personal or mixed, in each case that are specifically listed in Section 2.01(b)(xiii) of the Disclosure Schedule;
(xiv) any other assets, properties, rights, contracts and claims of the Sellers or their Affiliates wherever located, whether tangible or intangible, real, personal or mixed, that are not primarily related to or primarily used or primarily held for use in connection with respect theretothe Business;
(xv) any Shared Contract, including all insurance recoveries thereunder to the extent not assigned to the Buyer pursuant to a Partial Assignment and rights to assert claims with respect to any such insurance recoveriesRelease under Section 5.16;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary PlanExcluded Contract;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Retained 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;; and
(xviii) the Manufacturing Rights (and any and all third-party warranties, indemnities, further assurances ownership or other proprietary interest in any goodwill and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and intangible rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used assets relating thereto or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(fassociated therewith), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested which are governed by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing DateManufacturing Agreement.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Coca Cola Bottling Co Consolidated /De/)
Excluded Assets. (a) Notwithstanding any provision anything to the contrary in this Agreement, Seller shall retain and not transfer, and Purchaser and the Purchaser Designated Affiliates are shall not purchasing purchase or acquiring acquire, any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any following assets, properties or rights other than the Purchased Assets of Seller or its Subsidiaries (collectively, the “Excluded Assets”), including:):
(i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1;
(ii) all Retained Real Property;
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person kind (other than the Intellectual Property Assets) not primarily used in or for the Acquired Products;
(b) Seller’s TCAM1, TurboCAM and Toy CAM products, including any asset, property or right of any kind related thereto (other than the intellectual property rights and assets acquired by Purchaser in the 2006 Agreement), which consist of parts having densities of no more than 4.5 megabits and sold, directly or indirectly, only to Seller’s sole existing customer for such products as of the date of this Agreement, including, without limitation, all related inventory, work-in-process, masks and finished goods, tools, equipment, and finished goods, supplies, parts and other tangible personal property related primarily to the foregoing (collectively, the “2007 Retained Products”);
(c) all proprietary information and intellectual property rights that are not Related to exclusively or primarily used in the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case Acquired Products (other than those assetsthe intellectual property rights and assets acquired by Purchaser in the 2006 Agreement and that certain Cross-License Agreement, properties or rights identified as Purchased Assets in clauses dated February 15, 2006, by and between Seller and NetLogic US (a) through (s) of Section 2.1the “2006 Cross-License”)); and
(xxd) the assets set forth all manufacturing machines, automatic test equipment and other equipment and machinery, including equipment and machinery for manufacturing, sorting, testing, packaging and quality assurance (except as identified in Section 2.3(a)(xx2.1(d)) of and all manufacturing and process-related intellectual property, in each case, whether or not used in connection with the Seller Disclosure LetterAcquired Products, the 2007 Retained Products or otherwise.
(be) Notwithstanding anything in this Agreement all uncollected trade accounts receivable and miscellaneous receivables from the sale or other disposition of any Acquired Products or Inventory and the license or other disposition of any intellectual property related to the contrary but subject to Section 6.5(f)Acquired Assets, prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (whether billed or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Dateunbilled.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Netlogic Microsystems Inc), Purchase and Sale Agreement (Cypress Semiconductor Corp /De/)
Excluded Assets. (a) Notwithstanding any provision in this AgreementOther than the Purchased Assets, Purchaser Buyer expressly understands and the Purchaser Designated Affiliates are agrees that it is not purchasing or acquiring acquiring, and Seller is not selling, assigning transferring or conveying, any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any other assets, properties or rights of Seller or any of its Affiliates, and all such other than assets, properties and rights shall be excluded from the Purchased Assets (the “Excluded Assets”). The Excluded Assets include, includingwithout limitation, the following assets and properties of Seller:
(i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1[reserved];
(iib) all Retained Real Property;
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checksdeposits, money orders, marketable securitiesbank accounts, short-term instrumentsinvestments, bank securities, equity interests and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits capital stock held by Seller or similar its Affiliates;
(c) all accounts receivable of Seller Parent or its Affiliates, except to the extent that such receivable is related solely to a Purchased Asset;
(d) any agreement, Contract, obligation or other undertaking of Seller or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assetsAssigned Contracts, in each case included in including any Contract related to the calculation of the Final Business Working Capital, Excluded Businesses and the Cash Equivalents included in the calculation of Final Business Net CashContracts listed on Schedule 2.02(d) (each, an “Excluded Contract”);
(xie) all Tax refundsof Seller’s investor, Tax credits repurchase, warehouse and similar liquidity and financing agreements or other Tax Assets of the Sellers arrangements and any refund agreements or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior arrangements related to the ClosingPipeline Loans, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement including interest rate locks and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether related ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1▇;
(xivf) Seller’s Intellectual Property other than the Purchased IP;
(g) the corporate seals, Organizational Documents, minute books, stock books, Tax Returns, books of account or other records having to do with the corporate organization of Seller, and all employee-related or employee benefit-related files or records;
(h) all rights of Seller Parent or any to Tax refunds, rebates and similar repayments of its Affiliates (for clarityTaxes, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims each case with respect to any such insurance recoveriesTax period ending on or before the Closing Date;
(xvii) all insurance policies of Seller and its Affiliates and all rights to applicable claims and proceeds thereunder;
(j) all Seller Benefit Plans and trusts or other assets attributable thereto;
(k) except as expressly set forth otherwise provided in this Agreement (including Section 2.1(p) and Section 6.62.01(i), all assets rights to any Action available to or being pursued by Seller, whether arising by way of any Seller Group Plan counterclaim or Foreign Seller Group Plan that is not a Conveyed Subsidiary Planotherwise;
(xviil) all corporate-level services (but not the assets related rights which accrue or will accrue to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services AgreementTransaction Documents;
(xviiim) all third-party warrantiesany asset, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1property or right of Seller relating to the Excluded Businesses;
(xixn) all assets, properties and rights any contracts or instruments of Seller related to hedging risk related to any Person that are not Related to the Businessloan, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1Pipeline Loans; and
(xxo) for the assets set forth in Section 2.3(a)(xx) avoidance of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f)doubt, prior to the Closingany asset, Seller Parent shall use commercially reasonable efforts to take (property or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return right of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes Affiliate of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing DateSeller.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Impac Mortgage Holdings Inc), Asset Purchase Agreement (Impac Mortgage Holdings Inc)
Excluded Assets. (a) Notwithstanding any provision anything to the contrary contained in Section 2.1 or elsewhere in this Agreement, Purchaser and the Purchaser Designated Affiliates are not purchasing or acquiring any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any assets, properties or rights all Assets other than the Purchased Assets, including the following Assets (collectively, the “Excluded Assets”), includingshall not be part of the sale and purchase contemplated hereunder and shall remain the property of Seller after the Closing:
(a) All minute books and corporate seals of Seller;
(b) The capital stock or other equity securities of Seller, whether held in treasury or otherwise;
(c) The consideration paid to Seller pursuant to this Agreement;
(i) Originals of all assets constituting ownership interests in, or personnel records and (ii) originals of all other records that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets Seller is required by Law to retain in clauses (a) through (s) of Section 2.1its possession;
(iie) all Retained Real Property;
(iiiAll Contracts not expressly assigned to and assumed by Purchaser pursuant to Section 2.1(e) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D“Excluded Contracts”);
(ivf) all legal All structures, machinery, equipment, tools, furniture, fixtures and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries equipment (including fixed machinery and their Subsidiariesfixed equipment), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts computer hardware, supplies, materials, leasehold improvements, automobiles, computing and all other Contracts, sales orders, purchase orders, instruments telecommunications equipment and other commitmentsitems of tangible personal property, obligations and arrangements to which Seller Parent of every kind owned or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business leased wherever located and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset carried on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (Seller’s books other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o2.1(c) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries(the “Excluded Tangible Property”);
(xvig) except as expressly set forth in this Agreement (including Section 2.1(p) All Benefit Plans and Section 6.6), all any assets of such Benefit Plans, including the rights, title and interests of Seller and its Subsidiaries in any Seller Group Plan (i) assets of a defined benefit or Foreign Seller Group Plan that is not defined contribution retirement plan and (ii) assets of a Conveyed Subsidiary Plannon-qualified deferred compensation plan;
(xviih) all corporateAll human resources documents related to any Non-level services Transferring Employee;
(but i) All Tax identification numbers, Tax Returns and Tax refunds;
(j) All Real Property Leases;
(k) All cash, cash equivalents on hand or in bank accounts and short term investments;
(l) All products that are not the assets Business Products;
(m) The Reon and Vida Processors, other than any Acquired Proprietary Rights and any Acquired Technology related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreementproducts;
(xviiin) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1All Inventory; and
(xxo) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement All Proprietary Rights owned or purported to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined owned by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would that are not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates Acquired Proprietary Rights (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing DateSeller Licensed Proprietary Rights).
Appears in 2 contracts
Sources: Asset Purchase Agreement (Integrated Device Technology Inc), Asset Purchase Agreement (Integrated Device Technology Inc)
Excluded Assets. (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. 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 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 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. (aNotwithstanding anything in Section 2.01(a) Notwithstanding any provision in this Agreementto the contrary, Purchaser Buyer shall not purchase, and the Purchaser Designated Affiliates are Purchased Assets shall not purchasing or acquiring include, any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or and interest in or to any assetsof the following assets of Parent and its Affiliates (collectively, properties or rights other than the Purchased Assets (the “Excluded Assets”), including:):
(i) all assets constituting ownership interests incash and cash equivalents, securities and negotiable instruments on hand, in lock boxes, in financial institutions or that are used elsewhere, including any cash residing in any collateral cash account securing any obligation or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1contingent obligation;
(ii) all Retained Real Propertyintercompany receivables between Parent and any of its Affiliates, or between any Affiliate of Parent and any other Affiliate of Parent, and all accounts, notes and other receivables resulting from sales by Parent or its Affiliates of products (whether or not generated by the Business) prior to Closing, whether current or noncurrent, including all file documentation related to such accounts, notes and other receivables, including invoices, shipping documents, communications and correspondence submitted to or received from customers related to such sales;
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as otherwise expressly set forth on Section 2.1(d)(i)(B) of in this Agreement or the Seller Disclosure LetterAncillary Agreements, and the ownership right in any personal computers and vehicles property, interest, right or asset, including Contracts, that are not primarily is used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and primarily in one or more other businesses of Parent (A) any leases relating to the assets described in the foregoing clauses (B) through (Deach, a “Shared Asset(s)”);
(iv) all legal Real Property of Parent and beneficial interest in the share capital its Affiliates (including any of Parent’s or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiariesits Affiliates interests therein as a tenant or otherwise), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts businesses of Parent and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contractsthe Business (the “Excluded Businesses”);
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory subject to Section 5.05 and any samples of Productslicense granted in accordance therewith, the Licensed Marks;
(vii) the Retained Names and all other Business Licensed Intellectual Property that is not Business IP, including such Intellectual Property to be licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of Buyer pursuant to the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual PropertyOut-License Agreement;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller the Parent or any of its Affiliates and not Related to the BusinessRetained Intellectual Property;
(ix) all customer Parent’s and vendor listsits Affiliates’ investments in, all advertisingor joint ventures or other partnerships with, marketingother third-party businesses (equity, sales and promotional materialsdebt or otherwise), and business and financial records, books, and documents and other Records, in each case whether or not Related related to the BusinessBusiness (collectively, and the Specified Records“Parent’s Investments”);
(x) all accounts receivable rights and other current assets and privileges under all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates Contracts of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, other than the Acquired Contracts and without limiting Seller Parent’s obligations under the Transition Services AgreementShared Contracts;
(xviiixi) all third-party warrantiesdeposits and prepaid expenses made or paid to utility companies, indemnities, further assurances and similar covenants and guarantees vendors or other than those identified as Purchased Assets in Section 2.1Persons;
(xixxii) all assetsTax assets (including, properties but not limited to, any refunds or credits with respect to any Taxes paid or incurred by Parent or any Seller, any prepaid Taxes of Parent or any Seller, and any other rights to Taxes of Parent or any of the Sellers);
(xiii) all Tax Returns (including supporting work papers and other documents relating to the Tax policies of Parent or any Seller, transfer pricing studies and other proprietary information related to the preparation and filing of Tax Returns, calculations of Tax and similar matters) that are not Purchased Assets;
(xiv) subject to Section 9.16, any attorney-client privileges and rights of Parent or any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1its Affiliates; and
(xxxv) all rights of Parent and its Affiliates arising under this Agreement or the assets set forth in Section 2.3(a)(xx) Ancillary Agreements, or from the consummation of the Seller Disclosure Lettertransactions contemplated hereby and thereby.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Minerva Surgical Inc), Asset Purchase Agreement (Minerva Surgical Inc)
Excluded Assets. (a) Notwithstanding any provision anything 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. (aNotwithstanding anything in Section 2.01(a) Notwithstanding any provision in this Agreementto the contrary, Purchaser the Sellers are not selling, and the Purchaser Designated Affiliates are Buyer expressly understands and agrees that the Buyer is not purchasing or acquiring buying, any assets and properties of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any assets, properties or rights Sellers other than those specifically listed or described more generally in Section 2.01(a), and, without limiting the Purchased Assets generality of the foregoing, the terms “Transferred Assets”, “Initial Closing Transferred Assets”, “Interim Closing Transferred Assets” and “Final Closing Transferred Assets” shall expressly exclude the following assets and properties of the Sellers and their Affiliates, all of which shall be retained by the Sellers and their Affiliates (the “Excluded Assets”), including:):
(i) other than as described in Section 2.01(a)(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 applicable 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 applicable 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 applicable Closing to the extent that the assertion of such cause of action or defense is necessary or useful in defending any claim that is asserted against the Sellers or for which indemnification is sought by the Buyer pursuant to Article IX;
(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, 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 Retained Assets as 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 2.1applicable Closing; 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 2 contracts
Sources: Asset Purchase Agreement (Coca Cola Bottling Co Consolidated /De/), Asset Purchase Agreement (Coca Cola Bottling Co Consolidated /De/)
Excluded Assets. (a) Notwithstanding any provision anything in this Agreement, Purchaser and the Purchaser Designated Affiliates are not purchasing or acquiring any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any assets, properties or rights other than the Purchased Assets (the “Excluded Assets”), including:
(i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1;
(ii) all Retained Real Property;
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related Agreement to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other thancontrary, from and after the Closing, the Conveyed Subsidiaries Seller’s Group shall retain all of its right, title and their interest in and to, and there shall be excluded from the direct or indirect sale, conveyance, assignment or transfer to the Purchaser or its Affiliates pursuant to Section 2.01(b), and the Transferred Assets shall not include, the following assets, rights and properties of the Seller’s Group (other than, subject to Section 2.01(d), the Transferred Subsidiaries):
(i) under this Agreement or the Ancillary Agreements and any documents delivered or received those assets set forth in connection herewith or therewithAnnex 2.01(c)(i);
(xvii) any (A) Intellectual Property Rights not Exclusively Related to the Business or (B) any Contract relating to Intellectual Property Rights that is not a Transferred Intellectual Property Contract;
(iii) the Seller Retained Marks;
(iv) any product, and any permits, licenses, certificates, registrations, marketing or other authorizations or consents issued by any Governmental Entity in any jurisdiction in respect of any product, or any applications therefore, other than the Products, Product Approvals, Products Under Registration and Marketing Authorizations transferrable under Applicable Law;
(v) all cash, marketable securities and negotiable instruments;
(vi) all real property and any leases therefor and interests therein, together with all buildings, fixtures, and improvements erected thereon, other than the Transferred Real Property;
(vii) the company seal, minute books, charter documents, stock or equity record books and such other books and records pertaining to the Seller or its Affiliates (other than the Transferred Subsidiaries), as well as any other records or material relating to the Seller or its Affiliates (other than the Transferred Subsidiaries) generally and not involving or related to the Transferred Assets or the Business;
(viii) any right of the Seller or its Affiliates to be indemnified in respect of Excluded Liabilities or any Excluded Asset;
(ix) all Tax assets (including Tax refunds and prepayments);
(x) all Tax Returns of the Seller’s Group and all books and records (including working papers) related thereto, except as set forth in Section 2.01(b)(xvi);
(xi) any intercompany receivables of the Business, other than Intra-Group Trading Balances;
(xii) all Seller’s Group Insurance Policies and rights to proceeds thereunder;
(xiii) all artwork, paintings, drawings, sculptures, prints, lithographs, photographs and other artistic works of the Seller’s Group;
(xiv) except as set forth in Section 2.1(o6.08 and Annexes 6.08(k) and subject to Section 6.186.08(l), all current and prior insurance policies and all rights in connection with any assets of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to Benefit Plan other than any such insurance recoveriesTransferred Subsidiary Benefit Plan;
(xv) any equity interest held by the Seller’s Group in any Person other than a Transferred Subsidiary;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Planthe Excluded Contracts;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) rights of the type currently provided to Seller’s Group under this Agreement and the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services AgreementAncillary Agreements;
(xviii) all third-those assets, rights and properties that are to be used by, or necessary for, the Seller’s Group or its designated third party warranties, indemnities, further assurances and similar covenants and guarantees to provide services to the Purchaser or its Affiliates under any of the Ancillary Agreements (other than those identified as Purchased Assets assets, properties or rights that are Exclusively Related to the Business and required to be listed on a statement of net assets of the Animal Health Group in Section 2.1;accordance with the Statement of Net Asset Rules); and
(xix) all assets, rights and properties and rights of any Person that are not Exclusively Related to the Business, including all . The assets, rights and properties referred to in this Section 2.01(c) and rights constituting ownership interests in, or that are used or held for use in, or related toin Section 2.01(d), the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure LetterExcluded Assets.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 2 contracts
Sources: Stock and Asset Purchase Agreement (Novartis Ag), Stock and Asset Purchase Agreement (Lilly Eli & Co)
Excluded Assets. (a) Notwithstanding any provision anything to the contrary contained in this Agreement, Purchaser and immediately prior to the Purchaser Designated Affiliates are not purchasing or acquiring any of Seller Parent’s or its Affiliates’ Closing, the Company shall assign to Sellers (including the Conveyed Subsidiaries’ or their Subsidiaries’designee) and Sellers (or their designee) shall obtain the right, title or and interest in any assets, properties or rights other than and to each and all of the Purchased Assets following assets of the Company (the “Excluded Assets”):
(a) the Excluded Contracts;
(b) any rights, claims and credits (including all guarantees, indemnities, warranties and similar rights) in favor of the Company to the extent relating to (i) any excluded assets set forth in this Section 1.2, (ii) any Excluded Liability or (iii) the operation of the Business prior to the Closing Date, in the case of clause (iii), including:other than those that are specifically Purchased Assets under Section 1.1;
(c) the Markers listed on Section 1.2(c) of the Company Disclosure Letter;
(d) except for the Tray Ledger and the Markers (other than those Markers listed on Section 1.2(c) of the Company Disclosure Letter) (all of which are part of the Purchased Assets but shall be purchased in accordance with Section 4.2 hereof), and except for the Front Money which shall be treated as set forth in Section 9.11(d) hereof, all chips or tokens of other casinos, cash, cash equivalents, bank deposits or similar cash items of Sellers, the Company or Sellers’ Affiliates held at the Casino as of the Closing to the extent not reflected in the Final Closing Net Working Capital;
(e) all refunds or rebates of Taxes to which Sellers are entitled under Section 12.9(g);
(f) all of the human resources and other employee-related files and records, other than such files and records relating exclusively to the Transferred Employees (which files and records Sellers may retain an archival copy of, to the extent permitted by Law);
(g) the Excluded Personal Property;
(h) the Excluded Software;
(i) all assets constituting ownership interests inindebtedness, accounts payable, or that are other obligations owed to the Company by any Seller or any of their Affiliates;
(j) without limitation to Buyer’s rights pursuant to Sections 1.1(k) and 1.1(t), the Customer Database;
(k) all data, files and other materials located on any storage device (including personal computers and servers) located at the Real Property (other than the books and records described in Section 1.1(j) hereof);
(l) without limitation to Buyer’s rights pursuant to Sections 1.1(k) and 1.1(t), the Total Rewards Program and any other player loyalty or rewards program of Sellers or their Affiliates and all customer related data;
(m) any assets set forth on Section 1.2(m) of the Company Disclosure Letter;
(n) the Company Benefit Plans;
(o) the Company Insurance Policies (except as provided in Section 9.15);
(p) the System Marks;
(q) the ▇▇▇▇▇▇’▇ Branded Paraphernalia; and
(r) all other assets and properties of the Company not exclusively 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 connection with 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: Equity Interest Purchase Agreement (CAESARS ENTERTAINMENT Corp), Equity Interest Purchase Agreement (Penn National Gaming Inc)
Excluded Assets. It is expressly understood and agreed that the Assets shall not include the following (each, an "EXCLUDED ASSET"):
(a) Notwithstanding Except to the extent expressly transferred pursuant to the provisions of Sections 1.2(a) through (l), inclusive, all assets, rights, properties, claims, contracts and business of any provision in this AgreementAsset Seller that, Purchaser after giving effect to the services to be provided to, and other rights of, Buyer under the Buyer License Agreement and the Purchaser Designated Affiliates Transition Agreements, are not purchasing necessary to conduct the Analytical Instruments Business as currently conducted;
(b) The capital stock of all direct or acquiring any indirect subsidiaries and affiliates of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any assets, properties or rights other than the Purchased Assets (the “Excluded Assets”), including:
(i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1Transferred Subsidiaries;
(iic) all Retained Real Property;
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash Cash and cash equivalents, checks, money orders, marketable securities, short-term instrumentsequivalents or similar type investments, bank and other depositary accounts, certificates of deposit, time depositsTreasury bills and other marketable securities of the Asset Sellers;
(d) All real property and leasehold interests in real property of the Asset Sellers other than the Plants and the Equipment;
(e) Any refunds or credits with respect to any Taxes paid or incurred by the Asset Sellers (plus any related interest received from the relevant taxing authority);
(f) Each Asset Seller's right, negotiable instruments, securities title and brokerage accounts, funds interest in time and demand deposits or similar accounts to the contracts listed on Section 1.2(g)(i) of the Seller Parent or any Schedule;
(g) Any Intellectual Property of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) Asset Sellers (other than the accounts receivable and other assetsIntellectual Property expressly set forth, summarized and/or described in each case included Section 1.2(a) hereof or expressly described in the calculation Section 1.2(a) of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net CashSeller Schedule);
(xih) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect theretoThe real property, including all insurance recoveries thereunder buildings, structures and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliatesother improvements situated thereon, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets assets listed in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx1.3(h) of the Seller Disclosure Letter.Schedule;
(bi) Notwithstanding anything Other than claims under insurance policies in this Agreement to the contrary but subject to Section 6.5(f)respect of Assets that are lost, damaged or destroyed or Assumed Liabilities that are incurred, in whole or in part, prior to the Closing, all right, title and interest of any Asset Seller Parent shall use commercially reasonable efforts in any insurance policies relating to take the Analytical Instruments Business and all rights of any Asset Seller to insurance claims and proceeds with respect to or relating to (or cause one or more i) occurrences prior to the Closing with respect to the operation of its Affiliates to takethe Analytical Instruments Business and (ii) such action as is necessary, advisable or desirable to transfer the Excluded Assets from and Excluded Liabilities;
(j) Any foreign currency agreements to which any Asset Seller is a party; and
(k) All rights with respect to intercompany receivables, notes or loans between any of the Conveyed Subsidiaries Transferred Subsidiaries, on the one hand, and their Subsidiaries Seller and its other subsidiaries (andexcluding Transferred Subsidiaries), if neededon the other hand, from except as listed in Section 1.3(k) of the Sellers) to Seller Parent Schedule and except for trade payables or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact receivables relating to the Purchased Assets provision of goods and services to or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect Analytical Instruments Business in the provisions ordinary course of this Section 2.3, including business of the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Analytical Instruments Business Working Capital consistent with past practice and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. custom (New York time) on the Closing Date"ORDINARY COURSE OF BUSINESS").
Appears in 2 contracts
Sources: Purchase Agreement (Eg&g Inc), Purchase Agreement (Eg&g Inc)
Excluded Assets. (a) Notwithstanding any 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.
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Excluded Assets. (a) Notwithstanding any provision The Transferred Assets shall include only those assets included in this AgreementSection 2.1, Purchaser and it being the Purchaser Designated Affiliates are not purchasing or acquiring any intention of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any assetsparties that all other rights, properties and assets of the Seller and its Subsidiaries are to be retained and not sold or rights other than assigned to Purchaser, including, without limitation, the Purchased Assets rights, properties and assets listed or described below (collectively, the “Excluded Assets”), including:):
(i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) all cash, cash equivalents, marketable securities and intercompany accounts receivable of Section 2.1Seller or its Subsidiaries;
(iib) all Retained Real Propertyrights in connection with, and assets of the employee benefit plans (the “Benefit Plans”) of Seller and its Subsidiaries;
(iiic) all minute books, stock books, Tax Returns and similar corporate records of Seller and its Subsidiaries;
(Ad) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) all employees of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o5.7 hereof;
(e) all claims, counterclaims and subject rights of offset against Liabilities to Section 6.18, the extent not assumed by Purchaser;
(f) all current rights of Seller under this Agreement and prior the Transaction Documents;
(g) the shares of capital stock of the Seller held in treasury;
(h) the shares of capital stock of the Seller’s Subsidiaries;
(i) all insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveriesthereunder;
(xvij) except as expressly set forth in this Agreement all Contracts of the Seller other than the Assumed Contracts and the Assumed Leases (including Section 2.1(p) and Section 6.6the “Excluded Contracts”), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xviik) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by personnel records and other records that Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services AgreementSubsidiaries are required by law to retain in its possession;
(xviiil) all third-party warranties, indemnities, further assurances claims for refund of Taxes and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights governmental charges of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1whatever nature; and
(xxm) the all information assets set forth in Section 2.3(a)(xx) of the or other property, including any Intellectual Property, owned by a party other than Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more any of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
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Excluded Assets. (a) Notwithstanding any provision in this Agreementthe terms of Section 2.1, Purchaser no member of the Seller Group will sell, convey, assign, transfer or deliver to the Purchaser, and the Purchaser Designated Affiliates are will not purchasing purchase or acquiring acquire, and the Purchased Assets do not include, any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any assets, properties or rights assets other than the Purchased Assets Assets, including any of the following assets (the “Excluded Assets”):
(a) all Cash and Cash Equivalents, bank deposits, investment accounts, lockboxes, certificates of deposit, marketable securities, bank accounts, corporate credit cards and other similar cash items of the Seller Group;
(b) all inventory as of the Closing Date, to the extent used or held for use primarily in the ICU Acquired Business, including all finished goods, work in process and raw materials, to the extent not included in the Working Capital;
(c) all notes and accounts receivable, including all trade accounts receivable and other rights to payment from customers, to the extent (i) not included in the Closing Date Flush Working Capital (as determined in accordance with Section 2.6) or (ii) related to the ICU Acquired Business;
(d) all minute books, records, stock ledgers, Tax records, personnel records and all other materials (other than the Flush Books and Records that constitute Purchased Assets under Section 2.1(i));
(e) the shares of the capital stock of any member of the Seller Group and all of the Seller’s or any other Seller Group member’s ownership interest in any Subsidiary or other Person;
(f) all insurance policies, including:binders and claims and rights thereunder and proceeds thereof;
(g) all Contracts of the Seller Group, but excluding (i) the Included Contracts and (ii) the portion of any Shared Contract that constitutes a Purchased Asset under Section 2.1(c);
(h) all machinery, equipment, furniture and other items of tangible personal property used or held for use by the Seller Group that does not constitute a Purchased Asset under Section 2.1(e);
(i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1;
(ii) all Retained Real Property;
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) goodwill of the Seller Disclosure Letter, and any personal computers and vehicles Group that are does not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (Dconstitute a Purchased Asset under Section 2.1(g);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viiij) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and Approvals that do not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cashconstitute a Purchased Asset under Section 2.1(h);
(xik) all Tax rights to refunds, Tax credits or similar benefits relating to Taxes and other Tax Assets governmental charges of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to whatever nature, except as provided in Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation2.1(j);
(xiil) all Seller Combined Tax Returns and all Tax Returns subject to the express terms of the Sellers IP License Agreement, all Intellectual Property rights of the Seller Group, including all of the Seller Group’s rights in the Hyprotek License (whether with respect to the ML Acquired Business or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating theretoICU Acquired Business);
(xiiim) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at arising under any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1Excluded Liability;
(xivn) all assets and other rights relating to the ICU Acquired Business or the ML Acquired Business sold or otherwise transferred or disposed of during the period from the date of this Agreement through and including the Closing Date, in any event in accordance with the provisions of the Stock Purchase Agreement or this Agreement; and
(o) all rights of the Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) Group under this Agreement or any of the Ancillary Agreements and to which any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx) member of the Seller Disclosure LetterGroup is a party.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
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Excluded Assets. Notwithstanding anything to the contrary contained in Section 1.2, the parties expressly understand and agree that the Purchased Assets shall not include, and neither Seller nor any of its Subsidiaries (other than an Acquired Company) is selling, assigning, transferring or conveying to Purchaser pursuant to Section 1.2 any right to or interest in, any of the following assets, properties, rights, Contracts and claims, whether tangible or intangible, real, personal or mixed (except with respect to assets sold, assigned, transferred or conveyed with the Acquired Companies) (collectively, the "EXCLUDED ASSETS"):
(a) Notwithstanding any provision in this Agreementall cash, Purchaser and the Purchaser Designated Affiliates are not purchasing or acquiring any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any assets, properties or rights other than the Purchased Assets (the “Excluded Assets”), including:
(i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1;
(ii) all Retained Real Property;
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checksbank deposits, money ordersinvestment accounts, marketable securities, short-term instruments, bank and other depositary accountslockboxes, certificates of deposit, time deposits, negotiable instruments, marketable securities and brokerage accounts, funds in time and demand deposits or similar accounts cash items, of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net CashAcquired Companies);
(xib) all Tax refundssubject to Sections 1.2 and 10.1, Tax credits any Seller Employee Benefit Plan, any trusts, insurance arrangements or other Tax Assets assets held pursuant to, or set aside to fund the obligations of the Sellers and Seller or its Subsidiaries under, any refund or credit against such Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c)Employee Benefit Plan, whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books data and records relating thereto;
(xiiior copies thereof) all claimsrequired to administer the benefits of Acquired Company Employees and Business Employees under any Seller Employee Benefit Plan and, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o1.4(a)(ii), the retention agreements with the Business Employees and Acquired Company Employees listed on Schedule 1.3(b) (the "RETENTION AGREEMENTS");
(c) any and all insurance policies, binders and claims and rights thereunder and the proceeds thereof and all prepaid insurance premiums;
(d) subject to Section 6.187.7, all current of Seller's right, title and prior insurance policies and all rights interest in any name, Trademark, trade dress, internet address, trade name, service ▇▇▇▇ or logo, or any derivation of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to foregoing, together with all of the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests ingoodwill represented thereby, or that are used or held for use in, or related to, the Retained Businesses, pertaining thereto in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) listed on the Closing Date.Schedule 1.3
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Wix Filtration Media Specialists, Inc.)
Excluded Assets. Notwithstanding anything herein to the contrary, from and after Closing, Seller and the Seller Affiliates will retain all of their respective existing right, title and interest in and to, and there will be excluded from the sale, conveyance, assignment or transfer to Sub hereunder, and the Transferred Assets will not include, the following, in each case as the same exists on the Closing Date (collectively, the "Excluded Assets"):
(a) Notwithstanding any provision in this Agreementall assets, Purchaser agreements, contracts, leases, purchase orders, arrangements, commitments, licenses and the Purchaser Designated Affiliates rights which are not purchasing Primarily Related to the Business;
(b) all cash and cash equivalents, and all capital stock or acquiring other equity interests or securities, whether or not Primarily Related to the Business or related to any Transferred Asset;
(c) all accounts receivable not reflected on the accounting system maintained in the San Diego facility of the Business, and all intercompany accounts receivable;
(d) all employee benefit plans of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) righta Seller Affiliate, title or interest in any assets, properties or rights other than the Purchased Assets Transferred Benefit Plans, applicable to employees of the Business;
(e) independent contractor, consulting and similar agreements with former employees of the “Excluded Assets”)Business;
(f) other than the leasehold or possessory interests created by the Assumed Leases or the Ancillary Agreements, includingall real property, including land, buildings, structures and improvements thereon, appurtenances thereto and interests therein, and all fixtures constituting part of such real property;
(g) the following Intellectual Property:
(i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1Corporate Trademarks;
(ii) all Retained Real Propertythe Seller-Licensed Intellectual Property (other than the license interests created pursuant to Section 2.3(a));
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and all product development projects other tangible property located at the Retained Facilities or not Related to the Business, except as than those that are set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (DSchedule 2.1(f)(iii);; --------------------
(iv) all legal agreements, contracts, licenses and beneficial interest sublicenses with respect to rights in the share capital or equity interest of any Person Intellectual Property owned by third parties, other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;Transferred Licenses; and
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Transferred Intellectual Property;
(viiih) all Governmental Authorizationsparts, including product registrations, manufacturing registrations subassemblies and environmental permits, owned, used or licensed other internally sourced components customarily supplied to the Business by Seller Parent or any its Affiliates and, as of the Closing Date, not yet purchased by the Business in the Ordinary Course, and all tooling, raw materials and supplies related to such components;
(i) all assets that are used: (i) to manufacture parts, subassemblies, tooling supplies and other internally sourced components customarily supplied to the Business by Seller or its Affiliates; (ii) in Seller's or its Affiliates' product service and support operations other than those such operations Primarily Related to the Business; or (iii) for administrative purposes other than those Primarily Related to the Business (except for those such assets located at the San Diego facility of the Business);
(j) all refunds, overpayments and prepayments of Taxes and duties paid by Seller or a Seller Affiliate;
(k) all Tax Returns of Seller and its Affiliates and all other Books and Records (including work papers) related thereto;
(l) all Books and Records which are: (i) personnel files or employee medical records; or (ii) human resources manuals, training materials and similar documents not Primarily Related to the Business;
(ixm) all customer and vendor listsexcept for the items specified in Section 2.1(j), all advertisinginternet, marketingintranet and World Wide Web content, sales addresses, sites and promotional materialspages, and business and financial records, books, and documents all HTML and other Recordscode, in each case not Related to the Businessplug-ins, scripting, computer hardware and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating software related thereto;
(xiiin) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or assets used in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to located in the Business, including all assets, properties and rights constituting ownership interests in, Ordinary Course in Japan or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1Korea; and
(xxo) the assets assets, if any, that are set forth in Section 2.3(a)(xx) of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(fon Schedule 2.2(o), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.---------------
Appears in 1 contract
Sources: Asset Purchase Agreement (Roper Industries Inc /De/)
Excluded Assets. (a) Notwithstanding any provision in this Agreement, Purchaser The Parties acknowledge and agree that the Purchaser Designated Affiliates are not purchasing or acquiring any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any following assets, properties and rights of Seller or rights other than the Purchased Assets any of its Subsidiaries (collectively, the “Excluded Assets”) are not part of the sale and purchase contemplated hereunder, are excluded from the Acquired Assets and shall remain the property of Seller and its Subsidiaries after the Closing:
(a) all Real Property that is not Transferred Real Property;
(b) all Tangible Property that is not Transferred Tangible Property;
(c) the Retained Real Property Leases;
(d) all Contracts that are not Transferred Contracts, and the Contracts set forth on Schedule 2.2(d);
(e) all Permits that are not Transferred Permits;
(f) all books and records of Seller and its Subsidiaries that are not Transferred Books and Records (including all minute books, including:stock ledgers and Tax records and all employee-related or employee benefit-related files or records other than personnel files of Transferred Employees or the Transferred Employee Benefit Plans);
(g) all Cash and Cash Equivalents (other than any Transferred Restricted Cash or any proceeds under Sections 2.1(p) or 2.1(q)) of Seller and its Subsidiaries, and all uncleared checks, wires ACH settlements and drafts, but only, in each case, to the extent not included as a current asset for purposes of calculating Working Capital;
(h) all Retained Employee Benefit Plans;
(i) all assets constituting ownership interests in, or that are used or held for use in, rights of Seller and its Subsidiaries under this Agreement and the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1Transaction Agreements;
(iij) all Retained Real Property;
(iii) (A) the Retained Facilitiesrights arising from Excluded Liabilities, (A) including all claims, causes of action and rights against any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related third party to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases extent relating to the assets described in the foregoing clauses any Excluded Liabilities (B) through (Dincluding rights of set-off, rights to refunds and rights of recoupment from or against any such third party);
(ivk) all legal and beneficial interest in rights to Tax refunds, credits or similar benefits relating to the share capital Acquired Assets or equity interest the Business to the extent attributable to periods, or portions of any Person other than periods, ending on or before the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure LetterClosing Date;
(vl) except for the Conveyed Equity Interests, all Shared Contracts and all stock or other Contractsequity interests in any Person, sales orders, purchase orders, instruments and other commitments, obligations and arrangements but only to which Seller Parent the extent not primarily related to the Acquired Assets or any of its Affiliates is a party the Business or otherwise held directly or indirectly by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contractsthe Transferred Subsidiaries;
(vim) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples insurance policies of Products;
(vii) the Retained Names Seller and all other Intellectual Property that is not Business IPrights to applicable claims and proceeds thereunder, including such Intellectual Property licensed subject to Purchaser under an Ancillary Agreement or otherwise, Sections 2.1(p) and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash2.1(q);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xixn) all assets, properties and rights in the Railcar Lease Fleet, together with any railcars which have been manufactured by Seller or any Subsidiary thereof prior to the Closing, in order to be leased by Seller or any Subsidiary thereof, or any Affiliate thereof, including ITE Rail Fund L.P., to a third party, but excluding any railcars that (i) are still in the process of being manufactured or (ii) are treated as inventory under GAAP and the accounting policies of Seller, in each case, at the Closing;
(o) all corporate-level assets of Seller or any Person that of its Subsidiaries to the extent such corporate-level assets are not Related Transferred Corporate Level Assets
(p) any assets, properties and rights held by any of Longtrain Leasing I, LLC, a Delaware limited liability company, Longtrain Leasing, II LLC, a Delaware limited liability company, Longtrain Leasing, III LLC, a Delaware limited liability company, ARI Longtrain Inc., a Delaware corporation, or STL Asset, LLC, a Delaware limited liability company, including those set forth on Schedule 2.2(p);
(q) any assets, properties and rights set forth on Schedule 2.2(r);
(r) all Reporting Marks utilized in the Railcar Lease Fleet; and
(s) all right, title and interest in and to all property and assets, real, personal, mixed, tangible and intangible, of every kind and description, not primarily used or held for use in connection with the operation or conduct of the Business, including all right, title and interest in and to all property and assets, properties real, personal, mixed, tangible and rights constituting ownership interests inintangible, of every kind and description, whether or that are not reflected on the books and records of Seller and its Subsidiaries and wherever located, used or held for use in, in connection with the operation or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return conduct of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after business of Seller or its Subsidiaries as of the Closing Date shall be deemed for purposes of calculating other than the Business Working Capital and not primarily used or held for use in connection with the Business Net Cash pursuant to Section 2.9 to have occurred as operation or conduct of 12:01 a.m. (New York time) on the Closing DateBusiness.
Appears in 1 contract
Sources: Asset Purchase Agreement (Greenbrier Companies Inc)
Excluded Assets. (aNotwithstanding anything in Section 2.01(a) Notwithstanding any provision in this Agreementto the contrary, Purchaser the Sellers are not selling, and the Purchaser Designated Affiliates are Buyer expressly understands and agrees that the Buyer is not purchasing or acquiring buying, any assets and properties of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any assets, properties or rights Sellers other than those specifically listed or described more generally in Section 2.01(a), and, without limiting the Purchased Assets generality of the foregoing, the term “Transferred Assets” shall expressly exclude the following assets and properties of the Sellers and their Affiliates, all of which shall be retained by the Sellers and their Affiliates (the “Excluded Assets”), including:):
(i) other than as described in Section 2.01(a)(xv) or Section 2.01(a)(xvi), all assets constituting ownership interests incash, cash equivalents or that are used marketable securities of the Sellers and their Affiliates on hand or held for use in, by any bank or other third Person and all rights to any bank accounts of the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1Sellers and their Affiliates;
(ii) all Retained Real Propertyraw materials, work in process and, other than packaging materials and products used for repacking operations, packaging materials of the Business;
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) all accounts receivable of the Seller Disclosure LetterSellers and their Affiliates (including all such accounts receivable earned or accrued as of 11:59 p.m. Eastern Time on the Closing Date), and any personal computers loans and vehicles that are not primarily used advances by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D)Sellers;
(iv) all legal and beneficial interest in franchise rights, if any, and, except for the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries)Transferred Licensed Intellectual Property, other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IPowned by, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages otherwise authorized for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed use by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating theretoAffiliates;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xvv) except as set forth in Section 2.1(o2.01(a)(i) of the Disclosure Schedule, all of the Sellers’ right, title and interest in owned and leased real property and other interests in real property including all such right, title and interest under each real property lease pursuant to which any Seller leases, subleases (as sub-landlord or sub-tenant) or otherwise occupies any such leased real property, together in each case with the Sellers’ right, title and interest in, to and under all structures, facilities or improvements currently or as of the Closing Date located on any such real property and all easements, licenses, rights and appurtenances related to the foregoing;
(vi) all Tax Returns (other than Tax Returns related solely to the Business or the Transferred Assets, except that the Sellers and their Affiliates will retain all federal and state income Tax Returns, regardless of whether such income Tax Returns are related to the Business) and Tax Assets;
(vii) any employee benefit plans, programs, arrangements and agreements (including any retirement benefit and post-retirement health benefit plans, programs, arrangements and agreements, but not including any such agreements which are Assumed Contracts) sponsored or maintained by the Sellers or their respective Affiliates, and any trusts and other assets related thereto;
(viii) subject to Section 6.182.01(a)(xi), all current policies of, or agreements for, insurance and prior interests in insurance policies pools and programs of the Sellers;
(ix) all causes of action, lawsuits, judgments, claims and demands of any nature available to or being pursued by the Sellers (including counterclaims) and defenses (A) against third parties relating primarily to any of the Excluded Assets or the Excluded Liabilities as well as any books, records and privileged information relating thereto or (B) relating to any period through the Closing to the extent that the assertion of such cause of action or defense is necessary or useful in defending any claim that is asserted against the Sellers or for which indemnification is sought by the Buyer pursuant to Article IX;
(x) any interest of any Seller under this Agreement, any Companion Agreement and any other agreement, document or instrument entered into in connection with the transactions contemplated by this Agreement;
(xi) all personnel and employment records for employees and former employees of the Sellers, including Business Employees, except as otherwise provided in the Employee Matters Agreement;
(xii) (A) all corporate minute books (and other similar corporate records) and stock records of the Sellers; (B) any books and records relating primarily to the Excluded Assets; (C) any books, records or other materials that the Sellers (x) are required by Law to retain, (y) reasonably believe are necessary to enable the Sellers to prepare and/or file Tax Returns (copies of which will be made available to the Buyer upon the Buyer’s reasonable request) or (z) are prohibited by Law from delivering to the Buyer; and (D) copies of sales and promotional literature, manuals and data, sales and purchase correspondence, lists of suppliers and customers, and personnel and employment records that are Transferred Assets, provided that if the Sellers are required by Law to retain the originals of any such records, they may do so and in such case they will provide the Buyer with copies thereof;
(xiii) all Excluded Fountain Equipment;
(xiv) any and all rights under any bottling, manufacturing, distribution, sales or other related agreement for any TCCC brands and any of the goodwill and other intangible rights or assets associated therewith;
(xv) any nature with respect theretoother assets, including all insurance recoveries thereunder properties, rights, contracts and rights to assert claims with respect to any such insurance recoveriesof the Sellers or their Affiliates, wherever located, whether tangible or intangible, real, personal or mixed, in each case that are specifically listed in Section 2.01(b)(xv) of the Disclosure Schedule;
(xvi) except as expressly set forth any other assets, properties, rights, contracts and claims of the Sellers or their Affiliates wherever located, whether tangible or intangible, real, personal or mixed, that are not primarily related to or primarily used or primarily held for use in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Planconnection with the Business;
(xvii) all corporate-level services (but not the assets related to such services any Shared Contract, to the extent such assets are Purchased Assets) of the type currently provided not assigned to the Business by Seller Parent or any of its Affiliates, Buyer pursuant to a Partial Assignment and without limiting Seller Parent’s obligations Release under the Transition Services AgreementSection 5.17;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1any Excluded Contract;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1Assets; and
(xx) the CBA Rights (and any and all ownership or other proprietary interest in any goodwill and other intangible rights or assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(frelating thereto or associated therewith), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested which are governed by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing DateComprehensive Beverage Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Coca Cola Bottling Co Consolidated /De/)
Excluded Assets. (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 anything to the contrary in this Agreement, Purchaser the Sellers and their Affiliates shall retain, and Buyer shall not purchase or otherwise acquire (and the Purchaser Designated Affiliates are Purchased Assets shall not purchasing or acquiring include), any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or and interest in or to any assets, properties whether tangible or rights intangible, real, personal or mixed, other than the Purchased Assets (such retained assets being collectively referred to hereinafter as the “Excluded Assets”). The Excluded Assets shall include, includingwithout limitation, the following:
(a) (i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets Contracts set forth in clauses (a) through (sSection 1.2(a)(i) of Section 2.1;
the Sellers Disclosure Schedule (“Excluded Contracts”) and (ii) all Retained Real Property;
the Software, data and information set forth in Section 1.2(a)(ii) of the Sellers Disclosure Schedule (“Excluded Software, Data and Information”), (iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as Tangible Personal Property set forth on in Section 2.1(d)(i)(B1.2(a)(iii) of the Seller Sellers Disclosure LetterSchedule (“Excluded Tangible Personal Property”), and any personal computers and vehicles that are not primarily used by (iv) the Transferred Employees Trademarks set forth in respect Section 1.2(a)(iv) of the Business, Sellers Disclosure Schedule (A“Excluded Trademarks”) and (v) the Information Systems domain names set forth in Section 1.2(a)(v) of Seller Parent and its Subsidiaries, other than the Business IT Systems and Sellers Disclosure Schedule (A) any leases relating to the assets described in the foregoing clauses (B) through (D“Excluded Domain Names”);
(ivb) all legal the assets, rights and beneficial interest in properties of every kind and description and wherever located, whether now existing or hereafter acquired, whether tangible or intangible, real, personal or mixed primarily used in, or related to, the share capital conduct or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) operation of the Seller Disclosure LetterExcluded Businesses;
(vc) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including except as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Purchased Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c1.1(a)(viii), whether the corporate charter, qualification to conduct business as a foreign corporation, arrangements with registered agents relating to foreign qualifications, taxpayer and other identification numbers, corporate seal, minute books, stock transfer books, blank stock certificates, all employee-related or not derived from the Business employee benefit-related files or records and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns documents of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating theretoEntities);
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xivd) all rights of Seller Parent the Sellers or any of its their Affiliates (for clarity, other than, from and after than the Closing, the Conveyed Subsidiaries and their SubsidiariesPurchased Entities) arising under this Agreement or Agreement, the Ancillary Agreements and any documents delivered or received in connection herewith from the consummation of the transactions contemplated hereby or therewiththereby;
(xve) except as set forth in Section 2.1(oall cash and cash equivalents, securities (other than the Interests) and negotiable instruments on hand, in lock boxes, in financial institutions or elsewhere, of the Sellers or any of their Affiliates (other than the Purchased Entities), including any cash residing in any collateral cash account securing any obligation or contingent obligation;
(f) all intercompany receivables between each of the Sellers and any of their Affiliates, or between any Affiliate of the Sellers and any other Affiliate of the Sellers;
(g) all Intellectual Property rights not included in the Purchased Assets (including the Excluded Names);
(h) all Insurance Arrangements of the Sellers or any of their Affiliates and all claims, credits, causes of action or rights thereunder and proceeds thereof;
(i) all assets or rights in or underlying any compensation or benefit plan, program, agreement or arrangement that is maintained or contributed to by or on behalf of the Sellers or any of their Affiliates except for those assets that are transferred to Buyer pursuant to Article VII and any other assets or rights associated with Assumed Liabilities under any compensation or benefit plan, program, agreement or arrangement for the benefit of any Transferred Business Employees;
(j) all Tax records (including Tax Returns and supporting work papers) covering any period or transaction of the Sellers occurring on or prior to the Closing Date (other than any Tax records of the Purchased Entities or relating solely to the Business or the Purchased Assets) and, subject to Section 6.188.5, all current and prior insurance policies and all rights any refunds of any nature with respect thereto, including all insurance recoveries thereunder and rights Taxes for which Sellers are responsible pursuant to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviiik) all third-party warrantiesActions being pursued by Sellers or their Affiliates, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1Assumed Actions; and
(xxl) all Leased Real Property, other than the assets Leased Real Property set forth in on Section 2.3(a)(xx1.1(a)(v) of the Seller Sellers Disclosure LetterSchedule.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 1 contract
Excluded Assets. (a) Notwithstanding Catalyst is not acquiring pursuant to this Agreement or any provision in this Ancillary Agreement, Purchaser and the Purchaser Designated ▇▇▇▇▇▇▇ and its Affiliates are not purchasing or acquiring shall retain, any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in in, to or under any assets, properties or rights of ▇▇▇▇▇▇▇ or any of its Affiliates other than the Purchased Transferred Assets (collectively, the “Excluded Assets”). Without limiting the foregoing, includingthe following assets are Excluded Assets and will not be transferred to Catalyst at Closing pursuant to this Agreement or any Ancillary Agreement:
(ia) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, products and product rights other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1the Licensed Products;
(iib) all Retained Real Propertyrights to the Licensed Products outside the Territory;
(iiic) (A) the Retained Facilitiesall real property assets, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D)including leasehold rights;
(ivd) all legal equipment and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (fixed assets including manufacturing and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letterpackaging equipment;
(ve) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments Compound and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventorymaterials, work-in-process inventory, spare parts and inventory and finished products inventory) other than the Inventory and any samples of ProductsTransferred Materials;
(viif) all intellectual property rights other than the Retained Names Transferred Patents;
(g) all contracts, agreements, purchase orders, quality agreements and other instruments other than the Transferred Contracts;
(h) all Regulatory Filings and supporting files, writings, data, studies and reports and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, books and including as set forth on Section 2.3(a)(vii) of records and databases other than the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Transferred Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiiii) all claims, counterclaims, defenses, causes of action, counterclaims and rights under warranties, rights of recovery, rights of set-off off, rights of subrogation and other rights against third parties Third Parties other than the Transferred Claims;
(at any time j) all cash and cash equivalents on hand and in banks and all deposits and other collateral;
(k) all accounts receivable;
(l) all computer equipment and computer software;
(m) all websites, social media sites, phone, fax or in any manner arising or existing, whether similar numbers;
(n) ▇▇▇▇▇▇▇’ corporate name and derivations thereof;
(o) the labor and other services of all employees and contractors of ▇▇▇▇▇▇▇ and its Affiliates and the services of all Third Party service providers that provide services to ▇▇▇▇▇▇▇ and its Affiliates;
(p) all refunds of taxes or inchoateany prepaid taxes arising from or with respect to the Transferred Assets or Licensed IP prior to the Closing Date or arising from or with respect to the development, known manufacture, packaging, promotion, distribution, marketing, use or unknownsale of the Licensed Products prior to the Closing Date;
(q) all warranties, contingent or non-contingent) representations and guarantees made by suppliers, manufacturers, service providers and contractors other than those identified as Purchased Assets in Section 2.1related to the Transferred Materials or other Transferred Assets;
(xivr) all policies, procedures, systems and protocols of ▇▇▇▇▇▇▇ and its Affiliates with respect to the development, manufacture, packaging, promotion, distribution, marketing, use and sale of the Licensed Products;
(s) all insurance policies of ▇▇▇▇▇▇▇ and its Affiliates and rights thereunder;
(t) all other assets and other properties used by ▇▇▇▇▇▇▇ and its Affiliates in connection with the development, manufacture, packaging, promotion, distribution, marketing, use and sale of the Licensed Products, except for Transferred Assets;
(u) subject to Section 5.1(b), all Related Contracts and Related Records;
(v) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) ▇▇▇▇▇▇▇ under this Agreement or any of the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1Agreements; and
(xxw) the assets set forth material specified in Section 2.3(a)(xx) of the Seller Disclosure Letter.
section (b) Notwithstanding anything of Schedule 1.85 which is for use outside the Territory. For clarity, nothing in this Agreement Section 2.2 limits or otherwise affects the license to Catalyst under the contrary but subject to Licensed IP as provided in Section 6.5(f2.12(a), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 1 contract
Sources: License and Asset Purchase Agreement (Catalyst Pharmaceuticals, Inc.)
Excluded Assets. (a) Notwithstanding any provision in this Agreementthe provisions of Section 2.1(a), Purchaser and the Purchaser Designated Affiliates are not purchasing or acquiring any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any assets, properties or rights other than the Purchased Assets shall not include any other assets of Seller (collectively, the “Excluded Assets”), including:
(i) any of Seller’s or its Affiliates’ retail operations (including retail operations located at the same locations as the Pharmacies), and all assets constituting ownership interests inor properties located thereon or used in connection therewith, or that are used or held for use inand rights appurtenant thereto, the Retained Businessesincluding equipment, inventory, records, supplies, manufacturer warranties, Permits, prepaid expenses, deferred charges, advance payments, security deposits and prepaid items, goodwill and other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1assets;
(ii) all Retained Real Propertyover-the-counter merchandise or over-the-counter inventory, including over-the-counter merchandise or over-the-counter inventory located behind the Pharmacy counter, and durable medical equipment;
(iii) (A) the Retained Facilitiesany computer equipment and systems, (A) any owned and leased furnitureorder-entry devices, equipmentpoint-of-sale systems, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Lettersurveillance systems, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D)alarm systems;
(iv) all legal any of Seller’s licenses, permits, contracts, employee benefit plans and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (programs and their Subsidiaries)computer hardware, other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Lettersoftware programs and systems;
(v) all Shared Contracts and all other Contractsany of Seller’s websites, sales orderstrademarks, purchase orderstrade names, instruments intellectual property and other commitments, obligations and arrangements to which Seller Parent intangible property or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contractsrights;
(vi) all inventory (including all raw material inventoryInventory located at the Pharmacies having an aggregate Inventory Value in excess of $36,000,000 and, work-in-process inventorywith respect to each Pharmacy, spare parts inventory and finished products inventory) other than having a value in excess of the Applicable Pharmacy Inventory and any samples of ProductsCap;
(vii) the Retained Names any books and records related to Taxes of Seller (including accounting records and Tax Returns) and all other Intellectual Property financial and Tax records relating to the Pharmacies that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) form part of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation Seller’s or any of Seller’s Affiliates’ or any of their respective Affiliates’ general ledger other violation of any such Intellectual Propertythan, in each case, Tax records prepared solely with respect to the Purchased Assets;
(viii) all Governmental Authorizationscash, including product registrationscash equivalents, manufacturing registrations and environmental permits, owned, used or licensed by securities of Seller Parent or any of its Seller’s Affiliates and not Related (including any drawer cash), accounts receivable or proceeds thereof, trade receivables, refunds or credits, claims for refunds or credits or rights to the Businessreceive refunds or credit related to Taxes that are an Excluded Liability;
(ix) all other than any Script Assets, any (A) registration information and customer data and vendor listsother information derived from customer loyalty cards, all advertisingpromotions, marketingco-branded credit card programs and the like, sales and promotional materials(B) customer lists (including email addresses) related to Seller’s or any of Seller’s Affiliates’ internet business operations, (C) guest data related to the non-Pharmacy operations of Seller or any of Seller’s Affiliates, and business and financial records, books, and documents and other Records, in each case not Related (D) equipment related to the Business, f▇▇▇▇▇▇▇.▇▇▇ and the Specified Recordsf▇▇▇▇▇▇▇▇.▇▇▇ business operations;
(x) all accounts receivable claims, to the extent arising out of, relating to or in respect of any other Excluded Asset and other current assets Excluded Liability or the operation of the Pharmacies prior to Closing, including (A) any such items arising under insurance policies, and (B) all cash guarantees, warranties, indemnities, and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds similar rights in time and demand deposits or similar accounts favor of Seller Parent or any of its Seller’s Affiliates (including in respect of any Excluded Asset, any Excluded Liability or the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation operation of the Final Business Working Capital, and Pharmacies prior to the Cash Equivalents included in the calculation of Final Business Net Cash)applicable Closing;
(xi) shelving and similar fixtures, all Tax refundsreal property owned, Tax credits leased, subleased or otherwise occupied by Seller or any of Seller’s Affiliates, together with all buildings, fixtures, structures, and improvements situated thereon and all easements, rights-of-way and other Tax Assets of the Sellers rights and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation)privileges appurtenant thereto;
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;insurance policies; and
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those assets identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6on Schedule 2.1(c), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 1 contract
Sources: Asset Purchase Agreement (Freds Inc)
Excluded Assets. (a) Notwithstanding any provision anything to the contrary contained in this AgreementSection 2.1(a), Purchaser and will not purchase, assume or otherwise acquire any assets of the Purchaser Designated HSBC Sellers or any of their respective Affiliates that are not purchasing or acquiring any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest expressly included in any assets, properties or rights other than the Purchased Assets (collectively, the “Excluded Assets”), including, by way of example only, the following assets, properties, rights, Contracts and claims, wherever located, whether tangible or intangible, real, personal or mixed:
(i1) all assets constituting ownership interests inassets, properties, rights, Contracts and claims, including Loans and extensions of credit in process, wherever located, whether tangible or that are used intangible, real, personal or held for use inmixed, primarily related to the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1;
(ii) all Retained Real Property;
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory2) other than the Inventory Real Property Leases and any samples of Products;
(vii) the Retained Names and all other Intellectual ATM Real Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor listsLeases, all advertisingleases, marketingsubleases, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits licenses or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes Contracts pursuant to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the HSBC Sellers or any of their respective Affiliates leases, subleases or licenses real property;
(other than 3) all Nonperforming Loans, Loans to Retained Employees and Loans originated with or guaranteed by the Conveyed Subsidiaries Veterans’ Administration or the Federal Housing Administration;
(4) the Excluded Contracts;
(5) all assets related to employee benefit arrangements of any HSBC Seller or any of their respective Affiliates, including the Employee Plans;
(6) all Intellectual Property of the HSBC Sellers and their Subsidiariesrespective Affiliates, including all right, title and interest in and to all proprietary or licensed software, systems or programs or computer software agreements of the HSBC Sellers and their respective Affiliates, including any rights (ownership, licensed or otherwise) to any of the HSBC Entity Names and any other Trademarks of the HSBC Sellers or their respective Affiliates, including those identified on Schedule 2.1(b)(6);
(7) all books, records and other data that cannot, without unreasonable effort or expense, be separated from books and records maintained by the HSBC Sellers or their respective Affiliates in connection with the Retained Businesses or to the extent that such books, records and other data relate to Excluded Assets, Excluded Liabilities or Business Employees or Affiliated Employees who do not relate solely become Transferred Business Employees, and all personnel files and records; provided that, to Purchased Assets or Assumed Liabilitiesthe extent permitted under, and in each case any books and records relating thereto;
(xiii) all claimsaccordance with, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.67.1(c), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent Assignor shall use commercially reasonable efforts to take cause the HSBC Sellers to provide Purchaser with access to any such books, records and other data for which the above-referenced separation would cause the HSBC Sellers to incur unreasonable effort or expense; and
(8) all licenses, charters, and legal entities of the HSBC Sellers or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Daterespective Affiliates.
Appears in 1 contract
Sources: Assignment, Purchase and Assumption Agreement (Community Bank System Inc)
Excluded Assets. (a) Notwithstanding any provision anything 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 assets that Sellers shall sell, transfer, assign, convey and deliver to Purchasers, and that Purchasers shall purchase, assume, accept and acquire from Sellers, at the Closing are the Assets set forth in this AgreementSection 2.1. Each Seller is not selling, Purchaser transferring, assigning, conveying or delivering to Purchasers, and the Purchaser Designated Affiliates Purchasers are not purchasing purchasing, accepting, assuming or acquiring any of Seller Parentfrom such Seller, such Seller’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in or to any assets, properties or rights other than the Purchased Assets assets (the “Excluded Assets”), includingincluding the following:
(i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1;
(ii) all Retained Real Property;
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates negotiable instruments of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of such Seller Parent or any of its Affiliates (on hand, in lock boxes, in financial institutions or elsewhere, including the Conveyed Subsidiaries or any Lockbox Account and its contents on the Closing Date, but excluding the cash and cash equivalents of their Subsidiaries) (other than the accounts receivable and other assets, in each case included e^deltacom Business received after Closing in the calculation of Lockbox Account in accordance with Section 2.1(i) and excluding the Final Business Working Capital, cash and the Cash Equivalents included cash equivalents in the calculation of Final Business Net CashOperating Accounting in accordance with Section 2.1(i) and Section 2.7(a);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (ab) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculationExcluded Improvements set forth on Schedule 2.1(a)(ii);
(xiic) all assets and properties of every kind and description owned, leased (pursuant to leases in which a Seller Combined is not the lessor) or otherwise held for use by third parties, including customers under the Customer Contracts, located at the Data Center Facility;
(d) (i) all fiber optic facilities, equipment and elements of such Seller, other than any of such facilities set forth on Schedule 2.1(b)(i), and (ii) all rights provided to Sellers by the Declaration of Easement;
(e) all contracts of insurance and the prepaid business insurance (including liability, business interruption and the like) premiums and the prepaid group insurance premiums of such Seller;
(f) all of such Seller’s rights under manufacturers’, resellers’ and vendors’ warranties other than such Seller’s rights under manufacturers’, resellers and vendors warranties transferred pursuant to Section 2.1(n);
(g) all rights to Tax Returns refunds, credits and all similar benefits, and to any Tax Returns attributes, relating to or attributable to periods ending, or relating to an event occurring prior to, the Closing Date;
(h) the minute books from the meetings of the Sellers or any boards of their Affiliates (other than directors and stockholders of such Seller, the Conveyed Subsidiaries stock records and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, corporate seal of such Seller and in each case any books the Tax returns and records relating theretoto Taxes of such Seller;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xivi) all rights of such Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or and the Ancillary Agreements and any documents delivered or received in connection herewith or therewithother Transaction Agreements;
(xvj) except as set forth all prepaid commissions owed to Sellers in Section 2.1(o) connection with the e^deltacom Business to the extent earned prior to the Closing Date and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveriesthe extent listed on Schedule 2.2(j);
(xvik) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Dinix Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xxl) the any other assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letteridentified on Schedule 2.2(l).
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 1 contract
Excluded Assets. (a) Notwithstanding any provision in this 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. (a) Notwithstanding any provision in this AgreementSellers shall retain and not sell, Purchaser convey, assign or deliver to the Buyer, and the Purchaser Designated Affiliates are Buyer shall not purchasing purchase or acquiring accept from Sellers, any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any assets, properties or rights and all other than the assets not specifically identified as Purchased Assets or used in the Business, including, without limitation, the following properties and assets of Sellers (the “Excluded Assets”):
(a) all cash held by the Sellers as of the Closing;
(b) all Intellectual Property rights identified on Schedule 2.02(b) (the “Excluded IP Rights”);
(c) all computer programs, including:Software and all licenses, manuals, disks, instructions, flowcharts and schematics identified on Schedule 2.02(c) (the “Excluded Software”);
(d) all tangible personal property that is owned or held by the Sellers that is specifically identified on Schedule 2.02(d) (the “Excluded Tangible Personal Property”);
(e) all Contracts other than the Customer Contracts, the Additional Contracts and the licenses related to any Licensed Intellectual Property;
(f) the Grand Forks Facility and the Grand Forks Real Estate Lease, except to the extent provided in Section 5.18;
(g) all prepaid expenses related to the Business, other than those identified on Schedule 2.01(k);
(h) any assets not used in or otherwise related to the Business, including but not limited to those assets identified on Schedule 2.02(h);
(i) all assets constituting ownership interests in, or personnel records of the Sellers and any other records that the Sellers are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets required by law to retain in clauses (a) through (s) of Section 2.1its possession;
(iij) all Retained Real Propertyrights and interests under any Employee Benefit Plan maintained by the Sellers or any ERISA Affiliate or to which the Sellers or any ERISA Affiliate are required to contribute;
(iiik) (A) the Retained Facilities, (A) all agreements between a Seller and any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Business Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D)or Contractors;
(ivl) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to financial records which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is do not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related directly relate to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xivm) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveriesloans made by a Seller to current or former employees or contractors of a Seller;
(xvin) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of rights with respect to any Seller Group Plan real property owned or Foreign Seller Group Plan that is not a Conveyed Subsidiary Planleased by the Sellers;
(xviio) all corporate-level services (but not other assets and properties of the assets related to such services to Sellers of every kind, character or description, other than the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warrantieswhich are owned, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in(whether or not exclusively) in connection with the Sellers’ businesses, wherever located, whether or related to, not similar to the Retained Businesses, in each case other than those assets, properties or rights identified as items detailed under Purchased Assets in clauses (a) through (s) of Section 2.1Assets; and
(xxp) all consideration to be received by the assets set forth in Section 2.3(a)(xx) Sellers under this Agreement and all other rights of the Seller Disclosure LetterSellers hereunder.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 1 contract
Excluded Assets. (a) Notwithstanding any provision 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. The following assets and property shall be retained by the Sellers and Seller Affiliates, as the case may be, and shall not constitute Acquired Assets, regardless of whether any of them relates in any manner to or is used in the Business (collectively, the "EXCLUDED ASSETS"):
(a) Notwithstanding all of the assets, properties, goodwill and rights of the Sellers or any provision in this AgreementSeller Affiliate of every kind and nature, Purchaser real, personal and the Purchaser Designated Affiliates mixed, tangible and intangible, that are not purchasing or acquiring any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) rightowned, 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 inby the Sellers, 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 Seller Affiliate primarily in connection with the operation 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;
(ixb) all customer and vendor listsinsurance policies, all advertisingcontracts, marketingcoverages or bonds owned by the Sellers or any Seller Affiliate, sales and promotional materialsincluding, without limitation, entitlements to the return of premiums on cancellation of policies, and business all rights of the Sellers or any Seller Affiliate of every nature and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Recordsdescription under or arising out of such insurance policies;
(xc) all accounts receivable receivable, notes receivable, credits, refunds, prepaid expenses, deferred charges, advance payments, security deposits and prepaid items, other current assets and than any of the foregoing (i) securing open customer orders which are included in the Assigned Contracts or (ii) which are listed on Schedules 1.1(j) or 1.1(k);
(d) all cash and cash equivalentscash, checks, money orders, marketable negotiable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time depositscommercial paper, negotiable instrumentstreasury bills and treasury notes and all other marketable securities, securities and brokerage bonds, bank accounts, funds in time and demand deposits or similar accounts lock boxes, letters of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable credit and other assets, in each case included in cash equivalents held on the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash)Closing Date;
(xie) all Tax refunds, Tax credits or other Tax Assets of real property owned by the Sellers and 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 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 Affiliate and all Tax Returns plants, buildings and improvements thereon and all right, title and interest of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries Seller Affiliate with respect to real property leasehold interests and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating theretorights thereunder;
(xiiif) all employment, consulting, independent contractor and similar Contracts to which either of the Sellers or any Seller Affiliate is a party or is bound, other than any Contracts or agreements with the Independent Contractors set forth in Schedule 3(r)(ii) to the extent assignable and accepted by the Buyer after the Closing Date;
(g) those assets, if any, set forth in Section 1.2(g) of the Disclosure Schedule;
(h) account books of original entry, general ledgers, tax returns and other documents and records directly relating to Taxes;
(i) the corporate records consisting of director and stockholder minutes and proceedings;
(j) all rights of the Sellers or the Seller Parent under this Agreement and the agreements and instruments executed and delivered to the Sellers or the Seller Parent by the Buyer or the Buyer Parent pursuant to this Agreement or any Related Agreement;
(k) all rights of the Sellers or the Seller Parent to any Tax refunds or claims for Tax refunds other than those relating to the Acquired Assets or the Business as conducted after the Closing Date;
(l) all claims, defensesdemands, causes of action, counterclaims choses in action, rights of recovery, rights of set off and rights of set-off against third parties (at recoupment of the Sellers and each Seller Affiliate that relate exclusively to any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) of the other than those identified as Purchased Excluded 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 2.1Excluded Liabilities; and
(xxm) the assets set forth all guarantees, warranties, indemnities and similar rights in Section 2.3(a)(xx) favor of the Sellers or any Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement Affiliate that relate exclusively to any of the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (other Excluded Assets or cause one or more any of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing DateLiabilities.
Appears in 1 contract
Sources: Asset Purchase Agreement (Youthstream Media Networks 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 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, transferring or assigning, any other assets or 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 other than the Purchased Assets, and all such other assets and properties shall be excluded from the Assets (such other assets and properties, the “Excluded Assets”). Without limitation of the foregoing, includingthe Excluded Assets shall include the following assets and properties of Seller:
(i) all assets constituting ownership interests inof Pharma-Bio Serv, or that are used or held for use inInc. and Pharma-Bio Serv PR, Inc. (collectively, the Retained Businesses, other than those assets identified as Purchased Assets “Affiliate Entities”) held by such Affiliate Entity and used in clauses (a) through (s) of Section 2.1the Laboratory Business;
(ii) all Retained Real Propertyassets and rights of the Affiliate Entities and their Affiliates other than the Assets;
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible signs or personal property and other tangible property located at which contain the Retained Facilities name (or not Related trade derivative thereof) or logo of Seller, including all uniforms supplied to the BusinessSeller’s employees, 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)if any;
(iv) all legal accounts receivable of Seller or the Affiliate Entities relating to the Laboratory Business or its operation thereof, refunds of insurance premiums, and beneficial interest in credit and debit card receivables (collectively, the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries“Accounts Receivable”), including but not limited to any accounts receivable or other than those equity interests set forth on Section 2.1(q) of amounts owed by Buyer or its Affiliates to Seller or its Affiliates, which such amounts shall remain due and payable and not be affected by the Seller Disclosure Lettertransactions contemplated; hereby;
(v) all Shared Contracts files, documents, instruments, papers, computer files and records and all other Contracts, sales orders, purchase orders, instruments books and other commitments, obligations and arrangements to which records of Seller Parent in any form 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 Contractsmedia;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than any Permits relating to the Inventory and any samples of ProductsLaboratory Business which are not permitted to be transferred or assigned under applicable Law;
(vii) the Retained Names all Deposits 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 PropertyPrepaid Expenses;
(viii) other than the Transferred IP, all Governmental AuthorizationsIntellectual Property owned by or licensed to Seller (except pursuant to any Assigned Contract), including product registrationsall rights in the name “Scienza”, manufacturing registrations the websites and environmental permitsweb addresses of Seller, ownedits trademarks, used service marks, trade names, and similar intangibles including any right to use, or interest in, any of the name of Seller or any Affiliate thereof, or any similar name or intangible registered or licensed to any of the foregoing, or any trade names used by Seller Parent or any Affiliate thereof (except pursuant to any Contract that is an Asset) and all goodwill of Seller and its Affiliates and not Related to the BusinessAffiliates;
(ix) all customer and vendor listsclaims, all advertisingrebates, marketing, sales and promotional materials, and business and financial records, books, and documents refunds and other Records, in each case not Related general intangibles arising from the operation of the Laboratory Business prior to the Business, and the Specified RecordsEffective Time;
(x) all accounts receivable refunds and credits of Taxes attributable to the Laboratory Business or the Assets for any Pre-Closing Tax Period, including any personal property taxes and municipal license tax paid in advance by Seller;
(xi) all casualty insurance, title insurance, liability insurance and other current insurance policies of Seller and its Affiliates and claims or proceeds thereunder;
(xii) other than the Transferred Software, any and all rights to any software used in any computer equipment;
(xiii) the books and business records of Seller primarily relating to assets and liabilities of Seller other than the Assets or the Assumed Liabilities and the books and business records of Seller or the Affiliate Entities relating to (A) employees, independent contractors and other personnel of Seller, including employee manuals, employee handbooks and employee personnel records, and instructional, promotional and educational materials, or (B) corporate, chain-wide or division-level operations, policies, or plans, including the following: policy, compliance and procedures manuals; internal audit reports and any information, books, records or files (whether in writing or electronic format) concerning the financial performance, strategic plans, budgets, forecasts, projections, or competitive or capital spending analysis of excluded operations;
(xiv) all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank accounts and other depositary accounts, certificates securities 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 therewithSeller;
(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 Contracts of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveriesSeller that are not Assigned Contracts;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any the rights which accrue or will accrue to Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Planunder the Transaction Documents;
(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 Affiliatestrucks, vans, and without limiting Seller Parent’s obligations under the Transition Services Agreementautomobiles;
(xviii) all third-party warrantiescustomers, indemnitiescustomer relationships, further assurances customer lists, customer data and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1information;
(xix) all assetsproperty which, properties upon installation thereof, under Seller’s current lease agreement becomes the property of the landlord thereunder;
(xx) all Benefit Plans, and all funding vehicles and assets attributable thereto;
(xxi) all rights to occupy the Laboratory Premises under lease except to the extent subleased to Buyer as provided herein;
(xxii) all rights to, or obligations under, any Legal Proceeding of any Person that are not Related nature available to the Businessor being pursued by Seller, including all assets, properties and rights constituting ownership interests in, whether arising by way of counterclaim 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 2.1otherwise; and
(xxxxiii) 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 (all equity 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 other ownership interests 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 Dateentity.
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. There shall be excluded from the Purchased Assets and Seller shall retain all of its right, title and interest in and to the excluded assets all tangible and intangible property or right related to Mentergy's products and services (other than LearnLinc) (i.e., other than identified in Section 1.1 above and accordingly directly related to the LearnLinc Business and LearnLinc Software). For purposes of clarification, the excluded assets (the "Excluded Assets") specifically include the following assets, and Purchaser, shall acquire no right thereto:
(a) Notwithstanding any provision in this Agreement, Purchaser and the Purchaser Designated Affiliates are not purchasing or acquiring any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any assets, properties or rights other than the Purchased Assets (the “Excluded Assets”), including:
(i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets physically located in clauses (a) through (s) of Section 2.1;
(ii) the Troy, NY office and listed on SCHEDULE 1.2, together with all Retained Real Property;
(iii) (A) cash collected from the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related Seller's accounts receivable prior to the BusinessEffective Date (except and provided in Section 1.7) cash equivalents and short-term investments, except as set forth on Section 2.1(d)(i)(B) of accounts receivable related to the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, Mentergy business (A) the Information Systems of Seller Parent and its Subsidiariesi.e., other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their SubsidiariesLearnLinc accounts receivable transferred under Section 1.7), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts minute books, stock records and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor listscorporate seals, all advertising, marketing, sales and promotional materials, and rights to any Mentergy trade or business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) name (other than related to the accounts receivable LearnLinc Software, LearnLinc Business, or TestLinc), all rights to deposits and prepaid expenses (listed on SCHEDULE 1.2), claims for refunds (listed on SCHEDULE 1.2), or rights to offset (listed on SCHEDULE 1.2); all insurance policies and rights thereto (listed on SCHEDULE 1.2); any contract of Seller not specifically identified as part of the Purchased Assets and concerning the Mentergy business, all personnel records, other records that Seller is required by law to retain in its possession, all claims for refund of taxes and other assetsgovernmental charges of whatever nature of Mentergy; all rights in connection with any employee benefit or welfare plan unrelated to the employees located in Troy, in each case included in the calculation of the Final Business Working Capital, New York and the Cash Equivalents included in the calculation of Final Business Net Cash);any employer contribution related to those Mentergy employees; and,
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or and the Ancillary Agreements and any collateral documents delivered or received executed by Seller in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 1 contract
Excluded Assets. (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.
Appears in 1 contract
Excluded Assets. (a) Notwithstanding any provision anything to the contrary contained in this Agreement, Purchaser expressly understands and agrees that the Purchaser Designated Affiliates are not purchasing or acquiring any following assets, business lines, properties, rights and claims of Seller Parent’s or and its Affiliates’ Subsidiaries (including the Conveyed Subsidiaries’ or their Subsidiaries’Purchased Entities) right(collectively, title or interest in any assets, properties or rights other than the Purchased Assets (the “Excluded Assets”)) will be retained by Seller and its Subsidiaries, includingand will be excluded from the Purchased Assets and, to the extent applicable, transferred out of the Purchased Entities:
(i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1;
(ii) all Retained Real Property;
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on in Section 2.1(d)(i)(B) of the 5.7, any and all Seller Disclosure LetterBenefit Plans, and any personal computers and vehicles that are not primarily used by all assets, trust agreements or any other funding and administrative Contracts related to the Transferred Employees in respect of the Business, Seller Benefit Plans;
(Ab) the Information Systems of Seller Parent any and its Subsidiariesall Intellectual Property Rights, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viiic) any and all Governmental AuthorizationsTechnology other than Business Technology (including copies of any Copyable Technology regardless of whether copies of such Copyable Technology are also Business Technology), including product registrationsand, manufacturing registrations except as expressly included in Section 2.4(g), any and environmental permitsall Information Technology;
(d) any and all Contracts (or portions of any Contracts), ownedother than the Business Contracts and the Real Property Leases;
(e) except as expressly included in Section 2.4(e), used any and all owned real property and leased real property and other interests in real property;
(f) except as expressly included in Section 2.4(f), any and all Tangible Personal Property;
(g) any and all prepaid Taxes and any and all refunds or licensed by credits of or against any Taxes of Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assetsPurchased Entities), in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c6.10;
(h) except as expressly included in Section 2.4(i), whether or not derived from any and all Cash Amounts of the Business Seller and whether or not existing its Subsidiaries as of immediately prior to the Closing;
(i) (i) Tax Returns and other Books and Records related to Taxes paid or payable by the Seller Entities or any of their respective Subsidiaries or Affiliates (other than Tax Returns and other Books and Records, but excluding including any refunds portion thereof, that are not Business Books and Records) and (ii) any and all Books and Records other than the Business Books and Records;
(j) any and all insurance policies and binders and interests in insurance pools and programs and self-insurance arrangements whether or credits or other Tax Assets not related to the extent reflected Business, for all periods before, through and after the Closing, including any and all refunds and credits due or to become due thereunder and any prepaid premiums and any and all claims, rights to make claims and rights to proceeds on any such insurance policies for all periods before, through and after the Closing;
(k) any and all Permits, other than the Transferred Permits;
(l) any and all rights to any prepaid expenses and security deposits, other than as an asset on the Final Closing Statement and taken into account expressly included in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculationSection 2.4(h);
(xiim) all Seller Combined Tax Returns any and all Tax Returns Regulatory Approvals (including any applications that are in process) held by any of the Sellers or any of their Affiliates (Seller Entities, other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating theretoTransferred Regulatory Approvals;
(xiiin) any and all Accounts Receivable, other than those expressly included in Section 2.4(m);
(o) any and all claims, defenses, causes of action, counterclaims defenses and rights of set-off against third parties offset or counterclaim, or settlement agreements (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) at any time to the extent arising out of or related to the other Excluded Assets or Retained Liabilities (including (i) all rights and claims under any and all warranties extended by suppliers, vendors, contractors, manufacturers, distributors, licensees and licensors in favor of the Seller Entities, a Purchased Entity or any of their respective Affiliates in respect of any other Excluded Assets or Retained Liabilities and (ii) the right to ▇▇▇ and recover damages for past, present or future infringement or other violation of any Intellectual Property Rights other than those Business Intellectual Property), and the right to retain all proceeds and monies therefrom (collectively, the “Retained Claims”), and any and all other claims and defenses other than the claims and defenses specifically identified as Purchased Assets in Section 2.12.4(n);
(xivp) (i) all rights attorney–client privilege and attorney work-product protection of the Seller Parent Entities, Purchased Entities or associated with the Business, the Purchased Assets or the Assumed Liabilities as a result of legal counsel representing the Seller Entities, the Purchased Entities or the Business in connection with the Transaction and the other transactions contemplated by this Agreement or any of its Affiliates the Transaction Documents, and (for clarity, other than, from and after ii) all documents or communications subject to the Closing, the Conveyed Subsidiaries and their Subsidiariesattorney–client privilege or work-product protection described in subclause (i) under of this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewithclause (p);
(xvq) except as set forth any and all finished Specified ORx Products other than those expressly included in Section 2.1(o) 2.4(k), and subject to Section 6.18, all current and prior insurance policies any and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveriesSeller Supply Agreement Materials;
(xvir) except as expressly set forth in this Agreement (including Section 2.1(p) any and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in on Section 2.3(a)(xx2.5(r) of the Seller Disclosure Letter.Schedules; and
(bs) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f)any and all assets, prior to the Closinggoodwill, business lines, properties, rights and claims of Seller Parent shall use commercially reasonable efforts to take (or cause one or more and its Subsidiaries that do not constitute Purchased Assets. The Parties acknowledge and agree that neither Purchaser nor any of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of Purchased Entities, will acquire or be permitted to retain any direct or indirect right, title or interest in any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing DateAssets.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (PERRIGO Co PLC)
Excluded Assets. (a) Notwithstanding any provision in this Agreementanything to the contrary contained herein, Purchaser expressly understands and agrees that the Purchaser Designated Affiliates are not purchasing or acquiring any following assets and properties of Seller Parent’s or and its Affiliates (excluding JCH and its controlled Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any assets, properties or rights other than the Purchased Assets (the “Excluded Assets”) shall be retained by Seller and its Affiliates (other than the Purchased Companies), includingand shall be excluded from the Purchased Assets, notwithstanding any other provision of this Agreement:
(a) Any and all Cash Amounts (other than any Cash Amounts of the Purchased Entities as of 11:58 p.m. local time in each applicable jurisdiction on the Closing Date to the extent such Cash Amounts are included in the determination of Closing Operating Cash Amounts);
(b) Any and all equity interests in any Affiliate of Seller (other than the Purchased Companies);
(c) Except as set forth in Section 5.7, any and all assets related to the Seller Benefit Plans;
(d) Any and all loans and advances, if any, by Seller or its Affiliates (other than the Purchased Companies) to any of their Affiliates or otherwise to the Business;
(e) Any and all Intellectual Property that is (i) all assets constituting ownership interests in, or that are used or held for use in, owned by the Retained BusinessesSeller and its Affiliates, other than the Business IP (including the Seller Marks and the Licensed IP, in each case, subject to the terms of those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1;
applicable Transaction Documents), (ii) all Retained Real Property;
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on in Section 2.1(d)(i)(B2.5(e) of the Seller Disclosure LetterSchedules, (iii) Registered Intellectual Property that is not listed in Section 2.4(d) of the Seller Disclosure Schedules or (iv) owned by Seller and any personal computers and vehicles its Affiliates that are not primarily used embodied in any products, services, software or components offered by the Transferred Employees Specific Retained Businesses, in respect each case, subject to the terms of those applicable Transaction Documents (collectively, the “Excluded Intellectual Property”);
(f) Any and all IT Assets (including the IT Assets set forth in Section 2.5(f) of the Business, (ASeller Disclosure Schedules) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D)Assets;
(ivg) Any and all legal Contracts and beneficial interest in the share capital or equity interest portions of any Person Contracts, other than the Conveyed Subsidiaries (and their Subsidiaries)Specified Business Contracts, other than those equity interests set forth any Contracts listed on Section 2.1(q2.4(r) of the Seller Disclosure LetterSchedules and the Transferred Leases;
(vh) all Shared Contracts Except as expressly included in Section 2.4(c), any and all other Contracts, sales orders, purchase orders, instruments owned and leased real property and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, interests in each case other than Assumed Contractsreal property;
(vii) Any and all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples refunds of Productsor credits against Excluded Business Taxes;
(viij) Other than the Retained Names Books and Records specified in Section 2.4(n), any and all Books and Records, Tax Returns and other Intellectual Property that is not Business IP, including such Intellectual Property licensed books and records related to Purchaser under an Ancillary Agreement Taxes paid or otherwise, and including as set forth on Section 2.3(a)(vii) of the payable by Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Propertyits Affiliates;
(viiik) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by All correspondence between Seller Parent or any of its Affiliates and its legal counsel, advisors or other Representatives arising out of or relating to the negotiation, execution or delivery of this Agreement or the transactions contemplated hereby (or the sales process relating to a potential strategic transaction, joint venture or sale involving the Business), including documents entered into in connection therewith;
(l) Except as set forth in Section 2.4(o), any and all insurance policies and binders and interests in insurance pools and programs and self-insurance arrangements whether or not Related related to the Business, for all periods before, through and after the Closing, including any and all refunds and credits due or to become due thereunder and any and all claims, rights to make claims and rights to proceeds on any such insurance policies for all periods before, through and after the Closing;
(ixm) Any and all customer Permits other than the Transferred Permits;
(n) All rights to receive services and vendor listsbenefits of any kind (including rebates and similar arrangements), including administrative and corporate (overhead, shared and other) services and benefits of the kind provided to the Business by any Seller Entity, either directly or indirectly through third-party service providers (whether under any umbrella, enterprise or shared ownership, license or use arrangement or otherwise), prior to the Closing Date, and all advertisingassets of any such Seller Entity related thereto (whether owned, leased or licensed), including (A) computer and information processing services (other than as may be provided through the Transferred IT Assets), (B) finance, accounting and payroll services, (C) facilities management services (including environmental, health and safety), (D) treasury services (including banking, insurance, administration, taxation and internal audit), (E) general and administrative services, (F) executive and management services, (G) legal services, (H) human resources services, (I) risk management services, (J) group purchasing services, (K) corporate marketing, sales strategy and promotional materialsdevelopment services, (L) corporate travel and aircraft services, and business and financial records, books, and documents and other Records(M) investor relations services, in each case not Related of clauses (A) through (M), other than such services that are to be provided to Purchaser or any Purchased Company for the benefit of the Business pursuant to the Business, terms of the Transition Services Agreement and the Specified RecordsControls Supply Agreement or any other supply agreements;
(xo) all accounts receivable All assets and other current assets rights relating to the Business sold or otherwise transferred or disposed of during the period from the date hereof through and including the Closing Date, in any event in accordance with the provisions hereof, and all cash rights arising under or relating to any Retained Liabilities;
(p) The Retained Businesses;
(q) All other assets set forth on Section 2.5(q) of the Seller Disclosure Schedules; and
(r) Except for those assets set forth on Section 2.4 of the Seller Disclosure Schedules, any and cash equivalentsall assets, checksbusiness lines, money ordersproperties, marketable securitiesrights, short-term instruments, bank Contracts and other depositary accounts, certificates claims of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of the Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable JCH and other assetsits controlled Affiliates) not primarily used, or held primarily for use, in each case included in the calculation operation of the Final Business Working CapitalBusiness, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c)wherever located, whether tangible or not derived from the Business intangible, real, personal or mixed. The parties acknowledge and whether or not existing prior to the Closingagree that none of Purchaser, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarityor, other than, from and after the Closing, the Conveyed Subsidiaries Purchased Companies, will acquire or be permitted to retain any direct or indirect right, title and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result interest in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing DateAssets.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Johnson Controls International PLC)
Excluded Assets. Notwithstanding anything to the contrary contained in Section 1.2, the parties expressly understand and agree that the Purchased Assets shall not include, and neither Seller nor any of its Subsidiaries (other than an Acquired Company) is selling, assigning, transferring or conveying to Purchaser pursuant to Section 1.2 any right to or interest in, any of the following assets, properties, rights, Contracts and claims, whether tangible or intangible, real, personal or mixed (except with respect to assets sold, assigned, transferred or conveyed with the Acquired Companies) (collectively, the "EXCLUDED ASSETS"):
(a) Notwithstanding any provision in this Agreementall cash, Purchaser and the Purchaser Designated Affiliates are not purchasing or acquiring any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any assets, properties or rights other than the Purchased Assets (the “Excluded Assets”), including:
(i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1;
(ii) all Retained Real Property;
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checksbank deposits, money ordersinvestment accounts, marketable securities, short-term instruments, bank and other depositary accountslockboxes, certificates of deposit, time deposits, negotiable instruments, marketable securities and brokerage accounts, funds in time and demand deposits or similar accounts cash items, of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net CashAcquired Companies);
(xib) all Tax refundssubject to Sections 1.2 and 10.1, Tax credits any Seller Employee Benefit Plan, any trusts, insurance arrangements or other Tax Assets assets held pursuant to, or set aside to fund the obligations of the Sellers and Seller or its Subsidiaries under, any refund or credit against such Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c)Employee Benefit Plan, whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books data and records relating thereto;
(xiiior copies thereof) all claimsrequired to administer the benefits of Acquired Company Employees and Business Employees under any Seller Employee Benefit Plan and, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o1.4(a)(ii), the retention agreements with the Business Employees and Acquired Company Employees listed on Schedule 1.3(b) (the "RETENTION AGREEMENTS");
(c) any and all insurance policies, binders and claims and rights thereunder and the proceeds thereof and all prepaid insurance premiums;
(d) subject to Section 6.187.7, all current of Seller's right, title and prior insurance policies and all rights interest in any name, Trademark, trade dress, internet address, trade name, service mark or logo, or any derivation of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to foregoing, togethe▇ ▇▇th all of the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests ingoodwill represented thereby, or that are used or held for use in, or related to, the Retained Businesses, pertaining thereto in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) listed on the Closing Date.Schedule 1.3
Appears in 1 contract
Excluded Assets. (a) Notwithstanding anything herein to the contrary, the Acquired Assets with respect to any provision in this Agreement, Purchaser and the Purchaser Designated Affiliates are Acquired Store or otherwise shall not purchasing or acquiring include any of Seller Parent’s or its Affiliates’ the following (including the Conveyed Subsidiaries’ or their Subsidiaries’) rightcollectively, title or interest in any assets, properties or rights other than the Purchased Assets (the “Excluded Assets”), including:):
(i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1any Seller’s rights under this Agreement and the other Transaction Documents;
(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 Letterotherwise expressly included as Acquired Assets, 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 deposit and other bank deposits, negotiable instrumentssecurities, securities entitlements, instruments and brokerage other investments of Sellers and all bank accounts and securities accounts;
(c) (i) all documents prepared in connection with this Agreement or the transactions contemplated hereby or thereby, funds or Primarily Relating to the Bankruptcy Case, all minute books, corporate records (such as stock registers), income Tax Returns, and organizational documents of Sellers and the Retained Subsidiaries and (ii) copies of all documents relating (but not Primarily Relating) to the Bankruptcy Case;
(d) any Contract that is not an Assigned Agreement;
(e) any interest in time or right to any refund, rebate or credit of Excluded Taxes;
(f) all Claims and demand deposits or similar accounts Proceedings 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, Claims described in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net CashSection 3.1(m));
(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 (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation)Excluded IP/IT;
(xiih) all shares of capital stock or other equity interests of any Seller Combined Tax Returns or Retained Subsidiary or securities convertible into or exchangeable or exercisable for shares of capital stock or other equity interests of any Seller, Retained Subsidiary or any other Person;
(i) all Excluded Inventory, all Excluded Equipment and all Tax Returns of the Sellers Excluded Improvements;
(j) all Employee Plans, including any assets, trust agreements 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 funding Contracts related thereto;
(xiiik) 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 2.1the Austin Excluded Assets;
(xivl) 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 therewithaccounts receivable;
(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 recoveriesEquipment located at Sellers’ corporate headquarters;
(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;IP Licenses; and
(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;
(xixo) 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 Sellers 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 LetterAcquired Assets.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 1 contract
Sources: Asset Purchase Agreement
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 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’) Sellers shall retain all 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, Intellectual Property Rights used in or that are used or held for use in, the Retained Businessesrelated to any Excluded Business, other than those assets identified as any Purchased Assets in clauses IP (a) through (s) of Section 2.1“Excluded IP”);
(ii) all Retained Real Propertyavoidance 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 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 set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, Excluded 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 (D)all rights thereunder;
(iv) all legal Inventory, Equipment and beneficial interest other real and personal property used in connection with any Excluded Business, but excluding the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests Equipment set forth on Section 2.1(q) of the Seller Disclosure LetterSchedule 2.1(a)(v);
(v) all Shared Contracts any prepaid Property Taxes with respect to the Purchased Assets that are attributable to Pre-Closing Tax Periods, and all any refund of Excluded Taxes (for the avoidance of doubt, other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements than any refund of Property Taxes to which Seller Parent or any of its Affiliates the Purchaser is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contractsentitled pursuant to Section 7.4(c));
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than as set forth in Section 2.1(a)(iv), all cash and cash equivalents, including checks, commercial paper, treasury bills, certificates of deposit and other bank deposits, security deposits and other prepaid amounts made in respect of the Inventory Assumed Lease, securities, securities entitlements, instruments and other investments and all bank accounts and securities accounts, including any samples cash collateral that is collateralizing any letters of Productscredit and all bank accounts of the Sellers;
(vii) the Retained Names and all any capital stock, securities or other Intellectual Property that is not Business IPinterest of any Seller held in any Person, 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 PropertyForeign Equity Interests;
(viii) all Governmental Authorizationsrights, claims, actions, refunds, causes of action, choses in action, suits or proceedings, rights of recovery, rights of setoff (to the extent not extinguished), rights of recoupment, rights of indemnity or contribution and other similar rights (known and unknown, matured and unmatured, accrued or contingent, regardless of whether such rights are currently exercisable) against any Person, including product registrationsall warranties, manufacturing registrations representations, guarantees, indemnities and environmental permitsother contractual claims (express, ownedimplied or otherwise), used or licensed by Seller Parent or any of its Affiliates and not Related in each case, to the Businessextent related to the other assets, rights and properties set forth in this Section 2.2(a) or the Excluded Liabilities;
(ix) all customer prepayments made with regard to insurance policies not assumed by the Purchaser and vendor listssecurity deposits, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related pre-paid expenses or prepayments to the Business, and the Specified Recordsextent made in connection with any other Excluded Asset or Excluded Liability;
(x) all accounts receivable Sellers’ rights under this Agreement and under any other current assets Transaction Document and all cash and non-cash equivalents, checks, money orders, marketable securities, short-term instruments, bank consideration payable or deliverable to or for the account of any Seller by the Purchaser pursuant and other depositary accounts, certificates subject to the terms and provisions of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent this Agreement 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)Ancillary Agreement;
(xi) all Tax refunds, Tax credits the assets of any Foreign Benefit Plan 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)U.S. Benefit Plan;
(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 specifically set forth in Section 2.1(o) and subject to Section 6.18as a Purchased Asset, 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 which are used or held for use in, or related to, the Retained Businesses, primarily in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1any Excluded Business; and
(xxxiii) Retained Books and Records; provided that Sellers shall, at the assets set forth Purchaser’s request, provide the Purchaser with a copy (and shall allow the Purchaser to make a copy) of any Retained Books and Records that are related to the Purchased Assets, the Assumed Liabilities or the USG Business (other than the Retained Books and Records described in Section 2.3(a)(xxclause (d) of the Seller Disclosure Letterdefinition of Retained Books and Records).
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f)contrary, the Purchaser may, in its sole and absolute discretion, at any time on or prior to the Closingdate that is one Business Day before the Closing Date, Seller Parent elect not to acquire any of the assets, properties and rights of any Seller, and any asset so designated by the Purchaser shall use commercially reasonable efforts be an Excluded Asset for all purposes hereunder; provided, however, that with respect to take (or cause one or more of its Affiliates to take) Contracts and the Leases, such action as is necessarydesignation shall be made in accordance with Section 2.8; and provided, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (andfurther, if neededthat, 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 designation shall not result in any material adverse impact reduction 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 DatePurchase Price.
Appears in 1 contract
Excluded Assets. (a) Notwithstanding any provision The Seller will retain ownership of all assets and properties not identified in Section 1.1 as Purchased Assets, including all rights of the Seller under this Agreement, Purchaser Agreement and the Purchaser Designated Affiliates are not purchasing or acquiring any of Seller Parent’s or its Affiliates’ Transaction Documents and the following (including the Conveyed Subsidiaries’ or their Subsidiaries’) rightcollectively, title or interest in any assets, properties or rights other than the Purchased Assets (the “Excluded Assets”):
(a) all cash, cash deposits, bank accounts, certificates of deposit, savings and other similar cash or cash equivalents of every kind, character, nature and description;
(b) investments in marketable securities;
(c) equity interests in any Person;
(d) other than the Inventory, all crude, condensate, refined product, additives, and other product inventories located or stored in the Purchased Assets, whether owned by customers of the Business or owned by the Seller or any Affiliate of the Seller;
(e) the corporate seals, organizational documents, minute books, stock books, Tax Returns (other than Tax Returns reporting Asset Taxes), including:books of account or other records having to do with the corporate organization of the Seller and all Books and Records of the Seller not included in the Assigned Books and Records;
(f) all intellectual property rights relating to the Business (other than the software set forth on Schedule 1.1(i)), including all right, title and interest in and to the name “Motiva”, including all derivations thereof and all goodwill associated with or appurtenant to any of the foregoing (collectively, the “Excluded Intellectual Property”);
(g) any claims, counterclaims, causes of action, lawsuits, judgments, set-offs, third party indemnities, defenses and rights under all warranties, representations and guarantees made by suppliers of services, products, materials or equipment primarily related to the Excluded Assets or the Excluded Liabilities;
(h) all insurance policies and all rights to applicable claims and proceeds thereunder;
(i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1;
(ii) all Retained Real Property;
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property trade accounts receivable and other tangible property located at the Retained Facilities or not Related rights to the Business, except as set forth on Section 2.1(d)(i)(B) payment from customers of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in with respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) full benefit of all security for such accounts or rights to payment, including all trade accounts receivables representing amounts receivable in respect of goods shipped or products sold or services rendered to customers of the Seller with respect to the Business, and all other accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and Seller to the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes extent relating to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether the full benefit of all security for such accounts, and any claim, remedy or not existing other right related to any of the foregoing arising out of the operation of the Business, but in all cases, to the extent such receivables relate to, or arise out of, or are attributable or allocable to, products or services provided by the Seller prior to the Closing, but excluding any refunds whether billed or credits or other Tax Assets to unbilled (the extent reflected as an asset on the Final “Pre-Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculationReceivables”);
(xiij) all Seller Combined Tax Returns the assets and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and properties listed in each case any books and records relating theretoSchedule 1.2(j);
(xiiii) all claimsattorney-client privilege and attorney work product protection of the Seller and its Affiliates arising as a result of outside legal counsel and in-house legal counsel representing the Seller and its Affiliates in connection with or relating to the Excluded Assets, defensesthe Excluded Liabilities or negotiation, causes preparation, execution and delivery of action, counterclaims this Agreement and rights the consummation of set-off against third parties the transactions contemplated hereby; (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xivii) all rights documents maintained by outside legal counsel and in-house legal counsel arising out of representation of the Seller Parent or any of and its Affiliates (for clarity, other than, from and after in connection with or the ClosingExcluded Assets, the Conveyed Subsidiaries Excluded Liabilities or the negotiation, preparation, execution and their Subsidiaries) under delivery of this Agreement or the Ancillary Agreements consummation of the transactions contemplated hereby; and (iii) all documents subject to any documents delivered or received attorney-client privilege and attorney work product protection of the Seller and its Affiliates as a result of outside legal counsel and in-house legal counsel representing the Seller and its Affiliates in connection herewith with or therewithrelating to the Excluded Assets, the Excluded Liabilities or negotiation, preparation, execution and delivery of this Agreement and the consummation of the transactions contemplated hereby;
(xvl) except as all of the Seller’s rights, title and interest in and to all guarantees, credit support arrangements, security deposits, or surety or performance bonds, set forth in Section 2.1(oon Schedule 1.2(l) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries(the “Credit Support Instruments”);
(xvim) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Rejected Terminal Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xxn) the all other assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letter.
(b) Notwithstanding anything that are not exclusively used in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Dateare not Purchased Assets.
Appears in 1 contract
Excluded Assets. (a) Notwithstanding any provision anything to the contrary contained in this Agreement, Purchaser and except as expressly set forth in Section 1.1(a), the Purchaser Designated Affiliates are Buyer will not purchasing or acquiring acquire any of Seller Parent’s or its Affiliates’ the following (including the Conveyed Subsidiaries’ or their Subsidiaries’) rightcollectively, title or interest in any assets, properties or rights other than the Purchased Assets (the “Excluded Assets”), including:;
(i) all assets constituting ownership interests in, or that are used or held for use inAll of the Beneficial Owners’, the Retained BusinessesSeller Related Parties’ or the Company’s rights under this Agreement or any Ancillary Agreement and to the consideration to be delivered to the Beneficial Owners, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1the Seller Related Parties and the Company pursuant to this Agreement or any Ancillary Agreement;
(ii) all Retained Real PropertyAll minute books of the Beneficial Owners, the Seller Related Parties’ and the Company, including the organizational documents of the Beneficial Owners, the Seller Related Parties’ and the Company (collectively, the “Minute Books”);
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D)All Cash;
(iv) all legal All Company Benefit Plans and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letterassets related thereto;
(v) all Shared Contracts and all other All Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than the Assumed Contracts, including (A) all Contracts with any Affiliate of the Beneficial Owners, the Company or a Related Party, or (B) any Contract with financial, accounting, transaction, legal or tax advisors of the Beneficial Owners or the Company (collectively, the “Excluded Contracts”);
(vi) all inventory (including all raw material inventoryAny Tax Return, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples Tax records and/or refunds or credits in respect of ProductsTaxes;
(vii) Any of the Retained Names Beneficial Owners’, the Seller Related Parties’ or the Company’s (or their predecessors’) employee and all other Intellectual Property that is not Business IPpersonnel records, files, papers, data and related information, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwiseany correspondence related thereto, and including as set forth on Section 2.3(a)(vii) of in whatever form (collectively, the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property“Personnel Records”);
(viii) all Governmental AuthorizationsAny documents or other information covered by attorney-client privilege, the attorney work product doctrine, or other similar legal protection, including all attorney-client privileged or work product registrations, manufacturing registrations communication between the Company and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related legal advisors relating to the BusinessContemplated Transactions (collectively, the “Privileged Records”);
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, Any equity interests of the Company held or owned by the Beneficial Owners or equity interest in each case not the Beneficial Owners or the Seller Related to Parties held or owned by the Business, and Company or the Specified RecordsSeller Related Parties;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash)All Retained Policies;
(xi) all Tax refunds, Tax credits All equity or other Tax Assets rights of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);Related Parties; and
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (Such other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) listed on the Closing Dateattached Schedule 1.1(b)(xi).
Appears in 1 contract
Sources: Asset Purchase Agreement
Excluded Assets. (a) Notwithstanding any provision 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 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 in this AgreementIt is expressly understood and agreed that, Purchaser and notwithstanding anything to the Purchaser Designated Affiliates are contrary set forth herein, the Acquired Assets shall not purchasing or acquiring any of Seller Parent’s or its Affiliatesinclude the Asset Sellers’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in or to any of the following (each, an “Excluded Asset”):
(i) Any assets (including all rights, properties, claims, contracts, business, real property, leasehold (or other equivalent) interests in real property, equipment, machinery, vehicles, tools and other tangible personal property) other than the Acquired Assets;
(ii) The assets, properties or rights other than the Purchased Assets (the “Excluded Assets”), including:
(iset forth on Schedule 1.1(c)(ii) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1;
(ii) all Retained Real Propertyattached hereto;
(iii) (A) the Retained FacilitiesThe stock, (A) shares, quotas, investment capital, membership units and interests, capital stock or other equity interests of any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, entity other than the Business IT Systems and (A) any leases relating to Acquired Companies or the assets described in the foregoing clauses (B) through (D)JV Interests;
(iv) all legal and beneficial interest in the share capital or equity interest Any intercompany account of any Person kind or nature (other than as contemplated by the Conveyed Subsidiaries Commercial Agreements (and their Subsidiariesas defined below) or Section 4.5(a)(ii), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter);
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all All cash and cash equivalents, checks, money orders, marketable securities, short-term instrumentsequivalents or similar type investments, bank and other depositary accounts, certificates of deposit, time security deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable Treasury bills and other assets, in each case marketable securities (except to the extent included in the calculation of the Final Business Working Capital, and the Closing Cash Equivalents included or Restricted Cash or as otherwise provided in the calculation of Final Business Net CashSection 1.1(b)(ii) or Section 1.1(b)(xxiii));
(xivi) all Tax refunds, Tax credits or other Tax Assets of the Sellers The contracts and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset agreements listed on the Final Closing Statement and taken into account in the calculation of (aSchedule 1.1(c)(vi) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation)attached hereto;
(xiivii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior All insurance policies and all rights of the Asset Sellers to insurance claims, related refunds and proceeds thereunder (other than as set forth in Section 1.1(b)(xvii) or Section 8.2(b));
(viii) All personnel files and other-employment related records for persons who do not become New Buyer Employees or where required consent is not obtained under Section 8.5(m);
(ix) All Employee Benefit Plans or Foreign Benefit Plans sponsored, maintained, or contributed to by PKI or any nature with respect theretoof its Affiliates other than the Acquired Benefit Plans and all assets attributable thereto (for the avoidance of doubt, including all insurance recoveries thereunder and the Acquired Benefit Plan Assets shall not constitute Excluded Assets);
(x) The rights which accrue or will accrue to assert claims PKI under this Agreement;
(xi) All refunds of Taxes (as defined in Section 2.9(a)) of the Asset Sellers or with respect to the Acquired Assets for all periods (or portions thereof) ending on or prior to the Actual Cutover Date or for Pre-Closing Tax Periods to which the Sellers are entitled pursuant to Section 7.3;
(xii) The corporate seals, governing documents, minute books, stock books, stock ledgers, Tax Returns, books of account or other records having to do with the corporate organization of any such insurance recoveriesAsset Seller;
(xiii) Any currently or formerly owned, operated or leased real property, together with all buildings, structures, improvements and fixtures thereon and all real property interests appurtenant thereto, other than the Transferred Real Property and the Leased Facilities;
(A) All attorney-client privilege and attorney work-product protection of PKI or its Affiliates (as defined below), but excluding the Acquired Companies, to the extent not related to the Business, the Acquired Companies or the Actions as a result of legal counsel representing PKI, its subsidiaries or the Business, including in connection with the sale of the Business and the transactions contemplated by this Agreement, (B) all documents subject to attorney-client privilege and work-product protection described in the foregoing subsection (A), and (C) all documents maintained by PKI, its subsidiaries or their respective Representatives in connection with the sale of the Business, including the transactions contemplated by this Agreement;
(xv) All cash and cash equivalents, certificates of deposit, security deposits, Treasury bills and securities to the extent generated, earned or received in respect of the Excluded Assets, or by the Excluded Business, during the Locked Box Period; and
(xvi) except as expressly set forth All actions, rights, claims, causes of action, rights of recovery, choses in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties action and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return setoff of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) kind, accruing or arising before, on or after the Closing Date shall be deemed for purposes of calculating to the Business Working Capital extent relating to the Excluded Assets or to any Excluded Liabilities (as defined in Section 1.1(e)) and the Business Net Cash pursuant right to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Dateretain all proceeds, damages and remedies therefrom.
Appears in 1 contract
Sources: Master Purchase and Sale Agreement (Perkinelmer Inc)
Excluded Assets. Notwithstanding anything to the contrary contained herein, any and all of the Seller's right, title and interest in and to the following assets (the "Excluded Assets") shall be specifically excluded from, and shall not constitute, the Acquired Company Assets:
(a) Notwithstanding any provision in this AgreementAny and all assets related to the Seller Benefit Plans;
(b) Any and all loans and advances, Purchaser and the Purchaser Designated Affiliates are not purchasing if any, by Seller or acquiring its Subsidiaries to Seller or any of Seller Parent’s its Affiliates or its Affiliates’ otherwise to the Ocean Business;
(including the Conveyed Subsidiaries’ or their Subsidiaries’c) rightAny and all Intellectual Property, title or interest in any assets, properties or rights other than the Purchased Assets Ocean Business Intellectual Property expressly included in subclause (the “Excluded Assets”), including:
(i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (siii) of Section 2.1;
(ii) all Retained Real Property;
(iii2.4(a) (A) including, as an Excluded Asset covered by this Section 2.5(c), the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Intellectual Property listed in Section 2.1(d)(i)(B2.5(c) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (DSchedules);
(ivd) Any and all legal and beneficial interest in the share capital or equity interest of any Person Contracts other than the Conveyed Subsidiaries Assigned Contracts;
(e) All owned and their Subsidiaries)leased real property and interests in real property;
(f) Any and all refunds for credits against Excluded Taxes;
(g) Tax Returns and other books and records related to Taxes paid or payable by Seller or any of its Affiliates;
(i) Any and all insurance policies and binders and interests in insurance pools and programs and self-insurance arrangements whether or not Relating to the Ocean Business, other than those equity interests for all periods before and through the Closing, and (ii) any claims under insurance policies set forth on Section 2.1(q2.5(h) of the Seller Disclosure LetterSchedules;
(vi) Any and all Shared Contracts non‑transferrable Ocean Business Permits, provided however that Seller will comply with Section 2.4(a)(vii) with respect thereto; and
(j) Any and all other Contracts, sales orders, purchase orders, instruments assets of Seller not specifically included in the Acquired Company Assets. The parties hereto acknowledge and other commitments, obligations and arrangements to which Seller Parent or agree that neither Purchaser nor any of its Affiliates is a party will acquire or by which be permitted to retain any direct or indirect right, title and interest in any Excluded Assets. For the avoidance of its or their propertiesdoubt, assets or rights is subjectno right, title and interest in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than to the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth described in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets 2.5 are Purchased Assets) of the type currently provided to the Business being acquired by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure LetterPurchaser.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 1 contract
Sources: Equity Interest Purchase Agreement (Ultrapetrol Bahamas LTD)
Excluded Assets. Notwithstanding anything to the contrary set forth in Section 1.1 above, the term "Assets" shall specifically not include:
(a) Notwithstanding any provision in this Agreementanimals and all animal equipment, Purchaser fixtures 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 supplies 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 connection with the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letterincluding, and any personal computers and vehicles that are but 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 limited to the assets described in animals, equipment and supplies listed on Schedule 1.2(a) attached hereto (collectively, the foregoing clauses (B) through (D"Animal Assets");
(ivb) all legal any Permits, Contracts and beneficial interest in Agreements solely related to 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 LetterAnimal Assets;
(vc) all Shared Contracts any intellectual property rights of Sellers and all other Contractstheir affiliates listed on Schedule 1.2(c) (collectively, 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"Sellers' Retained Intellectual Property");
(vid) all inventory (including all raw material any inventory, workuniforms, costumes and supplies that contain, include or embody Sellers' Retained Intellectual Property and all Coca-inCola and related products and non-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Productsowned equipment;
(viie) any insurance policies respecting the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement Sellers 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;
(ixf) all customer any cash and vendor listscash equivalents (except for cash funds located at the Business), all advertisingaccounts receivable, marketing, sales and promotional materials, and business and financial records, books, and documents notes receivable and other Records, in each case not Related to the Business, and the Specified Recordsreceivables;
(xg) all accounts receivable any computer hardware containing proprietary information of Parent and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) subsidiaries (other than the accounts receivable Sellers) listed on Schedule 1.2(g) 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 Cashany non-assignable computer software listed on Schedule 1.2(g);
(xih) all Tax refunds, Tax credits any warranties or guaranties or other Tax Assets of the Sellers contractual agreements which are non-assignable 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 listed 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 calculationSchedule 1.2(h);
(xiii) all Seller Combined any claims and causes of action (except for insurance proceeds described in Section 1.1(j) hereof) against third parties respecting the Assets or the Business which relate to the period of time on or prior to the Closing Date, including without limitation, any proceeds from Tax Returns protests, refunds, rebates or other recovery of Taxes, or utility refunds, but not including claims relating to the condition of the Assets;
(j) any employment records of any Seasonal Employee or Regular Employee (as defined in Section 10.1) not hired by Buyer as of the Closing Date;
(k) any multi-park agreements set forth on Schedule 1.2(k);
(l) any Real Property Leases described on Schedule 1.2(l) attached hereto;
(m) the Amended and Restated License Agreement, dated April 1, 1998, among Warner Bros. Consumer Products Division, DC Comics, Parent and Six Flags Theme Parks, Inc. (the "WB License");
(n) any Employee Benefit Plan and all Tax Returns of the Sellers or any of their Affiliates (insurance policies, trust agreements and 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 Contracts relating thereto;
(xiiio) all claims, defenses, causes of action, counterclaims Contracts and rights of set-off against third parties Agreements related exclusively to Excluded Assets (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"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
(xxp) the all Permits related exclusively to Excluded Assets; and
(q) any assets set forth on Schedule 1.2(q) hereto (collectively with the items listed in Section 2.3(a)(xxSections 1.2(a) of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(fthrough 1.2(p), 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 Dateabove, 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. (a) Notwithstanding any provision in this Agreementanything to the contrary herein, Purchaser and the Purchaser Designated Affiliates are Buyer is not purchasing acquiring hereunder or acquiring otherwise any of Seller ParentSeller’s or its Affiliates’ (including the Conveyed Subsidiariesor related entities’ or their Subsidiaries’) rightright and title to, title or interest in in, and claims under any assets, properties properties, or rights other than those expressly described in Section 2.1 above, which shall therefore not constitute part of the Purchased Acquired Assets (collectively, the “Excluded Assets”), includingincluding the following assets, properties or rights of Seller or any Affiliate or related entities of Seller:
(i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1cash and cash equivalents;
(b) any names, logos, trademarks, trade names or service marks including any names, logos, trademarks, trade names or service marks (i) containing any of the “Deloitte,” “Touche” or “Tohmatsu” names, or any derivatives thereof, or (ii) all Retained Real Property;
(iii) (A) used in the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems businesses of Seller Parent and or its SubsidiariesAffiliates, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subjectother Intellectual Property Rights, in each case other than Assumed Contractsthe Acquired Intellectual Property Rights which include the Transferred ▇▇▇▇;
(vic) any and all inventory (including all raw material inventoryTechnology, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of ProductsAcquired Technology;
(viid) all (i) company seals, corporate minute books and stock records or similar corporate records of Seller and the Retained Names Business Affiliates and (ii) Tax Returns;
(e) all Books and Records (other Intellectual Property that is not Business IPthan the Acquired Books and Records) and a copy of all Acquired Books and Records;
(f) all Contracts, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement assets, properties or otherwise, and including as rights set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual PropertySchedule 2.2(f);
(viiig) all Governmental Authorizationspersonal property and computer equipment other than the Acquired Tangible Assets;
(h) all Tax assets, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by refunds due to Seller Parent or any Business Affiliate, in respect of its Affiliates and not Related periods or portions thereof ending on or prior to the Closing Date;
(i) all leases to real property other than the Acquired Leases;
(j) any bank accounts used by the Business;
(ixk) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies of Seller and the Business Affiliates and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xviil) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;Employee Benefit Plan; and
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xixm) all assets, properties and rights of any Person that are not Related subject to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure LetterTransition Services Agreement.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 1 contract
Excluded Assets. (aNotwithstanding Section 1.05(a) Notwithstanding or any other provision hereof, the SpinCo Assets will not in this Agreement, Purchaser and the Purchaser Designated Affiliates are not purchasing or acquiring any event include any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any assets, properties or rights other than the Purchased following Assets (the “Excluded Assets”), including:):
(i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) respect of Section 2.1any and all Compensation and Benefit Plans and all Assets in respect of all other compensation and benefit plans sponsored by the Citadel Group;
(ii) all Retained Real Propertyfinancial and Tax records relating to the SpinCo Business that form part of the general ledger of Citadel or any of its Subsidiaries (other than the members of the SpinCo Group), any work papers of Citadel’s auditors and any other Tax records (including accounting records) of Citadel or any of its Subsidiaries (other than the members of the SpinCo Group); provided that Citadel will provide to SpinCo upon written request, copies of any portions of such financial and Tax records that relate to the SpinCo Entities, the SpinCo Assets, the SpinCo Liabilities or the SpinCo Business;
(iii) other than rights to enforce the provisions of any confidentiality, non-disclosure or other similar Contracts to the extent related to the SpinCo Business or as provided in Section 1.05(a) and the corresponding sections of the Citadel Disclosure Letter, all records prepared by or on behalf of Citadel or its Subsidiaries relating to the negotiation of the Transactions and all records prepared by or on behalf of Citadel or its Subsidiaries in connection with the potential divestiture of all or a part of the SpinCo Business or any other business or Asset of Citadel or its Subsidiaries, including (A) the Retained Facilities, (A) any owned proposals received from third parties and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases analyses relating to the assets described in the foregoing clauses such transactions and (B) through (D)without limiting Section 7.14, confidential communications with legal counsel representing Citadel or its Affiliates and the right to assert the attorney-client privilege with respect thereto;
(iv) all legal and beneficial interest in the share capital Contracts of either Citadel or equity interest SpinCo or any member of any Person their respective Groups other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure LetterSpinCo Contracts;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent rights of Citadel or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than members of the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their SubsidiariesSpinCo Group) under this Agreement or any Transitional Agreement and the Ancillary Agreements certificates, instruments and any documents Transfer Documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xxvi) the assets set forth in Section 2.3(a)(xx) any and all Assets that are expressly contemplated by this Agreement or any Transitional Agreement as Assets to be retained by Citadel or any other member of the Seller Disclosure LetterCitadel Group (other than SpinCo and its Subsidiaries).
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 1 contract
Sources: Transaction Agreement (Capital Product Partners L.P.)
Excluded Assets. (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 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 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, ▇▇▇▇▇▇▇▇.▇▇▇ and the Specified Records▇▇▇▇▇▇▇▇▇.▇▇▇ 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
Excluded Assets. (a) Notwithstanding any provision in this Agreement, Purchaser Buyer expressly understands and agrees that all of the Purchaser Designated Affiliates are not purchasing or acquiring any assets of Seller Parent’s or and its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any assets, properties or rights Affiliates other than the Purchased Assets shall remain the property of Seller and its Affiliates (collectively, the “Excluded Assets”). Notwithstanding anything to the contrary contained herein, includingincluding the definition of Purchased Assets, Excluded Assets shall include the following:
(a) all of the cash on hand and in banks and Cash Equivalents of Seller and its Affiliates (other than the cash on hand and in banks and Cash Equivalents of the JVs), including those set forth on Schedule 5.10;
(b) all raw materials, MRO and work-in-process materials held at the Retained Facilities, other than raw materials, MRO and work-in-process materials held at the Pedrengo Facility attributable to the Business;
(c) subject to Section 5.06, insurance policies relating to the Business and all claims, credits, causes of action or rights thereunder;
(d) the Trademarks and names set forth on Schedule 2.03(d) and all goodwill associated therewith (the “Seller’s Marks”);
(e) the Common Molecule IPR;
(f) all rights and interests of Seller and its Affiliates in and to information technology assets located in Naugatuck, Connecticut, Middlebury, Connecticut or West Lafayette, Indiana not listed on Schedule 2.02(c);
(g) all Intellectual Property Rights owned by Seller or its Affiliates other than the Business Intellectual Property Rights;
(h) all minute books and corporate records of Seller and its Affiliates to the extent not relating primarily to the Business;
(i) all assets constituting ownership interests in, records relating to the current or that are used former employees or held for use in, consultants of the Retained BusinessesBusiness, other than those assets identified as Purchased Assets such employee and consultant records relating to the Continuing Employees which can be transferred to Buyer in clauses (a) through (s) of Section 2.1compliance with Applicable Law;
(ii) all Retained Real Property;
(iii) (Aj) the Retained Facilities;
(k) the Shared Assets;
(l) the property, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property leases and other tangible interests in real property located at other than those described on Schedule 3.18(a);
(m) all rights of Seller and its Affiliates arising under this Agreement or the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(Btransactions contemplated hereby;
(n) all of the rights and interests of Seller Disclosure Letter, and any personal computers its Affiliates in and vehicles that are not primarily used by to (i) all internal correspondence and correspondence with outside counsel in connection with the Transferred Employees in respect sale of the Business, (Aii) the Information Systems of Seller Parent Confidentiality Agreement and its Subsidiariesthe Transaction Documents, other than the Business IT Systems and (Aiii) any leases relating all books, records, files and papers, whether in hard copy or computer format, that are primarily related to analysis of the assets described in Transaction Documents or the foregoing clauses (B) through (D)transactions contemplated thereby;
(ivo) all of the rights and interests of Seller and its Affiliates in and to all information, files, records, data, plans, contracts and recorded knowledge to the extent that any of the foregoing are comprised of written materials that Seller or any of its Affiliates is required by Applicable Law to retain (collectively, the “Excluded Records”); provided that promptly after Closing, Seller shall provide (or caused to be provided) a copy of all such Excluded Records to Buyer to the extent permitted by Applicable Law;
(p) any legal and or beneficial interest in the share capital of Seller or equity interest any of any Person its Affiliates other than the Conveyed Subsidiaries JV Shares;
(and their Subsidiariesq) any licenses, permits, franchises, qualifications, orders or other governmental authorizations, or waivers of any of the foregoing listed on Schedule 2.03(q), ;
(r) any amounts owed by Seller or any of its Affiliates (to the extent not engaged in the Business) to the Business (other than those equity interests set forth on Section 2.1(qTrade Accounts Receivable);
(s) all tax refunds with respect to any Tax for which Seller is liable pursuant to this Agreement;
(t) all assets relating to any Retained Plan and, if Seller retains Liabilities relating to an Assumed Plan, a portion of the Seller Disclosure LetterAssets relating to such Assumed Plan to the extent related to such retained Liabilities, as determined using reasonable actuarial assumptions to the extent the portion of such Assets relating to such retained Liabilities is not otherwise readily determinable;
(u) the German Real Estate;
(v) all Shared Contracts and all other Contractsrelated to Intellectual Property Rights, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent Software or any the development of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case technology other than Assumed the Business IP Contracts;
(viw) 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 shares 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) capital stock 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;GSIS JV; and
(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 Letteron Schedule 2.03.
(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 and Contribution Agreement (Chemtura CORP)
Excluded Assets. (a) Notwithstanding any provision The Purchased Assets shall include only those assets and interests specifically listed in this Agreement, Purchaser Section 1.1 above and the Purchaser Designated Affiliates are not purchasing or acquiring any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) shall in all events exclude all right, title or interest of Sellers in or to any assetsof the following (collectively, properties or rights other than the Purchased Assets (the “Excluded Assets”)):
(a) all cash and cash equivalents of Sellers, other than Cash on Premises
(b) any bank accounts of Sellers;
(c) the Purchase Price and Sellers’ rights thereto under this Agreement, subject to the offset provisions set forth in Section 2.1 of this Agreement with respect to the Purchase Price of Unencumbered Property;
(d) any Excluded Contracts;
(e) any Claims including the AMC Claims, other than those Claims with respect to or in connection with any Purchased Contract or Purchased Asset;
(f) (I) a copy of any books and records relating to any pre-Closing period, including:, without limitation, (i) Tax Returns, financial statements, and corporate or other Entity filings, (ii) minute books, stock ledgers, and stock certificates of any Subsidiaries of Sellers, and (II) all originals and copies of documents relating to proposals to acquire the Business by Persons other than Purchaser;
(g) all securities, whether capital stock or debt, and other ownership interests issued by any of the Sellers;
(h) all assets of any Section 401(k) or other Seller benefit plan (including any Company Benefit Plan);
(i) all assets constituting ownership interests in, or that are used or held for use in, any item expressly excluded pursuant to the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) provisions of Section 2.11.1 above;
(iij) all Retained Real Propertyintercompany claims by any Seller against any other Seller or any Subsidiary or other Affiliate of any Seller;
(iiik) all Avoidance Actions;
(Al) Tax credits, prepayments and refunds but only to the Retained Facilities, extent attributable to Excluded Taxes; and
(Am) any owned personnel and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property employment records for current or former employees and other tangible property located at the Retained Facilities or not Related to individual independent contractors of the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages provided for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letter13.9.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 1 contract
Excluded Assets. (a) Notwithstanding any provision in this Agreement, Purchaser and the Purchaser Designated Affiliates are not purchasing or acquiring any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any 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 anything herein 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, Seller and its Affiliates shall retain (or in the Conveyed Subsidiaries case of any of the following Assets held by any Transferred Joint Venture Entity, Seller shall cause to be transferred to the applicable Seller JV Partner prior to the Closing), and their Subsidiaries) under this Agreement there shall be excluded from the sale, conveyance, assignment or transfer to Buyer hereunder, and the Transferred Assets shall not include, any of the Friendco Transferred Assets or the Ancillary Agreements following Assets (collectively, the “Excluded Assets”):
(a) all Assets with respect to Taxes (including duty and tax refunds and prepayments) and net operating losses of Seller or any documents delivered or received in connection herewith or therewithof its Affiliates;
(xvb) except as set forth in Section 2.1(o2.3(s) and subject except to the extent set forth in Section 6.185.1(c), all current Tax Returns of Seller or any of its Affiliates and prior all Books and Records (including working papers) and tax software to the extent directly related thereto;
(c) all insurance policies and all rights of any nature with respect theretothereunder, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveriesother than the Insurance Claims;
(xvid) except as expressly set forth all credits, prepaid expenses, deferred charges, advance payments, security deposits and prepaid items, in this Agreement (including Section 2.1(p) and Section 6.6)each case, all assets of only to the extent related to any Seller Group Plan or Foreign Seller Group Plan Asset that is not a Conveyed Subsidiary PlanTransferred Asset;
(xviie) all corporate-level services (but not cash and cash equivalents, except for 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 AgreementTransferred Cash;
(xviiif) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1Intercompany Receivables;
(xixg) all assets, properties and rights of any Person that are not Related to the Business, Contracts (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 Third Party Confidentiality Agreements) other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; andAssigned Contracts;
(xxh) the assets set forth in Section 2.3(a)(xx(i) of the Seller Disclosure Letter.
any Owned Real Property that, and any lease (bother than a lease designated by Buyer as an Assigned Contract) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f)for real property that, prior to the Closing(A) is vacant, Seller Parent shall use commercially reasonable efforts to take (B) contains only inactive headends, inactive hubsites 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.inactive optical transition nodes or
Appears in 1 contract
Sources: Asset Purchase Agreement
Excluded Assets. (a) Notwithstanding any provision anything to the contrary contained in this Agreement, Purchaser and regardless of whether such asset is disclosed herein or on any schedule hereto, except for the Purchaser Designated Affiliates are Purchased Assets, Buyer will not purchasing acquire the following assets of any Seller or acquiring any Affiliate of any Seller Parent’s or its Affiliates’ any other assets whatsoever related to the ownership or operation of the Business or the Purchased Assets at any time (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any such assets, properties or rights other than the Purchased Assets (Assets, the “Excluded Assets”). Without limiting the generality of the foregoing, includingthe “Excluded Assets” include the following assets of any Seller or any Affiliate of any Seller, except to the extent such assets expressly constitute Purchased Assets:
(i) the Subject Facilities and all assets constituting ownership interests incurrent or former real estate (including fittings and improvements thereon, and easements, servitudes, licenses, rights of way, permits, and the other appurtenances thereto, including appurtenant rights in and to public streets, whether or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (anot vacated) through (s) of Section 2.1and all Licenses and Permits related thereto;
(ii) all Retained Real Propertyraw materials, manufactured and purchased parts, work-in-process, finished goods, inventories and supplies, whether on hand or on order (“Inventory”);
(iii) (A) the Retained Facilitiesall automobiles, (A) any owned and leased furnituretrucks, equipmenttractors, fixtures, machinery, supplies, spare parts, tools, tangible personal property trailors and other tangible property located at the Retained Facilities or not Related to the Businessvehicles (including overhead cranes, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, rail cars and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (Dforklifts);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) accounts receivable of the Seller Disclosure LetterBusiness;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments personal property and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contractslocated at the Middletown Facility;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than Sellers’ rights under or pursuant to the Inventory and any samples of ProductsTransaction Documents;
(vii) the Retained Names all cash and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Propertycash equivalents;
(viii) except as provided in Section 2.1(a)(iii), all Governmental Authorizationsbooks, including product registrationsledgers, manufacturing registrations files, documents, correspondence and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related other business records related to the Business;
(ix) all customer and vendor listsexcept as included as Purchased Assets, all advertisingassets and properties used in Sellers’ information technology and telecommunication systems (including hardware, marketingsoftware, sales servers, personal computers, phones and promotional materialsphone systems and others communications equipment), records and business office furniture and financial records, books, and documents and other Records, in each case not Related to fixtures located at the Business, and the Specified RecordsElk Grove Village Facility;
(x) Nickel Carbonate Purchase Contracts, Natural Gas Purchase Contracts, the Elk Grove Village CBA, all accounts receivable and other current assets Plans of Sellers, and all cash and cash equivalentsother Contracts of any Seller;
(xi) claims, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instrumentsprepayments, securities warranties, guarantees, refunds, causes of action, rights of recovery, rights of set-off and brokerage accountsrights of compensation of every kind and nature to the extent relating to the other Excluded Assets or Excluded Liabilities, funds in time including the Existing OSHA Matters;
(xii) any assets relating to any Plans;
(xiii) any Proprietary Rights, including “Material Sciences Corporation,” “MSC”, “Deco Steel®”, “Electrobrite®”, “Quiet Steel®”, “Viva Color®” and demand deposits “Specular+®” names and trademarks and any Proprietary Rights related to post-paint conversions of “Deco Steel®”, “Electrobrite®”, “Quiet Steel®”, “Viva Color®” and “Specular+®” products;
(xiv) any right any Seller has with respect to a refund for Taxes or similar accounts of other Tax asset, or with respect to any Tax for which a Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;responsible; and
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure LetterPeriod Orders.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 1 contract
Excluded Assets. (a) Notwithstanding 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. Notwithstanding Clause 2.1, Novartis shall not sell, transfer, or convey to Purchaser, and Purchaser shall not purchase and acquire the following (a) Notwithstanding any provision in this Agreement, Purchaser and the Purchaser Designated Affiliates are not purchasing or acquiring any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any assets, properties or rights other than the Purchased Assets (the “Excluded Assets”), including:):
(i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1Subject to the license rights granted to the Purchaser in the License Agreement, Licensed Assets;
(iib) all Retained Real Propertythe name “Novartis”, “Ciba-Geigy”, “Sandoz” or “Alcon”, or any trademark, service ▇▇▇▇, trade dress, logo, trade name or corporate name similar or related thereto;
(iii) (Ac) the Retained Facilitiesaccounts receivable and the accounts payable including any accruals, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, pre-paid expenses and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect cash or cash equivalents of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent Novartis or any of its Affiliates relating to the Business, the Products or the Transferred Assets for the period prior to the Closing Date;
(d) any real property or leaseholds (together with all fixtures and fittings related to any property), physical plant, machinery, equipment, motor vehicles or office equipment; Executed copy
(e) any rights or assets belonging to the generic business of Sandoz (which is a party the generic division of Novartis), or by which any of its or their propertiessuccessors, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than containing the Inventory and any samples of Drug Substances and/or relating to the Products;
(viif) any rights or assets belonging to the Retained Names and all other Intellectual Property that over-the-counter business (which is not Business IPa division of Novartis), including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related successors, containing the Drug Substances;
(g) any rights or assets belonging to the business of Alcon (which is a division of Novartis), or any of its successors, containing the Drug Substances;
(h) any rights or assets belonging to Novartis Vaccines(which is a division of Novartis) or any of its successors, containing the Drug Substances;
(i) any rights or assets outside the human pharmaceutical fields (including but without limitation the use of the Drug Substances in the veterinary pharmaceutical fields);
(j) any rights or assets outside the Fields or for countries outside the Territory for the Products;
(k) [**]6
(l) any rights under Novartis’ insurance policies which are related to the Business;; and
(ixm) all customer originals of Books and vendor listsRecords that Novartis and its Affiliates are required to retain pursuant to any Law; provided however, all advertisingthat (i) Novartis and its Affiliates, marketingas applicable, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case shall provide copies (redacted to the extent necessary to remove any confidential information not Related related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits Products or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included Drug Substances in the calculation Territory) of the Final Business Working Capital, such books and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets records to the extent reflected as an asset on related to the Final Closing Statement and taken into account Business, Products or Drug Substances in the calculation of Territory upon the Purchaser’s reasonable request and (aii) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extentNovartis and its Affiliates, with respect to clause (b), offsetting a Tax Liability in as applicable may destroy such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and accordance with their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services prevailing records retention procedures to the extent such assets books and records are Purchased Assetsno longer required to be retained by Law so long as Novartis and its Affiliates have previously provided copies of such books and records pursuant to clause (i) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1this Clause 2.2(m); and
(xxn) any Inventory (except as provided in the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure LetterSupply Agreement).
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 1 contract
Sources: Asset Purchase Agreement (Tribute Pharmaceuticals Canada Inc.)
Excluded Assets. (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 Entities and their respective Affiliates will retain all the rights, title and interest in and to, any and all assets of the Seller Entities and 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 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, 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 Entities 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 and the One HSBC Center Lease;
(5) all assets constituting ownership interests inrelated to employee benefit arrangements of any Seller Entity or any of their respective Affiliates, or that are used or held for use in, including the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1Employee Plans;
(ii6) 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) Intellectual Property of the Seller Disclosure LetterEntities and their respective Affiliates, including all right, title and interest in and to all proprietary or licensed software, systems or programs or computer software agreements of the Seller Entities and their respective Affiliates, including any rights (ownership, licensed or otherwise) to any of the Seller Entity Names and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems other Trademarks of Seller Parent and its SubsidiariesEntities or their respective Affiliates, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (Dincluding those identified on Schedule 2.1(b)(6);
(iv7) all legal books, records and beneficial interest in the share capital other data that cannot, without unreasonable effort or equity interest of any Person other than the Conveyed Subsidiaries (expense, be separated from books and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of records 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 Entities or their properties, assets or rights is subject, respective Affiliates 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) connection with the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement Businesses 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 that such books, records and taken into account in the calculation of (a) the Final other data relate to Excluded Assets, Excluded Liabilities or Business Working Capital Employees or (b) Seller Accrued Income Taxes (Affiliated Employees who do not become Transferred Business Employees, and all personnel files and records; provided that, 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 Liabilitiesextent 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 Closing7.1(b), 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 Seller Entities shall provide Purchaser with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect access to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) books, records and Section 6.6), all assets of any other data for which the above-referenced separation would cause the Seller Group Plan Entities to incur unreasonable effort 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 2.1expense; and
(xx) the assets set forth in Section 2.3(a)(xx) 8) all licenses, charters, and legal entities of the Seller Disclosure LetterEntities or their respective 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: Purchase and Assumption Agreement (First Niagara Financial Group Inc)
Excluded Assets. (a) Notwithstanding any provision in this Agreement, Purchaser and the Purchaser Designated Affiliates are not purchasing or acquiring any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any assets, properties or rights other Other than the Purchased Assets Assets, all of the assets and properties of Sellers shall be retained by Sellers and are not being sold or transferred to the Buyer Parties hereunder (herein referred to as the “"Excluded Assets”"). Without limiting the generality of the foregoing, includingExcluded Assets shall include, without limitation, the following assets and properties specified below:
(i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, All Cash other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1;Cash-on-Hand.
(ii) all Retained Real Property;All notes, trade and other accounts receivable, including accounts receivable from Affiliates of any Seller.
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal All intellectual property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) rights of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, Sellers other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);Transferred Intellectual Property.
(iv) all legal and beneficial interest in All of Sellers' rights, claims, rights of offset or causes of action if any, arising hereunder against the share capital or equity interest of any Person other than the Conveyed Subsidiaries (Buyer Parties and their Subsidiaries)Affiliates if any, other than those equity interests set forth on Section 2.1(q) and all of Sellers' rights, claims, rights of offset or causes of action against third parties arising under and relating to Chapter 5 of the Seller Disclosure Letter;Bankruptcy Code.
(v) all Shared Contracts All corporate minute books and all other Contracts, sales orders, purchase orders, instruments stock transfer books and other commitments, obligations and arrangements to which Seller Parent or the corporate seal of any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;Sellers.
(vi) Subject to Section 2(e)(v), all inventory (including shares of capital stock, partnership interests, membership interests or other ownership interests of each of Sellers, and all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and equity securities owned or held by any samples of Products;Sellers.
(vii) All contracts other than the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;Assumed Contracts.
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;All insurance policies.
(ix) all customer All Employee Benefit Plans and vendor listsany trusts, all advertising, marketing, sales and promotional materialsinsurance contracts or administrative service agreements pertaining thereto, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;all employment agreements.
(x) all accounts receivable To the extent non-transferable by law, any such liquor licenses and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);permits.
(xi) all Tax refundsSubject to Section 2(e)(iv), Tax credits or other Tax Assets the Sony Equipment. In no circumstances shall the rejection of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting Sony Lease be considered a Tax Liability in such calculation);Material Adverse Change.
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;Any assets owned by Jillian's Memphis.
(xiii) all claimsAny assets of Jillian's Management, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time River Vending or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) Jillian's Katy other than those identified as Purchased Assets expressly referenced in Section 2.1;
subsections 2(a)(ii), (xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(oiii) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6iv), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 1 contract
Excluded Assets. The following are collectively referred to as the "Excluded Assets" and are not included in the Assets: ---------------
(a) Notwithstanding all Communications Facilities (as defined in the Sublease), including but not limited to AirTouch's Improvements and Communications Equipment (each as defined in the Sublease);
(b) the Reserved Space as described in the Sublease, including without limitation all space at a Tower Site occupied by AirTouch's Improvements and Communications Equipment (each as defined in the Sublease) and non-exclusive use of all real estate interests (including fee and leasehold interests, licenses, rights-of-way and easements) on which switch equipment and associated loading docks, patios, offices and parking lots of Sublessors or their Affiliates is located or necessary to such equipment's operation;
(c) any provision in this Agreementequipment or transmission systems used by AirTouch, Purchaser and the Purchaser Designated Affiliates are not purchasing any other Sublessor or acquiring any of Seller Parent’s Sublessors' Affiliates for the remote monitoring of the Towers;
(d) all Intellectual Property of Sublessors or its Affiliates’ any Affiliate of Sublessors, other than plans and specifications of the Towers and data (including in electronic or machine-readable form) relating to third party tenants and lessors with respect to the Conveyed Subsidiaries’ or their Subsidiaries’Towers;
(e) right, title or interest in any assets, properties or rights, including Contracts, that are not exclusively Assets;
(f) all rights that accrue or will accrue to, and all rights retained by and/or granted to, Sublessors under this Agreement, the Sublease or any of the other than Transaction Documents, including the Purchased Assets consideration paid or to be paid to Sublessors hereunder;
(g) any claims or rights against third parties except to the “Excluded extent such claims or rights relate to the Assets”), including:;
(h) assets of any Employee Plan or employee benefit arrangement;
(i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1;
(ii) all Retained Real Property;
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described specified in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1Schedule 1.14; and
(xxj) any Tower Sites (and all Towers, Tower Related Assets and other assets and rights associated with such Tower Sites) excluded from the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement Assets or excluded from becoming subject to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash Sublease pursuant to Section 2.9 2.2 (Restricted Items) hereof, or which are to have occurred as of 12:01 a.m. (New York time) on remain the Closing Dateproperty of, or are to be for the benefit of, any Sublessor pursuant to the Sublease.
Appears in 1 contract
Excluded Assets. (a) Notwithstanding any provision 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 Buyer expressly understands and the Purchaser Designated Affiliates are agrees that it is not purchasing or acquiring acquiring, and Seller is not selling, assigning or transferring, any properties, rights or assets of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any assets, properties or rights other than the Purchased Acquired Assets, and all such other properties, rights and assets shall be excluded from the Acquired Assets (collectively, the “Excluded Assets”). The Excluded Assets to be retained by Seller include all of Seller’s right, includingtitle and interest in and to the following properties, rights and assets:
(a) As identified on Schedule 2.2(a) or in the Asset Demarcation Agreement, the real and personal property comprising or constituting any or all of the T&D Assets (whether or not regarded as a “transmission,” “distribution” or “generation” asset for regulatory or accounting purposes), including all electric power, communications and telecommunications underground and aboveground lines, switchyard facilities, substation facilities, support equipment and other Improvements, the Reserved Easements, and all Permits and Contracts, to the extent they relate to the T&D Assets, and those certain assets and facilities identified for use or used by Seller or others pursuant to an agreement or agreements with Seller for telecommunications purposes;
(b) The real property and Improvements thereon described in Schedule 2.2(b);
(c) Except for Prepayments, (i) all Cash, accounts receivable, notes receivable, checkbooks and canceled checks, bank accounts and deposits, commercial paper, certificates of deposit, securities, and property or income Tax receivables, and (ii) any other Tax refunds, credits, prepayments or other rights to payment related to the Acquired Assets to the extent allocable to a period ending on or before the Closing Date; Leases;
(f) All Contracts of Seller other than the Assigned Contracts and Assigned All Permits of Seller other than the Transferable Permits; All Intellectual Property including all Seller Marks other than the Assigned Intellectual Property;
(g) Duplicate copies of all Transferred Books and Records (to the extent and subject to the conditions set forth herein), and all other records of Seller other than the Transferred Books and Records, including corporate seals, organizational documents, minute books, stock books, Tax Returns, financial records, books of account and other corporate records of Seller, and all employee-related or employee benefit-related files or records other than the Transferred Employee Records;
(i) all assets constituting ownership interests inAll insurance policies of Seller and insurance proceeds therefrom; All rights of Seller in and to any claims, causes of action, rights of recovery, rights of set-off, rights of refund and similar rights against a Third Party relating to any period through the Closing or that are used or held for use inotherwise relating to any Excluded Liability, but excluding any such rights of Seller to the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1extent relating to an Assumed Liability;
(iij) all Retained Real Property;
All of Seller’s rights arising from or associated with any Contract or the provisions of goods or services, payment arrangements, intercompany charges or balances or the like, including, but not limited to, the Terminated Contracts (iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries“Intercompany Arrangements”), other than those equity interests Assigned Contracts set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net CashSchedule 2.2(j);
(xik) all Tax refunds, Tax credits All Employee Benefit Plans and trusts or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating assets attributable thereto;
(xiiil) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights All assets of Seller Parent or any related to its ownership, construction and operation of its Affiliates (for claritya portfolio of thermal electric generation assets and related facilities, other thantogether with fuel inventories, and including generating, selling, transmitting and delivering electric energy, capacity, ancillary services and Environmental Attributes from and after the Closing, generation assets to the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as interconnection point set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1respective Interconnection Agreements; and
(xxm) the assets set forth in Section 2.3(a)(xx) of the The rights that accrue or will accrue to Seller Disclosure Letter.
(b) Notwithstanding anything in under this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing DateRelated Agreements.
Appears in 1 contract
Sources: Purchase and Sale Agreement
Excluded Assets. (a) Notwithstanding any provision anything to the contrary contained in this Agreement, Purchaser and regardless of whether such asset is disclosed herein or on any Schedule or Exhibit hereto (except solely to the Purchaser Designated Affiliates are extent constituting the Acquired Assets), Buyer shall not purchasing acquire any interest in or acquiring to, or any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any assets, properties or rights other than the Purchased Acquired Assets (such other assets, properties or rights, whether tangible, intangible, real or personal and wherever located, collectively, the “Excluded Assets”). For the avoidance of doubt, includingand notwithstanding anything to the contrary in Section 1.1(a), all of the following assets, properties and rights are Excluded Assets, regardless of whether such assets relate to the Business:
(i) all assets constituting ownership interests in, Seller’s rights under or that are used pursuant to this Agreement or held for use in, any of the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1Ancillary Documents;
(ii) all Retained Real Propertyany right to receive mail and other communications addressed to Seller relating to the Excluded Assets or the Excluded Liabilities (as defined herein);
(iii) (A) all rights of Seller under all Contracts between Seller, on the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letterone hand, and any personal computers Affiliate of Seller, on the other hand, and vehicles that are not primarily used by any other Contract listed on Exhibit 1.1(b)(iii) (collectively, the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D“Excluded Contracts”);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person Intellectual Property Rights other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure LetterTransferred Intellectual Property;
(v) any Authorizations other than the Transferred Authorizations;
(vi) any equipment, systems, hardware, furniture, furnishings, fixtures, machinery, vehicles, tools and other tangible personal property set forth on Exhibit 1.1(b)(vi) (collectively, the “Excluded Equipment”);
(vii) any assets, properties and rights used by Seller or any of its Affiliates primarily in connection with the provision of Overhead and Shared Services, including any proprietary tools and processes;
(viii) all Shared Contracts rights to refunds or credits in respect of Taxes arising from ownership, operation or conduct of the Business or the Acquired Assets during any Tax period ending prior to the Closing, during any Pre-Closing Tax Period or arising from any payment made directly to any Tax authority by Seller or any of Seller’s Affiliates (such refunds or credits, the “Excluded Tax Assets”);
(ix) all books and records not constituting Books and Records that relate primarily to the Business as described in Section 1.1(a)(ii), including any Capital Stock of any Person or any minute books and equity transfer records and similar company records, Tax Returns and other Tax-related documents (other than Tax Returns with respect to Property Taxes), books of account or other records having to do with the corporate organization of Seller or any of its Affiliates or relating to the process for the sale of the Business, all employee-related or employee benefit-related files or records and all other Contracts, sales orders, purchase orders, instruments Books and other commitments, obligations and arrangements to which Records that Seller Parent or any of its Affiliates is a party or required to retain by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory applicable Law (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed Laws relating to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Recordsdata protection);
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts any insurance policies maintained for the benefit of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash“Insurance Policies”);
(xi) all Tax refundsany cause of action, Tax credits claim, demand, right or other Tax Assets privilege against one or more third parties that relates to any of the Sellers Excluded Assets or Excluded Liabilities, including causes of actions, claims and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation)rights under insurance policies relating thereto;
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers Employee Benefit Plans, including any plans, trusts, Contracts, documents or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilitiesagreements related thereto, and in each case any books retirement and records relating theretopension plans, and any group medical, dental, life and long-term disability insurance policies maintained by Seller;
(xiii) all claims, defenses, causes of action, counterclaims any bank accounts or investment accounts (or the Cash and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;securities contained therein); and
(xiv) all any assets, properties and rights of not primarily relating to, or not primarily used or held for use by Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closingin connection with, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) operation of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 1 contract
Excluded Assets. (a) Notwithstanding any provision in this Agreement, Purchaser Buyer expressly understands and agrees that the Purchaser Designated following assets of Parent and its Affiliates are not purchasing or acquiring any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any assets, properties or rights other than the Purchased Assets (the “Excluded Assets”), including:) shall be retained by Parent and its Affiliates (other than the Companies):
(i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1Corporate Shared Services;
(ii) (A) all Retained Real Propertycash and cash equivalents other than Company Cash and (B) all rights to any bank accounts other than the Transferred Bank Accounts;
(iii) Tax assets (Aincluding any rights to any Tax refunds or credits) the Retained Facilities, and all Tax Returns (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(Bi) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, Affiliates (other than the Business IT Systems Companies and their respective Subsidiaries), including any Combined Tax Returns, or (Aii) any leases relating to any Excluded Asset or the assets described in the foregoing clauses (B) through (D)Retained Businesses;
(iv) all legal of Parent’s and beneficial its Affiliates’ right, title and interest in the share capital Owned Real Property or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests Leased Real Property set forth on Section 2.1(qSchedule 2.2(a)(iv) of the Seller Disclosure Letterand all improvements, fixtures and appurtenances thereto and rights in respect thereof;
(v) all Shared any employee benefit plans, programs, arrangements and Contracts (including any retirement benefit and all post-retirement health benefit plans, programs, arrangements and agreements and employment Contracts with Transferred Employees) sponsored or maintained by Parent or its Affiliates (other Contracts, sales orders, purchase orders, instruments than a Company and other commitmentsthan any Company Benefit Plans);
(vi) subject to Buyer’s rights under Section 6.17(a), obligations and arrangements to which Seller all Insurance Policies held by Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Productsa Company;
(vii) all Actions (including counterclaims) and defenses against third parties to the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed extent relating to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) any of the Seller Disclosure LetterExcluded Assets or the Excluded Liabilities as well as any books, records and including privileged information to the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Propertyextent relating thereto;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any Intellectual Property of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (other than the Companies and their respective Subsidiaries) to the extent not owned, held or used primarily in the Business, including the Conveyed Subsidiaries Parent Marks;
(ix) any interest of Parent or any Affiliate of their Subsidiaries) Parent (other than the accounts receivable Companies and their respective Subsidiaries) under this Agreement or in any document, certificate or instrument delivered pursuant to or in connection with this Agreement;
(x) any personnel and employment records for employees and former employees of Parent or any Affiliate of Parent (other assets, in each case included in than the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash)Companies) who are not Transferred Employees;
(xi) all Tax refunds, Tax credits or any other Tax Assets assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarityother than the Companies and their respective Subsidiaries) to the extent not primarily related to the Business, wherever located, whether tangible or intangible, real, personal or mixed;
(xii) except as may be or remain outstanding pursuant to Section 6.12, intercompany accounts receivable (including trade accounts receivable) or other thanloan, Contract or advance by Parent to any Company;
(xiii) (A) all corporate minute books (and other similar corporate records) and stock records of Parent (including as relates to any Company), (B) any books and records to the extent relating to the Excluded Assets and (C) any books, records or other materials, in each case, that Parent (1) is required by Law to retain, (2) reasonably believes are necessary to enable Parent to prepare and/or file Tax Returns (copies of which will be made available to Buyer upon Buyer’s reasonable request) or (3) is prohibited by Law from delivering to Buyer;
(xiv) any shares of capital stock or other equity securities of any Person other than any Company or any of their respective Subsidiaries; and
(xv) all assets set forth on Schedule 2.2(a)(xv). Notwithstanding anything to the contrary set forth in this Agreement or in any document, certificate or instrument delivered pursuant to or in connection with this Agreement, Buyer acknowledges and agrees that all of the following shall remain the property of Parent and its Affiliates, and neither Buyer nor any of its Affiliates (including, after the Closing, the Conveyed Subsidiaries Companies) shall have any interest therein: (w) all records and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered reports prepared or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, Affiliates in connection with the sale of the Business and without limiting Seller Parent’s obligations under the Transition Services transactions contemplated by this Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests inanalyses relating to the Business or Buyer so prepared or received; (x) all confidentiality Contracts with prospective purchasers of the Business or any portion thereof (except that Parent shall, or that are used or held for use in, or related shall cause an Affiliate to, assign to Buyer or its designee at the Retained Businesses, in each case other than those assets, properties Closing all of Parent’s or such Affiliate’s rights identified as Purchased Assets in clauses under such confidentiality Contracts to confidential treatment of information with respect to the Business and the Companies and with respect to solicitation and hiring of Transferred Employees); (ay) through (s) all bids and expressions of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx) interest received from prospective purchasers of the Seller Disclosure Letter.
Business or any portion thereof with respect thereto; and (bz) Notwithstanding anything all privileged materials, documents and records in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller possession of any of Parent shall use commercially reasonable efforts to take (or cause one or more any of its Affiliates to takethe extent such materials, documents and records are (A) not related to the Business (provided, that Parent shall be permitted to redact or segregate and retain any information in such action as is necessarymaterials, advisable documents or desirable records that relates to transfer any Retained Business prior to sharing any such information with Buyer or its Affiliates and neither Buyer nor any of its Affiliates will have any interest in any such materials, documents and records to the extent they relate to any Retained Business) or (B) related to any Excluded Assets from the Conveyed Subsidiaries Asset or Excluded Liability. Buyer further acknowledges and their Subsidiaries (andagrees that, if needed, from the Sellers) with respect to Seller any Action between Parent or one or more of its Retained Subsidiaries for such consideration or for no considerationAffiliates on the one hand, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets Buyer or the Business. After Companies (following the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York timeClosing) on the other hand, only Parent or its applicable Affiliates may waive any evidentiary privilege that may attach to a pre-Closing Datecommunication that is determined by a court of competent jurisdiction to be subject to attorney-client privilege, and neither Buyer nor the Companies (following the Closing), nor any of their Affiliates, shall have the right to compel disclosure of such privileged information.
Appears in 1 contract
Excluded Assets. Notwithstanding the terms of Section 2.1, no Asset Selling Affiliate will sell, convey, assign, transfer or deliver to the Purchaser (a) Notwithstanding any provision in this Agreementor its Designated Affiliates), Purchaser and the Purchaser (and its Designated Affiliates are Affiliates) will not purchasing purchase or acquiring any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) rightacquire, title or interest in any assets, properties or rights other than and the Purchased Assets do not include the following assets (together, the “Excluded Assets”):
(a) all accounts receivable of the Asset Selling Affiliates (other than the Notes Receivable) (regardless of whether such accounts receivable relate to the Business);
(b) all Cash, including:bank deposits, investment accounts, lockboxes, certificates of deposit, marketable securities, bank accounts, corporate credit cards and other similar cash items of any Asset Selling Affiliate (including for this purpose all collected funds received into bank accounts owned by any Asset Selling Affiliate through the Closing);
(c) all minute books, records, stock ledgers and Tax records of the Asset Selling Affiliates, along with personnel records and all other materials that the Asset Selling Affiliates are required by Law to retain;
(d) the shares of the capital stock or other equity securities of any Asset Selling Affiliate and any Asset Selling Affiliate’s ownership interest in any Person (other than the Acquired Companies);
(e) subject to Article 10, all insurance policies, binders, entitlements and rights of the Selling Affiliates thereunder and proceeds thereof;
(f) all rights under all Contracts of any Asset Selling Affiliate other than the Included Contracts;
(g) all rights to refunds, credits or similar benefits relating to Excluded Taxes;
(h) the “CareFusion” name, ▇▇▇▇, domain name and logo, along with all intellectual property rights of the Sellers or any Asset Selling Affiliate, other than the Purchased Intellectual Property;
(i) all assets constituting ownership interests in, or that are used or held for use in, real property and rights of the Retained BusinessesAsset Selling Affiliates in respect of real property, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1;
(ii) all Retained the Leased Real Property;
(iiij) all rights in connection with and assets of any Seller Plan (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees otherwise expressly provided in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (DArticle 10);
(ivk) all legal and beneficial interest in the share capital or equity interest of rights arising under any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure LetterExcluded Liability;
(vl) all Shared Contracts rights to use and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, otherwise in each case other than Assumed Contractsconnection with the Relevant Phone Numbers;
(vim) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory assets and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) rights of the Seller Disclosure Letter, Asset Selling Affiliates sold or otherwise transferred or disposed of during the period from the date of this Agreement through and including the right to ▇▇▇ and recover and retain damages for pastClosing Date, present and future infringement in any event in accordance with Sections 5.2 or misappropriation or any other violation of any such Intellectual Property;5.11 hereof; and
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xivn) all rights of Seller Parent or any of its Asset Selling Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or any of the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure LetterAgreements.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 1 contract
Sources: Share and Asset Purchase Agreement (Natus Medical Inc)
Excluded Assets. (a) Notwithstanding any provision in this AgreementOther than the Purchased Assets subject to Section 2.01, Purchaser Buyer expressly understands and the Purchaser Designated Affiliates are agrees that it is not purchasing or acquiring acquiring, and the Seller Parties are not selling or assigning, any other assets or properties of the Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) rightParties, title or interest in any assets, and all such assets and properties or rights other than listed below shall be excluded from the Purchased Assets (the “Excluded Assets”), including. Excluded Assets are the following assets and properties of the Seller Parties:
(i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1;
(ii) all Retained Real Property;
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checksbank accounts and securities of the Seller Parties (other than the equity interests in the Singapore Subsidiary and the Delaware Subsidiary);
(i) the first accounts or notes receivable of the Business collected after the Closing by the Seller Parties, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries Buyer or any of their Subsidiariesrespective Affiliates in an aggregate amount equal to the Net Working Capital Adjustment Amount, as set forth on the Estimated Closing Statement (“Excluded Business Accounts Receivable”), and (ii) all accounts or notes receivable of the businesses of the Seller Parties other than the Business;
(c) all Contracts that are not Assigned Contracts;
(d) all Intellectual Property of the Seller Parties other than the Intellectual Property Assets;
(e) the corporate seals, organizational documents, minute books, stock books, Tax Returns and related records and workpapers, books of account or other records having to do with the corporate organization of the Seller Parties (other than the accounts receivable Singapore Subsidiary and the Delaware Subsidiary), all employee-related or employee benefit-related files or records, other assetsthan personnel files of Transferred Employees, in each case included in and any other books and records which the calculation Seller Parties are prohibited from disclosing or transferring to Buyer under applicable Law and is required by applicable Law to retain;
(f) all insurance policies of the Final Business Working Capital, Seller Parties and the Cash Equivalents included all rights to applicable claims and proceeds thereunder except as set forth in the calculation of Final Business Net CashSection 2.01(i);
(xig) all Benefit Plans and trusts or other assets attributable thereto;
(h) all Tax refundsAssets (including duty and Tax credits, Tax credits or other Tax Assets refunds and prepayments of Taxes) of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers Parties or any of their Affiliates (other than the Conveyed Subsidiaries Singapore Subsidiary and their Subsidiariesthe Delaware Subsidiary) that do not relate solely (notwithstanding the foregoing, any Tax credit, Tax refund, prepayment or overpayment of Taxes of the Singapore Subsidiary or the Delaware Subsidiary for any period or portion thereof ending on or prior to Purchased Assets the Closing Date, determined as provided in Section 6.12, shall be an Excluded Asset hereunder and Buyer and its Affiliates shall cause the amount of any such Tax credit, Tax refund, prepayment or Assumed Liabilities, and in each case overpayment of Taxes received or paid by the Singapore Subsidiary or the Delaware Subsidiary (together with the amount of any books and records relating theretointerest thereon) for any such period to be promptly delivered to Parent);
(xiiii) all claims, defenses, causes of rights to any action, counterclaims and rights suit or claim of set-off against third parties (at any time nature available to or in any manner arising or existingbeing pursued by the Seller Parties, whether ▇▇▇▇▇▇ arising by way of counterclaim or inchoateotherwise, known to the extent relating to any Excluded Asset or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1any Liability that is not an Assumed Liability;
(xivj) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights listed on Section 2.02(j) of the Disclosure Schedules;
(k) all securities or other equity interests of any Person that are not Related owned or held by the Seller Parties other than the Singapore Subsidiary and the Delaware Subsidiary;
(i) all attorney-client privilege and attorney work-product protection of the Seller Parties or associated with the Business as a result of legal counsel representing the Seller Parties in connection with the transactions contemplated by this Agreement or any of the Transaction Documents, (ii) all documents subject to the Business, including all assets, properties and rights constituting ownership interests in, attorney-client privilege or that are used or held for use in, or related to, the Retained Businesses, work-product protection described in each case other than those assets, properties or rights identified as Purchased Assets in clauses clause (a) through (si) of Section 2.1this paragraph, and (iii) all documents maintained by the Seller Parties in connection with the transactions contemplated by this Agreement or any of the Transaction Documents; and
(xxm) the assets set forth in Section 2.3(a)(xx) of rights which accrue or will accrue to the Seller Disclosure LetterParties under the Transaction Documents.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 1 contract
Excluded Assets. (a) Notwithstanding any provision in this Agreementthe provisions of Section 1.2, Purchaser the parties hereto acknowledge and agree that the Purchaser Designated Affiliates following assets 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 included among the Purchased Assets and are excluded from the Sale (collectively, the “"Excluded Assets”), including:"):
(i) all assets constituting ownership interests inaccounts receivable, or that are used or held for use inand notes receivable (if any), of any nature arising from the Retained Businesses, other than those assets identified as Purchased Assets in clauses UK Operations existing on the Closing Date (a) through (s) of Section 2.1the "Accounts Receivable");
(ii) all Retained Real Propertyprepaid expenses and other deposits related to the Purchased UK Operations;
(iii) the assets, properties, Contracts and rights of Unipath and its Affiliates in the Excluded Fields (A) which shall include, for the Retained Facilitiesavoidance of doubt, (A) any owned the tangible assets and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible real property located at the Retained Facilities or not Related to the BusinessStirling, 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 (DScotland);
(iv) all legal and beneficial interest except as provided in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their SubsidiariesSection 1.2(xi), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure LetterIntellectual Property owned by Unipath or owned by third parties and licensed to Unipath;
(v) all Shared the Contracts and all other arising from the Purchased UK Operations set forth on Section 1.3(v) of the Disclosure Schedule (the "Excluded Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements ");
(vi) rights to which Seller Parent refunds of Taxes paid by or on behalf of Unipath 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 those paid by Buyer or the Company), except for the rights to refunds of Taxes that constitute 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 ProductsLiabilities;
(vii) the Retained Names except as provided in Section 1.2(x), insurance policies and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, rights and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, benefits 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 Propertyclaims thereunder;
(viii) all Governmental Authorizationsthe services of any employees of Unipath or its Affiliates employed other than in the Purchased UK Operations or assets of any employee benefit plan, including product registrationsarrangement, manufacturing registrations and environmental permits, owned, used or licensed program maintained or contributed to by Seller Parent IMA or any of its Affiliates and not Related Subsidiaries with respect to the Businessany employees other than Employees;
(ix) all customer the assets, properties, Contracts and vendor lists, all advertising, marketing, sales rights arising from or used in Unipath's and promotional materials, its Affiliates' professional diagnostics and business and financial records, books, and documents and other Records, in each case not Related to nutritional supplement businesses (the Business, and the Specified Records"Excluded Businesses");
(x) all of Unipath's cash, whether in-hand or on deposit or otherwise held at the bank or any other financial institution;
(xi) Unipath's accounts receivable and accounting records which do not relate exclusively to the Purchased UK Operations; and
(xii) any other current assets assets, tangible or intangible, wherever situated, not included in the Purchased Assets; provided that Unipath and all cash its Affiliates, upon reasonable request 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 to the extent Unipath or any of its Affiliates (including has the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assetsright to so provide, 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 shall provide Buyer reasonable access during normal business hours to the Closing, but excluding any refunds or credits or other Tax Excluded 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)that, 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, were used in the Parties shall continue to use commercially reasonable efforts to take all actions (R&D Operations or the UK Call Center 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 are not being transferred pursuant to this Section 2.3(b) after the Closing Date shall be deemed Agreement, for purposes of calculating the Business Working Capital Buyer's use to facilitate its research 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 Datedevelopment and UK call center activities.
Appears in 1 contract
Sources: Asset Purchase Agreement (Inverness Medical Innovations Inc)
Excluded Assets. (aNotwithstanding anything in Section 2.01(a) Notwithstanding any provision in this Agreementto the contrary, Purchaser Buyer shall not purchase, and the Purchaser Designated Affiliates are Assets shall not purchasing or acquiring include, any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or and interest in or to any assets, properties or rights other than of the Purchased Assets following assets (the “"Excluded Assets”), including:"):
(i) all assets constituting ownership interests incash and cash equivalents, or that are used or held for use in, the Retained Businesses, securities (other than those assets identified as Purchased Assets the Interests) and negotiable instruments on hand, in clauses (a) through (s) of Section 2.1lock boxes, in financial institutions or elsewhere, including any cash residing in any collateral cash account securing any obligation or contingent obligation;
(ii) all Retained Real Propertyintercompany receivables between Parent and any of its Affiliates, or between any Affiliate of Parent and any other Affiliate of Parent, all accounts, notes and other receivables resulting from sales prior to the Closing Date by Parent or its Affiliates of products to the extent generated by the Businesses, whether current or non-current;
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as otherwise expressly set forth on in this Agreement or the Ancillary Agreements including in Section 2.1(d)(i)(B2.01(a) hereof, the ownership right in any property or asset (other than Intellectual Property), including Contracts, that is used in the Businesses, but is used primarily in businesses of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and Businesses (A) any leases relating to the assets described in the foregoing clauses (B) through (Da "Shared Asset(s)");
(iv) all legal real property of Parent and beneficial its Affiliates (including any of Parent's or its Affiliates' right, title and interest in as a tenant or otherwise and the share capital or equity interest of any Person other than Real Property contemplated to be leased to Buyer under the Conveyed Subsidiaries (and their SubsidiariesLease Agreement), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure LetterOwned Business Real Property;
(v) all Shared Contracts the EVAR Business, the PCBA Business, the Peripheral Intervention Business, the Embolic Beads Business and all other Contracts, sales orders, purchase orders, instruments businesses of Parent and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contractsthe Businesses (collectively, the "Excluded Businesses");
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventorysubject to Section 5.06(c) other than the Inventory and any samples of Productslicense granted in accordance therewith, the Licensed Marks;
(vii) the Retained Names all rights or interests of a Transferred Subsidiary in, and all other Intellectual Property that is not Business IPassets of, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual PropertyParent Plans;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller the Parent or any of its Affiliates and not Related to the BusinessRetained Intellectual Property;
(ix) all customer Parent's and vendor listsits Affiliates' investments in, all advertisingor joint ventures or any other partnerships with, marketingother third-party businesses (equity, sales and promotional materialsdebt or otherwise), and business and financial records, books, and documents and other Records, in each case whether or not Related related to the BusinessBusinesses (collectively, and "Parent Investments"), including those listed on Section 2.01(c)(ix) of the Specified RecordsSeller Disclosure Schedule;
(x) all accounts receivable rights of Parent and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in Transferred Subsidiaries) arising under this Agreement or from the calculation consummation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash)transactions contemplated hereby;
(xi) all Tax refundsany claim, Tax credits right or interest of the Parent and any Transferred Subsidiary in or to any refund, credit or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified recovery for Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a any Pre-Closing Tax Liability in such calculation);Period; and
(xii) all Seller Combined Tax Returns any right, title and all Tax Returns interest in or to any of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect assets including Contracts related thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including listed on Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx2.01(c)(xii) of the Seller Disclosure LetterSchedule.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 1 contract
Excluded Assets. The following are collectively referred to as the --------------- "Excluded Assets" and are not included in the Assets: ---------------
(a) Notwithstanding all Communications Facilities (as defined in the Sublease), including but not limited to AirTouch's Improvements and Communications Equipment (each as defined in the Sublease);
(b) the Reserved Space as described in the Sublease, including without limitation all space at a Tower Site occupied by AirTouch's Improvements and Communications Equipment (each as defined in the Sublease) and non-exclusive use of all real estate interests (including fee and leasehold interests, licenses, rights-of-way and easements) on which switch equipment and associated loading docks, patios, offices and parking lots of Sublessors or their Affiliates is located or necessary to such equipment's operation;
(c) any provision in this Agreementequipment or transmission systems used by AirTouch, Purchaser and the Purchaser Designated Affiliates are not purchasing any other Sublessor or acquiring any of Seller Parent’s Sublessors' Affiliates for the remote monitoring of the Towers;
(d) all Intellectual Property of Sublessors or its Affiliates’ any Affiliate of Sublessors, other than plans and specifications of the Towers and data (including in electronic or machine-readable form) relating to third party tenants and lessors with respect to the Conveyed Subsidiaries’ or their Subsidiaries’Towers;
(e) right, title or interest in any assets, properties or rights, including Contracts, that are not exclusively Assets;
(f) all rights that accrue or will accrue to, and all rights retained by and/or granted to, Sublessors under this Agreement, the Sublease or any of the other than Transaction Documents, including the Purchased Assets consideration paid or to be paid to Sublessors hereunder;
(g) any claims or rights against third parties except to the “Excluded extent such claims or rights relate to the Assets”), including:;
(h) assets of any Employee Plan or employee benefit arrangement;
(i) all the assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets specified in clauses (a) through (s) of Section 2.1SCHEDULE 1.14;
(ii) all Retained Real Property;
(iii) (A) the Retained Facilities, (Aj) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and assets specified in any personal computers and vehicles of the Annexes or included within the definition of Assets herein that are not primarily used owned or leased by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits partnership or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to entity which Seller Parent is entitled pursuant to Section 6.5(c), whether or listed on EXHIBIT B hereto but does not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as become an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1Other Entity; and
(xxk) any Tower Sites (and all Towers, Tower Related Assets and other assets and rights associated with such Tower Sites) excluded from the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement Assets or excluded from becoming subject to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash Sublease pursuant to Section 2.9 2.2 (Restricted Items) hereof, or which are to have occurred as of 12:01 a.m. (New York time) on remain the Closing Dateproperty of, or are to be for the benefit of, any Sublessor pursuant to the Sublease.
Appears in 1 contract
Excluded Assets. (a) Notwithstanding any provision in this Agreementthe provisions of Section 1.1 above, Purchaser the following assets and the Purchaser Designated Affiliates properties are to be retained by Seller and shall not purchasing or acquiring any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any assets, properties or rights other than the Purchased constitute Acquired Assets (collectively, the “Excluded Assets”), including:):
(ia) all assets constituting ownership interests inreal property, buildings, structures and improvements thereon, whether owned or that are used or held for use inleased by Seller, all fixtures and fittings attached thereto, but not including any of the Retained BusinessesTangible Assets, and all security deposits with respect to any leased properties other than those assets identified as Purchased Assets explicitly included in clauses (a) through (s) of Section 2.1the Acquired Assets;
(iib) all Retained Real Property;
(iii) (A) the Retained Facilitiesright, (A) any owned title and leased furnitureinterest in, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property to and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) under all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which Seller or any of its or their properties, assets or rights properties is subject, in each case otherwise subject to or bound other than Assumed the Assigned Contracts;
(vic) all inventory (including capital stock or other equity interest in Seller or any Subsidiary, Affiliate or other Person, and all raw material inventoryoptions, work-in-process inventory, spare parts inventory and finished products inventory) warrants or other than the Inventory and any samples of Productsrights to acquire such capital stock or other equity;
(viid) all right, title and interest to any vehicles owned, leased or used by the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual PropertySeller;
(viiie) all Governmental Authorizationsright, including product registrations, manufacturing registrations title and environmental permits, owned, used or licensed by Seller Parent or any interest to all insurance policies of its Affiliates and not Related to the BusinessSeller;
(ixf) all customer minute books and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Recordsstock records of Seller;
(xg) all accounts receivable and other current assets and personnel records of all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (employees other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash)Transferred Employees;
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xivh) all rights of Seller and Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement and the Related Agreements or arising from the Ancillary Agreements and any documents delivered consummation of the transactions contemplated hereby or received in connection herewith or therewiththereby;
(xvi) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveriesEmployee Benefit Plans;
(xvij) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Planthe Southborough Lease;
(xviik) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) bank and brokerage accounts of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services AgreementSeller;
(xviiil) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1Tax records of Seller;
(xixm) all assetsrights, properties and rights claims or credits of Seller relating to any Person that are not Related to the Business, including Excluded Asset or Excluded Liability;
(n) all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1cash; and
(xxo) the assets set forth in Section 2.3(a)(xx) all inventory of the Seller Disclosure LetterUAV Business.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 1 contract
Sources: Asset Purchase Agreement (Ballard Power Systems Inc.)
Excluded Assets. (a) Notwithstanding any provision in this Agreement, Purchaser and the Purchaser Designated Affiliates are not purchasing or acquiring any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any assets, properties or rights other than the Purchased Assets (the “Excluded Assets”), including:
(i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1;
(ii) all Retained Real Property;
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xx) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement to the contrary contrary, the Asset Sellers will retain and not transfer, the following assets of the Asset Sellers (the “Excluded Assets”):
(a) Cash and Cash Equivalents, except to the extent included in the Closing Working Capital Balance;
(b) any rights to refunds or prepaid Taxes to the extent not included in the Closing Working Capital Balance;
(c) all books and records of the Asset Sellers to the extent relating to the Excluded Assets or Excluded Liabilities, including the corporate charter, related organizational documents and minute books and Returns of the Asset Sellers;
(d) all rights with respect to any Proceedings the Asset Sellers may have to the extent pertaining to the Excluded Liabilities or any of the Excluded Assets;
(e) except for assets leased by the Asset Sellers, all assets in possession of the Asset Sellers but owned by third parties;
(f) any Employee Plan and any other Plan maintained, sponsored or contributed to by Weatherford, the Asset Sellers or any of their respective ERISA Affiliates;
(g) the rights of any Asset Seller under this Agreement and under any Ancillary Agreement to which it is a party and the proceeds payable to the Asset Sellers pursuant to this Agreement;
(h) the real and tangible personal property listed in Schedule 1.2(h);
(i) the contracts set forth on Schedule 1.2(i) (the “Retained Contracts”);
(j) except for the equity or other ownership interests of the Target Companies, any and all equity or ownership interests in any entity, including stock, membership interests, partnership interests, joint venture interests, or other similar interests;
(k) the Owned Real Property set forth on Schedule 1.2(k);
(l) subject to Section 6.5(f)4.8, prior any trademarks, service marks, brand names or trade, corporate or business names of Weatherford or of any of Weatherf▇▇▇’▇ ▇▇▇▇▇▇▇tes or divisions, whether or not used in the Business;
(m) the accounts receivable, whether billed or unbilled, of the Asset Sellers, including those related to the ClosingBusiness, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact except to the Purchased Assets or the Business. After extent included in the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital Balance; and
(n) all other assets and properties not included within the Business Net Cash pursuant to Section 2.9 to have occurred as definition of 12:01 a.m. (New York time) on the Closing Date“Assets.”
Appears in 1 contract
Sources: Acquisition Agreement (Weatherford International PLC)
Excluded Assets. Notwithstanding anything contained in this Agreement to the contrary, the following assets, properties and rights will not be included in the Adaptive Assets (the "Excluded Assets"):
(a) Notwithstanding Adaptive's equity interests or investments in third parties, including its wholly-owned subsidiaries, Adaptive Broadband Foreign Sales Corporation, a Barbados, West Indies corporation and ABL (together with ABCL, collectively, the "Adaptive Subsidiaries"), but excluding CBL, Fuzion and ABCL;
(b) All avoidance actions against entities other than Purchaser, including under Sections 542-544 and 547-551 of the Bankruptcy Code and any provision amounts or other property received or receivable in this Agreementany such actions;
(c) All executory contracts and unexpired leases of Adaptive not being assumed and assigned to Purchaser;
(d) All accounts, Purchaser deposit accounts, security deposits, cash, investment securities or other cash equivalents held by Adaptive, the Adaptive Subsidiaries or third parties on behalf of Adaptive or the Adaptive Subsidiaries or in which Adaptive or the Adaptive Subsidiaries claim an interest, including any and all amounts held on behalf of deferred compensation or similar plans (except for the Purchaser Designated Affiliates are not purchasing or acquiring Pre-Paid Deposits listed in Section 1.1(i) hereof);
(e) All intercompany receivables and intercompany claims between Adaptive and any of Seller Parent’s the Adaptive Subsidiaries and amongst any of the Adaptive Subsidiaries;
(f) All insurance policies, insurance claims or its Affiliates’ insurance proceeds;
(g) All attorney-client privileged materials; files of employees; and other books and records, correspondence, files and computer programs and data not directly related to the Adaptive Assets (including the Conveyed ABL Assets) being sold to Purchaser;
(h) All claims against Adaptive's and the Adaptive Subsidiaries’ or their Subsidiaries’) right, title or interest in any assets, properties or rights other than the Purchased Assets (the “Excluded Assets”), including:' officers and directors including claims under directors' and officers' liability insurance;
(i) all assets constituting ownership interests inAll tort claims against third parties, except those directly relating to (i) the Adaptive Accounts Receivable, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1;
(ii) all Retained Real Property;
(iii) (A) the Retained Facilities, (A) Adaptive Intellectual Property and the ABL Intellectual Property such as any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) claims of infringement of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Adaptive Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such ABL Intellectual Property;
(viiij) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used All contract claims against third parties (except those claims relating to (i) the Adaptive Accounts Receivable or licensed by Seller Parent (ii) the Adaptive Intellectual Property or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net CashABL Intellectual Property);
(xik) all Tax refundsAll office supplies, Tax credits or equipment, furniture, fixtures, leasehold improvements, electronic and computer equipment required by Adaptive's employees in the principal U.S. office of Adaptive to continue to complete the Chapter 11 process;
(l) Such other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes assets as Purchaser shall expressly elect not to acquire, which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing such election must be made prior to the ClosingClosing Date;
(m) All license fees and prepaid amounts collected as of the Closing Date for goods, but excluding any refunds or credits or other Tax Assets to services and the extent reflected as an asset Adaptive Intellectual Property on the Final Closing Statement and taken into account Assumed Contracts (as defined in the calculation of (aSection 1.1(d) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculationhereto);
(xiin) all Seller Combined Tax Returns All tax refunds or reductions, net operating losses, letter of credit rights and payment intangibles (except to the extent included in Section 1.1(m) hereto);
(o) All intellectual property licenses of Adaptive or ABL to the extent determined by the Court that such licenses are nontransferable;
(p) All "employee benefit plans" (as such term is defined by Section 3(3) of the Employee Retirement Security Act of 1974, as amended ("ERISA")), "employee pension benefit plans" (as such term is defined by Section 3(2) of ERISA) and all Tax Returns of the Sellers other pension, profit sharing or cash or deferred compensation plans and trusts and assets thereof and any other employee benefit plan or arrangement thereof, if any, maintained by Adaptive, ABL or any of their Affiliates (the other than the Conveyed Adaptive Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any third party on behalf of its Affiliates (for clarityAdaptive, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement ABL or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1Adaptive Subsidiaries; and
(xx) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
Appears in 1 contract
Excluded Assets. (a) Notwithstanding any other provision in of this AgreementAgreement to the contrary, Purchaser Seller shall retain ownership of and shall not hereby or otherwise sell or transfer, and the Purchaser Designated Affiliates are Assets shall not purchasing or acquiring any of Seller Parentinclude, the Seller’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or and interest in any in, to and under all of its assets, properties or and rights other than not specifically included in the Purchased Assets Assets, including the following (collectively, the “Excluded Assets”), including:):
(i) all assets constituting ownership interests inAll cash, or that are used or held for use incash equivalents, marketable securities and bank accounts of the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1Seller;
(ii) Other than the Transferred Permits, all Retained Real PropertyPermits of the Seller;
(iii) Other than the Acquired Contracts, all Contracts to which the Seller is a party;
(iv) Other than the Transferred Personal Property, all equipment and personal property of the Seller (including, for the avoidance of doubt, all injection molding machines, computer numerical control (CNC) machines and tool room equipment and tools);
(v) Other than the Transferred Inventory, all inventory and raw materials of the Seller;
(vi) Other than the Transferred Accounts Receivable, all accounts, notes and other receivables of the Seller;
(vii) Other than the Transferred Intellectual Property, all intellectual property rights of the Seller;
(viii) Other than the Transferred Prepaids, all prepaid deposits and prepaid expenses of the Seller;
(ix) Other than the Transferred Claims, all claims of the Seller against third parties;
(x) Other than the contractual rights afforded to Buyer under the Lease Agreement (as defined in Section 1.01(c)(iii)), all rights of the Seller in or to any real property owned or leased by the Seller;
(xi) All tax refunds and credits (whether by payment, credit, offset or otherwise);
(xii) All insurance policies issued to or for the benefit of the Seller or any of its affiliates, all proceeds therefrom and all rights, claims, credits or causes of action thereunder;
(xiii) The shares of stock or other ownership interests in the Seller;
(xiv) The corporate or company seal, minute books, stock books, blank share certificates, and other records relating to the corporate or other legal organization of the Seller and returns of Taxes (as defined below in Section 3.18) for Taxes accruing before the Closing Date
(xv) Other than the Specified Transferred Items, all computers, furniture and office and desk supplies;
(xvi) All (A) office phones and (B) personal computers used by any of the Retained Facilities, Transferred Employees;
(Axvii) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the BusinessAll warehouse racking and, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6Schedule 1.01(a)(xii), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
material handling equipment (xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliatese.g., and without limiting Seller Parent’s obligations under the Transition Services Agreementpallet jacks, forklifts, conveyor systems, shrink wrap devices, etc.);
(xviii) Except as set forth on Schedule 1.01(a)(xiii), all third-party warrantiescars, indemnities, further assurances trucks and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1vehicles;
(xix) all assetsAll compensation, properties incentive, retirement, stock or stock-based employee benefit or employment-related plans, policies, arrangements or agreements and rights in the assets of any Person that are not Related to the Businesssuch plans, including all assetspolicies, properties and rights constituting ownership interests in, arrangements or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1agreements; and
(xx) the assets set forth in Section 2.3(a)(xx) The rights which accrue to any of the Seller Disclosure Letter.
(b) Notwithstanding anything in Parties under this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing DateRelated Instrument.
Appears in 1 contract
Sources: Asset Purchase Agreement (Communications Systems Inc)
Excluded Assets. (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. Notwithstanding Section 2.1, the Parties acknowledge and agree that Seller is not selling, conveying, transferring, delivering or assigning to Buyer any rights whatsoever to those Assets described below or specifically listed on Schedule 2.2 (a) Notwithstanding any provision in this Agreementcollectively, Purchaser and the Purchaser Designated Affiliates are not purchasing or acquiring any of Seller Parent’s or its Affiliates’ (including the Conveyed Subsidiaries’ or their Subsidiaries’) right, title or interest in any assets, properties or rights other than the Purchased Assets (the “Excluded Assets”), includingin each case, wherever located or by whomever possessed, and Buyer is not purchasing, taking delivery of or acquiring from or through Seller any rights whatsoever in or to the Excluded Assets from Seller, which shall include the following Assets:
(a) all Assets of Seller not relating to, used in, or necessary for the operation of the Biologics SBU or the development, manufacture, distribution, marketing or sale of the Products, other than as described in Sections 2.1(b), 2.1(c) and 2.1(e), including the Excluded Real Property and the Excluded Products;
(b) the Excluded Corporate Shared Services Assets;
(c) the Excluded Intellectual Property, other than the rights to use certain Seller Marks for the transition period pursuant to the provisions of Sections 6.7(a), 8.3 and 8.5;
(d) all cash, cash equivalents, accounts, securities, notes receivable and chattel paper of Seller or any of its Affiliates;
(e) all Accounts Receivable arising before the Effective Time (except Accounts Receivable, if any, for work in progress, partially billed products, or open purchase orders relating to the Products or the Biologics SBU);
(f) any refund or credit of Taxes attributable to any Excluded Tax Liability;
(g) all insurance policies of Seller;
(h) all rights, claims and credits of Seller or any of its Affiliates to the extent relating to any Excluded Asset or any Excluded Liability, including any such items arising under insurance policies and all guarantees, warranties, indemnities and similar rights in favor of Seller or any of its Affiliates to the extent relating to any Excluded Asset or any Excluded Liability;
(i) all assets constituting ownership interests in, or that are used or held for use in, the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (s) of Section 2.1;
(ii) all Retained Real Property;
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems rights of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contractsunder this Agreement and the Other Agreements;
(vij) all inventory (including all raw material inventoryrights, work-in-process inventory, spare parts inventory claims and finished products inventory) other than the Inventory and any samples credits of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related arising under, in connection with, or relating to the PhosLo APA or the “PhosLo Business” as defined therein, or the Inhibitex Arbitration;
(ixk) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified RecordsRetained Information;
(xl) all accounts receivable tax attributes, tax credits and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates tax refunds of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c)Seller, whether or not derived from the Business and whether or not existing prior attributable to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns ownership of the Sellers or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services to the extent such assets are Purchased Assets) of the type currently provided to the Business by Seller Parent or any of its Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviii) all third-party warranties, indemnities, further assurances and similar covenants and guarantees other than those identified as Purchased Assets in Section 2.1;
(xix) all assets, properties and rights of any Person that are not Related to the Business, including all assets, properties and rights constituting ownership interests in, or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1; and
(xxm) (i) the assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letter.
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (Shared Use Assets not split or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash segregated pursuant to Section 2.9 6.7(d), (ii) to have occurred as the extent split or segregated pursuant to Section 6.7(d), the split or segregated portion of 12:01 a.m. any Seller Shared Use Asset agreed by the Parties to be owned or held by Seller after the Effective Time, and (New York timeiii) on to the Closing Dateextent split or segregated pursuant to Section 6.7(d), the split or segregated portion of any Buyer Shared Use Asset agreed by the Parties to be owned or held by Seller after the Effective Time.
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Excluded Assets. (a) Notwithstanding any provision in this AgreementSection 2.1 to the contrary, Purchaser Seller Parties will retain ownership of, and the Purchaser Designated Affiliates are Acquired Assets shall not purchasing or acquiring any of Seller Parent’s or its Affiliates’ include, the following assets (including the Conveyed Subsidiaries’ or their Subsidiaries’) rightcollectively, title or interest in any assets, properties or rights other than the Purchased Assets (the “Excluded Assets”):
(a) Any asset of Parent or LendingTree other than as listed in subsection (n) of Schedule 2.1;
(b) Except as provided in Sections 2.1(a), including:2.1(f) and 2.1(j), all cash, cash equivalents, short term investments and accounts receivable of Sellers or the Subsidiaries;
(c) All amounts held by Sellers in impound or escrow accounts in respect of any Mortgage Loans that are not transferred to Buyer;
(d) All bank accounts of each Seller;
(e) All Mortgage Loans (other than those portfolio loans listed in subsection (i) of Schedule 2.1);
(f) Sellers’ warehouse lines of credit, Investor Commitments, hedging arrangements (including dealer agreements, but not including the hedging instruments described in Section 2.1(a)) and Contracts related to the foregoing;
(g) All Contracts of Seller Parties and their Affiliates other than Assumed Contracts and Assumed Office Leases;
(h) All Benefit Plans of Seller Parties and their Affiliates;
(i) all Any assets constituting ownership interests in, or that which are used or held for use in, “plan assets” (within the Retained Businesses, other than those assets identified as Purchased Assets in clauses (a) through (smeaning of ERISA) of Section 2.1;
(ii) all Retained Real Property;
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property and other tangible property located at the Retained Facilities or not Related to the Business, except as set forth on Section 2.1(d)(i)(B) of the Seller Disclosure Letter, and any personal computers and vehicles that are not primarily used by the Transferred Employees in respect of the Business, (A) the Information Systems of Seller Parent and its Subsidiaries, other than the Business IT Systems and (A) any leases relating to the assets described in the foregoing clauses (B) through (D);
(iv) all legal and beneficial interest in the share capital or equity interest Benefit Plan of any Person other than the Conveyed Subsidiaries (and their Subsidiaries), other than those equity interests set forth on Section 2.1(q) of the Seller Disclosure Letter;
(v) all Shared Contracts and all other Contracts, sales orders, purchase orders, instruments and other commitments, obligations and arrangements to which Seller Parent or any of its Affiliates is a party or by which any of its or their properties, assets or rights is subject, in each case other than Assumed Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory and finished products inventory) other than the Inventory and any samples of Products;
(vii) the Retained Names and all other Intellectual Property that is not Business IP, including such Intellectual Property licensed to Purchaser under an Ancillary Agreement or otherwise, and including as set forth on Section 2.3(a)(vii) of the Seller Disclosure Letter, and including the right to ▇▇▇ and recover and retain damages for past, present and future infringement or misappropriation or any other violation of any such Intellectual Property;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used or licensed by Seller Parent or any of its Affiliates and not Related to the Business;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents and other Records, in each case not Related to the Business, and the Specified Records;
(x) all accounts receivable and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, funds in time and demand deposits or similar accounts of Seller Parent or any of its Affiliates (including the Conveyed Subsidiaries or any of their Subsidiaries) (other than the accounts receivable and other assets, in each case included in the calculation of the Final Business Working Capital, and the Cash Equivalents included in the calculation of Final Business Net Cash);
(xi) all Tax refunds, Tax credits or other Tax Assets of the Sellers and any refund or credit against Seller Indemnified Taxes to which Seller Parent is entitled pursuant to Section 6.5(c), whether or not derived from the Business and whether or not existing prior to the Closing, but excluding any refunds or credits or other Tax Assets to the extent reflected as an asset on the Final Closing Statement and taken into account in the calculation of (a) the Final Business Working Capital or (b) Seller Accrued Income Taxes (to the extent, with respect to clause (b), offsetting a Tax Liability in such calculation);
(xii) all Seller Combined Tax Returns and all Tax Returns of the Sellers Party or any of their Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries) that do not relate solely to Purchased Assets or Assumed Liabilities, and in each case any books and records relating thereto;
(xiii) all claims, defenses, causes of action, counterclaims and rights of set-off against third parties (at any time or in any manner arising or existing, whether ▇▇▇▇▇▇ or inchoate, known or unknown, contingent or non-contingent) other than those identified as Purchased Assets in Section 2.1;
(xiv) all rights of Seller Parent or any of its Affiliates (for clarity, other than, from and after the Closing, the Conveyed Subsidiaries and their Subsidiaries) under this Agreement or the Ancillary Agreements and any documents delivered or received in connection herewith or therewith;
(xv) except as set forth in Section 2.1(o) and subject to Section 6.18, all current and prior insurance policies and all rights of any nature with respect thereto, including all insurance recoveries thereunder and rights to assert claims with respect to any such insurance recoveries;
(xvi) except as expressly set forth in this Agreement (including Section 2.1(p) and Section 6.6), all assets of any Seller Group Plan or Foreign Seller Group Plan that is not a Conveyed Subsidiary Plan;
(xvii) all corporate-level services (but not the assets related to such services policy to the extent such assets are Purchased Assets) policy provides benefits under any Benefit Plan of the type currently provided to the Business by any Seller Parent Party or any of its their Affiliates, and without limiting Seller Parent’s obligations under the Transition Services Agreement;
(xviiij) all third-party warranties, indemnities, further assurances All personnel records and similar covenants and guarantees files maintained by Seller Parties or any of their Affiliates with respect to employees other than those identified as Purchased Assets in Section 2.1the Hired Employees;
(xixk) all assets, properties All insurance policies of Sellers;
(l) All Licenses of Sellers;
(m) The Organizational Documents and rights Tax Returns of any Person that are not Related each Seller;
(n) All attorney-client privileged materials to the Business, including all assets, properties extent about the Transactions and subject to the attorney-client privilege;
(o) Sellers’ rights constituting ownership interests in, under any Transaction Document;
(p) All real property owned by Sellers or that are used or held for use in, or related to, the Retained Businesses, in each case other than those assets, properties or rights identified as Purchased Assets in clauses (a) through (s) of Section 2.1Subsidiaries; and
(xxq) the The other assets set forth in Section 2.3(a)(xx) of the Seller Disclosure Letteron Schedule 2.2(q).
(b) Notwithstanding anything in this Agreement to the contrary but subject to Section 6.5(f), prior to the Closing, Seller Parent shall use commercially reasonable efforts to take (or cause one or more of its Affiliates to take) such action as is necessary, advisable or desirable to transfer the Excluded Assets from the Conveyed Subsidiaries and their Subsidiaries (and, if needed, from the Sellers) to Seller Parent or one or more of its Retained Subsidiaries for such consideration or for no consideration, as may be determined by Seller Parent in its sole discretion, but in compliance with all applicable Laws and as would not result in any material adverse impact to the Purchased Assets or the Business. After the Closing Date, the Parties shall continue to use commercially reasonable efforts to take all actions (and shall cause their Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) to continue to use commercially reasonable efforts to take all actions) reasonably requested by the other Party to effect the provisions of this Section 2.3, including the return of any Excluded Assets for no additional consideration. Any action taken pursuant to this Section 2.3(b) after the Closing Date shall be deemed for purposes of calculating the Business Working Capital and the Business Net Cash pursuant to Section 2.9 to have occurred as of 12:01 a.m. (New York time) on the Closing Date.
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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.
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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.
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Excluded Assets. (a) Notwithstanding any provision anything to the contrary 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 shall not include any of the following (the “"Excluded Assets”), including:"):
(i) all assets constituting ownership interests in, or that the Sellers' rights under this Agreement and the Related Documents to which they 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 2.1parties;
(ii) all the minute books, stockholder and transfer records and Tax Returns (except for the Buyer's rights of access set forth herein) of the Sellers and their Retained Real PropertySubsidiaries;
(iii) (A) the Retained Facilities, (A) any owned and leased furniture, equipment, fixtures, machinery, supplies, spare parts, tools, tangible personal property prepaid and other tangible property located at receivable accounts listed in Schedule 2.1(b)(iii), the Retained Facilities or not Related to Sanrise StorageTone sale-type lease and 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)StorageTone equipment securing such lease;
(iv) all legal right, title and beneficial interest owned or leased by any of the Sellers in and to the share capital tangible assets (A) located or equity interest used primarily in, or otherwise primarily related to, any jurisdiction outside of any Person the United States or (B) located on or in real property (other than the Conveyed Subsidiaries Acquired Sites and the other real property listed on Schedule 2.1(a)(i)) to the extent (and their Subsidiaries), x) attached to such real property (other than those equity interests set forth on Section 2.1(qbeing plugged into an electrical outlet(s) of the Seller Disclosure Letterand/or rack mounted) or (y) such assets are office equipment (other than computer, network or storage equipment) or power or HVAC equipment;
(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 the Sellers other than Assumed Assigned Contracts;
(vi) all inventory (including all raw material inventory, work-in-process inventory, spare parts inventory cash and finished products inventory) other than the Inventory and any samples of Productscash equivalents;
(vii) the Retained Names and assets of 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 Propertyemployee benefit plans;
(viii) all Governmental Authorizations, including product registrations, manufacturing registrations and environmental permits, owned, used any stock or licensed by Seller Parent other equity interests or any of its Affiliates and not Related to debt securities or promissory notes or other Securities convertible into or exchanged for the Businessforegoing owned by the Sellers in, or issued by, any company or joint venture other than the SPEs;
(ix) all customer and vendor lists, all advertising, marketing, sales and promotional materials, and business and financial records, books, and documents any claims for Tax refunds and other Records, in each case not Related to the Business, and the Specified Records;Tax assets of any Seller; and
(x) all accounts receivable claims by the Sellers under Sections 544, 545, 547 and other current assets and all cash and cash equivalents, checks, money orders, marketable securities, short-term instruments, bank and other depositary accounts, certificates 548 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) (Bankruptcy Code other than the accounts receivable and other assets, in each case included in the calculation any claims under such sections 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 Bankruptcy Code that may exist 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 ClosingParent, 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 Buyer 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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Sources: Asset Purchase Agreement (Exds Inc)