Retained Assets. Notwithstanding anything to the contrary in Sections 2.1 through 2.9 or elsewhere herein, the Assets do not include the following (the “Retained Assets”):
(a) All Claims of Seller (i) arising from acts, omissions or events related to, or damage to or destruction of, the Assets, occurring prior to the Effective Time, (ii) arising under or with respect to any of the Contracts that are attributable to periods of time prior to the Effective Time (including Claims for adjustments or refunds), or (iii) with respect to any of the Retained Assets, copies of all Records necessary to process such Claims after the Closing;
(b) All rights and interest of Seller (i) under any policy or agreement of insurance or indemnity, (ii) under any bond or (iii) to any insurance or condemnation proceeds or awards arising, in each case, from acts, omissions or events related to, or damage to or destruction of, the Assets occurring prior to the Effective Time;
(c) All Claims of Seller for refunds or loss carry forwards with respect to (i) production, severance, excise or any other similar Taxes or real or personal property or ad valorem taxes attributable to the Assets for any period prior to the Effective Time, (ii) any other Taxes including income or franchise Taxes or (iii) any Taxes attributable to the Retained Assets;
(d) All proceeds, income, revenues, claims, refunds or other benefits (including any benefit attributable to any current or future laws or regulations in respect of “royalty relief” or other similar measures) not otherwise enumerated above, prior to the Effective Time as well as any security or other deposits made, attributable to (i) the Assets for any period prior to the Effective Time or (ii) any Retained Assets;
(e) All documents and instruments of Seller relating to the Assets that may be protected by an attorney client privilege, provided that such restrictions have been disclosed to Buyer prior to Closing (other than title opinions, related documents and legal files and records included in, or are part of, the above referenced files and records);
(f) All royalty overpayment amounts and/or future deductions as royalty offsets associated with the Assets as of the Effective Time;
(g) Receivables and security interests as set forth under Section 2.7 prior to the Effective Time;
(h) Audit rights arising under any of the Contracts or otherwise with respect to any period prior to the Effective Time to the extent relating to any Retained Assets;
(i) All surface rig...
Retained Assets. Notwithstanding anything to the contrary contained in Section 2.1 or elsewhere in this Agreement or any other Transaction Document, the following assets of Seller (collectively, the “Retained Assets”) are not part of the Acquired Assets and shall remain the property of Seller after the Closing:
(a) All cash, cash equivalents, marketable securities and short-term investments of Seller;
(b) The Governing documents and all minute books, stock records, corporate seals of Seller and other records having to do with the corporate organization of Seller;
(c) Any shares of capital stock of Seller;
(d) All personnel records that Seller is required by Applicable Law to retain in its possession (provided, that Seller shall, and the Class A Owners shall cause Seller to, deliver copies of such records to Federated Hermes prior to the Closing) with respect to Transferred Employees;
(e) Rights in connection with and assets of any Seller Plan;
(f) All employment agreements or employment offer letters or outstanding, unaccepted offers of employment with Seller;
(g) All Accounts Receivable relating to periods on or prior to the Closing Date; 312419107.19
(h) All claims for refund of Taxes and other governmental charges relating to periods prior to or on the Closing Date;
(i) All insurance proceeds relating to claims made by Seller on or prior to the Closing Date and claims made by Seller after the Closing Date relating solely to actions that occurred prior to the Closing Date;
(j) All credits, prepaid expenses and other prepaid items (excluding any transferred to Federated Hermes as provided in Section 2.6(d)), deferred charges, advance payments, and security deposits as of the Closing Date;
(k) All amounts received in respect of claims for refunds, set-off, indemnification or warranty made by Seller on or prior to the Closing Date;
(l) All amounts received in respect of demands, causes of action, Litigation and other claims of Seller against third parties relating to the Acquired Assets, the Business or the Products finally determined prior to, or arising from, or relating to, actions, omissions, events or periods of time occurring on or prior to the Closing Date;
(m) All Governmental Approvals, and any pending applications therefor or renewals thereof, other than those identified on Schedule 2.1(m) that are transferred to Federated Hermes or its Affiliates;
(n) This Agreement and all other Transaction Documents, including Seller’s rights hereunder and thereunder;
(o) All s...
Retained Assets. The Parties expressly agree that excluded from the Assets sold or assigned to Buyer hereunder are (i) all accounts receivable arising out of or generated by the Business prior to the Closing, whether or not reduced to a xxxx or invoice prior to the Closing (the “Seller Receivables”), a listing of which is attached hereto as Schedule 1.3(a); provided, further, the Parties acknowledge and agree that the Seller Receivables include the accounts receivable that have been pledged as security to Fifth Third Bank pursuant to that certain promissory note, dated February 5, 2005, by and among Fifth Third Bank and Seller (the “Pledged Receivables”); (ii) all personnel records and other records that the Seller is required by law to retain in its possession; (iii) all governmental permits and other governmental authorizations that the Seller is required by law to retain in its possession (iv) all cash on hand, cash equivalents, investments and bank accounts of the Seller at the Closing Date other than as set forth in Section 1.1(1) above, (v) all claims for the refund of Taxes and other governmental charges of whatever nature, (vi) that certain real property lease by and between Seller and MSAC Limited (relating to 00000 Xxxxxxxx Xxxxxx, Country Club Hills, Illinois 60478, having a commencement date of February 18, 2006) (the “Country Club Hills Property”), (vii) subject to Section 1.10 hereof, those certain assets located at the Country Club Hills Property as specified on Schedule 1.3(b) (the “Country Club Hills Inventory”), (viii) all rights, title and interest in and to the Homsys software (including any licenses thereto) utilized by Seller for the billing and collection of accounts receivable, (ix) those books, records and documents necessary for Seller and/or Fifth Third Bank to collect the Seller Receivables (including the Pledged Receivables), and (x) without in any manner limiting the foregoing, those assets listed on Schedule 1.3(c) hereto (collectively, the “Retained Assets”).
Retained Assets. Seller shall retain and the Purchased Assets shall not include the following assets:
(A) the consideration to be delivered to Seller pursuant to, and all other rights under, this Agreement and the Other Agreements to which Seller is a party;
(B) all proceeds from Seller's insurance policies, other than those described in Section 1.1(k);
(C) Seller's company seals, certificates of incorporation and formation, limited liability company operating agreement, minute books, stock books, Tax Returns, equity records, books of account or other records relating to the organization of Seller and its predecessors as entities, all qualifications to do business as a foreign company and all arrangements with registered agents relating to foreign qualifications;
(D) all claims, choses in action, causes of action and judgments in respect of any litigation matter identified on Schedule 4.12 and with respect to any other Liability other than the Assumed Liabilities;
(E) those Contracts identified on Schedule 1.2;
(F) all books and records related to the Retained Assets and the Seller Liabilities;
(G) advance payments, rental deposits, prepaid items, claims, deferred charges, rights of offset and credits and claims for refund other than those described in Section 1.1(e);
(H) all rights of Seller to use any service marks, service names, trademarks, trade names, domain names, logos or brand names of, or sublicensed to Seller by, any Affiliate of Seller (including any derivatives thereof) or blueprints, drawings, designs, manuals, documentation or other intellectual property rights under any Contract identified on Schedule 1.2 or attributable to or that are used or usable exclusively in Seller's manufacturing of products for Parent or any other Affiliate of Seller (the "EXCLUDED INTELLECTUAL PROPERTY");
(I) all personnel records related to non-Transferred Employees or that Seller is required by law to retain in its possession;
(J) the Retained Real Property;
(K) all cash, cash in banks, cash equivalents, investments, including stock, debt, instruments, options and other instruments and securities, and bank and mutual fund accounts;
(L) all accounts or notes receivable owed to Seller by Parent or any Affiliate of Parent included on Schedule 1.2(l);
(M) refunds or claims for refunds of Taxes paid by Seller, including Seller's federal income tax refund for the four-year period ending on December 31, 1994 of approximately $1.5 million;
(N) all shares of capital stock or other owners...
Retained Assets. Supernus expressly understands and agrees that the following assets and properties of SLI (the “Retained Assets”) shall be retained by SLI and its Affiliates and not included in the Contributed Assets:
(i) all cash and cash equivalents, including any marketable securities, on hand and in banks and any security deposits in respect of any Retained Asset or Contributed Asset;
(ii) insurance policies relating to the Business or the Contributed Assets and all claims, credits, causes of action or rights thereunder;
(iii) all Intellectual Property Rights other than the Business Intellectual Property Rights (the “Retained Intellectual Property Rights”), including for the avoidance of doubt but without limiting the foregoing the patents and patent applications, together with all foreign equivalents thereof, and other items set forth on Schedule 2.02 and the SLI Compound Know-How;
(iv) the other property and assets of the Retained Business set forth on Schedule 2.02;
(v) all books, records, files and papers, whether in hard copy or computer format (i) used or held for use in the Retained Business or relating to any of the other Retained Assets, including all data, regulatory filings, quality assurance records, processes and manufacturing materials relating to the Compounds, (ii) related to the matters set forth on Schedules 3.07 or 6.01, including all documents and attorney work papers related thereto or (iii) prepared in connection with this Agreement or the transactions contemplated hereby;
(vi) all minute books and corporate records of SLI and its Affiliates;
(vii) the Pre-Closing Accrued Income and the Pre-Closing Receivables;
(viii) all Tax refunds or credits of the Business relating to the Pre-Closing Tax Period, whether received prior to or after the Effective Time; provided that SLI or its Affiliates paid the Tax in respect of such refund or credit;
(ix) all rights of SLI arising under this Agreement or any other Transaction Document to which it is a party or the transactions contemplated hereby or thereby;
(x) the Lease Agreement dated November 1, 2002 between ARE Acquisitions, LLC and SLI for the premises located at 0000 Xxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx; and
(xi) all prepaid expenses, including ad valorem taxes, leases and rentals (collectively, “Prepaid Expenses”).
Retained Assets. Anything in Section 1.1 to the contrary notwithstanding, the following assets (collectively, the "Retained Assets") shall be retained by Transferor, and Transferee shall in no way be construed to have acquired (or to be obligated to acquire) any interest whatsoever in any of the following.
Retained Assets. Notwithstanding anything to the contrary set forth in this Agreement, the following assets of the Seller are not included in the sale of Purchased Assets contemplated hereby: (i) the cash and cash equivalents, accounts receivable, chattel papers (including electronic chattel paper), instruments (including promissory notes), all of Debtor’s rights to receive payments from any source and for any reason (whether characterized as accounts, accounts receivable, chattel paper, choses-in-action, contract rights, general intangibles, instruments, securities, notes or otherwise) including, without limitation, Debtor’s right to receive payments for services rendered, whether or not earned by performance or recognized or billed by Debtor, prepaid security deposits on Real Property Leases (as defined in Section 2.10 of the Purchase Agreement) and all other prepaid charges, deposits or prepaid expenses related to the Purchased Assets, (ii) the Purchase Price (as hereinafter defined) and the other rights of the Seller under or relating to this Agreement, (iii) the corporate minute books, stock records, qualification to conduct business as a foreign corporation, and other documents relating to the formation, maintenance or existence as a corporation of the Seller, except that Seller agrees that it will provide copies of any such document from the corporate minute books as reasonably requested by the Buyer which the Buyer believes are necessary for the use and operation of the Purchased Assets after the Effective Date, (iv) motor vehicles, (v) all properties, rights, assets and services related to the conduct of Seller’s business at all of its other offices nationwide and all information, documents and files relative thereto; and (vi) all properties, rights, assets and services related to the conduct of Seller’s business at any of its other offices and locations throughout the United States.
Retained Assets. Notwithstanding any other provision of this Agreement, the transactions contemplated by this Agreement exclude each and every right, title, interest or other asset in any way relating to the matters described below to the extent in any way owned by, or that in any way accrued to the benefit of, any Acquired Company (other than those actually owned by the Javelina Partnerships) (including their respective successors) prior to the Closing Date (all of which are referred to as the “Retained Assets”):
(i) Retained Electronic Data;
(ii) the El Paso Marks;
(iii) any refunds from taxing authorities attributable to any period before the Effective Time;
(iv) all books, records, work papers, Tax Returns, etc., relating to Taxes;
(v) all insurance policies or other agreements of insurance that relate to the assets or businesses of any of such Acquired Company, except with respect to any claims made prior to the Effective Time; and
(vi) any files, records, contracts or other documents of the Seller or any of its Affiliates relating to any analysis of the Buyer’s bid or offer and any analysis of any other bids or offers with respect to any such Acquired Company or all or any part of such Acquired Company Assets, including those in competition with the Buyer’s bid or offer. Prior to the Closing Date, the Seller shall cause any such Acquired Company to transfer, for or without consideration, the Retained Assets to the Seller, any of its Affiliates or any designee. Notwithstanding anything to the contrary provided elsewhere in this Agreement, the term Acquired Company Assets does not include (and similar terms or phrases contained in the Transaction Agreements shall not include) the Retained Assets, and, accordingly, the Seller’s representations, warranties and covenants shall not apply to the Retained Assets. For the avoidance of doubt, but without limiting the generality of the foregoing, neither the Seller nor any of its Affiliates is assuming or otherwise becoming responsible for any Obligation pursuant to this Section 2(f); provided, however, that the Seller is providing the indemnification specified in Section 8(b)(ix)(B) relating to the Retained Assets.
Retained Assets. Section 2.3
Retained Assets. Except for the Purchased Assets, Buyer is not purchasing, and Seller is not selling, contracts other than the Assumed Contracts, Seller’s accounting records and corporate minute books, stock books, corporate seal, or any of the motor vehicles or other items expressly set forth on Schedule 2.3 (collectively, the “Retained Assets”). Accounting records of Seller shall remain the exclusive property of Seller in accordance with this Section, and shall mean any and all books of original entry, including any register or computer tapes, all journals or ledgers, all canceled checks, payroll records, bank or other account statements, including account statements or reports to or from any vendors, suppliers, film companies, or otherwise, including any correspondence relating to same or to any other items designated as an accounting record hereunder, and including all financial statements, records, tax returns, and all work papers or supporting information relating thereto, including all information gathered or compiled by Seller or Seller’s agents or accountants therefor, or summaries of same, including all disks, print-outs, or other digital or analog, written or electronic recording thereof. The Purchased Assets shall not include any permits that are non-transferable. Seller knows of no reason why any permit issued to Seller for use in its business would not be issued to Buyer for use by it after the Closing, assuming only Buyer is qualified to receive same.
