Retained Assets and Retained Liabilities. (i) The Assets will not include, and Purchaser acknowledges that there shall be excluded from the Assets, all the following of the Company (collectively, the "Retained Assets"): (a) the corporate seal, Charter Documents and minute books, stock books and other corporate or similar records of the Company; (b) all product inventories consisting of fish meal, fish oil and fish solubles; (c) all bank accounts, including cash on deposit and uncleared deposits, all xxxxx cash, temporary cash investments and instruments representing the same, marketable securities and other cash and cash equivalents; (d) all accounts receivable, notes receivable, loans receivable and advances, together with all instruments and all documents of title representing any of the foregoing and all guaranties and security in favor of the Company with respect to any of the foregoing; (e) the aircraft identified on Schedule 2(C)(i)(e); (f) all deposits, prepaid insurance and refunds from cancellation thereof; (g) the rights that accrue or will accrue to the Company under this Agreement; (h) the fishing nets ordered from and not yet delivered by Xxxxxx Nets; (i) the two oil centrifuges ordered but not yet delivered; (j) Company employees pension plans and all sums therein; and (k) the items listed on Schedule 2.09. (ii) Purchaser is not assuming and will not be obligated by this Agreement or any other Transaction Document to pay, perform, discharge or otherwise be responsible for any debts, liabilities or obligations of the Company, whether accrued, absolute, contingent or otherwise, oral or written, disclosed or undisclosed, except the Assumed Liabilities, and all such debts, liabilities and obligations other than the Assumed Liabilities (the "Retained Liabilities") will remain the responsibility and obligation of the Company. Without limiting the generality of the foregoing, it is expressly agreed that neither Purchaser nor any Affiliate thereof will assume or incur any liabilities or obligations based on, arising out of or in connection with: (a) any Litigation, warranty claim, claim based on violation of any Environmental Law or any other claim associated with or relating to the Assets or the Acquired Business arising out of actions or omissions occurring prior to the Effective Date; (b) any obligations under any contract or other agreement with customers, suppliers or any other party; (c) any Taxes accruing prior to the Effective Date; (d) except as provided herein any liabilities with respect to any Plan, Employment Agreement or Employee Policies and Procedures or any claims for wages or other compensation, vacation pay, holiday pay or for severance arising out of alleged or actual employment loss (other than any liabilities for wages and benefits related to WARN notices described in Section 6.04(f) hereof); (e) any Indebtedness of the Company; (f) any liabilities, obligations or expenses of the Company for any broker's or finder's commission relating to this Agreement or any of the transactions contemplated hereby; (g) any liabilities or obligations of the Company arising from or incurred in connection with the negotiation, preparation or execution of this Agreement or the transactions contemplated hereby, including fees and expenses of the Company's counsel; or (h) any liabilities, debts or obligations arising out of actions taken or work done by the Company prior to the Effective Date, including liabilities or obligations arising out of any failure by the Company to perform any contract, commitment or arrangement, including those set forth in any contract with customers, in accordance with its terms prior to the Effective Date.
Appears in 1 contract
Retained Assets and Retained Liabilities. (ia) The Assets will Other than the Assets, the Seller is not includeselling, and Purchaser acknowledges that there the Buyer is not acquiring, any other assets or properties of the Seller, and all such other assets and properties shall be excluded from the Assets (the “Retained Assets”). The Retained Assets include, all without limitation, the following following:
(i) any assets set forth on Section 2.3 of the Company (collectively, the "Retained Assets"):Seller Disclosure Letter;
(aii) the corporate seal, Charter Documents and minute books, stock books and any other corporate or similar records of the CompanySeller;
(biii) all product inventories consisting any cash, cash equivalents, marketable securities, bank deposits, investment accounts, lockboxes, certificates of fish mealdeposit, fish oil and fish solubles;
(c) all bank accounts, including cash on deposit and uncleared deposits, all xxxxx cash, temporary cash investments and instruments representing the same, marketable securities credit cards and other cash and cash equivalents;
(d) all accounts receivablesimilar items, notes receivable, loans receivable and advances, together with all instruments and all documents of title representing any of the foregoing and all guaranties and security in favor of the Company Accounts Receivable or rights with respect to any prepaid expenses and deposits of the foregoing;Seller outstanding as of the Effective Time that are set forth on Section 2.3 of the Seller Disclosure Letter (and, for the sake of clarity, the Buyer shall reimburse the Seller for the amount of any such prepaid expenses and deposits); and
(e) the aircraft identified on Schedule 2(C)(i)(e);
(f) all deposits, prepaid insurance and refunds from cancellation thereof;
(giv) the rights that accrue or will accrue to the Company Seller under this Agreement;
(h) Agreement and the fishing nets ordered from and not yet delivered by Xxxxxx Nets;
(i) the two oil centrifuges ordered but not yet delivered;
(j) Company employees pension plans and all sums therein; and
(k) the items listed on Schedule 2.09other Transaction Documents.
(iib) Purchaser is not assuming Neither the Buyer nor any Acquisition Entity shall assume, and will not none of them shall be obligated by this Agreement or any other Transaction Document to pay, perform, discharge or otherwise be responsible for for, any debts, liabilities or obligations of the CompanySeller or the Acquired Business, whether accrued, absolute, contingent or otherwise, oral or written, disclosed or undisclosed, except the Assumed Liabilities, and all such those debts, liabilities and obligations other than the Assumed Liabilities (the "“Retained Liabilities"”) will remain the responsibility responsibilities and obligation obligations of the CompanySeller. Without limiting the generality of the foregoingforegoing and notwithstanding any other provision of this Agreement, it is expressly agreed that neither Purchaser the Buyer nor any Affiliate thereof will assume or incur any liabilities or obligations based on, arising out of or in connection with:
(ai) any LitigationProceeding, warranty claim, claim based on violation of any Environmental Law Claim or any other claim associated with or relating to the Assets or the Acquired Business arising out of circumstances existing or actions or omissions occurring prior to the Effective DateTime;
(bii) (A) except for Transfer Taxes that are the responsibility of the Buyer pursuant to Section 5.5, any obligations under any contract Taxes of the Seller arising from, based on or other agreement with customers, suppliers related to the Acquisition or any other partytransaction effected pursuant to the Transaction Documents; (B) any Taxes that relate to the Acquired Business or any of the Assets, whether absolute, accrued, contingent or otherwise, for taxable periods (or portions thereof) ending on or before the Closing Date; and (C) any Taxes imposed on or incurred by the Seller or its Affiliates with respect to assets other than the Assets or operations or income other than the operations or income of the Acquired Business;
(ciii) any Taxes accruing prior to the Effective Date;
(d) except as provided herein any liabilities with respect to any Plan, Employee Plan or Employment Agreement or Employee Policies and Procedures or any claims for wages or other compensation, vacation pay, holiday pay or for severance or any other termination costs arising out of alleged or actual employment loss (other than any liabilities for wages and benefits related to WARN notices described in Section 6.04(f) hereof)loss;
(eiv) any Indebtedness or accounts payable of the CompanySeller outstanding as of the Effective Time;
(fv) any liabilities, obligations or expenses of the Company Seller for any broker's ’s or finder's ’s commission relating to this Agreement or any of the transactions contemplated herebythis Agreement contemplates;
(gvi) any liabilities or obligations of the Company Seller arising from or incurred in connection with the negotiation, preparation or execution of this Agreement or the transactions contemplated herebythis Agreement contemplates, including fees and expenses of the Company's counsel; or
(hvii) any liabilities, debts or obligations arising out of actions taken or work done by the Company Seller prior to the Effective DateTime, including liabilities or obligations arising out of any failure by the Company to perform under any contract, commitment or arrangement, including those set forth in any contract with customers, in accordance with its terms Customer Contract or Material Agreement resulting from events or occurrences or relating to periods ending on or prior to the Effective DateTime.
Appears in 1 contract
Retained Assets and Retained Liabilities. (i) The Assets will not include, and Purchaser acknowledges that there shall be excluded from the Assets, all the following of the Company and Vessel Sub (collectively, the "Retained Assets"):
(a) the corporate seal, Charter Documents and minute books, stock books and other corporate or similar records of the CompanyCompany and Vessel Sub;
(b) all product inventories consisting of fish meal, fish oil and fish solubles;
(c) all bank accounts, including cash on deposit and uncleared deposits, all xxxxx cashpexxx xash, temporary cash investments and instruments representing the same, marketable securities and other cash and cash equivalents;
(d) all accounts receivable, notes receivable, loans receivable and advances, together with all instruments and all documents of title representing any of the foregoing and all guaranties and security in favor of the Company or Vessel Sub with respect to any of the foregoing;
(e) all rights to use the aircraft identified on Schedule 2(C)(i)(e)name "Ampro";
(f) all depositsassets of the Company not located at or near Reedville, prepaid insurance Virginia that are not used in or held for use in the Acquired Business and refunds from cancellation thereofare not classified on the Company's books as part of its Ampro Division;
(g) all deposits and prepaid insurance of the character included in "Prepaids" on the respective Current Balance Sheets of the Company and Vessel Sub;
(h) all land, buildings and wharves owned by Vessel Sub in the Acquired Business.
(i) the rights that accrue or will accrue to the Company and Vessel Sub under this Agreement.
(j) pledges or deposits by Company and Vessel Sub under workers' compensation laws, including, without limitation, unemployment insurance laws, social security laws, or similar legislation, or good faith deposits in connection with debts, tenders, contracts (other than for the payment of indebtedness of Company or Vessel Sub) or leases to which Company or Vessel Sub are a party, or deposits to secure public or statutory obligations of Company or Vessel Sub or deposits of cash or United States government bonds to secure surety, appeal, performance or other similar bonds to which Company or Vessel Sub are a party, or deposits as security for contested taxes or import duties or for the payment for rent;
(hk) any and all rights of Company or Vessel Sub under any lease, executory contract, or other agreement of Company or Vessel Sub relating to the fishing nets ordered from and not yet delivered by Xxxxxx Nets;
(i) Acquired Business or the two oil centrifuges ordered but not yet deliveredAssets;
(j) Company employees pension plans any and all sums thereinrights, causes of action, claims and demands of Company or Vessel Sub against third parties arising out of Seller's or its Affiliates' conduct of the Acquired Business prior to the Closing other than rights or claims of the Company or Vessel Sub arising out of the breach of any express or implied warranty by the manufacturers or sellers of any of the Assets;
(m) all licenses, permits and authorizations from governmental authorities to conduct the Acquired Business that may not, as a matter of law, be transferred to Purchaser (and for which Purchaser must make independent application);
(n) all financial and accounting data and records relating to or used or held for use in the Acquired Business, including all Returns, schedules, work papers, books, records, notes, and related information;
(o) all computer and electronic data processing programs and software;
(p) all insurance policies, insurance proceeds and insurance claims relating to all or any part of the Acquired Business and, to the extent transferable, the benefit of and the right to enforce the covenants and warranties, if any, that the Company or Vessel Sub is entitled to enforce against the insurer under such policies with respect to the Acquired Business;
(q) fuel in storage and held for use in the Business;
(r) the 31 ft. Bexxxxx xowerboat and related equipment owned by the Company; and
(ks) all equipment, tools, parts and materials used for the items listed on Schedule 2.09construction, maintenance and repair of vessels.
(ii) Purchaser is not assuming and will not be obligated by this Agreement or any other Transaction Document to pay, perform, discharge or otherwise be responsible for any debts, liabilities or obligations of the CompanyCompany or of Vessel Sub, whether accrued, absolute, contingent or otherwise, oral or written, disclosed or undisclosed, except the Assumed Liabilities, undisclosed and all such debts, liabilities and obligations other than the Assumed Liabilities (the "Retained Liabilities") will remain the responsibility and obligation of the CompanyCompany and Vessel Sub, as applicable. Without limiting the generality of the foregoing, it is expressly agreed that neither Purchaser nor any Affiliate thereof will assume or incur any liabilities or obligations based on, arising out of or in connection with:
(a) any Litigation, warranty claim, claim based on violation of any Environmental Law or any other claim associated with or relating to the Assets or the Acquired Business arising out of actions or omissions occurring prior to the Effective Date;
(b) any obligations under any contract or other agreement with customers, suppliers or any other party;
(c) any Taxes accruing prior to the Effective Date;
(d) except as provided herein any liabilities with respect to any Plan, Employment Agreement or Employee Policies and Procedures or any claims for wages or other compensation, vacation pay, holiday pay or for severance arising out of alleged or actual employment loss (other than any liabilities for wages and benefits related to WARN notices described in Section 6.04(f6:04(f) hereof);
(e) any Indebtedness of the CompanyCompany or of Vessel Sub;
(f) any liabilities, obligations or expenses of the Company or of Vessel Sub for any broker's or finder's commission relating to this Agreement or any of the transactions contemplated hereby;
(g) any liabilities or obligations of the Company or of Vessel Sub arising from or incurred in connection with the negotiation, preparation or execution of this Agreement or the transactions contemplated hereby, including fees and expenses of the Company's counsel; or
(h) any liabilities, debts or obligations arising out of actions taken or work done by the Company or by Vessel Sub prior to the Effective Date, including liabilities or obligations arising out of any failure by the Company to perform any contract, commitment or arrangement, including those set forth in any contract with customers, in accordance with its terms prior to the Effective Date.
Appears in 1 contract
Retained Assets and Retained Liabilities. (i) a. The Assets will specifically do not include, and Purchaser acknowledges that there shall be excluded from the AssetsBuyer will not acquire, all any of the following assets of the Company Seller or any of its Affiliates, regardless of whether such assets arise out of, relate to or are attributable to the Acquired Business (collectively, the "“Retained Assets"”):
(ai) (A) the corporate seal, Charter Documents and Organizational Documents, minute books, books or stock books of the Seller or any of its Affiliates and the original financial and accounting books and records and Tax Returns of the Seller or any of its Affiliates (including supporting work papers and other corporate or similar records documents relating to the financial, accounting and Tax policies of the Company;
(b) all product inventories consisting of fish mealSeller, fish oil and fish solubles;
(c) all bank accounts, including cash on deposit and uncleared deposits, all xxxxx cash, temporary cash investments and instruments representing the same, marketable securities such as transfer pricing studies and other cash proprietary information related to the preparation and cash equivalents;
filing of Tax Returns and calculations of Tax, but excluding Tax Returns related to Property Taxes), and (dB) all accounts receivablecopies of any Records to the extent relating to the Retained Businesses (it being understood, notes receivablefor the avoidance of doubt, loans receivable and advancesthat the portion of any Records to the extent relating exclusively to the Acquired Business, together with all instruments and all documents of title representing any of the foregoing and all guaranties and security in favor of Assumed Liabilities or the Company with respect Assets shall be an Asset pursuant to any of Section 1.01(e)) (collectively, the foregoing;
(e) the aircraft identified on Schedule 2(C)(i)(e“Retained Records”);
(fii) all depositsreal property, prepaid insurance and refunds from cancellation thereofwhether owned or leased, other than the Real Property;
(giii) all cash, cash equivalents, marketable securities, bank deposits, investment accounts, lockboxes, certificates of deposit, bank accounts, credit cards and other similar items, other than such amounts transferred to the Buyer pursuant to Section 1.01(q);
(iv) all receivables owed to the Seller by an Affiliate of the Seller;
(v) the rights that accrue or will accrue to the Company Seller or any of its Affiliates under this AgreementAgreement and any other Transaction Document in which the Seller or any of its Affiliates is a party;
(hvi) the fishing nets ordered from all rights in, to and not yet delivered by Xxxxxx Netsunder all Permits and other rights under any Law, other than those transferred pursuant to Section 1.01(f);
(ivii) the two oil centrifuges ordered but tangible personal property of every kind and description not yet deliveredtransferred to the Buyer pursuant to Section 1.01(c) or Section 1.01(k);
(jviii) Company employees pension plans and all sums thereinIT Assets other than the Business IT Assets; and#93878383v22
(kix) the items listed on Schedule 2.09.assets, properties and rights of and with respect to any employee benefit plan or arrangement, including any Employee Plan or Business Plan, heretofore sponsored or maintained by the Seller or any of its predecessors or its Affiliates;
(iix) Purchaser all rights, title and interest in any Seller Restricted Marks;
(xi) all Intellectual Property other than the Business Intellectual Property;
(xii) all Tax attributes of the Seller or any of its Affiliates, including any current or deferred tax losses and allowable deductions (excluding any Tax refunds, rebates and credits, which, for the avoidance of doubt, are covered exclusively in Section 1.03(a)(xiii));
(xiii) all Tax refunds, rebates and credits, and tax incentives granted by a Government Authority to the Seller or any of its Affiliates, in each case with respect to Seller Taxes;
(xiv) any rights under the insurance policies of the Seller or any of its Affiliates, including for any claims, insurance proceeds or rights of recovery against Third Parties arising out of or attributable to any period prior to the Closing, other than insurance proceeds transferred to the Buyer pursuant to Section 1.01(q) or Section 6.06;
(xv) any investment in the Capital Stock of (or any intercompany advances to) any Affiliate of the Seller;
(xvi) all personnel records and other records relating to the Acquired Business that the Seller or any Affiliate of the Seller is not assuming required by Law to retain in its possession;
(xvii) all loans to employees of the Seller or any of its Affiliates other than normal travel or expense allowances;
(xviii) all attorney-client privilege and will not be obligated attorney work-product protection of the Seller or associated with the Acquired Business, in each case to the extent arising with respect to legal counsel representation of the Seller or its Affiliates or the Acquired Business in connection with the transactions contemplated by this Agreement or any other Transaction Document to pay, perform, discharge or otherwise be responsible for any debts, liabilities or obligations of the CompanyTransaction Documents (“Transaction Privileged Communications”);
(xix) all inventories, whether accruedincluding finished goods, absolutefinished components, contingent work-in-process, raw materials, purchased parts, shipping containers, stores, spare parts and supplies exclusively attributable to, or otherwiseused or held for use exclusively in, oral the Acquired Business and located in Canada and Saudi Arabia (the “Excluded Inventory”);
(xx) all documents maintained by the Seller or writtenany of its Affiliates in connection with the transactions contemplated by this Agreement or any of the Transaction Documents; #93878383v22
(xxi) all Related Party Contracts other than any non-compete, disclosed non-solicitation and invention assignment agreements primarily related to the Acquired Business (the “Continuing Affiliate Contracts”);
(xxii) all Contracts (A) that are rebate or undiscloseddistributor Contracts that relate to both the Retained Business and the Acquired Business or (B) set forth on Section 1.03(a)(xxii) of the Seller Disclosure Letter; and
(xxiii) any other asset of the Seller or any of its Affiliates that is not an Asset.
b. Except in each case as otherwise expressly provided in this Agreement, except the Buyer is assuming only the Assumed Liabilities, Liabilities and is not assuming any other Liabilities of the Seller or any of its Affiliates (or any predecessor of the Seller or any of its Affiliates or any prior owner of all or part of its businesses and assets) (all such debts, liabilities and obligations other than not being assumed being herein referred to as the Assumed Liabilities (the "“Retained Liabilities") will remain the responsibility and obligation of the Company”). Without limiting the generality of the foregoing, it is expressly agreed that neither Purchaser nor any Affiliate thereof will assume or incur any “Retained Liabilities” include the following liabilities or obligations based on, and obligations:
(i) all Liabilities for Damages arising out of or in connection with:
(a) any Litigation, warranty claim, claim based on violation of any Environmental Law or any other claim associated with or relating attributable to the Assets or Proceedings related to the Acquired Business arising out of actions that are pending, or omissions occurring prior to the Effective DateKnowledge of the Seller, threatened in writing, as of the Closing;
(bii) any obligations under Liabilities of the Seller or any contract of its Affiliates, whether arising before, on or after the Closing, in respect of any Retained Assets or other agreement with customers, suppliers assets of the Seller or any other partyits Affiliates that are not Assets;
(ciii) any Taxes accruing prior to the Effective Date;
(d) except as provided herein any liabilities with respect to any Plan, Employment Agreement or Employee Policies and Procedures or any claims for wages or other compensation, vacation pay, holiday pay or for severance arising out of alleged or actual employment loss (other than any liabilities for wages and benefits related to WARN notices described in Section 6.04(f) hereof);
(e) any Indebtedness of the Company;
(f) any liabilities, obligations Liabilities or expenses of the Company Seller for any broker's ’s or finder's ’s commission relating to this Agreement or any of the transactions contemplated herebythis Agreement contemplates;
(giv) all Liabilities for payables and other amounts owed by the Acquired Business or Seller to the Seller or any Affiliate of the Seller;
(v) any Liability arising prior to the Closing to indemnify, reimburse or advance amounts to any Representative of the Seller;
(vi) any Liability relating to any equityholder of Seller or any of its Affiliates or former equity holder of Seller or any of its Affiliates, including in respect of (i) any actual or alleged breach of fiduciary duty, (ii) any approvals (or necessity thereof) by any board of directors (or equivalent) or equityholders of the Seller or any of its Affiliates or (iii) the exercise of dissenters’, appraisal or similar rights under applicable Law;
(vii) any Liabilities of the Seller in respect of Indebtedness;
(viii) all Liabilities with respect to any current or former Business Service Providers (or their representatives, dependents, spouses or beneficiaries) or with respect to any employee benefit plan or arrangement, including any Employee Plan or Business Plan, heretofore sponsored or maintained by the Seller or any of its predecessors or its Affiliates; #93878383v22
(ix) any liabilities or obligations of the Company Seller arising from or incurred in connection with the process of selling the Assets or the Acquired Business, whether incurred in connection with the negotiation, preparation or execution of this Agreement Agreement, the Transaction Documents or the transactions contemplated herebyotherwise, including the costs, fees and expenses of the Company's counsel; orany outside professionals (including any broker, finder, agent, investment banker, legal, accounting or tax adviser);
(hx) any liabilities, debts or obligations arising out of actions taken or work done Liabilities for Seller Taxes;
(xi) any Liabilities relating to any non-compliance by the Company Seller or any of its Affiliates or the Buyer with any applicable bulk sale, bulk transfer or similar Laws; and
(xii) any Environmental Liabilities to the extent relating to (A) any property or facility to which any Hazardous Substance has been transported for disposal, recycling or treatment by or on behalf of, in each case the Acquired Business or the Seller (or any of their respective predecessors) in connection with the Acquired Business prior to the Effective DateClosing Date or (B) any real property or facility formerly owned, including liabilities leased or obligations arising out of any failure operated by the Company to perform Acquired Business or the Seller (or any contract, commitment or arrangement, including those set forth of their respective predecessors) in any contract connection with customers, in accordance with its terms prior to the Effective DateAcquired Business.
Appears in 1 contract
Samples: Asset Purchase Agreement (Forum Energy Technologies, Inc.)
