Retained Assets and Retained Liabilities. a. The Assets specifically do not include, and the Buyer will not acquire, any of the following assets of the 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”): (i) (A) the corporate seal, Organizational Documents, minute 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 documents relating to the financial, accounting and Tax policies of the Seller, such as transfer pricing studies and other proprietary information related to the preparation and filing of Tax Returns and calculations of Tax, but excluding Tax Returns related to Property Taxes), and (B) copies of any Records to the extent relating to the Retained Businesses (it being understood, for the avoidance of doubt, that the portion of any Records to the extent relating exclusively to the Acquired Business, the Assumed Liabilities or the Assets shall be an Asset pursuant to Section 1.01(e)) (collectively, the “Retained Records”); (ii) all real property, whether owned or leased, other than the Real Property; (iii) 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 Seller or any of its Affiliates under this Agreement and any other Transaction Document in which the Seller or any of its Affiliates is a party; (vi) all rights in, to and under all Permits and other rights under any Law, other than those transferred pursuant to Section 1.01(f); (vii) the tangible personal property of every kind and description not transferred to the Buyer pursuant to Section 1.01(c) or Section 1.01(k); (viii) all IT Assets other than the Business IT Assets; #93878383v22 (ix) the 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; (x) 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 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 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 of the Transaction Documents (“Transaction Privileged Communications”); (xix) all inventories, including finished goods, finished components, work-in-process, raw materials, purchased parts, shipping containers, stores, spare parts and supplies exclusively attributable to, or used or held for use exclusively in, the Acquired Business and located in Canada and Saudi Arabia (the “Excluded Inventory”); (xx) all documents maintained by the Seller or any 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, non-solicitation and invention assignment agreements primarily related to the Acquired Business (the “Continuing Affiliate Contracts”); (xxii) all Contracts (A) that are rebate or distributor 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, the Buyer is assuming only the Assumed 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 liabilities and obligations not being assumed being herein referred to as the “Retained Liabilities”). Without limiting the foregoing, “Retained Liabilities” include the following liabilities and obligations: (i) all Liabilities for Damages arising out of or attributable to Proceedings related to the Acquired Business that are pending, or to the Knowledge of the Seller, threatened in writing, as of the Closing; (ii) any Liabilities of the Seller or any of its Affiliates, whether arising before, on or after the Closing, in respect of any Retained Assets or other assets of the Seller or its Affiliates that are not Assets; (iii) any Liabilities or expenses of the Seller for any broker’s or finder’s commission relating to this Agreement or any of the transactions this Agreement contemplates; (iv) 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 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, the Transaction Documents or otherwise, including the costs, fees and expenses of any outside professionals (including any broker, finder, agent, investment banker, legal, accounting or tax adviser); (x) any Liabilities for Seller Taxes; (xi) any Liabilities relating to any non-compliance by the 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 Closing Date or (B) any real property or facility formerly owned, leased or operated by the Acquired Business or the Seller (or any of their respective predecessors) in connection with the Acquired Business.
Appears in 1 contract
Samples: Asset Purchase Agreement (Forum Energy Technologies, Inc.)
Retained Assets and Retained Liabilities. a. (i) The Assets specifically do will not include, and Purchaser acknowledges that there shall be excluded from the Buyer will not acquireAssets, any all the following of the following assets of the Seller or any of its Affiliates, regardless of whether such assets arise out of, relate to or are attributable to the Acquired Business Company (collectively, the “"Retained Assets”"):
(i) (Aa) the corporate seal, Organizational DocumentsCharter Documents and minute books, minute books or stock books and other corporate or similar records of the Seller or 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 its Affiliates the foregoing and the original financial all guaranties and accounting books and records and Tax Returns security in favor of the Seller or Company with respect to any of its Affiliates the foregoing;
(including supporting work papers and other documents relating to e) the financial, accounting and Tax policies of the Seller, such as transfer pricing studies and other proprietary information related to the preparation and filing of Tax Returns and calculations of Tax, but excluding Tax Returns related to Property Taxes), and (B) copies of any Records to the extent relating to the Retained Businesses (it being understood, for the avoidance of doubt, that the portion of any Records to the extent relating exclusively to the Acquired Business, the Assumed Liabilities or the Assets shall be an Asset pursuant to Section 1.01(e)) (collectively, the “Retained Records”aircraft identified on Schedule 2(C)(i)(e);
(iif) all real propertydeposits, whether owned or leased, other than the Real Propertyprepaid insurance and refunds from cancellation thereof;
(iii) 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;
(vg) the rights that accrue or will accrue to the Seller or any of its Affiliates Company under this Agreement and any other Transaction Document in which the Seller or any of its Affiliates is a partyAgreement;
(vih) all rights in, to the fishing nets ordered from and under all Permits and other rights under any Law, other than those transferred pursuant to Section 1.01(f)not yet delivered by Xxxxxx Nets;
(viii) the tangible personal property of every kind and description two oil centrifuges ordered but not transferred to the Buyer pursuant to Section 1.01(c) or Section 1.01(k)yet delivered;
(viiij) Company employees pension plans and all IT Assets other than the Business IT Assetssums therein; #93878383v22and
(ixk) the 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;items listed on Schedule 2.09.
(xii) all rights, title Purchaser is not assuming 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 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 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 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 Transaction Documents 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 (“Transaction Privileged Communications”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);
(xixe) all inventories, including finished goods, finished components, work-in-process, raw materials, purchased parts, shipping containers, stores, spare parts and supplies exclusively attributable to, or used or held for use exclusively in, any Indebtedness of the Acquired Business and located in Canada and Saudi Arabia (the “Excluded Inventory”)Company;
(xx) all documents maintained by the Seller or any 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, non-solicitation and invention assignment agreements primarily related to the Acquired Business (the “Continuing Affiliate Contracts”);
(xxii) all Contracts (A) that are rebate or distributor 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
(xxiiif) 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 Agreementliabilities, the Buyer is assuming only the Assumed 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 liabilities and obligations not being assumed being herein referred to as the “Retained Liabilities”). Without limiting the foregoing, “Retained Liabilities” include the following liabilities and obligations:
(i) all Liabilities for Damages arising out of or attributable to Proceedings related to the Acquired Business that are pending, or to the Knowledge of the Seller, threatened in writing, as of the Closing;
(ii) any Liabilities of the Seller or any of its Affiliates, whether arising before, on or after the Closing, in respect of any Retained Assets or other assets of the Seller or its Affiliates that are not Assets;
(iii) any Liabilities or expenses of the Seller Company for any broker’s 's or finder’s 's commission relating to this Agreement or any of the transactions this Agreement contemplatescontemplated hereby;
(iv) 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
(ixg) any liabilities or obligations of the Seller Company 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 or the Transaction Documents or otherwisetransactions contemplated hereby, including the costs, fees and expenses of any outside professionals (including any broker, finder, agent, investment banker, legal, accounting or tax adviser);the Company's counsel; or
(xh) any Liabilities for Seller Taxes;
(xi) any Liabilities relating to any non-compliance liabilities, debts or obligations arising out of actions taken or work done by the 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 Company prior to the Closing Date Effective Date, including liabilities or (B) obligations arising out of any real property or facility formerly owned, leased or operated failure by the Acquired Business 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 Seller (or any of their respective predecessors) in connection with the Acquired BusinessEffective Date.
Appears in 1 contract
Retained Assets and Retained Liabilities. a. (a) The Assets specifically do not include, and Company is causing the Buyer will not acquire, any relevant Subsidiaries of the following assets of the Seller or any of its Affiliates, regardless of whether such assets arise out of, relate Company to or are attributable to the Acquired Business (collectively, the “Retained Assets”):
(i) (A) the corporate seal, Organizational Documents, minute 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 documents relating to the financial, accounting and Tax policies of the Seller, such as transfer pricing studies and other proprietary information related to the preparation and filing of Tax Returns and calculations of Tax, but excluding Tax Returns related to Property Taxes), and (B) copies of any Records to the extent relating to the Retained Businesses (it being understood, for the avoidance of doubt, that the portion of any Records to the extent relating exclusively to the Acquired Business, the Assumed Liabilities or the Assets shall be an Asset pursuant to Section 1.01(e)) (collectively, the “Retained Records”);
(ii) all real property, whether owned or leased, other than the Real Property;
(iii) 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 Seller or any of its Affiliates under this Agreement and any other Transaction Document in which the Seller or any of its Affiliates is a party;
(vi) all rights in, to and under all Permits and other rights under any Law, other than those transferred pursuant to Section 1.01(f);
(vii) the tangible personal property of every kind and description not transferred to the Buyer pursuant to Section 1.01(c) or Section 1.01(k);
(viii) all IT Assets other than the Business IT Assets; #93878383v22
(ix) the 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;
(x) 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 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 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 of the Transaction Documents (“Transaction Privileged Communications”);
(xix) all inventories, including finished goods, finished components, work-in-process, raw materials, purchased parts, shipping containers, stores, spare parts and supplies exclusively attributable to, or used or held for use exclusively in, the Acquired Business and located in Canada and Saudi Arabia (the “Excluded Inventory”);
(xx) all documents maintained by the Seller or any 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, non-solicitation and invention assignment agreements primarily related to the Acquired Business (the “Continuing Affiliate Contracts”);
(xxii) all Contracts (A) that are rebate or distributor 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, the Buyer is assuming assume only the Assumed Liabilities and is not assuming or causing to be assumed any other Liabilities Liability of any other Person (including the AMCI Parties or any predecessor owner of all or part of their business or assets). Without limiting the generality of the Seller or foregoing, neither the Company nor any of its Affiliates Subsidiaries shall assume any of the Retained Liabilities.
(b) The Company is accepting the contribution only of the Contributed Interests and is not accepting any other assets or interests of any Person pursuant to this Agreement (including AMCI entities or any predecessor of the Seller or any of its Affiliates or any prior owner of all or part of its businesses and business or assets) (all such liabilities and obligations not being assumed being herein referred to as the “Retained Liabilities”). Without limiting the generality of the foregoing, “Retained Liabilities” include the following liabilities and obligations:
(i) all Liabilities for Damages arising out of or attributable to Proceedings related to Company shall not accept the Acquired Business that are pending, or to the Knowledge of the Seller, threatened in writing, as of the Closing;
(ii) any Liabilities of the Seller or any of its Affiliates, whether arising before, on or after the Closing, in respect of any Retained Assets or other assets of the Seller or its Affiliates that are not Assets;
(iii) any Liabilities or expenses of the Seller for any broker’s or finder’s commission relating to this Agreement or contribution any of the transactions this Agreement contemplates;Retained Assets.
(ivc) all On the Closing Date, the AMCI Parties (other than the Contributed Companies) shall retain the Retained Liabilities for payables and other amounts owed by shall be entitled to receive any proceeds, recoveries (monetary or otherwise) and benefits and burdens associated with the Acquired Business Retained Assets and the Retained Liabilities. On or Seller to the Seller or any Affiliate of the Seller;
(v) any Liability arising prior to the Closing Date, the AMCI Parties shall cause the Retained Assets and Liabilities to indemnifybe assigned or otherwise transferred to an AMCI Party or a third party designated by the AMCI Parties (or, reimburse or advance amounts to any Representative in the case 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 AffiliatesRetained Debt, including in respect of the AMCI Parties shall (i) any actual cause such Retained Debt to be assigned or alleged breach of fiduciary duty, otherwise transferred to an AMCI Party or a third party or (ii) fully pay and satisfy such Retained Debt). To the extent that any approvals (or necessity thereof) by any board of directors (or equivalent) or equityholders of the Seller Retained Assets and Retained Liabilities cannot be assigned or any of its Affiliates or (iii) otherwise transferred to 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 (AMCI Parties 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 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, the Transaction Documents or otherwise, including the costs, fees and expenses of any outside professionals (including any broker, finder, agent, investment banker, legal, accounting or tax adviser);
(x) any Liabilities for Seller Taxes;
(xi) any Liabilities relating to any non-compliance by the 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 designees prior to the Closing Date (including without limitation where such an assignment or (B) transfer would constitute a breach or default under any real property agreement, encumbrance or facility formerly ownedcommitment, leased would violate any Law or operated by Decree or would in any way adversely affect the Acquired Business rights or increase the Seller (obligations of the AMCI Parties or their designees), then the FRC Parties, without having to incur or suffer any of their respective predecessors) Adverse Consequences, and the AMCI Parties will execute and deliver any other documents, certificates, agreements and other writings, and take such other actions, in connection each case, as may be reasonably necessary or desirable in order to provide or impose upon the AMCI Parties or its designee the benefits and the obligations associated with the Acquired Businesssuch Retained Assets and Retained Liabilities.
Appears in 1 contract
Samples: Contribution Agreement (Alpha Natural Resources, Inc.)
Retained Assets and Retained Liabilities. a. The Assets specifically do (a) Other than the Assets, the Seller is not includeselling, and the Buyer will is not acquireacquiring, any other assets or properties of the following Seller, and all such other assets of and properties shall be excluded from the Seller or any of its Affiliates, regardless of whether such assets arise out of, relate to or are attributable to the Acquired Business Assets (collectively, the “Retained Assets”):). The Retained Assets include, without limitation, the following:
(i) any assets set forth on Section 2.3 of the Seller Disclosure Letter;
(Aii) the corporate seal, Organizational DocumentsCharter Documents and minute books, minute books or stock books of the Seller or and any of its Affiliates and the original financial and accounting books and other corporate records and Tax Returns of the Seller or any of its Affiliates (including supporting work papers and other documents relating to the financial, accounting and Tax policies of the Seller, such as transfer pricing studies and other proprietary information related to the preparation and filing of Tax Returns and calculations of Tax, but excluding Tax Returns related to Property Taxes), and (B) copies of any Records to the extent relating to the Retained Businesses (it being understood, for the avoidance of doubt, that the portion of any Records to the extent relating exclusively to the Acquired Business, the Assumed Liabilities or the Assets shall be an Asset pursuant to Section 1.01(e)) (collectively, the “Retained Records”);
(ii) all real property, whether owned or leased, other than the Real Property;
(iii) all any 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 Accounts Receivable or rights with respect to any prepaid expenses and deposits of the 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 pursuant to Section 1.01(qshall reimburse the Seller for the amount of any such prepaid expenses and deposits);; and
(iv) all receivables owed to the Seller by an Affiliate of the Seller;
(v) the rights that accrue or will accrue to the Seller or any of its Affiliates under this Agreement and any the other Transaction Document in which Documents.
(b) Neither the Buyer nor any Acquisition Entity shall assume, and none of them shall be obligated by this Agreement to pay, perform, discharge or otherwise be responsible for, any debts, liabilities or obligations of the Seller or the Acquired Business, whether accrued, absolute, contingent or otherwise, oral or written, disclosed or undisclosed, except the Assumed Liabilities, and all those debts, liabilities and obligations other than the Assumed Liabilities (the “Retained Liabilities”) will remain the responsibilities and obligations of the Seller. Without limiting the generality of the foregoing and notwithstanding any other provision of its Affiliates this Agreement, it is a partyexpressly agreed that neither the Buyer nor any Affiliate thereof will assume or incur any liabilities or obligations based on, arising out of or in connection with:
(i) any Proceeding, warranty claim, Environmental 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 Time;
(viii) all rights in, to and under all Permits and other rights under any Law, other than those transferred pursuant to Section 1.01(f);
(viiA) except for Transfer Taxes that are the tangible personal property responsibility of every kind and description not transferred to the Buyer pursuant to Section 1.01(c) or Section 1.01(k);
(viii) all IT Assets other than the Business IT Assets; #93878383v22
(ix) the assets5.5, 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;
(x) all rights, title and interest in any Seller Restricted Marks;
(xi) all Intellectual Property other than the Business Intellectual Property;
(xii) all Tax attributes Taxes of the Seller arising from, based on or related to the Acquisition 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 other transaction effected pursuant to the Seller or any of its Affiliates, in each case with respect to Seller Taxes;
Transaction Documents; (xivB) 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 Taxes that relate to the Acquired Business that the Seller or any Affiliate of the Seller is 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 the Assets, whether absolute, accrued, contingent or expense allowances;
otherwise, for taxable periods (xviiior portions thereof) all attorney-client privilege ending on or before the Closing Date; and attorney work-product protection of the Seller (C) any Taxes imposed on or associated with the Acquired Business, in each case to the extent arising with respect to legal counsel representation of 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 in connection with the transactions contemplated by this Agreement or any of the Transaction Documents (“Transaction Privileged Communications”);
(xix) all inventories, including finished goods, finished components, work-in-process, raw materials, purchased parts, shipping containers, stores, spare parts and supplies exclusively attributable to, or used or held for use exclusively in, the Acquired Business and located in Canada and Saudi Arabia (the “Excluded Inventory”);
(xx) all documents maintained by the Seller or any 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, non-solicitation and invention assignment agreements primarily related to the Acquired Business (the “Continuing Affiliate Contracts”);
(xxii) all Contracts (A) that are rebate or distributor 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, the Buyer is assuming only the Assumed 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 liabilities and obligations not being assumed being herein referred to as the “Retained Liabilities”). Without limiting the foregoing, “Retained Liabilities” include the following liabilities and obligations:
(i) all Liabilities for Damages arising out of or attributable to Proceedings related to the Acquired Business that are pending, or to the Knowledge of the Seller, threatened in writing, as of the Closing;
(ii) any Liabilities of the Seller or any of its Affiliates, whether arising before, on or after the Closing, in respect of any Retained Assets or other assets of the Seller or its Affiliates that are not AssetsBusiness;
(iii) any Liabilities liabilities with respect to any Employee Plan or Employment Agreement or any claims for wages or for severance or any other termination costs arising out of alleged or actual employment loss;
(iv) any Indebtedness or accounts payable of the Seller outstanding as of the Effective Time;
(v) any liabilities, obligations or expenses of the Seller for any broker’s or finder’s commission relating to this Agreement or any of the transactions this Agreement contemplates;
(iv) 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 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 or the Transaction Documents or otherwisetransactions this Agreement contemplates, including the costs, fees and expenses of any outside professionals (including any broker, finder, agent, investment banker, legal, accounting or tax adviser);counsel; or
(xvii) any Liabilities for Seller Taxes;
(xi) any Liabilities relating to any non-compliance liabilities, debts or obligations arising out of actions taken or work done by the 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 Closing Date Effective Time, including liabilities or (B) obligations under any real property contract, commitment or facility formerly ownedarrangement, leased including those set forth in any Customer Contract or operated by Material Agreement resulting from events or occurrences or relating to periods ending on or prior to the Acquired Business or the Seller (or any of their respective predecessors) in connection with the Acquired BusinessEffective Time.
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