Kodak 2012 Annual Report Download - page 160

will not assume any liability or obligation other than the Assumed Liabilities. Except for the Assumed Liabilities, Kodak and its Affiliates will
retain all of their respective liabilities and obligations arising under or relating to (i) Kodak’s or any of its Affiliates’ ownership, enforcement or
exploitation of the Assigned Assets prior to the Closing to the extent such liability or obligation is not an Assumed Liability, provided that the
foregoing shall not limit Kodak’s obligations under Section 5.4(c) , and (ii) any Contract concerning or relating to the Assigned Patents, each of
which, for the avoidance of doubt, shall constitute an Excluded Liability. None of Kodak or any of its Affiliates will retain, assume or otherwise
be responsible for any liability or obligation to the extent arising under or relating to ownership, enforcement or exploitation of the Assigned
Assets from and after Closing. Nothing in this Section 2.2 shall be construed to obligate Buyer (or its Designee, as applicable) to maintain any
Assigned Assets, continue the prosecution of any Assigned Patents or continue the prosecution of or enforce any Assigned Patents. At Closing,
Buyer will pay to Kodak Three Hundred Ninety-Two Thousand US Dollars ($392,000) by wire transfer of immediately available funds in
respect of maintenance fees and prosecution costs that Kodak has paid in respect of the Assigned Patents for any period that ends after the
Closing Date, subject to the immediately succeeding sentence. If the Closing occurs on or after February 1, 2013, Buyer (or its Designee, as
applicable) will pay to Kodak at Closing such additional amounts corresponding to any additional maintenance fees and prosecution costs paid
by Kodak on or after February 1, 2013 in respect of the Assigned Patents.
Section 2.3 No Assignment of Contracts or Kodak Retained Rights . For the avoidance of doubt, Kodak is not assigning
(including under section 365 of the Bankruptcy Code or otherwise) hereunder or in any Ancillary Agreement any license agreement or other
Contract, or any Kodak Retained Rights.
Section 2.4 Excluded Liabilities . It is expressly understood and agreed that Buyer (and its Designee, as applicable) is not assuming
or becoming obligated to pay, perform or otherwise discharge or in any other manner become liable or responsible for any of the Excluded
Liabilities. Buyer (and its Designee, as applicable) has no, and from and after the Closing, Buyer (and its Designee, as applicable) shall have no
liability with respect to any Excluded Liability as a result of this Agreement. As between Kodak and Buyer (or Buyer’
s Designee, as applicable),
Kodak shall be responsible for all Excluded Liabilities.
ARTICLE III
PURCHASE PRICE; CLOSING
Section 3.1 Purchase Price . In consideration for the sale, assignment, transfer and conveyance of the Assigned Assets to Buyer
(and its Designee, as applicable), at the Closing, Buyer (and its Designee, as applicable) will pay to Kodak cash in an amount equal to Five
Hundred and Twenty-Seven Million US Dollars ($527,000,000) less (i) the License Fees, plus (ii) the Expense Adjustment Amount (such
amount, the “Closing Amount” ); provided , however , that, of the Closing Amount, Buyer shall pay (in lieu of direct payment to Kodak), on
behalf of Kodak, Five Million US Dollars ($5,000,000) to FlashPoint to effect the settlement contemplated by the FlashPoint Settlement
Agreement (the “FlashPoint Settlement Amount” ); provided , further that in no event shall the Aggregate Transaction Value exceed Five
Hundred and Thirty-Two Million US Dollars ($532,000,000) or be less than Five Hundred and Twenty-Two Million
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