12-559.02. Establishing the fair market value of total gross assets

A. To determine the limitation pursuant to section 12-559.01, a successor corporation may establish the fair market value of total gross assets through any method reasonable under the circumstances, including either of the following:

1. By reference to the going concern value of the assets or to the purchase price attributable to or paid for the assets in an arms length transaction.

2. In the absence of other readily available information from which the fair market value can be determined, by reference to the value of the assets recorded on a balance sheet.

B. Total gross assets include intangible assets.

C. To the extent total gross assets include any liability insurance that was issued to the transferor whose assets are being valued for the purposes of this section, the applicability, terms, conditions and limits of that insurance are not affected by this section, and this section does not affect the rights and obligations of an insurer, transferor or successor under any insurance contract and any related agreements, including preenactment settlements resolving coverage-related disputes, or the rights of an insurer to seek payment for applicable deductibles, retrospective premiums or self-insured retentions or to seek contribution from a successor for uninsured or self-insured periods or periods where insurance is uncollectible or otherwise unavailable. Notwithstanding this subsection, to the extent that total gross assets include liability insurance, a settlement of a dispute concerning that liability insurance coverage that is entered into by a transferor or successor with the insurers of the transferor before the effective date of this section determines the total coverage of that liability insurance to be included in the calculation of the transferor's total gross assets.