§ 32-46-04 — Establishing fair market value of total gross assets

1. An innocent successor corporation may establish the fair market value of total gross
assets for the purpose of the limitations under section 32-46-03 through any method
reasonable under the circumstances, including:
a. By reference to the going concern value of the assets or to the purchase price
attributable to or paid for the assets in an arm's-length transaction; or
b. In the absence of other readily available information from which the fair market
value may be determined, by reference to the value of the assets recorded on a
balance sheet.
2. Total gross assets include intangible assets.
3. To the extent total gross assets include liability insurance that was issued to the
transferor whose assets are being valued for purposes of this section, the applicability,
terms, conditions, and limits of the insurance are not affected by this chapter, nor does
this chapter otherwise affect the rights and obligations of an insurer, transferor, or
successor under an insurance contract or any related agreements, including
pre-enactment settlements resolving coverage-related disputes, and 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 when insurance is uncollectible or otherwise
unavailable. Without limiting the foregoing, to the extent total gross assets include any
such liability insurance, a settlement of a dispute concerning the liability insurance
coverage entered into by a transferor or successor with the insurers of the transferor
before August 1, 2009, are determinative of the total coverage of the liability insurance
to be included in the calculation of the transferor's total gross assets.