Common use of Assumed and Retained Liabilities Clause in Contracts

Assumed and Retained Liabilities. (a) On the Closing Date, but effective as of the Effective Time, Buyer shall assume and hereby agrees to discharge only the following Liabilities (collectively, the “Assumed Liabilities”): (i) Liabilities arising from and after the Closing under Seller Contracts, Seller Governmental Authorizations and Non-Governmental Permits that are included in the Purchased Assets and that are set forth in Schedule 1.1(c) and Sections 3.6(b)(1) or 3.13(b) of the Disclosure Schedule, respectively, including any obligations related to customer deposits or prepayments disclosed on Schedule 2.4(a)(i); (ii) Liabilities arising from the ownership of the Purchased Assets and the operation of the Business solely to the extent relating to the period from and after the Effective Time; and (iii) Liabilities arising from Trade Payables in the amount set forth on Schedule 2.4(a)(iii); (iv) Liabilities related to costs and expenses incurred by Seller in connection with the consummation of the Contemplated Transactions in an amount not to exceed One Million Dollars ($1,000,000) individually or in the aggregate; (v) Liabilities related to vacation or paid time off to which any Transferred Employee is entitled pursuant to the written vacation policy applicable to such Transferred Employee immediately prior to the Closing in an amount not to exceed One Hundred Sixty-Five Thousand Dollars ($165,000) individually or in the aggregate (the “Assumed Employee Liabilities”); (vi) to the extent actually incurred by Seller and verifiable by Buyer or a Buyer Representative pursuant to Section 7.7(c), Liabilities of Seller arising from Taxes in an amount not to exceed the Tax Cap, individually or in the aggregate (the “Assumed Taxes”); and (vii) subject to Section 2.4(b)(xiii), Liabilities related to the repayment of any and all unpaid principal and accrued interest thereon related to the Zachs Note and the Series G Promissory Notes, in an aggregate principal amount of Two Million Seven Hundred Thirty Thousand Dollars ($2,730,000). (b) The Retained Liabilities shall be the sole responsibility of and shall be retained, paid, performed and discharged solely by Seller. Notwithstanding anything to the contrary contained herein or in any of the Transaction Documents, the Retained Liabilities include all of the following: (i) all Liabilities arising out of the ownership of the Purchased Assets or the operation of the Business at any time prior to the Effective Time, except to the extent of Liabilities related to the pre-closing operation of the Business that are Assumed Liabilities; (ii) any Liability arising out of or relating to products and Services sold or otherwise provided by Seller prior to the Effective Time subject to Buyer’s continuation of tail coverage with respect to clinical trial insurance in accordance with the provisions of Section 7.13; (iii) any Liability under any Seller Contract, Seller Governmental Authorization or Non-Governmental Permit assumed by Buyer pursuant to Section 2.4(a) that arises out of or relates to Breach of any such Seller Contract, Seller Governmental Authorization or Non-Governmental Permit that occurred prior to the Effective Time; (iv) except for the Assumed Taxes, any Liability of Seller or its Affiliates for Taxes; (v) any Environmental, Health and Safety Liabilities, and any Environmental Condition, arising, relating to or originating prior to the Effective Time in either case caused by Seller; (vi) except for the Assumed Employee Liabilities, any Liability under the Seller Employee Plans or relating to payroll, vacation, sick leave, worker’s compensation, unemployment benefits, pension benefits, employee stock option or profit-sharing plans, health care plans or benefits, or any other employee plans or benefits of any kind for Seller’s employees or for the Transferred Employees arising out of or related to any event or occurrence prior to the effectiveness of Transferred Employees’ employment with EBS; (vii) except for the Assumed Employee Liabilities or any unpaid amounts of salary for the then current pay period that is set forth in the Trade Payables, any Liability under any employment, severance (including any deferred compensation owed to any Seller Employee), bonus, change in control, retention or termination policy, practice or Contract with any Seller Employee or former employee of Seller (including any Employment Agreement); (viii) subject to Section 7.5(j), any employee-related Liability, including Liabilities arising out of or relating to any claim by an employee arising out of or related to any event or occurrence prior to the Closing, regardless of whether the affected employee is hired by EBS; (ix) any Liability of Seller to any officer, director or shareholder or any Related Person of Seller or any such Person, whether arising under Contract, applicable Legal Requirements or otherwise; (x) any Liability arising out of any Proceeding pending or threatened as of the Closing, regardless of whether disclosed in the Disclosure Schedule or otherwise in connection with the Contemplated Transactions, or any Liability arising out of any Proceeding commenced after the Effective Time by a Third Party and arising out of or relating to any occurrence or event prior to the Closing; (xi) Seller’s non-compliance with any Legal Requirement at any time; (xii) any Liability relating to or arising out of any Excluded Asset; (xiii) any Liability related to a prepayment penalty or premium required to be paid by Seller pursuant to, and in accordance with, the terms and conditions of the Zachs Note and the Series G Promissory Notes, respectively; (xiv) any and all claims and Liability arising from, or related to, any advance or financing arrangement between or among Seller or its officers, directors or Affiliates and a third party previously identified to Buyer (the “3rd Party”) (whether such claims and/or Liabilities arose on or before the Closing Date) (the “3rd Party Arrangement”), including the One Million Dollar ($1,000,000) advance made by the 3rd Party to Seller on or about February 27, 2008; (xv) any Liability arising from, or related to, any vehicle owned or leased by Seller or otherwise used, useful or held for use in connection with the Business; (xvi) any Liability of Seller under this Agreement or any other Transaction Document, subject to any right to indemnification hereunder or thereunder; and (xvii) any additional Liability set forth on Schedule 2.4(b)(xvii).

Assumed and Retained Liabilities. (a) On the terms and subject to the conditions set forth in this Agreement, at the Closing, Buyer will assume, and agree to pay, perform and discharge when due, only (i) obligations under the Assumed Contracts (including any Non-assigned Assets) that arise out of or relate to the period of performance from and after the Closing Date; (ii) any Liabilities arising following the Closing in connection with, but effective as or relating to, the operation of the Effective Time, Business by Buyer shall assume or the use or ownership of any Purchased Assets; (iii) the Assumed IP WIP Liabilities; (iv) the Assumed Environmental Liabilities; and hereby agrees to discharge only (v) the following Liabilities current liabilities of Seller included in the calculation of the Closing Working Capital (collectively, the “Assumed Liabilities”). Except as otherwise provided in Section 6.14, in no event will the Assumed Liabilities include any Liability attributable to Seller’s action, failure to act, or other claim arising from Seller’s action or inaction occurring prior to the Closing. (b) Notwithstanding anything to the contrary in this Agreement, Buyer will not assume, or be deemed to have assumed or guaranteed, or otherwise be responsible for, any Liability of Seller or any predecessor-in-interest, of any kind or nature whatsoever other than the Assumed Liabilities. Without limiting the generality or effect of the foregoing, from and after the Closing Date, Seller will continue to be liable for and will pay, perform, or otherwise discharge, as and when the same may become due and payable, all Liabilities and obligations of Seller other than the Assumed Liabilities, including those set forth below (such Liabilities and obligations retained by Seller being referred to herein as the “Retained Liabilities”): (i) any Liabilities arising from and after that would be shown on or reflected in the Closing under notes to a balance sheet of Seller Contractsprepared in accordance with GAAP at the time of Closing, Seller Governmental Authorizations and Non-Governmental Permits that are other than as specifically included in the Purchased Assets and that are set forth in Schedule 1.1(c) and Sections 3.6(b)(1) or 3.13(b) of the Disclosure Schedule, respectively, including any obligations related to customer deposits or prepayments disclosed on Schedule 2.4(a)(i); (ii) Liabilities arising from the ownership of the Purchased Assets and the operation of the Business solely to the extent relating to the period from and after the Effective Time; and (iii) Liabilities arising from Trade Payables in the amount set forth on Schedule 2.4(a)(iii); (iv) Liabilities related to costs and expenses incurred by Seller in connection with the consummation of the Contemplated Transactions in an amount not to exceed One Million Dollars ($1,000,000) individually or in the aggregate; (v) Liabilities related to vacation or paid time off to which any Transferred Employee is entitled pursuant to the written vacation policy applicable to such Transferred Employee immediately prior to the Closing in an amount not to exceed One Hundred Sixty-Five Thousand Dollars ($165,000) individually or in the aggregate (the “Assumed Employee Liabilities”); (vi) to the extent actually incurred by Seller and verifiable by Buyer or a Buyer Representative pursuant to Section 7.7(c), Liabilities of Seller arising from Taxes in an amount not to exceed the Tax Cap, individually or in the aggregate (the “Assumed Taxes”); and (vii) subject to Section 2.4(b)(xiii), Liabilities related to the repayment of any and all unpaid principal and accrued interest thereon related to the Zachs Note and the Series G Promissory Notes, in an aggregate principal amount of Two Million Seven Hundred Thirty Thousand Dollars ($2,730,000). (b) The Retained Liabilities shall be the sole responsibility of and shall be retained, paid, performed and discharged solely by Seller. Notwithstanding anything to the contrary contained herein or in any of the Transaction Documents, the Retained Liabilities include all of the following: (i) all Liabilities arising out of the ownership of the Purchased Assets or the operation of the Business at any time prior to the Effective Time, except to the extent of Liabilities related to the pre-closing operation of the Business that are Assumed Liabilities; (ii) other than the Assumed Environmental Liabilities, any Liability Environmental Liabilities of Seller or its current or former equityholders or arising out of the operation of Seller’s business (including the Business on or relating to products and Services sold or otherwise provided by Seller prior to the Effective Time subject to Buyer’s continuation of tail coverage with respect to clinical trial insurance in accordance with the provisions of Section 7.13Closing Date); (iii) any Liability under any Seller ContractLiabilities arising in connection with, Seller Governmental Authorization or Non-Governmental Permit assumed by Buyer pursuant to Section 2.4(a) relating to, Contracts that arises out of or relates to Breach of any such Seller Contract, Seller Governmental Authorization or Non-Governmental Permit that occurred prior to the Effective Timeare not Assumed Contracts; (iv) except for the Assumed Taxesany Liabilities arising in connection with, or relating to, any Liability Debt of Seller or its Affiliates for TaxesSeller; (v) any EnvironmentalLiabilities to pay so-called “transaction bonuses” to ▇▇▇▇▇▇ ▇▇▇▇, Health and Safety Liabilities▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇ ▇▇▇▇▇▇▇▇ in accordance with the terms and provisions of Transaction Bonus Letters dated as of December 6, 2013 from Seller in favor of each of such individuals and any Environmental Conditionother Liabilities of Seller for any other bonuses, arisingseverance payments, relating to change of control payments or originating similar obligations arising prior to the Effective Time in either case caused by SellerClosing or payable as a result of the consummation of the Transaction; (vi) except for the Assumed Employee Liabilitiesany Liabilities arising in connection with, any Liability under the Seller Employee Plans or relating to payrollto, vacation, sick leave, worker’s compensation, unemployment benefits, pension benefits, employee stock option or profit-sharing plans, health care plans or benefits(A) Taxes of Seller, or any other employee plans of its predecessors-in-interest, (B) Taxes that relate to the Purchased Assets, the Assumed Liabilities or benefits the Business arising prior to or at the Closing Date, or (C) payments of Taxes of any kind other Person for Seller’s employees which Seller may be liable, whether as a transferee under any Tax allocation, sharing or for the Transferred Employees arising out similar agreement (whether oral or written) of Seller or related to any event of its predecessors-in-interest or occurrence prior to the effectiveness of Transferred Employees’ employment with EBSotherwise; (vii) except for the Assumed Employee any Liabilities arising in connection with, or relating to, (A) any unpaid amounts employee benefit plan of salary for the then current pay period that is set forth in the Trade PayablesSeller, including any withdrawal Liability under any employment, severance Part I of Subtitle E of Title IV of ERISA for a “complete withdrawal” (including any deferred compensation owed to any Seller Employeewithin the meaning of Section 4203 of ERISA) or a “partial withdrawal” (within the meaning of Section 4205 of ERISA), bonusor the amendment, change in controltermination or freeze of any employee benefit plan, retention or termination policy, practice or Contract with (B) any Seller Employee or former employee of Seller or any spouse, child or other dependent or beneficiary of any Employee or former employee of Seller, including Liabilities for wages, salaries, benefits or claims, or (including C) the termination of employment by or with Seller of any Employment Agreement)Employee; (viii) subject to Section 7.5(j)any Liabilities arising in connection with, or relating to, any employee-related Liability, pending or threatened Legal Proceeding involving Seller (including Liabilities arising out the operation of or relating to any claim by an employee arising out of or related to any event or occurrence the Business prior to the Closing, regardless of whether the affected employee is hired by EBS); (ix) any Liability Liabilities now due or hereafter arising in connection with the assignment or other transfer, documentation or recording of any of the Purchased Intellectual Property through its complete chain of title into the name of Seller before the assignment thereof to Buyer at Closing, including any officer, director or shareholder or any Related Person of Seller or Tax Liabilities associated with any such Person, whether arising under Contract, applicable Legal Requirements or otherwiseactions; (x) any Liability Liabilities arising out in connection with, or relating to, the operation of the Business, the use or ownership of any Proceeding pending or threatened as of the Closing, regardless of whether disclosed in the Disclosure Schedule or otherwise in connection with the Contemplated TransactionsPurchased Assets, or any Liability arising out of any Proceeding commenced after the Effective Time by a Third Party and arising out of events, actions or relating failures to any occurrence or event act occurring, prior to the Closing, including a breach, event of default or indemnity obligation under an Assumed Contract, other than as specifically included in the Assumed Liabilities, including (i) Liabilities arising after Closing with respect to any actual or alleged infringement or violation of the Intellectual Property of any Person occurring prior to the Closing and (ii) the Retained IP WIP Liabilities; (xi) Seller’s nonsubject to Section 6.14, any Liabilities arising as a result of any design, installation, performance or operation of any Pre-compliance with any Legal Requirement at any timeClosing Product; (xii) any Liability relating to Liabilities of Seller under, or arising out of any Excluded Asset;in connection with the execution, delivery or performance of, this Agreement; and (xiii) any Liability related to a prepayment penalty or premium required to be paid by Seller pursuant to, and Liabilities arising in accordance connection with, or relating to the terms and conditions sale, transfer or other disposition of any business segment or other assets (other than the Zachs Note and the Series G Promissory Notes, respectively; (xivAssumed Liabilities) any and all claims and Liability arising from, or related to, any advance or financing arrangement between or among of Seller or its officers, directors or Affiliates and a third party previously identified to Buyer (the “3rd Party”) (whether such claims and/or Liabilities arose on previously held, currently held or before may be held in the Closing Date) (the “3rd Party Arrangement”), including the One Million Dollar ($1,000,000) advance made by the 3rd Party to Seller on or about February 27, 2008; (xv) any Liability arising from, or related to, any vehicle owned or leased by Seller or otherwise used, useful or held for use in connection with the Business; (xvi) any Liability of Seller under this Agreement or any other Transaction Document, subject to any right to indemnification hereunder or thereunder; and (xvii) any additional Liability set forth on Schedule 2.4(b)(xviifuture).

Assumed and Retained Liabilities. (a) On Except as otherwise set forth in Sections 5.3, 5.4, 5.5, 5.6, 5.7 and 5.8 and Articles VII and IX of this Termination Agreement, and subject to Section 3.7(c), GSK shall retain liability for any debts, losses, damages and/or obligations associated with any Transferred Assets that are incurred prior to the Closing Datedate on which the Transferred Assets are assigned and transferred from GSK to XenoPort or its designee as provided in Section 3.4(a), but effective as 3.4(b) and 3.6 above (the “Retained Liabilities”) and neither XenoPort nor any of its Affiliates shall have any liability for such Retained Liabilities; provided, however, that if, in accordance with this Termination Agreement, GSK has transferred a Transferred GSK Contract to XenoPort that allows for recovery of any debts, losses, damages and/or obligations associated with any Transferred Assets from the Effective Timecounterparty to such Transferred GSK Contract, Buyer then, [… * …], XenoPort shall assume the right to recover any such debts, losses, damages and/or obligations from the counterparty to such Transferred GSK Contract [… * …] (the “Transferred Contract Recovery Rights”). (b) Except as otherwise set forth in Sections 5.3, 5.4, 5.5, 5.6, 5.7 and hereby agrees 5.8 and Articles VII and IX of this Termination Agreement, and subject to discharge only Section 3.7(c), XenoPort shall assume (i) liability for any debts, losses, damages, and/or obligations associated with any Transferred Assets that are incurred on or after the following Liabilities date on which such Transferred Assets are assigned and transferred from GSK to XenoPort or its designee as provided in Section 3.4(a), 3.4(b) and 3.6 above, and (ii) the Transferred Contract Recovery Rights (collectively, the “Assumed Liabilities”):) and neither GSK nor any of its Affiliates shall have any liability for such Assumed Liabilities. (ic) Liabilities arising from and after the Closing under Seller Contracts, Seller Governmental Authorizations and Non-Governmental Permits that are included in the Purchased Assets and that are set forth in Schedule 1.1(c) and Sections 3.6(b)(1) or 3.13(b) of the Disclosure Schedule, respectively, including any obligations related to customer deposits or prepayments disclosed on Schedule 2.4(a)(i); (ii) Liabilities arising from the ownership of the Purchased Assets and the operation of the Business solely Except to the extent relating that this Termination Agreement provides for a payment from one Party to the period from and after the Effective Time; and (iii) Liabilities arising from Trade Payables in the amount set forth on Schedule 2.4(a)(iii); (iv) Liabilities related to other or otherwise specifies that certain costs and or expenses incurred by Seller in connection with the consummation of the Contemplated Transactions in an amount not to exceed One Million Dollars ($1,000,000) individually or in the aggregate; (v) Liabilities related to vacation or paid time off to which any Transferred Employee is entitled pursuant to the written vacation policy applicable to such Transferred Employee immediately prior to the Closing in an amount not to exceed One Hundred Sixty-Five Thousand Dollars ($165,000) individually or in the aggregate (the “Assumed Employee Liabilities”); (vi) to the extent actually incurred by Seller and verifiable by Buyer or a Buyer Representative pursuant to Section 7.7(c), Liabilities of Seller arising from Taxes in an amount not to exceed the Tax Cap, individually or in the aggregate (the “Assumed Taxes”); and (vii) subject to Section 2.4(b)(xiii), Liabilities related to the repayment of any and all unpaid principal and accrued interest thereon related to the Zachs Note and the Series G Promissory Notes, in an aggregate principal amount of Two Million Seven Hundred Thirty Thousand Dollars ($2,730,000). (b) The Retained Liabilities shall be the sole responsibility of and shall be retained, paid, performed and discharged solely borne by Seller. Notwithstanding anything to the contrary contained herein or in any of the Transaction Documents, the Retained Liabilities include all of the following: (i) all Liabilities arising out of the ownership of the Purchased Assets one Party or the operation other, each Party shall bear the cost and expense of the Business at any time prior to the Effective Time, except to the extent of Liabilities related to the pre-closing operation of the Business that are Assumed Liabilities; conducting its (ii) any Liability arising out of or relating to products and Services sold or otherwise provided by Seller prior to the Effective Time subject to Buyer’s continuation of tail coverage with respect to clinical trial insurance in accordance with the provisions of Section 7.13; (iii) any Liability under any Seller Contract, Seller Governmental Authorization or Non-Governmental Permit assumed by Buyer pursuant to Section 2.4(a) that arises out of or relates to Breach of any such Seller Contract, Seller Governmental Authorization or Non-Governmental Permit that occurred prior to the Effective Time; (iv) except for the Assumed Taxes, any Liability of Seller or its Affiliates for Taxes; (v) any Environmental, Health Affiliates’ and Safety Liabilities, and any Environmental Condition, arising, relating to or originating prior to the Effective Time in either case caused by Seller; (vi) except for the Assumed Employee Liabilities, any Liability under the Seller Employee Plans or relating to payroll, vacation, sick leave, worker’s compensation, unemployment benefits, pension benefits, employee stock option or profit-sharing plans, health care plans or benefits, or any other employee plans or benefits of any kind for Seller’s employees or for the Transferred Employees arising out of or related to any event or occurrence prior to the effectiveness of Transferred Employees’ employment with EBS; (vii) except for the Assumed Employee Liabilities or any unpaid amounts of salary for the then current pay period that is set forth in the Trade Payables, any Liability under any employment, severance (including any deferred compensation owed to any Seller Employee), bonus, change in control, retention or termination policy, practice or Contract with any Seller Employee or former employee of Seller (including any Employment Agreement); (viii) subject to Section 7.5(j), any employee-related Liability, including Liabilities arising out of or relating to any claim by an employee arising out of or related to any event or occurrence prior to the Closing, regardless of whether the affected employee is hired by EBS; (ix) any Liability of Seller to any officer, director or shareholder or any Related Person of Seller or any such Person, whether arising under Contract, applicable Legal Requirements or otherwise; (x) any Liability arising out of any Proceeding pending or threatened as of the Closing, regardless of whether disclosed in the Disclosure Schedule or otherwise in connection with the Contemplated Transactions, or any Liability arising out of any Proceeding commenced after the Effective Time by a Third Party and arising out of or relating to any occurrence or event prior to the Closing; (xicontractors’) Seller’s non-compliance with any Legal Requirement at any time; (xii) any Liability relating to or arising out of any Excluded Asset; (xiii) any Liability related to a prepayment penalty or premium required to be paid by Seller pursuant to, and in accordance with, the terms and conditions of the Zachs Note and the Series G Promissory Notes, respectively; (xiv) any and all claims and Liability arising from, or related to, any advance or financing arrangement between or among Seller or its officers, directors or Affiliates and a third party previously identified to Buyer (the “3rd Party”) (whether such claims and/or Liabilities arose on or before the Closing Date) (the “3rd Party Arrangement”), including the One Million Dollar ($1,000,000) advance made by the 3rd Party to Seller on or about February 27, 2008; (xv) any Liability arising from, or related to, any vehicle owned or leased by Seller or otherwise used, useful or held for use in connection with the Business; (xvi) any Liability of Seller activities under this Agreement or any other Transaction Document, subject to any right to indemnification hereunder or thereunder; and (xvii) any additional Liability set forth on Schedule 2.4(b)(xvii)Termination Agreement.

Assumed and Retained Liabilities. (a) On At the Closing Date, but effective as of the Effective TimeClosing, Buyer shall assume and hereby agrees to discharge become responsible for only the following Liabilities payment of the accounts payable set forth on Schedule 1.3(a) (collectivelythe “Assumed Payables”), the due performance of the contractual liabilities arising after Closing under the Contracts set forth on Schedule 1.3(b) (the “Assumed Contracts”), and liabilities for taxes on the Acquired Assets accrued for periods after the Closing Date to the extent provided in Section 6.7 of this Agreement (the “Assumed Taxes”, and together with the Assumed Payables and the Assumed Contracts, the “Assumed Liabilities”): ). Buyer shall not assume or have responsibility with respect to any Liability of Sellers other than the Assumed Liabilities (the “Retained Liabilities”), all of which shall be retained by Sellers. The Retained Liabilities will include, without limitation, any Liability (i) Liabilities arising from and after of Sellers for Taxes (other than the Closing under Seller ContractsAssumed Taxes), Seller Governmental Authorizations and Non-Governmental Permits that are included in the Purchased Assets and that are set forth in Schedule 1.1(c) and Sections 3.6(b)(1) or 3.13(b) of the Disclosure Schedule, respectively, including any obligations related to customer deposits or prepayments disclosed on Schedule 2.4(a)(i); (ii) Liabilities arising under or relating to Environmental Laws attributable or relating to the conduct of Sellers or the use of the Acquired Assets on or prior to the Closing Date, (iii) relating to or arising from any Employee Plan or any related contract, agreement or other arrangement, (iv) for defects in products or services provided by Sellers or any express or implied warranty relating to such products or services, (v) for any claims, actions, suits or proceedings against Sellers, (vi) arising from the ownership misclassification by Sellers of any Person as an independent contractor or employee, or of any employee as salaried or hourly, (vii) for any payable not listed on Schedule 1.3(a), (viii) arising under any Contract not listed on Schedule 1.3(b), (ix) for any pre-Closing breach of any Contract listed on Schedule 1.3(b), (x) arising under any asset that is not among the Purchased Acquired Assets and the operation (xi) of the Business solely to the extent relating to the period from and after the Effective Time; and (iii) Liabilities arising from Trade Payables in the amount set forth on Schedule 2.4(a)(iii); (iv) Liabilities related to Sellers for costs and expenses incurred by Seller in connection with the consummation of the Contemplated Transactions in an amount not to exceed One Million Dollars ($1,000,000) individually or in the aggregate; (v) Liabilities related to vacation or paid time off to which any Transferred Employee is entitled pursuant to the written vacation policy applicable to such Transferred Employee immediately prior to the Closing in an amount not to exceed One Hundred Sixty-Five Thousand Dollars ($165,000) individually or in the aggregate (the “Assumed Employee Liabilities”); (vi) to the extent actually incurred by Seller and verifiable by Buyer or a Buyer Representative pursuant to Section 7.7(c), Liabilities of Seller arising from Taxes in an amount not to exceed the Tax Cap, individually or in the aggregate (the “Assumed Taxes”); and (vii) subject to Section 2.4(b)(xiii), Liabilities related to the repayment of any and all unpaid principal and accrued interest thereon related to the Zachs Note this Agreement and the Series G Promissory Notes, in an aggregate principal amount of Two Million Seven Hundred Thirty Thousand Dollars ($2,730,000)transactions contemplated hereby. (b) The Retained Liabilities shall be the sole responsibility of and shall be retained, paid, performed and discharged solely by Seller. Notwithstanding anything to the contrary contained herein or in any of the Transaction Documents, the Retained Liabilities include all of the following: (i) all Liabilities arising out of the ownership of the Purchased Assets or the operation of the Business at any time prior to the Effective Time, except to the extent of Liabilities related to the pre-closing operation of the Business that are Assumed Liabilities; (ii) any Liability arising out of or relating to products and Services sold or otherwise provided by Seller prior to the Effective Time subject to Buyer’s continuation of tail coverage with respect to clinical trial insurance in accordance with the provisions of Section 7.13; (iii) any Liability under any Seller Contract, Seller Governmental Authorization or Non-Governmental Permit assumed by Buyer pursuant to Section 2.4(a) that arises out of or relates to Breach of any such Seller Contract, Seller Governmental Authorization or Non-Governmental Permit that occurred prior to the Effective Time; (iv) except for the Assumed Taxes, any Liability of Seller or its Affiliates for Taxes; (v) any Environmental, Health and Safety Liabilities, and any Environmental Condition, arising, relating to or originating prior to the Effective Time in either case caused by Seller; (vi) except for the Assumed Employee Liabilities, any Liability under the Seller Employee Plans or relating to payroll, vacation, sick leave, worker’s compensation, unemployment benefits, pension benefits, employee stock option or profit-sharing plans, health care plans or benefits, or any other employee plans or benefits of any kind for Seller’s employees or for the Transferred Employees arising out of or related to any event or occurrence prior to the effectiveness of Transferred Employees’ employment with EBS; (vii) except for the Assumed Employee Liabilities or any unpaid amounts of salary for the then current pay period that is set forth in the Trade Payables, any Liability under any employment, severance (including any deferred compensation owed to any Seller Employee), bonus, change in control, retention or termination policy, practice or Contract with any Seller Employee or former employee of Seller (including any Employment Agreement); (viii) subject to Section 7.5(j), any employee-related Liability, including Liabilities arising out of or relating to any claim by an employee arising out of or related to any event or occurrence prior to the Closing, regardless of whether the affected employee is hired by EBS; (ix) any Liability of Seller to any officer, director or shareholder or any Related Person of Seller or any such Person, whether arising under Contract, applicable Legal Requirements or otherwise; (x) any Liability arising out of any Proceeding pending or threatened as of the Closing, regardless of whether disclosed in the Disclosure Schedule or otherwise in connection with the Contemplated Transactions, or any Liability arising out of any Proceeding commenced after the Effective Time by a Third Party and arising out of or relating to any occurrence or event prior to the Closing; (xi) Seller’s non-compliance with any Legal Requirement at any time; (xii) any Liability relating to or arising out of any Excluded Asset; (xiii) any Liability related to a prepayment penalty or premium required to be paid by Seller pursuant to, and in accordance with, the terms and conditions of the Zachs Note and the Series G Promissory Notes, respectively; (xiv) any and all claims and Liability arising from, or related to, any advance or financing arrangement between or among Seller or its officers, directors or Affiliates and a third party previously identified to Buyer (the “3rd Party”) (whether such claims and/or Liabilities arose on or before the Closing Date) (the “3rd Party Arrangement”), including the One Million Dollar ($1,000,000) advance made by the 3rd Party to Seller on or about February 27, 2008; (xv) any Liability arising from, or related to, any vehicle owned or leased by Seller or otherwise used, useful or held for use in connection with the Business; (xvi) any Liability of Seller under this Agreement or any other Transaction Document, subject to any right to indemnification hereunder or thereunder; and (xvii) any additional Liability set forth on Schedule 2.4(b)(xvii).