Excluded Liabilities. The Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following: (a) any Liabilities of the Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others; (b) any Liability for (i) Taxes of the Seller (or any stockholder or Affiliate of the Seller) including any Taxes relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, or (iii) any Taxes of Seller (or any stockholder or Affiliate of the Seller) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder or Affiliate of the Seller) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law); (c) any Liabilities relating to or arising out of the Excluded Assets; (d) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date; (e) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the Seller; (f) any recall, design defect or similar claims of any products manufactured or sold or any service performed by the Seller; (g) any Liabilities of the Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of the Seller; (h) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments; (i) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the Seller; (j) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, (ii) which constitute intercompany payables owing to Affiliates of the Seller, (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of business; (k) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, (ii) did not arise in the ordinary course of business, or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement; (l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person; (m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees; (n) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth in Section 2.03(b), to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing; (o) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or any other Person; and (p) any Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates to comply with any Law or Governmental Order.
Appears in 2 contracts
Sources: Asset Purchase Agreement (VOXX International Corp), Asset Purchase Agreement (VOXX International Corp)
Excluded Liabilities. The Notwithstanding the provisions of Section 2.3 or any other provision in this Agreement to the contrary, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller Sellers or any of its their Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller Sellers shall, and shall cause each of its their Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) any Liabilities of the any Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others, except as qualified by the definition of Transaction Expenses;
(b) any Liability for (i) Taxes of the any Seller (or any stockholder equityholder or Affiliate of the such Seller), (ii) including any Taxes relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, ; (iiiii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller Sellers pursuant to Section 6.14, ; or (iiiiv) any other Taxes of Seller the Sellers (or any stockholder or Affiliate of the SellerSellers) of any kind or description (including any Liability for Taxes of the any Seller (or any stockholder or Affiliate of the such Seller) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(c) any Liabilities to the extent relating to or arising out of the Excluded Assets;
(d) any Liabilities in respect of any pending or threatened (whether written or, to the extent Sellers have Knowledge (which for this purpose shall be actual knowledge, without any duty of inquiry), verbal) Action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date, except to the extent that such Action relates to counterclaims of a third party in an Action brought by Buyer or, if prior to the Closing Date, by Sellers, to collect Accounts Receivable included in the Purchased Assets (the “Excluded Actions”);
(e) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the Seller;
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed by the Seller;
(g) any Liabilities of the Seller Sellers arising under or in connection with any Seller Benefit Plan providing benefits to any present or former employee of the any Seller;
(hf) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller Sellers for any present or former employees, officers, directors, retirees, independent contractors or contractors, temporary employees, leased employees, interns, volunteers and/or consultants of the SellerBusiness, including, without limitation, any Liabilities associated with any claims for wages or other benefits, notice, bonuses, accrued deferred compensation, paid time off benefits including vacation, workers’ compensation, severance, retention, indemnification, termination or other paymentspayments and benefits, and any Liabilities associated with the layoff, termination of and/or reduction of hours of such individuals, but only, in each case for Continuing Employees, to the extent arising from or related to the period on or prior to Closing; for the avoidance of doubt, Excluded Liabilities shall include any Liabilities with respect to any individual who is not a Continuing Employee for the period both prior to, on and after Closing;
(ig) any Environmental Claimsenvironmental Actions, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the SellerSellers;
(j) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, (ii) which constitute intercompany payables owing to Affiliates of the Seller, (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of business;
(k) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, (ii) did not arise in the ordinary course of business, or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees;
(n) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (iih) except as set forth in Section 2.03(b2.3(f), to any Liabilities of the extent such Liabilities arise out of Sellers associated with intercompany payables owing in connection with any transaction, contract or relate to a breach by the Seller of such Contracts prior to Closingarrangement set forth on Schedule 4.21 or any loan or guarantee set forth on Schedule 4.21;
(oi) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or any other PersonSellers; and
(pj) any Liabilities arising out of, in respect of or in connection with the failure by the Seller Sellers or any of its their Affiliates to comply with any Law or Governmental Order.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Red Lion Hotels CORP)
Excluded Liabilities. The Notwithstanding the provisions of Section 2.03 or any other provision in this Agreement to the contrary, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) any Liabilities of the Seller or its Affiliates arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Ancillary Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any Liability for (i) Taxes of the Seller (or any stockholder or Affiliate of the Seller) including any Taxes its Affiliates relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, ; or (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, or (iii) any other Taxes of Seller (or any stockholder or Affiliate of the Seller) its Affiliates of any kind or description (including any Liability for Taxes of the Seller (or any stockholder or Affiliate of the Seller) its Affiliates that becomes become a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(c) any Liabilities relating to or arising out of the Excluded Assets;
(d) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date;
(e) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the SellerSeller or its Affiliates, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the Seller;
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed by the Seller;
(g) any Liabilities of the Seller arising under or in connection with any Benefit Plan benefit plan providing benefits to any present or former employee of Seller on or prior to the SellerClosing Date;
(hg) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, or any of its Affiliates, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other paymentspayments on or prior to the Closing Date;
(ih) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the SellerSeller or any of its Affiliates;
(ji) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, Seller’s financial statements; (ii) which constitute intercompany payables owing to Affiliates or equity owners of the Seller, ; (iii) which constitute debt, loans or credit facilities to financial institutions, ; or (iv) which did not arise in the ordinary course of business;
(kj) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, (ii) did not arise in the ordinary course of business, or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreementorders;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(mk) any Liabilities to indemnify, defend, reimburse or advance amounts to any present or former officer, director, manager, member, partner, stockholder, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees;
(nl) any Liabilities under the Excluded any Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth which do not conform to the representations and warranties with respect thereto contained in Section 2.03(b), this Agreement; or (iii) to the extent such Liabilities arise out of or relate to a breach by the Seller or its Affiliates of such Contracts prior to Closing;
(om) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or any other Personinstitutions; and
(pn) any Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates to comply with any Law or Governmental Order.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Lm Funding America, Inc.), Asset Purchase Agreement (Greenidge Generation Holdings Inc.)
Excluded Liabilities. The Buyer Notwithstanding anything in this Agreement to the contrary, Purchaser shall not assume assume, and shall be deemed not be responsible to payhave assumed, perform or discharge any Liabilities relating to the Business of Sellers or any Affiliate of Sellers except as expressly provided in Section 2.4 hereof or elsewhere in this Agreement, and Sellers and their Affiliates shall be solely and exclusively liable with respect to all such Liabilities, other than the Assumed Liabilities (collectively, the "Excluded Liabilities"), including without limitation, those Liabilities set forth below:
(a) all Liabilities in respect of any and all Products sold and/or services performed by Sellers before the Closing Date, including product liability claims;
(b) all Environmental Costs and Liabilities, to the extent arising out of or otherwise related to (i) the ownership or operation by Sellers of the Seller Business on or prior to the Closing Date, (ii) the manufacture by Sellers' or their Subsidiaries at any time of the Products set forth in Exhibit E and (iii) the Excluded Assets or any other real property presently or formerly owned, operated, leased or otherwise used by Seller;
(c) except to the extent specifically provided in Article IX, all Liabilities arising out of, relating to or with respect to (i) the employment or performance of services, or termination of employment or services by Sellers or any of its Affiliates of any kind individual before the Closing Date, (ii) workers' compensation claims against Sellers or nature whatsoever other than any of their Subsidiaries that relate to the Assumed Liabilities period before the Closing Date, irrespective of whether such claims are made prior to or after the Closing or (the “Excluded Liabilities”). The Seller shall, and shall cause each iii) any employee benefit plan of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:Sellers or their Affiliates;
(ad) any all Liabilities of the Seller arising out of, under or incurred in connection with the negotiationContracts that are not Purchased Contracts and, preparationwith respect to Purchased Contracts, investigation Liabilities in respect of a breach by or default of Sellers accruing under such Contracts with respect to any period prior to Closing and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and othersall Cure Amounts;
(be) all Liabilities arising out of, under or in connection with any Liability Indebtedness of Sellers or any of their Subsidiaries;
(f) all Liabilities for (i) Sellers' portion of the Transfer Taxes pursuant to Section 12.1, (ii) Taxes of the Seller Sellers that are not Assumed Liabilities, (or any stockholder or Affiliate of the Selleriii) including any Taxes relating that relate to the Business, the Purchased Assets or the Assumed Liabilities for taxable periods (or portions thereof) ending before the Closing Date, including any Pre-Closing Tax Period, (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller allocated to Sellers pursuant to Section 6.1412.2, and (iv) payments under any Tax allocation, sharing or similar agreement (iiiwhether oral or written) any Taxes of Seller (with respect to which Sellers or any stockholder or Affiliate of the Seller) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder or Affiliate of the Seller) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law)Affiliates are liable;
(cg) any Liabilities relating to or arising out of the Excluded Assets;
(d) any all Liabilities in respect of any pending or threatened Action Legal Proceeding, or any claim arising out of, relating to or otherwise in respect of (i) the operation of the Business or the Purchased Assets to the extent such Action Legal Proceeding or claim relates to such operation on or prior to the Closing Date;
, or (eii) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the Seller;
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed by the Seller;
(g) any Liabilities of the Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of the Seller;Excluded Asset; and
(h) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any all Liabilities of the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;
(i) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior amounts required to the Closing or otherwise to the extent arising out of any actions or omissions of the Seller;
(j) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, (ii) which constitute intercompany payables owing to Affiliates of the Seller, (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of business;
(k) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued be paid by the Business’ customers to the Seller on or before the Closing, (ii) did not arise in the ordinary course of business, or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees;
(n) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth in Section 2.03(b), to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing;
(o) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or any other Person; and
(p) any Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates to comply with any Law or Governmental OrderSellers hereunder.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Aaipharma Inc), Asset Purchase Agreement (Xanodyne Pharmaceuticals Inc)
Excluded Liabilities. The Notwithstanding the provisions of Section 2.03 or any other provision in this Agreement to the contrary, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) any Liabilities of the Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Ancillary Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any Liability for (i) Taxes of the Seller (or any stockholder or Affiliate of the Seller) including any Taxes or relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, ; (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, ; or (iii) any other Taxes of Seller (or any stockholder or Affiliate of the Seller) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder or Affiliate of the Seller) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(c) any Liabilities relating to or arising out of the Excluded Assets;
(d) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date;
(e) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the Seller;
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed by the Seller;
(g) any Liabilities of the Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of the Seller;
(h) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;
(i) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the Seller;
(j) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, ; (ii) which constitute intercompany payables owing to Affiliates of the Seller, ; (iii) which constitute debt, loans or credit facilities to financial institutions, ; or (iv) which did not arise in the ordinary course of business;
(k) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, ; (ii) did not arise in the ordinary course of business, ; or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees;
(nm) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth which do not conform to the representations and warranties with respect thereto contained in Section 2.03(b), this Agreement; or (iii) to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing;
(on) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or any other Personinstitutions; and
(po) any Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates to comply with any Law or Governmental Order.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Singing Machine Co Inc), Asset Purchase Agreement (Crown Electrokinetics Corp.)
Excluded Liabilities. The Buyer Buyers shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller Sellers or any of its their Affiliates (other than the Buyer Group) of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller Sellers shall, and shall cause each of its their Affiliates (other than the Buyer Group) to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) any Liabilities of the Seller Group arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any Liability Liabilities for (i) Taxes of or imposed on the Seller Sellers (or any stockholder or Affiliate of the SellerSellers) including any (other than the Buyer Group), (ii) Taxes relating to the 17173 Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, ; or (iiiii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, or (iii) any Taxes of Seller (or any stockholder or Affiliate of the Seller) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder or Affiliate of the Seller) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law)6.11;
(c) any Liabilities relating to any present or arising out former employee, agent or independent contractor of the Excluded Assets;
(d) any Liabilities in respect of any pending Seller Group Companies, whether or threatened Action arising out ofnot such relevant employees, relating to agents or otherwise in respect of independent contractors are hired by the operation of the Business or the Purchased Assets Buyer Group, to the extent such Action relates Liabilities relate to such operation on the matters or events prior to the Closing Date;
(e) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representationDecember 31, warranty, agreement or guaranty made by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the Seller;
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed by the Seller;
(g) any Liabilities of the Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of the Seller;
(h) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller2011, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, any unpaid Social Insurance, workers’ compensation, severance, retention, termination or other payments, and all Liabilities in connection with the termination of the employment of any present or former employee, agent or independent contractors of the Seller Group Companies, whether through the Employment Dispatch Agency or not; except for the Severance Credit Liabilities as described in Section 6.04(b) hereof, which Liabilities shall be assumed, performed and discharged by applicable Buyer Group Companies;
(id) any Environmental Claims, or Liabilities under Environmental Lawsthe Excluded Contracts;
(e) any Liabilities relating to or arising out of the Excluded Assets;
(f) all payables of the Seller Group arising under the Assigned Contracts with respect to periods on or prior to December 31, 2011;
(g) except as otherwise provided in Section 2.03, any Liabilities arising from the ownership and use of the Purchased Assets or the operation of the 17173 Business (including without limitation, those arising under the Assigned Contracts) on or prior to December 31, 2011 (whether or not claims are made on or before or after December 31, 2011), including without limitation, any Liabilities owed to any Governmental Authorities, any Liabilities relating to intellectual property infringement, any Liabilities arising out of or resulting from the extent Seller Group’s compliance or non-compliance with any applicable Laws or Governmental Order, any Liabilities arising out of Actions pending as of December 31, 2011 or commenced after December 31, 2011 and arising out of or relating to facts, circumstances any condition existing or conditions existing event happening on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the Seller;December 31, 2011; and
(j) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, (ii) which constitute intercompany payables owing to Affiliates of the Seller, (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of business;
(kh) any Liabilities of the Business relating Seller Group associated with the current or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part former shareholders of the Purchased Assets issued by the Business’ customers to Seller Group in their capacity as shareholders, and any obligations of the Seller on or before the Closing, (ii) did not arise in the ordinary course of business, or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities Group to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent Representatives of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 Group in their capacity as the Seller Indemnitees;
(n) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth in Section 2.03(b), to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing;
(o) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or any other Person; and
(p) any Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates to comply with any Law or Governmental OrderRepresentatives.
Appears in 2 contracts
Sources: Master Transaction Agreement (Changyou.com LTD), Master Transaction Agreement (Sohu Com Inc)
Excluded Liabilities. The Notwithstanding the provisions of Section 2.03 or any other provision in this Agreement to the contrary, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) any Liabilities of the Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Ancillary Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any Liability for (i) Taxes of the Seller (or any stockholder shareholder or Affiliate of the Seller) including any Taxes or relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, ; (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, 6.13; or (iii) any other Taxes of Seller (or any stockholder shareholder or Affiliate of the Seller) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder shareholder or Affiliate of the Seller) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(c) any Liabilities relating to or arising out of the Excluded Assets;
(d) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date;
(e) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the Seller;
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed by the Seller;
(g) any Liabilities of the Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of the Seller;
(h) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;
(i) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the Seller;
(j) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, (ii) which constitute intercompany payables owing to Affiliates of the Seller, ; (iiiii) which constitute debt, loans or credit facilities to financial institutions, ; or (iviii) which did not arise in the ordinary course of business;
(k) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, ; (ii) did not arise in the ordinary course of business, ; or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees;
(nm) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth which do not conform to the representations and warranties with respect thereto contained in Section 2.03(b), this Agreement; or (iii) to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing;
(on) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or institutions;
(o) any other PersonLiability under the WARN Act; and
(p) any Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates to comply with any Law or Governmental Order.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Seneca Foods Corp), Asset Purchase Agreement (Paradise Inc)
Excluded Liabilities. The Notwithstanding the provisions of Section 1.3 or any other provision in this Agreement to the contrary, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) except as expressly set forth in Section 1.6, any Liabilities of the Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers advisors and others;
(b) any Liability for (i) Taxes of the Seller (or any stockholder equityholder or Affiliate of the Seller) including any Taxes or relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-taxable period (or any portion thereof) ending on or prior to the Closing Tax Period, Date; (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, 5.4; or (iii) any other Taxes of Seller (or any stockholder equityholder or Affiliate of the Seller) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder equityholder or Affiliate of the Seller) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(c) any Liabilities relating to or arising out of the Excluded Assets;
(d) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date;
(e) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the Seller;
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed by the Seller;
(g) any Liabilities of the Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of the Seller;; 4927-8231-4036.16
(h) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;
(i) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the Seller;
(j) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, (ii) which constitute intercompany payables owing to Affiliates of the Seller, ; (iiiii) which constitute debt, loans or credit facilities to financial institutions, ; or (iviii) which did not arise in the ordinary course of business;
(kj) any Liabilities of the Business relating to or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, ; (ii) did not arise in the ordinary course of business, ; or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(mk) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees;
(nl) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth which do not conform to the representations and warranties with respect thereto contained in Section 2.03(b), this Agreement; or (iii) to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing;
(om) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or any other Personinstitutions; and
(pn) any Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates to comply with any Law or Governmental Order.
Appears in 1 contract
Excluded Liabilities. The Notwithstanding the provisions of Section 2.03 or any other provision in this Agreement to the contrary, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the any Seller or any of its their respective Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Each Seller shall, and shall cause each of its respective Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, include the following:
(a) any Liabilities of any Seller for trade accounts payable to third parties in connection with the Business, including intercompany payables owing to Affiliates of any Seller;
(b) any Liabilities of any Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Ancillary Documents and the transactions contemplated hereby and thereby, including, without limitation, including fees and expenses of counsel, accountants, consultants, advisers and others;
(bc) any Liability for (i) Taxes of the any Seller (or any stockholder member or Affiliate of the any Seller); (ii) including any Taxes relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, Period (iiwith the amount of Taxes with respect to the Straddle Period allocated to a Pre-Closing Tax Period determined pursuant to Section 6.12); (iii) Taxes of the Seller that arise out of the consummation sale of the transactions Purchased Assets contemplated hereby or that are the responsibility of the any Seller pursuant to Section 6.14, or 6.12; (iiiiv) any other Taxes of any Seller (or any stockholder member or Affiliate of the any Seller) of any kind or description (including any Liability for Taxes of the any Seller (or any stockholder member or Affiliate of the any Seller) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract Contract or Law); (v) any Transfer Taxes and related costs, if any, for which the Seller Parties are responsible pursuant to Section 6.12(a); and (vi) any penalties for late filings or failure to file any Seller Tax Returns;
(cd) any Liabilities relating to or arising out of the Excluded Assets;
(de) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date;
(ef) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the any Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the any Seller;
(fg) any recall, design defect or similar claims of any products manufactured or sold or any service performed by the Seller;
(g) any Liabilities of the Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of the Seller;
(h) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities Liability of the any Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the any Seller, including, without limitation, including any Liabilities Liability associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;
(i) any Environmental ClaimsClaim, or Liabilities any Liability under any Environmental LawsLaw, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the any Seller;
(j) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, (ii) which constitute intercompany payables owing to Affiliates of the Seller, (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of business;
(k) any Liabilities Liability of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do does not constitute part of the Purchased Assets issued by the Business’ customers to the any Seller on or before the Closing, ; (ii) did not arise in the ordinary course of business, ; or (iii) are is not validly and effectively assigned to the Buyer pursuant to this Agreement;
(lk) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities Liability to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the any Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees;
(nl) any Liabilities Liability under the any Excluded Contracts Contract or any other Contracts, including Intellectual Property Agreements, Contract (i) which are is not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth in Section 2.03(b), to the extent any such Liabilities arise Liability arises out of or relate relates to a breach by the any Seller of such Contracts prior to Closing;
(om) any Liabilities Liability associated with debt, preferred securities, loans or credit facilities of the any Seller and/or the Business owing to financial institutions or any other Personlenders or third parties; and
(pn) any Liabilities Liability arising out of, in respect of or in connection with the failure by the any Seller or any of its their respective Affiliates to comply with any Law or Governmental Order.
Appears in 1 contract
Sources: Asset Purchase Agreement (Target Hospitality Corp.)
Excluded Liabilities. The Notwithstanding the provisions of Section 2.3 or any other provision in this Agreement to the contrary, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) any Liabilities of the Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any Liability for (i) Taxes of the Seller (or any stockholder or Affiliate of the Seller) including any Taxes or relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax PaymentTax Period, ; (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are other than sales tax on the responsibility of the Seller pursuant to Section 6.14Purchased Assets, if any; or (iii) any other Taxes of Seller (or any stockholder or Affiliate of the Seller) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder or Affiliate of the Seller) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(c) any Liabilities relating to the ongoing nature of Seller’s business:
(d) any Liabilities relating to or arising out of the Excluded Assets;
(de) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date;
(ef) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the Seller;
(fg) any recall, design defect or similar claims of any products manufactured or sold or any service performed by the Seller;
(gh) any Liabilities of the Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of the Seller;
(hi) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller for any present or former employeesEmployees, officers, directors, retirees, agents or independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ ' compensation, severance, retention, termination or other payments;
(ij) any Environmental environmental Claims, or Liabilities under Environmental Lawsenvironmental laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing Date or otherwise to the extent arising out of any actions or omissions of the Seller;
(jk) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, (ii) which constitute intercompany payables owing to Affiliates of the Seller, (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of business;
(k) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, (ii) did not arise in the ordinary course of business, or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any PersonBusiness;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 8.3 as the Seller Indemnitees;
(n) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property AgreementsLicenses, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth which do not conform to the representations and warranties with respect thereto contained in Section 2.03(b), this Agreement; or (iii) to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closingthe Closing Date;
(o) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or any other Personinstitutions; and
(p) any Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates to comply with any Law or Governmental Order.
Appears in 1 contract
Excluded Liabilities. The Notwithstanding the provisions of Section 2.03 or any other provision in this Agreement to the contrary, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller Selling Parties or any of its their Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) any Liabilities of the Seller Selling Parties arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, including fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any Liability for (i) Taxes of the Seller (or any stockholder Member or Affiliate of the Seller) including any Taxes or relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, ; (ii) Taxes of the Seller (or any Member or Affiliate of Seller) of that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, by this Agreement; or (iii) any other Taxes of Seller (or any stockholder Member or Affiliate of the Seller) of any kind or description (including any Liability for Taxes of the Seller as a transferee or successor pursuant to Treasury Regulation Section 1.1502-6 (or any stockholder similar provision of state, local or Affiliate of the Seller) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Lawforeign law);
(c) any Liabilities relating to or arising out of the Excluded Assets;
(d) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets Assets, to the extent such Action relates to such operation on or prior to the Closing or the Closing Date;
(e) any product Liability liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold by Seller or any service performed by the Seller;
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed by the Seller;
(g) any Liabilities of the Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of the Seller;
(h) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, including, without limitation, including any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments, arising with respect to time periods prior to the Closing Date, even if such claim is not filed until on or after the Closing Date;
(i) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the Seller;
(j) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, (ii) which constitute intercompany payables owing to Affiliates of the Seller, (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of businessAccounts Payable;
(k) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ ’s customers to the Seller on or before the Closing, Closing because: (iii) the Liabilities did not arise in the ordinary course of businessthe Business, or (iiiii) the Liabilities are not validly and effectively assigned to the Buyer pursuant to this Agreement;.
(l) any Liabilities related to arising on or arising out of any dispute or claim by or among before the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities Closing to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to (i) any breach of fiduciary obligations by same, and (ii) any acquisition agreements to which Seller or any of its Affiliates is a party), except for indemnification of same pursuant to Section 8.03 Section 7.03 as the Seller Indemnitees;
(m) any Liabilities under the Excluded Contracts; and
(n) any Liabilities under associated with any subscription agreement or the Excluded Contracts or Indebtedness of any other ContractsSelling Party, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth in Section 2.03(b), to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing;
(o) any Liabilities associated with any warrants, debt, preferred securitiesloans, loans notes, credit facilities, or credit facilities acquisition agreements of the Seller and/or the Business owing to financial institutions institutions, creditors, or any shareholders, partners, members, or other Person; and
(p) any Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates equity holders party to comply with any Law or Governmental Ordersuch acquisition agreements.
Appears in 1 contract
Excluded Liabilities. The Notwithstanding the provisions of Section 2.02 or any other provision in this Agreement to the contrary, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “"Excluded Liabilities”"). The Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) any Liabilities of the Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any Liability for (i) Taxes of the Seller (or any stockholder or Affiliate of the Seller) including any Taxes or relating to the BusinessSeller, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, ; (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, 6.11; or (iii) any other Taxes of Seller (or any stockholder or Affiliate of the Seller) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder or Affiliate of the Seller) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(c) any Liabilities relating to or arising out of the Excluded Assets;
(d) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business Seller’s business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date;
(ed) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the Seller;
(fe) any recall, design defect or similar claims of any products manufactured or sold or any service performed by the Seller;
(gf) any Liabilities of the Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of the Seller;
(h) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller for any present or former employees, officers, directors, retirees, agents or independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ ' compensation, severance, retention, termination or other payments;
(i) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the Seller;
(jg) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, (ii) which constitute intercompany payables owing to Affiliates of the Seller, ; (iiiii) which constitute debt, loans or credit facilities to financial institutions, ; or (iviii) which did not arise in the ordinary course of business;
(kh) any Liabilities of the Business Seller relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ Seller’s customers to the Seller on or before the Closing, ; (ii) did not arise in the ordinary course of business, ; or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(mi) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees;
(nj) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, Contracts (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth which do not conform to the representations and warranties with respect thereto contained in Section 2.03(b), this Agreement; or (iii) to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing;
(ok) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or any other Personinstitutions; and
(pl) any Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates to comply with any Law or Governmental Order.
Appears in 1 contract
Sources: Asset Purchase Agreement (Empowered Products, Inc.)
Excluded Liabilities. The Except as provided in Section 3.2 and notwithstanding anything else to the contrary contained herein, the Sellers shall retain, and Buyer shall is not assume assuming and shall not be responsible to pay, perform or discharge liable for any Liabilities of the Seller Sellers or any of its other Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) any Liabilities of the Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any Liability for (i) Taxes of the Seller (or any stockholder or Affiliate of the Seller) including any Taxes relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, or (iii) any Taxes of Seller (or any stockholder or Affiliate of the Seller) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder or Affiliate of the Seller) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(c) any Liabilities relating to or arising out of the Excluded Assets;
(d) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date;
(e) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the Seller;
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed by the Seller;
(g) any Liabilities of the Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of the Seller;
(h) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the SellerSellers, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;
(i) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the Seller;
(j) any trade accounts payable of the Seller (i) to the extent Contracts which shall not accounted for on the Interim Balance Sheet, (ii) which constitute intercompany payables owing to Affiliates of the Seller, (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of business;
(k) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, (ii) did not arise in the ordinary course of business, or (iii) are not validly and effectively have been assigned to the Buyer pursuant to this Agreement;
Agreement (lincluding, but not limited to, any union agreements); (ii) for indebtedness for borrowed money; (iii) by reason of or arising as the result of any Liabilities related default or breach by Sellers of any Contract, for any penalty assessed against Sellers under any Contract or relating to or arising out of any dispute event which with the passage of time or claim by or among the Seller, any stockholder after giving of the Sellernotice, or any officer both, would constitute or director of the Sellergive rise to such a breach, including but default or penalty, whether or not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees;
(n) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively such Contract is being assigned to the and assumed by Buyer pursuant to this Agreement; (iv) the existence of which would conflict with or constitute a breach of any representation, warranty, covenant or agreement of Sellers contained herein; (iiv) except as set forth in Section 2.03(bto any shareholder or any ERISA Affiliate of Sellers, to any present or former employee, officer or director of or consultant to Sellers or their Affiliates (or independent contractor retained by Seller), or to any Employee Benefit Plan sponsored or maintained by Sellers or any ERISA Affiliate, including, without limitation, any bonuses, vacation or sick pay, any termination or severance pay related to Sellers or Sellers' Affiliates' employees, and any post retirement medical benefits or other compensation or benefits; (vi) relating to the extent such Liabilities arise execution, delivery and consummation of this Agreement and the transactions contemplated hereby, including, without limitation, any and all Taxes incurred as a result of the sale contemplated by this Agreement; (vii) for any Taxes of the Sellers including federal, state or local taxes imposed as a result of being or having been a member of a group filing a combined, consolidated or affiliated return); (viii) relating to or arising out of or relate to a breach by the Seller any environmental matter, including, without limitation, any violation of such Contracts prior to Closing;
(o) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions environmental law or any other Personlaw relating to health and safety of the public or the employees of Sellers or Sellers' Affiliates; and
(pix) any Liabilities relating to, or arising out of, in respect services rendered by Sellers or Sellers' Affiliates, or the conduct or operation of the business of Sellers or in connection with Sellers' Affiliates, prior to the failure by Closing Date; or (x) relating to the Seller or any of its Affiliates to comply with any Law or Governmental OrderExcluded Assets (collectively, the "Excluded Liabilities").
Appears in 1 contract
Sources: Asset Purchase Agreement (Commerce Energy Group Inc)
Excluded Liabilities. The Notwithstanding the provisions of Section 3.1 or any other provision in this Agreement to the contrary, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) 3.2.1. any Liabilities of the Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, including fees and expenses of counsel, accountants, consultants, advisers advisors and others;
(b) 3.2.2. any Liability for (ia) Taxes of the Seller (or any stockholder or Affiliate of the Seller) including any Taxes or relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, ; (iib) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, 8.3 (Taxes) of this Agreement; or (iiic) any other Taxes of Seller (or any stockholder or Affiliate of the Seller) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder or Affiliate of the Seller) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);Law relating to the period prior to the Closing Date.
(c) 3.2.3. any Liabilities relating to or arising out of the Excluded Assets;
(d) 3.2.4. any Liabilities Liabilities, including in respect of any pending or threatened Action Action, arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date;
(e) 3.2.5. any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by Seller to the Sellerextent such Liability or claims relates to the Business on or prior to the Closing Date;
(f) 3.2.6. any recall, design defect or similar claims of any products manufactured or sold or any service performed by Seller to the Sellerextent related to the Business on or prior to the Closing Date;
(g) any Liabilities of the Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of the Seller;
(h) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;
(i) 3.2.7. any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the Seller;
(j) 3.2.8. any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, (ii) which constitute intercompany payables owing to Affiliates of the Seller, (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in other than the ordinary course of businessAssumed Liabilities;
(k) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, (ii) did not arise in the ordinary course of business, or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees;
(n) 3.2.9. any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (ia) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth in Section 2.03(b), to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing;
(o) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or any other Person; and
(p) any Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates to comply with any Law or Governmental Order.
Appears in 1 contract
Sources: Asset Purchase Agreement (Scott's Liquid Gold - Inc.)
Excluded Liabilities. The Buyer Purchaser and the Designated Purchaser(s) (if any) shall not assume and shall not be responsible deemed to have assumed, nor shall be obligated to pay, perform or otherwise discharge or in any other manner be liable or responsible for any Liabilities of of, or Action against, Sellers or relating to the Seller or any of its Affiliates Acquired Assets, of any kind or nature whatsoever whatsoever, whether absolute, accrued, contingent or otherwise, liquidated or unliquidated, due or to become due, known or unknown, currently existing or hereafter arising, matured or unmatured, direct or indirect, and however arising, whether existing prior to or on the Closing Date or arising thereafter as a result of any act, omission, or circumstances taking place prior to the Closing, other than the Assumed Liabilities, and Sellers shall be solely and exclusively liable for any and all such Liabilities, including those Liabilities set forth below (collectively, the “Excluded Liabilities”). The Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:):
(a) except to the extent of any Liabilities of the Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any Liability for (i) Taxes of the Seller (or any stockholder or Affiliate of the Seller) including any Taxes relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller expressly assumed pursuant to Section 6.141.3, or (iii) any Taxes of Seller (or any stockholder or Affiliate of the Seller) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder or Affiliate of the Seller) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(c) any all Liabilities relating to or arising out of the Excluded Assets;
(d) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the Acquired Assets or the operation of the Business or the Purchased Assets to the extent such Action relates to such operation business of Sellers arising on or prior to the Closing DateClosing;
(b) all Liabilities to the extent relating to or otherwise arising, whether before, on or after the Closing, out of, or in connection with, any of the Excluded Assets;
(c) except to the extent of any Liabilities expressly assumed pursuant to Sections 1.3(d)(v), 1.3(g), and 1.3(i) and without prejudice to Section 6.3, any and all Liabilities in respect of the Excluded Contracts and any other Contracts to which any Seller is party or is otherwise bound that are not Assigned Contracts;
(d) except to the extent of any Liabilities expressly assumed pursuant to Sections 1.3(d) or 1.3(h), any and all Liabilities of Sellers for Indebtedness;
(e) all Liabilities arising from or related to any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representationAction (whether civil, warrantycriminal, agreement or guaranty made by the Selleradministrative, investigative, or by reason informal) against the Company or any of its Subsidiaries (including, for the avoidance of doubt, any Action related to fraud, breach of fiduciary duty, misfeasance or under any other theory relating to conduct, performance or non-performance of the improper performance Company or malfunctioning any of a productits Subsidiaries, improper design or manufactureany of their respective directors, officers, or employees), or related to the Acquired Assets or the Assumed Liabilities, pending or threatened or having any other status or with respect to facts, actions, omissions, circumstances or conditions existing, occurring or accruing prior to the Closing Date (including any breach, default, failure to adequately packageperform, label torts related to performance, violations of Law, infringements or warn indemnities, guaranties and overcharges, underpayments or penalties, whether in respect of hazards any Contract, agreement, arrangement, promise or understanding of any kind), including any successor liability claims or that may be owed to or assessed by, any Governmental Body or other related product defects of any products at any time manufactured Person, and whether commenced, filed, initiated, or sold threatened prior to, on or any service performed by following the SellerClosing;
(f) any recall, design defect or similar claims except to the extent of any products manufactured Liabilities expressly assumed pursuant to Section 1.3(g) and without prejudice to Sections 10.2, 6.3 or sold 1.3(b), all costs and expenses incurred or any service performed to be incurred by Sellers in connection with the Sellerdrafting, preparation, negotiation, diligence, execution, and performance of this Agreement and the consummation of the transactions contemplated hereby;
(g) except to the extent of any Liabilities of the Seller arising under expressly assumed pursuant to Sections 1.3(d), 1.3(f), or in connection with any Benefit Plan providing benefits 1.3(g) and without prejudice to Section 6.3, all Liabilities related to any present current or former employee of the SellerCompany or of any Subsidiary of the Company (other than all Liabilities related to the Transferred Employees arising on or after the date such applicable Employee becomes a Transferred Employee, including under the WARN Act);
(h) subject all Liabilities for any Taxes (including Taxes payable by reason of contract, assumption, transferee or successor Liability, operation of Law, pursuant to Treasury Regulations Section 6.24 1.1502-6 (or any similar provision of any state or local law) or otherwise: (i) arising or relating to any Pre-Closing Tax Period (including any Straddle Period Taxes), (ii) owed by any of Sellers (whether or not relating to a Pre-Closing Tax Period), including pursuant to any Tax sharing, Tax indemnity or similar agreement or arrangement to which any Seller (or any Affiliate thereof) is obligated under or a party to, (iii) arising in connection with regard the consummation of the transactions contemplated by this Agreement, and (iv) Taxes arising from or in connection with an Excluded Asset), in each case, other than to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other paymentsextent such Tax is an Assumed Tax;
(i) except to the extent of any Environmental ClaimsLiabilities expressly assumed pursuant to Sections 1.3(d) or 1.3(f) and without prejudice to Section 6.3, all Liabilities arising out of, relating to, or with respect to any and all Employees and contractors of the Company or any of its Subsidiaries arising at any time on or prior to the Closing;
(j) except to the extent of any Liabilities expressly assumed pursuant to Section 1.3(f) and without prejudice to Sections 1.5 or 6.3, all Liabilities of Sellers arising out of any Contract, agreement, Permit, franchise or claim that is not transferred to Purchaser as part of the Acquired Assets or, is not transferred to Purchaser because of any failure to obtain any Consent or Governmental Authorization required for such transfer;
(k) subject to Section 1.3(j), all Liabilities of Sellers arising under or pursuant to Environmental Laws, including with respect to any real property owned, operated, leased or otherwise used by Sellers, whether or not used in the Ordinary Course, including any Liabilities for noncompliance with Environmental Laws or the Release of Hazardous Substances, to the extent arising out as a result of any act, omission, or relating to facts, circumstances or conditions existing taking place on or prior to the Closing Closing, whether known or otherwise to the extent arising out of any actions or omissions unknown as of the Seller;
(j) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, (ii) which constitute intercompany payables owing to Affiliates of the Seller, (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of business;
(k) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, (ii) did not arise in the ordinary course of business, or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to drafts or arising out of any dispute or claim by or among the Seller, any stockholder checks outstanding as of the Seller, or any officer or director of Closing (except to the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;extent expressly stated as an Assumed Liability in Section 1.3(d)); and
(m) all Liabilities set forth on Schedule 1.4(m). Purchaser hereby acknowledges and agrees that no Liability of any Non-Debtor Subsidiary shall be an Excluded Liability and that all Liabilities to indemnify, reimburse or advance amounts to of any present or former officer, director, employee or agent Non-Debtor Subsidiary as of the Seller (including with respect Closing shall continue to any breach be the Liabilities of fiduciary obligations by same)such Non-Debtor Subsidiary following the Closing; provided, except for indemnification and notwithstanding the foregoing provisions of same pursuant to Section 8.03 as the Seller Indemnitees;
(n) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned this sentence to the Buyer pursuant to this Agreement; or contrary, Sellers hereby acknowledge and agree that any Liability of an Excluded Subsidiary (iiother than Sellers) except as set forth in Section 2.03(b)shall, to at and following the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing;
(o) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or any other Person; and
(p) any Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates to comply with any Law or Governmental Ordernot be an Assumed Liability.
Appears in 1 contract
Sources: Asset Purchase Agreement (Akorn Inc)
Excluded Liabilities. The Other than the Assumed Liabilities set forth in Section 2.03, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) any Liabilities of the Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any Liability for (i) Taxes of the Seller (or any stockholder or Affiliate of the Seller) including any Taxes or relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, ; (ii) Taxes the portion of the Seller Taxes that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, ; or (iii) any other Taxes of Seller (or any stockholder or Affiliate of the Seller) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder or Affiliate of the Seller) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law)) for any Pre-Closing Tax Period;
(c) any Liabilities relating to or arising out of the Excluded Assets;
(d) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date;
(e) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the Seller;
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed by the Seller;
(g) any Liabilities of the Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of the SellerSeller except as set forth specifically as Assumed Liabilities;
(h) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ ' compensation, severance, retention, termination or other paymentspayments except as set forth specifically as Assumed Liabilities;
(i) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the Seller;
(j) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, (ii) which constitute intercompany payables owing to Affiliates of the Seller, (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of business;
(k) any Liabilities of the Business relating or arising from unfulfilled customer commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ ' customers to the Seller on or before the Closing, ; or (ii) did not arise in the ordinary course of business, or (iii) are not validly and effectively assigned to the Buyer pursuant to this AgreementAgreement on or after the Closing;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(mk) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees;
(nl) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, ,; or (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth in Section 2.03(b), to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing;
(om) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or any other Personexcept as set forth on Section 2.03(b) and 2.03(c) above; and
(pn) any Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates to comply with any Law or Governmental Order.
Appears in 1 contract
Excluded Liabilities. The Notwithstanding the provisions of Section 2.03 or any other provision in this Agreement to the contrary, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) any Liabilities of the Seller or Parent arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any Liability for (i) Taxes of the Seller (or any stockholder or Affiliate of the Seller) including any Taxes or relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax PeriodPeriod (including, without limitation, any sales or other Taxes relating to the sale of event tickets by Seller prior to Closing and any Liability to make and pay over to the proper Governmental Authorities, or arising out of any failure to make and pay over to the appropriate Governmental Authorities, any withholdings or other Taxes relating to any employees or independent contractors of, or other service providers to, Seller or any of its Affiliates); (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, or 6.08; (iii) any other Taxes of Seller (or any stockholder or Affiliate of the Seller) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder or Affiliate of the Seller) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law); or Taxes which may be required to be collected by Seller and/or remitted by Seller to any Governmental Authority;
(c) any Liabilities relating to or arising out of the Excluded Assets;
(d) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of Seller, or the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date;
(e) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the Seller;
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed by the Seller;
(g) any Liabilities of the Seller arising under or in connection with any Employee Benefit Plan providing benefits to any present or former employee of the Seller;
(hg) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, including, without limitation, (i) any Liabilities associated with any claims for wages (including claims arising out of minimum wage and overtime Laws) or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;
, and (iii) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions termination of any employees of Seller in connection with the consummation of the Sellertransactions contemplated by this Agreement;
(jh) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, in Final Closing Capital; (ii) which constitute intercompany payables owing from Seller to Affiliates Parent or any of the Seller, ’s other direct or indirect parent companies or other Affiliates; (iii) which constitute debt, loans or credit facilities to financial institutions, ; or (iv) which did not arise in the ordinary course of business;
(ki) any Liabilities of the Business Seller relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, ; (ii) did not arise in the ordinary course of business, ; or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(mj) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees;
(nk) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) any Contracts which do not constitute Assigned Contracts under Section 2.01(c) above, (ii) any Assigned Contracts which are not validly and effectively assigned to the Buyer pursuant to this Agreement; (iii) any Assigned Contracts which do not conform to the representations and warranties with respect thereto contained in this Agreement; or (iiiv) except as set forth in Section 2.03(b), under any Assigned Contracts to the extent such Liabilities arise out of or relate to a breach by the Seller of any such Contracts prior to Closing;
(ol) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or any other Personinstitutions; and
(pm) any Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates to comply with any Law or Governmental Order.
Appears in 1 contract
Excluded Liabilities. The Notwithstanding the provisions of Section 1.02 or any other provision in this Agreement to the contrary, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities liabilities of the Seller or any of its Affiliates affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller shall, and shall cause each of its Affiliates affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) any Liabilities liabilities of the Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents transaction documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any Liability liability for (i) Taxes federal, state, local, property and other taxes (“Taxes”) of the Seller (or any stockholder the Shareholders) or Affiliate of the Seller) including any Taxes relating to the Business, the Purchased Assets or the Assumed Liabilities for any Prepre-Closing Tax Period, tax period; (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, 5.08; or (iii) any other Taxes of Seller (or any stockholder or Affiliate of the SellerShareholders) of any kind or description (including any Liability liability for Taxes of the Seller (or any stockholder or Affiliate of the SellerShareholders) that becomes a Liability liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Lawlaw);
(c) any Liabilities liabilities relating to or arising out of the Excluded Assets;
(d) any Liabilities liabilities in respect of any pending or threatened Action claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena or investigation of any nature, civil, criminal, administrative, regulatory or otherwise, whether at law or in equity (“Action”) arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date;
(e) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the SellerEnvironmental Claims (as hereinafter defined), or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the Seller;
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed by the Seller;
(g) any Liabilities of the Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of the Seller;
(h) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;
(i) any Environmental Claims, or Liabilities liabilities under Environmental LawsLaws (as hereinafter defined), to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the Seller;
(jf) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, ; (ii) which constitute intercompany payables owing to Affiliates of the Seller, Shareholders; (iii) which constitute debt, loans or credit facilities to financial institutions, ; or (iv) which did not arise in the ordinary course of business;
(kg) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, (ii) did not arise in the ordinary course of business, or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees;
(n) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth in Section 2.03(b), to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing;
(o) any Liabilities liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or any other Personinstitutions; and
(ph) any Liabilities liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates affiliates to comply with any Law law or Governmental Ordergovernmental order
(i) any liabilities arising out of, in respect of or in connection with (x) the Stipulation of Settlement, dated on or around July 28, 2018, from the matter A▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇. v. T & L Creative Salads, Inc., Index N▇. ▇▇▇▇▇▇/▇▇, ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Supreme Court, (y) the Stipulation of Settlement, dated on or around July 28, 2018, from the matter A▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇. v. T & L Creative Salads, Inc., Index No. 620516/17, in the Nassau County Supreme Court, (z) any (i) release of legal claims or (ii) addendum, in each case, with respect to one or both of the aforementioned stipulations set forth in subsections (x) and (y) hereof.
Appears in 1 contract
Sources: Asset Purchase Agreement (MamaMancini's Holdings, Inc.)
Excluded Liabilities. The Notwithstanding the provisions of Section 2.03 or any other provision in this Agreement to the contrary, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) any Liabilities of the Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any Liability for (i) Taxes of the Seller (or any stockholder equityholder or any Affiliate of the Seller) including any Taxes or relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, ; (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, 6.15; or (iii) any other Taxes of Seller (or any stockholder equityholder or any Affiliate of the Seller) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder equityholder or any Affiliate of the Seller) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(c) any Liabilities relating to or arising out of the Excluded Assets;
(d) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date;
(e) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the Seller;
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed by the Seller;
(g) any Liabilities of the Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of the Seller;
(hf) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;
(i) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the Seller;
(jg) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, ; (ii) which constitute intercompany payables owing to Affiliates of the Seller, ; (iii) which constitute debt, loans or credit facilities to financial institutions, ; or (iv) which did not arise in the ordinary course of business;
(k) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, (ii) did not arise in the ordinary course of business, or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(mh) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees;
(ni) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property AgreementsLicenses, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth which do not conform to the representations and warranties with respect thereto contained in Section 2.03(b), this Agreement; or (iii) to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing;
(oj) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or any other Personinstitutions; and
(pk) any Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates to comply with any Law or Governmental Order.
Appears in 1 contract
Excluded Liabilities. The Notwithstanding the provisions of Section 2.3 or any other provision in this Agreement to the contrary, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) any Liabilities of the Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any Liability for (i) Taxes of the Seller (or any stockholder shareholder or Affiliate of the Seller) including any Taxes or relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, ; (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, 8.3(a); or (iii) any other Taxes of Seller (or any stockholder shareholder or Affiliate of the Seller) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder shareholder or Affiliate of the Seller) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(c) any Liabilities relating to or arising out of the Excluded Assets;
(d) any Liabilities in respect of any pending or threatened Action Proceeding (including, without limitation, any pending or threatened Federal or state agency-initiated action) arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action Proceeding relates to such operation on or prior to the Closing Date;
(e) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the Seller;
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed by the Seller;
(g) any Liabilities of the Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of the Seller;
(h) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;
(ig) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the Seller;
(jh) any all trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, (ii) which constitute intercompany payables owing to Affiliates of the Seller, (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of business;
(ki) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, or customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, ; (ii) did not arise in the ordinary course of business, ; or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(mj) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 9.2 as the Seller IndemniteesIndemnified Parties;
(nk) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth which do not conform to the representations and warranties with respect thereto contained in Section 2.03(b), this Agreement; or (iii) to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing;
(ol) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or institutions;
(m) any other PersonLiabilities associated with the Benefit Plans sponsored by Seller; and
(pn) any Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates to comply with: (i) any Law (including, without limitation, any failure to comply with any Law FDA regulations); (ii) any Order; (iii) any Permit; or Governmental Order(iv) customer standards and quality requirements.
Appears in 1 contract
Excluded Liabilities. The Notwithstanding the provisions of Section 2.4, any other provision of this Agreement or any schedule or exhibit hereto and regardless of any disclosure to the Buyer, the Buyer shall not assume and shall not be responsible to payany liabilities, perform obligations or discharge any Liabilities of the Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) any Liabilities of the Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any Liability for commitments (i) Taxes of the Seller (or any stockholder or Affiliate of the Seller) including any Taxes relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, or (iii) any Taxes of Seller (or any stockholder or Affiliate of the Seller) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder or Affiliate of the Seller) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(c) any Liabilities relating to or arising out of the Excluded Assets;
(d) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business or the ownership or leasing of the Purchased Assets Property prior to or on the extent Closing Date other than the Assumed Liabilities or (ii) enumerated in the second sentence of this Section 2.5 (such Action relates unassumed liabilities, the "EXCLUDED LIABILITIES"). Excluded Liabilities shall include without limitation: (i) any liabilities for (a) Taxes relating to such or arising out of the Business accruing prior to or on the Closing Date (including, without limitation, accrued sales taxes), (b) Taxes retained by the Sellers pursuant to this Agreement, (c) one-half of the Transfer Taxes, and (d) Taxes of any Seller or any other Person, whether pursuant to an agreement, by operation on of Treasury Regulation ss. 1.1502-6 (or any similar provision of state, local, or foreign law), transferee or successor liability, or otherwise, (ii) accounts payable and unpaid interest thereon by one or more of the Sellers to one or more of the Sellers, (iii) any liabilities arising under Environmental Laws attributable to or incurred as a result of any acts, omissions, or conditions first occurring or in existence as of or prior to the Closing Date;
, including, but not limited to, liabilities for the release, handling, discharge treatment, storage, disposal, or presence of Hazardous Materials, (eiv) except for the Buyer Termination Liabilities, any liabilities relating to (A) the Employees or Employees previously employed by the Sellers or (B) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made Employee Benefit Plans maintained by the SellerSellers or any Affiliate of the Sellers or covering the Employees, (v) any liabilities to shareholders of the Sellers and Affiliates of the Sellers other than pursuant to agreements listed on Schedule 2.5(v) hereof, (vi) any fees, costs or expenses incurred by the Sellers or by reason any shareholder or any Affiliates of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the Seller;
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed by the Seller;
(g) any Liabilities of the Seller arising under or Sellers in connection with any Benefit Plan providing benefits to any present or former employee of the Seller;
(h) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligationlegal, any Liabilities of the Seller for any present or former employeesaccounting, officers, directors, retirees, independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;
(i) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the Seller;
(j) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, (ii) which constitute intercompany payables owing to Affiliates of the Seller, (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of business;
(k) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, (ii) did not arise in the ordinary course of business, or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees;
(n) any Liabilities under the Excluded Contracts investment banking or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth in Section 2.03(b), to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing;
(o) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or any other Person; and
(p) any Liabilities arising out of, in respect of or services rendered in connection with the failure transactions contemplated by the Seller or Transaction Documents, and (vii) any of its Affiliates to comply with any Law or Governmental Orderliabilities listed on Schedule 2.5(vii) hereof.
Appears in 1 contract
Excluded Liabilities. The Notwithstanding the provisions of Section 1.02 or any other provision in this Agreement to the contrary, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities liabilities of the Seller or any of its Affiliates affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller shall, and shall cause each of its Affiliates affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) any Liabilities liabilities of the Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents transaction documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any Liability liability for (i) Taxes federal, state, local, property and other taxes (“Taxes”) of the Seller (or any stockholder the Members) or Affiliate of the Seller) including any Taxes relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-pre- Closing Tax Period, tax period; (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, 5.07; or (iii) any other Taxes of Seller (or any stockholder or Affiliate of the SellerMembers) of any kind or description (including any Liability liability for Taxes of the Seller (or any stockholder or Affiliate of the SellerMembers) that becomes a Liability liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Lawlaw);
(c) any Liabilities liabilities relating to or arising out of the Excluded Assets;
(d) any Liabilities liabilities in respect of any pending or threatened Action claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena or investigation of any nature, civil, criminal, administrative, regulatory or otherwise, whether at law or in equity (“Action”) arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date;
(e) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the SellerEnvironmental Claims (as hereinafter defined), or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the Seller;
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed by the Seller;
(g) any Liabilities of the Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of the Seller;
(h) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;
(i) any Environmental Claims, or Liabilities liabilities under Environmental LawsLaws (as hereinafter defined), to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the Seller;
(jf) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, ; (ii) which constitute intercompany payables owing to Affiliates of the Seller, Members; (iii) which constitute debt, loans or credit facilities to financial institutions, ; or (iv) which did not arise in the ordinary course of business;
(kg) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, (ii) did not arise in the ordinary course of business, or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees;
(n) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth in Section 2.03(b), to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing;
(o) any Liabilities liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or any other Personinstitutions; and
(ph) any Liabilities liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates affiliates to comply with any Law law or Governmental Order.governmental order
Appears in 1 contract
Sources: Asset Purchase Agreement (MamaMancini's Holdings, Inc.)
Excluded Liabilities. The Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller shall, and shall cause each of its Affiliates to, pay pay, perform and satisfy discharge in due course all Excluded Liabilities which they are obligated to pay and satisfyLiabilities. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited tosubject to Section 6.17 (relating to Transfer Taxes), the following:
(a) any unless otherwise expressly provided herein, all Liabilities of the Seller or any of its Affiliates arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any Liability all Liabilities for (i) Taxes of the Seller (or any stockholder or Affiliate of the Seller) including any Taxes relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period and, with respect to any Straddle Period, the portion of any such Straddle Period ending on the Closing Date (determined in accordance with Section 6.18); or (ii) Taxes (including Periodic Taxes) related to the Purchased Assets or the Business for any Pre-Closing Tax Period and, with respect to any Straddle Period, the portion of any such Straddle Period ending on the Seller that arise out of the consummation of the transactions contemplated hereby Closing Date (determined in accordance with Section 6.18); or (iii) Transfer Taxes that are the responsibility of the Seller pursuant to Section 6.14, or (iii) any Taxes of Seller (or any stockholder or Affiliate of the Seller) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder or Affiliate of the Seller) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law)6.17;
(c) any all Liabilities solely to the extent relating to or arising out of the Excluded Assets;
(d) any all Liabilities in respect of any Action pending as of or threatened Action arising prior to the Closing which arises out of, relating of or relates to or otherwise in respect of the operation or conduct of the Business or the Purchased Assets to by the extent such Action relates to such operation on Seller or its Affiliates prior to the Closing Date;
(e) all Liabilities arising out of or with respect to product complaints, recalls, return of products, product liability, breach of warranty, claim of improper design or failure to adequately package or label or any product Liability or similar claim for damage or injury to a Person person or property which arises out of or is based upon to the extent such Liabilities relate to any express or implied representationProducts, warranty, agreement or guaranty made by other than the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the SellerAssumed Product Liability Obligations;
(f) except as provided in Section 6.06(b) and Section 6.06(c), any recallliabilities or obligations with respect to employment, design defect termination of employment, compensation or similar claims employee benefits of any products manufactured nature (including, but not limited to any liabilities or sold obligations under the Benefit Plans) owed to any current or former employee, officer, director or independent contractor of Seller or any of its Affiliates (or the beneficiary of any such employee, officer, director or independent contractor) whether or not such employee, officer, director or independent contractor becomes an employee or service performed by provider with respect to Buyer or any of its Affiliates at or after the SellerClosing, that arises out of or relates to the employment, service provider or other relationship between Seller or its Affiliates and any such employee, officer, director or independent contractor or the termination of such relationship. Without limiting the foregoing, Seller shall be responsible for the payment of any severance, change in control payment or transaction bonus that becomes due to any current or former employee, officer, director or independent contractor as a result of the execution of this Agreement or the consummation of the transactions contemplated hereby. Buyer and its affiliates shall not be obligated to continue or assume any employee benefit plan or program of Seller or its affiliates (including, but not limited to the Benefit Plans) or be responsible for any obligation or liability thereunder;
(g1) any all Environmental Claims, or Liabilities of under Environmental Laws, with respect to the Seller arising Leased Real Properties, (2) Environmental Claims, or Liabilities under or in connection Environmental Laws, with any Benefit Plan providing benefits respect to any present property or former employee of the Seller;
(h) subject to Section 6.24 operation formerly owned, operated leased or used, including with regard respect to the ▇▇▇▇▇ Debt ObligationBusiness, any Liabilities of the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;
and (i3) any Environmental Claims, or Liabilities under Environmental Laws, with respect to the extent arising out of or relating to factsany off-site location, circumstances or conditions existing on or used by Seller prior to the Closing or otherwise to Date including those at which Hazardous Materials from the extent arising out of any actions or omissions pre-closing operation of the SellerBusiness were transported, disposed, stored, shipped or Released (including any Superfund or CERCLA sites or other sites requiring investigation, remediation, monitoring, response action, removal or other action;
(jh) any all trade accounts payable of the Seller or its Affiliates (i) to the extent not accounted for on the Interim Balance Sheet, (ii) which constitute intercompany payables owing to Affiliates of the Seller, (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which and that did not arise in the ordinary course of businessbusiness between the Balance Sheet Date and Closing; or (ii) that constitute intercompany payables owing to Affiliates of Seller;
(ki) any all Liabilities of the Business relating Seller or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, (ii) did not arise in the ordinary course of business, or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities its Affiliates to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller or any of its Affiliates (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant ) attributable to Section 8.03 as any acts or omissions to act taken or omitted to be taken by such Persons prior to the Seller IndemniteesClosing Date;
(nj) any Liabilities under the Excluded Contracts all Indebtedness of Seller or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth in Section 2.03(b), to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing;
(o) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or any other Personits Affiliates; and
(pk) any all Liabilities arising out of, prior to the Closing Date in respect of or in connection with the failure by the Seller or any of its Affiliates to comply with any Law or Governmental OrderOrder issued against Seller prior to the Closing Date (other than Liabilities under Environmental Laws which are covered exclusively by Section 2.04(g) above).
Appears in 1 contract
Excluded Liabilities. The Notwithstanding the provisions of Section 2.03 or any other provision in this Agreement to the contrary, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “"Excluded Liabilities”"). The Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) any Liabilities of the Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any Liability for (i) Taxes of the Seller (or any stockholder shareholder or Affiliate of the Seller) including any Taxes or relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, ; (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, ; or (iiiii) any Taxes of Seller (or any stockholder or Affiliate of the Seller) of any kind or description (including any Liability for Taxes of Seller that is related to the Seller (or any stockholder or Affiliate operation of the Seller) Business or the Purchased Assets on or before the Closing Date and that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(c) any Liabilities relating to or arising out of the Excluded Assets;
(d) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing DateClosing;
(e) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the Seller;
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed by the Seller;
(g) any Liabilities of the Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of Seller, except the SellerAssumed Benefit Plan Claims;
(h) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacationpaid time off, workers’ ' compensation, severance, retention, termination or other payments;
(i) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the Seller;
(j) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, included as a Current Liability in Closing Working Capital; (ii) which constitute intercompany payables owing to Affiliates of the Seller, ; (iii) which constitute debt, loans or credit facilities to financial institutions, ; or (iv) which did not arise in the ordinary course of business;
(k) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ ' customers to the Seller on or before the Closing, ; (ii) did not arise in the ordinary course of business, ; or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees;
(nm) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth which do not conform to the representations and warranties with respect thereto contained in Section 2.03(b), this Agreement; or (iii) to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing;
(on) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or any other Personinstitutions; and
(po) any Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates to comply with any Law or Governmental OrderOrder prior to Closing.
Appears in 1 contract
Excluded Liabilities. The Notwithstanding the provisions of Section 2.03 or any other provision in this Agreement to the contrary, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller or any of its their Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:following (subject to accruals in the Closing Working Capital, as finally adjusted pursuant to Section 2.06):
(a) any Liabilities of the Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Ancillary Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any Liability for (i) Taxes of the Seller (or any stockholder or Affiliate of the Seller) including any Taxes or relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, ; (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, 6.09(b); or (iii) any other Taxes of Seller (or any stockholder or Affiliate of the Seller) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder or Affiliate of the Seller) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law)) for any Pre-Closing Tax Period;
(c) any Liabilities relating to or arising out of the Excluded Assets;
(d) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date;
(e) any product warranty or other Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by Seller on or prior to the SellerClosing Date, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by Seller to the Sellerextent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing Date;
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed by Seller to the Sellerextent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing Date;
(g) any Liabilities of the Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of Seller to the Sellerextent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing Date;
(h) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;
(i) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the Seller;
(j) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, ; and (ii) which constitute intercompany payables owing to Affiliates of the Seller, (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course Ordinary Course of businessBusiness;
(k) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, ; (ii) did not arise in the ordinary course Ordinary Course of business, Business; or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same)) arising out of or relating to facts, circumstances or condition existing prior to the Closing Date, except for indemnification of same pursuant to Section 8.03 7.03 as the Seller Indemnitees;
(nm) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property AgreementsAgreements arising out of or relating to facts, circumstances or condition existing prior to the Closing Date, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth which do not conform to the representations and warranties with respect thereto contained in Section 2.03(b), this Agreement; or (iii) to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing;
(on) any Liabilities associated with debtIndebtedness arising out of or relating to facts, preferred securities, loans circumstances or credit facilities of condition existing prior to the Seller and/or the Business owing to financial institutions or any other PersonClosing Date; and
(po) any Liabilities arising out of, in respect of or in connection with the failure by the Seller Seller, Owners or any of its their respective Affiliates to comply with any Law or Governmental OrderOrder prior to the Closing Date.
Appears in 1 contract
Sources: Asset Purchase Agreement (Continental Materials Corp)
Excluded Liabilities. The Buyer shall Notwithstanding any provision in this Offer, the Master Agreement or any other Operative Document to the contrary, Offeror is assuming only the Assumed Liabilities and is not assume and shall not be responsible to payassuming any other Liability, perform Contract or discharge any Liabilities obligation of the Seller Offeree or any of its Affiliates (or any predecessor owner of any kind all or nature whatsoever part of their respective business and assets) of whatever nature, whether presently in existence or arising or asserted hereafter. All such other than Liabilities, Contracts and obligations shall be retained by and remain obligations and Liabilities of Offeree (all such Liabilities, Contracts and obligations not being assumed being herein referred to as the Assumed Liabilities (the “"Excluded Liabilities”"). The Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality foregoing, none of the foregoing, following shall be Assumed Liabilities for the Excluded Liabilities shall include, but not be limited to, the followingpurposes of this Offer:
(a) any Liabilities Liability or obligation for Tax imposed by any Taxation Authority on Offeree or any of its Affiliates (i) with respect to the Other Businesses, (ii) with respect to the operations of the Seller arising U.K. Business or the acquisition, ownership or holding of the Purchased Assets at any time or for any period prior to the Closing, or (iii) for any income Taxes incurred in connection with the negotiation, preparation, investigation and performance as a result of this Agreement, the other Transaction Documents and consummation of the transactions contemplated hereby by this Offer, other than Stamp Duty arising on the purchase and thereby, including, without limitation, fees sale of the Purchased Assets between Offeror and expenses of counsel, accountants, consultants, advisers Offeree pursuant to this Offer and othersas provided in Section 2.09;
(b) any Liability or obligation of Offeree or any of its Affiliates for (i) Taxes money borrowed, including purchase money financing provided by any vendor, whether such Liabilities and obligations were incurred in the operation of the Seller (U.K. Business or any stockholder or Affiliate of the Seller) including any Taxes relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, or (iii) any Taxes of Seller (or any stockholder or Affiliate of the Seller) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder or Affiliate of the Seller) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law)otherwise;
(c) any Liabilities Liability or obligation relating to or arising out of the an Excluded AssetsAsset;
(d) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date;Prior Claims; and
(e) any product Liability or similar claim for injury obligation of Offeree contained in the respective agreements relating to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects Offeree's acquisition of any products at any time manufactured water cooler business or sold or any service performed by the Seller;
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed by the Seller;
(g) any Liabilities of the Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of the Seller;
(h) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;
(i) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the Seller;
(j) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, (ii) which constitute intercompany payables owing to Affiliates of the Seller, (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of bottled water business;
(k) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, (ii) did not arise in the ordinary course of business, or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees;
(n) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth in Section 2.03(b), to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing;
(o) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or any other Person; and
(p) any Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates to comply with any Law or Governmental Order.
Appears in 1 contract
Sources: Master Agreement (Ionics Inc)
Excluded Liabilities. The Buyer Notwithstanding the provisions of Section 2.03 or any other provision in this Agreement to the contrary, the Purchaser shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller Vendor or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, include the following:
(a) any Liabilities of the Seller Vendor Parties arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, including fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any Liability for (i) Taxes of the Seller (or any stockholder or Affiliate of the Seller) including any Taxes relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, (ii) Taxes of payable by the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, or (iii) any Taxes of Seller (or any stockholder or Affiliate of the Seller) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder or Affiliate of the Seller) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law)Vendor Parties;
(c) any Liabilities relating to or arising out of the Excluded Assets;
(d) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets (including, for certainty, any Project back charges applied by customers of the Business), to the extent such Liabilities or Action relates to such operation on or prior to before the Closing Date;
(e) any product Liability or similar claim for injury to a Person or property which arises out of an action or omission of the Vendor or its Affiliates and is based upon any express or implied representation, warranty, agreement or guaranty guarantee made by the SellerVendor or its Affiliates, or by reason of the improper performance performance, malfunctioning or malfunctioning installation of a product, improper design or design, manufacture, installation, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the SellerVendor or its Affiliates;
(f) any Liabilities relating to Warranty Claims and any other causes of action for all: (i) Projects completed prior to Closing; and (ii) Projects disclosed in Section 2.04(f) of the Disclosure Schedules (the “Substantially Completed Projects”);
(g) any recall, design defect or similar claims of any products manufactured or sold or any service performed by the Seller;
(g) any Liabilities of Vendor Parties or their Affiliates on or prior to the Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of the SellerClosing Time;
(h) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities and obligations of the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other paymentsVendor as described in Section 6.01;
(i) any Liabilities described in Section 6.10;
(j) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on at or prior to before the Closing or otherwise to the extent arising out of any actions or omissions of the Seller;
Vendor Parties, their Affiliates or Tangent Wall (j) including for greater certainty, any trade accounts payable Liabilities relating to or arising out of the Seller (imatters disclosed in Section 4.17(a) to the extent not accounted for on the Interim Balance Sheet, (iiand Section 4.17(b) which constitute intercompany payables owing to Affiliates of the Seller, (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of businessDisclosure Schedules);
(k) any Liabilities of the Business for Project back charges relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that to any (i) do not constitute part of the Purchased Assets issued by the Business’ customers Project completed prior to the Seller on Closing; or before the Closing, (ii) did not arise Substantially Completed Project, that are in excess of the ordinary course amount of business, or (iiithe Project back charges accrued for such Project as set forth in Section 4.23(b) are not validly and effectively assigned to of the Buyer pursuant to this AgreementDisclosure Schedules;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller Vendor Parties or their Affiliates (including with respect to any breach of fiduciary obligations by same)such Person) arising before the Closing Date, except for indemnification of same pursuant to such Person under Section 8.03 7.03 as the Seller Vendor Indemnitees;
(n) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth in Section 2.03(b), to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing;
(o) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or any other Person; and
(pm) any Liabilities arising out of, in respect of or in connection with the failure by the Seller Vendor Parties or any of its their Affiliates to comply with any Law or Governmental OrderOrder prior to the Closing Time.
Appears in 1 contract
Sources: Asset Purchase Agreement (Apogee Enterprises, Inc.)
Excluded Liabilities. The Notwithstanding any other provision in this Agreement to the contrary, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller Seller, Principals, or any of its their respective Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller shall, and shall cause Principals and each of its their respective Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(aw) any Liabilities of the Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(bx) any Liability for (i) Taxes of the Seller (or Principals, or any stockholder or Affiliate of the Seller) including any Taxes or relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, including, without limitation, any roll-back taxes the obligation for which arises after Closing as a result of any change in the use of the Real Property occurring prior to Closing; (ii) Taxes of the Seller (or Principals, or any stockholder or Affiliate of Seller) that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14hereby, except as otherwise set forth in this Agreement; or (iii) any other Taxes of Seller (or Principals, or any stockholder or Affiliate of the Seller) of any kind or description (including any Liability for Taxes of the Seller (or Principals, or any stockholder or Affiliate of the Seller) for any Pre-Closing Tax Period that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(cy) any Liabilities relating to or arising out of the Excluded Assets;
(dz) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date;
(eaa) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the Seller;
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed by the Seller;
(g) any Liabilities of the Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of the Seller;
(h) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;
(i) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the Seller;
(j) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, (ii) which constitute intercompany payables owing to Affiliates of the Seller, (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of business;
(k) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, (ii) did not arise in the ordinary course of business, or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees;
(n) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth in Section 2.03(b), to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing;
(o) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or any other Person; and
(p) any Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates to comply with any Law or Governmental Order.
Appears in 1 contract
Excluded Liabilities. The Notwithstanding anything to the contrary contained in this Agreement, Buyer shall not assume or be liable for and Sellers shall not be retain and remain responsible to payfor all of Sellers’ debts, perform or discharge any Liabilities of the Seller or any of its Affiliates liabilities and obligations of any kind or nature whatsoever whatsoever, other than the Assumed Liabilities (Obligations, whether accrued, absolute or contingent, whether known or unknown, whether due or to become due and whether related to the “Excluded Liabilities”). The Seller shallBusiness and the Acquired Assets or otherwise, and shall cause each regardless of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) any Liabilities of the Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and therebywhen asserted, including, without limitation, fees the following liabilities or obligations of Sellers (none of which shall constitute Assumed Obligations) (collectively, the “Excluded Liabilities”):
(a) All of Sellers’ liabilities or obligations under this Agreement or under any other agreement between Sellers and expenses Buyer entered into on or after the date of counsel, accountants, consultants, advisers and othersthis Agreement;
(b) any Liability for (i) Taxes All of the Seller (Sellers’ liabilities arising out of or any stockholder or Affiliate of the Seller) including any Taxes relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, or (iii) any Taxes of Seller (or any stockholder or Affiliate of the Seller) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder or Affiliate of the Seller) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
an Excluded Asset; (c) All of Sellers’ liabilities under any Liabilities relating to or arising out of Contract not assumed by Buyer under Section 2.3, including without limitation the Excluded Assets;
(d) any Liabilities in respect of any pending or threatened Action arising out ofIndemnity for Bank Guarantee by and among Australian Subsidiary, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date;
(e) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the Seller;
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed by the Seller;
(g) any Liabilities of the Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of the Seller;
(h) subject to Section 6.24 with regard to the National Australia Bank Limited and ▇▇▇▇▇ Debt Obligation▇▇▇▇ Investment Pty Ltd; (d) Except as specifically set forth in Section 2.3, any Liabilities liability of the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;
(i) any Environmental Claims, or Liabilities under Environmental Laws, Sellers to the extent arising out of or relating to factsthe operation of the Business prior to Closing, circumstances including without limitation any claims arising after Closing related to any Software sold to third parties prior to Closing or conditions existing on Sellers’ use of unlicensed software; (e) Except for Taxes specifically included as Assumed Obligations, all liabilities and obligations of Sellers for Taxes for any period, and any liability of Sellers for the unpaid Taxes of any Person under Treas. Reg. § 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract, or otherwise; (f) Unless otherwise specifically payable by Buyer pursuant to this Agreement, all of Sellers’ liabilities or obligations for expenses, Taxes or fees incident to or arising out of the negotiation, preparation, approval, or authorization of this Agreement or the consummation (or preparation for the consummation) of the transactions contemplated hereby, including all attorneys’ and accountants’ fees and disbursements, brokerage fees, consultants’ fees and finders’ fees; (g) Any liability or obligation pertaining to any discontinued operation owned or operated by Sellers and related to the Business as it was operated and discontinued by Sellers prior to the Closing Date other than liabilities and obligations which are Assumed Obligations; (h) Any obligation of Sellers to indemnify any Person by reason of the fact that such Person was a shareholder, director, officer, employee (other than a UK employee but only to the extent such obligation arises pursuant to a UK Employee’s terms of employment), or agent of any of Sellers or was serving at the request of Sellers as a partner, trustee, director, officer, employee (other than a UK employee but only to the extent such obligation arises pursuant to a UK Employee’s terms of employment), or agent of another entity (regardless of whether such indemnification is for judgments, damages, penalties, fines, costs, amounts paid in settlement, losses, expenses, or otherwise and regardless of whether such indemnification is pursuant to any statute, charter document, bylaw, agreement, or otherwise); (i) Sellers’ obligations to Employees terminated prior to Closing, including, without limitation, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, and any Terminating Australian Employees (except with respect to liability to ▇▇▇▇▇.▇▇▇ and the Australian Subsidiary for Australian Employee Termination Benefits to be paid to such Terminating Australian Employees); (j) All intercompany accounts, including intra-group loan balances, relating to the Business or the Acquired Assets;
(k) Any liabilities of Sellers based on acts or omissions occurring after the Closing; (l) Any liabilities of Sellers under the Civil Code of Quebec, the Act respecting Labour Standards, the Charter of Human Rights and Freedoms, the Labour Code, the Act respecting occupational health and safety, the Workplace Health and Safety ▇▇▇ ▇▇▇▇ (Qld), any other law in relation to occupational health and safety the Act respecting industrial accidents and occupational diseases, the Charter of the French language, the Pay Equity Act or any other applicable law in the Province of Quebec, any other law in relation to anti-discrimination or equal opportunity any other law in relation to anti-discrimination or equal opportunity or any employment, commission, severance, retention or termination agreement between any Seller and any employee of any Seller arising prior to the Closing Date other than those liabilities for which Buyer shall become responsible at law as a result of offering employment to such Employees or as a result of such Employees being transferred to Buyer by operation of law as and from the Closing Date. For the avoidance of doubt, this Section 2.4(l) shall not apply to the UK Employees, the liabilities in respect of which shall be subject to Section 5.5(c); (m) Any liabilities of Sellers to the extent arising out of or resulting from any actions Sellers’ compliance or omissions non-compliance with any law or order of any Governmental Body, including without limitation any bulk sales laws related to the transactions contemplated herein and TUPE requirements relating to required consultation with UK Employees prior to Closing; (n) Any liability or obligation of Sellers for indebtedness for borrowed money; (o) All Pre-Effective Time Accounts Payable and accrued liabilities other than those liabilities for which Buyer is responsible following the adjustment pursuant to Section 2.8;and (p) Any liability related to Sellers’ indebtedness to any of the Seller;
Sellers’ shareholders, officers, directors or Employees; Sequential Page No: 261 of 350 Exhibits: Page 123 (jq) Any liability related to the termination by Buyer of an employment contract, which contract has the effect of a contract made between the Buyer and the employee concerned as a result of TUPE, and which is not disclosed in the Seller Disclosure Schedule or which is an employment contract with any trade accounts payable Employee in the UK that is not listed on Schedule 3.18 of the Seller Disclosure Schedule as a UK Employee; (ir) to the extent not accounted for on the Interim Balance Sheet, (ii) which constitute intercompany payables owing to Affiliates of the Seller, (iii) which constitute debt, loans Any liability in connection with or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of business;
(k) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, (ii) did not arise in the ordinary course of business, or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out as a result of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations individual employee entitlement under or consequent on such claim) by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees;
(n) any Liabilities under the Excluded Contracts trade union or staff association or any other Contracts, including Intellectual Property Agreements, employee representatives (iwhether or not recognised by Sellers in respect of all or any of the UK Employees) which are not validly and effectively assigned to within the Buyer pursuant to this Agreement; meaning of TUPE and/or the Directive arising from or (ii) except as set forth in Section 2.03(b), to the extent such Liabilities arise out of or relate to a breach connected with any failure by the Seller Sellers to comply with any legal obligations to such trade unions, staff associations or employee representatives within the meaning of TUPE and/or the Directive whether under Regulation 10 of TUPE or under the Directive or otherwise whether any such Contracts prior to claim arises or has its origin before, on or after Closing;
(os) Any liability in respect of any Liabilities associated with debt, preferred securities, loans or credit facilities Employee for the period prior to the Closing Date; and (t) Any liabilities arising out of the tax liabilities set forth on Schedule 3.17 of the Seller and/or the Business owing to financial institutions or any other Person; and
(p) any Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates to comply with any Law or Governmental OrderDisclosure Schedule.
Appears in 1 contract
Excluded Liabilities. The Notwithstanding the provisions of Section 2.03 or any other provision in this Agreement to the contrary, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller Sellers or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “"Excluded Liabilities”"). The Seller Sellers shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) any Liabilities of the Seller Sellers arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(b) all trade accounts payable of Sellers to third parties in connection with the Business that remain unpaid and are not delinquent as of the Closing Date and that either are reflected on the Interim Balance Sheet Date or arose in the ordinary course of business consistent with past practice since the Interim Balance Sheet Date;
(c) any Liability for (i) Taxes of the Seller Sellers (or any stockholder or Affiliate of the SellerSellers) including any Taxes or relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, ; (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller Sellers pursuant to Section 6.14, ; or (iii) any other Taxes of Seller Sellers (or any stockholder or Affiliate of the SellerSellers) of any kind or description (including any Liability for Taxes of the Seller Sellers (or any stockholder or Affiliate of the SellerSellers) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(cd) any Liabilities relating to or arising out of the Excluded Assets;
(de) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date;
(ef) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the SellerSellers, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the SellerSellers;
(fg) any recall, design defect or similar claims of any products manufactured or sold or any service performed by the SellerSellers;
(gh) any Liabilities of the Seller Sellers arising under or in connection with any Benefit Plan benefit plan providing benefits to any present or former employee of the SellerSellers;
(hi) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller Sellers for any present or former employees, officers, directors, retirees, independent contractors or consultants of the SellerSellers, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ ' compensation, severance, retention, termination or other payments;
(ij) any Environmental Claimsenvironmental claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the Seller;
(j) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, (ii) which constitute intercompany payables owing to Affiliates of the Seller, (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of businessSellers;
(k) any accounts payable of Sellers on or before the Closing;
(l) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ ' customers to the Seller Sellers on or before the Closing, ; (ii) did not arise in the ordinary course of business, ; or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller Sellers (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Sellers Indemnitees;
(n) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth which do not conform to the representations and warranties with respect thereto contained in Section 2.03(b), this Agreement; or (iii) to the extent such Liabilities arise out of or relate to a breach by the Seller Sellers of such Contracts prior to Closing;
(o) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller Sellers and/or the Business owing to financial institutions or any other Personinstitutions; and
(p) any Liabilities arising out of, in respect of or in connection with the failure by the Seller Sellers or any of its Affiliates to comply with any Law or Governmental Order.
Appears in 1 contract
Excluded Liabilities. The Buyer Notwithstanding anything to the contrary contained herein, the Purchaser shall not assume and shall not assume, or in any way be liable or responsible to payfor, perform any liabilities, commitments or discharge any Liabilities obligations of the Seller or any of its Affiliates of any kind or nature whatsoever other than whatsoever, known or unknown, accrued, fixed, contingent or otherwise, liquidated or unliquidated, choa▇▇ ▇▇ inchoate, due or to become due, except for the Assumed Liabilities (the “Excluded Liabilities”collectively, "EXCLUDED LIABILITIES"). The Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities Purchaser shall include, but not be limited to, assume the following:
(a) any Liabilities liabilities or obligations (whether absolute, contingent or otherwise) with respect to, arising out of, or related to, the Assets on or prior to the Closing Date (other than the Cure Amounts), including any liability or obligation of the Seller or any of its employees, directors, officers, Affiliates or agents arising out of, relating to, or incurred in connection with the negotiation, preparation, investigation and performance of this Agreementcaused by (whether directly or indirectly), the other Transaction Documents and Seller's ownership, possession, interest in, use or control of the transactions contemplated hereby and thereby, including, without limitation, fees and expenses Assets or operation of counsel, accountants, consultants, advisers and othersthe Business;
(b) any Liability for (i) Taxes liability or obligation of the Seller for (x) Taxes accrued for, applicable to or arising from any stockholder or Affiliate of the Seller) including any Taxes relating period prior to the BusinessClosing Date or Income Taxes accrued for, the Purchased Assets applicable to, or the Assumed Liabilities arising from any period or (y) for any Pre-Closing Tax Period, (ii) transfer or other Taxes of the Seller that arise out arising by reason of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, or (iii) any Taxes of Seller (or any stockholder or Affiliate of the Seller) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder or Affiliate of the Seller) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law)Contemplated Transactions;
(c) any Liabilities relating liability or obligation of the Seller pursuant to Environmental Laws based upon or arising out of the Excluded Assets;
(d) any Liabilities in respect of any pending from events, conditions or threatened Action arising out of, relating to circumstances occurring or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation existing on or prior to the Closing Date;
(d) any liability or obligation of the Seller in respect of employment plans (including any pension, welfare or other Seller Plan), consulting, severance, change in control or similar agreements, other than the liabilities or obligations of the Seller in respect of any Assumed Seller Plan (unless and to the extent the Purchaser in its discretion agrees in writing to assume any such liabilities or obligations as it may in its sole judgment elect, including any such assumption conditional upon mutual agreement as to modifications or amendments to any such agreements should the Purchaser so specify) and other than the DeVlieg Transferred Vacation and Severance Pay;
(e) any product Liability all Chapter 11 Expenses, all liabilities and obligations of the Seller relating to the Excluded Assets, and all other liabilities and obligations of the Seller under or similar claim for injury to a Person or property which arises arising out of or is based upon any express or implied representationthis Agreement with respect to the Contemplated Transactions, warrantyincluding legal, agreement or guaranty made accounting and other professional fees, expenses and Taxes incurred by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the Sellerexcept as contemplated in Section 6.12;
(f) all liabilities and obligations of the Seller to any recall, design defect or similar claims of any products manufactured or sold or any service performed by the Sellerits Affiliates;
(g) any Liabilities all liabilities and obligations of the Seller arising (x) to financial institutions or other Persons for borrowed money (including any indebtedness under the DIP Credit Agreement), for any interest rate or in connection currency swap, collar, floor or similar arrangement or for any commodity swap or futures or forward contract (except to the extent listed on SCHEDULE 2.4(g)), or (y) with any Benefit Plan providing benefits respect to any present indebtedness or former employee obligations of others which the SellerSeller has directly or indirectly guaranteed;
(h) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants all liabilities and obligations of the Seller, includingregardless of when the claims are brought, without limitationin respect of any product liability with respect to any product developed, any Liabilities associated with any claims for wages manufactured, serviced, sold, distributed, caused to be distributed or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination intended to be distributed by or other payments;
(i) any Environmental Claims, or Liabilities under Environmental Laws, to on behalf of the extent arising out of or relating to facts, circumstances or conditions existing Business on or prior to the Closing Date;
(i) all liabilities and obligations of the Seller relating to customer claims, regardless of when the claims are brought, under any warranty relating to products developed, manufactured, serviced, sold, distributed, caused to be distributed or otherwise intended to be distributed by or on behalf of the Business on or prior to the extent arising out of any actions or omissions of the Seller;Closing Date; and
(j) any trade accounts payable all liabilities and obligation of the Seller (i) relating to medical, dental and health benefits and any workers' compensation claims relating to any period prior to the extent not accounted for on the Interim Balance Sheet, (ii) which constitute intercompany payables owing to Affiliates of the Seller, (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of business;
(k) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, (ii) did not arise in the ordinary course of business, or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees;
(n) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth in Section 2.03(b), to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing;
(o) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or any other Person; and
(p) any Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates to comply with any Law or Governmental OrderClosing Date.
Appears in 1 contract
Excluded Liabilities. The Notwithstanding the provisions of Section 2.03 or any other provision in this Agreement to the contrary, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “"Excluded Liabilities”"). The Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) any Liabilities of the Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any Liability for (i) Taxes of the Seller (or any stockholder or Affiliate of the Seller) including any Taxes or relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, ; (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, ; or (iii) any other Taxes of Seller (or any stockholder or Affiliate of the Seller) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder or Affiliate of the Seller) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(c) any Liabilities relating to or arising out of the Excluded Assets;
(d) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date;
(e) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the Seller;
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed by the Seller;
(g) any Liabilities of the Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of the Seller;
(hg) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ ' compensation, severance, retention, termination or other paymentspayments other than those set forth on Section 2.03(d) of the Disclosure Schedules;
(ih) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the Seller;
(ji) any trade accounts payable of the Seller (i) that are not set forth on Schedule Section 2.03(a) to the extent not accounted for Disclosure Schedules or are incurred by Seller after the date set forth on Schedule Section 2.03(a) to the Interim Balance Sheet, Disclosure Schedules and prior to the Closing in the ordinary course of the operation of the Business; (ii) which constitute intercompany payables owing to Affiliates of the Seller, ; (iii) which constitute debt, loans or credit facilities to financial institutions, institutions or (iv) which did not arise in any trade accounts payable that are incurred by the ordinary course of businessSeller after the Closing;
(kj) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ ' customers to the Seller on or before the Closing, ; (ii) did not arise in the ordinary course of business, ; or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(mk) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees;
(nl) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth which do not conform to the representations and warranties with respect thereto contained in Section 2.03(b), this Agreement; or (iii) to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing;
(om) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or any other Person; andinstitutions;
(pn) any Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates to comply with any Law or Governmental Order; and
(o) those Liabilities of Seller set forth on Section 2.04(o)Section 2.03(e) of the Disclosure Schedules.
Appears in 1 contract
Excluded Liabilities. The Notwithstanding the provisions of Section 2.03 or any other provision in this Agreement to the contrary, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) any Liabilities of the Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Ancillary Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any Liability for for: (i) Taxes of the Seller (or any stockholder or Affiliate of the Seller) including any Taxes or relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, ; (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, Section 6.12; or (iii) any other Taxes of Seller (or any stockholder or Affiliate of the Seller) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder or Affiliate of the Seller) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(c) any Liabilities relating to or arising out of the Excluded Assets;
(d) any Liabilities with respect to any accounts payable of Seller existing as of the Closing Date unless specifically set forth in Section 2.03(b) of the Seller Disclosure Schedules;
(e) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the pre-Closing operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the pre-Closing Dateoperation;
(ef) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards hazards, or other related product defects of any products at any time manufactured or sold or any service performed by Seller prior to the SellerClosing;
(fg) any recall, design defect or similar claims of any products manufactured or sold or any service performed by Seller prior to the SellerClosing;
(gh) any Liabilities of the Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of the Seller;
(hi) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;
(ij) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the Seller;
(j) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, (ii) which constitute intercompany payables owing to Affiliates of the Seller, (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of business;
(k) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that that: (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, ; and (ii) did not arise in the ordinary course of business, or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section Section 8.03 as the Seller Indemnitees;
(m) any Liabilities under the Excluded Contracts;
(n) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth in Section 2.03(b), to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing;
(o) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or any other Personinstitutions; and
(po) any Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates to comply with any Law or Governmental Order.
Appears in 1 contract
Excluded Liabilities. The Except for the Assumed Liabilities, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Shareholders, Seller or any of its their Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller shall, and shall cause each of its Shareholders and Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) any Liabilities of the Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, including fees and expenses of counsel, accountants, consultants, advisers advisers, brokers shown on Section 4.22 of the Disclosure Schedules and any others;
(b) any Liability (including Encumbrances) for (i) Taxes of the Seller (or any stockholder Shareholder or Affiliate of the Seller) including any Taxes or relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, 6.9 or (iii) any other Taxes of Seller (or any stockholder Shareholder or Affiliate of the Seller) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder Shareholder or Affiliate of the Seller) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(c) any Liabilities (including Encumbrances) relating to or arising out of the Excluded Assets;
(d) any Liabilities (including Encumbrances) in respect of any Action (including any pending or threatened Action Action) arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date;
(e) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured manufactured, distributed or sold or any service performed by the Seller;
(f) any recall, design defect or similar claims of as to any products manufactured manufactured, distributed or sold or any service performed by the Seller;
(g) any Liabilities of the Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of the Seller;
(h) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller for to any present or former employees, officerstemporary employees, directors, retirees, agents or independent contractors or consultants of the Seller, includingof any kind or nature, without limitation, including any Liabilities associated with any claims for wages (including overtime, unpaid meal breaks, accrued unused vacation, PTO, WARN pay, commissions and bonuses and associated interest and penalties) or other benefits, bonuses, accrued vacation, workers’ compensationcompensation (including claims made or claims incurred but not reported), severance, retention, termination or other paymentspayments or any claims under any employment, severance, retention or termination agreement with any employee, former employee, agent or independent contractor of Seller;
(i) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing Date or otherwise to the extent arising out of any actions or omissions of the Seller;
(j) any trade accounts payable of the Seller (i) to the extent for which there is not accounted for on an adequate accrual in the Interim Balance SheetClosing Working Capital, (ii) which constitute intercompany payables owing to Shareholders, Related Persons or Affiliates of the Seller, or (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of business;
(k) any Liabilities (including Encumbrances) of the Business relating to or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the ClosingClosing Date, (ii) did not arise in the ordinary course Ordinary Course of business, Business or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former stockholder, officer, director, employee employee, consultant, advisor or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 7.3 as the Seller Indemnitees;
(nm) any Liabilities (including Encumbrances) under the Excluded Contracts or any other Contracts, including Intellectual Property AgreementsLicenses, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or , subject, however to Section 2.9(a), (ii) except as set forth which do not conform to the representations and warranties with respect thereto contained in Section 2.03(b), this Agreement or (iii) to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closingthe Closing Date;
(n) any Liabilities (including Encumbrances) associated with debt, loans, letters of credit or credit facilities of Seller owing to financial institutions;
(o) any Liabilities associated with debt, preferred securities, loans Liability to distribute to any of Seller’s shareholders or credit facilities otherwise apply any part of the Seller and/or the Business owing to financial institutions or any other Personconsideration received hereunder; and
(p) any Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Shareholders or Affiliates to comply with any Law or Governmental Order.
Appears in 1 contract
Excluded Liabilities. The Buyer Notwithstanding the provisions of Section 1.3 or any other provision in this Agreement to the contrary, Purchaser shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller Company or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller Company shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) 1.4.1. any Liabilities of the Seller Company arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees Transaction Fees and expenses of counsel, accountants, consultants, advisers and others;
(b) 1.4.2. any Liability for (i) Taxes of the Seller Company (or any stockholder equity holder or Affiliate of the SellerCompany); (ii) including any Taxes relating to the Business, the Purchased Assets or the Assumed Liabilities that arise in or is allocable to any Tax period or portion thereof ending on or prior to the Closing Date (including the amount of any Taxes computed for any Pre-Closing Tax Period, Interim Period pursuant to Section 6.11); (iiiii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller Company pursuant to Section 6.14, 6.12; or (iiiiv) any other Taxes of Seller the Company (or any stockholder equity holder or Affiliate of the SellerCompany) of any kind or description (description, including any Liability for Taxes of the Seller Company (or any stockholder equity holder or Affiliate of the SellerCompany) that becomes a Liability of the Buyer Purchaser under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Applicable Law);
(c) 1.4.3. any Liabilities relating to or arising out of the Excluded AssetsAssets or Excluded Liabilities;
(d) 1.4.4. any Liabilities in respect of any pending or threatened Action Claim arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action Claim relates to such operation on or prior to the Closing Date;
(e) 1.4.5. any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the SellerCompany, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the SellerCompany;
(f) 1.4.6. any recall, design defect or similar claims of any products manufactured or sold or any service performed by the SellerCompany;
(g) 1.4.7. any Liabilities of the Seller Company arising under or in connection with any Benefit Employee Plan providing benefits with respect to any present or former employee of the SellerCompany, including without limitation any Excluded Employee Liabilities;
(h) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, 1.4.8. any Liabilities of the Seller Company for any present or former employees, officers, directors, retirees, agents or independent contractors or consultants of the SellerCompany, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments, except for those Liabilities set forth in Section 1.3.1;
(i) 1.4.9. any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the SellerCompany;
(j) 1.4.10. any Indebtedness of the Company, including, trade and other accounts payable of the Seller (i) to Company;
1.4.11. any Liabilities from any liens against the extent Company or any Acquired Asset, including, but not accounted for on the Interim Balance Sheetlimited to, (ii) which constitute intercompany payables owing to Affiliates Tax liens in favor of the SellerUnited States (the “Tax Liens”), and liens in favor of American Express Company (iii) which constitute debtthe “Amex Lien”), loans or credit facilities to financial institutionsInstitute for Commercialization of Florida Technology, or (iv) which did not arise in the ordinary course of business;
(k) any Liabilities of the Business relating or arising from unfulfilled commitmentsInc., quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, (ii) did not arise in the ordinary course of business, or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the SellerCreditors Adjustment Bureau, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any PersonAffiliates thereof;
(m) 1.4.12. any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller Company (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 8.3 as the Seller IndemniteesCompany Indemnified Parties;
(n) 1.4.13. any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, Contracts (i) which are not validly and effectively assigned to the Buyer Purchaser pursuant to this Agreement; or (ii) except as set forth which do not conform to the representations and warranties with respect thereto contained in Section 2.03(b), this Agreement; or (iii) to the extent such Liabilities arise out of or relate to a breach by the Seller Company of such Contracts prior to Closing;
(o) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or any other Person; and
(p) any Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates to comply with any Law or Governmental Order.
Appears in 1 contract
Sources: Asset Purchase Agreement (Odyssey Group International, Inc.)
Excluded Liabilities. The Notwithstanding the provisions of Section 2.03 or any other provision in this Agreement to the contrary, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of Sellers, the Seller Selling Persons, or any of its their respective Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller Sellers shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
: (a) any Liabilities of the Seller Sellers arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Ancillary Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
; (b) any Liability for (i) Taxes of the Seller Sellers (or any stockholder or Affiliate of the SellerSellers) including any Taxes or relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, ; (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller Sellers pursuant to Section 6.14, ; or (iii) any other Taxes of Seller Sellers (or any stockholder or Affiliate of the SellerSellers) of any kind or description (including any Liability for Taxes of the Seller Sellers (or any stockholder or Affiliate of the SellerSellers) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
; (c) any Liabilities relating to or arising out of the Excluded Assets;
; (d) any Liabilities in respect of Liabilities, whether or not there is any pending or threatened Action Action, arising out of, relating to or otherwise in respect of the ownership, use and operation of the Business or the Purchased Assets to the extent such Action relates Liabilities relate to such ownership, use and operation on or prior to the Closing Date;
; (e) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the Seller;
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed by the Seller;
(g) any Liabilities of the Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of the Seller;
(h) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;
(i) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the Seller;
(j) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, (ii) which constitute intercompany payables owing to Affiliates of the Seller, (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of business;
(k) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, (ii) did not arise in the ordinary course of business, or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees;
(n) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth in Section 2.03(b), to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing;
(o) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or any other Person; and
(p) any Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates to comply with any Law or Governmental Order.or
Appears in 1 contract
Excluded Liabilities. The Notwithstanding the provisions of Section 1.03 or any other provision in this Agreement to the contrary, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller Sellers or any of its their respective Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller Sellers shall, and shall cause each of its their respective Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) any Liabilities of the Seller Sellers arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Ancillary Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and othersall Seller Expenses;
(b) any Liability for (i) Taxes of the Seller (or any stockholder or Affiliate of the Seller) including any Taxes relating to the Business, the Purchased Assets or the Assumed Liabilities for with respect to any Pre-Closing Tax Period, ; (ii) any Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14hereby, or (iii) any Transfer Taxes that are the responsibility of Sellers pursuant to Section 5.07, and (iv) any other Taxes of Seller Sellers (or any stockholder or Affiliate of the SellerSellers) of any kind or description (including any Liability for Taxes of the Seller Sellers (or any stockholder or Affiliate of the SellerSellers) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(c) any Liabilities relating to or the extent arising out of the Excluded AssetsAssets and not included in the Assumed Liabilities;
(d) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation of the Business on or prior to the Closing Date, other than the Customer Servicing Related Liabilities;
(e) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the SellerSellers, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service sold, in each case, to the extent relating to a procedure which was performed by prior to the SellerClosing;
(f) any recall, design defect Liabilities of Sellers arising under or similar claims of in connection with any products manufactured or sold or any service performed by the SellerBenefit Plan;
(g) any Liabilities of the Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of the Seller;
(h) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller Sellers for any present or former employees, officers, directors, retirees, independent contractors or consultants of the SellerSellers, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, transaction bonuses, change of control bonuses, termination or other payments;
(ih) any Environmental Claims, Claims or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the Seller;Closing; and
(j) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, (ii) which constitute intercompany payables owing to Affiliates of the Seller, (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of business;
(k) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, (ii) did not arise in the ordinary course of business, or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees;
(n) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth in Section 2.03(b), to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing;
(o) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or any other Person; and
(p) any Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates to comply with any Law or Governmental OrderFunded Obligations.
Appears in 1 contract
Excluded Liabilities. The Notwithstanding the provisions of Section 2.03 or any other provision in this Agreement to the contrary, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) any Liabilities of the Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any Liability for (i) Taxes of the Seller (or any stockholder or Affiliate of the Seller) including any Taxes or relating to or arising from the operation of the Business, or the ownership or use of the Purchased Assets or the Assumed Liabilities prior to the Closing (for the avoidance of doubt, including any Pre-Taxes the payment of which is extended, deferred or delayed until after the Closing Tax Period, under the CARES Act or otherwise as a result of the effects of the COVID-19 pandemic); (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, 6.07; or (iii) any other Taxes of Seller (or any stockholder or Affiliate of the Seller) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder or Affiliate of the Seller) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(c) any Liabilities relating to or arising out of the Excluded Assets;
(d) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date;
(e) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the Seller;
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed by the Seller;
(g) any Liabilities of the Seller arising under or under, in connection or with respect to any Benefit Plan providing benefits to any present or former employee of the SellerPlan;
(h) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;
(i) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the Seller;
(j) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, ; (ii) which constitute intercompany payables owing to Affiliates of the Seller, ; (iii) which constitute debt, loans or credit facilities to financial institutions, ; or (iv) which did not arise in the ordinary course of business;
(k) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, ; (ii) did not arise in the ordinary course of business, ; or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees;
(nm) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth which do not conform to the representations and warranties with respect thereto contained in Section 2.03(b), this Agreement; or (iii) to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing;
(on) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or any other Personinstitutions; and
(po) any Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates to comply with any Law or Governmental Order.
Appears in 1 contract
Excluded Liabilities. The Notwithstanding the provisions of Section 2.03 or any other provision in this Agreement to the contrary, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) any Liabilities of the Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Ancillary Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(b) unless reflected on the final Closing Working Capital Statement, any Liability for (i) Taxes of the Seller (or any stockholder or Affiliate of the Seller) including any Taxes or relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, ; (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, 6.10; or (iii) any other Taxes of Seller (or any stockholder or Affiliate of the Seller) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder or Affiliate of the Seller) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(c) any Liabilities relating to or arising out of the Excluded Assets;
(d) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date, other than Product Warranty Claims;
(e) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the Seller;
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed by the Seller, excluding valid Product Warranty Claims;
(g) any Liabilities of the Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of Seller unless reflected on the Sellerfinal Closing Working Capital Statement;
(h) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, with respect to conditions and events that occurred prior to Closing, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments, except as set forth on the final Closing Working Capital Statement;
(i) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the Seller;
(j) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, final Closing Working Capital Statement; or (ii) which constitute intercompany payables owing to Affiliates of the Seller, (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of business;
(k) any intercompany payables owing to Seller’s Owner;
(l) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, ; (ii) did not arise in the ordinary course of business, ; or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees;
(n) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth which do not conform to the representations and warranties with respect thereto contained in Section 2.03(b), this Agreement; or (iii) to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing;
(o) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or any other Personinstitutions; and
(p) any Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates to comply with any Law or Governmental Order.
Appears in 1 contract
Excluded Liabilities. The Notwithstanding the provisions of Section 2.03 or any other provision in this Agreement to the contrary, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller Sellers or any of its their Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller Sellers shall, and shall cause each of its their Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) any Liabilities of the Seller Sellers arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any Liability for (i) Taxes of the Seller Sellers (or any stockholder or Affiliate of the SellerSellers) including any Taxes or relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, (ii) including for greater certainty and except as provided herein, Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or and that are the responsibility of the Seller pursuant to Section 6.14, Sellers; or (iiiii) any other Taxes of Seller Sellers (or any stockholder or Affiliate of the SellerSellers) of any kind or description (including any Liability for Taxes of the Seller Sellers (or any stockholder or Affiliate of the SellerSellers) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(c) any Liabilities relating to or arising out of the Excluded Assets;
(d) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date;
(e) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the SellerSellers, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the SellerSellers;
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed by the SellerSellers;
(g) any Liabilities of the Seller Sellers arising under or in connection with any Benefit Plan providing benefits to any present or former employee of the SellerEmployee Plans and their related Contracts;
(h) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of Sellers relating to the Seller for any present presence or former employeesRelease of Hazardous Materials, officersexisting on or prior to the Closing, directorsprovided, retireeshowever, independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;
(i) any Environmental Claims, or Liabilities under Environmental Laws, except to the extent arising out of or relating contributed to facts, circumstances or conditions existing on or prior to by the Closing or otherwise to the extent arising out of any actions acts or omissions of the SellerBuyer or the Buyer’s agents, contractors or other representatives;
(ji) any trade accounts payable of the Seller Sellers (i) to the extent not accounted for on the Interim Balance Sheet, ; (ii) which constitute intercompany payables owing to Affiliates of the Seller, Sellers; (iii) which constitute debt, loans or credit facilities to financial institutions, ; or (iv) which did not arise in the ordinary course of business;
(kj) any Liabilities of the Business relating to or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller Sellers on or before the Closing, ; (ii) did not arise in the ordinary course of business, ; or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(mk) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller Sellers (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 the Indemnification Agreement as the Seller Indemniteesindemnitees;
(nl) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth which do not conform to the representations and warranties with respect thereto contained in Section 2.03(b), this Agreement; or (iii) to the extent such Liabilities arise out of or relate to a breach by the Seller Sellers of such Contracts prior to Closing;
(om) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller Sellers and/or the Business owing to financial institutions or any other Personinstitutions; and
(pn) any Liabilities arising out of, in respect of or in connection with the failure by the Seller Sellers or any of its their Affiliates to comply with any Law or Governmental Order.
Appears in 1 contract
Excluded Liabilities. The Except as expressly provided to the contrary in this Agreement (including, but not limited to, Section 3.2 above), under no circumstance shall Buyer shall not assume be obligated to pay or assume, and shall not be responsible to pay, perform or discharge any Liabilities none of the Assets shall be or become liable for or subject to, any liability of Seller or any of its Affiliates of any kind Affiliates, including the following, whether fixed or nature whatsoever other than contingent, recorded or unrecorded, known or unknown, and whether or not set forth on the Assumed Liabilities Schedules hereto (collectively, the “Excluded Liabilities”). The Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:):
(a) any Liabilities obligation or liability accruing, arising out of, or relating to acts or omissions of the Seller arising or incurred any Person in connection with the negotiation, preparation, investigation and performance Assets or the operation of this Agreement, the other Transaction Documents and Business prior to the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and othersEffective Time;
(b) any Liability for obligation or liability accruing, arising out of, or relating to any act or omission by Seller, any of its Affiliates, or any of their respective medical staff, employees, agents, vendors or representatives before or after the Effective Time (i) Taxes it being understood that any act or omission by the medical staff, employees, agents, vendors and representatives of the Seller (or any stockholder or Affiliate Facility and Business as of and after the Seller) including any Taxes relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are Effective Time will not be the responsibility of the Seller pursuant to Section 6.14, or (iii) any Taxes of Seller (or any stockholder or Affiliate of the Seller) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder or Affiliate of the Seller) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Lawand its Affiliates);
(c) any Liabilities obligation or liability accruing, arising out of, or relating to any breach of any Assumed Contract by Seller or arising out any of its Affiliates prior to the Excluded AssetsEffective Time;
(d) any Liabilities in respect of any pending obligation or threatened Action liability accruing, arising out of, or relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Dateany Excluded Contract;
(e) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by long-term indebtedness (including the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the Sellercurrent portion thereof);
(f) any recallindebtedness for borrowed money, design defect including indebtedness owed to a bank or other similar claims of any products manufactured or sold or any service performed by the Sellerfinancial institution;
(g) any Liabilities of the Seller arising under intercompany or in connection with any Benefit Plan providing benefits to any present or former employee of the Sellerrelated-party indebtedness;
(h) subject any liability or obligation for severance with respect to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities employees of the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other paymentsits Affiliates;
(i) any Environmental Claimsobligation or liability accruing, or Liabilities under Environmental Laws, to the extent arising out of of, or relating to factsany federal, circumstances state or conditions existing on local investigations, claims or actions with respect to acts or omissions (or suspected or alleged acts or omissions) of Seller, any of its Affiliates or any of their respective employees, medical staff, agents, vendors prior to the Closing or otherwise to the extent arising out of any actions or omissions of the SellerEffective Time;
(j) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheetcivil or criminal obligation or liability accruing, (ii) which constitute intercompany payables owing to Affiliates of the Seller, (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of business;
(k) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, (ii) did not arise in the ordinary course of business, or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees;
(n) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth in Section 2.03(b), to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing;
(o) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or any other Person; and
(p) any Liabilities arising out of, in respect or relating to any acts or omissions of or in connection with the failure by the Seller or Seller, any of its Affiliates or any of their respective directors, officers, employees and agents claimed to comply with violate any Law or Governmental Order.laws;
Appears in 1 contract
Excluded Liabilities. The Notwithstanding the provisions of Section 2.03 or any other provision in this Agreement to the contrary, no member of the Buyer Group shall not assume and nor shall not any one of them be responsible to pay, perform or discharge any Liabilities of the Seller Sellers or any of its their Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller Sellers shall, and shall cause each of its their Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) any Liabilities of the Seller Sellers arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and othersothers (collectively, “Third Party Expenses”);
(b) any Liability for (i) Taxes of the Seller Sellers (or any stockholder or Affiliate of the SellerSellers) including any Taxes or relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, ; (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller Sellers pursuant to Section 6.14, 6.12; or (iii) any other Taxes of Seller Sellers (or any stockholder or Affiliate of the SellerSellers) of any kind or description (including any Liability for Taxes of the Seller Sellers (or any stockholder or Affiliate of the SellerSellers) that becomes a Liability of one of the members of the Buyer Group under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(c) any Liabilities relating to or arising out of the Excluded Assets;
(d) any Liabilities in respect of any pending Action, or to Sellers’ Knowledge in respect of any threatened Action Action, in each case arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date;
(e) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the SellerSellers, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by Sellers, provided that such claim arises out of or relates to the Selleroperation of the Business or the Purchased Assets on or prior to the Closing Date;
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed by Sellers, provided that such claim arises out of or relates to the Selleroperation of the Business or the Purchased Assets on or prior to the Closing Date;
(g) any Liabilities of the Seller Sellers arising under or in connection with any Benefit Plan providing benefits to any present or former employee of Sellers, except for any Liabilities relating to periods after the SellerClosing with respect to any Benefit Plans providing health care benefits;
(h) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller Sellers for any present or former employees, officers, directors, retirees, independent contractors or consultants of the SellerSellers, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ ' compensation, severance, retention, termination or other payments;
(i) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the SellerSellers;
(j) any trade accounts payable of the Seller (i) Sellers to the extent third parties not accounted for on the Interim Balance Sheet, (ii) which constitute intercompany payables owing expressly assumed pursuant to Affiliates of the Seller, (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of businessSection 2.03(a);
(k) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, (ii) did not arise in the ordinary course of business, or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller Sellers (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees;
(nl) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth in Section 2.03(b), to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing;
(om) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller Sellers and/or the Business owing to financial institutions or any other Personinstitutions; and
(pn) any Liabilities arising out of, in respect of or in connection with the failure by the Seller Sellers or any of its their Affiliates to comply with any Law or Governmental Order.
Appears in 1 contract
Sources: Asset Purchase Agreement (Precision Aerospace Components, Inc.)
Excluded Liabilities. The Notwithstanding the provisions of Section 2.03 or any other provision in this Agreement to the contrary, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller Sellers or any of its their Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “"Excluded Liabilities”"). The Seller Sellers and the Principals, respectively, shall, and shall cause each of its their respective Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are are, respectively, obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) any Liabilities of the Seller Sellers arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and othersothers of Sellers;
(b) any Liability for (i) Taxes of either Seller, the Seller Principals (or any stockholder or Affiliate of the SellerSellers) including any Taxes or relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, ; (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller Sellers pursuant to Section 6.14, ; or (iii) any other Taxes of Seller Sellers, the Principals (or any stockholder or Affiliate of the SellerSellers) of any kind or description (including any Liability for Taxes of the Seller Sellers (or any stockholder or Affiliate of the SellerSellers) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(c) any Liabilities relating to or arising out of the Excluded Assets;
(d) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date;
(e) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the either Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the either Seller;
(f) any recall, design defect or similar claims of any products manufactured leased or sold or any service performed by the either Seller;
(g) any Liabilities of the Seller Sellers arising under or in connection with any Benefit Plan providing benefits to any present or former employee of the SellerSellers;
(h) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller Sellers for any present or former employees, officers, directors, retireesmanagers, members, independent contractors or consultants of the SellerSellers, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ ' compensation, severance, retention, termination or other payments;
(i) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing Date or otherwise to the extent arising out of any actions or omissions of Sellers on or prior to the SellerClosing Date;
(j) any trade accounts payable of the Seller (i) Sellers to the extent not accounted for on in the Interim Balance Sheet, Net Working Capital statement;
(iik) which any liabilities that constitute intercompany payables owing to Affiliates of the Seller, Sellers;
(iiil) which any liabilities that constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of business;
(km) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ ' customers to the Seller Sellers on or before the Closing, Closing Date; (ii) did not arise in the ordinary course of business, ; or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(mn) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller Sellers (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees;
(no) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property AgreementsLicenses, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth which do not conform to the representations and warranties with respect thereto contained in Section 2.03(b), this Agreement; or (iii) to the extent such Liabilities arise out of or relate to a breach by the Seller Sellers of such Contracts prior to Closingthe Closing Date;
(op) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller Sellers and/or the Business owing to financial institutions or any other Personinstitutions; and
(pq) any Liabilities arising out of, in respect of or in connection with the failure by the Seller Sellers or any of its their Affiliates to comply with any Law or Governmental Order.
Appears in 1 contract
Excluded Liabilities. The Neither Buyer nor any of its Affiliates shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities Group (such unassumed Liabilities, the “Excluded Liabilities”). The Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy) other than Assumed Liabilities. Without limiting the generality of the foregoing, in no event shall Buyer or any of its Affiliates assume or incur any Liability in respect of, and the Excluded Liabilities Seller Group shall includeremain bound by and liable for, but not be limited toand shall pay, discharge or perform when due, the following:following (each of which shall be deemed an Excluded Liability):
(a) all Liabilities for Taxes of Seller or its Affiliates (except for sales, use, transfer, harmonized sales tax, transfer or value added tax imposed in respect of the transactions contemplated by this Agreement or any Ancillary Agreement);
(b) all Liabilities in respect of the Excluded Contracts and other Excluded Assets;
(c) all product Liability, warranty and similar claims for damages or injury to person or property, claims of infringement of Intellectual Property Rights and all other Liabilities, regardless of when made or asserted, which arise out of or are based upon any events occurring or actions taken or omitted to be taken by any member of the Seller Group, or otherwise arising out of or incurred in connection with the conduct of the Business, on or before the Closing Date;
(d) all Employee Claims and Liabilities under Seller Group Benefit Plans;
(e) all Environmental Liabilities;
(f) all Indebtedness of the Seller Group; and
(g) all Liabilities arising out of or incurred in connection with the negotiation, preparation, investigation preparation and performance execution of this Agreement, Agreement and the other Transaction Documents Ancillary Agreements and the consummation of the transactions contemplated hereby and thereby, including, without limitation, including fees and expenses of counsel, accountants, consultants, advisers accountants and others;
(b) any Liability for (i) Taxes of the Seller (or any stockholder or Affiliate of the Seller) including any Taxes relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, or (iii) any Taxes of Seller (or any stockholder or Affiliate of the Seller) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder or Affiliate of the Seller) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(c) any Liabilities relating to or arising out of the Excluded Assets;
(d) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date;
(e) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the Seller;
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed by the Seller;
(g) any Liabilities of the Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of the Seller;
(h) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;
(i) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the Seller;
(j) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, (ii) which constitute intercompany payables owing to Affiliates of the Seller, (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of business;
(k) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, (ii) did not arise in the ordinary course of business, or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees;
(n) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth in Section 2.03(b), to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing;
(o) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or any other Person; and
(p) any Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates to comply with any Law or Governmental Orderexperts.
Appears in 1 contract
Excluded Liabilities. The Buyer Notwithstanding the provisions of Section 2(c) or any other provision in this Agreement to the contrary, Cypress shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller Enertopia or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “"Excluded Liabilities”"). The Seller Enertopia shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) i. any Liabilities of the Seller Enertopia arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(b) ii. any Liability for (i) Taxes of the Seller Enertopia (or any stockholder or Affiliate of the Seller) including any Taxes Enertopia), or relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller Enertopia pursuant to Section 6.148(b), or (iii) any other Taxes of Seller Enertopia (or any stockholder or Affiliate of the SellerEnertopia) of any kind or description (including any Liability for Taxes of the Seller Enertopia (or any stockholder or Affiliate of the SellerEnertopia) that becomes a Liability of the Buyer Cypress under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(c) iii. any Liabilities relating to or arising out of any assets of Enertopia, or its Affiliates not included in the Excluded definition of Purchased Assets;
(d) iv. any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such any activity or operation on or prior to the Closing Date;
(e) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the Seller;
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed by the Seller;
(g) any Liabilities of the Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of the Seller;
(h) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;
(i) v. any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the SellerEnertopia;
(j) vi. any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, (ii) which constitute intercompany payables owing to Affiliates of the Seller, (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of businessEnertopia ;
(k) vii. any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders Enertopia that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, (ii) did not arise in the ordinary course of business, or (iii) are not validly and effectively assigned to the Buyer Cypress pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees;
(n) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth in Section 2.03(b), to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing;
(o) viii. any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business Enertopia, or its Affiliates owing to financial institutions or any other Personinstitutions; and
(p) any Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates to comply with any Law or Governmental Order.
Appears in 1 contract
Excluded Liabilities. The Buyer Notwithstanding anything herein to the contrary, neither Transferee nor Newco shall not assume and shall not assume, or be responsible deemed in any way to payhave assumed, perform or discharge otherwise be liable for, any Liabilities Liabilities, of any nature or kind whatsoever, of the Seller Business, Transferor or any of its Affiliates of any kind Transferor’s Affiliates, or nature whatsoever the Services, other than the Assumed Liabilities, and Transferor and its Affiliates shall retain and be responsible for all other Liabilities of Transferor, Transferor’s Affiliates, the Business and the Services, including each of the following (collectively, the “Excluded Liabilities”). The Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course ):
(i) all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:Tax Liabilities;
(aii) any all Excluded Contractual Liabilities;
(iii) all Liabilities of Transferor under the Seller arising or incurred in connection with the negotiation, preparation, investigation and performance terms of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(biv) any Liability for (i) Taxes all Liabilities arising out of the Seller (or any stockholder or Affiliate of the Seller) including any Taxes relating to the Business, the Purchased Assets or the Assumed any Excluded Asset;
(v) all Liabilities for any Pre-Closing Tax Period, (ii) Taxes of the Seller that arise arising out of the consummation employment or other engagement of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, or (iii) any Taxes of Seller (or any stockholder or Affiliate of the Seller) individual performing services of any kind for or description on behalf of any Transferor Party (including any Liability for Taxes of the Seller (or any stockholder or Affiliate of the Seller) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or LawCompensation and Benefit Plans);
(cvi) any all Liabilities relating to or arising out of or relating to the Excluded ownership or operation of any assets or business, or any acts or omissions of Transferor or of any of its Affiliates, to the extent such Liabilities are not related to the Business or the Acquired Assets;; and
(dvii) any all Liabilities in respect of any pending or threatened Action arising out of, Transferor (other than the Assumed Liabilities) to the extent relating to or otherwise in respect of the operation of the Business or the Purchased ownership of the Acquired Assets to the extent such Action relates to such operation on or prior to the Closing Date;
(e) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the Seller;
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed by the Seller;
(g) any Liabilities of the Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of the Seller;
(h) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;
(i) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the Seller;
(j) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, (ii) which constitute intercompany payables owing to Affiliates of the Seller, (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of business;
(k) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, (ii) did not arise in the ordinary course of business, or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees;
(n) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth in Section 2.03(b), to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing;
(o) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or any other Person; and
(p) any Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates to comply with any Law or Governmental Order.
Appears in 1 contract
Sources: Assignment and Assumption Agreement (Penson Worldwide Inc)
Excluded Liabilities. The Buyer shall not assume and shall not be responsible Notwithstanding anything to paythe contrary in this Agreement, perform or discharge any Liabilities of the Seller or neither Purchaser nor any of its Subsidiaries shall assume or otherwise be responsible for any Liabilities or Losses of Seller or its Affiliates of any kind whatever nature, whether presently in existence or nature whatsoever other than the arising hereafter, which are not Assumed Liabilities (collectively, the “Excluded Liabilities”). The Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all be responsible for the Excluded Liabilities which they are obligated to pay and satisfyLiabilities. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, include the followingfollowing Liabilities:
(ai) all Liabilities of Seller to the extent arising out of the operation or conduct by Seller of any business other than the Business or relating to the operation or conduct of the Business prior to the Closing;
(ii) all Liabilities with respect to any Designated Contract arising from a breach, failure to perform, warranty, default or other violation by Seller prior to the Closing, other than Cure Costs for Disclosed Additional Designated Contracts which Purchaser shall be obligated to pay;
(iii) any Liabilities of the Seller arising out of any Excluded Asset, including any Liabilities related to any claim of breach of contract or any successor liability, tortious interference, fraudulent conveyance or other claim related thereto, whether brought against Seller or any Affiliate of Seller or against any other Person, including Purchaser or any of its Affiliates, with respect to any Contract which is an Excluded Asset;
(iv) accounts payable of Seller or otherwise arising from the conduct of the Business prior to the Closing;
(v) performance, warranty or support obligations, express or implied, under Contracts or otherwise, to third parties, other than to the extent that the foregoing arise and are required to be performed on or after the Closing with respect to the Transferred Assets and do not arise from a breach, failure to perform, warranty, default or other violation by Seller or its Affiliate on or prior to the Closing; provided that the foregoing shall not limit the obligations of the Purchaser with respect to Cure Costs provided for elsewhere in this Article 2;
(vi) any Excluded Employee Liabilities;
(vii) any fees or expenses incurred by or on behalf of Seller in connection with this Agreement, any of the Related Agreements, the Transactions or any equity or debt financing or sale transactions contemplated by Seller;
(viii) any non-compliance with any applicable bulk sale or bulk transfer laws of any jurisdiction in connection with the negotiation, preparation, investigation sale and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any Liability for (i) Taxes transfer of the Seller (or any stockholder or Affiliate of the Seller) including any Taxes relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, or (iii) any Taxes of Seller (or any stockholder or Affiliate of the Seller) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder or Affiliate of the Seller) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(c) any Liabilities relating to or arising out of the Excluded Transferred Assets;
(dix) all Liabilities of Seller related to, based on or arising from any Liabilities in respect Actions that are threatened or pending at any time against or involving Seller or any of any pending or threatened Action arising out of, relating its Affiliates;
(x) the Seller’s Retained Environmental Liabilities; and
(xi) (A) Taxes related to or otherwise in respect of the operation of the Business or the Purchased Transferred Assets to the extent such Action relates attributable to such operation periods (or portions thereof) ending on or prior to the Closing Date;
(e) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the Seller;
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed by the Seller;
(g) any Liabilities of the Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of the Seller;
(h) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;
(i) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the Seller;
(j) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, (iiB) which constitute intercompany payables owing to Affiliates of the Seller, (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of business;
(k) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, (ii) did not arise in the ordinary course of business, or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same all Transfer Taxes pursuant to Section 8.03 as the Seller Indemnitees;
2.5, (nC) any Liabilities under the Excluded Contracts Taxes of Seller or its Affiliates, and (D) any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth in Section 2.03(b), to the extent such Liabilities arise out of or Taxes that relate to a breach by the Seller of such Contracts prior to Closing;
(o) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or any other Person; and
(p) any Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates to comply with any Law or Governmental OrderExcluded Assets and Excluded Liabilities.
Appears in 1 contract
Excluded Liabilities. The Notwithstanding the provisions of Section 2.4 or any other provision in this Agreement to the contrary, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”), including without limitation those Liabilities set forth on Schedule 2.5 attached hereto. The Seller shall not convey, transfer or assign and Buyer shall not assume, and does and shall not have any obligation or duty to pay or perform, the Excluded Liabilities. Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:: [*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
(a) any Liabilities of the Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any Liability for (i) Taxes of the Seller (or any stockholder or Affiliate of the Seller) including any Taxes or relating to the BusinessAVRL, the Purchased Assets or the Assumed Liabilities for any Pre-period prior to the Closing Tax Period, Date; (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, 7.7; or (iii) any other Taxes of Seller (or any stockholder or Affiliate of the Seller) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder or Affiliate of the Seller) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(c) any Liabilities relating to or arising out of the Excluded Assets;
(db) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business AVRL or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date;
(e) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the Seller;
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed by the Seller;
(gc) any Liabilities of the Seller arising under or in connection with any Employee Benefit Plan providing benefits to any present or former employee of the Seller;
(h) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, and any Liabilities of the Seller for to any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;
(i) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the Seller;
(j) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, (ii) which constitute intercompany payables owing to Affiliates of the Seller, (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of business;
(kd) any Liabilities of the Business AVRL relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ AVRL’s customers to the Seller on or before the Closing, ; (ii) did not arise in the ordinary course of business, ; or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees;
(n) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth in Section 2.03(b), to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing;
(o) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or any other Person; and
(pe) any other Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates to comply with any Law or Governmental Orderthat is not an Assumed Liability.
Appears in 1 contract
Excluded Liabilities. The Notwithstanding anything to the contrary in this Agreement or any Ancillary Document, Buyer shall not assume and shall not or in any way become liable for, or be responsible to pay, perform or discharge any Liabilities of the Seller or any of its Affiliates of any kind or nature whatsoever other than Affiliates, except for the Assumed Liabilities Liabilities, whether related to the Business or the Purchased Assets, whether or not disclosed on the Schedules attached hereto, and regardless of when or by whom asserted (the “Excluded Liabilities”). The Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but to the extent not be limited toexpressly included in the Assumed Liabilities, the following:
(a) any Liabilities of the Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Ancillary Documents and the transactions contemplated hereby and thereby, including, without limitation, including fees and expenses of counsel, accountants, consultants, advisers advisers, and others;
(b) any Liability for for: (i) Taxes of the Seller (or any stockholder Owner or Affiliate of the Seller), in respect of any taxable period; (ii) including any Taxes relating to the Business, the Purchased Assets or the Assumed Liabilities for any Prepre-Closing Tax Period, tax period; (iiiii) Taxes of relating to the Seller Excluded Assets or Excluded Liabilities for any taxable period; (iv) Taxes that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, 7.7; or (iiiv) any other Taxes of Seller (or any stockholder Owner or Affiliate of the Seller) of any kind or description for any taxable period (including any Liability for Taxes of the Seller (or any stockholder or Affiliate of the Seller) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(c) any Liabilities relating to or arising out of the Excluded Assets;
(d) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing DateClosing;
(e) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement agreement, or guaranty made by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products Business Products at any time manufactured for or sold or any service performed by Seller (including the SellerInventory);
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed Business Products, including the Inventory (except to the extent caused by changes to applicable Laws with effect following the SellerClosing);
(g) any Liabilities of the Seller arising under or in connection with any Employee Benefit Plan providing benefits to any present or former employee of the SellerPlan;
(h) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller for any present Business Employees, or any former employees, officers, directors, retirees, independent contractors contractors, or consultants of the Seller, including, without limitation, including any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination termination, or other payments;
(i) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the SellerClosing;
(j) any trade accounts payable of the Seller (i) for any period except to the extent not accounted for on the Interim Balance Sheet, (ii) which such trade accounts payable constitute intercompany payables owing to Affiliates of the Seller, (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of businessOpen Purchase Orders;
(k) any Liabilities of the Business relating or arising from (including, but not limited to, unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (iorders, infringement or misappropriation claims and any related claims and litigation) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller arising on or before the Closing, (ii) did not arise in the ordinary course of business, or (iii) are not validly and effectively assigned to the Buyer pursuant to this AgreementClosing Date;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee employee, or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 ARTICLE VIII as the Seller IndemniteesIndemnified Parties;
(nm) any Liabilities under the Excluded Assigned Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth in Section 2.03(b), to the extent such Liabilities arise out of or relate to a breach (i) any Liability or obligation required to be paid, performed or otherwise discharged on or prior to the Closing Date, (ii) any breach, default, or violation by the Seller of such Assigned Contract; or (iii) any Liability or obligation relating to or arising from the performance, non-performance, breach or default of or under, any torts related to the performance of, any breach of warranty, or violation of Law or infringements under, any such Assigned Contracts occurring on or prior to Closingthe Closing Date;
(n) any Liabilities which Buyer may become liable for as a result of or in connection with the failure by Seller or Buyer to comply with any bulk sales or bulk transfers laws or as a result of any de facto merger or successor-in-interest theories;
(o) any Liabilities associated with debt, preferred securities, loans or credit facilities borrowed money (including all Indebtedness) of the Seller and/or the Business owing to financial institutions or any other PersonOwner; and
(p) any Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates the Owners to comply with any applicable Law or Governmental Order. For purposes of this Section 2.4, “Seller” shall be deemed to include all Affiliates of Seller and any predecessors to Seller and any Person with respect to which Seller is a successor-in-interest (including by operation of Law, merger, liquidation, consolidation, assignment, assumption or otherwise). Seller hereby acknowledges that it is retaining the Excluded Liabilities, and Seller shall pay, discharge and perform all such Liabilities and obligations promptly when due.
Appears in 1 contract
Excluded Liabilities. The Buyer Notwithstanding anything to the contrary in Section 1.11, Purchaser shall not assume and shall not be or become responsible to pay, perform or discharge any Liabilities of the Seller or for any of its Affiliates Seller's or the Subsidiaries' duties, obligations or liabilities that are not assumed by Purchaser pursuant to the terms of this Agreement, the Bills of Sale or the Real Estate Assignment(s), regardless of whether such obligation or liability is known or unknown, fixed or contingent, and regardless of whether such liability arises from contract, tort or otherwise (the "Excluded Liabilities"), and Seller and the Subsidiaries shall remain fully and solely responsible for all debts, liabilities, contract obligations, expenses, obligations and claims of any kind or nature whatsoever other than related to the Assumed Liabilities (Assets or the “Excluded Liabilities”Hospitals unless assumed by Purchaser under this Agreement, in the Bills of Sale or in the Real Estate Assignment(s). The Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the followingwithout limitation:
(a) any Liabilities current liabilities of the Seller arising Subsidiaries with respect to the operation of any of the Hospitals on or incurred prior to the Closing Date (i) which are not included in connection with Net Working Capital, as determined pursuant to Sections 1.2 and 1.4 and (ii) which are not otherwise specifically included in the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and othersAssumed Obligations;
(b) all liabilities arising out of or relating to any Liability for (i) Taxes act, omission, event or occurrence connected with the use, ownership or operation of any of the Seller (Hospitals or any stockholder or Affiliate of the Seller) including any Taxes relating Assets on or prior to the BusinessClosing Date, the Purchased Assets or other than as specifically included in the Assumed Liabilities for any Pre-Closing Tax Period, (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, or (iii) any Taxes of Seller (or any stockholder or Affiliate of the Seller) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder or Affiliate of the Seller) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law)Obligations;
(c) any Liabilities relating to or all liabilities arising out of or relating to any act, omission, event or occurrence connected with Seller, the Excluded AssetsSubsidiaries or the operations or activities of Seller or any of the Subsidiaries, other than as specifically included in the Assumed Obligations;
(d) all liabilities of Seller or any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation Subsidiaries in connection with claims of the Business or the Purchased Assets professional malpractice to the extent such Action relates arising out of or relating to such operation acts, omissions, events or occurrences on or prior to the Closing Date;
(e) all liabilities of Seller or any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller, or by reason of the improper performance Subsidiaries with respect to its or malfunctioning of a producttheir 401(k) plans, improper design Section 125 plans and other Seller Plans and all administrative costs associated with such welfare benefit plans arising on or manufacture, failure prior to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the SellerClosing Date;
(f) all liabilities of Seller and/or any recall, design defect or similar claims of any products manufactured or sold or any service performed by the Seller;
(g) any Liabilities of the Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of the Seller;
(h) subject to Section 6.24 with regard Subsidiary relating to the ▇▇▇▇▇ Debt Obligation, any Liabilities of Subsidiaries' Cost Reports with respect to periods ending on or prior to the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the SellerClosing Date, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other paymentsrecapture of previously reimbursed expenses and depreciation;
(ig) all liabilities of Seller or any Environmental Claimsof the Subsidiaries for violations of any law, regulation or Liabilities under Environmental Laws, rule to the extent arising out of from acts or relating to facts, circumstances or conditions existing omissions on or prior to the Closing Date, including, without limitation, those pertaining to Medicare and Medicaid fraud or otherwise to the extent arising out of any actions or omissions of the Seller;
(j) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, (ii) which constitute intercompany payables owing to Affiliates of the Seller, (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of business;
(k) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, (ii) did not arise in the ordinary course of business, or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees;
(n) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth in Section 2.03(b), to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing;
(o) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or any other Personabuse; and
(ph) all liabilities of Seller or any Liabilities arising out of, in respect of the Subsidiaries for commissions or fees owed to any finder or broker in connection with the failure by the Seller or any of its Affiliates to comply with any Law or Governmental Ordertransactions contemplated hereunder.
Appears in 1 contract
Excluded Liabilities. The Other than the Assumed Liabilities, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller or any of its subsidiaries or controlled Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (collectively, the “Excluded Liabilities”). The Seller shall, and shall cause each of its subsidiaries or controlled Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoingforgoing, the Excluded Liabilities shall include, but not be limited to, the following::
(ai) any all Liabilities of Seller with respect to indebtedness for borrowed money or otherwise associated with debt, loans, or credit facilities of the Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and othersBusiness owing to financial institutions;
(bii) all Liabilities for any Liability for (iA) Taxes of the Seller (or any stockholder or Affiliate of the Seller), (B) including any Taxes relating to the Business, the Purchased Acquired Assets or the Assumed Liabilities for any Pre-Closing Tax Period, (iiC) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby by this Agreement or that are the responsibility of the Seller (or any Affiliate of Seller) pursuant to Section 6.148.7, or (iiiD) any Taxes of Seller (or any stockholder or Affiliate of the Seller) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder or Affiliate of the Seller) that becomes would become a Liability liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or LawLaw (including, for the avoidance of doubt, any Taxes arising out of the failure to comply with any bulk sales, bulk transfer, business successor or similar Laws of any jurisdiction that may otherwise be applicable with respect to the transactions contemplated under this Agreement in the form and manner required by any applicable taxing authorities and any Taxes arising out of the failure to acquire any available tax clearance certificate from any such taxing authority);
(ciii) (A) all Liabilities arising out of or related to the employment or termination of employment of any employee of Seller arising before, on or after the Closing Date, including all Liabilities to make payments to any employee of Seller pursuant to retention agreements, change of control agreements and/or bonus agreements;
(iv) all Liabilities of Seller for costs and expenses incurred in connection with this Agreement or the consummation of the transactions contemplated by this Agreement;
(v) all Liabilities relating to or arising out of the Excluded Assets;
(dvi) any without prejudice to the terms and conditions of the Commercial Agreement, all Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect arising out of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Dategovernment price reporting obligations and contractual obligations under Seller’s Contracts with customers (including wholesalers, pharmacy benefit managers, managed care organizations, government programs, group purchasing organizations, and other third parties);
(evii) any product Liability or similar claim for injury without prejudice to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller, or by reason terms and conditions of the improper performance or malfunctioning of a productSupply Agreement, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the Seller;
(f) any recall, design defect or similar claims of any products manufactured or Products sold or any service performed by, or on behalf of, Seller and all Liabilities relating to or arising out of product liability or action relating to the safety of the Products to the extent arising on or prior to the Closing or after Closing for Products sold, at any time, by the SellerSeller or its controlled Affiliates;
(gviii) any Liabilities of the Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of the Seller;
(h) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;
(i) any Environmental Claims, or Liabilities under Environmental Laws, (A) to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing Closing, (B) to the extent arising out of or related to facts, circumstances or conditions at any facilities or real property (whether leased or owned) of Seller, or (C) otherwise to the extent arising out of any actions or omissions of the Seller;
(jix) any trade accounts payable of the Seller;
(x) all Liabilities of Seller (i) to the extent not accounted for on the Interim Balance Sheet, (ii) which constitute intercompany payables owing to Affiliates of the Seller, (iii) which constitute debt, loans under this Agreement or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of businessany other Transaction Document; and;
(kxi) any the Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, (ii) did not arise in the ordinary course of business, or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees;
(n) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth in Section 2.03(bon Schedule 1.1(d), to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing;
(o) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or any other Person; and
(p) any Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates to comply with any Law or Governmental Order.
Appears in 1 contract
Sources: Asset Purchase Agreement (Kala Pharmaceuticals, Inc.)
Excluded Liabilities. The Notwithstanding the provisions of Section 1.03 or any other provision in this Agreement to the contrary, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller Sellers or any of its their Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller Sellers shall, and shall cause each of its their Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) any Liabilities of the Seller Sellers arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Ancillary Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any Liability for (i) Taxes of the a Seller (or any stockholder owner or Affiliate of the a Seller) including or Taxes for any Taxes Pre-Closing Tax Period relating to the Purchased Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, ; (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, 5.09; or (iii) any other Taxes of a Seller (or any stockholder owner or Affiliate of the a Seller) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder owner or Affiliate of the Seller) for any Pre-Closing Tax Period that becomes become a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(c) any Liabilities relating to or arising out of the Excluded Assets;
(d) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Purchased Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date. Including for the avoidance of doubt, all Actions relating to Continental Materials Corporation v. Valco, Inc., Civil Action No. 2014-cv-2510, in the United States District Court for the District of Colorado (the “Valco Litigation”);
(e) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the SellerSellers, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the Seller;
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed by the SellerSellers;
(g) any Liabilities of the Seller Sellers arising under or in connection with any Benefit Plan providing benefits to any present or former employee of the SellerSellers;
(h) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller Sellers for any present or former employees, officers, directors, retirees, independent contractors or consultants of the a Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;
(i) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of a Seller (other than the SellerReclamation Obligations);
(j) any trade accounts payable of the a Seller (i) to the extent not accounted for on the Interim Balance Sheet, ; (ii) which constitute intercompany payables owing to Affiliates of the a Seller, ; (iii) which constitute debt, loans or credit facilities to financial institutions, ; or (iv) which did not arise in the ordinary course of business;
(k) any Liabilities of the Purchased Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Purchased Business’ customers to the a Seller on or before the Closing, ; (ii) did not arise in the ordinary course of business, ; or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the a Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 6.03 as the Seller Indemnitees;
(nm) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth which do not conform to the representations and warranties with respect thereto contained in Section 2.03(b), this Agreement; or (iii) to the extent such Liabilities arise out of or relate to a breach by the a Seller of such Contracts prior to Closing;
(on) any Liabilities associated with debt, preferred securities, loans or credit facilities of the a Seller and/or the Purchased Business owing to financial institutions or any other Person; andinstitutions;
(po) any Liabilities arising out of, in respect of or in connection with the failure by the a Seller or any of its Affiliates to comply with any Law or Governmental Order.
Appears in 1 contract
Sources: Asset Purchase Agreement (Continental Materials Corp)
Excluded Liabilities. The Buyer Notwithstanding the provisions of Section 2.04 or any other provision in this Agreement to the contrary, Buyers shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) any Liabilities of the Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Ancillary Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any Liability for (i) Taxes of the Seller (or any stockholder or Affiliate of the Seller) including any Taxes or relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, ; (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, 6.15(a); or (iii) any other Taxes of Seller (or any stockholder or Affiliate of Seller (for the Selleravoidance of doubt, not including the UK Subsidiary)) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder or Affiliate of Seller (for the Selleravoidance of doubt, not including the UK Subsidiary)) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(c) any Liabilities relating to or arising out of the Excluded Assets (and not relating to or arising out of the Purchased Assets);
(d) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date;
(e) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by Seller, in each case to the Sellerextent related to the Business or the Purchased Assets;
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed by Seller, to the Sellerextent related to the Business or the Purchased Assets;
(g) any Liabilities of the Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of Seller arising prior to the SellerClosing;
(h) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages benefits, compensation or other benefitssimilar arrangements arising prior to the Closing, bonuses, accrued vacation, workers’ compensation, severance, retention, termination but not including any of the foregoing Liabilities arising after the Closing or other paymentsany portion of the foregoing Liabilities which continue after the Closing;
(i) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of Seller and to the Sellerextent related to the Business or the Purchased Assets;
(j) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, (ii) which constitute intercompany payables owing to Affiliates of the Seller, ; or (iiiii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of business;
(k) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, (ii) did not arise in the ordinary course of business, or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees;
(nm) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the U.S. Buyer pursuant to this Agreement, subject to Section 2.10; or (ii) except as set forth in Section 2.03(b), to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing;
(on) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or any other Personinstitutions; and
(po) any Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates to comply with any Law or Governmental Order, including but not limited to any Export Control Law, the ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ or the Foreign Corrupt Practices Act. provided that, for the avoidance of doubt, no Liabilities of the UK Subsidiary shall be Excluded Liabilities.
Appears in 1 contract
Sources: Asset Purchase Agreement and Stock Purchase Agreement (Schmitt Industries Inc)
Excluded Liabilities. The Notwithstanding the provisions of Section 2.03 or any other provision in this Agreement to the contrary, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but are not be limited to, the following:
(a) any Liabilities of the Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any Liability for (i) Taxes of the Seller (or any stockholder shareholder or Affiliate of the Seller) including any Taxes or relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, ; (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, 6.12; or (iii) any other Taxes of Seller (or any stockholder shareholder or Affiliate of the Seller) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder shareholder or Affiliate of the Seller) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(c) any Liabilities relating to or arising out of the Excluded Assets;
(d) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date;
(e) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by Seller prior to the SellerClosing Date;
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed by Seller prior to the SellerClosing Date;
(g) any Liabilities of the Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of the Seller;
(h) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments, including, for royalties or other payments in connection with any Seller IP (including with respect to employees, in respect of any “service invention”, as such term is defined in the Israeli Patents Law 1967);
(i) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the Seller;
(j) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, (ii) which constitute intercompany payables owing to Affiliates of the Seller, (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of business;
(k) any Liabilities of the Business relating to or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, (ii) did not arise in the ordinary course of business, or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 7.02(d) as the Seller Indemnitees;
(nm) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property AgreementsLicenses, (i) which that are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth in Section 2.03(b), to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing;
(on) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or any other Personinstitutions; and
(po) any Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates prior to the Closing Date to comply with any Law or Governmental Order.
Appears in 1 contract
Excluded Liabilities. The Except for the Assumed Liabilities, neither the Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller or nor any of its Affiliates will assume any liability or obligation of the Sellers or their respective Affiliates (or any predecessor of any kind Seller or nature whatsoever other than any prior owner of all or part of its businesses and assets) relating to or arising from the Assumed Liabilities Business or the Purchased Property (including any liabilities or obligations of the Sellers), of whatever nature, whether direct or indirect, known or unknown, accrued, contingent, absolute, determined, determinable, presently in existence or arising hereafter. All such liabilities and obligations shall be retained by and remain obligations and liabilities of the Sellers or their respective Affiliates (all such liabilities and obligations not being assumed being herein referred to as the “Excluded Liabilities”). The Seller shallFor the avoidance of doubt and notwithstanding any provision in this Agreement or any other writing to the contrary, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but are not be limited to, the following:
(a) any Liabilities liability or obligation for Taxes (i) of the Sellers, (ii) of any other Person for which any Seller is liable pursuant to any agreement or otherwise and (iii) relating to or arising from the Purchased Property or incurred in connection the Business with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and othersrespect to any Pre-Closing Period;
(b) any Liability for (i) Taxes liability or obligation of the Seller (Sellers or their respective Affiliates arising out of any stockholder action, suit, investigation or Affiliate of the Seller) including any Taxes relating proceeding that relates to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, (ii) Taxes of the Seller that arise arises out of the consummation Business or the Purchased Property, in each case to the extent based on facts, events, conditions, situations or sets of circumstances existing or occurring on or prior to the transactions contemplated hereby Closing Date, by or that are the responsibility of the Seller pursuant to Section 6.14, or (iii) before any Taxes of Seller (or any stockholder or Affiliate of the Seller) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder or Affiliate of the Seller) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law)Governmental Entity;
(c) any Liabilities relating to Termination Liability and any Employment-Related Obligations or arising out of the Excluded AssetsLiabilities;
(d) any Liabilities in respect liability or obligation of any pending the Sellers or threatened Action arising out of, their respective Affiliates relating to or otherwise in respect of the operation of the Business arising from or the Purchased Assets to the extent such Action relates to such operation under any third-party marketing or solicitation arrangement existing on or prior to the Closing Date;
(e) any product Liability liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller, or by reason obligation of the improper performance Sellers or malfunctioning of a product, improper design their respective Affiliates relating to or manufacture, failure to adequately package, label arising from or warn of hazards or other related product defects of any products at any time manufactured or sold under an Excluded Asset or any service performed by other asset, property or business of the SellerSellers or their respective Affiliates that is not part of the Purchased Property;
(f) other than the liabilities described in clause (ii) of Section 2.3, any recall, design defect liability of the Sellers or similar claims their respective Affiliates arising out of any products manufactured agreements, contracts or sold or arrangements of the Sellers, including any service performed by the SellerInvestment Contracts;
(g) any Liabilities of the Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of the Sellerall Excluded Clawback Obligations;
(h) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities other liability or obligation of the Seller for any present Sellers or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;
(i) any Environmental Claims, or Liabilities under Environmental Laws, their respective Affiliates solely to the extent arising out of or relating resulting from the operation of the Purchased Property and the Business by the Sellers or their respective Affiliates or solely to facts, circumstances the extent based on the Sellers’ or conditions existing their Affiliates’ actions or omissions on or prior to the Closing or otherwise from events or circumstances arising on or prior to the Closing, whether such liability or obligation becomes known before, on, or after the Closing Date; and
(i) Pre-Closing Fund I Placement Fees; provided, however, notwithstanding anything to the contrary contained herein, the Excluded Liabilities shall not include any liabilities or obligations of the GP Party pursuant to Applicable Law due to the GP Party’s status as a general partner of the Fund other than, for the avoidance of doubt, any such liabilities or obligations of the GP Party pursuant to Applicable Law due to the GP Party’s status as a general partner of the Fund solely to the extent arising out as a result of any actions action or omissions omission of the Seller;
(j) any trade accounts payable GP Party in violation of the Seller (i) its duties or obligations to the extent not accounted for on the Interim Balance Sheet, (ii) which constitute intercompany payables owing to Affiliates of the Seller, (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of business;
(k) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers Fund prior to the Seller on or before the Closing, (ii) did not arise in the ordinary course of business, or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees;
(n) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth in Section 2.03(b), to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing;
(o) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or any other Person; and
(p) any Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates to comply with any Law or Governmental Order.
Appears in 1 contract
Sources: Asset Purchase Agreement (P10, Inc.)
Excluded Liabilities. The Notwithstanding the provisions of Section 2.03 or any other provision in this Agreement to the contrary, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) any Liabilities of the Seller or its Affiliates arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Ancillary Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any Liability for (i) Taxes of the Seller (or any stockholder or Affiliate of the Seller) including any Taxes its Affiliates relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, ; or (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, or (iii) any other Taxes of Seller (or any stockholder or Affiliate of the Seller) its Affiliates of any kind or description (including any Liability for Taxes of the Seller (or any stockholder or Affiliate of the Seller) its Affiliates that becomes become a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(c) any Liabilities relating to or arising out of the Excluded Assets;
(d) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date;
(e) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the SellerSeller or its Affiliates, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the Seller;
(f) any recall, design defect Liabilities of Seller arising under or similar claims in connection with any benefit plan providing benefits to any present or former employee of any products manufactured or sold or any service performed by the Seller;
(g) any Liabilities of the Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of the Seller;
(h) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, or any of its Affiliates, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;
(ih) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the SellerSeller or any of its Affiliates;
(ji) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, Seller’s financial statements; (ii) which constitute intercompany payables owing to Affiliates or equity owners of the Seller, ; (iii) which constitute debt, loans or credit facilities to financial institutions, ; or (iv) which did not arise in the ordinary course of business;
(kj) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, (ii) did not arise in the ordinary course of business, or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreementorders;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(mk) any Liabilities to indemnify, defend, reimburse or advance amounts to any present or former officer, director, manager, member, partner, stockholder, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees;
(nl) any Liabilities under the Excluded any Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth which do not conform to the representations and warranties with respect thereto contained in Section 2.03(b), this Agreement; or (iii) to the extent such Liabilities arise out of or relate to a breach by the Seller or its Affiliates of such Contracts prior to Closing;
(om) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or any other Personinstitutions; and
(pn) any Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates to comply with any Law or Governmental Order.
Appears in 1 contract
Sources: Asset Purchase Agreement (Lm Funding America, Inc.)
Excluded Liabilities. The Buyer Except for the Assumed Liabilities, the parties expressly agree that Medical Manager shall not assume and shall not be responsible to pay, perform or discharge otherwise become liable for any Liabilities other obligation or liability of the Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller shallCompany, and shall cause each of its Affiliates toincluding, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited towith limitation, the following:
(a) any Liabilities liability or obligation of the Seller arising Company or incurred in connection with any other Person, absolute or contingent, known or unknown, not expressly agreed to be assumed pursuant to the negotiation, preparation, investigation and performance provisions of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and othersSection 1.6;
(b) any Liability for (i) Taxes liability or obligation of the Seller (or any stockholder or Affiliate of the Seller) including any Taxes relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, or (iii) any Taxes of Seller (or any stockholder or Affiliate of the Seller) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder or Affiliate of the Seller) that becomes a Liability of the Buyer Company arising under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law)this Agreement;
(c) any Liabilities relating to liability or obligation of the Company with respect to, or arising out of, any employee benefit plan or any other plans or arrangements for the benefit of any employees of the Excluded AssetsCompany;
(d) any Liabilities in respect of any pending liability or threatened Action arising out of, relating to or otherwise in respect obligation of the operation Company to any of the Business Shareholders (including but not limited to that certain payable due Dalv▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇ the amount of $200,000 and that certain payable due the Shareholder in the amount of $99,000) or to any party claiming to have a right to acquire any shares of capital stock or other securities convertible into or exchangeable for any shares of capital stock of the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing DateCompany;
(e) any product Liability liability or similar claim obligation of the Company or Shareholders for injury to a Person or property which arises Taxes, whether arising out of this transaction or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the Sellerotherwise;
(f) any recall, design defect liability or similar claims of any products manufactured or sold obligation (i) with respect to the Leased Premises or any service performed by other Contract, in the Seller;
(g) any Liabilities event Medical Manager does not receive consents to the assignment of the Seller arising under Company's rights with respect to such Contract or in connection Leased Premises, or (ii) with any Benefit Plan providing benefits to any present or former employee of the Seller;
(h) subject to Section 6.24 with regard respect to the Leased Premises located at 248 ▇. ▇▇▇▇▇ Debt Obligation▇▇▇▇▇, any Liabilities of the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;
(i) any Environmental Claims, or Liabilities under Environmental Laws, to ▇▇ the extent arising out that the rent payable on such lease exceeds fair market value based upon a survey of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the Seller;
(j) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, (ii) which constitute intercompany payables owing to Affiliates of the Seller, (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of business;
(k) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, (ii) did not arise in the ordinary course of business, or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees;
(n) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth in Section 2.03(b), to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing;
(o) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or any other Personcomparable premises; and
(pg) any Liabilities arising out ofaccrued payroll and related obligations of the Company, in respect of whether or in connection with not appearing on the failure by the Seller or any of its Affiliates to comply with any Law or Governmental OrderCurrent Balance Sheet.
Appears in 1 contract
Excluded Liabilities. The Notwithstanding the provisions of Section 2.03 or any other provision in this Agreement to the contrary, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) any Liabilities of the Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Ancillary Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any Liability for (i) Taxes of the Seller (or any stockholder or Affiliate of the Seller) including any Taxes or relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, ; (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, ; or (iii) any other Taxes of Seller (or any stockholder or Affiliate of the Seller) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder or Affiliate of the Seller) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(c) any Liabilities relating to or arising out of the Excluded Assets;
(d) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date;
(e) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the Seller;
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed by the Seller;
(g) any Liabilities of the Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of the Seller;
(h) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;
(i) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the Seller;
(j) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, ; (ii) which constitute intercompany payables owing to Affiliates of the Seller, ; (iii) which constitute debt, loans or credit facilities to financial institutions, ; or (iv) which did not arise in the ordinary course of business;
(k) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, ; (ii) did not arise in the ordinary course of business, ; or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees;
(nm) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, : (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth which do not conform to the representations and warranties with respect thereto contained in Section 2.03(b), this Agreement; or (iii) to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing;
(on) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or any other Personinstitutions; and
(po) any Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates to comply with any Law or Governmental Order.
Appears in 1 contract
Excluded Liabilities. The Notwithstanding the provisions of Section 1.3 or any other provision in this Agreement to the contrary, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) any Liabilities of the Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Ancillary Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any Liability for (i) Taxes of the Seller (or any stockholder or Affiliate of the Seller), (ii) including any Taxes relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, Period (iiexcept to the extent such Taxes are expressly included as a liability that reduces Closing Working Capital); (iii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, 5.13; or (iiiiv) any other Taxes of Seller (or any stockholder or Affiliate of the Seller) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder or Affiliate of the Seller) that becomes a Liability of the Seller or Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(c) any Liabilities relating to or arising out of the Excluded Assets;
(d) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date;
(e) any product Liability or similar claim for injury related to a Person or property which arises out of or is based upon any express or implied representationusage, warranty, agreement or guaranty made by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured product or service sold or any service performed provided by the SellerBusiness on or prior to the Closing Date;
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed by the SellerBusiness on or prior to the Closing Date;
(g) sponsorship of and any Liabilities of the Seller arising under under, pursuant to or in connection with any Benefit Plan providing benefits and any other benefit or compensation plan, program, policy, Contract, agreement or arrangement at any time maintained, sponsored, contributed or required to be contributed to by Seller or any present of its Affiliates or former employee with respect to which Seller or any of the Sellerits Affiliates has any Liability;
(h) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities in any way attributable to, arising out of, or relating to (i) the employment, engagement, termination of employment or other relationship, or application for employment with, for or on behalf of Seller or any of its Affiliates or the Seller for Business of any present current or former employeesemployee, officersdirector, directorsofficer, retireesretiree, independent contractors contractor, consultant or consultants of other individual service provider (or candidate for such position), including any compensation payable to such individuals, and (ii) Seller’s, its Affiliates’, or the SellerBusiness’s, actual or alleged non-compliance with applicable Laws relating to employment, labor, and employment practices, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;
(i) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or circumstances, conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of Seller existing on or prior to the SellerClosing;
(j) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, ; (ii) which constitute intercompany payables owing to Affiliates of the Seller, ; (iii) which constitute debt, loans or credit facilities to financial institutions, ; or (iv) which did not arise in the ordinary course of business;
(k) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, ; (ii) did not arise in the ordinary course of business, ; or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees;
(nm) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth which do not conform to the representations and warranties with respect thereto contained in Section 2.03(b), this Agreement; or (iii) to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing;
(on) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or institutions;
(o) any other Person; andLiabilities associated with the Real Property;
(p) any Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates to comply with any Law or Governmental Order; and
(q) any Liability, Loss or Action by any Person related (including with respect to this Agreement and the agreements contemplated hereby and the transactions contemplated hereby and thereby) to Seller or its Affiliates.
Appears in 1 contract
Excluded Liabilities. The Notwithstanding the provisions of Section 2.03 or any other provision in this Agreement to the contrary, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) any Liabilities of the Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and otherslimitation the Transaction Expenses;
(b) any Liability for (i) Taxes of the Seller (or any stockholder equityholder or Affiliate of the Seller) including any Taxes or relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, ; (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, 6.09; or (iii) any other Taxes of Seller (or any stockholder equityholder or Affiliate of the Seller) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder equityholder or Affiliate of the Seller) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(c) any Liabilities relating to or arising out of the Excluded Assets;
(d) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date;
(e) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the Seller;
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed by the Seller;
(g) any Liabilities of the Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of the Seller;
(h) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;
(i) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the Seller;
(j) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, (ii) which constitute intercompany payables owing to Affiliates of the Seller, (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of business;
(k) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, ; (ii) did not arise in the ordinary course of business, ; or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 7.03 as the Seller Indemnitees;
(nm) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth which do not conform to the representations and warranties with respect thereto contained in Section 2.03(b), this Agreement; or (iii) to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing;
(on) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or any other PersonIndebtedness; and
(po) any Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates to comply with any Law or Governmental Order.
Appears in 1 contract
Sources: Asset Purchase Agreement (Mixed Martial Arts Group LTD)
Excluded Liabilities. The Notwithstanding the provisions of Section 2.3 or any other provision in this Agreement to the contrary, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The whatsoever, and Seller shall, and shall cause each of its Affiliates to, pay and satisfy when due and remain liable for any and all Liabilities that encumber the Business or the Purchased Assets, in due course all Excluded each case other than the Assumed Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing(collectively, the “Excluded Liabilities shall includeLiabilities”), but not be limited toincluding, without limitation, the following:
(a) any Liabilities of the Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction applicable Ancillary Documents and the transactions contemplated hereby and therebyContemplated Transactions, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any Liability for (i) Taxes of the Seller (or the Member or any stockholder or Affiliate of Seller or the SellerMember) including any Taxes or relating to the Business, the Purchased Assets or the Assumed Liabilities for any the Pre-Closing Tax Period, ; (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, Sections 10.1(a) or 10.1(b); or (iii) any other Taxes of Seller (or any stockholder the Member or Affiliate of Seller or the SellerMember) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder the Member or Affiliate of Seller or the SellerMember) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(c) all Accounts Payable;
(d) any Liabilities relating to or arising out of or incurred in connection with, any of the Excluded Assets;
(de) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date;
(e) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the SellerClosing;
(f) all employee-related Liabilities and obligations of Seller incurred prior to the Closing Date or arising out of or relating to any recallevent, design defect action or similar claims inaction occurring prior to the Closing Date, including all Liabilities and obligations of Seller arising under or relating to Plans (or any insurance or service contract related thereto) or relating to payroll, vacation, sick leave, workers’ compensation and unemployment benefits of any products manufactured kind, prior to the Closing Date (notwithstanding the continuation of any account under any Plan mandated by applicable Law, all Liabilities accrued on or sold or prior to the Closing Date pursuant to any service performed by the SellerPlan shall be considered an Excluded Liability for purposes of this Section 2.4);
(g) any Liabilities of the Seller arising under Member or in connection with any Benefit Plan providing benefits to any present or former employee Affiliate of the SellerMember;
(h) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;
(i) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances any past or conditions present Events existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the SellerClosing;
(j) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, (ii) which constitute intercompany payables owing to Affiliates of the Seller, (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of business;
(k) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, (ii) did not arise in the ordinary course of business, business or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(mj) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller Business Employee (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees8.2(a);
(nk) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property AgreementsLicenses, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or , (ii) except as set forth which do not conform to the representations and warranties with respect thereto contained in Section 2.03(b), this Agreement or (iii) to the extent such Liabilities arise out of or relate to the operation of the Business prior to the Closing or a breach by the Seller of such Contracts prior to Closing;
(ol) any Liabilities associated with debt, preferred securities, loans or credit facilities Indebtedness outstanding as of immediately prior to the Seller and/or the Business owing to financial institutions or any other Person; andClosing;
(pm) any Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates to comply with any Law or Governmental Order; and
(n) any Liabilities of Seller or the Member based upon Seller’s or the Member’s acts or omissions occurring after the date hereof.
Appears in 1 contract
Sources: Asset Purchase Agreement (Quality Distribution Inc)
Excluded Liabilities. The Buyer Notwithstanding the provisions of Section 1.3 or any other provision in this Agreement to the contrary, Newco shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller Company or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller Company shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) any Liabilities of the Seller Company arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Ancillary Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any Liability for (i) Taxes of the Seller Company (or any stockholder shareholder or Affiliate of the SellerCompany) including any Taxes or relating to the Business, the Purchased Assets or the Assumed Liabilities for any Prepre-Closing Tax Period, period; (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, Company; or (iii) any other Taxes of Seller the Company (or any stockholder shareholder or Affiliate of the SellerCompany) of any kind or description (including any Liability for Taxes of the Seller Company (or any stockholder shareholder or Affiliate of the SellerCompany) that becomes a Liability of the Buyer Newco under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(c) any Liabilities relating to or arising out of the Excluded Assets;
(d) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date;
(e) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made the use by the Seller, or by reason Persons of the improper performance Real Property or malfunctioning of a product, improper design while an invitee or manufacture, failure trespasser on the Real Property resulting from actions and/or failures to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by act prior to the SellerClosing;
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed by the Seller;
(g) any Liabilities of the Seller Company arising under or in connection with any Employee Benefit Plan providing benefits to any present or former employee of the SellerCompany;
(g) any Liabilities to any Governmental Authority arising from actions and/or failures to act prior to the Closing Date;
(h) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;
(i) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing Date or otherwise to the extent arising out of any from actions or omissions of and/or failures to act prior to the SellerClosing Date;
(j) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, (ii) which constitute intercompany payables owing to Affiliates of the Seller, (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of business;
(k) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, (ii) did not arise in the ordinary course of business, or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee employee, independent contractor or agent of the Seller Company (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees;
(nj) any Liabilities under the Excluded Contracts or any other Contracts, including Company Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer Newco pursuant to this Agreement; , or (ii) except as set forth in Section 2.03(b), to the extent such Liabilities arise out of or relate to a breach by the Seller Company of such Contracts prior to the Closing;
(ok) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller Company or guaranteed by the Company and/or the Business owing to financial institutions or any other Person; andthan those set forth on Section 1.3(c);
(pl) any Liabilities arising out of, in respect of or in connection with the failure by the Seller Company or any of its Affiliates to comply with any Law or Governmental Order;
(m) those Liabilities of the Company set forth on Section 1.4(m) of the Disclosure Schedules; and
(n) any Liabilities arising out of or related to the PPP Loan.
Appears in 1 contract
Sources: Asset Purchase Agreement (Forward Industries, Inc.)
Excluded Liabilities. The Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the following liabilities or obligations of Seller (collectively, the "Excluded Liabilities"): [any liabilities or obligations arising out of or relating to Seller's ownership or operation of the Business and the Purchased Assets prior to the Closing Date;] any liabilities or obligations relating to or arising out of its Affiliates of the Excluded Assets; any kind liabilities or nature whatsoever other than obligations for (i) Taxes relating to the Business, the Purchased Assets or the Assumed Liabilities for any taxable period ending on or prior to the Closing Date and (the “Excluded Liabilities”). The Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(aii) any Liabilities other Taxes of Seller [or any stockholders or Affiliates of Seller] (other than Taxes allocated to Buyer under Section VI.11) for any taxable period; except as specifically provided in Section VI.04, any liabilities or obligations of Seller relating to or arising out of (i) the employment, or termination of employment, of any Employee prior to the Closing, or (ii) workers' compensation claims of any Employee which relate to events occurring prior to the Closing Date; and any liabilities or obligations of Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(b) ; [any Liability for (i) Taxes of the Seller (or any stockholder or Affiliate of the Seller) including any Taxes relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, or (iii) any Taxes liabilities and obligations of Seller (or any stockholder or Affiliate of the Seller) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder or Affiliate of the Seller) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(c) any Liabilities relating to or arising out of the Excluded Assets;
(d) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation set forth on or prior to the Closing Date;
(e) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the Seller;
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed by the Seller;
(g) any Liabilities of the Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of the Seller;
(h) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;
(i) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the Seller;
(j) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, (ii) which constitute intercompany payables owing to Affiliates of the Seller, (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of business;
(k) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, (ii) did not arise in the ordinary course of business, or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees;
(n) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth in Section 2.03(b), to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing;
(o) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or any other PersonDisclosure Schedules; and
(p) any Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates to comply with any Law or Governmental Order] [[ANY OTHER EXCLUDED LIABILITIES].]
Appears in 1 contract
Sources: Asset Purchase Agreement
Excluded Liabilities. The Notwithstanding the provisions of Section 2.03 or any other provision in this Agreement to the contrary, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the followingfollowing Liabilities:
(a) any Any Liabilities of the Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;.
(b) any Any Liability for (i) Taxes of the Seller (or any stockholder partner or Affiliate of the Seller) including any Taxes or relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, ; (ii) Taxes of the Seller (or any partner or Affiliate of Seller) that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, 6.13; or (iii) any other Taxes of Seller (or any stockholder partner or Affiliate of the Seller) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder partner or Affiliate of the Seller) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);.
(c) any Any Liabilities relating to or arising out of the Excluded Assets;.
(d) any Any Liabilities of Seller or relating to the Purchased Assets in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date;.
(e) any Any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by Seller prior to the Seller;Closing Date, including, any such matters which are based upon any express representation, warranty, agreement or guaranty made by Seller prior to the Closing Date, with respect to a matter that is not an Assumed Liability.
(f) any Any recall, design defect or similar claims of any products manufactured manufactured, sold or sold distributed or any service performed by Seller prior to the Seller;Closing Date.
(g) any Any Liabilities arising out of, in respect of the Seller arising under or in connection with the failure by Seller or any Benefit Plan providing benefits of its Affiliates to comply with any present Law, Permit or former employee Governmental Order. Without limiting the foregoing, Seller shall be responsible for any Liabilities arising from or related to its failure to properly comply with (i) any federal, state, or local Law, Permit or Governmental Order of the Seller;U.S. Food and Drug Administration (“FDA”) or relating to Pharmaceutical Products and (ii) the duty to exercise the requisite care, skill and knowledge in purchasing, storing, selling, and distributing Pharmaceutical Products.
(h) subject Any Liabilities of Seller with respect to Section 6.24 with regard employment, termination of employment, compensation (including any vacation time or leave which is accrued and unpaid prior to the ▇▇▇▇▇ Debt ObligationClosing) or employee benefits of any nature (including, but not limited to the benefits to be provided under the Benefit Plans) owed to any Liabilities current or former Employee, agent or independent contractor of Seller or its Affiliates (or the beneficiary of any current or former Employee, agent or independent contractor) whether or not such current or former Employee, agent or independent contractor becomes a Transferred Employee or otherwise provides services to Buyer, that arises out of or relates to the employment or other service provider relationship between Seller or its Affiliates and any such current or former Employee or the termination of such relationship. Without limiting the foregoing, Seller shall be responsible for the payment of any severance payment or benefits that become due to any current or former Employee as a result of the termination of such current or former Employee by Seller or its Affiliates. Buyer and its Affiliates shall not be obligated to continue or assume any employee benefit plan or program of Seller or its Affiliates (including, but not limited to the Benefit Plans) or be responsible for any present obligation or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;liability thereunder.
(i) any Any Liabilities of Seller for transaction bonuses, change in control payments or other similar payments due or triggered as a result of the execution of this Agreement or the consummation of the transactions contemplated hereby.
(j) Any Environmental Claims, Claims or Liabilities under Environmental Laws, Laws with respect to the extent ownership or operation of the Business or Purchased Assets arising out of or relating to factsevents, circumstances activities or conditions first existing or occurring on or prior to the Closing Closing, or otherwise to the extent arising out of any actions or omissions of Seller or its Affiliates prior to the Seller;Closing.
(jk) any trade accounts payable Any Liabilities of the Seller (i) to the extent not accounted for on the Interim Balance Sheet that are not classified under the “accounts payable,” “customer deposits,” “accrued expenses”, “other current liabilities” and “deferred revenue” line items of the Interim Balance Sheet, .
(iil) Any Liabilities which constitute intercompany payables owing to Affiliates of the Seller, (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of business;.
(km) any Any Liabilities of the Business Seller relating to or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ Seller’s customers to the Seller on or before the Closing, ; (ii) did not arise in the ordinary course of business, ; or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;.
(ln) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee employee, partner or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees;.
(no) any Any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property AgreementsLicenses, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth in Section 2.03(b), to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing;
(o) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or any other Person; and.
(p) any Any Liabilities arising out offor accrued distributions, in respect of or in connection with the failure declared by the General Partner and payable to the General Partner or Limited Partners, which have not been paid or otherwise distributed.
(q) Any Liabilities of Seller for deductibles, co-payments, premiums or other payments relating to property, casualty, errors and omissions, and other insurance premiums or payments.
(r) Any Indebtedness of Seller, other than Assumed Indebtedness.
(s) Any Liabilities of Seller, actual or potential, known or unknown, that are not assumed by Buyer hereunder and that occurred, arose or relate to, or are connected with any action or omission of Seller that occurred or arose prior to Closing, whether or not covered by insurance obtained or maintained by Seller or any Buyer. Seller will retain and timely pay all other Liabilities of its Affiliates Seller not expressly scheduled as part of this Agreement and not assumed by Buyer, including, without limitation, (i) Liabilities incurred by Seller from the effective date of this Agreement to comply with any Law or Governmental OrderClosing and (ii) Liabilities not listed as Assumed Liabilities.
Appears in 1 contract
Sources: Asset Purchase Agreement (MWI Veterinary Supply, Inc.)
Excluded Liabilities. Notwithstanding any provision in this Agreement to the contrary, Buyer is assuming only the Assumed Liabilities and is not assuming any other Liability of any Seller Party or its Affiliates of whatever nature, whether presently in existence or arising hereafter. All such other Liabilities shall be retained by and remain Liabilities of such Seller Party or its Affiliates. The Buyer term Excluded Liabilities shall not assume and shall not be responsible to pay, perform or discharge any mean all Liabilities of the Seller Parties or any of their respective Affiliates other than the Assumed Liabilities. For the avoidance of doubt, the Excluded Liabilities shall include (but are not limited to): (a) all Liabilities arising out of or relating to the return of any Product shipped by Seller to a third party prior to the Closing (which, for the avoidance of doubt, shall include any such Product that is reflected in the accounts receivable transferred to Buyer pursuant to Section 2.01(j)) (“Shipped Product”) but only if (i) such return is in accordance with Seller’s written return policy as in effect on the date hereof, which policy is set forth on Schedule 2.04(a) of the Seller Disclosure Schedule, or (ii) Buyer provides reasonable evidence indicating that the customer returning such Shipped Product believes it is entitled to such return; (b) subject to Section 2.03(a)(i), all Liabilities arising out of any action, suit, investigation or proceeding before any court or arbitrator or any other Governmental Authority solely to the extent arising out of actions, omissions or events occurring prior to the Closing Date relating to the Business or the Transferred Assets, including with respect to matters set forth on Schedule 2.04(b) of the Seller Disclosure Schedule; (c) any Liability under Seller’s employee benefits or compensation arrangements, plans or agreements, or otherwise with respect to any employee or former employee of Seller or any of its Affiliates relating to any period of employment with Seller or any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller shall, and shall cause each of its Affiliates toAffiliates, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting or any Liability under Seller’s or its Affiliate’s severance plans or policies (including without limitation the generality plans listed on Schedule 2.04(c) of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
Seller Disclosure Schedule); (ad) any Environmental Liabilities; (e) all accounts payable arising prior to the Closing and due and owing by Seller to any third party; (f) any and all Liabilities of the Seller arising or incurred in connection with the negotiationParties for Taxes, preparation, investigation and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any Liability for including (i) Taxes of the Seller (or any stockholder or Affiliate of the Seller) including any Taxes relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, or (iii) any Taxes of Seller (or any stockholder or Affiliate of the Seller) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder or Affiliate of the Seller) that becomes arising as a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(c) any Liabilities relating to or arising out of the Excluded Assets;
(d) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect result of the operation of the Business or the Purchased leasing, ownership, operation or use of the Transferred Assets to the extent such Action relates to such operation on or prior to the Closing Date;
(e) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the Seller;
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed by the Seller;
(g) any Liabilities of the Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of the Seller;
(h) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;
(i) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the Seller;
(j) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, (ii) which constitute intercompany payables owing to Affiliates of the Seller, (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of business;
(k) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, (ii) did not arise in the ordinary course of business, or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees;
(n) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth in Section 2.03(b), to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing;
(o) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or any other Person; and
(p) any Liabilities arising out of, in respect of or all Transfer Taxes 15 CONFIDENTIAL TREATMENT HAS BEEN REQUESTED incurred in connection with the failure transactions contemplated by this Agreement, and (5) Apportioned Obligations apportioned to the Seller or Pre-Closing Tax Period pursuant to Section 7.02(b); and (g) any of its Affiliates Liability relating to comply with any Law or Governmental Orderan Excluded Asset.
Appears in 1 contract
Sources: Asset Purchase Agreement
Excluded Liabilities. The Notwithstanding the provisions of Section 2.03 or any other provision in this Agreement to the contrary, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) any Liabilities of the Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Ancillary Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any Liability for for: (i) Taxes of the Seller (or any stockholder or Affiliate of the Seller) including any Taxes or relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, ; (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, 6.11; or (iii) any other Taxes of Seller (or any stockholder or Affiliate of the Seller) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder or Affiliate of the Seller) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(c) any Liabilities relating to or arising out of the Excluded Assets;
(d) any Liabilities with respect to the operation of the Seller’s business prior to the Closing including, without limitation, any accounts payable of Seller existing as of the Closing Date;
(e) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the pre-Closing operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the pre-Closing Dateoperation;
(ef) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards hazards, or other related product defects of any products at any time manufactured or sold or any service performed by Seller prior to the SellerClosing;
(fg) any recall, design defect or similar claims of any products manufactured or sold or any service performed by Seller prior to the SellerClosing;
(gh) any Liabilities of the Seller arising under or in connection with any Benefit Plan benefit plan providing benefits to any present or former employee of the Seller;
(hi) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;
(ij) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the Seller;
(j) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, (ii) which constitute intercompany payables owing to Affiliates of the Seller, (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of business;
(k) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that that: (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, ; and (ii) did not arise in the ordinary course of business, or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees;
(m) any Liabilities under the Excluded Contracts;
(n) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth in Section 2.03(b), to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing;
(o) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or any other Personinstitutions; and
(po) any Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates to comply with any Law or Governmental Order.
Appears in 1 contract
Excluded Liabilities. The Notwithstanding the provisions of Section 2.03 or any other provision in this Agreement to the contrary, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) any Liabilities of the Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and therebyhereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any Liability for (i) Taxes of the Seller (or any stockholder or Affiliate of the Seller) including any Taxes relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, ; (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, 6.06; or (iii) any other Taxes of Seller (or any stockholder or Affiliate of the Seller) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder or Affiliate of the Seller) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(c) any Liabilities relating to or arising out of the Excluded Assets;
(d) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date;
(e) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the Seller;
(f) any warranty, rework, recall, design defect defect, or similar claims of any products manufactured or sold or any service performed by the Seller;
(g) any Liabilities of the Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of the Seller;
(h) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;
(i) any Environmental Claimsenvironmental claims, or Liabilities liabilities under Environmental Lawsenvironmental laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the Seller;
(j) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, (ii) which constitute intercompany payables owing to Affiliates of the Seller, (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of business;
(k) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, ; (ii) did not arise in the ordinary course of business, ; or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 7.03 as the Seller Indemnitees;
(nm) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth which do not conform to the representations and warranties with respect thereto contained in Section 2.03(b), this Agreement; or (iii) to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing, (including but not limited to the Transformer IQ purchase and royalty agreements);
(n) any Liabilities associated with payables, debt, loans or credit facilities of Seller and/or the Business owing to financial institutions;
(o) any Liabilities associated with debt, preferred securities, intercompany loans between subsidiaries or credit facilities of the Seller and/or the Business owing to financial institutions or any other Personaffiliated entities; and
(p) any Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates to comply with any Law or Governmental Order.
Appears in 1 contract
Excluded Liabilities. The Buyer Notwithstanding the provisions of Section 2.03 or any other provision in this Agreement to the contrary, Buyers shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course as soon as practicable all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) any Liabilities of the Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, investment bankers, consultants, advisers and others;
(b) any Liability for (i) Taxes of the Seller (or any stockholder Stockholder or any Affiliate of the Seller) ), including any Taxes relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, ; (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, ; or (iii) any other Taxes of Seller (or any stockholder equityholder or any Affiliate of the Seller) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder equityholder or any Affiliate of the Seller) that becomes a Liability of the any Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(c) any Liabilities relating to or arising out of the Excluded Assets;
(d) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing DateDate or to the transactions contemplated herein;
(e) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the Seller;
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed by the Seller;
(g) any Liabilities of the Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of the SellerPlan;
(hf) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;
(i) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the Seller;
(jg) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, (ii) which constitute intercompany payables owing to Affiliates of the Seller, (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of business;
(k) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, (ii) did not arise in the ordinary course of business, or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(mh) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees;
(ni) any Liabilities under the Excluded Contracts or Contracts, and any Liabilities under any other Contracts, including Intellectual Property Agreements, (i) which Contracts that are not validly and effectively assigned to the a Buyer pursuant to this Agreement; Agreement or (ii) except as set forth in Section 2.03(b), that do not conform to the extent such representations and warranties with respect thereto contained in this Agreement, including any Liabilities that arise out of or relate to a breach by the Seller of any such Contracts prior to Closing;
(oj) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or any other Person; andinstitutions;
(pk) any Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates to comply with any Law or Governmental Order; and
(l) any Liabilities relating to or arising out of the matters set forth in Section 4.17(a) of the Disclosure Schedules.
Appears in 1 contract
Excluded Liabilities. The Neither Buyer nor any of its Affiliates shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities Group (such unassumed Liabilities, the “Excluded Liabilities”). The Seller shall, and shall cause each of its Affiliates to, pay and satisfy ) other than those specifically set forth in due course all Excluded Liabilities which they are obligated to pay and satisfySection 2.2. Without limiting the generality of the foregoing, in no event shall Buyer or any of its Affiliates assume or incur any Liability in respect of, and the Excluded Liabilities Seller Group shall includeremain bound by and liable for, but not be limited toand shall pay, discharge or perform when due, the followingfollowing Liabilities of the Seller Group:
(a) all Liabilities for (i) Taxes relating to the Purchased Assets for any Liabilities Pre-Closing Tax Period and (ii) Taxes of the Seller Group or any Affiliate of the Seller Group;
(b) all Liabilities in respect of the Contracts and assets other than the Purchased Assets;
(c) all product Liability, warranty and similar claims for damages or injury to person or property, claims of infringement of intellectual property rights and all other Liabilities, regardless of when made or asserted, which arise out of or are based upon any events occurring or actions taken or omitted to be taken by any member of the Seller Group, or otherwise arising out of or incurred in connection with the Purchased Property, on or before the Closing Date;
(d) all Pre-Closing Environmental Liabilities;
(e) all Indebtedness of the Seller Group; and
(f) all Liabilities arising out of or incurred in connection with the negotiation, preparation, investigation preparation and performance execution of this Agreement, Agreement and the other Transaction Documents Ancillary Agreements and the consummation of the transactions contemplated hereby and thereby, including, without limitation, including Taxes and fees and expenses of counsel, accountants, consultants, advisers accountants and others;
(b) any Liability for (i) Taxes of the Seller (or any stockholder or Affiliate of the Seller) including any Taxes relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, or (iii) any Taxes of Seller (or any stockholder or Affiliate of the Seller) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder or Affiliate of the Seller) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(c) any Liabilities relating to or arising out of the Excluded Assets;
(d) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date;
(e) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the Seller;
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed by the Seller;
(g) any Liabilities of the Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of the Seller;
(h) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;
(i) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the Seller;
(j) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, (ii) which constitute intercompany payables owing to Affiliates of the Seller, (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of business;
(k) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, (ii) did not arise in the ordinary course of business, or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees;
(n) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth in Section 2.03(b), to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing;
(o) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or any other Person; and
(p) any Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates to comply with any Law or Governmental Orderexperts.
Appears in 1 contract
Excluded Liabilities. The Notwithstanding the provisions of Section 2.3 or any other provision in this Agreement to the contrary, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) any Liabilities of the Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Ancillary Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any Liability for (i) Taxes of the Seller (or any stockholder or Affiliate of the Seller) including any Taxes or relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, ; (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, ; or (iii) any other Taxes of Seller (or any stockholder or Affiliate of the Seller) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder or Affiliate of the Seller) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(c) any Liabilities relating to or arising out of the Excluded Assets;
(d) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date;
(e) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the SellerSeller prior to Closing;
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed by the SellerSeller prior to Closing;
(g) any Liabilities of the Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of the Seller;
(h) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;
(i) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the Seller;
(j) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, Sheet and is not included in the working capital adjustment; (ii) which constitute intercompany payables owing to Affiliates of the Seller, ; (iii) which constitute debt, loans or credit facilities to financial institutions, ; or (iv) which did not arise in the ordinary course of business;
(k) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, ; (ii) did not arise in the ordinary course of business, ; or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 8.3 as the Seller Indemnitees;
(nm) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth which do not conform to the representations and warranties with respect thereto contained in Section 2.03(b), this Agreement; or (iii) to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing;
(on) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or any other Personinstitutions; and
(po) any Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates to comply with any Law or Governmental Order.
Appears in 1 contract
Excluded Liabilities. The Notwithstanding the provisions of Section 2.03 or any other provision in this Agreement to the contrary, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) any Liabilities of the Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Ancillary Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any Liability for (i) Taxes of the Seller (or any stockholder or Affiliate of the Seller) including any Taxes or relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, ; (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, 6.15; or (iii) any other Taxes of Seller (or any stockholder or Affiliate of the Seller) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder or Affiliate of the Seller) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(c) any Liabilities relating to or arising out of the Excluded Assets;
(d) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date;
(e) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the Seller;
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed by the Seller;
(g) any Liabilities of the Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of the Seller;
(h) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ ' compensation, severance, retention, termination or other payments;
(i) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the Seller;
(j) any trade accounts due and payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, (ii) which constitute intercompany payables owing to Affiliates of the by Seller, (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of business;
(k) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ ' customers to the Seller on or before the Closing, ; (ii) did not arise in the ordinary course of business, ; or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees;
(nm) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth which do not conform to the representations and warranties with respect thereto contained in Section 2.03(b), this Agreement; or (iii) to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing;
(on) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or any other Personinstitutions; and
(po) any Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates to comply with any Law or Governmental Order.
Appears in 1 contract
Sources: Asset Purchase Agreement (Super League Gaming, Inc.)
Excluded Liabilities. The Buyer shall not assume and shall not be responsible to pay, perform perform, or discharge any Liabilities of the Seller Sellers or any of its their respective Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (all Liabilities which are not Assumed Liabilities are the “Excluded Liabilities”). The Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities (subject to the Baskets and Caps referenced in the following sentence) which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following; provided, however, that, with respect to any demand for indemnification made by Buyer pursuant to Article VIII, the below subsections (b), (d) through (f), (k) and (l) shall be subject to the applicable Baskets and Caps set forth within Section 8.04 herein:
(a) any Liabilities of the Seller Sellers arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Ancillary Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers advisers, and othersothers and all other Transaction Expenses;
(b) any Liability for (i) Taxes of the Seller Sellers (or any stockholder stockholder, member, or Affiliate owner of the a Seller) including any Taxes or relating to the BusinessBusiness Operations, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, ; (ii) Taxes of the any Seller (or any stockholder, member, or owner of a Seller) that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller Sellers pursuant to Section 6.14, or 6.11; (iii) any unpaid payroll Taxes of Seller any Internal Employee; or (iv) other Taxes of Sellers for any Pre-Closing Tax Period (or any stockholder stockholder, member, or Affiliate owner of the a Seller) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder or Affiliate of the Seller) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(c) any Liabilities relating to or arising out of the Excluded Assets;
(d) any Liabilities in respect of any pending pending, threatened, or not-yet-threatened Action arising out of, relating to or otherwise in respect of the Purchased Assets or the operation of the Business or the Purchased Assets to the extent such Action relates to such the operation of the Purchased Assets or Business on or prior to the Closing DateEffective Time including, without limitation, Actions related to, arising out of, or otherwise in respect of any actual or alleged violation of any Laws by any Seller or any of Sellers’ agents or employees;
(e) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the Seller;
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed by the Seller;
(g) any Liabilities of the Seller Sellers arising under or in connection with any Benefit Plan providing benefits to any present or former employee of the Seller;
(hf) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller Sellers for any present or former employees, officers, directors, retirees, independent contractors contractors, or consultants of the SellerSellers, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, “golden parachutes,” phantom equity, accrued vacation, workers’ compensation, severance, retention, termination termination, or other paymentspayments arising and/or accruing prior to the Effective Time;
(g) any trade accounts payable or other accrued liabilities of any Seller arising prior to the Effective Time;
(h) any Liabilities to indemnify, reimburse, or advance amounts to any present or former officer, director, employee, or agent of any Seller (including with respect to any breach of fiduciary obligations by same) to the extent arising prior to the Effective Time;
(i) any Liabilities under the Excluded Contracts;
(j) any Liabilities associated with, related to, or constituting any debt, loans, or credit facilities of the Business prior to Closing or of Seller owing to any Person including, without limitation, intercompany obligations, unforgiven amounts due and owing under the Paycheck Protection Program, and amounts owed to any financial institutions or Governmental Authorities and all other Seller Indebtedness;
(k) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances circumstances, or conditions existing on or prior to the Closing Effective Time or otherwise to the extent arising out of any actions or omissions of the any Seller;
(j) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, (ii) which constitute intercompany payables owing to Affiliates of the Seller, (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of business;
(k) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, (ii) did not arise in the ordinary course of business, or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees;
(n) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth in Section 2.03(b), to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing;
(o) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or any other Personall Closing Date Franchisee Commissions; and
(pm) any Liabilities arising out of, in respect of of, or in connection with the failure by the any Seller or any of its their respective Affiliates to comply with any Law or Governmental Order.
Appears in 1 contract
Excluded Liabilities. The Buyer shall Except as set forth in Section 2.4(a), the Purchaser will not assume and shall not be responsible or have any responsibility or obligation to payin any way pay for any liabilities, perform debts or discharge any Liabilities obligations of the Seller or any of its Affiliates (whether known or unknown, express or implied, primary or secondary, direct or indirect, liquidated, absolute, accrued, contingent or otherwise) not included within the definition of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller shallUnless otherwise agreed to in writing by the Parties, the Excluded Liabilities shall remain the sole responsibility of and shall cause each be retained, paid, performed and discharged solely by the Seller or its Affiliates. For the avoidance of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoingdoubt, the Excluded Liabilities shall include, but not be limited to, the following:
(a) subject to Section 2.4(a)(iii), any Liabilities liabilities or obligations of the Seller or any of its Affiliates arising out of or incurred in connection with relating to the negotiation, preparation, investigation and performance of this Agreement, Business or the other Transaction Documents and Assets prior to the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and othersEffective Time;
(bi) any Liability liability or obligation for (i) the unpaid Taxes of the Seller and its Affiliates, including deferred income Taxes, with respect to any period (except for property or any stockholder similar ad valorem Taxes described in Section 2.4(a)(ii)(B)(2)) or Affiliate of the Seller) including any Taxes relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, (ii) any Taxes of with respect to the Seller that arise Business or the Assets arising out of or relating to any taxable period or portion of a period ending on or prior to the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, or (iii) any Taxes of Seller (or any stockholder or Affiliate of the Seller) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder or Affiliate of the Seller) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law)Effective Time;
(c) any Liabilities liability or obligation relating to or arising out any Indebtedness of the Excluded AssetsSeller and its Affiliates;
(d) any Liabilities liability or obligation relating to (i) claims made in respect of any pending or threatened Action arising out offuture suits, relating actions, investigations, or other legal, governmental or administrative proceedings, including but not limited to the suits, actions, investigations, or other legal, governmental or administrative proceedings set forth on Schedule 4.9 and Schedule 4.14(g) of the Seller Disclosure Schedules, whether known or unknown, express or implied, primary or secondary, direct or indirect, liquidated, absolute, accrued, contingent or otherwise of the Seller Disclosure Schedules, or (ii) claims based on violations of Law, breach of contract, employment practices, or environmental, health and safety matters or any other actual or alleged failure of the Seller or its Affiliates to perform any obligation, in respect each case to the extent such liability or obligation arises out of or relates to the conduct of the Seller or any of its Affiliates prior to the Effective Time or the operation of the Business or and the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing DateEffective Time;
(e) any product Liability liability or similar claim for injury obligation relating to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller, or by reason matters set forth on Schedules 4.9 and 4.14(g) of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the SellerSeller Disclosure Schedules;
(f) any recall, design defect liability or similar claims obligation arising out of or relating to any products manufactured or sold or any service performed by the SellerExcluded Asset;
(g) any Liabilities liability or obligation to the extent relating to, resulting from or arising out of any former operations of the Seller arising under or in connection with any Benefit Plan providing benefits of its Affiliates or predecessor entities thereof that have been discontinued or disposed of prior to any present or former employee of the SellerEffective Time;
(h) subject any liability or obligation relating to Section 6.24 or under any Employment Agreement, Seller Benefit Plan, or ERISA Affiliate Plan with regard respect to the ▇▇▇▇▇ Debt ObligationSeller (whether or not such liability or obligation arises prior to, any Liabilities of on, or following the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other paymentsEffective Time);
(i) except as otherwise agreed pursuant to Section 2.4(a)(iv) or Section 6.10, any liability or obligation related to (i) any employees of the Seller or its Affiliates who are not Transferred Employees or (ii) employee benefits or compensation arrangements existing on or prior to the Effective Time;
(j) any liability or obligation arising out of or relating to any non-compliance by the Seller with any applicable bulk sales law in connection with the Business;
(k) any liability or obligation of the Seller arising out of or relating to any Affiliate Receivable or any Affiliate Payable;
(l) except as otherwise agreed in the Seller Ancillary Documents or the Purchaser Ancillary Documents, any liability or obligation relating to, resulting from or arising out of any Seller owned or leased real property or any Environmental Claims, Law;
(m) any liability or Liabilities obligation of the Seller or its Affiliates under Environmental Laws, this Agreement and the transactions contemplated hereby;
(n) any liability or obligation of the Seller or its Affiliates to the extent arising out of or relating to factsany fees or expenses of counsel, circumstances accountants, brokers, financial advisors or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the Seller;
(j) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, (ii) which constitute intercompany payables owing to Affiliates of the Seller, (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of business;
(k) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, (ii) did not arise in the ordinary course of business, or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees;
(n) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth in Section 2.03(b), to the extent such Liabilities arise out of or relate to a breach experts engaged by the Seller of such Contracts prior to Closingor its Affiliates in connection with this Agreement or the transactions contemplated hereby;
(o) any Liabilities associated with debt, preferred securities, loans liability or credit facilities obligation of the Seller and/or or its Affiliates arising out of or relating to the Business owing to financial institutions or any other Personmatter set forth on Schedule 4.22(b) of the Seller Disclosure Schedules; and
(p) any Liabilities arising out ofliability or obligation related to health insurance for the Transferred Employees through April 30, in respect of or in connection with the failure by the Seller or any of its Affiliates to comply with any Law or Governmental Order2013.
Appears in 1 contract
Excluded Liabilities. The Notwithstanding the provisions of Section 2.03 or any other provision in this Agreement to the contrary, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller shall, and shall cause each of its Affiliates to, timely pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) any Liabilities of the Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Ancillary Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any Liability for (i) Taxes of the Seller (or any stockholder or Affiliate of the Seller) including any Taxes or relating to the Seller Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, ; (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, 6.17; or (iii) any other Taxes of Seller (or any stockholder or Affiliate of the Seller) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder or Affiliate of the Seller) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(c) any Liabilities relating to or arising out of the Excluded Assets;
(d) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Seller Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date, including, but not limited to, the Tampa Litigation;
(e) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the Seller;
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed by the Seller;
(g) any Liabilities of the Seller arising under or in connection with any Seller Benefit Plan providing benefits to any present or former employee of the Seller;
(hf) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;
(ig) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the Seller;
(j) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, (ii) which constitute intercompany payables owing to Affiliates of the Seller, (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of business;
(k) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, (ii) did not arise in the ordinary course of business, or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees;
(n) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth in Section 2.03(b), to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing;
(oh) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Seller Business owing to financial institutions or any other Personinstitutions; and
(pi) any Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates to comply with any Law or Governmental Order.
Appears in 1 contract
Excluded Liabilities. The Notwithstanding the provisions of Section 2.03 or any other provision in this Agreement to the contrary, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “"Excluded Liabilities”"). The Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) all accounts payable and all trade accounts payable of Seller to third parties in connection with the operation of the Business that remain unpaid as of the Closing Date ;
(b) any Liabilities of the Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Ancillary Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(bc) any Liability for (i) Taxes of the Seller (or any stockholder or Affiliate of the Seller) including any Taxes or relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, ; (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, 6.13; or (iii) any other Taxes of Seller (or any stockholder or Affiliate of the Seller) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder or Affiliate of the Seller) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(cd) any Liabilities relating to or arising out of the Excluded Assets;
(de) any Liabilities under any real estate lease;
(f) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date;
(eg) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the Seller;
(fh) any recall, design defect or similar claims of any products manufactured or sold or any service performed by the Seller;
(gi) any Liabilities of the Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of the Seller;
(hj) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ ' compensation, severance, retention, termination or other payments;
(ik) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the Seller;
(j) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, (ii) which constitute intercompany payables owing to Affiliates of the Seller, (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of business;
(kl) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ ' customers to the Seller on or before the Closing, ; (ii) did not arise in the ordinary course of business, ; or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees;
(n) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth which do not conform to the representations and warranties with respect thereto contained in Section 2.03(b), this Agreement; or (iii) to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing;
(o) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or any other Personthird parties; and
(p) any Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates to comply with any Law or Governmental Order.
Appears in 1 contract
Excluded Liabilities. The Notwithstanding the provisions of Section 2.03 or any other provision in this Agreement to the contrary, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities related to the Business which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) any Liabilities of the Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any Liability for (i) Taxes of the Seller (or any stockholder equityholder or Affiliate of the Seller) including any Taxes or relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, ; (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, ; or (iii) any other Taxes of Seller (or any stockholder equityholder or Affiliate of the Seller) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder equityholder or Affiliate of the Seller) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(c) any Liabilities arising out of or relating to Seller’s ownership or operation of the Business and the Purchased Assets on or prior to the Closing Date;
(d) any Liabilities relating to or arising out of the Excluded any asset of Seller that are not Purchased Assets;
(de) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date;
(ef) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by Seller on or prior to the SellerClosing Date;
(fg) any recall, design defect or similar claims of any products manufactured or sold or any service performed by Seller on or prior to the SellerClosing Date;
(gh) any Liabilities of the Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee employee(s) of Seller on or prior to the SellerClosing Date;
(hi) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of Seller on or prior to the Seller Closing Date for any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;
(ij) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the Seller;
(jk) any trade accounts payable of Seller to third parties in connection with the Seller (i) to the extent not accounted for on the Interim Balance Sheet, (ii) which constitute intercompany payables owing to Affiliates Business that remain unpaid as of the Seller, Closing Date (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of business“Accounts Payable”);
(kl) any Liabilities of the Business on or prior to the Closing Date relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, ; (ii) did not arise in the ordinary course of business, ; or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees;
(n) any Liabilities on or prior to the Closing Date under (i) the Excluded Contracts or (ii) any other Contracts, including Intellectual Property AgreementsLicenses, (iA) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (iiB) except as set forth in Section 2.03(b), to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing;
(o) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business Purchased Assets owing to financial institutions or any other Person; andinstitutions;
(p) any Liabilities on or prior to the Closing Date arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates to comply with any Law or Governmental Order; and
(q) any Liabilities for Seller’s Selling Expenses.
Appears in 1 contract
Excluded Liabilities. The Buyer shall Notwithstanding anything to the contrary set forth herein, the Sellers will remain liable with respect to, and Purchaser will not assume and shall will be deemed not be responsible to payhave assumed, perform or discharge the Excluded Liabilities. “Excluded Liabilities” means any and all Liabilities of the Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) any Liabilities of the Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any Liability for (i) Taxes of the Seller (or any stockholder or Affiliate of the Seller) including any Taxes relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, or (iii) any Taxes of Seller (or any stockholder or Affiliate of the Seller) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder or Affiliate of the Seller) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(c) any Liabilities relating to or arising out of the Excluded Assets;
(d) any Liabilities in respect of any pending or threatened Action Sellers arising out of, relating to or otherwise in respect of the operation of the Purchased Assets and the Business or before the Closing Date, other than such Liabilities that specifically are included as Assumed Liabilities, including (i) all Liabilities of the Sellers arising from the Transactions, (ii) all Liabilities for (A) Income Taxes and (B) Non-Income Taxes that are allocated to Seller pursuant to Section 10.4(a), (iii) any obligations under any employee benefit plans, including retiree healthcare, and (iv) any other Liability with respect to the Purchased Assets or the Business, to the extent such Action relates to such operation on or prior to the Closing Date;
(e) any product Liability or similar claim for injury to a Person or property which arises arising out of or is based upon related to events occurring prior to Closing, including any such Liability or obligation (A) pursuant to any express or implied representation, warranty, agreement agreement, coal specification undertaking or guaranty guarantee made by the any Seller or any Affiliate of such Seller, or alleged to have been made by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold Seller or any service performed Affiliate of such Seller, (B) imposed or asserted to be imposed by operation of applicable Law, (C) arising pursuant to the Seller;
WARN Act; or (fD) any recall, design defect or similar claims of any products manufactured or sold or any service performed by the Seller;
(g) any Liabilities of the Seller arising under or in connection with any Benefit Plan providing benefits pursuant to any present or former employee doctrine of the Seller;
(h) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligationproduct liability, any Liabilities of the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;
(i) any Environmental Claims, or Liabilities under Environmental Laws, in each case to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the Seller;
(j) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, (ii) which constitute intercompany payables owing to Affiliates of the Seller, (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of business;
(k) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, (ii) did not arise in the ordinary course of business, or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees;
(n) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth in Section 2.03(b), to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts events occurring prior to Closing;
(o) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or any other Person; and
(p) any Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates to comply with any Law or Governmental Order.
Appears in 1 contract
Excluded Liabilities. The Notwithstanding anything contained in this Agreement to the contrary, the Buyer shall does not assume or agree to pay, satisfy, discharge or perform, and shall not be responsible to pay, perform or discharge any Liabilities deemed by virtue of the Seller execution and delivery of this Agreement or any of its Affiliates of any kind other document delivered at the Closing or nature whatsoever other than the Assumed Liabilities Subsequent Transfer pursuant to this Agreement (the “Excluded Liabilities”). The Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) any Liabilities of the Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any Liability for (i) Taxes of the Seller (or any stockholder or Affiliate of the Seller) including any Taxes relating except to the Businessextent expressly provided in such other document), the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, (ii) Taxes of the Seller that arise out as a result of the consummation of the transactions contemplated hereby by this Agreement or such other document, to have assumed, or to have agreed to pay, satisfy, discharge or perform, and shall not be liable for, any liability, obligation, Contract or indebtedness of any Seller or any Affiliate of any Seller or any other Person, whether primary or secondary, direct or indirect (other than the Assumed Liabilities and liability to the Sellers (x) for a portion of the Agreed Operating Lease Cure Amounts to the extent provided in Section 2.4 of this Agreement, (y) for the Accrued Vacation Benefits to the extent provided in Section 6.17(c) and (z) as provided in Section 9.2(b) of this Agreement) including, without limitation, those set forth below (all such liabilities and obligations that are not Assumed Liabilities are referred to herein as the responsibility "Excluded Liabilities"):
(i) all liabilities, obligations and indebtedness of the any Seller pursuant to Section 6.14, or (iii) any Taxes of Seller (or any stockholder or Affiliate of any Seller to the Seller) of extent they relate to any kind or description (including any Liability for Taxes of the Seller (or any stockholder or Affiliate of the Seller) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(c) any Liabilities relating to or arising out of the Excluded Assets;
(dii) all liabilities, obligations and indebtedness of any Liabilities Seller or any Affiliate of any Seller relating to Taxes (with respect to the Purchased Assets or otherwise);
(iii) all liabilities, obligations and indebtedness for any legal, accounting, investment, banking, brokerage or similar fees or expenses incurred by any Seller or any Affiliate of any Seller, in connection with, resulting from or attributable to the transactions contemplated by this Agreement or the DIP Financing;
(iv) all obligations or liabilities for any borrowed money incurred by any Seller or any Affiliate of any Seller other than the SPEs, including, without limitation, the DIP Financing;
(v) all obligations of any Seller or any Affiliate of any Seller related to the ownership or issuance of any capital stock or other equity interest of the Sellers, including, without limitation, any stock options or warrants;
(vi) all liabilities, obligations and indebtedness (whether past, present, future, known or unknown, liquidated or unliquidated, accrued or unaccrued) of any Seller or any Affiliate of any Seller resulting from, caused by or arising out of, directly or indirectly, the conduct of their respective businesses or the ownership or lease of any of their respective properties or assets or any properties or assets previously used by any Seller or any Affiliate of any Seller at any time prior to or on the Closing Date, including, without limitation, such of the foregoing (A) as constitute, may constitute or are alleged to constitute a tort, breach of contract or violation of requirement of any Law or (B) that relate to, result in or arise out of the existence or imposition of any liability or obligation to remediate or contribute or otherwise pay any amount under or in respect of any pending EHS Law or threatened Action arising out of, other Laws (it being understood that any liabilities or other obligations relating to the Secondary Purchased Assets shall constitute Excluded Liabilities for all periods prior to the Subsequent Transfer Date);
(vii) any obligations to provide benefits coverage, notice or otherwise in respect severance under WARN, Section 4980B of the operation Code and Sections 601 through 608 of the Business ERISA ("COBRA") or the Purchased Assets any Benefit Plan, or any applicable State Laws providing for similar benefits or protections with respect to the extent (A) employees who are not Transferred Employees and (B) Transferred Employees eligible for such Action relates to such operation benefits coverage, notice or severance on or prior to the Closing Date, including employees on disability leave on the Closing Date and including, in each case, any obligations arising in connection with the consummation of the transactions contemplated herein;
(eviii) any product Liability all liabilities, known or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representationunknown, warranty, agreement or guaranty made by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold Seller or any service performed by the Seller;
(f) any recall, design defect or similar claims Affiliate of any products manufactured or sold or any service performed by the Seller;
(g) any Liabilities of the Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of the Seller;
(h) subject to Section 6.24 with regard relating to the ▇▇▇▇▇ Debt Obligationrecruitment, employment, potential employment or termination of employment on or prior to the Closing Date of any Liabilities of the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, Transferred Employees including, without limitation, any Liabilities associated with claims arising under any claims for wages Benefit Plan or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other paymentsContract pertaining thereto;
(iix) any Environmental Claimsliabilities or obligations relating to any current or former employees of any Seller or SPE who is not a Transferred Employee;
(x) all claims and causes of action against any Seller or any Affiliate of any Seller, or Liabilities under Environmental Lawstheir respective officers, directors, employees, shareholders or agents, or any Affiliates of such Persons;
(xi) any credit, refund, service credit, offset, reimbursement or similar entitlement with respect to the extent arising out of services provided or relating required to facts, circumstances be provided by a Seller or conditions existing any Subsidiary thereof on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the Seller;
(j) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, (ii) which constitute intercompany payables owing to Affiliates of the Seller, (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of business;
(k) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, (ii) did not arise in the ordinary course of business, or (iii) are not validly and effectively assigned to the Buyer Date pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the SellerContract, including but not limited to to, any dispute Assigned Contract (it being understood that any liabilities or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary other obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees;
(n) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned relating to the Buyer pursuant to this Agreement; Secondary Assigned Contracts shall constitute Excluded Liabilities for all periods on or (ii) except as set forth in Section 2.03(b), prior to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing;
(o) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or any other PersonSubsequent Transfer Date); and
(pxii) all mechanics', workmen's, repairmen's, warehousemen's, carriers' or other like Liens and encumbrances attaching to any Liabilities arising out ofPrimary Purchased Asset or Secondary Purchased Asset as a result of events or circumstances on or prior to the Closing Date or Subsequent Transfer Date, in respect of or in connection with the failure by the Seller or any of its Affiliates to comply with any Law or Governmental Orderas applicable.
Appears in 1 contract
Sources: Asset Purchase Agreement (Exds Inc)
Excluded Liabilities. The Notwithstanding the provisions of Section 2.03 or any other provision in this Agreement to the contrary, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller Sellers or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller Sellers shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) any Liabilities of the Seller Sellers arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any Liability for (i) Taxes of the Seller Sellers (or any stockholder or Affiliate of the SellerSellers) including any Taxes or relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, ; (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller Sellers pursuant to Section 6.14, 6.13; or (iii) any other Taxes of Seller Sellers (or any stockholder or Affiliate of the SellerSellers) of any kind or description (including any Liability for Taxes of the Seller Sellers (or any stockholder or Affiliate of the SellerSellers) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(c) any Liabilities relating to or arising out of the Excluded Assets, including, without limitation, the Liabilities for trade account payables of Sellers set forth on Section 2.03(a) of the Disclosure Schedules;
(d) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date;
(e) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the Seller;
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed by the Seller;
(g) any Liabilities of the Seller Sellers or ERISA Affiliates arising under or in connection with any Benefit Plan providing benefits to any present or former employee or independent contractor of the SellerSellers;
(hf) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller Sellers for any present or former employees, officers, directors, retirees, independent contractors or consultants of the SellerSellers, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;
(ig) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the SellerSellers;
(jh) any trade accounts payable of the Seller Sellers (i) to the extent not accounted for on the Interim Balance Sheet, ; (ii) which constitute intercompany payables owing to Affiliates of the Seller, Sellers; (iii) which constitute debt, loans or credit facilities to financial institutions, ; or (iv) which did not arise in the ordinary course of business;
(ki) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller Sellers on or before the Closing, ; (ii) did not arise in the ordinary course of business, ; or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(mj) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller Sellers (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Sellers Indemnitees;
(nk) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) which do not conform to the representations and warranties with respect thereto contained in this Agreement; or (iii) (except as set forth for the four (4) Tidewater and ▇▇▇▇▇▇▇▇ Project contracts listed in Section 2.03(b)2.01(c) of the Disclosure Schedules, the Tidewater Agreement and the ▇▇▇▇▇▇▇▇ Agreement) to the extent such Liabilities arise out of or relate to a breach by the Seller Sellers of such Contracts prior to Closing;
(ol) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller Sellers and/or the Business owing to financial institutions or any other Person; andinstitutions;
(pm) any Liabilities arising out of, in respect of or in connection with the failure by the Seller Sellers or any of its Affiliates to comply with any Law or Governmental Order; and
(n) any Liabilities associated with or otherwise related to Seller’s rights, title or interest in or operations at the Castex Property.
Appears in 1 contract
Sources: Asset Purchase Agreement (Gulf Island Fabrication Inc)
Excluded Liabilities. The Notwithstanding the provisions of Section 2.3 or any other provision in this Agreement to the contrary, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) all trade accounts payable of Seller to third parties in connection with the Business that remain unpaid as of the Closing Date;
(b) any Liabilities of the Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Ancillary Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(bc) any Liability for (i) Taxes of the Seller (or any stockholder or Affiliate of Seller, including the SellerPrincipals) including any Taxes or relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, ; (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, 6.9; or (iii) any other Taxes of Seller (or any stockholder or Affiliate of Seller, including the SellerPrincipals) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder or Affiliate of Seller, including the SellerPrincipals) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(cd) any Liabilities relating to or arising out of the Excluded Assets;
(de) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date;
(ef) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the Seller;
(fg) any recall, design defect or similar claims of any products manufactured or sold or any service performed by the Seller;
(gh) any Liabilities of the Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of the Seller;
(hi) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;
(ij) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the Seller;
(jk) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, ; (ii) which constitute intercompany payables owing to Affiliates of the Seller, ; (iii) which constitute debt, loans or credit facilities to financial institutions, ; or (iv) which did not arise in the ordinary course of business;
(kl) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, ; (ii) did not arise in the ordinary course of business, ; or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 8.3 as the Seller Indemnitees;
(n) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth which do not conform to the representations and warranties with respect thereto contained in Section 2.03(b), this Agreement; or (iii) to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing;
(o) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or any other Personinstitutions; and
(p) any Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates to comply with any applicable Law or Governmental Order.
Appears in 1 contract
Excluded Liabilities. The Notwithstanding the provisions of Section 2.03 or any other provision in this Agreement to the contrary, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) any Liabilities of the Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Ancillary Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any Liability for (i) Taxes of the Seller (or any stockholder or Affiliate of the Seller) including any Taxes or relating to the BusinessAcquired Brand, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, ; (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, Seller; or (iii) any other Taxes of Seller (or any stockholder or Affiliate of the Seller) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder or Affiliate of the Seller) that becomes become a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(c) any Liabilities relating to or arising out of the Excluded Assets;
(d) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business Acquired Brand or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date;
(e) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the Seller;
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed by the Seller;
(g) any Liabilities of the Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of the Seller;
(h) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;
(i) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the Seller;
(j) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, (ii) which constitute intercompany payables owing to Affiliates of the Seller, ; (iiiii) which constitute debt, loans or credit facilities to financial institutions, ; or (iviii) which did not arise in the ordinary course of business;
(kg) any Liabilities of the Business Acquired Brand relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ Acquired Brand’s customers to the Seller on or before the Closing, ; (ii) did not arise in the ordinary course of business, ; or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(mh) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 7.03 as the Seller Indemnitees;
(ni) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth which do not conform to the representations and warranties with respect thereto contained in Section 2.03(b), this Agreement; or (iii) to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing;
(oj) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business Acquired Brand owing to financial institutions or any other Personinstitutions; and
(pk) any Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates to comply with any Law or Governmental Order.
Appears in 1 contract
Sources: Asset Purchase Agreement (Kona Gold Beverage, Inc.)
Excluded Liabilities. The Notwithstanding the provisions of Section 2.03 or any other provision in this Agreement to the contrary, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “"Excluded Liabilities”"). The Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) any Liabilities of the Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any Liability for (i) Taxes of the Seller (or any stockholder member or Affiliate of the Seller) including any Taxes or relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, ; (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, 6.11; or (iii) any other Taxes of Seller (or any stockholder member or Affiliate of the Seller) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder member or Affiliate of the Seller) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(c) any Liabilities relating to or arising out of the Excluded Assets;
(d) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date;
(e) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the Seller;
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed by the Seller;
(g) any Liabilities of the Seller arising under or in connection with any Benefit Plan Plans providing benefits to any present or former employee employees of Seller to the Sellerextent such liability relates to operations on or prior to the Closing Date;
(hf) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities liabilities of the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ ' compensation, severance, retention, termination or other payments;
(i) any Environmental Claims, or Liabilities under Environmental Laws, payments to the extent arising out of or relating such liability relates to facts, circumstances or conditions existing operations on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the Seller;Date; and
(j) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, (ii) which constitute intercompany payables owing to Affiliates of the Seller, (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of business;
(k) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, (ii) did not arise in the ordinary course of business, or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees;
(n) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth in Section 2.03(b), to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing;
(og) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or any other Person; and
(p) any Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates to comply with any Law or Governmental Orderinstitutions.
Appears in 1 contract
Excluded Liabilities. The Buyer Notwithstanding the provisions of Section 2.03 or any other provision in this Agreement to the contrary, the Buyers shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller Sellers or any of its their respective Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller Sellers shall, and shall cause each of its their respective Affiliates to, pay pay, discharge and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfyLiabilities. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, include the following:
(a) any Liabilities of the Seller Sellers arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, including fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any Liability for (i) Liabilities arising out of or with respect to any Taxes of any Seller, other than any Transfer Taxes for which the Seller (or any stockholder or Affiliate of the Seller) including any Taxes relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that Buyers are the responsibility of the Seller responsible pursuant to Section 6.14, or (iii) any Taxes of Seller (or any stockholder or Affiliate of the Seller) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder or Affiliate of the Seller) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law6.07(a);.
(c) any Liabilities relating to or arising out of the Excluded AssetsAssets or Excluded Contracts;
(d) any Liabilities arising under or in connection with any Benefit Plan;
(e) any Liabilities with respect of to any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or by the Sellers prior to the Closing Date;
(e) date of this Agreement, including any product Liability liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the SellerSellers, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the SellerSellers;
(f) any Liabilities with respect to any recall, design defect other than voluntary recalls by the Buyers, relating to or similar claims of arising from any products manufactured manufactured, including any products included in the Purchased Assets, or sold by or for any service performed by the SellerSellers before the date of this Agreement;
(g) any Liabilities of the Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of the Seller;
(h) subject to Section 6.24 with regard prior to the ▇▇▇▇▇ Debt Obligation, any Liabilities date of the Seller for this Agreement in respect of any present or former employees, officers, directors, members, managers, retirees, independent contractors or consultants of the SellerSellers or any of their Affiliates, including, without limitation, including any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;
(i) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the Seller;
(jh) any trade accounts payable of the Seller Sellers to third parties that (i) to the extent constitute Payoff Liabilities or (ii) are not accounted for reflected on the Interim Balance Sheet, (ii) which constitute intercompany payables owing to Affiliates of the Seller, (iii) which constitute debt, loans Sheet or credit facilities to financial institutions, or (iv) which did not arise in arose outside the ordinary course of businessbusiness since the Interim Balance Sheet Date;
(k) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, (ii) did not arise in the ordinary course of business, or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former Affiliate, officer, director, employee member, manager, or agent of the Seller Sellers (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 7.03 as the Seller IndemniteesIndemnified Parties;
(nj) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth in Section 2.03(b)Licenses, to the extent such Liabilities arise out of or relate to a breach by the Seller Sellers of such Contracts prior to Closingthe date of this Agreement;
(ok) any Liabilities associated with debt, preferred securities, loans or credit facilities Indebtedness of the Seller Sellers and/or the Business owing to financial institutions institutions;
(l) all Liabilities associated with (i) intercompany accounts, payables, accruals or loans between any other PersonSeller and any present or former Affiliate or Related Party of any Seller, including accounts payable for purchases made from BWW or (ii) any Indebtedness owing by the Sellers to any present or former Affiliate or Related Party of any Seller, including those listed in Section 2.04(l) of the Disclosure Schedules; and
(pm) any all Liabilities arising out of, listed in respect Section 2.04(m) of or in connection with the failure by the Seller or any of its Affiliates to comply with any Law or Governmental OrderDisclosure Schedules.
Appears in 1 contract
Excluded Liabilities. The Notwithstanding the provisions of Section 2.03 or any other provision in this Agreement to the contrary, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) any Liabilities of the Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any Liability for (i) Taxes of the Seller (or any stockholder or Affiliate of the Seller) including any Taxes or relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, ; (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, ; or (iii) any other Taxes of Seller (or any stockholder or Affiliate of the Seller) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder or Affiliate of the Seller) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(c) any Liabilities relating to or arising out of the Excluded Assets;
(d) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date;
(e) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the Seller;
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed by the Seller;
(g) any Liabilities of the Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of the Seller;
(h) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller for any present or former employees, officers, directors, retirees, agents or independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ ' compensation, severance, retention, termination or other payments;
(i) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the Seller;
(j) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, ; (ii) which constitute intercompany payables owing to Affiliates of the Seller, ; (iii) which constitute debt, loans or credit facilities to financial institutions, ; or (iv) which did not arise in the ordinary course of business;
(k) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ ' customers to the Seller on or before the Closing, ; (ii) did not arise in the ordinary course of business, ; or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees;
(nm) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, Contracts (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth which do not conform to the representations and warranties with respect thereto contained in Section 2.03(b), this Agreement; or (iii) to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing;
(on) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or any other Personinstitutions; and
(po) any Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates to comply with any Law or Governmental Order.
Appears in 1 contract
Excluded Liabilities. The Notwithstanding the provisions of Section 2.03 or any other provision in this Agreement to the contrary, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but are not be limited to, all of the followingfollowing Liabilities:
(a) any Liabilities of the Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any Liability for (i) Taxes of the Seller (or any stockholder or Affiliate of the Seller) including any Taxes or relating to the Commercial Business, the Purchased Assets Assets, the Excluded Assets, the Excluded Liabilities or the Assumed Liabilities for any Pre-Closing Tax Period, ; (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, 6.06 or Section 6.07; or (iii) any other Taxes of Seller (or any stockholder or Affiliate of the Seller) of any kind or description (description, including any Liability for Taxes of the Seller (or any stockholder or Affiliate of the Seller) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(c) any Liabilities relating to or arising out of the Excluded Assets;
(d) any Liabilities in respect of any pending or threatened Action (other than the Assumed Liabilities) arising out of, relating to or otherwise in respect of the ownership or operation of the Commercial Business or the Purchased Assets on or prior to the extent such Action relates Closing Date or to such operation actions, omissions, events, occurrences or circumstances occurring or arising on or prior to the Closing Date;
(e) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed shipped and invoiced by the Seller;
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed shipped and invoiced by the Seller;
(g) any Liabilities of the Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of the Seller;; DM3\7875356.18
(h) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller for to or with respect to any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;
(i) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the Seller;
(j) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, (ii) which constitute intercompany payables owing to Affiliates of the Seller, (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of business;
(k) any Liabilities of the Commercial Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Commercial Business’ customers to the Seller on or before the Closing, ; (ii) did not arise in the ordinary course Ordinary Course of business, Business; or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees;
(nm) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, Contracts (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth which do not conform to the representations and warranties with respect thereto contained in Section 2.03(b), this Agreement; or (iii) to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing;
(on) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Commercial Business owing to financial institutions or any other Person; and
(po) any Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates to comply with any Law or Governmental Order.
Appears in 1 contract
Excluded Liabilities. The Notwithstanding the provisions of Section 3.1 or any other provision in this Agreement to the contrary, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) 3.2.1. any Liabilities of the Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, including fees and expenses of counsel, accountants, consultants, advisers advisors and others;
(b) 3.2.2. any Liability for (ia) Taxes of the Seller (or any stockholder or Affiliate of the Seller) including any Taxes or relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, ; (iib) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, 8.3 (Taxes) of this Agreement; or (iiic) any other Taxes of Seller (or any stockholder or Affiliate of the Seller) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder or Affiliate of the Seller) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);Law relating to the period prior to the Closing Date.
(c) 3.2.3. any Liabilities relating to or arising out of the Excluded Assets;
(d) 3.2.4. any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date;
(e) 3.2.5. any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by Seller to the Sellerextent such Liability or claims relates to the Business on or prior to the Closing Date;
(f) 3.2.6. any recall, design defect or similar claims of any products manufactured or sold or any service performed by Seller to the Sellerextent related to the Business on or prior to the Closing Date;
(g) any Liabilities of the Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of the Seller;
(h) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;
(i) 3.2.7. any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the Seller;
(j) 3.2.8. any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, (ii) which constitute intercompany payables owing to Affiliates of the Seller, (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in other than the ordinary course of businessAssumed Liabilities;
(k) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, (ii) did not arise in the ordinary course of business, or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees;
(n) 3.2.9. any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (ia) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; (b) which do not conform to the representations and warranties with respect thereto contained in this Agreement; or (iic) except as set forth in Section 2.03(b), to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing;
(o) 3.2.10. any Liabilities associated with debt, preferred securities, loans or credit facilities indebtedness of the Seller and/or the Business owing to financial institutions or any other PersonBusiness; and
(p) 3.2.11. any Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates to comply with any Law or Governmental Order.
Appears in 1 contract
Sources: Asset Purchase Agreement (Scott's Liquid Gold - Inc.)
Excluded Liabilities. The Buyer Notwithstanding the provisions of Section 2.03 or any other provision in this Agreement to the contrary, Buyers shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller Sellers or any of its their Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) any Liabilities of the Seller Sellers arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(b) all trade accounts payable of Sellers to third parties incurred prior to Closing;
(c) except as otherwise expressly agreed by the parties herein, any Liability for (i) Taxes of the Seller Sellers (or any stockholder or Affiliate of the SellerSellers, including Global GP) including any Taxes or relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, ; (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller Sellers pursuant to Section 6.14, 6.13; or (iii) any other Taxes of Seller Sellers (or any stockholder or Affiliate of the SellerSellers, including Global GP) of any kind or description (including any Liability for Taxes of the Seller Sellers (or any stockholder or Affiliate of the SellerSellers, including Global GP) that becomes a Liability of the Buyer Buyers under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(cd) any Liabilities relating to or arising out of the Excluded Assets;
(de) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the ownership or operation of the Business or the Purchased Assets to the extent such Action relates to such ownership or operation on or prior to the Closing Date;
(e) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the Seller;
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed by the Seller;
(g) any Liabilities of the Seller Sellers (or any stockholder or Affiliate of Sellers, including Global GP) arising under or in connection with any Benefit Plan providing benefits to any present or former employee of the SellerSellers (or Global GP);
(hg) subject to except as otherwise expressly agreed by the parties in Section 6.24 with regard to 6.05 or the ▇▇▇▇▇ Debt ObligationTransition Services Agreement, any Liabilities of the Seller Sellers (or any stockholder or Affiliate of Sellers, including Global GP) to or for any present or former employees, officers, directors, retirees, independent contractors or consultants of the SellerSellers (or Global GP), including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, {W5940181.1} accrued vacation, accrued sick time, accrued holidays, other accrued paid time off, workers’ compensation, severance, retention, termination or other payments, and any Liabilities under the WARN Act;
(h) any Liabilities under environmental Laws relating to the ownership and/or operation of the Purchased Assets prior to the Closing Date;
(i) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the Seller;
(j) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, (ii) which constitute intercompany payables owing to Affiliates of the Seller, (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of business;
(k) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, or customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller Sellers on or before the Closing, ; or (ii) did not arise in the ordinary course of business, or (iii) are not validly and effectively assigned to the Buyer Buyers pursuant to this Agreement, except as otherwise set forth in Section 2.07 of this Agreement and/or the Transition Services Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(mj) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, manager, employee or agent of the Seller Sellers (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees;
(nk) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer Buyers pursuant to this Agreement, except as otherwise set forth in Section 2.07 of this Agreement and/or the Transition Services Agreement; (ii) which do not conform to the representations and warranties with respect thereto contained in this Agreement; or (iiiii) except as set forth in Section 2.03(b), to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing;
(ol) any Liability to any customer of the Business in respect of a credit balance on such customer’s account, other than the Assumed Customer Credit Balances;
(m) any Liabilities of Sellers to any Affiliate of Sellers;
(n) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller Sellers (or any stockholder or Affiliate of Sellers, including Global GP) and/or the Business owing to financial institutions or any other Personinstitutions; and
(po) any Liabilities arising out of, in respect of or in connection with the failure by the Seller Sellers or any of its their Affiliates to comply with any Law or Governmental Order.
Appears in 1 contract
Excluded Liabilities. The Notwithstanding the provisions of Section 2.03 or any other provision in this Agreement to the contrary, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller Entities or any of its their Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller Entities shall, and shall cause each of its their Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) any Liabilities of the Seller Entities arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and othersincluding the Transaction Expenses;
(b) any Liability for (i) Taxes of the Seller Entities (or any stockholder or Affiliate of the SellerSeller Entities) including any Taxes or relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, ; (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller Entities pursuant to Section 6.14, this Agreement; or (iii) any other Taxes of the Seller Entities (or any stockholder or Affiliate of the SellerSeller Entities) of any kind or description (including any Liability for Taxes of the Seller Entities (or any stockholder or Affiliate of the SellerSeller Entities) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(c) any Liabilities relating to or arising out of the Excluded Assets;
(d) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date;
(e) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Sellerany Seller Entity, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the Sellerby, or under contract with, any Seller Entity;
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed by the Sellerany Seller Entity;
(g) any Liabilities of the any Seller Entity arising under or in connection with any Benefit Plan providing benefits to any present or former employee of the Sellerany Seller Entity;
(h) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of any Seller Entity (to the Seller extent not explicitly assumed pursuant to Section 2.03) to or for any present or former employees, officers, directors, retirees, independent contractors or consultants of any Seller Entity (except as explicitly set forth in the SellerEmployment Arrangements), including, without limitation, including any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments, including claims for deferred compensation to the Principal Executives;
(i) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the Sellerany Seller Entity;
(j) any trade accounts payable of the any Seller Entity (i) to the extent not accounted for on the Interim Balance Sheet, the Estimated Balance Sheet or the Final Balance Sheet; (ii) which constitute intercompany payables owing to Affiliates of the Seller, any Seller Entity; (iii) which constitute debt, loans or credit facilities to financial institutions, ; or (iv) which did not arise in the ordinary course of business;
(k) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the any Seller Entity on or before the Closing, ; (ii) did not arise in the ordinary course of business, ; or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the any Seller Entity (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 10.03 as the Seller Indemnitees;
(nm) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property AgreementsLicenses, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth which do not conform to the representations and warranties with respect thereto contained in Section 2.03(b), this Agreement; or (iii) to the extent such Liabilities arise out of or relate to a breach by the any Seller Entity of such Contracts prior to Closing;
(on) any Liabilities associated with debt, preferred securitiesindebtedness for borrowed money, loans or credit facilities of the any Seller Entity and/or the Business regardless of whether outstanding, contractually committed or otherwise, and regardless of owing to a financial institutions institution or any other Person; and
(po) any Liabilities arising out of, in respect of or in connection with the failure by the any Seller Entity or any of its their Affiliates to comply with any Law or Governmental Order.
Appears in 1 contract
Excluded Liabilities. The Notwithstanding the provisions of Section 2.03 or any other provision in this Agreement to the contrary, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) any Liabilities of the Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Ancillary Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any Liability for (i) Taxes of the Seller (or any stockholder or Affiliate of the Seller) including any Taxes or relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, ; (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, 6.13; or (iii) any other Taxes of Seller (or any stockholder or Affiliate of the Seller) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder or Affiliate of the Seller) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(c) any Liabilities relating to or arising out of the Excluded Assets;
(d) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date;
(e) any product Liability or similar lender liability claim for injury to a Person or property which arises out of or is based upon any express act or implied representation, warranty, agreement or guaranty made by the Seller, or by reason omission of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the Seller;
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed by the Seller;
(g) any Liabilities of the Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of the Seller;
(hg) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;
(ih) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing Date or otherwise to the extent arising out of any actions or omissions of Seller on or prior to the SellerClosing Date;
(ji) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, (ii) which constitute intercompany payables owing to Affiliates of the Seller, (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of business;
(kj) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders loan commitments that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, (ii) did not arise in the ordinary course of business, or (iii) are not validly and effectively assigned to the Buyer pursuant to this AgreementAssets;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(mk) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees;
(nl) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth which do not conform to the representations and warranties with respect thereto contained in Section 2.03(b), this Agreement; or (iii) to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing;
(om) any Liabilities owing to financial institutions associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or any other PersonBusiness; and
(pn) any Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates to comply with any Law or Governmental Order; and (o) Deposits.
Appears in 1 contract
Excluded Liabilities. The Notwithstanding the provisions of Section 2.3 or any other provision in this Agreement to the contrary, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are it is obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) all trade accounts payable of Seller to third parties (the “Accounts Payable”);
(b) any Liabilities of the Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and othershereby;
(bc) any Liability for (i) Taxes of the Seller (or any stockholder or Affiliate of the Seller) including any Taxes relating to the BusinessSystem, the Purchased Assets or the Assumed Liabilities for any Prepre-Closing Tax Period, period; (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, 6.8; or (iii) any other Taxes of Seller (or any stockholder or Affiliate of the Seller) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder or Affiliate of the Seller) that becomes become a Liability of the Buyer under any common law doctrine of de facto merger or doctrine, transferee or successor liability liability, or otherwise by operation of contract or Law);
(cd) any Liabilities relating to or arising out of the Excluded Assets;
(de) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business System or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date;
(e) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the Seller;
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed by the Seller;
(g) any Liabilities of the Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of the Seller;
(hg) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller for to any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments, and Representatives of the Seller engaged directly in connection with the transactions contemplated hereunder;
(ih) any Environmental Claims, Claims or other Liabilities under any Environmental LawsLaw, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the Seller;
(j) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, (ii) which constitute intercompany payables owing to Affiliates of the Seller, (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of business;
(k) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, (ii) did not arise in the ordinary course of business, or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees;
(n) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, Contracts (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth which do not conform to the representations and warranties with respect thereto contained in Section 2.03(b), this Agreement; or (iii) to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing;
(oj) except as set forth on Schedule 2.3(c), any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or any other PersonSystem; and
(pk) any Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates to comply with any Law or Governmental Order.
Appears in 1 contract
Sources: Asset Purchase Agreement
Excluded Liabilities. The Notwithstanding any provision in this Agreement to the contrary, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller Sellers or any of its their respective Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller Sellers shall, and shall cause each of its their respective Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) any Liabilities of the Seller Sellers arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any Liability for (i) Taxes of the a Seller (or any stockholder or Affiliate of the such Seller) including any Taxes or relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, ; (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller Sellers pursuant to Section 6.14, 5.07; or (iii) any other Taxes of a Seller (or any stockholder shareholder or Affiliate of the such Seller) of any kind or description (including any Liability for Taxes of the a Seller (or any stockholder or Affiliate of the such Seller) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Applicable Law);
(c) any Liabilities relating to or arising out of the Excluded Assets;
(d) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date;
(e) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller, or by reason of the improper performance or malfunctioning Liabilities of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the Seller;
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed by the Seller;
(g) any Liabilities of the Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of the such Seller;
(hf) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the a Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the such Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ ' compensation, severance, retention, termination or other payments;
(ig) any Environmental Claims, or Liabilities under Environmental LawsLaws or Environmental Claims, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the SellerSellers;
(jh) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, (ii) which constitute intercompany payables owing to Affiliates of the Seller, (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of businessSellers;
(ki) any Liabilities of the Business relating to or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ ' customers to the a Seller on or before the Closing, (ii) did not arise in the ordinary course Ordinary Course of businessBusiness, or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(mj) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the a Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 7.02 as the Seller IndemniteesIndemnified Parties;
(nk) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or , (ii) except as set forth which do not conform to the representations and warranties with respect thereto contained in Section 2.03(b)this Agreement, or (iii) to the extent such Liabilities arise out of or relate to a breach by the a Seller of such Contracts prior to Closing;
(ol) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller Sellers and/or the Business owing to financial institutions or any other Personinstitutions; and
(pm) any Liabilities arising out of, in respect of or in connection with the failure by the a Seller or any of its Affiliates to comply with any Applicable Law or order or decree of a Governmental OrderAuthority.
Appears in 1 contract
Sources: Asset Purchase Agreement (Staffing 360 Solutions, Inc.)
Excluded Liabilities. The Notwithstanding the provisions of Section 1.4 or any other provision in this Agreement to the contrary, Buyer shall not assume and shall not be responsible to pay, perform perform, or discharge any Liabilities of the Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) any Liabilities of the Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any Liability for Taxes (i) Taxes of the of, or owed by, Seller (or any stockholder of its ultimate beneficial owners or Affiliate Affiliates) for any period, (ii) relating to any of the SellerExcluded Assets or Excluded Liabilities, in either instance, for any period, (iii) including that arise out of the consummation of the transactions contemplated hereby, (iv) of, or owed by, Seller (or any Taxes of its ultimate beneficial owners or Affiliates) relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, (iiv) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14of, or (iii) any Taxes of owed by, Seller (or any stockholder of its ultimate beneficial owners or Affiliate Affiliates) arising by reason of the Seller) being a member of any kind a consolidated, combined, unitary or description (including any Liability for Taxes of the affiliated group that includes or included Seller (or any stockholder of its past affiliates prior to the Closing, whether by reason of (1) a tax sharing, tax indemnity or Affiliate similar agreement entered into by Seller or any of its present or past affiliates prior to the SellerClosing, or (2) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability arising in respect of a transaction undertaken by Seller or otherwise any of its present or past Affiliates prior to the Closing, and (vi) imposed on Buyer as a result of any breach, by operation Seller, of contract any representation, warranty, or Law)covenant set forth herein;
(c) any Liabilities relating to or arising out of the Excluded Assets;
(d) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date;
(e) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the Seller;
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed by the Seller;
(g) any Liabilities of the Seller arising under or in connection with any Benefit Plan providing benefits to covering any present or former employee of Seller, regardless of whether such Liability arises prior to, on, or after the Closing, including, without limitation, any Liabilities (including Tax Liabilities) that arise out of or in connection with any violation of or non-compliance with any applicable Law related to the Benefit Plans and the provision of benefits any present or former employee of Seller;
(hf) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;
(g) any Liabilities under any Excluded Contracts, or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to Buyer pursuant to this Agreement; (ii) which do not conform to the representations and warranties with respect thereto contained in this Agreement; or (iii) to the extent such Liabilities arise out of or relate to a breach of such Contract by Seller prior to Closing;
(h) any Liabilities associated with debt, loans or credit facilities of Seller and/or the Business owing to financial institutions;
(i) any Liabilities arising out of, in respect of or in connection with the failure by Seller or any of its Affiliates to comply with any Law or Governmental Order;
(j) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing Closing, or otherwise to the extent arising out of any actions or omissions of the Seller;; and
(jk) any all trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, (ii) which constitute intercompany payables owing to Affiliates of the Seller, (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of business;
(k) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, (ii) did not arise in the ordinary course of business, or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees;
(n) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth in Section 2.03(b), to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing;
(o) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or any other Person; and
(p) any Liabilities arising out of, in respect of or third parties in connection with the failure by Business that remain unpaid and are not delinquent as of the Seller or any of its Affiliates to comply with any Law or Governmental OrderClosing Date.
Appears in 1 contract
Excluded Liabilities. The Buyer Except for the Assumed Liabilities, Purchaser shall not assume assume, and Hotel Owners shall not be responsible retain all Liabilities to paythe extent based on or relating to events, perform facts, circumstances or discharge any Liabilities conditions occurring or existing in connection with, or arising out of, the operation of the Seller Properties prior to Closing or any the ownership, possession, use or sale of its Affiliates the Properties prior to Closing (except to the extent of any kind or nature whatsoever other than credit for any the Assumed Liabilities same given against the Purchase Price as provided herein) (collectively, the “Excluded Liabilities”). The Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the following shall constitute Excluded Liabilities shall include, but not be limited to, the followingnotwithstanding any other provision of this Agreement:
(a) any all Liabilities relating to the Excluded Property;
(b) all Liabilities of the Seller Facilitator (and its Affiliates) arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement (except to the extent assumed under this Agreement), the Merger Agreement, the other Transaction Documents instruments and agreements to be delivered or entered into in connection herewith or therewith, and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(bc) any Liability for (i) Taxes of the Seller (or any stockholder or Affiliate of the Seller) including any Taxes all Liabilities relating to the Businesscomplaints, the Purchased Assets causes of action, litigation or similar matters instituted against Facilitator or the Assumed Liabilities for any Pre-Closing Tax PeriodHotel Owners or related to the Properties, (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14as applicable, or (iii) any Taxes of Seller (or any stockholder or Affiliate of the Seller) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder or Affiliate of the Seller) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(c) any Liabilities relating to or arising out of any actions, omissions, circumstances or conditions or events occurring at or prior to the Excluded AssetsClosing or with respect to the Merger Agreement, except, in all cases, as may have been caused by Purchaser;
(d) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect Indebtedness of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date;Hotel Owners; and
(e) any product Liability or similar claim for injury to a Person or property which arises all Liabilities arising out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the Seller;
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed by the Seller;
(g) any Liabilities of the Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of the Seller;
(h) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;
(i) any Environmental Claims, or Liabilities under Environmental Laws, Taxes with respect to the Properties for periods prior to the Cut-Off Time except to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of credit for the Seller;
(j) any trade accounts payable of same given against the Seller (i) to the extent not accounted for on the Interim Balance SheetPurchase Price as provided herein, (ii) which constitute intercompany payables owing to Affiliates of the Seller, (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of business;
(k) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, (ii) did not arise in the ordinary course of business, or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees;
(n) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth in Section 2.03(b), to the extent such Liabilities arise out Taxes of or relate to a breach by the Seller of such Contracts prior to Closing;
(o) Facilitator for any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or any other Person; and
(p) any Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates to comply with any Law or Governmental OrderTax period.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Pebblebrook Hotel Trust)
Excluded Liabilities. The Buyer Notwithstanding the provisions of Section 2.03 or any other provision in this Agreement to the contrary, Buyers shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller Sellers or any of its their Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller Parent shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
: (a) all trade accounts payable of Sellers to third parties in connection with the Business that remain unpaid as of the Closing Date, regardless of whether they are reflected on the Interim Balance Sheet or arose in the ordinary course of business consistent with past practice since the Interim Balance Sheet Date; (b) any Liabilities of the Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
; (bc) any Liability for (i) Taxes of the Seller (Sellers or any stockholder or Affiliate of the SellerSellers, (ii) including any Taxes relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, ; and (iiiii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller Sellers pursuant to Section 6.14, or 6.13; (iii) any Taxes of Seller (or any stockholder or Affiliate of the Seller) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder or Affiliate of the Seller) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(cd) any Liabilities relating to or arising out of the Excluded Assets;
; (de) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date;
; (ef) any product Liability or similar claim for injury to a Person or property to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the SellerSellers, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the Seller;
Sellers; (fg) any recall, design defect or similar claims of any products manufactured or sold or any service performed by Sellers to the Seller;
extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing; (gh) any Liabilities of the Seller Sellers arising under or in connection with any Benefit Plan providing benefits to any present or former employee of the Seller;
Sellers; (hi) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller Sellers for any present or former employees, officers, directors, retirees, independent contractors or consultants of the SellerSellers, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;
; (ij) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the Seller;
(j) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, (ii) which constitute intercompany payables owing to Affiliates of the Seller, (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of business;
Sellers; (k) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the a Seller on or before the Closing, ; (ii) did not arise in the ordinary course of business, ; or (iii) are not validly and effectively assigned to the a Buyer pursuant to this Agreement;
; (l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller Sellers (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees;
; (nm) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property AgreementsLicenses, (i) which are not validly and effectively assigned to the a Buyer pursuant to this Agreement; (ii) which do not conform to the representations and warranties with respect thereto contained in this Agreement; or (ii) except as set forth in Section 2.03(b), to the extent such Liabilities arise out of or relate related to a breach by the a Seller of such Contracts prior to Closing;
; (n) any Liabilities for actual or alleged infringement of Intellectual Property that relates to (i) the Products sold or shipped by Sellers prior to the Closing Date, (ii) the Legacy Products; including any Liabilities to indemnify Business’ customers pursuant to a Contract, arising out of or in connection with “In re Matter of Certain Optoelectronic Devices, Components Thereof, and Products Containing Same, Investigation No. 337-TA-669” or Avago Technologies Fiber IP (Singapore) Pte Ltd. v. EMCORE Corporation, No. 3:08-cv-05394 (N.D. Cal. filed December 1, 2008) or (iii) U.S. Patent No. 5,359,447, regardless of whether such Liability accrues before or after the Closing and under an Assigned Contract or an Excluded Contract; (o) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller Sellers and/or the Business owing to financial institutions or any other Personinstitutions; and
(p) any Liabilities arising out of, in respect of or in connection with the failure by the Seller Sellers or any of its Affiliates to comply with any Law or Governmental Order; (q) Liabilities associated with any Benefit Plan, or any assets held in trust or otherwise relating to any Benefit Plan or the funding thereof; any insurance policy, contract, trust, third party administrator contract or other funding arrangement for any Benefit Plan; any monies held by Seller Parent or its Affiliates in any account dedicated to the payment of benefits or insurance premiums relating to any Benefit Plan, or Seller Parent’s or any Affiliate’s rights to any such assets, contracts or monies; and (r) any Liabilities arising out of, in respect of or in connection with the closure of Seller’s offices used for the Business in Taiwan.
Appears in 1 contract
Sources: Master Purchase Agreement
Excluded Liabilities. The Notwithstanding the provisions of Section 2.03 or any other provision in this Agreement to the contrary, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) any Liabilities of the Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any Liability for (i) Taxes of the Seller (or any stockholder member or Affiliate of the Seller) including any Taxes or relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Pre-
(c) Closing Tax Period, ; (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, ; or (iii) any other Taxes of Seller (or any stockholder member or Affiliate of the Seller) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder member or Affiliate of the Seller) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(cd) any Liabilities relating to or arising out of the Excluded Assets;
(de) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date;
(ef) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the Seller;
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed by the Seller;
(g) any Liabilities of the Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of the Seller;
(h) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;
(i) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the Seller;
(j) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, (ii) which constitute intercompany payables owing to Affiliates of the Seller, (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of business;
(k) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, ; (ii) did not arise in the ordinary course of business, ; or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees;
(m) any Liabilities under the Assigned Contracts to the extent that such Liabilities arise after the Closing Date, are required to be performed after the Closing Date, were incurred in the ordinary course of business or relate to any failure to perform, improper performance, warranty or other breach, default or violation by Seller on or prior to the Closing;
(n) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth which do not conform to the representations and warranties with respect thereto contained in Section 2.03(b), this Agreement; or (iii) to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing;
(o) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or any other Personinstitutions; and
(p) any Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates to comply with any Law or Governmental Order.
Appears in 1 contract
Sources: Asset Purchase Agreement (Innovative Food Holdings Inc)
Excluded Liabilities. The Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller Sellers or any of its their Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller Sellers shall, and shall cause each of its their Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) any Liabilities of the Seller Sellers arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents Document and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any Liability for (i) Taxes of the Seller Sellers (or any stockholder or Affiliate of the SellerSellers) including any Taxes or relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, ; (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller Sellers pursuant to Section 6.14, ; or (iii) any other Taxes of a Seller (or any stockholder or Affiliate of the a Seller) of any kind or description (including any Liability for Taxes of the a Seller (or any stockholder or Affiliate of the a Seller) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(c) any Liabilities relating to or arising out of the Excluded Assets;
(d) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date;
(e) other than Ordinary Warranty Obligations, any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the a Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the SellerSellers;
(f) other than Ordinary Warranty Obligations, any recall, design defect or similar claims of any products manufactured or sold or any service performed by the SellerSellers;
(g) any Liabilities of the a Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of the a Seller;
(h) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of a Seller, whether arising prior to, on or following the Seller Closing Date, for any present or former employees, officers, directors, retirees, independent contractors or consultants of the a Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, paid time off, workers’ compensation, severance, retention, termination termination, change of control or other paymentspayments and benefits;
(i) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the Sellera Seller prior to Closing;
(j) any trade accounts payable of the a Seller (i) to the extent not accounted for on the Interim Balance Sheet, other than those that arose after the Interim Balance Sheet Date in the ordinary course of business consistent with past practice; (ii) which constitute intercompany payables owing to Affiliates of the a Seller, ; (iii) which constitute debt, loans or credit facilities to financial institutions, Indebtedness; or (iv) which did not arise in the ordinary course of business;
(k) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the a Seller on or before the Closing, ; (ii) did not arise in the ordinary course of business, ; or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the a Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 8.3 as the Seller Indemnitees;
(nm) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this AgreementAgreement (subject to Section 2.10); or (ii) except as set forth in Section 2.03(b), to the extent such Liabilities arise out of or relate to a breach by the a Seller of such Contracts prior to Closing;
(on) any Liabilities associated with debt, preferred securities, loans or credit facilities Indebtedness of the a Seller and/or the Business owing to financial institutions or any other PersonBusiness; and
(po) any Liabilities arising out of, in respect of or in connection with the failure by the a Seller or any of its Affiliates to comply with any Law or Governmental Order. In furtherance of the foregoing, Sellers shall repay any Indebtedness at or prior to the Closing as may be necessary to release or remove any Encumbrances (other than Permitted Encumbrances) with respect thereto on the Purchased Assets.
Appears in 1 contract
Excluded Liabilities. The Notwithstanding the provisions of Section 2.3 or any other provision in this Agreement to the contrary, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) any Liabilities of the Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any Liability for (i) Taxes of the Seller (or any stockholder Member or Affiliate of the Seller) including any Taxes or relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, ; or (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, or (iii) any Taxes of Seller (or any stockholder or Affiliate of the Seller) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder or Affiliate of the Seller) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law)6.8;
(c) any Liabilities relating to or arising out of the Excluded Assets;
(d) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date;
(e) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by Seller prior to the SellerClosing Date;
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed by Seller prior to the SellerClosing Date;
(g) any Liabilities of the Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of the Seller;
(h) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;
(i) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the Seller;
(j) any other than Assumed Liabilities, all trade accounts payable of Seller to third parties in connection with the Seller Business including without limitation, those (i) to which remain unpaid as of the extent not accounted for Closing Date, regardless of whether such accounts payable are reflected on the Interim Balance Sheet, Sheet Date or arose in the Ordinary Course of Business; (ii) which constitute intercompany payables owing to Affiliates of the Seller, ; or (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of business;.
(k) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, ; (ii) did not arise in the ordinary course Ordinary Course of business, Business; or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder Indebtedness of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees;
(n) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth in Section 2.03(b), to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing;
(o) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or any other Person; and
(pm) any Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates to comply with any Law or Governmental Order.
Appears in 1 contract
Excluded Liabilities. The Notwithstanding the provisions of Section 2.03 or any other provision in this Agreement to the contrary, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Parent or Seller or any of its their respective Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “"Excluded Liabilities”"). The Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) any Liabilities of the Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others, except as set forth in Section 10.01;
(b) any Liability for (i) Taxes of the Seller (or any stockholder or Affiliate of the Seller) including any Taxes or relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, ; (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, 6.10; or (iii) any other Taxes of Seller (or any stockholder or Affiliate of the Seller) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder or Affiliate of the Seller) that becomes a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law);
(c) any Liabilities relating to or arising out of the Excluded Assets;
(d) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date;
(e) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the SellerSeller (other than pursuant to this Agreement), or by reason of the improper performance of services or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the Seller;
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed by the Seller;
(g) any Liabilities of the Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of the Seller;
(h) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ ' compensation, change of control, severance, retention, termination or other payments, including Liabilities arising under agreements with respect to a disposition of the Business or the Purchased Assets;
(i) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the Seller;
(j) any trade all accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, (ii) which constitute intercompany payables owing to Affiliates of the Seller, (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of business;
(k) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, (ii) did not arise in the ordinary course of business, or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 as the Seller Indemnitees;
(nl) any all Liabilities arising under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth in Section 2.03(b), to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing;
(om) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or any other Personinstitutions, including without limitation lines of credit, term loans, notes payable, tax liens and net related party payables; and
(pn) any Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates to comply with any Law or Governmental Order.
Appears in 1 contract
Excluded Liabilities. The Notwithstanding the provisions of Section 2.03 or any other provision in this Agreement to the contrary, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) any Liabilities of the Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Ancillary Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any Liability for (i) Taxes of the Seller (or any stockholder Stockholder or Affiliate of the Seller); (ii) including any Taxes relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, ; (iiiii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, 6.11; (iv) Taxes related to the Excluded Assets; or (iiiv) any other Taxes of Seller (or any stockholder or Affiliate of the Seller) of any kind or description (including any Liability for Taxes of the Seller (or any stockholder or Affiliate of the Seller) that becomes become a Liability of the Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or LawLaw (collectively, the “Excluded Tax Liabilities”);
(c) any Liabilities related to any derivative Contracts;
(d) any Liabilities relating to or arising out of the Excluded Assets;
(de) any Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date;
(ef) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by the Seller;
(fg) any recall, design defect or similar claims of any products manufactured or sold or any service performed by the Seller;
(gh) any Liabilities of the Seller arising under or in connection with any Benefit Plan providing benefits benefit plans of Seller or its Affiliates with respect to any present or former employee of the SellerTransferred Employees as described in Section 6.03(d);
(hi) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other paymentspayments arising on or before the Closing;
(ij) any Environmental Claims, Claims or Liabilities under Environmental LawsLaws related to the ownership of the Purchased Assets or the operation of the Business with respect to the Purchased Assets, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing or otherwise to Date (the extent arising out of any actions or omissions of the Seller“Excluded Environmental Liabilities”);
(jk) any trade accounts payable of the Seller (i) to the extent not accounted for specifically listed on Section 2.03(a) of the Interim Balance Sheet, Disclosure Schedules; (ii) which constitute intercompany payables owing to Affiliates of the Seller, ; (iii) which constitute debt, loans or credit facilities to financial institutions, ; or (iv) which did not arise in the ordinary course Ordinary Course of businessBusiness;
(kl) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, ; (ii) did not arise in the ordinary course Ordinary Course of business, Business; or (iii) are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 9.03 as the Seller Indemnitees;
(n) any Liabilities under the Excluded Contracts or Contracts;
(o) any Liabilities under any other Contracts, including Intellectual Property Agreements, (i) which are not validly and effectively assigned to the Buyer pursuant to this Agreement; or (ii) except as set forth which do not conform to the representations and warranties with respect thereto contained in Section 2.03(b), this Agreement; or (iii) to the extent such Liabilities arise out of or relate to a breach by the Seller or failure to perform by such Seller of such Contracts prior to Closing;
(op) any Liabilities associated with debt, preferred securities, loans or credit facilities of the Seller and/or the Business owing to financial institutions or any other Person; andinstitutions;
(pq) any Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates to comply with any Law or Governmental Order;
(r) any claims or Liabilities related to the ownership of the Purchased Assets or the operation of the Business with respect to the Purchased Assets, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing Date that are not expressly Assumed Liabilities;
(s) any Liabilities not primarily related to the Business;
(t) any Liabilities related to the matters disclosed in Section 4.19(c) of the Seller Disclosure Schedules;
(u) any amount due and payable by Seller to ▇▇▇▇▇ ▇▇▇▇▇ LLP; and
(v) any amount due and payable by Seller to Deloitte.
Appears in 1 contract
Excluded Liabilities. The Notwithstanding the provisions of Section 2.3 or any other provision in this Agreement to the contrary, Buyer shall not assume and shall not be responsible to pay, perform perform, or discharge any Liabilities of the Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”). The Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include, but not be limited to, the following:
(a) any Liabilities of the Seller arising or incurred in connection with the negotiation, preparation, investigation investigation, and performance of this Agreement, the other Transaction Documents Ancillary Documents, and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers advisors, brokers, and others, except for indemnification of same pursuant to Section 8.3 as Seller Indemnitees;
(b) any Liability for (i) Taxes of the Seller (or any stockholder or Affiliate of the Seller) including any Taxes or relating to the Business, the Purchased Assets Assets, or the Assumed Liabilities for any Pre-Closing Tax PeriodPeriod or that relate to any transaction or event occurring on or prior to the Closing Date, (ii) Taxes of the Seller that arise out of the consummation of the transactions contemplated hereby or that are the responsibility of the Seller pursuant to Section 6.14, or (iii) any other Taxes of Seller (or any stockholder or Affiliate of the Seller) of any kind or description (including any Liability for other than Taxes of the Seller (or any stockholder or Affiliate of the Seller) that becomes a Liability of the allocated to Buyer under Section 6.12) for any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law)taxable period;
(c) any Liabilities relating to or arising out of the Excluded Assets;
(d) except for indemnification of same pursuant to Section 8.3 as Seller Indemnitees, any Liabilities in respect of any pending or threatened Action arising out of, relating to to, or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date;
(e) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement agreement, or guaranty made by the Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label label, or warn of hazards hazards, or other related product defects of any products at any time manufactured or sold or any service performed by the Seller;
(f) any recall, design defect or similar claims of any products manufactured or sold or any service performed by the Seller;
(g) any Liabilities of the Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of Seller;
(g) any and all Liabilities in respect of any service provider of Seller who is not a Transferred Business Employee or Business Independent Contractor, whether accruing before, on or after the SellerClosing Date;
(h) subject to Section 6.24 with regard to the ▇▇▇▇▇ Debt Obligation, any Liabilities of the Seller for any present or former employees, officers, directors, retirees, independent contractors contractors, or consultants of Seller which relate to events occurring prior to the SellerClosing Date, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination termination, or other payments;
(i) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating related to factsoperation of the Business or the use or condition of the Leased Real Property or assets, circumstances or conditions existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of the SellerDate;
(j) any trade accounts payable of the Seller (i) to the extent not accounted for on the Interim Balance Sheet, (ii) which constitute intercompany payables owing to Affiliates of the Seller, (iii) which constitute debt, loans or credit facilities to financial institutions, or (iv) which did not arise in the ordinary course of business;
(k) any Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders orders, or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to the Seller on or before the Closing, (ii) did not arise in the ordinary course of business, or (iii) both are not listed on Schedule 2.9 and are not validly and effectively assigned to the Buyer pursuant to this Agreement;
(l) any Liabilities related to or arising out of any dispute or claim by or among the Seller, any stockholder of the Seller, or any officer or director of the Seller, including but not limited to any dispute or claim alleging or involving a breach of fiduciary duty of any Person;
(m) any Liabilities to indemnify, reimburse reimburse, or advance amounts to any present or former officer, director, employee employee, or agent of the Seller (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.03 8.3 as the Seller Indemnitees;
(nm) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are both not listed on Schedule 2.9 and not validly and effectively assigned to the Buyer pursuant to this Agreement; , or (ii) except as set forth in Section 2.03(b), to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to Closing, except for indemnification of same pursuant to Section 8.3 as Seller Indemnitees;
(on) any Liabilities associated with debt, preferred securitiesloans, loans or credit facilities of the Seller and/or the Business owing to financial institutions or any other Person; andinstitutions;
(po) any Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates to comply with any Law or Governmental Order;
(p) any Liabilities of Parent except for indemnification of same pursuant to Section 8.3 as Seller Indemnitees; and
(q) the Warranty Obligations.
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