Liabilities Not Assumed. Notwithstanding anything to the contrary in this Agreement, Buyer shall not assume or in any way become liable for any of Seller’s debts, liabilities or obligations of any nature whatsoever (other than the Assumed Liabilities), whether accrued, absolute, contingent or otherwise, whether known or unknown, whether due or to become due, whether related to the Business or the Purchased Assets and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including clauses (i) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”): (i) any of Seller’s liabilities or obligations under this Agreement, the Schedules attached hereto and any other agreements entered into by Seller in connection with the transactions contemplated by this Agreement; (ii) any of Seller’s liabilities or obligations for expenses, fees or Taxes 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, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof; (iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes; (iv) any liability or obligation under or with respect to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liability; (v) any liability or obligation with respect to any products or services that were marketed or sold prior to the Closing, including product liability, infringement claims and any related claims and litigation arising prior to, on or after the Closing Date; (vi) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any of Seller’s liabilities or obligations of any kind to any Business Employees or former employee of Seller, including any liabilities or obligations arising prior to the Closing with respect to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule); (vii) any liability or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Date; (viii) any of Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Laws; (ix) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct of the Business or any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents or advisors on or prior to the Closing Date; (x) any of Seller’s liabilities or obligations for Indebtedness; (xi) any liabilities or obligations in respect of any of the Excluded Assets (including under any contracts, leases, commitments or understandings related thereto); (xii) any of Seller’s liabilities or obligations which Buyer may become liable for as a result of or in connection with the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liability; (xiii) any of Seller’s liabilities or obligations with respect to amounts disputed by Seller and not paid to the landlords of the properties listed on the attached Leased Real Property Schedule; and (xiv) any other liabilities or obligations of Seller not expressly assumed by Buyer pursuant to Section 2.2(a) above.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Casual Male Retail Group Inc)
Liabilities Not Assumed. Notwithstanding anything to the contrary Except as set forth in this AgreementSection 2.6, Buyer shall not assume or in any way become liable for any of Seller’s debts, assumes no other liabilities or obligations of any nature whatsoever Seller or its Subsidiaries (other than the liabilities of Seller or its Subsidiaries which are not assumed by Buyer pursuant to this Agreement are hereinafter referred to as the "Non-Assumed Liabilities"), whether accruedall of which shall be retained by Seller and its Subsidiaries. Without in any way limiting the generality of the foregoing, absoluteBuyer does not assume the following:
(a) Any liability or operating costs of Seller or its Subsidiaries arising from, contingent or otherwisein connection with, whether known or unknown, whether due or to become due, whether related to the conduct of the Business or the Purchased Assets and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including clauses (i) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”):
(i) any of Seller’s liabilities or obligations under this Agreement, the Schedules attached hereto and any other agreements entered into by Seller in connection with the transactions contemplated by this Agreement;
(ii) any of Seller’s liabilities or obligations for expenses, fees or Taxes incident to or arising out ownership 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, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(iv) any liability or obligation under or with respect to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liability;
(v) any liability or obligation with respect to any products or services that were marketed or sold Acquired Assets prior to the Closing, including product liability, infringement claims and any related claims and litigation arising prior toClosing Date (whether or not such liability accrues before, on or after the Closing Date;
(vi) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any of Seller’s liabilities or obligations of any kind to any Business Employees or former employee of Seller, including any liabilities or obligations arising prior to the Closing with respect to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule);
(viib) any liability or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Date;
(viii) any of Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Laws;
(ix) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct of the Business or any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents or advisors on or prior to the Closing Date;
(x) any of Seller’s liabilities or obligations for Indebtedness;
(xi) any liabilities or obligations in respect of any of the Excluded Assets (including under any contracts, leases, commitments or understandings related thereto);
(xii) any of Seller’s liabilities or obligations which Buyer may become liable for as a result of or in connection with the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liability;
(xiii) any of Seller’s liabilities or obligations with respect to amounts disputed by Seller and not paid to the landlords of the properties listed on the attached Leased Real Property Schedule; and
(xiv) any other Any liabilities or obligations of Seller not expressly assumed or its Subsidiaries to their employees (or any of Seller's or its Subsidiaries' former employees) or costs associated with such employees, including, without limitation, (i) all obligations to make payments to employees or former employees on or after Closing with respect to medical expenses incurred or accrued on or before Closing, or from accidents or events occurring on or prior to Closing, and (ii) liabilities and costs associated with Seller's retirement plans, Benefit Plans, severance plans, employee discrimination claims, worker's compensation claims, claims to holiday or sick leave, and any medical benefit or other similar claim;
(c) Any obligations of Seller or its Subsidiaries for indebtedness for borrowed money, including without limitation, any indebtedness or obligations owed by Buyer pursuant Seller to Section 2.2(aCERBCO, Inc.;
(d) aboveAny Taxes of Seller or its Subsidiaries;
(e) Any liability or obligation arising under any Contracts of Seller or its Subsidiaries other than Assumed Liabilities;
(f) Any liabilities based on or arising from (i) the presence, use, disposal or treatment of any Hazardous Materials on or about any of Seller's or its Subsidiaries' Facilities, (ii) any release or discharge of Hazardous Materials, (iii) the failure by Seller or any of its Subsidiaries to obtain any license or permit required in connection with any Hazardous Materials or in connection with or under any Environmental Laws, or (iv) otherwise arising out of any non-compliance with or violation of any Environmental Laws or health or safety Laws; or
(g) Any warranty, product liability or similar claim for injury to person or property, regardless of when made or asserted, which arises out of or is based upon any action or inaction or express or implied representation, warranty, agreement or guarantee made by Seller or any of its Subsidiaries, or alleged to have been made by Seller or any of its Subsidiaries, or which is imposed or asserted to be imposed by operation of law, in connection with any service performed or product sold, manufactured or leased by or on behalf of Seller or any of its Subsidiaries.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Insituform East Inc), Asset Purchase Agreement (Cerbco Inc)
Liabilities Not Assumed. Notwithstanding anything to Except for the contrary in this AgreementAssumed Obligations, Seller agrees that Buyer shall will not assume or in perform, and Seller shall remain responsible for and shall indemnify, hold harmless and defend Buyer from and against, any way become liable for any and all liabilities and obligations of Seller’s debts, liabilities or obligations of any nature whatsoever (other than the Assumed Liabilities), whether accrued, absolute, contingent or otherwise, whether known or unknown, whether due or to become due, whether related to the Business or the Purchased Assets and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including clauses (i) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”):
(i) any of Seller’s such liabilities or obligations arise or are asserted, including, without limitation, any obligations or liabilities of Seller with respect to the following:
(a) Any compensation or benefits payable to employees of Seller, including, but not limited to, any liabilities arising under this Agreementany employee pension or profit sharing plan or other employee benefit plan, the Schedules attached hereto and any severance pay or other agreements entered into by termination costs due to employees of Seller in connection with as a result of the transactions contemplated by this Agreement;
(ii) Agreement or any of Seller’s liabilities or 's obligations to its employees for expenses, fees or Taxes incident to or arising out salaries and vacation and holiday pay accrued and unpaid as 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, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(iv) any liability or obligation under or with respect to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liability;
(v) any liability or obligation with respect to any products or services that were marketed or sold prior to the Closing, including product liability, infringement claims and any related claims and litigation arising prior to, on or after the Closing Date;
(vib) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any of Seller’s liabilities or obligations of any kind to any Business Employees or former employee of Seller, including any liabilities or obligations arising prior to the Closing with respect to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule);
(vii) any liability or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Date;
(viii) any of Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation of any All federal, state, local local, foreign or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by other taxes applicable to Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Laws;
(ix) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct of the Business or any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents or advisors on or for periods prior to the Closing Date;
(xc) Injuries to or the death of any person, or any employee of Seller’s liabilities , that has occurred or obligations for Indebtedness;
(xi) any liabilities or obligations in respect of any of the Excluded Assets (including under any contractsmay occur, leasesprior to Closing, commitments or understandings related thereto);
(xii) any of Seller’s liabilities or obligations which Buyer may become liable for as a result of or in connection with the failure Business or any other operations engaged in by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liabilitySeller, even if not discovered until after the Closing Date;
(xiiid) All liens, claims and encumbrances on any of the Purchased Assets and all obligations and liabilities secured thereby;
(e) All obligations of Seller for borrowed money, or incurred in connection with the purchase, lease or acquisition of any assets, and any obligations of a similar nature incurred by Seller’s ;
(f) Any accounts or notes payable or similar indebtedness incurred by Seller;
(g) Any claims, demands, actions, suits, legal proceedings, obligations or liabilities or obligations with respect to amounts disputed by Seller and not paid arising from Seller's operation of the Business prior to the landlords Closing, or arising from any other business or operations of Seller conducted prior to the properties listed on Closing, whether such claims, demands, actions, suits, legal proceedings, obligations or liabilities are presently pending or threatened or are threatened or asserted at any time after the attached Leased Real Property Scheduledate hereof and whether before or after the Closing; and
(xivh) Any liabilities arising out of the termination by Seller of any other liabilities of its employees in anticipation or obligations as a consequence of, or following, consummation of Seller not expressly assumed by Buyer pursuant to Section 2.2(a) abovethe transactions contemplated hereby.
Appears in 2 contracts
Sources: Asset Purchase Agreement (SCC Communications Corp), Asset Purchase Agreement (SCC Communications Corp)
Liabilities Not Assumed. Notwithstanding anything to the contrary in this Agreement, The Buyer shall not assume or in assume, and shall not be deemed to have assumed, any way become liable for any of Seller’s debts, liabilities or obligations of the Seller of any kind or nature whatsoever whatsoever, except as expressly provided in the Assumption Agreement (other than as defined hereafter) and in Section 2.03(a) above. Without limiting the Assumed Liabilities)generality of the foregoing, whether accrued, absolute, contingent it is hereby agreed that the Buyer is not assuming any liability and shall not have any obligation for or otherwise, whether known or unknown, whether due or to become due, whether related to the Business or the Purchased Assets and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including clauses (i) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”):with respect to:
(i) any of Seller’s liabilities or obligations of the Seller or the Group that arise under this Agreementthe terms of a contract, the Schedules attached hereto and any agreement, license, lease, sales order, purchase order, or other agreements entered into by Seller in connection with the transactions commitment that shall not be assigned, except as contemplated by Section 1.02 of this Agreement;
(ii) any of Seller’s liabilities or obligations for expenses, fees or Taxes incident to or arising out of the negotiation, preparation, approval Seller or authorization the Group that arise under the terms of this the ADSL Agreement or the consummation (or preparation for the consummation) Excluded Agreements set forth in item 4 of the transactions contemplated hereby (including all attorneys’ and accountants’ fees, brokerage fees and transfer TaxesSchedule 1.01(e), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iii) any liabilities or obligations of the Seller or the Group under any Plan (as defined in Section 3.01(s)), including (x) any obligation to adopt or to sponsor such Plan of the Seller except as set forth the Buyer may, in its sole discretion, elect to adopt or to sponsor and (y) any deferred compensation benefits accrued as liabilities on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation books of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico TaxesSeller;
(iv) any liability or obligation under or with respect to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by of the Seller or its ERISA Affiliatesthe Group arising out of any action, suit or with proceeding based upon an event occurring or a claim arising (A) prior to or as of the Closing Date or (B) after the Closing Date in the case of claims in respect to which of products or services sold or provided by the Seller or any such ERISA Affiliate has any liability;the Group or the conduct of the Group Activity prior to the Closing Date and attributable to acts performed or omitted by the Seller or the Group prior to the Closing Date; and
(v) any liability and all liabilities or obligation with respect obligations for Taxes incurred by or imposed upon the Seller, or any predecessor company thereof, whether relating to any products or services that were marketed or sold prior to the Closingperiods, before, including product liability, infringement claims and any related claims and litigation arising prior to, on or after the Closing Date;
(vi) except as set forth on the Accrued Liabilities , and Assumed Payables Schedule, any of Seller’s liabilities taxes arising from or obligations of any kind to any Business Employees or former employee of Seller, including any liabilities or obligations arising prior to the Closing with respect to the exempt Assets or non-exempt status the operations of any Business Employee the Group Activity that are incurred or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule);
(vii) any liability or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on any period prior to (or before up to and including) the Closing Date;
(viii) , including, without limitation, any of Seller’s liabilities Taxes incurred by or obligations (A) arising by reason of any violation imposed upon the Seller or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Laws;
(ix) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim the Group and arising out of or in connection with Seller’s conduct the consummation of the Business or any other conduct of Sellertransactions contemplated by this Agreement, Seller’s officers, directors, employees, consultants, agents or advisors on or prior to the Closing Date;
(x) any of Seller’s liabilities or obligations for Indebtedness;
(xi) any liabilities or obligations in respect of any as well as sales and use Taxes arising out of the Excluded Assets (including under any contractstransactions contemplated by this Agreement, leaseswhether such Taxes are imposed upon the Seller or the Buyer; provided, commitments or understandings related thereto);
(xii) any of Seller’s liabilities or obligations which Buyer may become liable for as a result of or in connection with however, that sales and use Taxes resulting from the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liability;
(xiii) any of Seller’s liabilities or obligations with respect to amounts disputed by Seller purchase and not paid to the landlords sale of the properties listed on Assets hereunder shall be paid as provided in Section 4.06 below. (the attached Leased Real Property Schedule; and
liabilities described in the preceding clauses (xivi) any other liabilities or obligations of Seller not expressly assumed by Buyer pursuant to Section 2.2(athrough (v) abovebeing herein collectively called the "Excluded Liabilities").
Appears in 2 contracts
Sources: Asset Purchase Agreement (Pairgain Technologies Inc /Ca/), Asset Purchase Agreement (Globespan Inc/De)
Liabilities Not Assumed. Notwithstanding anything to the contrary Except as expressly set forth in this AgreementSection 2.4 above, Buyer neither Parent nor Purchaser shall not assume or become liable or obligated in any way become way, and Seller shall retain and remain solely liable for any of Seller’s and obligated to discharge and indemnify and hold Parent or Purchaser, as applicable, harmless for, all debts, expenses, accounts payable, contracts, agreements, commitments, obligations, claims, suits and other liabilities or obligations of Seller of any nature whatsoever (other than the Assumed Liabilities)whatsoever, whether accrued, absolute, contingent or otherwisenot related to the Business or the Assets, whether known or unknown, whether due accrued or to become duenot accrued, whether related to fixed or contingent, current or arising hereafter, including, without limitation, any of the Business or the Purchased Assets and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including clauses (i) through (xiv) below following (collectively referred to herein as the “"Excluded Liabilities”"):
(ia) any of Seller’s liabilities or obligations under this Agreement, the Schedules attached hereto and any other agreements entered into by Seller in connection with the transactions contemplated by this Agreement;
(ii) any of Seller’s liabilities or obligations for expenses, fees or Taxes incident to or Any Liability arising out of or as a result of any legal or equitable action or judicial or administrative proceeding initiated at any time to the negotiation, preparation, approval or authorization extent arising out of this Agreement or the consummation (or preparation for the consummation) of the transactions contemplated hereby (including all attorneys’ and accountants’ fees, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(iv) any liability or obligation under or with respect to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liability;
(v) any liability or obligation with respect to any products or services that were marketed or sold facts occurring prior to the Closing, including product liability, infringement claims and any related claims and litigation arising prior to, on or after the Closing Date;
(vib) except as set forth on Any liability of the Accrued Liabilities and Assumed Payables Schedule, any of Seller’s liabilities or obligations of any kind to any Business Employees or former employee of Seller, including any liabilities or obligations arising prior to the Closing Seller for unpaid Taxes (with respect to the exempt Business, the Assets, or non-exempt status Seller's employees or otherwise), any liability of the Seller for Taxes arising in connection with the consummation of the Acquisition (including any income Taxes) arising because the Seller is transferring the Assets or any liability of the Seller for the unpaid Taxes of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Person other than the Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule)a transferee or successor of Seller, by contract or otherwise;
(viic) Any liabilities related to or arising from any liability breach or obligation relating to workers’ compensation claims which were filed default by Seller or presented on its Affiliates, whether before or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Date;
(viii) any of Seller’s liabilities or obligations (A) arising by reason , of any violation Contract or alleged related to or arising from any tort, infringement or violation of any federal, state, local Laws or foreign law or any requirement of any governmental authority, (B) arising Decrees by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Laws;
(ix) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct of the Business or any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents in each case to the extent occurring or advisors arising from facts occurring on or prior to the Closing Date;
(xd) Any liability of Seller or any of Seller’s liabilities 's Affiliates incurred in connection with or obligations for Indebtednessunder this Agreement (including, without limitation, with respect to any of Seller's or its Affiliates' representations, warranties, agreements, covenants or indemnities hereunder) relating to the execution or performance of this Agreement and the transactions contemplated herein;
(xie) any liabilities or obligations in respect Any Liability of Seller under any of Seller's Employee Plans with respect to any obligation of Seller to contribute or to make payments to or provide benefits on behalf of Seller's employees; provided, however, Purchaser shall assume "tail" liability on Seller's health insurance policy related to the Excluded Assets (including under any contractsBusiness to the extent the same has been accrued, leasesand is shown, commitments or understandings related thereto)on the Business Financial Statements for the fiscal year ending December 31, 1999;
(xiif) Any fees or expenses incurred by Seller or any of Seller’s liabilities 's Affiliates or obligations which Buyer may become liable for as a result hereunder with respect to Seller's or any of its Affiliates' engagement of its counsel, or in connection with the failure by Buyer any investment banker, appraiser or Seller accounting firm engaged to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liabilityperform services hereunder;
(xiiig) any of Seller’s liabilities or obligations with respect to amounts disputed by Seller and not paid to the landlords of the properties listed on the attached Leased Real Property Schedule; and
(xiv) any other liabilities or outstanding obligations of Seller not expressly for borrowed money due and owing to banks or other lenders, other than obligations under the Assumed Contracts to the extent assumed by Buyer pursuant to Section 2.2(a2.4(a); or
(h) aboveany Liability of Seller not related to the Business, including the Liabilities set forth on SCHEDULE 2.5.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Tab Products Co), Asset Purchase Agreement (Docucon Incorporated)
Liabilities Not Assumed. Notwithstanding Except as set forth in Section 1.5, Buyer shall not assume and shall not be responsible to pay, perform or discharge any other obligations, liabilities, contracts or commitments of Seller of any kind or nature whatsoever (the "Excluded Liabilities"). Seller shall pay and satisfy when due all Excluded Liabilities where failure to pay or satisfy such Excluded Liabilities may impair Buyer's use of or benefit from the Acquired Assets or cause Buyer to be held liable for such Excluded Liabilities. Without limiting the generality of the foregoing and notwithstanding anything to the contrary in this Agreement, Buyer the Excluded Liabilities shall include, but not assume or in any way become liable for any of Seller’s debtsbe limited to, liabilities or obligations of any nature whatsoever (other than the Assumed Liabilities), whether accrued, absolute, contingent or otherwise, whether known or unknown, whether due or to become due, whether related to the Business or the Purchased Assets and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including clauses (i) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”):following:
(ia) any obligations or liabilities of Seller’s liabilities Seller arising or obligations under this Agreement, the Schedules attached hereto and any other agreements entered into by Seller incurred in connection with the negotiation, preparation, investigation and performance of this Agreement (except as otherwise provided pursuant to this Agreement or the Management Agreement (as defined in Section 6.1(h)) and, except as contemplated by the Operative Agreements (as defined in Section 3.2), the transactions contemplated hereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any product liability or similar claim for injury to person or property which arises out of or is based upon any express or implied representation, warranty, agreement or guarantee made by the Seller, or by reason of the improper performance or malfunctioning of a product or service, 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 defect in service performed by the Seller on or prior to the First Closing Date;
(c) any obligations or liabilities of the Seller arising under or in connection with any Employee Plan providing benefits to any present or former employee of the Seller;
(d) any obligations or liabilities of the Seller for any present or past employees, agents or independent contractors of the Seller, including, without limitation, any workers' compensation claims and employee severance claims; provided, however, that the Assumed Liabilities will include all residual payments for the period from the First Closing to the Second Closing due from Seller to agents solely for customer accounts being transferred to Buyer pursuant to this Agreement;
(iie) any obligations or liabilities with respect to the litigation, investigations and other matters set forth on Schedule 3.19;
(f) any obligations or liabilities for any Taxes (as defined in Section 3.16) of Seller’s liabilities Seller (other than allocated to the Buyer pursuant to Section 1.3 hereof) attributable to the Acquired Assets or obligations for expenses, fees the Business and relating to any period or Taxes incident portion thereof ending prior to the First Closing Date; and
(g) any other obligation or arising out liability of the negotiationSeller of any kind or nature, preparation, approval whether now in existence or authorization of hereafter arising (except as otherwise provided pursuant to this Agreement or the consummation (or preparation for the consummation) of the transactions contemplated hereby (including all attorneys’ and accountants’ fees, brokerage fees and transfer TaxesManagement Agreement), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iii) except as set forth on the Accrued Liabilities and not constituting Assumed Payables Schedule, any liability or obligation of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(iv) any liability or obligation under or with respect to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liability;
(v) any liability or obligation with respect to any products or services that were marketed or sold prior to the Closing, including product liability, infringement claims and any related claims and litigation arising prior to, on or after the Closing Date;
(vi) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any of Seller’s liabilities or obligations of any kind to any Business Employees or former employee of Seller, including any liabilities or obligations arising prior to the Closing with respect to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule);
(vii) any liability or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Date;
(viii) any of Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Laws;
(ix) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct of the Business or any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents or advisors on or prior to the Closing Date;
(x) any of Seller’s liabilities or obligations for Indebtedness;
(xi) any liabilities or obligations in respect of any of the Excluded Assets (including under any contracts, leases, commitments or understandings related thereto);
(xii) any of Seller’s liabilities or obligations which Buyer may become liable for as a result of or in connection with the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liability;
(xiii) any of Seller’s liabilities or obligations with respect to amounts disputed by Seller and not paid to the landlords of the properties listed on the attached Leased Real Property Schedule; and
(xiv) any other liabilities or obligations of Seller not expressly assumed by Buyer pursuant to Section 2.2(a) aboveLiabilities.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Mpower Holding Corp), Asset Purchase Agreement (Mpower Holding Corp)
Liabilities Not Assumed. Notwithstanding anything to the contrary Except as specifically set forth in this AgreementSection 1.4 hereof, Buyer shall will not assume or in any way become and will not be liable for any of Seller’s debts, liabilities or obligations of any nature whatsoever (other than the Assumed Liabilities)Seller, whether accruedknown, unknown, contingent, absolute, contingent determined, indeterminable or otherwiseotherwise on the Closing Date, whether known incurred or unknown, whether due or to become due, whether related to the Business or the Purchased Assets and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including clauses (i) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”):
(i) any of Seller’s liabilities or obligations under this Agreement, the Schedules attached hereto and any other agreements entered into by Seller in connection with the transactions contemplated by this Agreement;
(ii) any of Seller’s liabilities or obligations for expenses, fees or Taxes 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, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(iv) any liability or obligation under or with respect to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liability;
(v) any liability or obligation with respect to any products or services that were marketed or sold prior to the Closing, including product liability, infringement claims and any related claims and litigation arising accruing prior to, on or after the Closing Date;
(vi) except as set forth on , and whether or not relating to or arising from the Accrued Liabilities Business. Specifically but without limiting the scope of or being limited by the preceding sentence, Buyer will not assume and Assumed Payables Schedule, will not be liable for any of Seller’s the following liabilities or obligations of any kind to any Business Employees or former employee of Seller, including any liabilities or obligations arising prior to the Closing with respect to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule);:
(viia) any liability or obligation relating for or with respect to workers’ compensation claims which were filed income or presented franchise Taxes, including without limitation income or franchise Taxes incurred on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Datesale of Assets contemplated hereby;
(viiib) any of Seller’s liabilities liability or obligations (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach obligation incurred by Seller in connection with the negotiation and consummation of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (Cthis Agreement as set forth in Section 13.7(a) arising under any Environmental Lawshereof;
(ixc) any liability or obligation under Seller's bank line of Seller’s liabilities or obligations relating to any legal actioncredit evidenced by that certain Promissory Note dated June 14, proceeding or claim arising out of or in connection with Seller’s conduct of the Business or any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents or advisors on or prior 1997 to the Closing Dateorder of Inwood National Bank in the stated principal amount of Seven Hundred Fifty-Thousand Dollars ($750,000) (the "BANK LINE"), including without limitation accrued interest thereon;
(xd) any of Seller’s liabilities liability or obligations obligation under that certain automobile lease with ▇▇▇▇▇▇ Village Cadillac Company Inc. dated January 12, 1998 for Indebtedness;
a 1998 Cadillac Seville (xi) any liabilities or obligations in respect of any of the Excluded Assets (including under any contracts, leases, commitments or understandings related thereto"AUTOMOBILE LEASE");
(xiie) any of Seller’s liabilities liability or obligations which Buyer may become liable for as a result of or in connection obligation under that certain postage meter lease with Neopost dated September 23, 1996 (the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liability"POSTAGE METER LEASE");
(xiiif) any liability or obligation of Seller’s liabilities or obligations Seller with respect to amounts disputed the claim by PSA Inc. for commissions as stated in its letter to Seller and not paid dated March 9, 1998;
(g) any liability or obligation of Seller under any sales representative agreement or sales distribution agreement scheduled as a Commitment, except commissions or discounts accrued thereunder as of Closing or with respect to purchase orders assumed hereunder or with respect to post-termination commissions or discounts that may accrue under the landlords of the properties listed terms thereof on the attached Leased Real Property Schedule; andbasis that such agreements terminate effective March 31, 1998;
(xivh) any other liabilities liability or obligations obligation for profit sharing;
(i) sponsorship of Seller not expressly assumed by Buyer pursuant to Section 2.2(aSeller's 401(k) aboveplan or any liability or obligation in connection therewith.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Aetrium Inc), Asset Purchase Agreement (Aetrium Inc)
Liabilities Not Assumed. Notwithstanding anything to the contrary in this AgreementAgreement (and other than the Assumed Liabilities), Buyer shall not assume or in any way become liable for any of Seller’s debts, liabilities Indebtednesses or obligations Losses of any nature whatsoever (other than relating to Seller, Seller’s Table Games Business, the Assumed Liabilities)Purchased Assets, or the Licensed Patents, whether accrued, absolute, contingent or otherwise, whether known or unknown, whether due or to become due, whether related to the Business or Seller, Seller’s Table Games Business, the Purchased Assets or the Licensed Patents, and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including without limitation, clauses (i) through (xivxii) below (collectively referred to herein as the “Excluded Liabilities”):
(i) any of Seller’s liabilities or obligations under this Agreement, any Related Agreement, the Schedules attached hereto or thereto, and any other agreements entered into by Seller in connection with the transactions contemplated by this Agreement;
(ii) except as otherwise expressly set forth in Section 7.7, any of Seller’s liabilities or obligations for Taxes, whether or not arising out of this Agreement, the Related Agreements, or the schedules attached hereto or thereto, or the consummation of the Transaction, for any period in the past, present or future;
(iii) any of Seller’s liabilities or obligations for expenses, or fees or Taxes 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 Transaction (including all attorneys’ , accountants, investment bankers and accountants’ brokerage fees, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(iv) any liability or obligation under or with respect to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy policy, arrangement or arrangement other employee-related expenses, presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liability;
(v) any liability or obligation under, relating to, or with respect to any certificate prepared or provided by any officer of Seller in connection with the Transaction;
(vi) any liability or obligation with respect to any products or services that were marketed or sold prior to the ClosingEffective Date, including product liability, warranty claims, infringement claims and any related claims and litigation arising prior to, on or after the Closing Date;
Effective Date (viexcept (A) except any liabilities related to Assumed Contracts only as and to the extent as set forth on the Accrued Liabilities and Assumed Payables Schedule, any of Seller’s liabilities or obligations of any kind to any Business Employees or former employee of Seller, including defined in Section 2.2(a)(i); and (B) any liabilities caused solely by acts or obligations arising prior to omissions of Buyer after the Closing with respect to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule)Effective Date;
(vii) any liability or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Date;
(viii) any of Seller’s liabilities or obligations relating to the Seller, the Purchased Assets, the Licensed Patents, or Seller’s Table Games Business (A) arising by reason of any violation or alleged violation of under any federal, state, local or foreign law Law (including under any Environmental and Safety Requirements) or any requirement of any governmental authority, or (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, irrespective of whether such liability or (Cobligation attaches to Buyer or Seller in the first instance, except to the extent: i) arising under any Environmental Lawsthat the Buyer breaches an Assumed Contract; and ii) all the facts, events or circumstances underlying such liability or obligation are created or first solely caused by Buyer’s operation of Seller’s Table Games Business after the Effective Date;
(ixviii) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct of the Seller’s Table Games Business or any other conduct conduct, acts or omissions of Seller, Seller’s officers, directors, employees, consultants, distributors, agents or advisors on or prior to the Closing Effective Date;
(xix) any of Seller’s liabilities or obligations for IndebtednessIndebtedness (other than as provided and limited in the Assumed Liabilities);
(xix) any liabilities or obligations in respect of any of the Excluded Assets (including under any contracts, leases, commitments or understandings related thereto);
(xiixi) any of Seller’s liabilities or obligations which Buyer may become liable for as a result of or in connection with the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liability;
(xiiixii) any of Seller’s liabilities royalty, distribution fee, license fee or other obligations with respect to: x) TCS; or y) ▇▇▇▇▇▇’▇ relating to amounts disputed by or arising under the WSOP brand or any agreements between Seller and not paid to the landlords of the properties listed on the attached Leased Real Property Schedule; and▇▇▇▇▇▇’▇;
(xivxiii) any other liabilities or obligations of Seller not expressly assumed by Buyer pursuant to Section 2.2(a) above.
Appears in 2 contracts
Sources: Purchase Agreement (Progressive Gaming International Corp), Purchase Agreement (Shuffle Master Inc)
Liabilities Not Assumed. Notwithstanding anything to the contrary contained in this Agreement, Buyer except for the Assumed Liabilities, Tandy shall not assume or in any way manner become liable or responsible for any liability, obligation, commitment or expense of Seller’s debtsany kind, liabilities known or unknown, now existing or hereafter arising, of or related to ▇▇▇▇▇▇▇▇, or the Acquired Assets and ▇▇▇▇▇▇▇▇ shall retain responsibility for all of its liabilities, payments or obligations other than the Assumed Liabilities (the “Retained Liabilities”). In furtherance and not in limitation of the foregoing, neither Tandy nor any nature of its Affiliates shall assume, and shall not be deemed to have assumed, any known or unknown debt, claim, obligation or other liability of ▇▇▇▇▇▇▇▇ or any of its Affiliates whatsoever (other than the Assumed Liabilities), whether accruedincluding, absolute, contingent or otherwise, whether known or unknown, whether due or but not limited to become due, whether related to the Business or the Purchased Assets and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including clauses (i) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”):
(i) any environmental costs or liabilities for any act, omission, condition, event or circumstance, including the handling, storage, transportation or disposal of Seller’s liabilities hazardous materials or obligations under this Agreementcontaminants, the Schedules attached hereto and any other agreements entered into by Seller in connection with the transactions contemplated by this Agreement;
(ii) any liabilities in respect of Seller’s liabilities or obligations for expensestaxes of any nature whatsoever, fees or Taxes 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, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Scheduleany brokers’ or finders’ fees arising by reason of this Agreement, any liability or obligation of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(iv) any liability indebtedness, (v) any obligations or obligation under or with respect to any Seller Employee Benefit Plan liabilities for employees, including severance, pension, profit sharing or any other employee benefit planplans, programcompensation, policy retiree or arrangement presently medical benefits and obligations, (vi) any liabilities or formerly maintained or contributed obligations related to by Seller or its ERISA Affiliatesthe Retained Assets, or with respect (vii) warranties, rebates, allowances, deductions and/or price discrepancies relating in any manner to which Seller or any such ERISA Affiliate has any liability;
(v) any liability or obligation with respect to any products or services that were marketed or sold by ▇▇▇▇▇▇▇▇ prior to the Closing, including product liability, infringement claims and any related claims and litigation arising prior to, on or after the Closing Date;
(vi) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any of Seller’s liabilities or obligations of any kind to any Business Employees or former employee of Seller, including any liabilities or obligations arising prior to the Closing with respect to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule);
(vii) any liability or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Date;
(viii) any of Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Laws;
(ix) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct of the Business or any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents or advisors on or prior to the Closing Date;
(x) any of Seller’s liabilities or obligations for Indebtedness;
(xi) any liabilities or obligations in respect of any of the Excluded Assets (including under any contracts, leases, commitments or understandings related thereto);
(xii) any of Seller’s liabilities or obligations which Buyer may become liable for as a result of or in connection with the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liability;
(xiii) any of Seller’s liabilities or obligations with respect to amounts disputed by Seller and not paid to the landlords of the properties listed on the attached Leased Real Property Schedule; and
(xiv) any other liabilities or obligations of Seller not expressly assumed by Buyer pursuant to Section 2.2(a) above.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Phoenix Footwear Group Inc), Asset Purchase Agreement (Phoenix Footwear Group Inc)
Liabilities Not Assumed. Notwithstanding anything to the contrary Except as expressly set forth in this AgreementSection 2.4 above, Buyer Purchaser shall not assume or become liable or obligated in any way become for, and Sellers shall retain and remain solely liable for any of Seller’s and obligated to discharge and indemnify and hold harmless Purchaser for, all debts, liabilities or obligations expenses, accounts payable, contracts, agreements, commitments, obligations, claims, suits and other Liabilities of Sellers of any nature whatsoever (other than the Assumed Liabilities)whatsoever, whether accrued, absolute, contingent or otherwisenot related to the Business or the Assets, whether known or unknown, whether due accrued or to become duenot accrued, whether related to fixed or contingent, current or arising hereafter, including, without limitation, any of the Business or the Purchased Assets and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including clauses (i) through (xiv) below following (collectively referred to herein as the “Excluded Liabilities”):
(ia) any of Seller’s liabilities or obligations under this Agreement, the Schedules attached hereto and any other agreements entered into by Seller in connection with the transactions contemplated by this Agreement;
(ii) any of Seller’s liabilities or obligations for expenses, fees or Taxes incident to or Any Liability arising out of or as a result of any legal or equitable action or judicial or administrative proceeding initiated at any time to the negotiation, preparation, approval or authorization extent arising out of this Agreement or the consummation (or preparation for the consummation) of the transactions contemplated hereby (including all attorneys’ and accountants’ fees, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(iv) any liability or obligation under or with respect to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liability;
(v) any liability or obligation with respect to any products or services that were marketed or sold facts occurring prior to the Closing, including product liability, infringement claims and any related claims and litigation arising prior to, on or after the Closing Date;
(vib) except as set forth on Any Liability of the Accrued Liabilities and Assumed Payables Schedule, any of Seller’s liabilities or obligations of any kind to any Business Employees or former employee of Seller, including any liabilities or obligations arising prior to the Closing Sellers for unpaid Taxes (with respect to the exempt Business, the Assets, or non-exempt status employees of the Company or otherwise), any Liability of the Sellers for Taxes arising in connection with the consummation of the Acquisition (including any income Taxes) arising because the Sellers are transferring the Assets or any liability of the Sellers for the unpaid Taxes of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to BuyerPerson other than the Sellers, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule)a transferee or successor of Sellers, by contract or otherwise;
(viic) Any Liabilities related to or arising from any liability breach or obligation relating to workers’ compensation claims which were filed default by Sellers or presented on the Affiliates of the Company, whether before or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Date;
(viii) any of Seller’s liabilities or obligations (A) arising by reason , of any violation Contract or alleged related to or arising from any tort, infringement or violation of any federalLaws or Decrees by Sellers, state, local in each case to the extent occurring or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Laws;
(ix) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct of the Business or any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents or advisors from facts occurring on or prior to the Closing Date;
(xd) Any Liability of Sellers or any of Seller’s liabilities the Affiliates of the Company incurred in connection with or obligations for Indebtednessunder this Agreement (including, without limitation, with respect to any of Sellers or the Affiliates’ representations, warranties, agreements, covenants or indemnities hereunder) relating to the execution or performance of this Agreement and the transactions contemplated herein;
(xie) Any Liability of Sellers under any liabilities of Employee Plans of the Company with respect to any obligation of Sellers to contribute or obligations in to make payments to or provide benefits on behalf of employees of the Company;
(f) Any fees, expenses or other Liabilities incurred by the Company or any of Affiliates of the Company or hereunder with respect of to Sellers or any of the Excluded Assets Affiliates’ engagement of their counsel, or any investment banker, broker, merger and acquisition advisory service, appraiser or accounting firm engaged to perform services hereunder;
(including g) any outstanding Liability or obligations of Sellers for borrowed money due and owing to banks or other lenders, other than obligations under any contracts, leases, commitments or understandings related theretothe Assumed Contracts to the extent assumed pursuant to Section 2.4(a);
(xiih) any Liability of Seller’s liabilities or obligations which Buyer may become liable Sellers arising under any Environmental Law for as a result of or in connection with periods on and prior to the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liabilityClosing Date;
(xiiii) any Liability of Seller’s liabilities Sellers for the infringement of Third Party Intellectual Property on or obligations with respect to amounts disputed by Seller and not paid prior to the landlords of the properties listed on the attached Leased Real Property ScheduleClosing Date; andor
(xivj) any other liabilities or obligations Liability of Seller Sellers not expressly assumed by Buyer pursuant related to Section 2.2(a) abovethe Business.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Ocz Technology Group Inc), Asset Purchase Agreement (Ocz Technology Group Inc)
Liabilities Not Assumed. Notwithstanding anything to the contrary Except as expressly set forth in this Agreement, Buyer shall not assume or perform any Liabilities not covered in any way become liable for §2.3 hereof nor any of Seller’s debts, liabilities or obligations of any nature whatsoever the following Liabilities (other than the Assumed Liabilities), whether accrued, absolute, contingent or otherwise, whether known or unknown, whether due or to become due, whether related to the Business or the Purchased Assets and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including clauses (i) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”):
(ia) any of Seller’s liabilities or obligations under this Agreement, the Schedules attached hereto and any other agreements entered into by Seller in connection with the transactions contemplated by this Agreement;
(ii) any of Seller’s liabilities or obligations for expenses, fees or Taxes 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, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation Liability of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(iv) any liability or obligation under or with respect to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liability;
(v) any liability or obligation with respect to any products or services that were marketed or sold prior does not relate primarily to the Closing, including product liability, infringement claims and any related claims and litigation arising prior to, on or after the Closing Date;
(vi) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any of Seller’s liabilities or obligations of any kind to any Business Employees or former employee of Seller, including any liabilities or obligations arising prior to the Closing with respect to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule);
(vii) any liability or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Date;
(viii) any of Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Laws;
(ix) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct of the Business or the Acquired Assets or that has not been incurred in the Ordinary Course of Business;
(b) any Liability owing from Seller or the Business to any Affiliate of Seller other conduct than any Liability incurred in the Ordinary Course of SellerBusiness to ▇▇▇▇▇▇ Performance Products, Seller’s officersInc.;
(c) any Liability of Seller for Income Taxes whether or not relating to the Business and whether or not incurred prior to the Closing;
(d) except as provided in §11.12, directors, employees, consultants, agents any Liability for non-Income Taxes relating to the Business for periods or advisors portions thereof ending prior to the Closing Date and not reflected on the Final Closing Balance Sheet;
(e) any Liability arising out of or related to any Action against Seller or any Action which adversely affects the Acquired Assets and which shall have been asserted on or prior to the Closing Date;
(xf) any of Liability (including any Liability for Warranty Claims) that relates to Products manufactured or sold on or prior to the Closing Date by Seller’s liabilities or obligations for Indebtedness;
(xig) any liabilities Debt of Seller or obligations in respect of any of the Excluded Assets (including under any contractsBusiness, leases, commitments or understandings related theretoexcept as set forth on Schedule 2.4(g);
(xiih) any obligation of Seller’s liabilities Seller to indemnify any Person by reason of the fact that such Person was a director, officer, employee or obligations which Buyer may become liable for agent of Seller or was serving at the request of Seller as a result partner, trustee, director, officer, employee or agent of another entity (whether such indemnification is for judgments, damages, penalties, fines, costs, amounts paid in settlement, losses, expenses or otherwise, and whether such indemnification is pursuant to any statute, charter document, bylaw, agreement or otherwise);
(i) any Liability of Seller for costs and expenses incurred in connection with this Agreement, the making or performance of this Agreement and the transactions contemplated hereby;
(j) any Liability of Seller under this Agreement;
(k) except with respect to Liabilities assumed pursuant to §2.3(b) related to Transferred Employees or as provided in §6.9, any Liability to or in respect of, or arising out of or in connection with with, the failure employment by Buyer Seller or cessation of employment by Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” employees or “successor-in-interest” theories former employees of liabilitySeller on or prior to the Closing Date, including without limitation (i) any employment agreement, whether or not written, between Seller and any person, (ii) any Liability under any Employee Plan, other than a Liability with respect to an Acquired Employee Plan, (iii) any severance obligation of Seller, (iv) any claim of an unfair labor practice or grievance or any claim under any unemployment compensation, employment standards, pay equity or worker’s compensation law or regulation or under any federal, state, provincial or foreign employment discrimination law or regulation, which shall have been asserted on or prior to the Closing Date or is based on acts or omissions which occurred on or prior to the Closing Date, whether or not the affected employees are hired by Buyer, (v) any Liability relating to payroll, vacation or sick pay for any current or former employee, director, officer, consultant or independent contractor of Seller other than with respect to Transferred Employees, and (vi) with respect to any actual or alleged agreements or promises to current or former employees, directors, officers, consultants or independent contractors regarding stock options, equity or equity based compensation plans, programs or arrangements maintained by Seller;
(xiiil) any Liability of Seller’s liabilities or obligations with respect to amounts disputed by Seller and for accounts payable not paid to included in the landlords calculation of the properties listed on the attached Leased Real Property ScheduleClosing Working Capital; and
(xivm) any other liabilities or obligations of Seller not expressly assumed by Buyer pursuant to Section 2.2(a) aboveall Liabilities for Pre-Closing Environmental Matters.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Stanadyne Corp), Asset Purchase Agreement (Gentek Inc)
Liabilities Not Assumed. Notwithstanding anything any provision hereof to the contrary in this Agreementcontrary, the Buyer shall not assume assume, satisfy or in any way become liable for perform any of Seller’s debtsthe following Liabilities (the "Excluded Liabilities"):
(a) any Liability to the extent such Liability is in respect of, liabilities in connection with, or obligations otherwise arising from the operation or use of the Excluded Assets or any nature whatsoever other assets of the Sellers that are not Acquired Assets;
(b) any Liability including, without limitation, any Environmental Liability, to the extent such Liability is in respect of, in connection with, or arising from the Seller Easements;
(c) any Liabilities, including, without limitation, any Environmental Liabilities, to the extent relating to the off-Site disposal, storage, transportation, discharge, Release, recycling, or the arrangement for such activities of Hazardous Substances that were generated at the Site, at any Offsite Hazardous Substance Facility or at a location other than the Site (other than as a result of subsurface migration from the Assumed LiabilitiesSite), whether accruedwhere the initial disposal, absolutestorage, contingent transportation, discharge, Release or otherwiserecycling of such Hazardous Substances at such Offsite Hazardous Substance Facility occurred on or prior to the Initial Closing Date;
(d) any Liability of the Sellers to the extent arising from the execution, delivery or performance of this Agreement or a Related Agreement or the transactions contemplated hereby or thereby;
(e) any Liability in respect of Taxes to the extent attributable to the Acquired Assets accrued prior to the relevant Closing Date, except those Taxes expressly allocated to the Buyer pursuant to Section 8;
(f) subject to the provisions of Section 5.7, any Liability, whether known funded or unknownunfunded, whether due to the extent arising out of any Employee Benefit Plan established or maintained in whole or in part by any Seller (or its Affiliate) or to become duewhich any Seller (or its Affiliate) contributes or contributed, whether related or is or was required to contribute, at any time prior to the Business Initial Closing Date and any Liability for the termination or discontinuance of, or any Seller's or its Affiliates' withdrawal from, any such Employee Benefit Plan;
(g) any Liabilities of any Seller or any of its Affiliates for any compensation or any benefits whether in relation to any of the Purchased Assets and whether disclosed on the Schedules attached heretoPlant Employees, and regardless independent contractors or any other individuals who are later determined by a court or governmental agency to have been employees of when a Seller or by whom assertedits Affiliates, including clauses including, without limitation, (i) through wages, bonuses, incentive compensation, shift or work schedule adders, on-call pay, call-out pay, vacation pay, sick pay, paid time off, workers compensation, unemployment compensation, withholding obligations, unemployment taxes or similar obligations accruing or related to work performed prior to the Initial Closing Date; (xivii) below severance pay, other termination pay, post-retirement benefits and COBRA coverage, accruing or related to work performed prior to the Initial Closing Date; or (collectively referred iii) any other form of compensation or benefits accruing or related to herein work performed prior to the Initial Closing Date under the terms or provisions of any Employee Benefit Plan of any Seller or such Affiliate, or any other agreement, plan, practice, policy, instrument or document relating to any of the Acquired Assets Employees, other than the Liabilities expressly assumed by the Buyer under Section 5.7;
(h) with respect to the Acquired Assets Employees or any independent contractors, or other individuals subject to Section 5.7, except for liabilities under any employment contracts with NAESCO employees relating to periods on and after the Closing Date, which Liabilities are assumed only to the extent set forth in Section 2.3(b), any Liabilities or obligations relating to the employment or termination of employment, including personal injury, tort, discrimination (including claims for whistleblowing under the Atomic Energy Act and the Energy Reorganization Act of 1974 as amended, as well as claims under Title VII of the Civil Rights Act of 1964, as amended, Executive Order 11246, the Age Discrimination in Employment Act, as amended, the Americans with Disabilities Act, and/or any other federal, state or local statute, ordinance, regulation or order prohibiting discrimination or requiring affirmative action), wrongful discharge, breach of implied or express contract, unfair labor practices or any claim asserted in an individual employee grievance procedure, or constructive termination by any Seller or its Affiliate of any individual, or similar claim or cause of action attributable to any action or inaction by any Seller or any of its Affiliates that arise out of wrongful acts or omissions, occurring prior to the Initial Closing Date or such later date as the “Excluded Liabilities”):individual may have commenced employment with Buyer pursuant to Section 5.7(a) or (b); provided that the Sellers shall not have any liability for similar actions or inactions by any other Person on or after the Initial Closing Date or such later date as the individual shall have commenced employment with the Buyer;
(i) any Liabilities of Seller’s liabilities Sellers to the extent accrued or obligations related to or attributable to the period prior to the Initial Closing Date under this Agreementany contract, license, Permit or other instrument relating to the Acquired Assets (including, without limitation, the Schedules attached hereto Leases, Emergency Preparedness Agreements and any other agreements entered into by Seller in connection with Other Assigned Contracts, the transactions contemplated by this AgreementMaterial Contracts and the NRC Licenses);
(iij) any of Seller’s liabilities or obligations all Liabilities for expenses, assessments for decommissioning and decontamination fund fees or Taxes 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’ accrued and accountants’ fees, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to payable under 42 U.S.C. Section 6.7 hereof;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(iv) any liability or obligation under or with respect to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liability;
(v) any liability or obligation with respect to any products or services that were marketed or sold 2297g-1 prior to the Closing, including product liability, infringement claims and any related claims and litigation arising prior to, on or after the Initial Closing Date;
(vik) except as set forth on the Accrued Liabilities and Assumed Payables Scheduleany Liabilities, including, without limitation, any Environmental Liabilities, resulting from any illegal acts or willful misconduct of Seller’s liabilities the Sellers or obligations of any kind to any Business Employees NAESCO or former employee of Sellertheir employees, including any liabilities agents or obligations arising contractors, occurring prior to the Closing with respect to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule);
(vii) any liability or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Initial Closing Date;
(viiil) any all Liabilities for fees payable to DOE under the DOE Standard Contracts accrued or related to electricity generated and sold prior to the Initial Closing Date, and interest accrued thereon as set forth in Article VIII of Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Lawsthe DOE Standard Contracts;
(ixm) any Liabilities to the extent relating to the Business Finance Authority of Seller’s liabilities the State of New Hampshire Pollution Control Revenue Bonds (as set forth in Schedule 2.4(m), the "Pollution Control Bonds") and any agreements relating thereto, other than those arising out of the breach by the Buyer of the covenants contained in Section 5.8(d);
(n) any Liens on the Acquired Assets, except for Permitted Encumbrances;
(o) except as otherwise expressly set forth in this Agreement, any other Liability, obligation, claim, action, complaint, debt, suit, cause of action, investigation, or obligations proceeding of any kind whatsoever asserted by any Third Party, against or relating to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct of the Business Buyer, the Sellers or any other conduct the Acquired Assets, for damages suffered by such Third Party arising from or relating to the use, ownership or lease of Seller, Seller’s officers, directors, employees, consultants, agents the Acquired Assets or advisors on or operation of the Facility prior to the Initial Closing Date;
(xp) any all Liabilities of Seller’s liabilities or obligations NEP and PSNH under the Transmission Support Agreement, except for Indebtedness;
(xi) any liabilities or obligations in respect of any of the Excluded Assets (including under any contracts, leases, commitments or understandings related thereto);
(xii) any of Seller’s liabilities or obligations which Buyer may become liable for as a result of or in connection with the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liability;
(xiii) any of Seller’s liabilities or obligations with respect to amounts disputed by Seller and not paid to the landlords of the properties listed on the attached Leased Real Property ScheduleNEP's transmission support payment obligations; and
(xivq) the escrow account contribution obligation of each Seller under the Unit 2 Memorandum of Understanding with the Town of Seabrook; and
(r) any Liability which is required to be accrued in accordance with GAAP by any Seller on the balance sheet of such Seller as of the Initial Closing Date or a Subsequent Closing Date, as the case may be, , other liabilities or obligations of Seller not expressly assumed by Buyer pursuant to than those Liabilities which are specifically identified as Assumed Liabilities in Section 2.2(a) above2.3.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Connecticut Light & Power Co), Purchase and Sale Agreement (New England Power Co)
Liabilities Not Assumed. Notwithstanding anything to the contrary in this Agreement, Buyer The Company shall not and does not assume any liabilities, obligations or in any way become liable for any of Seller’s debts, liabilities or obligations commitments of any nature whatsoever (other than the Assumed Liabilities)Seller Party of any kind, whether accrued, absoluteknown or unknown, contingent or otherwise, whether known of whatsoever kind or unknownnature, whether due or to become due, whether related to not specifically included within the Business or the Purchased Assets and whether disclosed on the Schedules attached heretoAssumed Liabilities, and regardless the same shall remain the sole responsibility of when or by whom assertedsuch Seller Party (which liabilities, including clauses (i) through (xiv) below (collectively obligations and commitments are referred to herein in this Agreement as the “"EXCLUDED LIABILITIES"). The Excluded Liabilities”Liabilities include, without limitation, the following liabilities that are expressly excluded from the liabilities and obligations being assumed by the Company pursuant to Section 3(a):
(i) any Moulin Debt incurred after the date of Seller’s this Agreement other than in the ordinary course of business and consistent with prudent business practice;
(ii) any liabilities or obligations under of any Seller Party for the fees and expenses of its counsel, accountants and other professionals and all other expenses incurred by the Seller Party (including broker's fees) incident to the negotiation, preparation and execution of this AgreementAgreement and the performance by the Seller Party of its obligations hereunder;
(iii) any liabilities or obligations arising out of or related to local, the Schedules attached hereto and state, federal or foreign income taxes or assessments, including, without limitation, any other agreements entered into such taxes arising by Seller in connection with virtue of the transactions contemplated by this Agreement;
(iiiv) any of Seller’s liabilities or obligations for expensesall sales taxes, fees or Taxes incident to or including, without limitation, sales and other transfer taxes (including penalties and interest) attributable to, arising out of or resulting from the negotiation, preparation, approval or authorization of this Agreement or the consummation (or preparation for the consummation) sale of the transactions contemplated hereby (including all attorneys’ and accountants’ feesAssets, brokerage fees and transfer Taxes), except for which taxes shall be borne solely by the portion of Seller Party selling the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(iv) any liability or obligation under or with respect to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liabilityAssets;
(v) any liability or obligation obligations of any Seller Party for any product liability or similar claim for injury to persons or property with respect to any products sold or services that were marketed or sold prior to the Closing, including product liability, infringement claims and any related claims and litigation arising prior to, on or after delivered BEFORE the Closing Date;
(vi) any liabilities or obligations attributable to, arising out of or resulting from any distributions by any Seller Party to its shareholders;
(vii) except as specifically set forth on the Accrued Liabilities and Assumed Payables Schedulein Section 3(a)(iv), any of Seller’s liabilities or obligations of any kind to any Business Employees or former employee of Seller, including any liabilities or obligations arising prior to the Closing Seller Party with respect to the exempt employee compensation or non-exempt status employee benefits of any Business Employee nature, including accrued wages and vacation, owed to any of such Seller Party's employees or Employee Bonuses (whether former employees or not their beneficiaries that arise out of the employment relationship between such liability Seller Party and any of its employees or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, former employees or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule);
(vii) any liability or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Datetermination of that relationship;
(viii) any of Seller’s liabilities or obligations (A) arising payroll taxes payable by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Laws;Party; and
(ix) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct of the Business or any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents or advisors on or prior to the Closing Date;
(x) any of Seller’s liabilities or obligations for Indebtedness;
(xi) any liabilities or obligations in respect of any of the Excluded Assets (including under any contracts, leases, commitments or understandings related thereto);
(xii) any of Seller’s liabilities or obligations which Buyer may become liable for as a result of or in connection with the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liability;
(xiii) any of Seller’s liabilities or obligations with respect to amounts disputed by Seller and not paid to the landlords of the properties listed on the attached Leased Real Property Schedule; and
(xiv) any other liabilities or obligations of any Seller not expressly assumed by Buyer pursuant to Section 2.2(a) aboveParty under any Excluded Contract.
Appears in 1 contract
Liabilities Not Assumed. Notwithstanding anything to the contrary contained in Section 2.3 or elsewhere, Seller and Buyer hereby expressly acknowledge and agree that the Assumed Liabilities shall not include, Seller shall not assign to Buyer pursuant to this Agreement, and Buyer shall not accept or assume or in be obligated to pay, perform or otherwise discharge pursuant to this Agreement, any way become liable for any of Seller’s debts, liabilities or obligations of any nature whatsoever (Liability other than the Assumed Liabilities (collectively, the “Retained Liabilities”). For the avoidance of doubt, the term “Retained Liabilities” means any and all Liabilities that do not constitute Assumed Liabilities, whether accrued, absolute, contingent or otherwise, whether known or unknown, whether due or to become due, whether not any such Liability is related to or used in the Business or the Purchased Assets Business, and whether disclosed on the Schedules attached heretoor not any such Liability has a value for accounting purposes or is carried or reflected on, and regardless of when or by whom asserted, including clauses (i) through (xiv) below (collectively specifically referred to herein as in, the “Excluded R-Vision Group’s financial statements. Seller shall remain responsible for the Retained Liabilities”):, which shall be paid, performed and discharged by Seller. Without limiting the foregoing, the Retained Liabilities include:
(ia) any Liability of Seller’s liabilities Seller for Pre-Closing Taxes, other than property Taxes for the Owned Real Estate that are accrued in the most recent Financials;
(b) any Liability of Seller under the Transaction Documents;
(c) any Liability relating to, arising out of, or obligations under this Agreement, the Schedules attached hereto and any other agreements entered into by Seller incurred in connection with the transactions contemplated by this AgreementExcluded Assets;
(iid) any of Seller’s liabilities Liability relating to, arising out of, or obligations for expensesincurred in connection with any Environmental Claim or any Remedial Activities associated with the Retained Real Property or Other Real Property;
(e) any Liability relating to, fees arising out of, or Taxes incident to incurred in connection with any Real Property owned or previously owned by Seller that is not Owned Real Estate;
(f) any Liability arising out of the negotiation, preparation, approval or authorization any Proceeding pending as of this Agreement or the consummation (or preparation for the consummation) of the transactions contemplated hereby (including all attorneys’ and accountants’ fees, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(iv) any liability or obligation under or with respect to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liability;
(v) any liability or obligation with respect to any products or services that were marketed or sold prior to the Closing, including product liability, infringement claims and any related claims and litigation arising prior to, on or after the Closing Date;
(vi) except as set forth on the Accrued Liabilities , and Assumed Payables Schedule, any of Seller’s liabilities or obligations Liability arising out of any kind to any Business Employees or former employee of Seller, including any liabilities or obligations arising prior to the Closing with respect to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule);
(vii) any liability or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented Proceeding commenced after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Date;
(viii) any of Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Laws;
(ix) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim and arising out of or in connection with Seller’s conduct of the Business relating to any occurrence or any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents or advisors on or event happening prior to the Closing Date;
(xg) any of Seller’s liabilities Liability under any Contract or obligations for IndebtednessBusiness Governmental Authorization, in each case, relating to a period prior to the Closing;
(xih) any liabilities or obligations in respect of any Liability arising out of the Excluded ownership of the Purchased Assets or the conduct of the Business prior to the Closing Date (including under any contracts, leases, commitments or understandings related theretoexcept for Assumed Liabilities);
(xiii) any Liability arising out of or resulting from Seller’s liabilities compliance or obligations which Buyer may become liable for as a result of or in connection with the failure by Buyer or Seller to comply non-compliance with any bulk sales Law or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liability;
(xiii) any of Seller’s liabilities or obligations with respect to amounts disputed by Seller and not paid to the landlords of the properties listed on the attached Leased Real Property ScheduleOrder; and
(xivj) any other liabilities Liability related to Seller’s acts or obligations of Seller not expressly assumed by Buyer pursuant to Section 2.2(a) aboveomissions occurring after the Closing Date.
Appears in 1 contract
Liabilities Not Assumed. Notwithstanding anything to the contrary in this Agreement, Buyer Purchaser shall not assume or in any way become liable for any of Seller’s 's debts, liabilities or obligations of any nature whatsoever (other than the Assumed Liabilities), whether accrued, absolute, contingent or otherwise, whether known or unknown, whether due or to become due, whether related to the Business Premises or the Purchased Assets and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including clauses (i) through (xiv) below asserted (collectively referred to herein as the “"Excluded Liabilities”"), including, without limitation, any and all liabilities or obligations (whether imposed on Purchaser as a successor or otherwise):
(i) any of Seller’s liabilities relating to or obligations arising under this Agreement, the Schedules attached hereto and any other agreements entered into by Seller or in connection with the transactions contemplated by this Agreement;
any "employee benefit plan" (ii) any of Seller’s liabilities or obligations for expenses, fees or Taxes incident to or arising out of the negotiation, preparation, approval or authorization of this Agreement or the consummation (or preparation for the consummationas defined in Section 2(3) of the transactions contemplated hereby (including all attorneys’ and accountants’ fees, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iiiERISA) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(iv) any liability or obligation under or with respect to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy program or arrangement presently of any kind at any time maintained, sponsored or formerly maintained contributed or required to be contributed to by Seller or its any ERISA AffiliatesAffiliate, or with respect to which Seller or any such ERISA Affiliate has any liability or potential liability, including the responsibility for satisfying the continuation coverage requirements of COBRA for all employees or former employees or other service providers (and any dependents or beneficiaries thereof) of Seller or any ERISA Affiliate who are receiving COBRA continuation coverage as of the Closing Date or who are or become entitled to elect such coverage on account of a qualifying event occurring on or before the Closing;
(vii) pertaining to the employment or service with, or termination from employment or service with, Seller or any ERISA Affiliate, of any individual, including but not limited to:
(A) any workers' compensation claim or other deferred claim;
(B) bonus obligations, accrued vacation or other paid time off; and -5-
(C) any severance obligations.
(iii) to a landlord under any Lease for a Wind-Up Store Individual Premises (a "Wind-Up Store Lease") relating to discontinuing operations at that location and/or vacating the Premises (including, for purposes of greater clarity and without limitation, any liability or obligation with respect to any products arising as a result of the closing of such locations at or services that were marketed immediately following the expiration or sold termination of the applicable licenses described in Section 5.1(c) hereof, regardless of the effect of the prior to assignment of the Closing, including product liability, infringement claims and any related claims and litigation arising prior to, on or after the Closing Date;applicable Leases); and
(viiv) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any of Seller’s liabilities or obligations of any kind to any Business Employees or former employee of Seller, including any liabilities or obligations arising prior to the Closing with respect to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule);
(vii) any liability or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Date;
(viii) any of Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Laws;
(ix) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct of any contract or agreement not included among the Business or any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents or advisors on or prior to the Closing Date;
(x) any of Seller’s liabilities or obligations for Indebtedness;
(xi) any liabilities or obligations in respect of any of the Excluded Assets (including under any contracts, leases, commitments or understandings related thereto);
(xii) any of Seller’s liabilities or obligations which Buyer may become liable for as a result of or in connection with the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liability;
(xiii) any of Seller’s liabilities or obligations with respect to amounts disputed by Seller and not paid to the landlords of the properties listed on the attached Leased Real Property Schedule; and
(xiv) any other liabilities or obligations of Seller not expressly assumed by Buyer pursuant to Section 2.2(a) aboveAssumed Contracts.
Appears in 1 contract
Liabilities Not Assumed. Notwithstanding anything Any provision of this Agreement to the contrary in this Agreementnotwithstanding (and without implication that the Purchaser is assuming any liability not expressly excluded and, Buyer shall not assume or in any way become liable for where applicable, without implication that any of Seller’s debts, liabilities or obligations of any nature whatsoever (other than the following have been included in the Assumed Liabilities), whether accrued, absolute, contingent the following liabilities (the "Excluded Liabilities") of the Seller and of the Shareholders are excluded and shall not be assumed or otherwise, whether known or unknown, whether due or to become due, whether related to discharged by the Business Purchaser:
(a) any liabilities for any Taxes of the Seller or the Purchased Assets and whether disclosed Shareholders attributable to or arising from or in connection with the income, business, assets, properties or operations of the Seller for any period (or portion thereof) ending on or before the Schedules attached heretoClosing Date, and regardless of when or by whom asserted, including clauses (i) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”):
(i) any of Seller’s liabilities or obligations under this Agreement, the Schedules attached hereto and any other agreements entered into by Seller payable in connection with the transactions contemplated by this AgreementAgreement and any liabilities for any Taxes of any Affiliate (or any former Affiliate) of the Seller or the Shareholder;
(iib) any liability of the Seller or of the Shareholders for the unpaid Taxes of any Person under Treasury Regulation 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract or otherwise);
(c) any liabilities (whether asserted before or after Closing Date) for any breach of a representation, warranty, or covenant, or for any claim for indemnification, contained in any Real Property Lease, Personal Property Leases, Business Contract or Business License agreed to be performed pursuant hereto by the Purchaser, but only to the extent that such breach or claim arises out of or by virtue of the Seller’s 's performance or non-performance thereunder prior to the Closing Date, it being understood that, as between the parties hereto, this subsection shall apply notwithstanding any provision which may be contained in any form of consent to the assignment of any such Real Property Lease, Personal Property Lease, Business Contract or Business License which by its terms, imposes such liabilities or obligations upon the Purchaser and which assignment is accepted by the Purchaser notwithstanding the presence of such a provision, and that the Seller's failure to discharge any such liability shall entitle the Purchaser to indemnification in accordance with the provisions of Section 7.2;
(d) any liabilities of the Seller for expenses, fees or Taxes incident injury to or death of persons or damage to or destruction of property (including, without limitation, any products liability claim or worker's compensation claim) regardless of when said claim or liability is asserted, including, without limitation, any claim for consequential damages in connection with the foregoing;
(e) any liabilities of the Seller arising out of the negotiation, preparation, approval or authorization of this Agreement or the consummation (or preparation for the consummation) infringement of the transactions contemplated hereby (including all attorneys’ and accountants’ fees, brokerage fees and transfer Taxes), except for the portion rights of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereofany Persons;
(iiif) except as set forth on liabilities of the Accrued Liabilities and Assumed Payables Schedule, Seller arising out of violations of any liability Laws or obligation of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico TaxesOrders;
(ivg) any liability of the Seller not arising out of an act or obligation under or with respect to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liability;
(v) any liability or obligation with respect to any products or services that were marketed or sold prior omission solely attributable to the Closing, including product liability, infringement claims and Purchaser in respect of any related claims and litigation arising prior to, on Action or Proceeding (whether asserted or commenced before or after the Closing Date;
(vi) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any of Seller’s liabilities or obligations of any kind to any Business Employees or former employee of Seller, including any liabilities or obligations arising prior to the Closing with respect to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule);
(viih) any liability or obligation liabilities relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing DateExcluded Assets;
(viii) any of Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Laws;
(ix) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct of the Business or any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents or advisors on or prior to the Closing Date;
(x) any of Seller’s liabilities or obligations for Indebtedness;
(xii) any liabilities or obligations in respect of any of the Excluded Assets (including under any contractsSeller to pay fees or expenses of attorneys, leasesadvisors, commitments or understandings related thereto);
(xii) any of Seller’s liabilities or obligations which Buyer may become liable for as a result of or accountants, engineers and other consultants incurred in connection with the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liabilitytransactions contemplated hereby;
(xiiij) any of Seller’s liabilities or obligations with respect to amounts disputed by Seller and not paid to the landlords of the properties listed on Seller to any Shareholder or to any Affiliate of the attached Leased Real Property ScheduleSeller; and
(xivk) without limitation by the specific enumeration of the foregoing, any other liabilities or obligations of Seller not expressly assumed by Buyer the Purchaser pursuant to the provisions of Section 2.2(a) above1.
Appears in 1 contract
Liabilities Not Assumed. Notwithstanding anything Other than to assume the obligations to be performed by seller under the Contracts subsequent to the contrary Closing Date, Purchaser shall not and does not assume, or take subject to any liabilities or obligations of Seller. Without limiting the generality of the foregoing, Purchaser shall not be deemed by anything contained in this AgreementAgreement to have assumed, Buyer and does not assume:
(a) any liability of Seller for national, state or local taxes of any nature or description;
(b) any obligation of Seller to Seller’s employees for severance, vacation, sick or other pay, whether under a collective bargaining agreement, employment agreement or otherwise, it being expressly understood that Purchaser shall not assume or in any way become liable for be under no obligation to hire any of Seller’s debts, liabilities or obligations of any nature whatsoever (other than the Assumed Liabilities), whether accrued, absolute, contingent or otherwise, whether known or unknown, whether due or to become due, whether related to the Business or the Purchased Assets and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including clauses (i) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”):
(i) any of Seller’s liabilities or obligations under this Agreement, the Schedules attached hereto and any other agreements entered into by Seller in connection with the transactions contemplated by this Agreementpresent employees;
(iic) any of Seller’s liabilities or obligations for expenses, fees or Taxes 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, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller for Taxes for damages in respect of any period, except for breach or default in the portion performance of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico TaxesContracts before the date of Closing;
(ivd) any liability or obligation, contingent or otherwise, of Seller arising out of any threatened or pending claim, investigation, litigation or proceeding;
(e) any liability or obligation under or with respect to any of Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to for defects in products sold by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liabilitybefore the date of Closing;
(vf) any accrued obligations of Seller in connection with the Excluded Assets or Seller’s insurance policies;
(g) any liability or obligation with of Seller in respect to of any products pension or services that were marketed or sold prior to the Closing, including product liability, infringement claims and any related claims and litigation arising prior to, on or after the Closing Dateprofit-sharing plan of Seller;
(vi) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any of Seller’s liabilities or obligations of any kind to any Business Employees or former employee of Seller, including any liabilities or obligations arising prior to the Closing with respect to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule);
(viih) any liability or obligation relating of Seller to workers’ compensation claims which were filed any bank or presented on finance company or before to any person or entity under any note, mortgage, bond, covenant, agreement or instrument for the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Datepayment of money;
(viiii) any liability or obligation of Seller’s liabilities Seller for accounts payable or obligations (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Lawsamounts owed to trade creditors;
(ixj) any of Seller’s liabilities obligation or obligations relating to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct of the Business or any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents or advisors on or prior to the Closing Date;
(x) any of Seller’s liabilities or obligations for Indebtedness;
(xi) any liabilities or obligations in respect of any of the Excluded Assets (including under any contracts, leases, commitments or understandings related thereto);
(xii) any of Seller’s liabilities or obligations which Buyer may become liable for as a result of or in connection with the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liability;
(xiii) any of Seller’s liabilities or obligations with respect to amounts disputed by Seller and not paid to the landlords of the properties listed on the attached Leased Real Property Schedule; and
(xiv) any other liabilities or obligations liability of Seller not expressly assumed by Buyer pursuant for amounts owed to Section 2.2(a) above.Shareholders;
Appears in 1 contract
Sources: Asset Purchase Agreement (Earth Science Tech, Inc.)
Liabilities Not Assumed. Notwithstanding anything to the contrary in this Agreement, except for the Assumed Liabilities, Buyer shall will not assume or in any way become liable for any of Seller’s debts, liabilities Indebtedness or obligations Liabilities of any nature whatsoever (other than the Assumed Liabilities)whatsoever, whether accrued, absolute, contingent or otherwise, whether known or unknown, whether due or to become due, whether related to the Business or the Purchased Assets and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including clauses (i) through (xiv) below all of the following (collectively referred to herein as the “Excluded Liabilities”):
(i) any Liabilities of Seller’s liabilities Seller or obligations Partners under this Agreement, the Schedules attached hereto and any other agreements entered into by Seller in connection with the transactions contemplated by this Ancillary Agreement;
(ii) any Liabilities of Seller’s liabilities Seller or obligations Partners for expenses, fees or Taxes 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, brokerage fees and transfer Transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iii) except as set forth on the Accrued any Liabilities and Assumed Payables Schedule, any liability or obligation of Seller (A) for Taxes that relate to the Purchased Assets, the Business, or the Assumed Liabilities for a Pre-Closing Tax Period (or portion thereof), (B) for payments under any periodTax allocation, except for the portion of transfer Taxes to be paid by Buyer sharing or similar agreement (whether written or oral) other than pursuant to this Agreement that relate to the Purchased Assets, the Business or the Assumed Liabilities, (C) for Transfer Taxes for which the Seller is liable and (D) imposed under any bulk transfer law of any jurisdiction, under any de facto merger law, successor liability law or any other law or as a result of the application of Section 6.7 hereof6901 of the Code or any similar law, including in each case with respect to the Puerto Rico TaxesPurchased Assets, the Business, or the Assumed Liabilities;
(iv) all Liabilities based upon, arising out of or otherwise in respect of any liability or obligation under or with respect to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liabilityPlans;
(v) all Liabilities based upon, arising out of or otherwise in respect of any liability current or obligation former employees, consultants or independent contractors of Seller;
(vi) any Liabilities arising prior to the Closing with respect to the misclassification of an employee as an independent contractor under applicable laws;
(vii) any Liabilities arising prior to the Closing with respect to the misclassification of any employee as exempt, or any other improper payment, under the Fair Labor Standards Act or state wage hour law;
(viii) all Liabilities based upon or arising out of any mass layoff or reduction of employees by Seller, including in connection with any such actions related to, or in anticipation of, this Agreement;
(ix) any Liability with respect to any products or services that were marketed or sold or services that were performed by or on behalf of Seller or its Affiliates prior to the Closing, including professional or product liability, infringement claims and any related claims and litigation arising prior to, on or after the Closing Date;
(vix) except as set forth on the Accrued all Liabilities and Assumed Payables Schedule, any of Seller’s liabilities or obligations of any kind Seller owing to any Business Employees current or former employee of SellerAffiliates, including partners or any liabilities other Person owning or obligations arising prior purporting to the Closing own any equity interest in or with respect to the exempt or non-exempt status of Seller for any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule)reason whatsoever;
(viixi) any liability or obligation Liability relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Date;
(viiixii) any of Seller’s liabilities or obligations (A) Liabilities arising by reason of any (A) violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, Governmental Authority and (B) arising by reason of any breach or alleged breach by Seller or any of its Affiliates of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under except for any Environmental Lawsbreach of an Assumed Contract due to the failure to obtain consent to assignment of any such Assumed Contract to Buyer;
(ixxiii) any of Seller’s liabilities or obligations Liabilities relating to any pending or threatened legal action, proceeding or claim arising out of or in connection with Seller’s conduct of the Business or any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents or advisors on or prior to the Closing Date;
(xxiv) any of Seller’s liabilities or obligations Liabilities for Indebtedness;
(xixv) any liabilities or obligations Liabilities for Transaction Expenses;
(xvi) any Liabilities in respect of any of the Excluded Assets (including under any contracts, leases, commitments or understandings related thereto);; and
(xiixvii) any of Seller’s liabilities or obligations Liabilities for which Buyer may become liable for as a result of or in connection with the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto de facto merger” or “successor-in-interest” theories of liability;
(xiii) . For purposes of this Section 2.2(b), “Seller” will be deemed to include all Affiliates of Seller and any of Seller’s liabilities or obligations predecessors to Seller and any Person with respect to amounts disputed which Seller is a successor-in-interest (including by operation of law, merger, liquidation, consolidation, assignment, assumption or otherwise). Seller and not paid hereby acknowledges that it is retaining the Excluded Liabilities, to the landlords of extent applicable, and Seller will (and the properties listed on the attached Leased Real Property Schedule; and
(xivPartners will cause Seller to) any other pay, discharge and perform all such liabilities or and obligations of Seller not expressly assumed by Buyer pursuant to Section 2.2(a) abovepromptly when due.
Appears in 1 contract
Sources: Asset Purchase Agreement (Heidrick & Struggles International Inc)
Liabilities Not Assumed. Notwithstanding anything to the contrary in this Agreement, Buyer shall The Purchaser will not assume or in have any way become liable for any of Seller’s debts, liabilities or obligations of any nature whatsoever (other than the Assumed Liabilities), whether accrued, absolute, contingent or otherwise, whether known or unknown, whether due or to become due, whether related responsibility with respect to the Business or following Liabilities (the Purchased Assets and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including clauses (i) through (xiv) below (collectively referred to herein as the “"Excluded Liabilities”):") of the Sellers, which are excluded and shall not be assumed or discharged by the Purchaser:
(i) any of Seller’s liabilities or Liabilities and obligations under this Agreement, the Schedules attached hereto and any other agreements entered into by Seller in connection with the transactions contemplated by this Agreement;
(ii) any of Seller’s liabilities or obligations for expenses, fees or Taxes incident to or arising out of the negotiation, preparation, approval or authorization of this Agreement or the consummation Sellers (or preparation for the consummationany consolidated, affiliated or unitary group of which either Seller is a member) of the transactions contemplated hereby (including all attorneys’ and accountants’ fees, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes with respect to be paid by Buyer pursuant to Section 6.7 hereof;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller for Income Taxes for any period, except or for the portion of transfer Sales Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(iv) properly due and payable at any liability or obligation under or with respect to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liability;
(v) any liability or obligation with respect to any products or services that were marketed or sold prior to the Closing, including product liability, infringement claims and any related claims and litigation arising prior to, on or after the Closing Date;
(vi) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any of Seller’s liabilities or obligations of any kind to any Business Employees or former employee of Seller, including any liabilities or obligations arising prior to the Closing with respect to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule);
(vii) any liability or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Date;
(viii) any of Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Laws;
(ix) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct of the Business or any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents or advisors on or time prior to the Closing Date;
(ii) any Liabilities of the Sellers to any Affiliate of the Sellers except for current wages, accrued bonuses and benefits (other than those relating to the Phantom Stock Plan);
(iii) any Liabilities arising out of or in connection with the Company's Phantom Stock Plan;
(iv) any Liabilities and obligations arising out of or in connection with the withdrawal of the Company from the Central States Southeast and Southwest Areas Pension Fund;
(v) except with respect to the Employee Benefit Plans to be assumed by the Purchaser pursuant to Section 5I hereto, any Liabilities, obligations or responsibilities relating to or arising under any "employee benefit plan" (as defined in Section 3(3) of ERISA) or any other employee benefit plan, program or arrangement at any time maintained or contributed to by the Company or any trade or business (whether or not incorporated) which is or has ever been under common control, or which is or has ever been treated as a single employer, with the Company under Section 414 of the Code (an "ERISA Affiliate"), or with respect to which the Company or any ERISA Affiliate has any Liability or potential Liability;
(vi) any Liabilities relating to the Excluded Assets;
(vii) any Liabilities of the Sellers with respect to Indebtedness (other than up to $2,106,000 of obligations under the IRB);
(viii) any Liabilities relating to the capital stock of the Sellers or any stockholders or other agent to which either of the Sellers is party;
(ix) any Liabilities of the Sellers correlating to amounts required to be paid by the Sellers pursuant to Section 1E or incurred in connection with the completion of the transactions contemplated hereby, including the fees and expenses of Mann, ▇▇▇▇▇▇▇▇▇ & ▇ppe▇▇▇▇;
(x) any Liabilities and obligations arising out of Seller’s liabilities or obligations for Indebtednessin connection with any oral pension arrangements;
(xi) any liabilities or Liabilities and obligations in respect of connection with Gay Lane▇ ▇. ▇▇▇m ▇▇▇▇▇, ▇▇c., Case No. ▇-▇-▇▇-▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ Ohio, or Sylv▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇. Adam ▇▇▇▇▇, ▇▇c., EEOC Charge No. 221990240, OCRC Charge No. 25103198 (27457) 112598, or any of the Excluded Assets (including under any contracts, leases, commitments other claims asserted by either Gay Laney or understandings related thereto);Sylv▇▇ ▇▇▇▇▇▇▇▇▇▇; ▇▇d
(xii) without limitation by the specific enumeration of the foregoing, any of Seller’s liabilities or obligations which Buyer may become liable for as a result of or in connection with Liabilities not assumed by the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liability;
(xiii) any of Seller’s liabilities or obligations with respect to amounts disputed by Seller and not paid Purchaser pursuant to the landlords provisions of Section 1C. The assumption by the Purchaser of said Liabilities shall not create any third party beneficiary rights. The Sellers shall pay and discharge when due out of their own funds, with no right of contribution or recourse against the assets of the properties listed on Purchaser, or contest in good faith at no cost or expense to the attached Leased Real Property Schedule; and
(xiv) any other liabilities Purchaser or obligations its Affiliates, all of Seller those Liabilities of the Sellers which the Purchaser has not expressly assumed by Buyer agreed to assume pursuant to the provisions of this Section 2.2(a) above.1D.
Appears in 1 contract
Sources: Asset Purchase Agreement (Lower Road Associates LLC)
Liabilities Not Assumed. Notwithstanding anything to the contrary in this Agreement, Buyer shall not assume or in any way become liable for any of Seller’s the debts, liabilities Liabilities or obligations of any nature whatsoever (other than the Assumed Liabilities), relating to any Seller, the Business or the Purchased Assets, whether accrued, absolute, contingent or otherwise, whether known or unknown, whether due or to become due, whether related to the Business or the Purchased Assets and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including asserted that are described in clauses (ia) through (xivr) below (collectively referred to herein as the “"Excluded Liabilities”"):
(ia) any of Seller’s liabilities Sellers' Liabilities or obligations under this Agreement, the Schedules attached hereto and any other agreements entered into by Seller Sellers in connection with the transactions contemplated by this Agreement;
(iib) any of Seller’s liabilities Sellers' Liabilities or obligations for expenses, fees or Taxes 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’ ', accountants' and accountants’ brokerage fees, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iiic) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability Liability or obligation of Seller Sellers for Taxes for any period, except for the portion of transfer including any Taxes to be paid by Buyer pursuant to imposed under Code Section 6.7 hereof, including the Puerto Rico Taxes1374;
(ivd) any liability Liability or obligation under or with respect to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller Sellers or its ERISA Affiliates, or with respect to which Seller Sellers or any such ERISA Affiliate has any liability;
(ve) any liability Liability or obligation with respect to any products delivered or developed or services that were marketed or sold performed prior to the Closing, including Closing in respect of product liability, infringement claims and infringement, misappropriation, violation of any Legal Requirement or any related claims and litigation arising prior to, on or after the Closing Datelitigation;
(vif) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any of Seller’s liabilities Sellers' Liabilities or obligations for vacation pay, sick pay, holiday pay, salary, bonuses or other payments or Liabilities arising on or before the Closing Date of any kind to any Business Employees or current or former employee of Seller, including any liabilities or obligations arising prior to the Closing with respect to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule)Sellers;
(viig) any liability Liability or obligation relating to workers’ ' compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Date;
(viiih) any of Seller’s liabilities Sellers' Liabilities or obligations (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, or (B) arising by reason of any breach or alleged breach by Seller Sellers of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, ;
(i) any Liabilities or (C) obligations arising under any Environmental Lawsand Safety Requirements where the underlying facts, events or conditions existed or occurred on or prior to the Closing Date, irrespective of whether such Liability or obligation attaches to the Buyer or Seller in the first instance;
(ixj) any of Seller’s liabilities Sellers' Liabilities or obligations relating to any legal action, proceeding or claim arising out of or in connection with Seller’s Sellers' conduct of the Business or any other conduct of SellerSellers, Seller’s Sellers' officers, directors, employees, consultants, agents or advisors on or prior to the Closing DateDate (other than conduct undertaken pursuant to a Customer Contract which is an Assumed Customer Contract);
(xk) any of Seller’s liabilities Sellers' Liabilities or obligations for Indebtedness;
(xil) any liabilities Liabilities or obligations in respect of any of the Excluded Assets (including under any contracts, leases, commitments or understandings related thereto);
(xiim) any of Seller’s liabilities Sellers' Liabilities or obligations which Buyer may become liable for solely as a result of or in connection with the failure by Buyer or Seller Sellers to comply with any bulk sales or bulk transfers laws or as a result of any “"defacto merger” " or “"successor-in-interest” " theories of liability;
(xiiin) any of Seller’s liabilities Liabilities or obligations with respect for premium and/or loss adjustments to amounts disputed by Seller and not paid Sellers' or their Affiliates' insurance policies due to Buyer's possible participation under such policies pursuant to its rights under Section 8.16 hereunder;
(o) any Liabilities of Sellers' Affiliates, except for the landlords obligations of Covansys Consulting, Inc. under the properties listed Contract set forth on Schedule 1.4(o);
(p) any Liabilities or obligations arising out of or related to any Unassumed Customer Contract;
(q) any Liabilities or obligations specifically set forth in Schedule 1.4(q) attached hereto (the attached Leased Real Property "Excluded Liabilities Schedule"); and
(xivr) any other liabilities Liabilities or obligations of Seller Sellers not expressly assumed by Buyer pursuant to Section 2.2(a) 1.3 above. For purposes of this Section 1.4, "Sellers" shall be deemed to include all Affiliates of Sellers and any predecessors to Sellers and any Person with respect to which any Seller is a successor-in-interest (including by operation of law, merger, liquidation, consolidation, assignment, assumption or otherwise). Each Seller hereby acknowledges that it is retaining the Excluded Liabilities, and each Seller shall pay, discharge and perform all such Liabilities and obligations promptly when due.
Appears in 1 contract
Liabilities Not Assumed. Notwithstanding anything to the contrary in this Agreement, Buyer Purchaser shall not assume or in any way become liable for any of Seller’s 's debts, liabilities or obligations of any nature whatsoever (other than the Assumed Liabilities), whether accrued, absolute, contingent or otherwise, whether known or unknown, whether due or to become due, whether related to the Business Premises or the Purchased Assets and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including clauses (i) through (xiv) below asserted (collectively referred to herein as the “"Excluded Liabilities”):"), including, without limitation, any and all liabilities or obligations (whether imposed on Purchaser as a successor or otherwise): -4-
(i) any of Seller’s liabilities relating to or obligations arising under this Agreement, the Schedules attached hereto and any other agreements entered into by Seller or in connection with the transactions contemplated by this Agreement;
any "employee benefit plan" (ii) any of Seller’s liabilities or obligations for expenses, fees or Taxes incident to or arising out of the negotiation, preparation, approval or authorization of this Agreement or the consummation (or preparation for the consummationas defined in Section 2(3) of the transactions contemplated hereby (including all attorneys’ and accountants’ fees, brokerage fees and transfer TaxesERISA), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables ScheduleESOP, any liability or obligation of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(iv) any liability or obligation under or with respect to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy program or arrangement presently of any kind at any time maintained, sponsored or formerly maintained contributed or required to be contributed to by Seller or its any ERISA AffiliatesAffiliate, or with respect to which Seller or any such ERISA Affiliate has any liability;
(v) any liability or obligation with respect to any products or services that were marketed or sold prior to the Closingpotential liability, including product liability, infringement claims the responsibility for satisfying the continuation coverage requirements of COBRA for all employees or former employees or other service providers (and any related claims and litigation arising prior to, on dependents or after beneficiaries thereof) of Seller or any ERISA Affiliate who are receiving COBRA continuation coverage as of the Closing Date;
(vi) except as set forth Date or who are or become entitled to elect such coverage on the Accrued Liabilities and Assumed Payables Schedule, any account of Seller’s liabilities or obligations of any kind to any Business Employees or former employee of Seller, including any liabilities or obligations arising prior to the Closing with respect to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule);
(vii) any liability or obligation relating to workers’ compensation claims which were filed or presented a qualifying event occurring on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing DateClosing;
(viiiii) pertaining to the employment or service with, or termination from employment or service with, Seller or any ERISA Affiliate, of Seller’s liabilities or obligations any individual, including but not limited to:
(A) arising by reason of any violation workers' compensation claim or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, other deferred claim;
(B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or Reserved.
(C) arising under any Environmental Laws;bonus obligations, accrued vacation or other paid time off; and
(ixD) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim severance obligations.
(iii) arising out of or in connection with Seller’s conduct deferred maintenance obligations under the Leases, including, without limitation, any liability for failure of Seller to have maintained the Premises and/or Improvements (other than those dealing with normal wear and tear) as required by the terms of the Business Leases, in whole or any other conduct of Sellerin part, Seller’s officers, directors, employees, consultants, agents or advisors on or prior to the Closing Date;; and
(xiv) any of Seller’s liabilities or obligations for Indebtedness;
(xi) any liabilities or obligations in respect of any of the Excluded Assets (including under any contracts, leases, commitments or understandings related thereto);
(xii) any of Seller’s liabilities or obligations which Buyer may become liable for as a result arising out of or in connection with any contract or agreement not included among the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liability;
(xiii) any of Seller’s liabilities or obligations with respect to amounts disputed by Seller and not paid to the landlords of the properties listed on the attached Leased Real Property Schedule; and
(xiv) any other liabilities or obligations of Seller not expressly assumed by Buyer pursuant to Section 2.2(a) aboveAssumed Contracts.
Appears in 1 contract
Liabilities Not Assumed. Notwithstanding anything in this Agreement or the Assumption Agreement to the contrary in this Agreementcontrary, the Buyer shall not assume any, and the Seller shall retain and be responsible for all, of the following liabilities and obligations of the Seller: (a) all liabilities and obligations arising under or in any way become liable for any connection with all revenue bonds issued by the Seller which are or were secured by a pledge of Seller’s debtsrevenues derived from the operation of the Assets, including, without limitation, all liabilities or and obligations of any nature whatsoever (other than the Assumed Liabilities), whether accrued, absolute, contingent or otherwise, whether known or unknown, whether due or to become due, whether related to the Business or the Purchased Assets and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including clauses (i) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”):
(i) any of Seller’s liabilities or obligations under this Agreement, the Schedules attached hereto and any other agreements entered into by Seller incurred in connection with the transactions contemplated issuance, defeasance or redemption of such revenue bonds; (b) all liabilities and obligations of the Seller for income-based taxes arising as a result of the sale by the Seller of the Assets or the assumption by the Buyer of any liabilities in accordance with this Agreement;
; (c) all liabilities and obligations of the Seller arising under or in connection with any and all ATU Plans, as defined in Section 5.8 hereof, and any and all Multiemployer Plans and Multiple Employer Plans, as defined in Section 5.8 hereof, to which the Seller has made contributions; provided, however, that the Buyer shall assume all, and the Seller shall not retain or be responsible for any, liabilities and obligations of the Seller with respect to medical, disability and group life benefits (other than benefits payable after retirement) and the Multiple Employer Plans and Multiemployer Plans described in Section 5.8(b)(iii) hereof, other than liabilities and obligations (i) under the PERS (but excluding the Buyer's obligation to pay the amount specified in Section 2.3(k) hereof), (ii) any of Seller’s liabilities or obligations for expenses, fees or Taxes incident to or arising out of the negotiation, preparation, approval or authorization of this Agreement or the consummation (or preparation penalties for the consummation) of the transactions contemplated hereby (including all attorneys’ and accountants’ feesSeller's noncompliance with applicable law, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller for Taxes for any period, except for the portion of transfer Taxes contributions required to be paid by Buyer pursuant made to Section 6.7 hereof, including the Puerto Rico Taxes;
(iv) any liability or obligation under or with respect to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liability;
(v) any liability or obligation with respect to any products or services that were marketed or sold prior to the Closing, including product liability, infringement claims Multiple Employer Plans and any related claims and litigation arising prior to, on or after the Closing Date;
(vi) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any of Seller’s liabilities or obligations of any kind to any Business Employees or former employee of Seller, including any liabilities or obligations arising Multiemployer Plans prior to the Closing with respect Date and (iv) resulting from the full or partial withdrawal by the Seller from any Multiple Employer Plan or Multiemployer Plan; (d) all liabilities and obligations of the Seller required to be disclosed to the exempt or non-exempt status Buyer under the terms of any Business Employee or Employee Bonuses (whether or not such liability or obligation this Agreement of which the Seller has been accrued actual knowledge on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule);
(vii) any liability or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate intentionally decides not to claims and/or injuries first disclose to the Buyer; (e) all liabilities and obligations of the Seller arising on or before the Closing Date;
(viii) any of Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Laws;
(ix) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim arising out in respect of or in connection with Seller’s conduct of the Business or any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents or advisors on or prior to the Closing Date;
(x) any of Seller’s liabilities or obligations for Indebtedness;
(xi) any liabilities or obligations in respect of any of the Excluded Assets assets listed on Schedule 1.2 hereto; (including under any contractsf) all liabilities and obligations of the Seller, leasesthe assumption of which by the Buyer would not be permitted by law because the Seller is a governmental entity and the Buyer is not; (g) all liabilities and obligations of the Seller for "Arbitrage payable," as such term is used in the 1997 Financial Statements; and (h) all liabilities and obligations for all MUSA (as defined herein) payments, commitments the 1998 revenue distribution and the 1999 revenue distribution (all of which the Seller is expected to pay prior to Closing). For the purposes of this Section 2.4, the Seller shall be deemed to have actual knowledge of a liability or understandings related thereto);
(xii) any obligation if, and only if, the Seller's Mayor, a member of either the ATU Committee of Seller’s liabilities 's Municipal Assembly or obligations which Buyer may become liable for as Executive Committee, any official (elected or appointed) of the Seller with a result rank of director or in connection higher, or any officer of ATU with the failure by Buyer rank of division manager or Seller to comply with any bulk sales higher has actual knowledge of such liability or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liability;
(xiii) any of Seller’s liabilities or obligations with respect to amounts disputed by Seller and not paid to the landlords of the properties listed on the attached Leased Real Property Schedule; and
(xiv) any other liabilities or obligations of Seller not expressly assumed by Buyer pursuant to Section 2.2(a) aboveobligation.
Appears in 1 contract
Liabilities Not Assumed. Notwithstanding anything the assumption of liabilities ----------------------- referred to in the contrary in this Agreementforegoing Section 1.5, Buyer shall not assume or in any way become liable for be deemed to have assumed any of Seller’s debts, the liabilities or obligations of any nature whatsoever (other than the Assumed Liabilities), whether accrued, absolute, contingent or otherwise, whether known or unknown, whether due or to become due, whether related to the Business or the Purchased Assets and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including clauses (i) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”):
(i) any of Seller’s liabilities or obligations under this Agreement, the Schedules attached hereto and any other agreements entered into by Seller in connection with the transactions contemplated by this Agreement;
(ii) any of Seller’s liabilities or obligations for expenses, fees or Taxes 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, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(iv) any liability or obligation under or with respect to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liability;kind together (the "Unassumed Liabilities"), including, without limitation:
(va) any public or other liability or obligation with respect to any products or services that were marketed or sold prior to the Closing, including product liability, infringement claims and any related claims and litigation arising prior to, on or after the Closing Date;
(vi) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any of Seller’s liabilities or obligations of any kind to any Business Employees or former employee of Seller, including any liabilities or obligations arising prior to the Closing with respect to the exempt or non-exempt status Business and affairs of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including Seller and the Accrued Liabilities acts and Assumed Payables Schedule);
(vii) any liability or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Date;
(viii) any omission of Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Laws;
(ix) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct of the Business or any other conduct of Seller, Seller’s its officers, directors, employees, consultantsand agents before the Closing date;
(b) any obligation or liability of Seller to any of the Stockholders or any other officer or director of Seller;
(c) any obligation or liability for Federal, agents State, local or advisors on foreign income taxes;
(d) any obligation or liability arising out of or relating, directly or indirectly, to the operation of Seller's Business prior to the Closing Date, including any rebates, discounts, offsets or concessions attributable to amounts invoiced to Sellers clients prior to the Closing Date;
(xe) any obligation or liability to Seller's employees for salary, wages or other compensation or benefits, including any obligation or liability with respect to retirement plans, sick and holidays time and pay, including any liabilities of Seller’s liabilities or obligations for IndebtednessSeller contemplated by this Agreement;
(xif) any liabilities of Seller with respect to any pension, retirement, savings, profit sharing or obligations in respect of any of the Excluded Assets (including under any contracts, leases, commitments or understandings related thereto)other benefit plans;
(xiig) any of Seller’s liabilities obligation or obligations liability which Buyer may become liable for as a result of or in connection with the failure by Buyer or Seller to comply is inconsistent with any bulk sales representation or bulk transfers laws warranty of Seller or as a result of any “defacto merger” or “successor-in-interest” theories of liabilitythe Stockholders;
(xiiih) any liability arising out of, and any expenses relating to, any claim, action, dispute, or litigation involving the operation of Seller’s liabilities 's Business before the Closing Date;
(i) any liability of Seller for fines, penalties, or obligations with respect damages payable to amounts disputed by any government or governmental agency or instrumentality involving the operation of Seller's Business before the Closing Date, including, but not limited to, any liability of Seller for fines, penalties, or damages payable to any government or governmental agency or instrumentality arising out of any violation of 8 USC 1101 et.seq. prior to the Closing Date;
(j) any obligation or liability of Seller or the Stockholders for the expenses incurred in preparing or negotiating this Agreement and consummating the transactions contemplated hereunder. Seller and Stockholders, jointly and severally, agree to discharge and indemnify, defend and hold harmless Buyer, BI, and their respective officers, directors, employees, agents, and stockholders from all Unassumed Liabilities, whether or not paid to the landlords of the properties listed on the attached Leased Real Property Schedule; and
(xiv) any other liabilities known, liquidated or obligations of Seller not expressly assumed by Buyer pursuant to Section 2.2(a) abovecontingent.
Appears in 1 contract
Sources: Asset Purchase Agreement (Butler International Inc /Md/)
Liabilities Not Assumed. Notwithstanding anything to Other than the contrary Assumed Liabilities (as defined in this AgreementSection 2.4 below), Buyer shall not assume by virtue of this Agreement, and shall have no liability or in obligation for, any way become liable for any Liability of Seller’s debtsSeller (the “Excluded Liabilities”), liabilities or obligations including (without limitation) those listed below, and Seller shall, as the case may require, retain and pay, satisfy, discharge, and perform all such Liabilities of any nature whatsoever (Seller other than the Assumed Liabilities, including (without limitation) the following Excluded Liabilities:
(a) Any Liability for Transfer Taxes that are the responsibility of Seller pursuant to Section 3.4 hereof, and any Liability for Taxes of Seller for any taxable period, including any Liability for Taxes relating to the Acquired Assets attributable to any taxable period or portion thereof ending on or prior to the Closing Date (with any real or personal property Taxes allocated to such taxable period on a per diem basis);
(b) Any Liability to indemnify any Person by reason of the fact that such Person was a director, officer, employee, stockholder, consultant, or agent of Seller, or that such Person was serving at the request of Seller, as a partner, trustee, director, officer, employee, stockholder, consultant, or agent of another entity;
(c) Any Liability as a result of any legal or equitable action or judicial or administrative proceeding initiated at any time caused by any action that occurred or condition that existed on or prior to the Closing Date and in respect of anything done, suffered to be done, or omitted to be done by Seller, or any of its directors, officers, employees, stockholders, consultants, or agents;
(d) Any Liability pertaining to Seller or its business and arising out of or resulting from noncompliance with any Laws, whether legislatively, judicially or administratively promulgated (including, without limitation, any Liability arising out of or resulting from noncompliance with Environmental Laws by Seller);
(e) Any Liability of Seller under any Assigned In-License Contract and Additional Assumed Contract for any acts or events occurring prior to the Closing or any breaches or defaults existing under such Contracts as of the Closing (including without limitation, any such Liability arising under any Contract for Intellectual Property), whether accrued, absolute, contingent or otherwise, whether known or unknown, whether due or to become due, whether related to the Business or the Purchased Assets and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including clauses other than (i) through (xivas set forth in Section 2.4(b) below (collectively referred to herein as the “Excluded Liabilities”):
(i) any of Seller’s liabilities or obligations under this Agreement, the Schedules attached hereto and any other agreements entered into by Seller in connection with the transactions contemplated by this Agreement;
(ii) any of Seller’s liabilities or obligations for expensesLiability under the Assigned In-License Contracts and the Additional Assumed Contracts, fees or Taxes 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, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(iv) any liability or obligation under or with respect to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliatesof, or with respect to which Seller or any such ERISA Affiliate has any liability;
(v) any liability or obligation with respect to any products or services that were marketed or sold prior to the Closing, including product liability, infringement claims and any related claims and litigation arising prior relating to, events occurring on or and after the Closing Date;
(vif) except as set forth on the Accrued Liabilities Any Liability under any Contract that is not an Assigned In-License Contract and Additional Assumed Payables ScheduleContract, any of Seller’s liabilities or obligations of any kind including but not limited to any Business Employees Liability for express or former employee of Sellerimplied representations, including warranties, guarantees or other service commitments under any liabilities or obligations arising prior to the Closing with respect to the exempt or nonContract that is not an Assigned In-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities License Contract and Additional Assumed Payables Schedule)Contract;
(viig) Any Liability of Seller for any liability violation, misappropriation, or obligation relating to workers’ compensation claims which were filed infringement (whether contributory, by inducement, willful, or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Date;
(viiiotherwise) any of Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation Intellectual Property of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Laws;
(ix) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct of the Business or any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents or advisors on or prior to the Closing Date;
(x) any of Seller’s liabilities or obligations for Indebtedness;
(xi) any liabilities or obligations in respect of any of the Excluded Assets (including under any contracts, leases, commitments or understandings related thereto);
(xii) any of Seller’s liabilities or obligations which Buyer may become liable for as a result of or in connection with the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liability;
(xiii) any of Seller’s liabilities or obligations with respect to amounts disputed by Seller and not paid to the landlords of the properties listed on the attached Leased Real Property Schedulethird party; and
(xivh) Any Employee Plan Liability (including, but not limited to, Employee Termination Liabilities set forth on Schedule 4.20(a)(iii) of the Seller Disclosure Schedule as supplemented pursuant to the Closing Liabilities Certificate); and
(i) Any Employee Termination Liability and any other liabilities or obligations Liability of Seller not expressly assumed by Buyer pursuant to Section 2.2(a) aboveany Employee.
Appears in 1 contract
Liabilities Not Assumed. Notwithstanding anything to Except for the contrary in this AgreementExchange Price and the Assumed Obligations, Seller agrees that Buyer shall will not assume or perform, and Seller shall remain responsible for and shall indemnify Buyer (in accordance with Section 12.2(a)) from and against, any way become liable for any and all liabilities and obligations of Seller’s debts, liabilities or obligations of any nature whatsoever (other than the Assumed Liabilities), whether accrued, absolute, contingent or otherwise, whether known or unknown, whether due or to become due, whether related to the Business or the Purchased Assets and whether disclosed on the Schedules attached hereto, and regardless of when such liabilities or by whom obligations arise or are asserted, including clauses any obligations or liabilities of Seller with respect to the following (i) through (xiv) below (collectively referred to herein as collectively, the “Excluded Liabilities”):
(ia) All federal, state, local, foreign or other taxes payable by Seller for periods prior to the Closing Date, and any transfer taxes arising from the transfer to Buyer of the Acquired Assets by Seller as contemplated hereby, including all sales, use or similar taxes, if any, that may arise from or be assessed by reason of the sale of the Acquired Assets by Seller to Buyer.
(b) All Liens (other than Permitted Liens) on any of Seller’s the Acquired Assets and all obligations and liabilities or secured thereby, in each case with respect to obligations under this Agreement, the Schedules attached hereto and any other agreements entered into by Seller in connection with the transactions contemplated by this Agreement;
(ii) any of Seller’s liabilities or obligations for expenses, fees or Taxes incident to or arising out existing as 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, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(iv) any liability or obligation under Closing Date or with respect to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liability;
(v) any liability or obligation with respect to any products or services that were marketed or sold prior to the Closing, including product liability, infringement claims and any related claims and litigation arising prior to, on or after the Closing Date;
(vi) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any of Seller’s liabilities or obligations of any kind to any Business Employees or former employee of Seller, including any liabilities or obligations arising prior to the Closing with respect to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule);
(vii) any liability or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Date;
(viii) any of Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Laws;
(ix) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct of the Business or any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents or advisors on or periods prior to the Closing Date;
(xc) any All obligations of Seller’s liabilities Seller for borrowed money, or obligations for Indebtedness;
(xi) any liabilities or obligations in respect of any of the Excluded Assets (including under any contracts, leases, commitments or understandings related thereto);
(xii) any of Seller’s liabilities or obligations which Buyer may become liable for as a result of or incurred in connection with the failure purchase, lease or acquisition of any assets, and any obligations of a similar nature incurred by Buyer Seller;
(d) Any accounts or notes payable or similar indebtedness incurred by Seller;
(e) Any claims, demands, actions, suits, legal proceedings, obligations or liabilities arising from Seller’s operation of the Business prior to the Closing, or arising from any other business or operations of Seller conducted prior to the Closing, whether such claims, demands, actions, suits, legal proceedings, obligations or liabilities are presently pending or threatened or are threatened or asserted at any time after the date hereof and whether before or after the Closing;
(f) Any claims, demands, actions, suits, legal proceedings, obligations or liabilities arising out of any fundraising by the Seller and any sale of securities in the Seller to comply with investors in, or shareholders of, the Seller;
(g) Any liabilities arising out of the termination by Seller of any bulk sales or bulk transfers laws of its employees in anticipation or as a result of any “defacto merger” consequence of, or “successor-in-interest” theories of liability;
(xiii) any of Seller’s liabilities or obligations with respect to amounts disputed by Seller and not paid to following consummation of, the landlords of the properties listed on the attached Leased Real Property Scheduletransactions contemplated hereby; and
(xivh) any other Any liabilities or obligations described in clause (ii) of Seller not expressly assumed by Buyer pursuant to Section 2.2(a) above7.7 below.
Appears in 1 contract
Liabilities Not Assumed. Notwithstanding anything to Except for the contrary in this Agreementpurchase price and the amount or percentage of royalties, the terms of which are set forth below, Seller agrees that Buyer shall will not assume or in perform, and Seller shall remain responsible for and shall indemnify, hold harmless and defend Buyer from and against, any way become liable for any and all liabilities and obligations of Seller’s debts, liabilities or obligations of any nature whatsoever (other than the Assumed Liabilities), whether accrued, absolute, contingent or otherwise, whether known or unknown, whether due or to become due, whether related to the Business or the Purchased Assets and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including clauses (i) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”):
(i) any of Seller’s such liabilities or obligations under this Agreementarise or are asserted, the Schedules attached hereto and any other agreements entered into by Seller in connection with the transactions contemplated by this Agreement;
(ii) any of Seller’s liabilities or obligations for expensesincluding, fees or Taxes 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, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedulewithout limitation, any liability obligations or obligation liabilities of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(iv) any liability or obligation under or with respect to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liability;
(v) any liability or obligation with respect to any products or services that were marketed or sold prior to the Closing, including product liability, infringement claims and any related claims and litigation arising prior to, on or after the Closing Date;
(vi) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any of Seller’s liabilities or obligations of any kind to any Business Employees or former employee of Seller, including any liabilities or obligations arising prior to the Closing with respect to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule);following:
(viia) any liability or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Date;
(viii) any of Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation of any All federal, state, local local, foreign or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by other taxes applicable to Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Laws;
(ix) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct of the Business or any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents or advisors on or for periods prior to the Closing Date;
(xb) Injuries to or the death of any person, or any employee of Seller’s liabilities , that has occurred or obligations for Indebtedness;
(xi) any liabilities or obligations in respect of any of the Excluded Assets (including under any contractsmay occur, leasesprior to Closing, commitments or understandings related thereto);
(xii) any of Seller’s liabilities or obligations which Buyer may become liable for as a result of or in connection with the failure Business or any other operations engaged in by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liabilitySeller, even if not discovered until after the Closing Date;
(xiiic) All liens, claims and encumbrances on any of the Purchased Assets and all obligations and liabilities secured thereby;
(d) All obligations of Seller for borrowed money, or incurred in connection with the purchase, lease or acquisition of any assets, and any obligations of a similar nature incurred by Seller;
(e) Any accounts or notes payable or similar indebtedness incurred by Seller;
(f) Any claims, demands, actions, suits, legal proceedings, obligations or liabilities arising from Seller’s liabilities or obligations with respect to amounts disputed by Seller and not paid operation of the Business prior to the landlords Closing, or arising from any other business or operations of Seller conducted prior to the properties listed on Closing, whether such claims, demands, actions, suits, legal proceedings, obligations or liabilities are presently pending or threatened or are threatened or asserted at any time after the attached Leased Real Property Scheduledate hereof and whether before or after the Closing; and
(xivg) Any liabilities arising out of the termination by Seller of any other liabilities of its employees in anticipation or obligations of Seller not expressly assumed by Buyer pursuant to Section 2.2(a) aboveas a consequence of, or following consummation of, the transactions contemplated hereby.
Appears in 1 contract
Liabilities Not Assumed. Notwithstanding anything to the contrary in this Agreement, Buyer none of the Buyers nor any of their Affiliates shall not assume or in any way become liable otherwise be responsible for any Liabilities of Seller’s debts, liabilities Seller (including any predecessor of Seller or obligations any prior owner of any nature whatsoever (other than all or part of the Assumed Liabilities)Diagnostic Business) of whatever nature, whether accruedpresently in existence or arising hereafter, absolutewhich are not Assumed Liabilities (collectively, contingent or otherwise, whether known or unknown, whether due or to become due, whether related to the Business or the Purchased Assets and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including clauses (i) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”):). Seller shall be responsible for the Excluded Liabilities. Without limiting the foregoing, Excluded Liabilities shall include the following Liabilities:
(a) all Liabilities to the extent arising out of or relating to the operation or conduct by Seller of any business other than the Diagnostic Business;
(b) all Liabilities to the extent arising out of or relating to any Excluded Assets;
(c) (i) any of Seller’s liabilities or obligations under this Agreement, the Schedules attached hereto and any other agreements entered into by Seller in connection with the transactions contemplated by this Agreement;
(ii) any of Seller’s liabilities or obligations for expenses, fees or Taxes 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, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(iv) any liability or obligation under or with respect related to any Seller Employee Benefit Plan current, former or any other employee benefit planprospective employees, program, policy directors or arrangement presently independent contractors of Sellers whether or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any not such ERISA Affiliate has any liability;
(v) any liability or obligation with respect to any products or services that were marketed or sold prior to the Closing, including product liability, infringement claims and any related claims and litigation arising Liabilities arise prior to, on or after the Closing DateDate and (ii) all Liabilities to or in respect of any Key Individual arising on or prior to the Closing;
(vid) except all Liabilities arising from any misclassification by Seller prior to the Closing of (i) any Person or Employee as set forth on the Accrued Liabilities an independent contractor rather than as an employee, including liability for statutory employee deductions and Assumed Payables Schedule, statutory employer liabilities and for any claims to compensation in lieu of notice of termination of services in excess of amounts prescribed in such independent contractors written terms of engagement; or (ii) any Employee leased from another employer;
(e) all Indebtedness of Seller’s liabilities or obligations of any kind ;
(f) all Liabilities to any Business Employees broker, finder or former employee agent for any investment banking or brokerage fees, finder’s fees or commission and any other fees and expenses payable by Seller pursuant to Section 13.5;
(g) (i) all Liabilities of SellerSeller for Taxes, including any liabilities Taxes related to the Diagnostic Business or obligations the Transferred Assets attributable to any taxable period (or portion thereof) ending on or prior to the Closing Date, (ii) all Liabilities of Seller for Taxes arising in connection with the consummation of the Transactions;
(h) (i) all Accounts Payable arising out of, relating to or incurred in connection with the Diagnostic Business or the Transferred Assets prior to the Closing Date, (even is such Liabilities are invoices after the Closing) which are not set forth in Schedule 2.3(b), and (ii) all other Liabilities to the extent arising out of, relating to or incurred in connection with the Diagnostic Business or the Transferred Assets, arising on or prior to the Closing (including any condition arising or in existence prior to the Closing with respect to the exempt or non-exempt status of any Business Employee or Employee Bonuses Transferred Assets), except to the extent that such other Liabilities referred to in this clause (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed ii) are included in the Assumed Liabilities pursuant to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule)Section 2.3;
(viii) any liability or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first all Liabilities resulting from, arising on or before the Closing Date;
(viii) any of Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decreeout of, or (C) arising under any Environmental Laws;
(ix) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct of the Business or any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents or advisors on or prior to the Closing Date;
(x) any of Seller’s liabilities or obligations for Indebtedness;
(xi) any liabilities or obligations in respect of any of the Excluded Assets (including under any contracts, leases, commitments or understandings related thereto);
(xii) any of Seller’s liabilities or obligations which Buyer may become liable for as a result of or in connection with the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liability;
(xiii) any of Seller’s liabilities or obligations with respect to amounts disputed by Seller and not paid to the landlords of the properties listed based on the attached Leased Real Property Schedulelitigation matter against BioSino in China; and
(xivj) any other liabilities or obligations all Liabilities of Seller not expressly assumed arising from or relating to infringement, misappropriation, or other violation or unauthorized use of any Intellectual Property Rights owned by Buyer pursuant any Person that result from, arise out of, or are based on (i) the operation of the Diagnostic Business prior to Section 2.2(athe Closing, or (ii) abovethe use, testing, sale, import, export and/or manufacture of Diagnostic Products, prior to the Closing.
Appears in 1 contract
Sources: Asset Purchase Agreement
Liabilities Not Assumed. Notwithstanding anything to Other than the contrary in this AgreementAssumed Liabilities, Buyer shall not assume or in any way become liable otherwise be responsible for any other Liabilities of Seller (including any predecessor of Seller or any prior owner of all or part of its businesses and assets) of whatever nature, whether presently in existence or arising hereafter (collectively, the “Excluded Liabilities”). Seller shall be responsible for the Excluded Liabilities, which shall be paid, performed and discharged by Seller’s debts. Without limiting the foregoing, liabilities or obligations Excluded Liabilities shall mean every Liability of any nature whatsoever (Seller other than the Assumed Liabilities), whether accrued, absolute, contingent including:
(a) all Liabilities of Seller arising from events and circumstances occurring on or otherwise, whether known prior to the Closing;
(b) those Liabilities related to the Business Contracts arising from events and circumstances occurring on or unknown, whether due or prior to become due, whether the Closing;
(c) all Liabilities related to the Business or the Purchased Acquired Assets and whether disclosed on the Schedules attached hereto, and regardless of when incurred or by whom asserted, including clauses (i) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”):
(i) any of Seller’s liabilities occurring at or obligations under this Agreement, the Schedules attached hereto and any other agreements entered into by Seller in connection with the transactions contemplated by this Agreement;
(ii) any of Seller’s liabilities or obligations for expenses, fees or Taxes 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, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(iv) any liability or obligation under or with respect to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liability;
(v) any liability or obligation with respect to any products or services that were marketed or sold prior to the Closing, including product liability, infringement claims and any related claims and litigation whether currently in existence or arising prior to, on or after the Closing Datehereafter;
(vid) except as set forth on all Liabilities related to a Seller Benefit Plan;
(e) all Liabilities relating to trade payables that are not Assumed Liabilities or intercompany payables, but only to the Accrued Liabilities and Assumed Payables Schedule, any extent not included in the calculation of Seller’s liabilities or obligations of any kind to any Business Employees or former employee of Seller, including Net Tangible Assets;
(f) any liabilities or obligations arising prior for Taxes relating to the Business, the Acquired Assets or the Assumed Liabilities for Pre-Closing with respect to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule)Tax Period;
(viig) any liability or obligation relating all Liabilities related to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first Employees of Seller arising on or before the Closing Date;
(viii) any of Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Laws;
(ix) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct of the Business or any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents or advisors from events and circumstances occurring on or prior to the Closing DateClosing;
(xh) all Liabilities related to any claim by a stockholder of Seller’s liabilities or obligations for Indebtedness;
(xi) any liabilities or obligations in respect of any of the Excluded Assets (including under any contracts, leases, commitments or understandings related thereto);
(xii) any of Seller’s liabilities or obligations which Buyer may become liable for as a result of or in connection with the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liability;
(xiii) any of Seller’s liabilities or obligations with respect to amounts disputed by Seller and not paid to the landlords of the properties listed on the attached Leased Real Property Schedule; and
(xivi) any other liabilities or obligations of Seller not expressly assumed by Buyer pursuant all Liabilities related to Section 2.2(a) aboveIndebtedness remaining unpaid after Closing.
Appears in 1 contract
Liabilities Not Assumed. Notwithstanding anything to the contrary in this Agreement, Buyer shall not assume or in any way become liable Except for any of Seller’s debts, liabilities or obligations of any nature whatsoever (other than the Assumed Liabilities), whether Buyers assume no past, present or future obligations or liabilities (known, unknown, accrued, absolute, contingent or otherwise, whether known or unknown, whether due or to become due, whether related to the Business or the Purchased Assets and whether disclosed on the Schedules attached heretocontingent) of Sellers, and regardless of when or by whom asserted, including clauses (i) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”):
(i) any of Seller’s liabilities or obligations under this Agreement, the Schedules attached hereto and any other agreements entered into by Seller in connection with the transactions contemplated by this Agreement;
(ii) any of Seller’s liabilities or obligations for expenses, fees or Taxes 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, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(iv) any liability or obligation under or with respect to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liability;
(v) any shall have no liability or obligation with respect to any products such liability or services that were marketed or sold prior obligation of Sellers other than the Assumed Liabilities (all such liabilities of Sellers other than the Assumed Liabilities are herein referred to as the Closing"Excluded Liabilities"). The Excluded Liabilities include, including product liabilitywithout limitation, infringement claims and the following: (i) any related claims and litigation arising prior to, on or after the Closing Date;
(vi) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any of Seller’s liabilities or obligations of any kind Sellers arising from or relating to any Business Employees violation of Laws by Sellers including, but not limited to, Laws relating to environmental conditions at any properties owned or former employee of Seller, including used by Sellers prior to the Closing Date and any liabilities or obligations of Sellers under or pursuant to environmental laws arising prior to the Closing with respect to the exempt from or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule);
(vii) any liability or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Date;
(viii) any of Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Laws;
(ix) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct of the Business or any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents or advisors on or Sellers' operations prior to the Closing Date;
; (x) any of Seller’s liabilities or obligations for Indebtedness;
(xiii) any liabilities or obligations of Sellers related to any Benefit Plans maintained by Sellers prior to the Closing Date, except, and only to the extent that, any such liabilities and obligations have been expressly assumed by Buyers pursuant to the Addendum as provided in respect of Section 3.08; and (iii) [THIS PROVISION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION AND IS SUBJECT TO A REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO 17 CFR SECTION 240.24b2] Sellers shall (a) pay and discharge, and (b) Sellers and Parent, jointly and severally, shall indemnify and defend Buyers and hold them harmless from and against any Damages relating to or arising out of the Excluded Assets (including under any contracts, leases, commitments or understandings related thereto);
(xii) any of Seller’s liabilities or obligations which Buyer may become liable for as a result of or in connection with the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liability;
(xiii) any of Seller’s liabilities or obligations with respect to amounts disputed by Seller and not paid to the landlords of the properties listed on the attached Leased Real Property Schedule; and
(xiv) any other liabilities or obligations of Seller not expressly assumed by Buyer pursuant to Section 2.2(a) above.Liabilities. [THIS PROVISION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION AND IS SUBJECT TO A REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO 17 CFR SECTION 240.24b2]
Appears in 1 contract
Sources: Asset Purchase Agreement (Bucyrus International Inc)
Liabilities Not Assumed. Notwithstanding anything to Except for the contrary in this AgreementAssumed Obligations, Buyer shall does not assume or in any way become liable for any of Seller’s debts, liabilities or obligations of any nature whatsoever (other than the Assumed Liabilities), whether accrued, absolute, contingent or otherwise, whether known or unknown, whether due or to become due, whether related to the Business or the Purchased Assets and whether disclosed on the Schedules attached heretoassume, and regardless of when or will not be deemed by whom asserted, including clauses (i) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”):
(i) any of Seller’s liabilities or obligations under this Agreement, the Schedules attached hereto execution and any other agreements entered into by Seller in connection with the transactions contemplated by this Agreement;
(ii) any of Seller’s liabilities or obligations for expenses, fees or Taxes incident to or arising out of the negotiation, preparation, approval or authorization delivery of this Agreement or the consummation (or preparation for the consummation) of the transactions contemplated hereby (including all attorneys’ and accountants’ feesto have assumed, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(iv) any liability or obligation under or with respect to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liability;
(v) any liability or obligation with respect to any products or services that were marketed or sold prior to the Closing, including product liability, infringement claims and any related claims and litigation arising prior to, on or after the Closing Date;
(vi) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any of Seller’s liabilities or obligations of any kind to any Business Employees or former employee of Seller, including any liabilities or obligations arising prior to the Closing with respect to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule);
(vii) any liability or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Date;
(viii) any of Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Laws;
(ix) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct of the Business or any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents or advisors on or prior to the Closing Date;
(x) any of Seller’s liabilities or obligations for Indebtedness;
(xi) any liabilities or obligations in respect of any of the Excluded Assets (including under any contracts, leases, commitments or understandings related thereto);
(xii) any of Seller’s liabilities or obligations which Buyer may become liable for as a result of or in connection with the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liability;
(xiii) any of Seller’s liabilities or obligations with respect to amounts disputed by Seller and not paid to the landlords of the properties listed on the attached Leased Real Property Schedule; and
(xiv) any other liabilities or obligations of Seller of any kind or nature whatsoever, regardless of whether required by generally accepted accounting principles to be reflected on a balance sheet or disclosed in the related notes (the "Retained Obligations"). Without limiting the generality of the foregoing, the Retained Obligations include and Buyer shall not expressly assumed assume nor shall Buyer be liable for: (i) any liabilities or obligations of Seller relating to the Excluded Assets; (ii) all obligations and liabilities of Seller arising out of the violation by Buyer pursuant Seller of any Environmental Laws (as defined below) or for the Release (as defined below) of any Hazardous Materials (as defined below) (including, without limitation those arising out of or related to the Studio Site or leased real property); (iii) any liabilities or obligations of Seller to any employees of Seller or its affiliates not employed by Buyer; (iv) any liability relating to the employment of current or former employees of the Station prior to the Closing, including but not limited to any liabilities or obligations of Seller for severance, accrued vacation or sick leave except as set forth in Section 2.2(a5.6 hereof or any liabilities under or in respect of any Employee Benefit Plan (as hereinafter defined); (v) aboveexcept for the Station Contract with The Daily Buzz, LLC and any other Station Contracts listed on SCHEDULE 1.1(D), any obligations or liabilities of Seller to any other business unit of Seller, any affiliate of Seller, any director or officer of Seller or any of its affiliates, or the holder of any equity or ownership interest in Seller or any of its affiliates; (vi) any litigation, proceeding, or claim by any Person (defined below) to the extent relating to the business or operations of the Station prior to the Effective Time, whether or not such litigation or proceeding or claim is pending, threatened or asserted before, on or after the Effective Time; (vii) any liability for income or other taxes relating to the Station pertaining to the period prior to the Effective Time; (viii) any liability in respect of any note, bond or indebtedness for borrowed money; or (ix) any liability or sanctions imposed by the FCC resulting from violation(s) by the Station of FCC rule(s) prior to the Effective Time.
Appears in 1 contract
Sources: Asset Purchase Agreement (Emmis Communications Corp)
Liabilities Not Assumed. Notwithstanding anything to the contrary contained in this Agreement, Buyer it is expressly agreed that Purchasers will not be required to assume, and shall not assume assume, at the Closing, and the Seller shall be solely responsible for and shall pay, perform and discharge or in any way become liable for any of Seller’s debtsshall cause to be paid, liabilities or obligations of any nature whatsoever (other than the Assumed Liabilities)performed and discharged, whether accrued, absolute, contingent or otherwise, whether known or unknown, whether due or to become promptly when due, whether related to any obligations or liabilities of Seller not specifically set forth in this Agreement, including, without limitation, the Business or the Purchased Assets and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including clauses (i) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”):following;
(i) any and all liabilities, obligations, costs and expenses arising out of Seller’s liabilities or obligations under this Agreement, the Schedules attached hereto and any other agreements entered into by Seller incurred in connection with any transaction, event, act or omission occurring prior to the transactions contemplated by this AgreementClosing Date, and any claims, suits or proceedings, and any judgments or settlements arising from any such claims, suits or proceedings, with respect thereto, except as may be related to the repair, maintenance or condition of the Purchased Assets or otherwise under Paragraph 8C;
(ii) any of Seller’s liabilities or obligations for expenses, fees or Taxes 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, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof's accounts payable;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller Seller's indebtedness for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxesborrowed money;
(iv) any liability federal, state or obligation under local taxes relating to the Seller's business or with respect to any Seller Employee Benefit Plan property or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to payable by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liability;
(v) any liability or obligation with respect to any products or services that were marketed or sold prior to the Closing, including product liability, infringement claims and any related claims and litigation arising prior to, on or after the Closing Date;
(vi) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any of Seller’s liabilities or obligations of any kind to any Business Employees or former employee of Seller, including any liabilities or obligations arising prior to the Closing with respect to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule);
(vii) any liability or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Date;
(viii) any of Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Laws;
(ix) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct of the Business or any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents or advisors for periods ending on or prior to the Closing Date;
(xv) liabilities relating to any Benefit Plan, including, without limitation, withdrawal liability or contributions with respect to any multi-employer plan; liability due to the Pension Benefit Guaranty Corporation, or any beneficiary on account of Seller’s the termination of any pension plan; severance benefits arising out of the transactions provided for in this Agreement; and liabilities or obligations for Indebtednessaccrued to the Closing Date under any pension plan;
(xivi) any liabilities or obligations in respect of any of the Excluded Assets (including under any contractsSeller to holders of season or trip passes, leasesif any, commitments or understandings related thereto)issued by the Seller, for use at Seller's premises, except as specified on Exhibit E attached hereto;
(xiivii) any all legal, accounting and other expenses (including, without limitation, taxes of Seller’s liabilities or obligations which Buyer may become liable for as a result of or every kind, nature and description) incurred in connection with the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result negotiation, approval and performance of any “defacto merger” or “successor-in-interest” theories of liability;
(xiii) any of Seller’s liabilities or obligations with respect to amounts disputed by Seller this Agreement and not paid to the landlords of the properties listed on the attached Leased Real Property Scheduletransactions contemplated hereby; and
(xivviii) any other liabilities or obligations of Seller not expressly assumed by Buyer pursuant to Section 2.2(a) abovethe litigation matters identified on Exhibit G attached hereto.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Clearview Cinema Group Inc)
Liabilities Not Assumed. Notwithstanding Except as set forth in Section 1.5, Buyer shall not assume and shall not be responsible to pay, perform or discharge any other obligations, liabilities, contracts or commitments of Seller of any kind or nature whatsoever (the "Excluded Liabilities"). Seller shall pay and satisfy when due all Excluded Liabilities. Without limiting the generality of the foregoing and notwithstanding anything to the contrary in this Agreement, the Excluded Liabilities shall include, but not be limited to, the following:
(a) any obligations or liabilities of Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement and the transactions contemplated hereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers, brokers and others to the extent such fees and expenses exceed the amounts assumed by Buyer shall as set forth in Section 1.5 of the Agreement;
(b) any liabilities of Seller under those leases, contracts, insurance policies, commitments, sales orders, purchase orders, Permits and Environmental Permits (as defined in Article IX) which are not assume assigned to Buyer pursuant to the provisions of this Agreement; any liabilities for retrospective or similar insurance premium adjustments;
(c) any liabilities of Seller in connection with or arising out of the transfer or assignment of any lease, contract, commitment, or other agreement, including, without limitation, under any computer software agreement;
(d) any liabilities of Seller under collective bargaining agreements pertaining to the Employees; any liabilities of Seller to pay severance benefits to Employees of Seller whose employment is terminated prior to the Effective Date or in connection with or following the sale of the Acquired Assets pursuant to the provisions hereof; or any way become liable liability under any Federal or state civil rights or similar law, or the so-called "WARN Act", resulting from the termination of employment of employees;
(e) product warranty and indemnity liabilities of Seller with respect to products shipped on or prior to the Effective Date and products constituting finished goods inventory as of the Effective Date whether such warranty and indemnity liabilities arise pursuant to the assumed contracts or otherwise;
(f) any product liability or similar claim for injury to person or property which arises out of or is based upon any express or implied representations, warranty, agreement or guarantee made by 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 Effective Date;
(g) any obligations or liabilities of Seller arising under or in connection with any Employee Plan (as defined in Section 3.17(a)), except for the vacation benefit payment assumed in Section 1.5(f);
(h) any obligations or liabilities of Seller for any present or past employees, agents or independent contractors of Seller’s debts, liabilities or obligations of including, without limitation, any nature whatsoever (other than the Assumed Liabilities), whether accrued, absolute, contingent or otherwise, whether known or unknown, whether due or to become due, whether related to the Business or the Purchased Assets workers' compensation claims and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including clauses (i) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”):employee severance claims;
(i) any of Seller’s obligations or liabilities or obligations under this Agreement, the Schedules attached hereto and any other agreements entered into by Seller in connection with the transactions contemplated by this Agreement;
(ii) any of Seller’s liabilities or obligations for expenses, fees or Taxes 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, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(iv) any liability or obligation under or with respect to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liability;
(v) any liability or obligation with respect to any products or services that were marketed or sold prior to the Closing, including product liability, infringement claims and any related claims and litigation arising prior to, on or after the Closing Date;
(vi) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any of Seller’s liabilities or obligations of any kind to any Business Employees or former employee of Seller, including any liabilities or obligations arising prior to the Closing with respect to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statementslitigation, disclosed to Buyer, or investigations and other matters set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule)3.23;
(viij) any liability obligations or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Date;
liabilities for any Taxes (viiias defined in Section 3.20) any of Seller’s liabilities ; excluding any California sales taxes arising from or obligations (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by associated with the conveyance and transfer from Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Laws;
(ix) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct Buyer of the Business or any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents or advisors on or prior to the Closing Date;
(x) any of Seller’s liabilities or obligations for Indebtedness;
(xi) any liabilities or obligations in respect of any of the Excluded Assets (including under any contracts, leases, commitments or understandings related thereto);
(xii) any of Seller’s liabilities or obligations which Buyer may become liable for as a result of or in connection with the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liability;
(xiii) any of Seller’s liabilities or obligations with respect to amounts disputed by Seller and not paid to the landlords of the properties listed on the attached Leased Real Property ScheduleAcquired Assets; and
(xivk) any other liabilities obligation or obligations liability of Seller of any kind or nature, whether now in existence or hereafter arising, not expressly assumed by Buyer pursuant to Section 2.2(a) aboveconstituting Assumed Liabilities.
Appears in 1 contract
Liabilities Not Assumed. Notwithstanding anything to the contrary Except as specifically provided in this AgreementAgreement and in Section 1.2(b) below, Buyer shall not assume, pay, honor, discharge or otherwise become responsible for any liabilities or obligations of Seller, and all such liabilities and obligations shall remain solely those of Seller, and Seller shall pay, perform and discharge, all such obligations and liabilities of Seller promptly when due in accordance with their terms. Without limiting the generality of the preceding sentence and except as specifically provided in Section 1.2(b), Buyer shall not assume or in any way become liable for any of Seller’s debts, liabilities or obligations of any nature whatsoever (other than the Assumed Liabilities), whether accrued, absolute, contingent or otherwise, whether known or unknown, whether due or to become due, whether related to the Business or the Purchased Assets and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including clauses (i) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”):responsible for:
(i) any of Seller’s liabilities or obligations under this Agreementof Seller including, without limitation, any personal obligations of any member or officer of Seller incurred in any capacity, including those arising out of any claim, litigation or proceeding, or any contract, license, commitment or other agreement relating to the Schedules attached hereto and operations of the Business or the occurrence of any other agreements entered into by Seller in connection with event on or before the transactions contemplated by this AgreementClosing including, without limitation, accounts payable of the Business;
(ii) any of Seller’s liabilities obligations, liabilities, undertakings, Liens (other than Permitted Liens) or obligations for expenses, fees restrictions to which the Assets or Taxes incident to the Business are subject arising on or arising out of before the negotiation, preparation, approval or authorization of Closing and that are not disclosed in writing in this Agreement arising on or before the consummation (or preparation for the consummation) of the transactions contemplated hereby (including all attorneys’ and accountants’ fees, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereofClosing;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation arising out of or related to past, present or future actions, litigations, suits, enforcement actions, proceedings, arbitrations or governmental or regulatory authority investigations, audits or otherwise, including, without limitation, demand or directive letters or correspondence, or of notice regarding any of the foregoing involving the Assets, the Business, Seller or any member of Seller for Taxes for any periodto the extent the foregoing relate to events, except for acts or omissions arising on or before the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico TaxesClosing;
(iv) any liability or obligation under obligation, in contract, tort or with respect to for violation of any Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to law by Seller or its ERISA Affiliatesany officer, manager, member, employee or with respect to which agent of Seller that arises out of or results from any act, omission, occurrence or state of facts arising on or before the Closing, and any liability or obligation, in contract, tort or for violation of any law by Seller or any such ERISA Affiliate has officer, manager, member, employee or agent of Seller that arises out of or results from any liabilityact, omission, occurrence or state of facts after the Closing;
(v) any liability compensation obligations or obligation with respect to any products or services that were marketed or sold prior to the Closing, including product liability, infringement claims and any related claims and litigation arising prior to, on or after the Closing Date;
(vi) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any of Seller’s liabilities or obligations of any kind to any Business Employees or former employee of Seller, including any liabilities or obligations arising prior to the Closing with respect to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule);
(vii) any liability or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Date;
(viii) any of Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Laws;
(ix) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct any employee benefit plan of the Business Seller or any other conduct liabilities or obligations of Seller to any employees with respect to his or her service to the Business on or before the Closing, including but not limited to any liability or obligation for any severance pay due any employee of Seller upon his or her termination of employment (except for any obligations under any Assigned Agreements between the Seller and any such employees arising after the Closing Date) and any and all accrued vacation and/or sick leave in excess of one hundred (100) hours per employee (i.e., the Buyer shall assume responsibility for up to one hundred hours (100) hours per employee for each such employee that is retained by the Buyer as of the Closing Date, provided, however, that the Seller recognizes and agrees, and shall cause such employees to recognize and agree, that each employee’s rights to such accrued vacation and/or sick leave shall be subject to the applicable policies of the Buyer, including, without limitation, any such policies requiring the employee to use such accrued vacation and/or sick time during a calendar or contract year and any such policies which govern the payments, if any, to which an employee would be entitled to for same should his or her employment with the Buyer be terminated), bonuses and other benefits to the extent that such liabilities or obligations are owed as a result of acts, omissions, occurrences or state of facts on or before the Closing. For purposes of determining eligibility for participation in Buyer’s benefit policies with respect to those employees of Seller retained by Buyer, Buyer shall credit each such employee for time employed by Seller.
(vi) any liabilities or obligations of Seller for indebtedness for borrowed money, Seller’s officersincluding, directorsbut not limited to, employeesany and all liabilities and obligations related to real estate financings and any and all obligations to any secured party in connection with any of the Assets;
(vii) subject to Section 1.3(c), consultantsany liabilities or obligations of Seller for any type of taxes owed by Seller whatsoever;
(viii) any and all Medicare, agents Medicaid and other third party payor obligations arising from any acts or advisors omissions for any period on or prior to the Closing Date;
(x) Closing, including without limitation, any retroactive denial of Seller’s liabilities claims, civil monetary penalties or obligations for Indebtedness;
(xi) any liabilities or obligations in respect of gain on sale that may be recognized by any of the Excluded Assets (including under any contracts, leases, commitments or understandings related thereto);
(xii) any of Seller’s liabilities or obligations which Buyer may become liable for foregoing as a result of or in connection with the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liability;transactions, contemplated herein; or
(xiii) any of Seller’s liabilities or obligations with respect to amounts disputed by Seller and not paid to the landlords of the properties listed on the attached Leased Real Property Schedule; and
(xivix) any other liabilities or obligations of Seller not expressly assumed by Buyer pursuant any nature relating to Section 2.2(a) abovethe operations of the Business or the occurrence of any event on or before the Closing, whether known or determined as of the Closing or unknown or undetermined as of the Closing.
Appears in 1 contract
Sources: Asset Purchase Agreement (Radiation Therapy Services Holdings, Inc.)
Liabilities Not Assumed. Notwithstanding anything to the contrary Except as expressly set forth in this Agreement, neither Buyer shall not nor Parent will assume or in perform any way become liable for Liabilities or obligations not specifically contemplated by Section 2(c) hereof nor any of Seller’s debts, liabilities or obligations of any nature whatsoever (other than the Assumed Liabilities), whether accrued, absolute, contingent or otherwise, whether known or unknown, whether due or to become due, whether related to the Business or the Purchased Assets following Liabilities and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including clauses (i) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”):obligations:
(i) any Any Liabilities arising from accounts payable of Seller’s liabilities or obligations under this Agreement, the Schedules attached hereto and any other agreements entered into by Seller in connection with the transactions contemplated by this Agreement;
(ii) any Any indebtedness of Seller’s liabilities Seller for money borrowed or obligations for expenses, fees or Taxes incident to or arising out of the negotiation, preparation, approval or authorization of this Agreement or the consummation (or preparation for the consummation) deferred purchase price of the transactions contemplated hereby (including all attorneys’ and accountants’ fees, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereofproperty or services or capital lease obligations;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability Any Liability or obligation of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(iv) any liability or obligation under or with respect to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has Person for any liability;
(v) taxable period and any liability Liability or obligation with respect to any products or services that were marketed or sold prior for Taxes attributable to the Closing, including product liability, infringement claims and any related claims and litigation arising prior to, on Acquired Assets for all periods (or after the Closing Date;
(viportions thereof) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any of Seller’s liabilities or obligations of any kind to any Business Employees or former employee of Seller, including any liabilities or obligations arising prior to the Closing with respect to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule);
(vii) any liability or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Date;
(viii) any of Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Laws;
(ix) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct of the Business or any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents or advisors ending on or prior to the Closing Date.
(iv) Any Liability of Seller for the unpaid Taxes of any Person prior to the Closing Date or as a consequence of the Closing (except as specifically provided in Section 5(i)), including Taxes imposed on Seller as a transferee or successor, by contract or otherwise;
(v) Any Liability or obligation of Seller as a result of any legal or equitable action or judicial or administrative proceeding initiated at any time caused by or resulting from any action that occurred or condition that existed prior to the Closing Date and in respect of anything done, suffered to be done or omitted to be done by Seller or any of its directors, officers, employees or agents, including without limitation any Liability arising from negligent performance of the Services;
(vi) Any Liability of Seller or any Shareholder for costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby;
(vii) Any Liability or obligation of Seller or any Shareholder under this Agreement or incurred in connection with the making or performance of this Agreement;
(viii) Any Liability or obligation of Seller arising out of any Employee Benefit Plan (including without limitation the Seller's Simple-IRA ▇▇▇irement plan) established or maintained by Seller for the benefit of past or present employees of Seller, or to which Seller contributes, or any Liability on the termination of any such plan;
(ix) Any Liability or obligation of Seller for making payments or providing benefits of any kind to their employees or former employees, including, without limitation, (A) as a result of the sale of the Acquired Assets or as a result of the termination by Seller of any Employee or decision by Buyer not to hire any such Employee, (B) any obligation to provide current or former employees of Seller (including individuals who become former Employees by reason of the consummation of the transactions contemplated by this Agreement) COBRA continuation coverage or continuation coverage under any other comparable law (state or federal), (C) any Liability or obligation in respect of medical and other benefits for existing and future retirees of Seller and for claims made after Closing in respect of costs and expenses incurred prior to Closing, (D) any Liability or obligation in respect of work-related employee injuries or worker's compensation claims by Employees or former Employees of Seller, and (E) any Liability or obligation in respect of employee bonuses payable to current or former employees of Seller, and (D) any Liability or obligation in respect of any severance payment or any other benefit due to Employees of Seller who do not become Employees of Buyer or Parent;
(x) Any Liability pertaining to Seller or its businesses and arising out of or resulting from noncompliance prior to the Closing Date with any of Seller’s liabilities laws, statutes, ordinances, rules, 9 regulations, orders, determinations, judgments or obligations for Indebtedness;directives, whether legislatively, judicially or administratively promulgated; and
(xi) any liabilities Any Liability or obligations in respect obligation of any of the Excluded Assets (including Seller under any contractslicenses, leases, commitments contracts or understandings related thereto);
(xii) any of Seller’s liabilities or obligations which Buyer may become liable for as a result of or in connection with the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liability;
(xiii) any of Seller’s liabilities or obligations with respect to amounts disputed by Seller and agreements not paid to the landlords of the properties listed on the attached Leased Real Property Schedule; and
(xiv) any other liabilities or obligations of Seller not expressly assumed by Buyer pursuant to Section 2.2(a) aboveSchedule 2(a)(iii).
Appears in 1 contract
Liabilities Not Assumed. Notwithstanding anything to the contrary in this Agreement, Buyer neither Buyer, Acquisition Sub, nor any of their respective Affiliates shall not assume or in any way become liable otherwise be responsible for any Liabilities of any Seller or its Subsidiaries or any of such Seller’s debts, liabilities or obligations such Seller’s Subsidiaries’ Affiliates (including any predecessor of any nature whatsoever Seller or its Affiliates or any prior owner of all or part of their respective businesses and assets) of whatever nature, whether presently in existence or arising hereafter, which are not Assumed Liabilities pursuant to Section 2.3 (collectively, the “Excluded Liabilities”). The Sellers shall be responsible for the Excluded Liabilities, which shall be paid, performed and discharged by the Sellers or their Affiliates. Without limiting the foregoing, Excluded Liabilities shall include the following Liabilities:
(a) all Liabilities to the extent (i) arising out of or relating to the operation of the conduct of any Seller or any of its Subsidiaries of any business other than the Assumed Liabilities)Business, or (ii) from the operation of the Business on or prior to the Closing;
(b) all Liabilities to the extent arising out of or relating to any Excluded Asset;
(i) all Liabilities related to any Employees who are not Transferred Employees (as defined in Section 9.1) whether or not such Liabilities arise prior to, on or after the Closing and (ii) except as expressly provided for in Article 9, all Liabilities to or in respect of any Transferred Employees arising on or prior to the Closing or in connection with or as a result of the Transactions;
(d) except as expressly provided for in Article 9, all Liabilities under or relating to Employee Benefit Plans or Employment Agreements, including any pension or retirement plan, severance plan, retention plan, workers compensation, medical, life insurance, disability or other welfare plan, expenses and benefits incurred or claimed in respect of any Employees, and any claims by such Employees (and their covered dependents) for benefits or claims, whether accruedor not such Liabilities arise prior to, absoluteon or after the Closing;
(e) any Indebtedness other than in respect of capital leases included in the Acquired Assets;
(f) any Liability to any broker, contingent finder or otherwiseagent for any investment banking or brokerage fees, whether known finder’s fees or unknown, whether due or commission and any other fees and expenses payable by Seller pursuant to become due, whether Section 15.5 with respect to the Transactions;
(g) (i) any Liability for Taxes related to the Business or the Purchased Acquired Assets and whether disclosed on the Schedules attached hereto, and regardless of when or by whom assertedattributable to any Pre-Closing Tax Period, including clauses (i) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”):
(i) such Taxes for any Straddle Period allocated in accordance with Section 10.2 of Seller’s liabilities or obligations under this Agreement, the Schedules attached hereto and including any other agreements entered into by Seller such Taxes arising in connection with the transactions contemplated by this Agreement;
, (ii) any other Liability of Seller’s liabilities any Seller or obligations any of its Subsidiaries for expensesTaxes for any Tax period or any portion thereof, fees and (iii) any Liability of any Seller or any of its Subsidiaries for unpaid Taxes incident of any Person under Treas. Reg. Section 1.1502-6 (or any similar provision of state, local, or non-U.S. law), as a transferee or successor, by Contract, by operation of Law or otherwise.
(h) Liabilities arising out of or relating to claims for death, personal injury, property damage or consequential, punitive, or other damages relating to or arising out of the negotiation, preparation, approval or authorization of this Agreement or the consummation (or preparation for the consummation) conduct of the transactions contemplated hereby Business prior to the Closing or relating to or arising out of any other business (including other than the Business) conducted by any of the Sellers or any of their Subsidiaries;
(i) all attorneys’ and accountants’ fees, brokerage fees and transfer Taxes)Liabilities arising out of or relating to the violation or alleged violation by any of the Sellers or any of their Subsidiaries of any Law;
(j) any obligation of any of the Sellers or any of their Subsidiaries to indemnify any Person, except for to the portion of the transfer Taxes to be paid extent assumed by Buyer pursuant to Section 6.7 hereof2.3(a);
(iiik) except as set forth all Liabilities under any Transferred Contract included within the Acquired Assets that arise on or after the Accrued Closing to the extent relating to any facts or circumstances existing or Liabilities and Assumed Payables Schedule, any liability arising on or obligation of Seller for Taxes for any period, except for prior to the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico TaxesClosing;
(ivl) any liability or obligation under or with respect to Liabilities of any Seller Employee Benefit Plan of the Sellers or any other employee benefit planof their Subsidiaries in connection with performing its obligations under this Agreement or in consummating the Transactions (including costs and expenses incurred in connection with this Agreement, program, policy or arrangement presently or formerly maintained or contributed the Transaction Agreements and the transactions contemplated hereby and thereby) except to by Seller or its ERISA Affiliates, or with respect the extent that Buyer has expressly agreed to which Seller or reimburse any such ERISA Affiliate has any liabilityof the Sellers for under this Agreement;
(vm) any liability Liabilities for any breach or obligation with respect failure to perform and covenants and agreements contained in, or made pursuant to, this Agreement, or, on or prior to the Closing any other contracts whether or not assumed hereunder, including any breach arising from assignment of Contracts without consent of third parties;
(n) all Liabilities related to or arising out of the infringement or misappropriation of any third party Intellectual Property Rights by Sellers arising out of the conduct of the Business prior to the Closing;
(o) claims of creditors of any of the Sellers or any of their Subsidiaries (other than the Assumed Liabilities);
(p) all Liabilities arising out of any Actions or proceedings relating to the Business or the Acquired Assets (i) pending as of the Closing, or (ii) commenced after the Closing and arising out of or relating to any products occurrence or services that were marketed event happening prior to the Closing;
(q) all Liabilities arising from or sold related to any loans made by any of the Sellers;
(r) all Liabilities of any of the Sellers and their Subsidiaries based upon its or their acts or omissions occurring after the Closing;
(s) all Accounts Payable and any other Liabilities to the extent arising out of or relating to or incurred in connection with the Business or the Acquired Assets prior to the Closing, including product liability, infringement claims and any related claims and litigation arising prior to, (i) the operation of the Business on or after prior to the Closing Date;
Closing, and (viii) except as set forth any condition arising on the Accrued Liabilities and Assumed Payables Schedule, any of Seller’s liabilities or obligations of any kind to any Business Employees or former employee of Seller, including any liabilities or obligations arising prior to the Closing with respect to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule)Acquired Assets;
(viit) all Liabilities arising from any misclassification by the Sellers and their Subsidiaries or any of their respective Affiliates prior to the Closing of (i) any Person or Employee as an independent contractor rather than as an employee, including liability for statutory employee deductions and statutory employer liabilities and for any claims to compensation in lieu of notice of termination of services in excess of amounts prescribed in such independent contractors written terms of engagement; (ii) any Employee leased from another employer; or obligation relating to workers’ compensation claims which were filed (iii) any Person or presented on Employee currently or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Date;formerly classified as exempt from overtime wages; and
(viiiu) any of Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Laws;
(ix) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct of if the Business or any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents or advisors MITA Closing does not occur on or prior to the Closing Date;
(x) any of Seller’s liabilities or obligations for Indebtedness;
(xi) any liabilities or obligations in respect of any Closing, all Liabilities of the Excluded Assets (including under any contracts, leases, commitments Fund or understandings related thereto);
(xii) any arising from transactions of Seller’s liabilities or obligations which Buyer may become liable for as a result of or in connection PES with the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liability;
(xiii) any of Seller’s liabilities or obligations with respect to amounts disputed by Seller and not paid to the landlords of the properties listed on the attached Leased Real Property Schedule; and
(xiv) any other liabilities or obligations of Seller not expressly assumed by Buyer pursuant to Section 2.2(a) aboveFund.
Appears in 1 contract
Liabilities Not Assumed. Notwithstanding anything to THE PARTIES AGREE THAT PURCHASER SHALL NOT ASSUME OR BE LIABLE FOR, AND SELLERS EXPRESSLY AGREES TO REMAIN LIABLE FOR AND INDEMNIFY PURCHASER WITH RESPECT TO, ALL LIABILITIES, OBLIGATIONS, CONTRACTS AND COMMITMENTS OF SELLERS OF EVERY KIND AND NATURE, WHETHER ACCRUED NOW OR HEREAFTER, WHETHER FIXED OR CONTINGENT, AND WHETHER KNOWN OR UNKNOWN, EXCEPT ONLY FOR THE OBLIGATIONS UNDER THE DISTRIBUTOR CONTRACTS AND VENDOR CONTRACTS SPECIFICALLY ASSIGNED TO PURCHASER HEREUNDER AND LISTED ON SCHEDULE 5.13 AS DISTRIBUTOR CONTRACTS AND VENDOR CONTRACTS TO BE ASSUMED BY PURCHASER. Without limiting the contrary in this Agreementgenerality of the foregoing and for emphasis only, Buyer Purchaser shall not assume or in any way become and shall not be liable for any of Seller’s debts, liabilities or obligations of any nature whatsoever (other than Sellers arising out of the Assumed Liabilities), whether accrued, absolute, contingent or otherwise, whether known or unknown, whether due or to become due, whether related to the Business or the Purchased Assets and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including clauses (i) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”):
following: (i) any tax liability, including income, sales, franchise, employment, excise or other taxes, as well as fines and penalties thereon, arising out of Seller’s liabilities the Assets prior to the Closing or obligations under this Agreement, the Schedules attached hereto and any other agreements entered into by Seller in connection with arising out of the transactions contemplated by this Agreement;
; (ii) any pending or threatened litigation, including but not limited to any claim which arises out of Seller’s liabilities the dispute set forth in Schedule 5.6 attached hereto; (iii) any actions arising out of product liability claims for Products manufactured by Sellers, regardless of when such Products are sold; (iv) environmental claims, actions or obligations for expenses, fees or Taxes incident to investigations based upon or arising out of the negotiation, preparation, approval any law or authorization regulation relating to pollution or protection of this Agreement health or the consummation handling of waste; and (or preparation for the consummationv) of the transactions contemplated hereby (including all attorneys’ and accountants’ fees, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes commissions payable to be paid by Buyer distributors pursuant to Section 6.7 hereof;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(iv) any liability or obligation under or with respect to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liability;
(v) any liability or obligation with respect to any products or services that were marketed or sold prior to the Closing, including product liability, infringement claims and any related claims and litigation arising prior to, on or after the Closing Date;
(vi) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any of Seller’s liabilities or obligations of any kind to any Business Employees or former employee of Seller, including any liabilities or obligations arising prior to the Closing with respect to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule);
(vii) any liability or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Date;
(viii) any of Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Laws;
(ix) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct 2 of the Business Distributor Contracts for sales of products, which appear on Schedules C attached thereto, by Sellers or any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents or advisors on or prior Purchaser to the Closing Date;
(x) any of Seller’s liabilities or obligations for Indebtedness;
(xi) any liabilities or obligations in respect of any of the Excluded Assets (including under any contracts, leases, commitments or understandings related thereto);
(xii) any of Seller’s liabilities or obligations which Buyer may become liable for as a result of or in connection with the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liability;
(xiii) any of Seller’s liabilities or obligations with respect to amounts disputed by Seller and not paid to the landlords of the properties listed on the attached Leased Real Property Schedule; and
(xiv) any other liabilities or obligations of Seller not expressly assumed by Buyer pursuant to Section 2.2(a) aboveend users.
Appears in 1 contract
Sources: Asset Purchase Agreement (Utah Medical Products Inc)
Liabilities Not Assumed. Notwithstanding anything to the contrary in this Agreement, neither Buyer nor any of its Subsidiaries shall not assume or in any way become liable otherwise be responsible for any Liabilities of Seller’s debts, liabilities Seller or obligations any of any nature whatsoever (other than the Assumed Liabilities)its Subsidiaries of whatever nature, whether accruedpresently in existence or arising hereafter, absolutewhich are not Assumed Liabilities (collectively, contingent or otherwise, whether known or unknown, whether due or to become due, whether related to the Business or the Purchased Assets and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including clauses (i) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”):). Seller shall be responsible for the Excluded Liabilities. Without limiting the foregoing, Excluded Liabilities shall include the following Liabilities:
(ia) all Liabilities of Seller or any of Seller’s liabilities or obligations under this Agreement, its Subsidiaries to the Schedules attached hereto and any other agreements entered into by Seller in connection with the transactions contemplated by this Agreement;
(ii) any of Seller’s liabilities or obligations for expenses, fees or Taxes incident to or extent arising out of the negotiation, preparation, approval operation or authorization conduct by Seller or any of this Agreement or its Subsidiaries of any business other than the consummation (or preparation for the consummation) of the transactions contemplated hereby (including all attorneys’ and accountants’ fees, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereofBusiness;
(iiib) except as set forth on the Accrued all Liabilities and Assumed Payables Schedule, any liability or obligation of Seller for Taxes for or any periodof its Subsidiaries to the extent arising out of any Excluded Asset;
(c) all Liabilities of Seller or any of its Subsidiaries to the extent related to any current, except for the portion former or prospective employees, directors or independent contractors of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereofSeller, including the Puerto Rico TaxesTransferred Employees, other than as contemplated by Article 9;
(ivd) any liability or obligation under or with respect to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which all Liabilities of Seller or any of its Subsidiaries under or relating to Employee Benefit Plans, whether such ERISA Affiliate has any liability;
(v) any liability or obligation with respect to any products or services that were marketed or sold prior to the Closing, including product liability, infringement claims and any related claims and litigation arising Liabilities arise prior to, on or after the Closing Date;
(vie) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, all Indebtedness of Seller or any of Seller’s liabilities its Subsidiaries;
(f) all Liabilities of Seller or obligations any of any kind its Subsidiaries to any Business Employees broker, finder or former employee of Selleragent for any investment banking or brokerage fees, including finder’s fees or commission and any liabilities or obligations arising prior other fees and expenses payable by Seller pursuant to the Closing Section 14.5 with respect to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule)Transactions;
(viig) any liability all Liabilities of Seller or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Date;
(viii) any of Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Laws;
(ix) any of Seller’s liabilities or obligations relating its Subsidiaries for Taxes related to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct of the Business or any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents the Acquired Assets attributable to any taxable period (or advisors portion thereof) ending on or prior to the Closing Date;
(x) any of Seller’s liabilities or obligations for Indebtedness;
(xi) any liabilities or obligations Date in respect of any of the Excluded Assets accordance with Section 10.1 (including under any contractsTransfer Taxes allocable to Seller pursuant to Section 10.2, leases, commitments or understandings related theretobut excluding any Transfer Taxes allocable to Buyer pursuant to Section 10.2);
(xiih) all Accounts Payable of Seller or any of Seller’s liabilities or obligations which Buyer may become liable for as a result of or in connection with the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liability;
(xiii) any of Seller’s liabilities or obligations with respect to amounts disputed by Seller and not paid to the landlords of the properties listed on the attached Leased Real Property Scheduleits Subsidiaries; and
(xivi) any other liabilities or obligations all Liabilities of Seller not expressly assumed by Buyer pursuant or any of its Subsidiaries to the extent (but only to the extent) arising from the operation or conduct of the Business prior to the Closing (other than the Liabilities set forth in Section 2.2(a) above2.3(a)).
Appears in 1 contract
Liabilities Not Assumed. Notwithstanding anything to the contrary in this Agreement, Buyer shall not assume or in any way become liable Except for any of Seller’s debts, liabilities or obligations of any nature whatsoever (other than the Assumed Liabilities), whether Buyers assume no past, present or future obligations or liabilities (known, unknown, accrued, absolute, contingent or otherwise, whether known or unknown, whether due or to become due, whether related to the Business or the Purchased Assets and whether disclosed on the Schedules attached heretocontingent) of Sellers, and regardless of when or by whom asserted, including clauses (i) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”):
(i) any of Seller’s liabilities or obligations under this Agreement, the Schedules attached hereto and any other agreements entered into by Seller in connection with the transactions contemplated by this Agreement;
(ii) any of Seller’s liabilities or obligations for expenses, fees or Taxes 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, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(iv) any liability or obligation under or with respect to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liability;
(v) any shall have no liability or obligation with respect to any products such liability or services that were marketed or sold prior obligation of Sellers other than the Assumed Liabilities (all such liabilities of Sellers other than the Assumed Liabilities are herein referred to as the Closing"Excluded Liabilities"). The Excluded Liabilities include, including product liabilitywithout limitation, infringement claims and the following: (i) any related claims and litigation arising prior to, on or after the Closing Date;
(vi) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any of Seller’s liabilities or obligations of any kind Sellers arising from or relating to any Business Employees violation of Laws by Sellers including, but not limited to, Laws relating to environmental conditions at any properties owned or former employee of Seller, including used by Sellers prior to the Closing Date and any liabilities or obligations of Sellers under or pursuant to environmental laws arising prior to the Closing with respect to the exempt from or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule);
(vii) any liability or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Date;
(viii) any of Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Laws;
(ix) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct of the Business or any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents or advisors on or Sellers' operations prior to the Closing Date;
; (x) any of Seller’s liabilities or obligations for Indebtedness;
(xiii) any liabilities or obligations of Sellers related to any Benefit Plans maintained by Sellers prior to the Closing Date, except, and only to the extent that, any such liabilities and obligations have been expressly assumed by Buyers pursuant to the Addendum as provided in respect Section 3.08; and ------------ (iii) the liabilities of Sellers related to the Planetary Swing-Drive Systems of the Walking Draglines as set forth in Section 7.06. Sellers shall (a) pay and ------------ discharge, and (b) Sellers and Parent, jointly and severally, shall indemnify and defend Buyers and hold them harmless from and against any Damages relating to or arising out of the Excluded Assets Liabilities. The obligation of Sellers and Parent to indemnify, defend and hold harmless Buyers from and against any such Damages arising from or relating to Sellers' failure to pay the Excluded Liabilities (including under any contracts, leases, commitments or understandings related thereto);
other than those described in clause (xiiiii) any of Seller’s liabilities or obligations which Buyer may become liable for as a result of or in connection with the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liability;
(xiiiabove) any of Seller’s liabilities or obligations with respect to amounts disputed by Seller and shall not paid be subject to the landlords of the properties listed on the attached Leased Real Property Schedule; and
(xiv) any other liabilities or obligations of Seller not expressly assumed by Buyer pursuant to maximum indemnification limits set forth in Section 2.2(a) above.11.07 hereof. -------------
Appears in 1 contract
Sources: Asset Purchase Agreement (Global Industrial Technologies Inc)
Liabilities Not Assumed. Notwithstanding If a liability or obligation of the Seller is not described with particularity by Section 1.4, it shall not be deemed to be a Liability that is assumed by the Purchaser under this Agreement. Without limiting the generality of the foregoing sentence, the Purchaser does not assume the following liabilities or obligations of the Seller:
(a) all deposit accounts designated as closed status 45 days prior to the Closing Date;
(b) any liability or obligation arising out of a non-▇▇▇ or non-▇▇▇▇▇ trust account maintained with the Seller by a customer of the Branches;
(c) any liability associated with traveler's checks, cashier's checks, or other official bank checks issued by the Seller prior to the Closing Date; and
(d) any liability or obligation for any employment, change-in-control or other severance agreement or any payments under any Seller employee benefit plan, including, but not limited to, bonus or incentive programs. Not withstanding anything to the contrary in this Agreement, Buyer other than the Liabilities, which Purchaser is expressly assuming pursuant to this Agreement, Purchaser shall not assume or in be bound by any way become liable for any duties, responsibilities, obligations or liabilities of Seller’s debts, liabilities or obligations of any nature whatsoever (other than the Assumed Liabilities)kind or nature, whether accruedknown, absoluteunknown, contingent or otherwise, whether known or unknownincluding, whether due or to become duewithout limitation, whether related to the Business or the Purchased Assets and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including clauses (i) through those attributable to any acts or omissions to act taken or omitted to be taken by Seller prior to the Closing Date and any legal proceedings that arise as a result thereof; (xivii) below for any Seller tax liability except as provided herein; (collectively referred to herein as the “Excluded Liabilities”):
(iiii) any obligation of Seller’s liabilities or obligations Seller to indemnify any person; (iv) for any liability of Seller under this Agreement, the Schedules attached hereto and any other agreements entered into by Seller in connection with the transactions contemplated by this Agreement;
; (iiv) any of Seller’s liabilities or obligations for expenses, fees or Taxes incident to relating or arising out of any deposit excluded under the negotiation, preparation, approval definition of Deposit Liabilities; (vi) those having to do with or authorization of this Agreement related to the employment or the consummation (or preparation for the consummation) of the transactions contemplated hereby (including all attorneys’ and accountants’ fees, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iii) except as set forth other similar relationship between Seller on the Accrued Liabilities one hand and Assumed Payables Scheduleits current, any liability former or obligation prospective employees, officers, directors, consultants and other agents, on the other hand, including, but not limited to, those relating to termination of Seller for Taxes for any periodemployment or refusal to hire, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereoftermination or severance payments, including the Puerto Rico Taxes;
(iv) any liability or obligation and compensation, and those occurring under or with respect related to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which plan of Seller or any such of its ERISA Affiliate has any liability;
affiliates, and (vvii) any liability those arising from circumstances, events or obligation with respect to any products or services that were marketed or sold prior to the Closing, including product liability, infringement claims and any related claims and litigation arising prior to, on or after the Closing Date;
(vi) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any of Seller’s liabilities or obligations of any kind to any Business Employees or former employee of Seller, including any liabilities or obligations arising conditions prior to the Closing with respect to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities Date and Assumed Payables Schedule);
(vii) any liability or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Date;
(viii) any of Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Laws;
(ix) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct of the Business or any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents or advisors on or prior to the Closing Date;
(x) any of Seller’s liabilities or obligations for Indebtedness;
(xi) any liabilities or obligations in respect of any of the Excluded Assets (including under any contracts, leases, commitments or understandings related thereto);
(xii) any of Seller’s liabilities or obligations which Buyer may become liable for as a result of or in connection with the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liability;
(xiii) any of Seller’s liabilities or obligations with respect to amounts disputed by Seller and not paid to the landlords of the properties listed on the attached Leased Real Property Schedule; and
(xiv) any other liabilities or obligations of Seller not expressly assumed by Buyer pursuant to Section 2.2(a) abovehereunder.
Appears in 1 contract
Sources: Branch Purchase Agreement (Premier Financial Bancorp Inc)
Liabilities Not Assumed. Notwithstanding anything Anything contained in this Agreement to the contrary in this Agreementnotwithstanding, Buyer Parties shall not assume or in any way become liable for any of Seller’s debtsassume, liabilities or and there shall be excluded from the Assumed Liabilities, the following (the "EXCLUDED LIABILITIES"): (i) all obligations of any nature whatsoever Seller to any other Seller, any Affiliate of any Seller (other than ATPG as described in Section 4.4(b)) or any director or officer of any Seller or of any Affiliate of any Seller; and (ii) any obligations and liabilities of any Seller of any kind, character or description whatsoever, known or unknown, contingent or otherwise, other than the Assumed Liabilities), whether accruedincluding, absolutewithout limitation, contingent or otherwise, whether known or unknown, whether due or to become due, whether related to the Business or the Purchased Assets and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including clauses (i) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”):
(iA) any of Seller’s and all liabilities or obligations under this Agreement, the Schedules attached hereto and any other agreements entered into by Seller in connection with the transactions contemplated by this Agreement;
(ii) any of Seller’s liabilities or obligations for expenses, fees or Taxes incident respect 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, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller for Taxes for any period, except for the period or portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(iv) any liability or obligation under or with respect to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liability;
(v) any liability or obligation with respect to any products or services that were marketed or sold prior to the Closing, including product liability, infringement claims and any related claims and litigation arising prior to, on or after the Closing Date;
(vi) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any of Seller’s liabilities or obligations of any kind to any Business Employees or former employee of Seller, including any liabilities or obligations arising prior to the Closing with respect to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule);
(vii) any liability or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising thereof ending on or before the Closing Date;
(viii) any of Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of all obligations, liabilities, commitments or responsibilities relating to any breach employees, independent contractors or alleged breach by Seller of any agreementPlans, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) any and all obligations, liabilities or responsibilities of Sellers arising under out of or relating to the breach by Sellers of any Environmental Laws;
Assigned Contract, except to the extent a reserve therefor is expressly reflected on the face of (ixand not solely in any notes to) the Closing Statement of Net Assets, and (D) any of Seller’s and all liabilities or obligations relating to any legal action, proceeding Transaction Expense or claim arising out Transfer Taxes that is the responsibility of or in connection with Seller’s conduct of the Business Sellers or any other conduct Affiliate of SellerSellers under the terms of this Agreement. Sellers shall pay, Seller’s officers, directors, employees, consultants, agents perform and discharge in a timely manner or advisors on or prior to the Closing Date;
(x) any of Seller’s liabilities or obligations shall make adequate provision for Indebtedness;
(xi) any liabilities or obligations in respect of any all of the Excluded Assets (including under Liabilities; PROVIDED, HOWEVER, that Sellers may contest, in good faith, any contracts, leases, commitments or understandings related thereto);
(xii) any claim of Seller’s liabilities or obligations which liability asserted by a third party in respect thereof so long as it shall have indemnified and have held harmless Buyer may become liable for as a result of or in connection with the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liability;
(xiii) any of Seller’s liabilities or obligations with respect to amounts disputed by Seller and not paid thereto pursuant to the landlords terms of the properties listed on the attached Leased Real Property Schedule; and
(xiv) any other liabilities or obligations of Seller not expressly assumed by Buyer pursuant to Section 2.2(a) abovethis Agreement.
Appears in 1 contract
Liabilities Not Assumed. Notwithstanding anything to Other than the contrary in Assumed Obligations, eHealth shall not assume by virtue of this Agreement, Buyer and shall not assume have no liability or in obligation for, any way become liable for any Liability of Seller’s debts, liabilities HBDC or obligations of any nature whatsoever its Subsidiaries (other than the Assumed Liabilities), whether accrued, absolute, contingent or otherwise, whether known or unknown, whether due or to become due, whether related to the Business or the Purchased Assets and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including clauses (i) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”):), including (without limitation) the Excess GRIC Liability and the other Liabilities listed below, and HBDC shall retain and pay, satisfy, discharge and perform all such Liabilities, including (without limitation) the following Excluded Liabilities:
(ia) any The Liability of Seller’s liabilities HBDC for commission advances other than as specifically set forth in Section 2.5, including without limitation the Liability of HBDC to GRIC for commission advances or obligations under this Agreement, the Schedules attached hereto and any other agreements entered into by Seller amounts in connection with the transactions contemplated by this Agreement;
(ii) any of Seller’s liabilities or obligations for expenses, fees or Taxes incident to or arising out excess 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, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iii) except as amount set forth on Schedule 2.5 (the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;“Excess GRIC Liability”). .
(ivb) Any Liability of HBDC as a result of any liability Action or obligation under or with respect to Proceeding initiated at any Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liability;
(v) any liability or obligation with respect to any products or services that were marketed or sold prior time to the Closing, including product liability, infringement claims and extent caused by any related claims and litigation arising prior to, on action or after the Closing Date;
(vi) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any of Seller’s liabilities inaction that occurred or obligations of any kind to any Business Employees or former employee of Seller, including any liabilities or obligations arising prior to the Closing with respect to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule);
(vii) any liability or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Date;
(viii) any of Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Laws;
(ix) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct of the Business or any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents or advisors condition that existed on or prior to the Closing Date;
(xc) any Any Liability of Seller’s liabilities or obligations HBDC for Indebtednesscosts and expenses incurred in connection with this Agreement and the transactions contemplated hereby;
(xid) Any Liability of HBDC under any liabilities Contract;
(e) Any Liability pertaining to HBDC’s business and arising out of or obligations resulting from noncompliance on or prior to the Closing Date with any laws, statutes, ordinances, rules, regulations, orders, determinations, judgments or directives, whether legislatively, judicially or administratively promulgated;
(f) Any Liability in respect of any accounts payable, or payable obligations of the Excluded Assets HBDC (including under any contracts, leases, commitments or understandings related theretoexcept as expressly set forth in Section 2.5);
(xiig) Any Liability for taxes of HBDC or any of Seller’s liabilities its Subsidiaries for any taxable period or obligations which Buyer may become portion thereof, or relating or attributable to the Transition Policies or the Lead Database for any taxable period or portion thereof, ending on and including the Closing Date; eHealth will be liable for as a result of any taxes for any taxable period or in connection with the failure by Buyer portion thereof, or Seller to comply with any bulk sales relating or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liability;
(xiii) any of Seller’s liabilities or obligations with respect to amounts disputed by Seller and not paid attributable to the landlords of Transition Policies or the properties listed Lead Database for any taxable period or portion thereof, beginning on and including the attached Leased Real Property Scheduleday after the Closing Date; and
(xivh) Any Liability of any other liabilities or obligations Subsidiary of Seller not expressly assumed by Buyer pursuant to Section 2.2(a) aboveHBDC.
Appears in 1 contract
Sources: Client Transition Agreement (Health Benefits Direct Corp)
Liabilities Not Assumed. Notwithstanding anything to the contrary in this Agreement, Buyer none of the Buyers nor any of their Affiliates shall not assume or in any way become liable otherwise be responsible for any Liabilities of Seller’s debts, liabilities Sellers or obligations any of their respective Affiliates (including any nature whatsoever (other than the Assumed Liabilities)predecessor of Sellers or their respective Affiliates or any prior owner of all or part of their respective businesses and assets) of whatever nature, whether accruedpresently in existence or arising hereafter, absolutewhich are not Assumed Liabilities (collectively, contingent or otherwise, whether known or unknown, whether due or to become due, whether related to the Business or the Purchased Assets and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including clauses (i) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”):). Sellers shall be responsible for the Excluded Liabilities. Without limiting the foregoing, Excluded Liabilities shall include the following Liabilities, notwithstanding any disclosure on the Sellers Disclosure Schedule:
(a) all Liabilities to the extent arising out of or relating to the operation or conduct by Sellers or any of their Subsidiaries of any business other than the AirCard Business;
(b) all Liabilities to the extent arising out of or relating to any Excluded Assets;
(c) (i) all Liabilities related to any current, former or prospective employees, directors or independent contractors of Sellers and their Affiliates who are not Transferred Employees whether or not such Liabilities arise prior to, on or after the Closing Date and (ii) all Liabilities to or in respect of any Transferred Employees arising on or prior to the Closing;
(d) all Liabilities arising from any misclassification by Sellers or any of their Affiliates prior to the Closing of (i) any Person or Employee as an independent contractor rather than as an employee, including liability for statutory employee deductions and statutory employer liabilities and for any claims to compensation in lieu of Seller’s liabilities or obligations under this Agreement, the Schedules attached hereto and any other agreements entered into by Seller notice of termination of services in connection with the transactions contemplated by this Agreement;
excess of amounts prescribed in such independent contractors written terms of engagement; (ii) any of Seller’s liabilities Employee leased from another employer; or obligations for expenses(iii) any Person or Employee currently or formerly classified as exempt from overtime wages;
(e) all Liabilities, fees or Taxes incident including any Liability to gross-up any Transferred Employee, solely relating to or arising out of the negotiation, preparation, approval or authorization payment by Sellers to any Offered Employees of this Agreement or any “excess parachute payments” within the consummation (or preparation for the consummation) meaning of Section 280G of the transactions contemplated hereby (including all attorneys’ and accountants’ fees, brokerage fees and transfer Taxes), except for the portion Code as a result of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereofTransactions;
(iiif) except as set forth on the Accrued all Liabilities and Assumed Payables Schedule, any liability or obligation for Wages of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(iv) any liability or obligation under or with respect to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liability;
(v) any liability or obligation with respect to any products or services that were marketed or sold Transferred Employees earned prior to the Closing;
(g) all Liabilities under or relating to the Employee Benefit Plans and/or Employee Non-Competition Agreements, including product liabilityany pension or retirement plan, infringement claims severance plan, retention plan, workers compensation, medical, life insurance, disability or other welfare plan, expenses and benefits incurred or claimed in respect of any current or former employee, director or independent contractor of Sellers or any of their Affiliates, and any related claims by such current or former employees, directors or independent contractors (and litigation arising their covered dependents) of Sellers or any of their Affiliates for benefits or claims, whether or not such Liabilities arise prior to, on or after the Closing Date;
(vih) except as set forth on the Accrued all Liabilities arising from or associated with or in connection with any Employee who is an Automatic Transfer Employee and Assumed Payables Schedule, not a Transferred Employee;
(i) all Indebtedness of Sellers or any of Seller’s liabilities or obligations of any kind their Affiliates;
(j) all Liabilities to any Business Employees broker, finder or former employee agent for any investment banking or brokerage fees, finder’s fees or commission and any other fees and expenses payable by Sellers pursuant to Section 13.5;
(k) (i) all Liabilities of SellerSellers or any of their Affiliates for Taxes, including any liabilities Taxes related to the AirCard Business or obligations the Acquired Assets attributable to any taxable period (or portion - 21 - thereof) ending on or prior to the Closing Date in accordance with Section 10.1, (ii) all Liabilities of Sellers or any of their Affiliates for unpaid Taxes of any person under Treas. Reg. Section 1.1502-6 (or any similar provision of state, local, or non-U.S. law), as a transferee or successor, by contract or otherwise and (iii) all Liabilities of Sellers or any of their Affiliates for Taxes arising in connection with the consummation of the Transactions (including any Transfer Taxes allocable to Sellers under Section 10.2);
(l) (i) all Accounts Payable arising out of, relating to or incurred in connection with the AirCard Business or the Acquired Assets prior to the Closing Date, and (ii) all other Liabilities to the extent arising out of, relating to or incurred in connection with the AirCard Business or the Acquired Assets, arising on or prior to the Closing (including any condition arising or in existence prior to the Closing with respect to the exempt Acquired Assets), except to the extent that such other Liabilities referred to in this clause (ii) are included in the Assumed Liabilities pursuant to paragraphs (b), (c), (e), (f), (g) and (h) of Section 2.3;
(m) all Liabilities of Sellers arising from or non-exempt status relating to infringement, misappropriation, or other violation or unauthorized use of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statementsIntellectual Property Rights owned by any Person that result from, disclosed to Buyerarise out of, or are based on (i) the operation of the AirCard Business prior to the Closing, or (ii) the use, sale, import, export and manufacture of AirCard Products, the Prime Transferred Technology or the Shared Technology (including the Non-Prime Transferred Technology and the Licensed Technology), prior to the Closing;
(n) all Liabilities relating to (i) repairs, exchanges, returns and warranty, merchantability and similar claims in respect of the AirCard Products sold or licensed by the AirCard Business prior to the Closing, to the extent such Liabilities exceed $2,060,912, (ii) AirCard Products that are stock rotated pursuant to the terms of the applicable Transferred Contract after the Closing that were sold or licensed by the AirCard Business prior to the Closing, (iii) AirCard Products that are price protected pursuant to the terms of the applicable Transferred Contract after the Closing that were sold or licensed by the AirCard Business prior to the Closing, (iv) rebates, discounts or tiered pricing pursuant to any programs commenced by Sellers and their Subsidiaries prior to the Closing, which are granted to customers in respect of AirCard Products sold or licensed by the AirCard Business prior to the Closing;
(o) all Liabilities resulting from, arising out of, or based on the litigation and indemnification matters set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule);
(viiSection 2.4(o) any liability or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Date;
(viii) any of Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Laws;
(ix) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct of the Business or any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents or advisors on or prior to the Closing Date;
(x) any of Seller’s liabilities or obligations for Indebtedness;
(xi) any liabilities or obligations in respect of any of the Excluded Assets (including under any contracts, leases, commitments or understandings related thereto);
(xii) any of Seller’s liabilities or obligations which Buyer may become liable for as a result of or in connection with the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liability;
(xiii) any of Seller’s liabilities or obligations with respect to amounts disputed by Seller and not paid to the landlords of the properties listed on the attached Leased Real Property Sellers Disclosure Schedule; and
(xivp) any other liabilities all Liabilities resulting from, arising out of, or obligations based on the Actions or claims described in Section 2.4(p) of Seller not expressly assumed by Buyer pursuant to Section 2.2(a) abovethe Sellers Disclosure Schedule (the “Specified Matters”).
Appears in 1 contract
Liabilities Not Assumed. Notwithstanding anything to the contrary in this Agreement, Buyer shall not and does not assume any liabilities, obligations or in any way become liable for any commitments of Seller’s debts, liabilities or obligations Seller of any nature whatsoever (other than the Assumed Liabilities)kind, whether accrued, absoluteknown or unknown, contingent or otherwise, whether known of whatsoever kind or unknownnature, whether due or to become due, whether related to the Business or the Purchased Assets and whether disclosed other than those Assumed Liabilities specifically identified on the Schedules attached SCHEDULE 3(b) hereto, which Schedule shall include only (a) the obligation of Seller under the License Agreement to pay royalties to 3M (as to which Seller is responsible for all obligations incurred by Seller prior to Closing); (b) the obligation to pay 3M the balloon payment in the amount of Eleven Thousand Seven Hundred Seventy-Nine Dollars and regardless Seventy-Nine cents ($11,779.79) on January 25, 1998; (c) the assumption of when up to $1,000 for accrued sick leave and vacation payable to employees of Seller who Buyer may employ following the Closing; and (d) any open purchase and/or sales orders of Seller as set forth on SCHEDULE 3(b). Any obligations or by whom assertedcommitments of Seller not identified on SCHEDULE 3(b) shall remain the sole responsibility of Seller and Seller and ▇▇▇▇▇▇▇▇ will jointly and severally indemnify and hold Buyer, including clauses its officers, directors and shareholders, and each of them, harmless from and against any and all such liabilities, expenses or obligations, including, but not limited to, (i) through deferred expenses, trade account liabilities and capitalized lease; (xivii) below product liability claims; (collectively referred iii) liabilities in respect of salaries, employee benefit plans, including obligations to herein as employees for bonus and/or severance payments upon the “Excluded Liabilities”):
sale of the Purchased Assets; (iiv) income, sales, transfer or other taxes, including taxes arising out of the transactions contemplated by this Agreement; (v) any of Seller’s liabilities claims related to environmental matters; or obligations under this Agreement, the Schedules attached hereto and any (vi) legal expenses or other agreements entered into by Seller in connection transaction costs associated with the transactions contemplated by this Agreement;
. Buyer may offer to hire, on its customary basis, any or all of the Employees (ii) defined herein), but Buyer shall not assume or be bound by any of Seller’s liabilities 's employment contracts or obligations for expenses, fees or Taxes 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, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(iv) any liability or obligation under or with respect to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liability;
(v) any liability or obligation with respect to any products or services that were marketed or sold prior to the Closing, including product liability, infringement claims and any related claims and litigation arising prior to, on or after the Closing Date;
(vi) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any of Seller’s liabilities or obligations of any kind to any Business Employees or former employee of Seller, including any liabilities or obligations arising prior to the Closing with respect to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule);
(vii) any liability or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Date;
(viii) any of Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Laws;
(ix) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct of the Business or any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents or advisors on or prior to the Closing Date;
(x) any of Seller’s liabilities or obligations for Indebtedness;
(xi) any liabilities or obligations in respect of any of the Excluded Assets (including under any contracts, leases, commitments or understandings related thereto);
(xii) any of Seller’s liabilities or obligations which Buyer may become liable for as a result of or in connection with the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liability;
(xiii) any of Seller’s liabilities or obligations with respect to amounts disputed by Seller and not paid such Employees. Buyer shall have no obligation whatsoever to the landlords hire or otherwise employ any or all of the properties listed on the attached Leased Real Property Schedule; and
(xiv) any other liabilities or obligations of Seller not expressly assumed by Buyer pursuant to Section 2.2(a) aboveEmployees.
Appears in 1 contract
Liabilities Not Assumed. Notwithstanding anything to the contrary in this Agreement, Buyer shall not assume or in any way become liable otherwise be responsible for any of Seller’s debtsthe Excluded Liabilities. The Excluded Liabilities shall be retained by and shall remain the sole responsibility of Medical Cannabis, liabilities SLAM and Medihemp respectively, and Seller shall pay, perform and discharge the Excluded Liabilities as and when due. “Excluded Liabilities” shall mean every Liability of Seller other than the Assumed Liabilities, including: · any Liability relating to, based in whole or obligations in part on events or conditions occurring or existing in connection with, or arising out of, the Business as operated prior to the Closing Date, or the ownership, possession, use, operation or sale or other disposition prior to the Closing Date of any nature whatsoever Acquired Assets (or any other assets, properties, rights or interests associated, at any time prior to the Closing Date, with the Business); · any Liability under the Assumed Contracts to the extent arising from any indemnification obligation, breach, default, misconduct, negligence or other form of noncompliance by Seller thereunder prior to the Closing Date; · any Liability arising from any Contract of Seller (other than the Assumed Liabilities), whether accrued, absolute, contingent or otherwise, whether known or unknown, whether due or to become due, whether related to the Business or the Purchased Assets and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including clauses (i) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”):
(i) any of Seller’s liabilities or obligations under this Agreement, the Schedules attached hereto and any other agreements entered into by Seller in connection with the transactions contemplated by this Agreement;
(ii) any of Seller’s liabilities or obligations for expenses, fees or Taxes 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, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(iv) any liability or obligation under or with respect to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liability;
(v) any liability or obligation with respect to any products or services that were marketed or sold prior to the Closing, including product liability, infringement claims and any related claims and litigation arising prior to, on or after the Closing Date;
(vi) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any of Seller’s liabilities or obligations of any kind to any Business Employees or former employee of Seller, including any liabilities or obligations arising prior to the Closing with respect to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule);
(vii) any liability or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented Contracts after the Closing Date but relate subject to claims and/or injuries first the limitations set forth herein), including the Excluded Contracts; · any Liability related to any Claim based in whole or in part on events or conditions occurring or existing in connection with, or arising on out of, or before otherwise relating to, the Closing Date;
(viii) Business as operated by Seller or any of Seller’s liabilities or obligations its Affiliates (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (Btheir respective predecessors-in-interest) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Laws;
(ix) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct of the Business or any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents or advisors on or prior to the Closing Date;
(x) any of Seller’s liabilities , or obligations for Indebtedness;
(xi) any liabilities the ownership, possession, use, operation, sale or obligations in respect other disposition prior to the Closing Date of any of the Excluded Acquired Assets (or any other assets, properties, rights or interests associated, at any time prior to the Closing Date, with the Business); · any Liability with respect to any Employee Plan or any Employee Benefit Arrangement of Seller (including under any contractsemployment, leasesseverance, commitments deferred compensation, retention or understandings termination agreement with any employee of Seller or relating to employee payroll, vacation, sick leave, workers compensation or unemployment benefits accrued through the Closing Date or thereafter; · any Liability arising out of or relating to any employment-related thereto);
(xii) claim or grievance of any current or former employee of Seller arising out of or relating to events occurring prior to the Closing Date; · any Liability of Seller to any stockholder or other equity holder or former stockholder or other former equity holder of Seller’s liabilities or obligations which Buyer may become liable ; · any Liability of Seller for as a result of or in connection with the Taxes; · any Liability arising from any failure by Buyer or Seller to comply with any bulk sales applicable Law or bulk transfers laws Order; · any Indebtedness of Seller (other than Assumed Liabilities as provided herein), including amounts owed to Affiliates of Seller; · any Liability relating to litigation of or as a result of any “defacto merger” involving Seller or “successor-in-interest” theories of liability;
(xiii) otherwise affecting any of Seller’s liabilities its assets; · any Liability of Seller under this Agreement or obligations any other Transaction Document; · any Liability of Seller arising in connection with respect the consummation of the Transactions; · any Liability of Seller to amounts disputed the extent relating to any property or facility presently or formerly owned, operated, leased or used by Seller or their corporate predecessors, including any such Liability arising under or relating to Environmental, Health and not paid Safety Laws; and · any other Liability relating to the landlords of the properties listed on the attached Leased Real Property Schedule; and
(xiv) any other liabilities or obligations of Seller not expressly assumed by Buyer pursuant to Section 2.2(a) aboveExcluded Assets.
Appears in 1 contract
Sources: Asset Purchase Agreement (American Cannabis Company, Inc.)
Liabilities Not Assumed. Notwithstanding anything Buyer will not assume or be liable for, and subject to the provisions of Section 7.02, Seller and Shareholder shall indemnify and hold Buyer harmless from, any of the following liabilities or obligations consisting of and, notwithstanding any implication to the contrary contained in this Agreement(c) above, Buyer shall not assume or in any way become liable for any of Seller’s debts, the following liabilities or obligations are "Unassumed Liabilities" for purposes of any nature whatsoever (other than the Assumed Liabilities), whether accrued, absolute, contingent or otherwise, whether known or unknown, whether due or to become due, whether related to the Business or the Purchased Assets and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including clauses (i) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”):this Agreement:
(i) any Any of the Seller’s 's liabilities or obligations under this Agreement, the Schedules attached hereto and any other agreements entered into by Seller in connection with the transactions contemplated by this Agreement;
(ii) any Any of the Seller’s 's liabilities or obligations for expenses, fees against which the Seller is insured or Taxes 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, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid otherwise indemnified by Buyer pursuant to Section 6.7 hereofsomeone other than Buyer;
(iii) except as set forth on Any of the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(iv) any liability or obligation under or with respect to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liability;
(v) any liability or obligation with respect to any products or services that were marketed or sold prior to the Closing, including product liability, infringement claims and any related claims and litigation arising prior to, on or after the Closing Date;
(vi) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any of Seller’s liabilities or obligations of any kind to any Business Employees or former employee of Seller, including any liabilities or obligations arising prior to the Closing with respect to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule);
(vii) any liability or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Date;
(viii) any of Seller’s 's liabilities or obligations (Aincluding penalties) arising under common or statutory law whether by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, including, but not limited to, violations of all environmental, or occupational health and safety laws of the United States or any sovereign entity, foreign or otherwise;
(Biv) arising Except for amounts included in the Accrued Current Liabilities under Subsection (c)(i) above, any liability or obligation of the Seller in respect of any amount of Tax, and specifically (but without limitation) Buyer will not assume or be liable for any liability for Tax imposed by reason of the sale or conveyance of the Purchased Assets to Buyer; it being understood and agreed that Buyer shall not be deemed to be Seller's transferee or successor with respect to any breach or alleged breach by such Tax and that Seller shall pay all transfer taxes with respect to the transfer of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Lawsthe Real Estate;
(ixv) Any liability or obligation of the Seller to any shareholder of Seller whatsoever, including, but not limited to the payment of dividends or the repurchase or other acquisition of any shares of its capital stock, and, except for amounts included in the Accrued Current Liabilities under Subsection (c)(i) above, any liability or obligation of Seller to any affiliate or any shareholder or entity or affiliate owned or controlled by any shareholder of Seller;
(vi) Except for amounts included in the Accrued Current Liabilities under Subsection (c)(i) above, any liability or obligation for any compensation or other amounts payable to any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct the employees of the Business or any other conduct of Seller, Seller’s including, but not limited to, salary, bonus, accrued vacation, fringe, pension or profit sharing benefits, or severance payments applicable to officers, directors, employees, consultants, agents directors or advisors on employees of the Seller or policies of Seller for any period prior to the Closing Date;
(xvii) any Any liability or obligation resulting from claims based on defective products, violations resulting from claims based on defective products, and, except to the extent set forth in Section 1.01(c)(ii)(B) above, violation of Seller’s liabilities or obligations for Indebtedness;
(xi) any liabilities or obligations in respect of any of the Excluded Assets (including under any contracts, leases, commitments or understandings related thereto);
(xii) any of Seller’s liabilities or obligations which Buyer may become liable for as a result of or in connection with the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liability;
(xiii) any of Seller’s liabilities or obligations product warranties and other product claims with respect to amounts disputed products manufactured or sold by the Seller and not paid on or prior to the landlords of the properties listed on the attached Leased Real Property ScheduleClosing Date; and
(xivviii) any Any other liabilities liability or obligations obligation of the Seller of every kind and nature, whether actual, contingent or accrued, known or unknown, not expressly assumed by Buyer pursuant to Section 2.2(aunder Subsection (c) above.
Appears in 1 contract
Sources: Asset Purchase Agreement (Morton Industrial Group Inc)
Liabilities Not Assumed. Notwithstanding anything to the contrary in this Agreement, Buyer shall not assume or in any way become liable for any of Seller’s debts, liabilities or obligations of any nature whatsoever (other than the Assumed Liabilities)obligations, whether accrued, absolute, contingent or otherwise, whether known or unknown, whether due or to become due, whether or not related to the Business or the Purchased Assets and whether or not disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including clauses other than the Assumed Liabilities (i) through (xiv) below (collectively referred to herein as collectively, the “Excluded Liabilities”):). Excluded Liabilities shall include the following:
(i) any all of Seller’s accounts payable, accrued expenses and other claims and liabilities to A▇▇▇ Department Stores, Inc. or obligations under this Agreement, the Schedules attached hereto and any other agreements entered into by Seller in connection with the transactions contemplated by this Agreementof its Affiliates;
(ii) any of Seller’s liabilities or obligations under this Agreement;
(iii) any of Seller’s liabilities or obligations for expenses, expenses or fees or Taxes 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, brokerage fees and transfer Taxesexpenses and sales commissions), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(iv) any liability or obligation of Seller for Taxes, including Sales and Transfer Taxes related to the completion of the transactions contemplated herein or any liability or obligation of Seller (A) for any Taxes which are imposed on or measured by the income of Seller for any period, (B) for Taxes of any Person under Treasury Reg. § 1.1502-6 (or with respect any similar provision of state, local or foreign law), as a transferee or successor, by contract or otherwise or (C) for Taxes attributable to any Seller Employee Benefit Plan Tax sharing or any other employee benefit plansimilar agreement, programas a transferee or successor, policy by contract or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liabilityotherwise;
(v) any liability or obligation with respect to any products or services that were marketed or sold prior to the Closing, including product liability, infringement claims and any related claims and litigation arising prior to, on or after the Closing Date;
(vi) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any of Seller’s liabilities or obligations of any kind relating to performance or other bonuses payable to any Business Employees or former employee of Seller’s employees in connection with the fiscal year ending December 31, including 2006, to the extent accrued prior to the Closing, it being understood that Seller shall pay the same promptly after the end of 2006 and that Buyer may or may not continue such bonus plan or program at its discretion, and any of Seller’s liabilities or obligations arising prior payable to any of its employees on account of the Closing with respect to the exempt or non-exempt status transactions contemplated hereby, including retention bonuses and success fees;
(vi) any of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed liabilities or obligations for or in respect of Indebtedness other than capital lease obligations related to capital leases assumed by Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule);
(vii) any liability of Seller’s liabilities or obligation relating to workers’ compensation claims which were filed obligations for or presented on or before in respect of any of the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing DateRetained Contracts;
(viii) any of Seller’s liabilities or obligations (A) arising by reason of to its employees, including, any violation liabilities or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising obligations under any Environmental Lawsof Seller’s Employee Benefit Plans, other than under the Profit Sharing Plan (provided that Buyer is assuming obligations thereunder only to the extent accruing after the Closing Date);
(ix) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct of the Business amounts payable to Parent or any other conduct Affiliate of Seller, Seller’s officers, directors, employees, consultants, agents or advisors on or prior to the Closing DateParent;
(x) any of Seller’s liabilities or obligations for Indebtedness;
(xi) any liabilities or obligations in respect of any of the Excluded Assets (including under any contracts, leases, commitments or understandings related thereto);
(xi) any liabilities or obligations (contingent or otherwise and including liability for response costs, personal injury, property damage or natural resource damage) arising under Environmental and Safety Requirements, except for any such liabilities or obligations the facts or circumstances underlying which are caused, and only to the extent caused, by operation of the Purchased Assets after the Closing;
(xii) any of Seller’s liabilities or obligations which Buyer may become liable for as a result of or in connection with Current Liabilities not included on the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liabilityClosing Working Capital Schedule;
(xiii) any of Seller’s liabilities or obligations with respect to amounts disputed by Seller and not paid to the landlords of the properties listed set forth on the attached Leased Real Property Schedule; andSchedule 2.2(b);
(xiv) any other of Seller’s liabilities not included in the Assumed Liabilities;
(xv) all liabilities and obligations under any and all product or obligations service warranties furnished to its customers with respect to goods sold or services provided to such customers prior to the Closing except to the extent such warranties constitute pass-through warranties of Seller’s vendors and suppliers; and,
(xvi) any liabilities of Seller not expressly assumed by Buyer pursuant to Section 2.2(a) aboveor Parent under the existing employment agreement with T▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇. 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
Sources: Asset Purchase Agreement (Sterling Construction Co Inc)
Liabilities Not Assumed. Notwithstanding anything Other than the liabilities referred to the contrary in this AgreementSection 1.4, Buyer shall not assume or in any way become liable for be deemed to have assumed any of Seller’s debts, the liabilities or obligations of Seller of any nature whatsoever kind (other than together, the Assumed "Unassumed Liabilities"), whether accruedincluding, absolute, contingent or otherwise, whether known or unknown, whether due or to become due, whether related to the Business or the Purchased Assets and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including clauses (i) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”):without limitation:
(i) any of Seller’s liabilities or obligations under this Agreement, the Schedules attached hereto and any other agreements entered into by Seller in connection with the transactions contemplated by this Agreement;
(ii) any of Seller’s liabilities or obligations for expenses, fees or Taxes 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, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(iva) any liability or obligation under or claims with respect to any the business and affairs of Seller Employee Benefit Plan and the acts and omissions of its current or any other employee benefit planformer officers, programdirectors, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliatesemployees and agents, or with respect to which Seller or any such ERISA Affiliate has any liability;
(v) any liability or obligation with respect to any products or services that were marketed or sold prior to the Closing, including product liability, infringement claims and any related claims and litigation arising prior to, on either before or after the Closing Date;
(vib) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any obligation or liability of Seller to Powell or any other current or ▇▇▇▇▇▇ officer or director of Seller’s liabilities or obligations of any kind to any Business Employees or former employee of Seller, including any liabilities or obligations arising prior to the Closing with respect to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule);
(viic) any obligation or liability or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Date;
(viii) any of Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation of any for federal, state, local or foreign law income or other taxes (including any requirement related penalties, fines and interest) of Seller, including, without limitation, any governmental authority, (B) and all taxes arising by reason out of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Lawsthe transactions contemplated hereby;
(ixd) any of Seller’s liabilities obligation or obligations relating to any legal action, proceeding or claim liability arising out of or in connection with Seller’s conduct of the Business or any other conduct operation of Seller's business (including the Business) prior to the Closing Date, Seller’s officersincluding any rebates, directorsdiscounts, employees, consultants, agents offsets or advisors on or concessions attributable to amounts invoiced to clients of Seller prior to the Closing Date;
(xe) any obligation or liability to Seller's temporary, payrolled, leased or full-time employees for salary, wages, bonuses or other compensation or benefits, including any with respect to retirement plans, and accrued vacation, sick and holiday time and pay incurred prior to the Closing Date, including, without limitation, any liabilities of Seller’s Seller contemplated by Section 9.2 but excluding any liabilities or obligations for Indebtednessset forth in Schedule 1.7;
(xif) any liabilities of Seller with respect to any pension, retirement, savings, profit-sharing or obligations in respect of any of the Excluded Assets (including under any contracts, leases, commitments or understandings related thereto)other benefit plans;
(xiig) any of liability arising out of, and any expenses relating to, any claim, action, dispute or litigation involving Seller’s liabilities or obligations which Buyer may become liable for as a result of or in connection with the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liability;
(xiiih) any liability of Seller’s liabilities Seller for fines, penalties, damages or obligations with respect other amounts payable to amounts disputed by Seller and not paid to the landlords of the properties listed on the attached Leased Real Property Scheduleany government or governmental agency or instrumentality; and
(xivi) any other liabilities obligation or obligations liability of Seller or Powell for any expenses incu▇▇▇▇ in preparing or negotiating this Agreement and consummating the transactions contemplated hereunder. Seller and Powell, jointly and severally, ▇▇▇▇▇ to discharge and indemnify, defend and hold harmless Buyer and Headway and their respective officers, directors, employees, agents and stockholders from all Unassumed Liabilities, whether or not expressly now known, liquidated or contingent, including, without limitation, any that might otherwise be deemed to have been assumed by Buyer pursuant to Section 2.2(a) aboveby virtue of its purchase of the Acquired Assets or otherwise by operation of law.
Appears in 1 contract
Sources: Asset Purchase Agreement (Headway Corporate Resources Inc)
Liabilities Not Assumed. Notwithstanding anything to the contrary in this Agreement, Seller and Buyer hereby expressly acknowledge and agree that the Assumed Liabilities shall not include, Seller shall not assign to Buyer pursuant to this Agreement, and Buyer shall not accept or assume or in be obligated to pay, perform or otherwise discharge pursuant to this Agreement, any way become liable for any Liability of Seller’s debts, liabilities or obligations of any nature whatsoever (Seller other than the Assumed Liabilities (collectively, the “Retained Liabilities”). For the avoidance of doubt, whether accruedthe term “Retained Liabilities” means any and all Liabilities of Seller that do not constitute Assumed Liabilities. Seller shall remain responsible for the Retained Liabilities, absolutewhich shall be paid, contingent performed and discharged by Seller. Without limiting the foregoing, Retained Liabilities shall mean every Liability of Seller, other than Assumed Liabilities, including:
(a) all accounts or otherwisenotes receivable or other claims for money due to Seller Parent or any of its Affiliates (other than Seller) and owed by Seller;
(b) all Liabilities with respect to Taxes to the extent relating to, whether known arising out of or unknown, whether due or to become due, whether related to incurred in connection with the Business or the Purchased Assets and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including clauses (i) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”):
(i) any of Seller’s liabilities or obligations under this Agreement, the Schedules attached hereto and any other agreements entered into by Seller in connection with the transactions contemplated by this Agreement;
(ii) any of Seller’s liabilities or obligations for expenses, fees or Taxes 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, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller for Taxes for any period, except for the taxable period or ratable portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(iv) any liability or obligation under or with respect to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liability;
(v) any liability or obligation with respect to any products or services that were marketed or sold prior to the Closing, including product liability, infringement claims and any related claims and litigation arising prior to, thereof ending on or after the Closing Date;
(vi) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any of Seller’s liabilities or obligations of any kind to any Business Employees or former employee of Seller, including any liabilities or obligations arising prior to the Closing with respect to Date (pro-rated in the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statementsmanner contemplated by Section 8.6, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Scheduleif applicable);
(viic) any liability Liability to the extent relating to, arising out of, or obligation relating to workers’ compensation claims which were filed or presented on or before incurred in connection with, the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing DateExcluded Assets;
(viiid) any Benefits Liabilities and any other Liability of Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law Seller or any requirement of any governmental authorityits Affiliates (i) under an employee benefit plan of an ERISA Affiliate, (Bii) arising by reason of any breach or alleged breach by Seller of any agreementrelating to, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Laws;
(ix) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim arising out of or in connection with the employment or cessation of employment (including by reason of the transactions contemplated by this Agreement) of any current or former employee of Seller on or before the Closing, (iii) relating to, arising out of or in connection with any employee grievance against Seller whether or not the affected employees are hired by Buyer, to the extent a claim with respect to a Liability relates to the period on or prior to the Closing, (iv) relating to payroll, employment Taxes, vacation, and sick pay for any current or former employee of Seller to the extent relating to the period on or prior to the Closing, (v) relating to the classification as independent contractors of any Persons providing services to Seller’s , (vi) with respect to any actual or alleged Contracts regarding stock options, equity, or equity based compensation, of Seller or Seller Parent, or (vii) under the WARN Act or any similar state or local Law, to the extent relating to any event or occurrence happening or existing on or prior to the Closing Date (including by reason of the transactions contemplated by this Agreement);
(e) any Indebtedness of Seller, including any Liability under outstanding and unpaid checks, other than any Indebtedness under an Assumed Contract (to the extent provided in Section 2.3(a));
(f) any Liability of Seller under any Contracts that are not Assumed Contracts (to the extent provided in Section 2.3(a));
(g) any Liability of Seller for costs and expenses incurred by Seller or its Affiliates in connection with the Transactions;
(h) any Liability of Seller under the Transaction Documents;
(i) any Liability arising from Environmental Claims or other matters arising under any Environmental Law to the extent arising out of the ownership of the Purchased Assets or the conduct of the Business or any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents or advisors on or prior to the Closing Date;
(xj) any of Seller’s liabilities or obligations for Indebtedness;
(xi) any liabilities or obligations in respect of any of the Excluded Assets (including under any contracts, leases, commitments or understandings related thereto);
(xii) any of Seller’s liabilities or obligations which Buyer may become liable for as a result of or in connection with the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liability;
(xiii) any of Seller’s liabilities or obligations Liability with respect to amounts disputed services provided or products sold by Seller and not paid the Business on or prior to the landlords Closing Date to the extent arising out of the properties listed or relating to product return, exchange, rebate, sales promotion or allowance, credit and warranty obligations (except as provided in Section 2.3(c)), including GL# ▇▇▇▇-▇▇-▇▇▇, “Accrued Catalogs-TruServ” and GL# ▇▇▇▇-▇▇-▇▇▇, “Accrued Promotions-WWwhlsale” included under “Accrued Expenses & P/R Withhldng” on the attached Leased Real Property ScheduleRecent Balance Sheet (it being understood that Seller shall discharge these Retained Liabilities by reimbursing Buyer for its costs in providing promotions, credits or other allowances to customers in substitution for promotions/allowances that Seller historically has provided up to the amount accrued on the Recent Balance Sheet therefor, such reimbursement to be made promptly upon request by Buyer and following delivery to Seller of reasonable documentation evidencing such costs); and
(xivk) any other liabilities Liability with respect to product liability relating to, arising out of or obligations incurred with respect to services provided or products sold by the Business on or prior to the Closing Date, including Liability arising from third party liability claims for bodily injury or property damage arising out of Seller not expressly assumed by Buyer pursuant the actual or alleged malfunction of a product due to Section 2.2(a) abovea manufacturing or design error.
Appears in 1 contract
Sources: Asset Purchase Agreement (Lawson Products Inc/New/De/)
Liabilities Not Assumed. Notwithstanding anything any provision hereof ----------------------- to the contrary in this Agreementcontrary, the Buyer shall not assume assume, pay or perform any Liabilities of Seller that are not expressly identified as an Assumed Liability, including, without limitation, the following excluded liabilities:
(a) any Liability in respect of the Excluded Assets or any way become liable other assets of the Seller that are not Acquired Assets;
(b) any Liabilities, including without limitation any Environmental Liabilities, relating to the disposal, storage, transportation, discharge, Release, recycling, or the arrangement for such activities, by the Seller, of Hazardous Substances that were generated at the Site, at any of Seller’s debts, liabilities Offsite Hazardous Substance Facility or obligations of any nature whatsoever at another location that is not the Site (other than as a result of migration from the Assumed LiabilitiesSite), whether accruedwhere the disposal, absolutestorage, contingent transportation, discharge, Release or otherwise, whether known or unknown, whether due or to become due, whether related to the Business or the Purchased Assets and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including clauses (i) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”):
(i) any of Seller’s liabilities or obligations under this Agreement, the Schedules attached hereto and any other agreements entered into by Seller in connection with the transactions contemplated by this Agreement;
(ii) any of Seller’s liabilities or obligations for expenses, fees or Taxes 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, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(iv) any liability or obligation under or with respect to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liability;
(v) any liability or obligation with respect to any products or services that were marketed or sold prior to the Closing, including product liability, infringement claims and any related claims and litigation arising prior to, on or after the Closing Date;
(vi) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any of Seller’s liabilities or obligations of any kind to any Business Employees or former employee of Seller, including any liabilities or obligations arising prior to the Closing with respect to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule);
(vii) any liability or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Date;
(viii) any of Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Laws;
(ix) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct of the Business or any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents or advisors recycling occurred on or prior to the Closing Date;
(xc) any Liability of Seller’s liabilities the Seller arising from the making or obligations for Indebtednessperformance of this Agreement or a Related Agreement or the transactions contemplated hereby or thereby;
(xid) any liabilities Liability arising out of any Employee Benefit Plan established or obligations maintained by the Seller or to which the Seller contributes or any Liability for the termination of any such plan;
(e) any Liability arising out of the Wholesale Power Contracts and any Liability of the Seller arising out of the Power Purchase Agreements;
(f) any Liability to make payments in addition to or in lieu of property Taxes under Section 71 of the Act, including any liability under any agreements entered into by the Seller regarding such payments ("Section 71 Transition Payments"), whether such agreements are entered into prior to, on or after the Closing, and any Liability in respect of any of Taxes attributable to the Excluded Acquired Assets (including under any contractsfor taxable periods ending on or before the Closing Date, leases, commitments or understandings related thereto)except those Taxes expressly allocated to the Buyer pursuant to Section 8;
(xiig) any Liability arising out of Seller’s liabilities or obligations which Buyer may become liable for as a result of or in connection with the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liabilityMunicipal Contracts;
(xiiih) any Liabilities of Seller’s liabilities Seller for wages, withholding obligations, workers compensation, overtime, severance, employment taxes or similar obligations with respect to amounts disputed by Seller and not paid accruing on or prior to the landlords Closing Date and all Liabilities for which the Seller is responsible under Section 5.7 relating to Employees;
(i) any Liabilities arising from Seller's breach on or prior to the Closing Date of any contract, license, permit or other instrument relating to the properties listed on the attached Leased Real Property ScheduleAcquired Assets; and
(xivj) any other liabilities or obligations all Liabilities of the Seller not expressly assumed by Buyer pursuant to for assessments for enrichment decommissioning and decontamination fund fees under 42 USC Section 2.2(a) above2297g-1.
Appears in 1 contract
Liabilities Not Assumed. Notwithstanding anything contained in this Exhibit P or elsewhere in the Agreement to the contrary in this Agreementcontrary, Buyer shall does not assume or agree or undertake to pay, satisfy, discharge or perform in respect of, and will not be deemed by virtue of the execution and delivery of the Agreement or any Transaction Documents or other document delivered at the Closing pursuant to the Agreement, or as a result of the consummation of the Transactions, to have assumed, or to have agreed to pay, satisfy, discharge or perform in respect of, any Liabilities of any EMEA Seller in any way become liable for any of Seller’s debts, liabilities or obligations of any nature whatsoever (other than the Assumed Liabilities), whether accrued, absolute, contingent or otherwise, whether known or unknown, whether due or to become due, whether related relating to the Business or the Purchased Assets and whether disclosed on the Schedules attached hereto, and regardless of when or by whom assertedother than those Assumed Liabilities described in Section 3, including clauses the following (i) through (xiv) below (collectively referred to herein as collectively, the “EMEA Excluded Liabilities”):
(a) except as set forth in Section 3(b), all Liabilities of any EMEA Seller or its Affiliates for Taxes but including (i) Taxes that are the responsibility of the relevant EMEA Seller pursuant to Section 9.1 of the Agreement and (ii) all Taxes arising out of the operations of the Business (including ownership of the EMEA Acquired Assets) with respect to transactions occurring prior to or periods (or portions thereof) ending prior to the Effective Time;
(b) all Liabilities of any of Seller’s liabilities EMEA Seller under this Agreement or obligations under any other Transaction Document to which it is party;
(c) all Liabilities for legal, accounting and audit fees and any other expenses incurred by any EMEA Seller in connection with this Agreement, the Schedules attached hereto and any other agreements entered into Transaction Document or consummation of the Transactions, including any fees, expenses or other payments incurred or owed by any EMEA Seller to any agent, broker, investment banker or other firm or Person retained or employed by any EMEA Seller in connection with the transactions contemplated by this AgreementTransactions;
(iid) all Liabilities of any of EMEA Seller’s liabilities or obligations for expenses, fees or Taxes incident to or arising out of the negotiation, preparation, approval or authorization of this Agreement or extent relating to the consummation (or preparation for the consummation) of the transactions contemplated hereby (including all attorneys’ and accountants’ fees, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereofEMEA Excluded Assets;
(iiie) except as set forth on provided in Section 3(c) and/or as specified in the Accrued Master Purchase Agreement, all Liabilities with respect to defective product claims and Assumed Payables Schedule, product liability claims and causes of action arising with respect to Products shipped by any liability or obligation of EMEA Seller for Taxes for any period, except for the portion of transfer Taxes prior to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico TaxesClosing;
(ivf) all Liabilities of any liability or obligation EMEA Seller under or arising from the VSS Products prior to the Closing Date, including claims relating to warranty obligations or other Liabilities under or arising from Contracts to which any EMEA Seller is a party that have been entered into prior to the Closing Date with respect to VSS Products; provided, that Buyer and the other Buyer Entities shall be responsible for all Liabilities with respect to any Seller Employee Benefit Plan implementation of the features or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to functionality of the VSS Products in whatsoever manner implemented by Seller Buyer or its ERISA Affiliates, or in accordance with respect to which Seller or any such ERISA Affiliate has any liabilitySection 3(d), from and after the Closing;
(vg) any liability or obligation with respect all Liabilities relating to any products EMEA Seller’s ownership or services that were marketed use of any EMEA Acquired Assets, or sold the conduct or operation of the Business, or the activities of any EMEA Seller in connection with the EMEA Acquired Assets or the Business prior to the Closing, including product liability, infringement claims and any related claims and litigation arising prior to, on or after the Closing Date;
(vi) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any of Seller’s liabilities or obligations of any kind to any Business Employees or former employee of Seller, including any liabilities or obligations arising prior to the Closing with respect to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or extent not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and an Assumed Payables Schedule);
(vii) any liability or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Date;
(viii) any of Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Laws;
(ix) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct of the Business or any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents or advisors on or prior to the Closing Date;
(x) any of Seller’s liabilities or obligations for Indebtedness;
(xi) any liabilities or obligations in respect of any of the Excluded Assets (including under any contracts, leases, commitments or understandings related thereto);
(xii) any of Seller’s liabilities or obligations which Buyer may become liable for as a result of or in connection with the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liability;
(xiii) any of Seller’s liabilities or obligations with respect to amounts disputed by Seller and not paid to the landlords of the properties listed on the attached Leased Real Property ScheduleLiability; and
(xivh) all Liabilities relating to any other liabilities assets, operations, products, businesses or obligations activities of any EMEA Seller that are not expressly assumed by Buyer pursuant to Section 2.2(a) abovepart of the Business.
Appears in 1 contract
Liabilities Not Assumed. Notwithstanding anything Anything in this Agreement to the contrary in this Agreementnotwithstanding, it is expressly agreed that, except for the Assumed Liabilities, Buyer shall not assume or in any way become liable for any Liabilities of Seller’s debts, liabilities or obligations Seller of any nature whatsoever kind, character or description (other than the Assumed Liabilities)whether known, whether unknown, accrued, absolute, contingent or otherwise) (collectively, whether known or unknown, whether due or to become due, whether related to the Business or the Purchased Assets and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including clauses (i) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”):). The Excluded Liabilities include, without limitation, the following:
(ia) any of Seller’s liabilities or obligations under this Agreement, the Schedules attached hereto and any other agreements entered into by Seller in connection with the transactions contemplated by this Agreement;
(ii) any of Seller’s liabilities or obligations for expenses, fees or Taxes incident Liabilities relating 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, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereofServices Assets;
(iiib) except as set forth any Liabilities, including Liabilities arising under Educational Laws, related to or based on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation operation of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(iv) any liability or obligation under or with respect to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liability;
(v) any liability or obligation with respect to any products or services that were marketed or sold University prior to the Closing, including product liability, infringement claims and any related claims and litigation arising prior to, on or after except to the Closing Dateextent specifically assumed as Assumed Liabilities under Section 2.3;
(vic) except as set forth on subject to the Accrued Liabilities and Assumed Payables Scheduleterms of Section 6.3 below, any Liabilities of Seller’s liabilities Seller with respect to current or obligations former employees, officers, directors, retirees, independent contractors, or consultants of Seller relating to or arising out of their employment or engagement by Seller prior to the Closing or the cessation or termination thereof, 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;
(d) any indebtedness of Seller for borrowed money;
(e) any Liabilities for (i) Taxes relating to the School Assets or the Assumed Liabilities for any taxable period ending prior to the Closing, (ii) any other Taxes of Seller for any taxable period, and (iii) any Liabilities of Seller for the unpaid Taxes of any kind Person, whether as a joint and several liability with another Person, as a transferee or successor, by contract, or otherwise;
(f) any Liabilities of Seller arising under or in connection with any Old Plan providing benefits to any Business Employees present or former employee of Seller, including ;
(g) any liabilities Liabilities of Seller with respect to Actions that are pending or obligations arising threatened as of the Closing and that relate to the operations of the University prior to the Closing with respect to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule);Closing; and
(viih) any liability Liabilities of Seller arising or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Date;
(viii) any of Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Laws;
(ix) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct of the Business or any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents or advisors on or prior to the Closing Date;
(x) any of Seller’s liabilities or obligations for Indebtedness;
(xi) any liabilities or obligations in respect of any of the Excluded Assets (including under any contracts, leases, commitments or understandings related thereto);
(xii) any of Seller’s liabilities or obligations which Buyer may become liable for as a result of or incurred in connection with the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result negotiation, preparation, investigation and performance of any “defacto merger” or “successor-in-interest” theories this Agreement, the other Related Agreements and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of liability;
(xiii) any of Seller’s liabilities or obligations with respect to amounts disputed by Seller counsel, accountants, consultants, advisers and not paid to the landlords of the properties listed on the attached Leased Real Property Schedule; and
(xiv) any other liabilities or obligations of Seller not expressly assumed by Buyer pursuant to Section 2.2(a) aboveothers.
Appears in 1 contract
Sources: Asset Purchase Agreement (Grand Canyon Education, Inc.)
Liabilities Not Assumed. Notwithstanding anything It is expressly understood and agreed that, except for those liabilities and obligations expressly assumed by Purchaser pursuant to the contrary in this AgreementSection 1.3, Buyer Purchaser shall not assume or in any way become and shall not be liable for any liabilities, obligations, indebtedness, contracts or commitments of Seller’s debts, liabilities or obligations Seller of any nature whatsoever (other than the Assumed Liabilities)kind, whether accrued, absolute, contingent character or otherwisedescription whatsoever, whether known or unknown, asserted or unasserted, absolute or contingent, accrued or unaccrued, liquidated or unliquidated, and whether due or to become due, whether related to the Business or the Purchased Assets including, without limitation (which liabilities and whether disclosed on the Schedules attached hereto, and regardless of when or obligations not expressly assumed by whom asserted, including clauses (i) through (xiv) below (collectively Purchaser are referred to herein as the “"Excluded Liabilities”"):
(ia) any claim, regardless of when made or asserted, which arises out of or is based upon any agreement made by Seller’s liabilities , or obligations under this Agreementalleged to have been made by Seller, or which is imposed or asserted to be imposed by operation of law, in connection with any service performed or products sold or leased by or on behalf of Seller prior to the Schedules attached hereto and Closing;
(b) any other agreements entered into by liability of Seller for Taxes, whether arising before or after the Closing, including, without limitation, Taxes arising in connection with the transactions contemplated by this AgreementAgreement and any subsequent liquidation of Seller;
(iic) any liability of Seller for the unpaid Taxes of any Person (other than Seller’s liabilities or obligations for expenses, fees or Taxes incident to or arising out of the negotiation, preparation, approval or authorization of this Agreement or the consummation ) under IRC Reg.ss.1.1502-6 (or preparation for the consummation) any similar provision of the transactions contemplated hereby (including all attorneys’ and accountants’ feesstate, brokerage fees and transfer Taxeslocal, or foreign law), except for the portion of the transfer Taxes to be paid as a transferee or successor, by Buyer pursuant to Section 6.7 hereofcontract, or otherwise;
(iiid) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation arising prior to or as a result of Seller for Taxes for the Closing to any periodemployees, except for agents or independent contractors of Seller, whether or not employed by Purchaser after the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereofClosing, including the Puerto Rico Taxes;or under any benefit arrangement; or
(ive) any liability or obligation under or in connection with respect to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to the assets excluded from the Assets purchased by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liability;Purchaser hereunder.
(vf) any liability or obligation with respect of Seller under any oral Contract, whether or not assigned to Purchaser hereunder, or under any products or services that were marketed or sold prior Contract assigned to Purchaser hereunder to the Closing, including product liability, infringement claims and any related claims and litigation arising prior to, on or after extent the Closing Date;
(vi) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any of Seller’s liabilities or obligations of any kind to any Business Employees arise during, or former employee of Sellerrelate to, including any liabilities or obligations arising a period prior to the Closing with respect Date or relate to a Contract not listed on the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule)Schedules identified in Section 1.3;
(viig) any liability or obligation relating which would not have existed had each of the representations and warranties of Seller in this Agreement or the Other Seller Agreements, been true;
(h) any obligation of Seller to workers’ compensation claims which were filed pay Participations or presented on Residuals to the extent that such obligations become due, or before the Closing Date arise out of or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on proceeds paid to or before for the benefit of Seller prior to the Closing Date, and any obligation of Seller to pay sales commissions in connection with any Film Contract;
(viiii) any of Seller’s liabilities or obligations (A) liability arising by reason from the breach of any violation representation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach warranty made by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental LawsContract to which it is a party;
(ixj) any liability or obligation of Seller’s liabilities Seller with respect to unpaid laboratory costs, tape duplication costs or obligations relating to any legal actionunpaid advances, proceeding guaranties or claim arising out of or deferments in connection with Seller’s conduct any Film Contract;
(k) any liability or obligation of Seller with respect to unpaid synchronization or music license fees or other material used in the Business or any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents or advisors on or Library prior to the Closing Date;
(xl) any liability or obligation of Seller’s liabilities or obligations for IndebtednessSeller with respect to unpaid production costs;
(xim) any liabilities liability or obligations in respect obligation of Seller which relate to any of the Excluded Assets (including under retirement, pension, profit sharing or other compensation plan, including, without limitation, any contracts, leases, commitments liability or understandings related thereto)obligation to any guild or collective bargaining group;
(xiin) any liability or obligation of Seller relating to any severance, "parachute" or other similar payment to any officer, director or employee of Seller’s liabilities ;
(o) any liability or obligations which Buyer may become liable for as a result obligation of Seller arising outside of the ordinary course of the Business or otherwise arising by reason of any breach of contract, tort or infringement of the rights of another;
(p) any liability or obligation of Seller in connection with its trade payables and current liabilities existing as of the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liabilityClosing Date;
(xiiiq) any liability or obligation of any Affiliate of Seller and any liability or obligation owing to any Affiliate of Seller’s liabilities or obligations with respect to amounts disputed by Seller and not paid ;
(r) any contingent liabilities, except to the landlords of the properties listed on the attached Leased Real Property Scheduleextent explicitly assumed by Purchaser under Section 1.3; and
(xivs) any other liabilities liability or obligations obligation of Seller not expressly assumed or its Affiliates discharged by Buyer pursuant to operation of law. To the extent of any inconsistencies between this Section 2.2(a) 1.4 and Section 1.3 above, the provisions of Section 1.3 shall govern.
Appears in 1 contract
Liabilities Not Assumed. Notwithstanding anything to the contrary in this Agreement, Buyer (a) The Purchasers shall not assume or in any way become be liable for the payment, performance and discharge of any of Seller’s debts, liabilities or and/or obligations of any nature whatsoever (other than Seller or any of its affiliates, including liabilities and/or obligations relating to Taxes of any Seller or in any way attaching to the Assets, except for the Assumed Liabilities).
(b) Without limiting the generality of the foregoing, whether accruedthe Purchasers shall not assume and the Sellers shall retain and shall punctually pay, absolute, contingent or otherwise, whether known or unknown, whether due or to become perform and discharge when due, whether related to the Business or following liabilities and/or obligations of the Purchased Assets and whether disclosed on Sellers (collectively, the Schedules attached hereto, and regardless of when or by whom asserted, including clauses (i) through (xiv) below (collectively referred to herein as the “"Excluded Liabilities”"):
(i) any and all liabilities and/or obligations of Seller’s any kind or nature relating to Taxes of any Seller and, with respect to the Assets, all Tax liabilities and/or obligations accrued for, applicable to or arising from any period ending on or before the Closing Date (including, without limitation, any liabilities or obligations under this Agreementpursuant to any Tax sharing agreement, the Schedules attached hereto and any other agreements entered into by Seller in connection with the transactions contemplated by this AgreementTax indemnification or similar arrangement);
(ii) subject to Sections 6.5 and 11.14, any and all liabilities and/or obligations incurred by or on behalf of any Seller or its affiliates arising from the Contemplated Transactions, including, without limitation, all legal fees, Taxes, costs and disbursements of any Seller, DTI or any of Seller’s liabilities or obligations for expensestheir respective affiliates payable in connection with this Agreement; provided, fees or however, (a) subject to Section 6.5, all sales, transfer, use and other similar type Taxes incident to or arising out which arise from the sale of the negotiation, preparation, approval or authorization of this Agreement or Assets to Purchasers shall be borne equally by Sellers and Purchasers and (b) in no event shall the consummation (or preparation for the consummation) of the transactions contemplated hereby (including all attorneys’ and accountants’ fees, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes Excluded Liabilities include any bonus payable to be paid by Buyer ▇▇▇▇▇ ▇. ▇▇▇▇▇ pursuant to Section 6.7 hereof;that certain letter agreement, dated March 6, 2003, between DTI and ▇▇▇▇▇ ▇. ▇▇▇▇▇ or any bonus payable to ▇▇▇▇▇▇▇ ▇'▇▇▇▇ pursuant to that certain letter agreement, dated March 6, 2003, between DTI and ▇▇▇▇▇▇▇ ▇'▇▇▇▇.
(iii) except as set forth on the Accrued Liabilities any and Assumed Payables Schedule, any liability or obligation of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer all liabilities and/or obligations arising pursuant to Section 6.7 hereofEnvironmental Laws (whether or not constituting liabilities and/or obligations of the Sellers or the Purchasers in the first instance) with respect to the Assets or the Business and relating to or arising from facts, events or conditions existing or occurring on or before the Closing Date, including without limitation (A) any Release of a Hazardous Substance at or from the Puerto Rico TaxesUS Facility or the UK Facility on or before the Closing Date; or (B) the disposal of or arrangement for disposal of any wastes on or before the Closing Date ("Pre-Closing Environmental Liabilities");
(iv) except as specifically set forth in Section 1.7 and Section 6.15 of this Agreement, any liability and all liabilities and/or obligations (A) relating to or obligation arising under or with respect to any Seller Employee Benefit Plan "employee benefit plan" (as defined in Section 3(3) of ERISA) or any other employee benefit plan, program, policy program or arrangement presently or formerly maintained at any time maintained, sponsored or contributed to by any Seller or its any ERISA AffiliatesAffiliate, or with respect to which any Seller or any such ERISA Affiliate has any liability or potential liability, or (B) pertaining to the employment by, or termination from employment with, any Seller or any ERISA Affiliate, of any individual (including any UK Employee or US Employee);
(v) any liability and all product or obligation similar type liabilities and/or obligations with respect to any products product sold or services that were marketed or sold performed for which revenue was recognized by a Seller prior to the Closing, including product liabilityin either case, infringement claims and by the Business or any related claims and litigation arising Seller or any affiliate or predecessor of any Seller prior to, on or after the Closing Dateto Closing;
(vi) except as set forth on the Accrued Liabilities any and Assumed Payables Schedule, any of Seller’s all liabilities or and/or obligations of any kind to any Business Employees or former employee of Seller, including any liabilities or obligations arising prior to the Closing with respect to the exempt any indebtedness for borrowed money or non-exempt status capital leases (other than any capital lease listed on Schedule 1.4 attached hereto) or any guaranties of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule)indebtedness for borrowed money;
(vii) any liability or obligation and all liabilities and/or obligations relating to workers’ compensation claims which were filed any of the Excluded Assets or presented on relating to any property or before facility formerly owned, operated or leased by the Closing Date Sellers or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Dateany predecessor of Sellers;
(viii) any of Seller’s and all liabilities and obligations with respect to any lease or obligations (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law license for the Camberly Facility or any requirement of guaranty for any governmental authority, (B) arising by reason of any breach such lease or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Lawslicense for the Camberly Facility;
(ix) any and all liabilities for the infringement or misappropriation of Seller’s liabilities or obligations relating to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct of the Business or any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents or advisors Intellectual Property on or prior to the Closing Date;
(x) any of Seller’s liabilities or obligations for Indebtedness;and all claims and/or litigation listed on Schedule 4.13; and
(xi) any and all liabilities or and/or obligations in respect of any of Seller other than the Excluded Assets (including under any contracts, leases, commitments or understandings related thereto);Assumed Liabilities.
(xiic) any The Sellers shall use commercially reasonable efforts to perform, pay and discharge, in the normal course of Seller’s liabilities or obligations which Buyer may become liable for as a result of or in connection business, consistent with the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liability;
(xiii) any of Seller’s liabilities or obligations with respect to amounts disputed by Seller and not paid to the landlords of the properties listed on the attached Leased Real Property Schedule; and
(xiv) any other liabilities or obligations of Seller not expressly assumed by Buyer pursuant to Section 2.2(a) abovepast practices, all Excluded Liabilities.
Appears in 1 contract
Liabilities Not Assumed. Notwithstanding anything any provision hereof to the contrary in this Agreementcontrary, the Buyer shall not assume assume, satisfy or in any way become liable for perform any of Seller’s debtsthe following Liabilities (the "Excluded Liabilities"):
(a) any Liability to the extent such Liability is in respect of, liabilities in connection with, or obligations otherwise arising from the operation or use of the Excluded Assets or any nature whatsoever other assets of the Sellers that are not Acquired Assets;
(b) any Liability including, without limitation, any Environmental Liability, to the extent such Liability is in respect of, in connection with, or arising from the Seller Easements;
(c) any Liabilities, including, without limitation, any Environmental Liabilities, to the extent relating to the off-Site disposal, storage, transportation, discharge, Release, recycling, or the arrangement for such activities of Hazardous Substances that were generated at the Site, at any Offsite Hazardous Substance Facility or at a location other than the Site (other than as a result of subsurface migration from the Assumed LiabilitiesSite), whether accruedwhere the initial disposal, absolutestorage, contingent transportation, discharge, Release or otherwiserecycling of such Hazardous Substances at such Offsite Hazardous Substance Facility occurred on or prior to the Initial Closing Date;
(d) any Liability of the Sellers to the extent arising from the execution, delivery or performance of this Agreement or a Related Agreement or the transactions contemplated hereby or thereby;
(e) any Liability in respect of Taxes to the extent attributable to the Acquired Assets accrued prior to the relevant Closing Date, except those Taxes expressly allocated to the Buyer pursuant to Section 8;
(f) subject to the provisions of Section 5.7, any Liability, whether known funded or unknownunfunded, whether due to the extent arising out of any Employee Benefit Plan established or maintained in whole or in part by any Seller (or its Affiliate) or to become duewhich any Seller (or its Affiliate) contributes or contributed, whether related or is or was required to contribute, at any time prior to the Business Initial Closing Date and any Liability for the termination or discontinuance of, or any Seller's or its Affiliates' withdrawal from, any such Employee Benefit Plan;
(g) any Liabilities of any Seller or any of its Affiliates for any compensation or any benefits whether in relation to any of the Purchased Assets and whether disclosed on the Schedules attached heretoPlant Employees, and regardless independent contractors or any other individuals who are later determined by a court or governmental agency to have been employees of when a Seller or by whom assertedits Affiliates, including clauses including, without limitation, (i) through wages, bonuses, incentive compensation, shift or work schedule adders, on-call pay, call-out pay, vacation pay, sick pay, paid time off, workers compensation, unemployment compensation, withholding obligations, unemployment taxes or similar obligations accruing or related to work performed prior to the Initial Closing Date; (xivii) below severance pay, other termination pay, post-retirement benefits and COBRA coverage, accruing or related to work performed prior to the Initial Closing Date; or (collectively referred iii) any other form of compensation or benefits accruing or related to herein work performed prior to the Initial Closing Date under the terms or provisions of any Employee Benefit Plan of any Seller or such Affiliate, or any other agreement, plan, practice, policy, instrument or document relating to any of the Acquired Assets Employees, other than the Liabilities expressly assumed by the Buyer under Section 5.7;
(h) with respect to the Acquired Assets Employees or any independent contractors, or other individuals subject to Section 5.7, except for liabilities under any employment contracts with NAESCO employees relating to periods on and after the Closing Date, which Liabilities are assumed only to the extent set forth in Section 2.3(b), any Liabilities or obligations relating to the employment or termination of employment, including personal injury, tort, discrimination (including claims for whistleblowing under the Atomic Energy Act and the Energy Reorganization Act of 1974 as amended, as well as claims under Title VII of the Civil Rights Act of 1964, as amended, Executive Order 11246, the Age Discrimination in Employment Act, as amended, the Americans with Disabilities Act, and/or any other federal, state or local statute, ordinance, regulation or order prohibiting discrimination or requiring affirmative action), wrongful discharge, breach of implied or express contract, unfair labor practices or any claim asserted in an individual employee grievance procedure, or constructive termination by any Seller or its Affiliate of any individual, or similar claim or cause of action attributable to any action or inaction by any Seller or any of its Affiliates that arise out of wrongful acts or omissions, occurring prior to the Initial Closing Date or such later date as the “Excluded Liabilities”):individual may have commenced employment with Buyer pursuant to Section 5.7(a) or (b); PROVIDED that the Sellers shall not have any liability for similar actions or inactions by any other Person on or after the Initial Closing Date or such later date as the individual shall have commenced employment with the Buyer;
(i) any Liabilities of Seller’s liabilities Sellers to the extent accrued or obligations related to or attributable to the period prior to the Initial Closing Date under this Agreementany contract, license, Permit or other instrument relating to the Acquired Assets (including, without limitation, the Schedules attached hereto Leases, Emergency Preparedness Agreements and any other agreements entered into by Seller in connection with Other Assigned Contracts, the transactions contemplated by this AgreementMaterial Contracts and the NRC Licenses);
(iij) any of Seller’s liabilities or obligations all Liabilities for expenses, assessments for decommissioning and decontamination fund fees or Taxes 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’ accrued and accountants’ fees, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to payable under 42 U.S.C. Section 6.7 hereof;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(iv) any liability or obligation under or with respect to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liability;
(v) any liability or obligation with respect to any products or services that were marketed or sold 2297g-1 prior to the Closing, including product liability, infringement claims and any related claims and litigation arising prior to, on or after the Initial Closing Date;
(vik) except as set forth on the Accrued Liabilities and Assumed Payables Scheduleany Liabilities, including, without limitation, any Environmental Liabilities, resulting from any illegal acts or willful misconduct of Seller’s liabilities the Sellers or obligations of any kind to any Business Employees NAESCO or former employee of Sellertheir employees, including any liabilities agents or obligations arising contractors, occurring prior to the Closing with respect to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule);
(vii) any liability or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Initial Closing Date;
(viiil) any all Liabilities for fees payable to DOE under the DOE Standard Contracts accrued or related to electricity generated and sold prior to the Initial Closing Date, and interest accrued thereon as set forth in Article VIII of Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Lawsthe DOE Standard Contracts;
(ixm) any Liabilities to the extent relating to the Business Finance Authority of Seller’s liabilities the State of New Hampshire Pollution Control Revenue Bonds (as set forth in SCHEDULE 2.4(M), the "Pollution Control Bonds") and any agreements relating thereto, other than those arising out of the breach by the Buyer of the covenants contained in Section 5.8(d);
(n) any Liens on the Acquired Assets, except for Permitted Encumbrances;
(o) except as otherwise expressly set forth in this Agreement, any other Liability, obligation, claim, action, complaint, debt, suit, cause of action, investigation, or obligations proceeding of any kind whatsoever asserted by any Third Party, against or relating to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct of the Business Buyer, the Sellers or any other conduct the Acquired Assets, for damages suffered by such Third Party arising from or relating to the use, ownership or lease of Seller, Seller’s officers, directors, employees, consultants, agents the Acquired Assets or advisors on or operation of the Facility prior to the Initial Closing Date;
(xp) any all Liabilities of Seller’s liabilities or obligations NEP and PSNH under the Transmission Support Agreement, except for Indebtedness;
(xi) any liabilities or obligations in respect of any of the Excluded Assets (including under any contracts, leases, commitments or understandings related thereto);
(xii) any of Seller’s liabilities or obligations which Buyer may become liable for as a result of or in connection with the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liability;
(xiii) any of Seller’s liabilities or obligations with respect to amounts disputed by Seller and not paid to the landlords of the properties listed on the attached Leased Real Property ScheduleNEP's transmission support payment obligations; and
(xivq) the escrow account contribution obligation of each Seller under the Unit 2 Memorandum of Understanding with the Town of Seabrook; and
(r) any Liability which is required to be accrued in accordance with GAAP by any Seller on the balance sheet of such Seller as of the Initial Closing Date or a Subsequent Closing Date, as the case may be, , other liabilities or obligations of Seller not expressly assumed by Buyer pursuant to than those Liabilities which are specifically identified as Assumed Liabilities in Section 2.2(a) above2.3.
Appears in 1 contract
Liabilities Not Assumed. Notwithstanding anything Any provision of this Agreement to the contrary in this Agreementnotwithstanding (and without implication that the Purchaser is assuming any liability not expressly excluded and, Buyer shall not assume or in any way become liable for where applicable, without implication that any of Seller’s debts, the following have been included
(a) any liabilities or and obligations of any nature whatsoever (other than the Assumed Liabilities), whether accrued, absolute, contingent or otherwise, whether known or unknown, whether due or to become due, whether related to the Business or the Purchased Assets and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including clauses (i) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”):
(i) any of Seller’s liabilities or obligations under this Agreement, the Schedules attached hereto and any other agreements entered into by Seller in connection with the transactions contemplated by this Agreement;
(ii) any of Seller’s liabilities or obligations for expenses, fees or Taxes incident to or arising out of the negotiation, preparation, approval or authorization of this Agreement or the consummation Company (or preparation for any consolidated, affiliated or unitary group of which the consummationCompany is a member) of the transactions contemplated hereby (including all attorneys’ and accountants’ fees, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes with respect to be paid by Buyer pursuant to Section 6.7 hereof;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller for Taxes for any period, except for current Taxes (other than income Taxes) that are properly accrued on the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico TaxesClosing Balance Sheet;
(ivb) any liability or obligation under or with respect liabilities of the Company to any Seller Employee Benefit Plan Affiliate of the Company or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liability;
Brau▇▇ (v) any liability or obligation with respect to any products or services that were marketed or sold prior to ▇▇cluding the Closing, including product liability, infringement claims and any related claims and litigation arising prior to, obligations listed on or after the Closing Date;
(vi) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any of Seller’s liabilities or obligations of any kind to any Business Employees or former employee of Seller, including any liabilities or obligations arising prior to the Closing with respect to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule1.4(b));
(viic) except as expressly provided in Section 6.7, any liability or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Date;
(viii) any of Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Laws;
(ix) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct any Employee Plans;
(d) any liabilities of the Business Company for injury to or death of persons or damage to or destruction of property (excluding any other conduct worker's compensation claims) regardless of Sellerwhen said claim or liability is asserted, Seller’s officersincluding any claim for consequential damages in connection with the foregoing; it being understood and agreed that any such claim or liability asserted after the Closing Date, directorsbut arising out of acts or omissions by the Company which occur before the Closing Date, employeesshall be considered to be a claim against or a liability of the Company for injury to or death of persons or damages to or destruction of property and therefore not assumed hereunder by the Purchaser;
(e) any liabilities of the Company arising out of infringement of the Intellectual Property rights of any Person;
(f) any liabilities not recorded on the Closing Balance Sheet for (i) medical, consultantsdental, agents disability income, life insurance or advisors accidental death benefits, whether insured or self insured, for claims incurred or for sickness, injury or disabilities occurring prior to the Closing Date or (ii) severance benefits, for employees of the Company whose employment is terminated on or prior to the Closing DateDate or who do not accept the Purchaser's offer of employment;
(xg) any and all liabilities arising out of Seller’s violations of any Law or Order and any liabilities resulting from the contravention of any Environmental Law including, without limitation, for any Release of Hazardous Material and any failure to satisfy obligations in respect of matters of health and safety, in each case arising out of the period prior to the Closing Date (whether asserted or obligations for commenced before or after the Closing Date);
(h) any liability in connection with any Action or Proceeding in respect of the Company or the Business arising out of the period prior to the Closing Date (whether asserted or commenced before or after the Closing Date);
(i) any liabilities relating to the Excluded Assets of the Company;
(j) any liabilities of the Company with respect to Indebtedness;
(xik) any liabilities or obligations in respect of any relating to the capital stock of the Excluded Assets (including under any contracts, leases, commitments or understandings related thereto);
(xii) any of Seller’s liabilities or obligations which Buyer may become liable for as a result of or in connection with the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liability;
(xiii) any of Seller’s liabilities or obligations with respect to amounts disputed by Seller and not paid to the landlords of the properties listed on the attached Leased Real Property ScheduleCompany; and
(xiv) any other liabilities or obligations of Seller not expressly assumed by Buyer pursuant to Section 2.2(a) above.
Appears in 1 contract
Sources: Asset Purchase Agreement (Lower Road Associates LLC)
Liabilities Not Assumed. Notwithstanding anything to the contrary in this Agreement, except for the Assumed Liabilities, Buyer shall not assume or in any way become liable for any of Seller’s debts, liabilities or obligations of any nature whatsoever (other than the Assumed Liabilities)whatsoever, whether accrued, absolute, contingent or otherwise, whether known or unknown, whether due or to become due, whether related to the Business or the Purchased Assets and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including clauses (i) through (xiv) below all of the following (collectively referred to herein as the “Excluded Liabilities”):
(i) any of Seller’s liabilities or obligations under this Agreement, the Schedules attached hereto and any other agreements entered into by Seller in connection with the transactions contemplated by this Agreement;
(ii) any of Seller’s liabilities or obligations for expenses, fees or Taxes 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, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 9.3 hereof;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller for Taxes for any periodperiod without regard to whether such Taxes relate to periods (or portions thereof) ending on or prior to the Closing Date, except for the portion of transfer the Taxes to be paid by Buyer pursuant to Section 6.7 9.3 hereof, including the Puerto Rico Taxes;
(iv) any liability or obligation under or with respect to any Seller Employee Benefit Plan Plans or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liability;
(v) any liability or obligation with respect to any products or services that were marketed or sold or services that were performed prior to the Closing, including professional or product liability, infringement claims and any related claims and litigation arising prior to, on or after the Closing Date;
(vi) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any of Seller’s liabilities or obligations for vacation pay, sick pay or holiday pay (except to the extent reflected on the Working Capital Statement and taken into account in the determination of Net Working Capital), salary, bonuses (including bonuses paid in connection with the consummation of the transactions contemplated hereby) or other payments or liabilities of any kind to any Business Employees or current or former employee of Seller, including any liabilities or obligations arising prior to the Closing with respect to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule)Employee;
(vii) any liability or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Date;
(viii) any of Seller’s liabilities or obligations arising (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authorityGovernmental Authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, except (subject to Section 10.2(a)(i)(6)) for any breach of an Assumed Contract due to the failure to obtain consent to assignment of any such Assumed Contract to the Buyer, or (C) arising under any Environmental Lawsand Safety Requirements;
(ix) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim arising out of or in connection with Seller’s or any of its Subsidiary’s conduct of the Business or Business, any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents or advisors on or prior to the Closing Date, and any liabilities or obligations arising under the Shared Services Agreement;
(x) any of Seller’s liabilities or obligations for IndebtednessIndebtedness to the extent not included in Final Working Capital, except that Buyer shall assume Seller’s liabilities and obligations accruing from and after the Closing under personal property leases identified in Schedule 2.1(a)(iv);
(xi) any liabilities or obligations in respect of any of the Excluded Assets (including under any contracts, leases, commitments or understandings related thereto);
(xii) any of Seller’s liabilities or obligations which Buyer may become liable for as a result of or in connection with the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto de facto merger” or “successor-in-interest” theories of liability;; and
(xiii) any of Seller’s the liabilities or obligations with respect to amounts disputed by Seller specifically identified and not paid to the landlords of the properties listed described on the Schedule 2.2(b)(xiii) attached Leased Real Property Schedule; and
(xiv) any other liabilities or obligations of Seller not expressly assumed by Buyer pursuant to Section 2.2(a) abovehereto.
Appears in 1 contract
Liabilities Not Assumed. Notwithstanding anything It is expressly understood and agreed that with respect to the contrary in this Agreementliabilities, Buyer shall not assume or in any way become liable for any of Seller’s debts, liabilities or obligations and contracts of, and claims against, Seller and RLA as of any nature whatsoever (the Closing Date, other than the Assumed Liabilities), Purchaser shall not assume, nor shall it be liable for, any liability, debt, obligation, or Contract of Seller, RLA or any Affiliate thereof, or any claim against any of the foregoing, of any kind or nature whatsoever, at any time existing or asserted, whether or not accrued, absolutewhether fixed, contingent or otherwise, whether known or unknown, and whether due or not recorded on the books and records of Seller or RLA, all of which shall be retained by Seller and RLA, respectively, and which are hereafter referred to as the "Retained Liabilities." Without limiting the foregoing, Purchaser shall have no responsibility with respect to any of the following liabilities of Seller and/or RLA (all of which shall be deemed to be Retained Liabilities) whether or not disclosed on the Financial Statements:
(a) except for the Assumed Expenses, any liability of Seller or RLA for (i) accrued salaries and wages, vacation pay, accrued bonuses and other employment benefits or commissions and related Taxes and (ii) severance payments or other termination benefits payable to employees of Seller or RLA, irrespective of whether such individuals are Transferred Employees; Transferred Employees' salaries shall begin for the work performed commencing February 12, 2005.
(b) any liability of Seller, RLA or any ERISA Affiliate thereof arising out of any Employee Plan or Benefit Arrangement maintained, or contributed to, by Seller, RLA or any ERISA Affiliate thereof including, without limitation, liabilities attributable to a complete or partial withdrawal from a Multiemployer Plan or to become the PBGC for benefit liabilities or premiums due, any liability resulting from failure to provide continuation coverage required by COBRA, any liabilities arising out of any nonqualified plan or plans covering any employees or former employees of Seller or RLA, or any liability of Seller or RLA under any and all medical, dental, disability or other employee welfare reimbursement plan or any other plan of any nature whatsoever maintained by Seller or RLA for the benefit of its employees or under any similar governmental plan to which Seller or RLA is subject;
(c) any liability of Seller or RLA relating to the Excluded Assets or other government-imposed fees or charges arising out of doing business in any jurisdiction where Seller or RLA is not qualified to do business as a foreign corporation or partnership that would not have been incurred if Seller or RLA had been so qualified;
(d) any liability of Seller or RLA for any indebtedness, whether for borrowed money or otherwise, to any bank, bondholder, trade or non-trade creditor (other than the Assumed Liabilities), customer, employee, lessor, financial institution, government entity, trust company, shareholder, director, officer, consultant, agent or other Person, either directly or by reason of any guaranty or other Contract;
(e) any liability of Seller or RLA arising after the Closing Date, except for the Assumed Liabilities;
(f) any obligations and liabilities arising from the non-compliance by Seller or RLA with any Legal Requirement (including all Environmental Laws) through the Closing Date, or attributable to or caused by Seller, RLA or the Purchased Assets;
(g) any liability for workers compensation claims, general liability claims, automobile liability claims or any other negligent act or omission of Seller or RLA, whether related to the Business or the Purchased Assets and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including clauses (i) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”):
(i) any of Seller’s liabilities or obligations under this Agreement, the Schedules attached hereto and any other agreements entered into by Seller in connection with the transactions contemplated by this Agreement;
(ii) any of Seller’s liabilities or obligations for expenses, fees or Taxes incident to or otherwise arising out of the negotiation, preparation, approval acts or authorization of this Agreement or the consummation (or preparation for the consummation) of the transactions contemplated hereby (including all attorneys’ and accountants’ fees, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(iv) any liability or obligation under or with respect to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liability;
(v) any liability or obligation with respect to any products or services that were marketed or sold prior to the Closing, including product liability, infringement claims and any related claims and litigation arising occurrences prior to, on or after commencing prior to, the Closing Date;
(vi) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any of Seller’s liabilities or obligations of any kind to any Business Employees or former employee of Seller, including any liabilities or obligations arising prior to the Closing with respect to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule);
(viih) any liability of Seller or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Date;
(viii) any of Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising RLA under any Environmental Laws;
(ix) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct of Contract except for the Business or any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents or advisors on or prior to the Closing Date;
(x) any of Seller’s liabilities or obligations for Indebtedness;
(xi) any liabilities or obligations in respect of any of the Excluded Assets (including under any contracts, leases, commitments or understandings related thereto);
(xii) any of Seller’s liabilities or obligations which Buyer may become liable for as a result of or in connection with the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liability;
(xiii) any of Seller’s liabilities or obligations with respect to amounts disputed by Seller and not paid to the landlords of the properties listed on the attached Leased Real Property ScheduleAssumed Contracts; and
(xivi) any other liabilities or obligations liability of Seller not expressly assumed by Buyer pursuant to Section 2.2(a) aboveor RLA for any Tax.
Appears in 1 contract
Liabilities Not Assumed. Notwithstanding anything Anything in this Agreement to the contrary in this Agreementnotwithstanding, the Buyer shall not assume or in any way become be liable or responsible for, and the Seller shall be responsible for the payment, performance and discharge of, any of Seller’s debts, liabilities or obligations of any nature whatsoever (other than the Seller except as specifically provided in Section 1.3. Without limiting the generality of the foregoing, and notwithstanding anything to the contrary in Section 1.3, the Buyer shall not assume, the Assumed Liabilities), whether accrued, absolute, contingent or otherwise, whether known or unknown, whether due or to become due, whether related to the Business or the Purchased Assets and whether disclosed on the Schedules attached heretoLiabilities shall not include, and regardless of when or by whom assertedthe Seller shall retain and indemnify the Buyer against, including clauses pursuant to Section 11.1, the following (i) through (xiv) below (collectively referred to herein as collectively, the “Excluded Liabilities”"EXCLUDED LIABILITIES"):
(ia) all liabilities, obligations and expenses relating to the Excluded Assets;
(b) all liabilities, obligations and expenses of any kind in excess of that amount properly accrued on the Closing Balance Sheet;
(c) any of Seller’s liabilities or obligations under this Agreement, the Schedules attached hereto and any other agreements entered into by Seller Taxes payable in connection with the transactions contemplated by this Agreement;
(iid) defaults by the Seller under any of Seller’s liabilities contracts or obligations for expensesother agreements (including, fees or Taxes incident to or arising out of the negotiationwithout limitation, preparation, approval or authorization of this Agreement or the consummation Real Property Leases) (or preparation for the consummationi) of the transactions contemplated hereby (including all attorneys’ and accountants’ fees, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(iv) any liability or obligation under or with respect to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liability;
(v) any liability or obligation with respect to any products or services that were marketed or sold prior to the Closing, including product liability, infringement claims and any related claims and litigation arising prior to, on or after the Closing Date;
(vi) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any of Seller’s liabilities or obligations of any kind to any Business Employees or former employee of Seller, including any liabilities or obligations arising prior to the Closing with respect to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule);
(vii) any liability or obligation relating to workers’ compensation claims which were filed or presented occurring on or before the Closing Date or which are filed (ii) caused by or presented after arising out of the Closing Date but relate to claims and/or injuries first arising on execution or before performance of this Agreement or the Closing Dateconsummation of the transactions contemplated hereby;
(viiie) any of Seller’s liabilities or all liabilities, obligations (A) arising by reason and expenses of any violation kind or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Laws;
(ix) any of Seller’s liabilities or obligations nature relating to any legal action, proceeding Environmental Actions (as defined in Section 14.1(f)) attributable to the ownership or claim arising out of or in connection with Seller’s conduct operation of the Business or any other conduct of Sellerthe Assets by the Seller or its predecessors or affiliates on or prior to the Closing Date or to events that have occurred, Seller’s officersor conditions that existed, directors, employees, consultants, agents or advisors on or prior to the Closing Date;
(xf) any all claims, liabilities and obligations, known or unknown, whether absolute, contingent or otherwise, the existence of Seller’s liabilities or obligations for Indebtedness;
(xi) any liabilities or obligations in respect which is a breach of any representation, warranty, covenant or agreement of the Excluded Assets (including under any contracts, leases, commitments or understandings related thereto);
(xii) any of Seller’s liabilities or obligations which Buyer may become liable for as a result of or Seller set forth in connection with the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liability;
(xiii) any of Seller’s liabilities or obligations with respect to amounts disputed by Seller and not paid to the landlords of the properties listed on the attached Leased Real Property Schedulethis Agreement; and
(xivg) all other liabilities, obligations and expenses of any other liabilities nature whatsoever, known or obligations of Seller unknown, whether absolute, contingent or otherwise, not expressly assumed by the Buyer pursuant to Section 2.2(a) above1.3.
Appears in 1 contract
Liabilities Not Assumed. Notwithstanding anything to the contrary in this Agreement, Buyer shall Seller agrees that Purchaser is not assume or in assuming any way become liable for any of Seller’s debts, liabilities or obligations of any nature whatsoever (other than the Assumed Liabilities), whether accrued, absolute, contingent or otherwise, whether known or unknown, whether due or to become due, whether related to the Business or the Purchased Assets and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including clauses (i) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”):
(i) any of Seller’s liabilities or obligations under this Agreement, the Schedules attached hereto and any other agreements entered into by Seller in connection with the transactions contemplated by this Agreement;
(ii) any of Seller’s liabilities or obligations for expenses, fees or Taxes 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, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(iv) any liability or obligation under or with respect to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liability;
(v) any liability or obligation with respect to any products or services that were marketed or sold prior to the Closing, including product liability, infringement claims and any related claims and litigation arising prior to, on or after the Closing Date;
(vi) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any of Seller’s liabilities or obligations of any kind to any Business Employees or former employee of Seller, including any liabilities or obligations arising prior to the Closing with respect to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule);
(vii) any liability or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Date;
(viii) any of Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Laws;
(ix) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct of the Business or any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents or advisors on or prior to the Closing Date;
(x) any of Seller’s liabilities or obligations for Indebtedness;
(xi) any liabilities or obligations in respect of any of the Excluded Assets (including under any contracts, leases, commitments or understandings related thereto);
(xii) any of Seller’s liabilities or obligations which Buyer may become liable for as a result of or in connection with the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liability;
(xiii) any of Seller’s liabilities or obligations with respect to amounts disputed by Seller and not paid to the landlords of the properties listed on the attached Leased Real Property Schedule; and
(xiv) any other liabilities or obligations of Seller hereunder other than: (i) obligations and liabilities with respect to the period from and after the Closing arising under any of the Business Instruments and Licenses set forth on Schedule 4(e) and Schedule 4(f), respectively, (ii) obligations and liabilities arising out of Purchaser’s operation of the Broadband Business from and after the Closing including, without limitation, executory Subscriber contracts and (iii) obligations and liabilities for Subscriber prepayments, deposits and credits of the Broadband Business as of the Closing Date (all such liabilities and obligations described in Sections 3(i), (ii) and (iii) being hereinafter collectively referred to as the “Assumed Liabilities.” For purposes of clarity, the parties agree that Purchaser is not expressly assumed assuming any obligations or liabilities arising under or related to the legal proceedings described in Schedule 4(g) hereto and should Purchaser incur any loss or damage directly resulting from the obligations or liabilities arising under or related to the legal proceedings described in Schedule 4(g) and seek indemnification for such losses or damages in accordance with the terms of this Agreement, the limitations set forth in Section 9(e) hereof shall not apply. At and after the Closing Date, Purchaser shall assume, discharge and otherwise satisfy the Assumed Liabilities. Other than any Assumed Liabilities, obligations and liabilities with respect to the pre-Closing period shall be the responsibility of Seller, and if any such item is paid by Buyer pursuant Purchaser following the Closing, Seller shall be obligated to Section 2.2(a) abovereimburse Purchaser therefor in accordance with the terms of this Agreement.
Appears in 1 contract
Liabilities Not Assumed. Notwithstanding anything contained in this Agreement to the contrary contrary, Buyer does not assume or agree or undertake to pay, satisfy, discharge or perform in respect of, and will not be deemed by virtue of the execution and delivery of this Agreement or any Transaction Documents or other document delivered at the Closing pursuant to this Agreement, Buyer shall not assume or as a result of the consummation of the Transactions, to have assumed, or to have agreed to pay, satisfy, discharge or perform in respect of, any Liabilities of any Seller or its Affiliates or of any other Person or in any way become liable for any of Seller’s debts, liabilities or obligations of any nature whatsoever (relating to the Business other than the Assumed Liabilities), whether accrued, absolute, contingent or otherwise, whether known or unknown, whether due or to become due, whether related to the Business or the Purchased Assets and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including clauses the following (i) through (xiv) below (collectively referred to herein as such Liabilities retained by any Seller and its Affiliates, collectively, the “Excluded Liabilities”):
(a) all Liabilities to or in respect of (i) any Transferring Employee, including their employment by any Seller Entity or any Affiliate of any Seller, in each case with respect to periods prior to such Transferring Employee’s liabilities or obligations under this AgreementEmployment Transfer Date, the Schedules attached hereto and any other agreements entered into by Seller in connection with the transactions contemplated by this Agreement;
(ii) any Nortel Employee Plan or prior employee benefit plan of Seller’s liabilities any Seller or its Affiliates, including for severance or other obligations for expenses, fees to Transferring Employees arising prior to such Transferring Employees’ Employment Transfer Date or Taxes incident to or arising out as a result 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, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereofTransactions;
(iiib) except as set forth on in Section 2.3(c), all Liabilities of any Seller or its Affiliates for Taxes, including (i) Taxes that are the Accrued Liabilities and Assumed Payables Schedule, responsibility of any liability or obligation of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, 9.1 and (ii) all Taxes arising out of the operations of the Business (including ownership of the Puerto Rico TaxesAcquired Assets) with respect to transactions occurring prior to or periods (or portions thereof) ending prior to the Effective Time;
(ivc) all Liabilities of any Seller or its Affiliates under this Agreement or any other Transaction Document;
(d) all Liabilities for legal, accounting and audit fees (except as provided in Section 9.15) and any other expenses incurred by any Seller or any of its Affiliates in connection with this Agreement, any other Transaction Document or consummation of the Transactions, including any fees, expenses or other payments incurred or owed by any Seller or any of its Affiliates to any agent, broker, investment banker or other firm or Person retained or employed by any Seller or any of its Affiliates in connection with the Transactions;
(e) all Liabilities of any Seller or any of its Affiliates, to the extent relating to the Excluded Assets;
(f) except as provided in Section 2.3(d) and/or as specified in the Master Purchase Agreement, all Liabilities with respect to defective product claims and product liability or obligation claims and causes of action arising with respect to Products shipped prior to Closing;
(g) all Liabilities under or arising from the VSS Products with respect to periods prior to Closing Date, including claims relating to warranty obligations or other Liabilities under or arising from Contracts that have been entered into prior to the Closing Date with respect to VSS Products; provided, that Buyer and the other Buyer Entities shall be responsible for all Liabilities with respect to any Seller Employee Benefit Plan implementation of the features or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to functionality of the VSS Products in whatsoever manner implemented by Seller Buyer or its ERISA Affiliates, or in accordance with respect to which Seller or any such ERISA Affiliate has any liabilitySection 2.3(e), from and after the Closing;
(vh) any liability or obligation with respect all Liabilities relating to any products Seller’s and/or its Affiliates’ ownership or services that were marketed use of the Acquired Assets, or sold the conduct or operation of the Business, or the activities of any Seller and/or its Affiliates in connection with the Acquired Assets or the Business prior to the Closing, including product liability, infringement claims and any related claims and litigation arising prior to, on or after to the Closing Dateextent not an Assumed Liability;
(vii) except as set forth on the Accrued all Liabilities and Assumed Payables Schedule, any of Seller’s liabilities or obligations of any kind to any Business Employees or former employee of Seller, including any liabilities or obligations arising prior to the Closing with respect to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule);
(vii) any liability or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Date;
(viii) any of Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Laws;
(ix) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct of the Business or any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents or advisors on or prior to the Closing Date;
(x) any of Seller’s liabilities or obligations for Indebtedness;
(xi) any liabilities or obligations in respect of any of the Excluded Assets (including under any contracts, leases, commitments or understandings related thereto);
(xii) any of Seller’s liabilities or obligations which Buyer may become liable for applicable Bulk Sales Laws as a result of or in connection with the failure actions contemplated by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liability;
(xiii) any of Seller’s liabilities or obligations with respect to amounts disputed by Seller and not paid to the landlords of the properties listed on the attached Leased Real Property ScheduleSection 7.5; and
(xivj) all Liabilities relating to any other liabilities assets, operations, products, businesses or obligations activities of any Seller and/or its Affiliates that are not expressly assumed by Buyer pursuant to Section 2.2(a) abovepart of the Business.
Appears in 1 contract
Liabilities Not Assumed. Notwithstanding anything to Except for the contrary in this AgreementAssumed Liabilities, Buyer shall Seller agrees that Purchaser will not assume or in any way become liable perform, and Seller shall remain responsible for any and all liabilities and obligations of Seller’s debts, liabilities or obligations of any nature whatsoever (other than the Assumed Liabilities), whether accrued, absolute, contingent or otherwise, whether known or unknown, whether due accrued, fixed or to become duecontingent, whether related to the Business secured or the Purchased Assets and whether disclosed on the Schedules attached heretounsecured, of any kind whatsoever, and regardless of when or by whom asserted, including clauses (i) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”):
(i) any of Seller’s such liabilities or obligations under this Agreementarise or are asserted, the Schedules attached hereto including, but not limited to: (1) any claims of current and former employees of Seller or any other agreements entered into of its subsidiaries made in respect of such employment by Seller or any of its subsidiaries including, without limitation, all claims for salary, wages and vacation benefits related to periods or arising prior to the Closing; (2) workers’ compensation claims arising in connection with the transactions contemplated course of employment by this Agreement;
Seller or any of its subsidiaries prior to the Closing; (ii3) Plans (as defined below) offered to employees of Seller; (4) any of Seller’s loans or indebtedness owed by Seller to any financial institution or other person other than Trade Payables; (5) any Environmental Claims (as defined herein) or liabilities or obligations for expensesarising under any Environmental Laws (as defined herein), fees or Taxes incident to or in either case arising out of use of any location other than the negotiation, preparation, approval Building (as defined below) in Seller’s business; (6) any product liability claims (other than Warranty Claims) on account of any product shipped by Seller before the Closing; and (7) any obligation or authorization liability of this Agreement every kind arising from or the consummation (or preparation for the consummation) related to any of the transactions contemplated hereby Excluded Assets. Seller agrees that it is liable for, and acknowledges its obligation to pay, any and all monies due and payable to its employees that have accrued as of the Closing Date. With respect to Taxes (including all attorneys’ and accountants’ fees, brokerage fees and transfer Taxesas defined below), except Seller specifically agrees to retain, and shall be responsible for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;paying, performing and discharging when due, and Purchaser shall not assume or have any responsibility for:
(iiiA) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability All Taxes now or obligation of hereafter owed by Seller for Taxes for any period, except for the portion of transfer including but not limited to Seller Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes(as defined below);
(ivB) All other Taxes relating to the Purchased Assets, the Business or the Assumed Liabilities for any liability or obligation under or with respect period prior to any the Closing; and
(C) Taxes of Seller Employee Benefit Plan or any other employee benefit planperson by reason of being a member of a consolidated, programcombined, policy unitary or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which affiliated group that includes Seller or any such ERISA Affiliate has any liability;
(v) any liability of its present or obligation with respect to any products or services that were marketed or sold past affiliates prior to the Closing, including product liabilityby reason of a tax sharing, infringement claims tax indemnity or similar agreement entered into by Seller or any of its present or past affiliates or any other person or by reason of transferee or successor liability arising in respect of a transaction undertaken by Seller or any of its present or past affiliates. Any tax sharing agreement between Seller and any related claims and litigation arising prior to, on or after EDSI shall be automatically terminated as of the Closing Date;
(vi) except as set forth on . For the Accrued Liabilities purposes of this Agreement, “Taxes” means any and Assumed Payables Scheduleall taxes, any of Seller’s liabilities or obligations fees, levies, duties, tariffs, imposts, and other charges of any kind (together with any and all interest, penalties, additions to tax and additional amounts imposed with respect thereto) imposed by any Business Employees Governmental Authority or former employee of Sellerother taxing authority, including any liabilities taxes or obligations arising prior to the Closing other charges on or with respect to the exempt income, franchises, windfall or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statementsother profits, disclosed to Buyergross receipts, property, sales, use, capital stock, payroll, employment, withholding, social security, workers’ compensation, unemployment compensation, or set forth on any Schedule attached hereto including net worth; taxes or other charges in the Accrued Liabilities and Assumed Payables Schedule);
(vii) any liability nature of excise, withholding, ad valorem, stamp, transfer, value added, or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Date;
(viii) any of Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, gains taxes; license, commitmentregistration and documentation fees; and customs’ duties, instrumenttariffs, judgment, order or decree, or (C) arising under any Environmental Laws;
(ix) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct of the Business or any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents or advisors on or prior to the Closing Date;
(x) any of Seller’s liabilities or obligations for Indebtedness;
(xi) any liabilities or obligations in respect of any of the Excluded Assets (including under any contracts, leases, commitments or understandings related thereto);
(xii) any of Seller’s liabilities or obligations which Buyer may become liable for as a result of or in connection with the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liability;
(xiii) any of Seller’s liabilities or obligations with respect to amounts disputed by Seller and not paid to the landlords of the properties listed on the attached Leased Real Property Schedule; and
(xiv) any other liabilities or obligations of Seller not expressly assumed by Buyer pursuant to Section 2.2(a) abovesimilar charges.
Appears in 1 contract
Liabilities Not Assumed. Notwithstanding anything to the contrary Except as expressly set forth in this Agreement, the Buyer shall does not assume or in agree to perform any way become liable for Liabilities not specifically contemplated by Section 2.3 hereof, including any of Seller’s debtsthe following Liabilities (collectively, liabilities or obligations of any nature whatsoever (other than the Assumed Liabilities), whether accrued, absolute, contingent or otherwise, whether known or unknown, whether due or to become due, whether related to the Business or the Purchased Assets and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including clauses (i) through (xiv) below (collectively referred to herein as the “"Excluded Liabilities”"):
(ia) any Any Liability of Seller’s liabilities , or obligations under this Agreement, the Schedules attached hereto and any other agreements entered into by Seller in connection with the transactions contemplated by this Agreement;
(ii) any Affiliate of Seller’s liabilities or obligations for expenses, fees or Taxes 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, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller for Taxes for any taxable period, except and any Liability for Taxes attributable to the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(iv) any liability or obligation under or with respect to any Seller Employee Benefit Plan Acquired Assets for all periods or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liability;
(v) any liability or obligation with respect to any products or services that were marketed or sold prior to the Closing, including product liability, infringement claims and any related claims and litigation arising prior to, on or after the Closing Date;
(vi) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any of Seller’s liabilities or obligations of any kind to any Business Employees or former employee of Seller, including any liabilities or obligations arising prior to the Closing with respect to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule);
(vii) any liability or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Date;
(viii) any of Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Laws;
(ix) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct of the Business or any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents or advisors on or portion thereof prior to the Closing Date;
(xb) any Any Liability of Seller’s liabilities , or obligations for Indebtednessany Affiliate of Seller, to indemnify any person by reason of the fact that such person was a director, officer, employee or agent of Seller, or any Affiliate of Seller, or that such person was serving at the request of Seller, or any Affiliate of Seller, as a partner, trustee, director, officer, employee or agent of another entity;
(xic) any liabilities or obligations in respect of any of the Excluded Assets (including under any contracts, leases, commitments or understandings related thereto);
(xii) any Any Liability of Seller’s liabilities , or obligations which Buyer may become liable for any Affiliate of Seller, as a result of any legal or equitable action or judicial or administrative proceeding initiated at any time caused by any action that occurred or condition that existed on or prior to the Closing Date and in respect of anything done, suffered to be done, or omitted to be done by Seller, or any Affiliate of Seller, or any of their directors, officers, employees or agents, except for such actions or proceedings arising from or directly related to those specific Liabilities as the Buyer has assumed pursuant to Section 2.3 above;
(d) Any Liability of Seller, or any Affiliate of Seller, for costs and expenses incurred in connection with this Agreement and the failure transactions contemplated hereby;
(e) Any Liability or obligation of Seller, or any Affiliate of Seller, arising out of any Employee Benefit Plan established or maintained by Buyer Seller, or Seller any Affiliate of Seller, for the benefit of past or present employees of Seller, or Affiliate of Seller, or to comply with which Seller, or Affiliate of Seller, contributes, or any bulk sales Liability on the termination of any such plan;
(f) Any Liability of Seller, or bulk transfers laws any Affiliate of Seller, for making payments or providing benefits of any kind to their employees or former employee engaged in the Business, including, without limitation, (A) as a result of the sale of the Acquired Assets or as a result of the termination by Seller, or any “defacto merger” Affiliate of Seller, of any employees engaged in the Business or “successordecision by Buyer to hire or not to hire any such employees or to terminate such employees within 180 days of the Closing Date, (B) any obligation to provide former employees of Seller engaged in the Business (including individuals who become former employees by reason of the consummation of the transactions contemplated by this Agreement) so-incalled COBRA continuation coverage, (C) any Liability in respect of medical and other benefits for existing and future retirees engaged in the Business and for claims made after Closing Date in respect of costs and expenses incurred on or prior to the Closing Date, (D) any Liability in respect of work-interest” theories related employee injuries or worker's compensation claims by employees or former employees of liabilitySeller engaged in the Business, (E) any Liability in respect of employee bonuses payable to former employees of Seller engaged in the Business and (F) any Liability for vacation pay or similar accruals;
(xiiig) Any Liability pertaining to Seller, or any Affiliate of Seller’s liabilities , or obligations with respect to amounts disputed by Seller their respective businesses and not paid arising out of or resulting from noncompliance on or prior to the landlords Closing Date with any laws, statutes, ordinances, rules, regulations, orders, determinations, judgments or directives, whether legislatively, judicially or administratively promulgated (including, without limitation, any Environmental Liabilities and Costs, whether or not arising out of the properties listed on the attached Leased Real Property Schedule; and
(xivor resulting from noncompliance with Environmental Laws by Seller, or any Affiliate of Seller) but excluding any other liabilities or warranty obligations of Seller not expressly assumed by Buyer pursuant to Sections 2.3(b) and 2.3(e);
(h) Any Liability of Seller, or any Affiliate of Seller, under any licenses, leases, contracts or agreements except as contemplated by Section 2.2(a2.3;
(i) aboveAll Liabilities incurred by Seller in connection with the conduct of its businesses other than the Business; and
(j) Any Liability in respect of trade accounts payable, or payable obligations, incurred prior to the Closing Date.
Appears in 1 contract
Liabilities Not Assumed. Notwithstanding anything to the contrary Except as expressly set forth in this Agreement, Buyer shall the Buyers do not assume or in perform any way become liable for Liabilities or obligations not specifically contemplated by Section 2.3 hereof nor any of Seller’s debts, liabilities the following Liabilities and obligations (collectively the "Excluded Liabilities")
(a) Any Liability or obligations obligation of the Sellers or any nature whatsoever of their Subsidiaries (other than the Assumed Liabilities)Acquired Subsidiaries) for Taxes for any taxable period, whether accrued, absolute, contingent any Liability or otherwise, whether known obligation of the Acquired Subsidiaries for any taxable period or unknown, whether due portion of any period ending on or to become due, whether related prior to the Business or the Purchased Assets and whether disclosed on the Schedules attached heretoEffective Date, and regardless any Liability or obligation for Taxes attributable to the Acquired Assets or operations of when the Sellers for any taxable period or by whom asserted, including clauses (i) through (xiv) below (collectively referred portion of any period ending on or prior to herein as the “Excluded Liabilities”):Effective Date;
(ib) Any Liability or obligation of the Sellers or any of their Subsidiaries to indemnify any Person by reason of the fact that such Person was a director, officer, employee or agent of any Seller or any of such Seller’s liabilities 's Subsidiaries or obligations under this Agreementwas serving at the request of such Seller or any of such Seller's Subsidiaries as a partner, trustee, director, officer, employee or agent of another entity;
(c) Any Liability or obligation of the Schedules attached hereto Sellers or any of their Subsidiaries as a result of any legal or equitable action or judicial or administrative proceeding initiated at any time caused by any action that occurred or condition that existed on or prior to the Effective Date and in respect of anything done, suffered to be done or omitted to be done by the Sellers or any other agreements entered into by Seller of their Subsidiaries or any of their directors, officers, employees or agents;
(d) Any Liability of the Sellers or any of their Subsidiaries for costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby;
(e) Any Liability or obligation of the Sellers or any of their Subsidiaries under this Agreement or incurred in connection with the making or performance of this Agreement;
(f) Any Liability or obligation for products manufactured or sold or services rendered on or prior to the Effective Date, including for product returns or credits taken, except only for those specific Liabilities for end user product warranty repair and replacement as the Buyers have assumed pursuant to Section 2.3 above;
(g) Any Liability or obligation of any Seller or any of such Seller's Subsidiaries arising out of any Employee Benefit Plan established or maintained by such Seller or any of its Subsidiaries for the benefit of past or present employees of such Seller or any of its Subsidiaries, or to which such Seller or any of its Subsidiaries contributes, or any Liability on the termination of any such plan;
(h) Any Liability or obligation of the Sellers or any of their Subsidiaries for making payments or providing benefits of any kind to their employees or former employees (including, without limitation, (A) as a result of the sale of the Acquired Assets or as a result of the termination by the Sellers or any of their Subsidiaries of any employees or, in the case of employees located in the United States, decision by Buyers to hire or not to hire any such employees, (B) any obligation to provide former employees (including individuals who become former employees by reason of the consummation of the transactions contemplated by this Agreement;
(ii) any of Seller’s liabilities or obligations for expensesso-called COBRA continuation coverage, fees or Taxes 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, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(iv) any liability or obligation under or with respect to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liability;
(v) any liability or obligation with respect to any products or services that were marketed or sold prior to the Closing, including product liability, infringement claims and any related claims and litigation arising prior to, on or after the Closing Date;
(vi) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any of Seller’s liabilities or obligations of any kind to any Business Employees or former employee of Seller, including any liabilities or obligations arising prior to the Closing with respect to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule);
(vii) any liability or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Date;
(viii) any of Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Laws;
(ix) any Liability or obligation in respect of Seller’s liabilities or obligations relating to any legal action, proceeding or claim arising out medical and other benefits for existing and future retirees and for claims made after Effective Date in respect of or in connection with Seller’s conduct of the Business or any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents or advisors costs and expenses incurred on or prior to the Closing Effective Date;
, (xD) any of Seller’s liabilities Liability or obligations for Indebtedness;
(xi) any liabilities or obligations obligation in respect of work-related employee injuries or worker's compensation claims and (E) any Liability or obligation in respect of the Excluded Assets (including under any contracts, leases, commitments or understandings related theretoemployee bonuses);
(xiii) Any Liability pertaining to the Sellers or any of Seller’s liabilities their Subsidiaries or obligations which Buyer may become liable for as a result their respective businesses and arising out of or in connection with resulting from noncompliance on or prior to the failure by Buyer or Seller to comply Effective Date with any bulk sales laws, statutes, ordinances, rules, regulations, orders, determinations, judgments or bulk transfers laws directives, whether legislatively, judicially or administratively promulgated (including, without limitation, any Environmental Liabilities and Costs whether or not arising out of or resulting from any of the Sellers' or any their Subsidiaries', as a result of any “defacto merger” or “successor-in-interest” theories of liabilitythe case may be, noncompliance with Environmental Laws);
(xiiij) Any Liability or obligation of the Sellers or any of Seller’s liabilities their Subsidiaries under any licenses, leases, contracts or obligations with respect to amounts disputed by Seller and agreements not paid to the landlords of the properties listed on the attached Leased Real Property ScheduleSchedule 2.1(f) and Schedule 3.14; and
(xivk) any other liabilities Any Liability or obligation in respect of accounts payable, or payable obligations of Seller not expressly assumed by Buyer pursuant incurred prior to Section 2.2(a) abovethe Effective Date.
Appears in 1 contract
Liabilities Not Assumed. Notwithstanding anything Any provision of this Agreement to the contrary in this Agreementnotwithstanding (and without implication that Buyer is assuming any liability or obligation not expressly excluded and, Buyer shall not assume or in any way become liable for where applicable, without implication that any of Seller’s debts, liabilities or obligations of any nature whatsoever (other than the following have been included in the Assumed Liabilities), whether accruedexcept as specifically set forth in Section 2.3 above, absolute, contingent or otherwise, whether known or unknown, whether due or to become due, whether related to the Business or the Purchased Assets Seller shall retain and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including clauses (i) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”):
(i) any of Seller’s discharge all its liabilities or obligations under this Agreementarising or alleged to arise from, the Schedules attached hereto and any other agreements entered into by Seller relating to, in connection with or resulting from the transactions contemplated ownership of the Assets by this Agreement;Parent, Seller or any other prior owner of any of the Assets and each of their respective predecessors and Affiliates or the operation of the Business by Parent, Seller, any other prior operator of the Business and each of their respective predecessors and Affiliates, whether arising prior to, on or after the Closing Date (the "Excluded Liabilities"), including, but not limited to, the following:
(iia) any of Seller’s liabilities or obligations for expenses, fees or Taxes 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, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(ivb) any liability liabilities or obligation under obligations of Parent, Seller or with respect any of their Affiliates to any current or former officer, director, employee, shareholder, agent, advisor, representative or Affiliate of Parent, Seller or any of their Affiliates or any current or former officer, director, employee, shareholder, agent, advisor, representative or Affiliate of any of the foregoing;
(c) any liabilities or obligations arising out of or in connection with any Employee Benefit Plan or any other employee benefit plan, program, policy program or arrangement presently or formerly at any time maintained or contributed to by Seller or its any ERISA Affiliates, Affiliate or with respect to which Seller or any such ERISA Affiliate has any liability or potential liability;
(vd) any liabilities or obligations for severance benefits for employees of Parent, Seller or any of their Affiliates whose employment with Parent, Seller or any of their Affiliates is terminated on, prior to or after the Closing Date, or accrued vacation, sick pay or other accrued employee benefits;
(e) any liabilities or obligations under or relating to any plant closing or employee layoff activities by Parent, Seller or any of their Affiliates that violate or require notification pursuant to, the Worker Adjustment Retraining and Notification Act of 1988, as amended, or any similar state or local plant closing or mass layoff statute, rule or regulation;
(f) any liabilities or obligations (whether asserted before or after Closing Date) for any breach of a representation, warranty, or covenant, or for any claim for indemnification, contained in any Personal Property Lease, Business Contract or Business License agreed to be performed pursuant hereto by Buyer, to the extent that such breach or claim arises out of or by virtue of Seller's performance or nonperformance thereunder prior to the Closing Date, it being understood that, as between the parties hereto, this subsection shall apply notwithstanding any provision which may be contained in any form of consent to the assignment of any such Personal Property Lease, Business Contract or Business License which by its terms, imposes such liabilities upon Buyer and which assignment is accepted by Buyer notwithstanding the presence of such a provision, and that Seller's failure to discharge any such liability shall entitle Buyer to indemnification in accordance with the provisions of Article X (Buyer shall provide notice to Seller of any claim against Buyer for any liability or obligation described in this Section 2.4(f));
(g) any liabilities or obligations with respect to any products or services that were marketed or merchandise of the Business sold prior to the Closing, Closing Date (including product liability, infringement claims warranty liabilities); it being understood and agreed that any related claims and litigation arising prior to, on such liability or obligation asserted after the Closing Date;
(vi) except as set forth on Date arising out of the Accrued Liabilities and Assumed Payables Schedulesale of any product sold by Parent, Seller or any of Seller’s liabilities or obligations of any kind to any Business Employees or former employee of Seller, including any liabilities or obligations arising their Affiliates prior to the Closing with respect Date shall be considered to the exempt be a claim against or non-exempt status of any Business Employee or Employee Bonuses (whether or not such a liability or obligation has been accrued on Seller’s financial statements, disclosed to of Seller and therefore not assumed hereunder by Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule);
(viih) any liability liabilities or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Dateout of any Environmental, Health and Safety Requirements;
(viiii) any of Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Laws;
(ix) any of Seller’s liabilities or obligations relating to the Excluded Assets including any legal actionContract which is not a Personal Property Lease, proceeding Business Contract or claim arising out of or in connection with Seller’s conduct Business License; and
(j) without limitation by the specific enumeration of the Business or any other conduct of Sellerforegoing, Seller’s officers, directors, employees, consultants, agents or advisors on or prior to the Closing Date;
(x) any of Seller’s liabilities or obligations for Indebtedness;
(xi) any liabilities or obligations in respect of any of the Excluded Assets (including under any contracts, leases, commitments or understandings related thereto);
(xii) any of Seller’s liabilities or obligations which Buyer may become liable for as a result of or in connection with the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liability;
(xiii) any of Seller’s liabilities or obligations with respect to amounts disputed by Seller and not paid to the landlords of the properties listed on the attached Leased Real Property Schedule; and
(xiv) any other liabilities or obligations of Seller not expressly assumed by Buyer pursuant to the provisions of Section 2.2(a) above2.3. The assumption by Buyer of the Assumed Liabilities, and the transfer thereof by Seller, shall in no way expand the rights or remedies of any third party against Buyer or Seller or their respective officers, directors, employees, shareholders and advisors as compared to the rights and remedies which such third party would have had against such parties had Buyer not assumed such liabilities or obligations. Without limiting the generality of the preceding sentence, the assumption by Buyer of said liabilities or obligations shall not create any third party beneficiary rights. Seller shall pay and discharge when due, or contest in good faith, all of those liabilities or obligations of Seller which Buyer has not specifically agreed to assume pursuant to the provisions of Section 2.3.
Appears in 1 contract
Sources: Asset Purchase Agreement (Aqua Care Systems Inc /De/)
Liabilities Not Assumed. Notwithstanding anything to Other than the contrary in this AgreementAssumed Liabilities, the Buyer Group shall not assume or in any way become liable otherwise be responsible for any other Liabilities of Seller’s debts, liabilities Seller or obligations any of its Affiliates (including any nature whatsoever (other than the Assumed Liabilities)predecessor of Seller or its Affiliates or any prior owner of all or part of their respective businesses and assets) of whatever nature, whether accruedpresently in existence or arising hereafter (collectively, absolute, contingent or otherwise, whether known or unknown, whether due or to become due, whether related to the Business or the Purchased Assets and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including clauses (i) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”):
(i) any of Seller’s liabilities or obligations under this Agreement, the Schedules attached hereto and any other agreements entered into by ). Seller in connection with the transactions contemplated by this Agreement;
(ii) any of Seller’s liabilities or obligations for expenses, fees or Taxes incident to or arising out of the negotiation, preparation, approval or authorization of this Agreement or the consummation (or preparation shall be responsible for the consummation) of the transactions contemplated hereby (including all attorneys’ Excluded Liabilities, which shall be paid, performed and accountants’ fees, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(iv) any liability or obligation under or with respect to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to discharged by Seller or its ERISA Affiliates. Without limiting the foregoing, or with respect to which Excluded Liabilities means every Liability of Seller or any such ERISA Affiliate has any liability;of its Affiliates other than Assumed Liabilities, including:
(va) any liability or obligation with respect all Liabilities (other than the Warranty Obligations, the Return Obligations the Service Obligations and Uninvoiced Obligations) related to any products Transferred Contract or services that were marketed or sold prior to the Closing, including product liability, infringement claims Transferred Lease Agreement arising from events and any related claims and litigation arising prior to, circumstances occurring on or after the Closing Date;
(vi) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any of Seller’s liabilities or obligations of any kind to any Business Employees or former employee of Seller, including any liabilities or obligations arising prior to the Closing with respect to the exempt (including, in each case, Liabilities arising from any breach, default or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule);
(vii) any liability or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Date;
(viii) any of Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Laws;
(ix) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct of the Business or any other conduct member of Seller, Seller’s officers, directors, employees, consultants, agents the Seller Group of any Transferred Contract or advisors the Transferred Lease Agreement occurring on or prior to the Closing Date;
(x) any of Seller’s liabilities or obligations for Indebtedness;
(xi) any liabilities or obligations in respect of any of the Excluded Assets (including under any contracts, leases, commitments or understandings related thereto);
(xiib) any of Seller’s liabilities all Liabilities related to the Business Employees incurred, or obligations which Buyer may become liable for as a result of arising from, events and circumstances occurring, on or in connection with prior to the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liabilityClosing;
(xiiic) any all Indebtedness of Sellerthe Seller Group, whether or not related to the Acquired Assets;
(d) all Liabilities arising from the operation of the Business or the ownership of the Acquired Assets on or prior to Closing (other than the Warranty Obligations, the Return Obligations, the Service Obligations, and the Uninvoiced Obligations), including (i) all Liabilities for the infringement or misappropriation of a third party’s liabilities or obligations Intellectual Property Rights and (ii) all Liabilities arising from product liability claims arising prior to the Closing;
(e) the Accounts Payable of the Business generated prior to the Closing;
(f) all Liabilities related to employees of Seller and its Affiliates who are Non-Business Employees;
(g) all Third Party Expenses of the Seller Group;
(h) all Liabilities for (i) Taxes with respect to amounts disputed by Seller and not paid the ownership, possession or use of the Acquired Assets or the conduct of the Business prior to the landlords of the properties listed on the attached Leased Real Property ScheduleClosing, (ii) any Straddle Period Taxes allocated to Seller pursuant to this Agreement, and (iii) any Transfer Taxes allocated to Seller pursuant to this Agreement;
(i) all Seller Retained Environmental Liabilities; and
(xivj) any other liabilities or obligations all of Seller not expressly assumed by Buyer pursuant to Section 2.2(a) abovethe Liabilities set forth on Schedule 1.4(j).
Appears in 1 contract
Sources: Asset Purchase Agreement (Logitech International Sa)
Liabilities Not Assumed. (a) Notwithstanding anything to the contrary foregoing, the Purchaser shall not assume any obligation or liability resulting from or arising out of any breach of any representation, warranty or agreement of the Seller contained in this Agreement.
(b) The Purchaser undertakes no liability of the Seller not expressly assumed including, Buyer shall not assume without limitation, liability with respect to environmental claims and suits; liability for the payment of the Seller's outstanding loans and credit lines except as provided in this Agreement; any liability for making payments of any kind (including, as a result of the transactions contemplated hereby, for the employment or in termination of employment by the Seller of employees, or as a result of union contracts, if any, grievances, or other labor claims, or otherwise) to employees of the Seller; liability for pensions or other benefits to employees of the Seller; liability for making payments of any way become liable kind as a result of the termination of any agency; liability for making payments of any kind pursuant to any agreements, arrangements or understandings with employees or other persons out of the proceeds from the sale of the Transferred Assets; liability for any of Seller’s debts, liabilities Taxes (as defined below); liability for any fees or obligations of any nature whatsoever (other than expenses incurred by the Assumed Liabilities), whether accrued, absolute, contingent or otherwise, whether known or unknown, whether due or to become due, whether related to the Business or the Purchased Assets and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including clauses (i) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”):
(i) any of Seller’s liabilities or obligations under this Agreement, the Schedules attached hereto and any other agreements entered into by Seller in connection with the transactions contemplated by the Agreement, and any obligations, charges or liabilities of the Seller, the existence of which constitute a breach of any representation, warranty or agreement of the Seller contained in this Agreement;.
(iic) any of Seller’s liabilities or obligations for expenses, fees or Taxes 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, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 For purposes hereof, including the Puerto Rico "Taxes;
(iv) any liability or obligation under or with respect to any Seller Employee Benefit Plan or any other employee benefit plan" shall mean all taxes, programhowever, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liability;
(v) any liability or obligation with respect to any products or services that were marketed or sold prior to the Closing, including product liability, infringement claims and any related claims and litigation arising prior to, on or after the Closing Date;
(vi) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any of Seller’s liabilities or obligations of any kind to any Business Employees or former employee of Sellerdenominated, including any liabilities interest, penalties or obligations arising prior other additions to the Closing with tax that may become payable in respect to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statementsthereof, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule);
(vii) any liability or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Date;
(viii) any of Seller’s liabilities or obligations (A) arising imposed by reason of any violation or alleged violation of any federal, territorial, state, local or foreign law government or any requirement agency or political subdivision of any governmental authoritysuch government, (B) arising by reason of any breach or alleged breach by Seller of any agreementwhich taxes shall include, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Laws;
(ix) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct without limiting the generality of the Business foregoing, all income or any profits taxes (including, but not limited to, federal income taxes and state income taxes), payroll and employee withholding taxes, unemployment insurance, social security taxes, sales and use taxes, ad valorem taxes, excise taxes, franchise taxes, gross receipts taxes, business license taxes, occupation taxes, real and personal property taxes, stamp taxes, environmental taxes, transfer taxes, workers' compensation, Pension Benefit Guaranty Corporation premiums and other conduct governmental charges, and other obligations of Seller, Seller’s officers, directors, employees, consultants, agents the same or advisors on or prior of a similar nature to the Closing Date;
(x) any of Seller’s liabilities or obligations for Indebtedness;
(xi) any liabilities or obligations in respect of any of the Excluded Assets (including under any contractsforegoing, leaseswhich the Seller is required to pay, commitments withhold or understandings related thereto);
(xii) any of Seller’s liabilities or obligations which Buyer may become liable for as a result of or in connection with the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liability;
(xiii) any of Seller’s liabilities or obligations with respect to amounts disputed by Seller and not paid to the landlords of the properties listed on the attached Leased Real Property Schedule; and
(xiv) any other liabilities or obligations of Seller not expressly assumed by Buyer pursuant to Section 2.2(a) abovecollect.
Appears in 1 contract
Sources: Asset Purchase Agreement (Xoom Inc)
Liabilities Not Assumed. Notwithstanding anything to the contrary in this Agreement, neither Buyer nor any of its Affiliates shall not assume or in any way become liable otherwise be responsible for any Liabilities of Seller’s debtsSeller or any of its Affiliates (including, liabilities for the avoidance of doubt, any predecessor of Seller or obligations any of their respective Affiliates or any nature whatsoever (other than the Assumed Liabilitiesprior owner of all or part of their respective businesses and assets), whether accrued, absolute, contingent or otherwiseof whatever nature, whether known presently in existence or unknownarising hereafter, whether due or to become duewhich are not Assumed Liabilities (collectively, whether related to the Business or the Purchased Assets and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including clauses (i) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”):). Seller shall be responsible for the Excluded Liabilities. Without limiting the foregoing, Excluded Liabilities shall include the following Liabilities, notwithstanding any disclosure on the Seller Disclosure Schedule:
(ia) any of Seller’s liabilities or obligations under this Agreement, all Liabilities to the Schedules attached hereto and any other agreements entered into by Seller in connection with the transactions contemplated by this Agreement;
(ii) any of Seller’s liabilities or obligations for expenses, fees or Taxes incident extent not related to or arising out of the negotiationconduct of the Business, preparationincluding any claim, approval demand or authorization of this Agreement or other Action against the consummation (or preparation for the consummation) of Seller Group relating to the transactions contemplated hereby (including all attorneys’ and accountants’ fees, brokerage fees and transfer Taxes), except for by the portion Transaction Agreements by any current or former holder of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereofsecurities of Seller;
(iiib) except as set forth on all Liabilities to the Accrued Liabilities and Assumed Payables Schedule, extent arising out of or relating to any liability or obligation of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico TaxesExcluded Assets;
(ivc) all Seller Taxes other than Seller Taxes that are Assumed Liabilities;
(d) all Liabilities resulting from, arising out of or related to the litigation matters listed or required to be listed in Section 5.3 of the Seller Disclosure Schedule;
(e) all Liabilities, including any liability Liability to gross-up any Transferred Employee, solely relating to or obligation arising out of the payment by Seller to any Offered Employees of any “excess parachute payments” within the meaning of Section 280G of the Code as a result of the Transactions;
(f) all Liabilities under or with respect relating to any Seller the Employee Benefit Plan Plans, including any pension or any other employee benefit retirement plan, programseverance plan, policy retention plan, workers compensation, medical, life insurance, disability or arrangement presently other welfare plan, expenses and benefits incurred or formerly maintained claimed in respect of any current or contributed to by Seller former employee, director or its ERISA Affiliates, or with respect to which independent contractor of Seller or any such ERISA Affiliate has any liability;
(v) any liability or obligation with respect to any products or services that were marketed or sold prior to the Closingof its Affiliates, including product liability, infringement claims and any related claims by such current or former employees, directors or independent contractors (and litigation arising their covered dependents) of Seller or any of its Affiliates for benefits or claims, whether or not such Liabilities arise prior to, on or after the Closing Revenue Cutoff Date;
(vig) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, all Controlled Group Liability of Sellers or any of Seller’s liabilities or obligations of any kind to any Business Employees or former employee of Seller, including any liabilities or obligations arising prior to the Closing with respect to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule)their ERISA Affiliates;
(viih) any liability all Indebtedness of Seller or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Date;
(viii) any of Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Laws;
(ix) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct of the Business or any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents or advisors on or prior to the Closing Date;
(x) any of Seller’s liabilities or obligations for Indebtedness;
(xi) any liabilities or obligations in respect of any of the Excluded Assets (including under any contracts, leases, commitments or understandings related thereto);
(xii) any of Seller’s liabilities or obligations which Buyer may become liable for as a result of or in connection with the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liability;
(xiii) any of Seller’s liabilities or obligations with respect to amounts disputed by Seller and not paid to the landlords of the properties listed on the attached Leased Real Property Scheduleits Affiliates; and
(xivi) all Liabilities to any broker, finder or agent for any investment banking or brokerage fees, finder’s fees or commission and any other liabilities or obligations of fees and expenses payable by Seller not expressly assumed by Buyer pursuant to Section 2.2(a) above11.5.
Appears in 1 contract
Liabilities Not Assumed. Notwithstanding anything to the contrary in this Agreement, Buyer shall not assume and neither Parent nor Buyer shall be obligated to pay, perform, discharge, indemnify or in any way become liable for hold Seller harmless against any of Seller’s debtsthe following liabilities, liabilities obligations or obligations expenses (collectively, "Excluded Liabilities"): (A) any liability, obligation or expense of any nature whatsoever (other than the Assumed LiabilitiesSeller not referred to in Section 2.2(b)(i), whether accrued(ii), absolute(iii), contingent (iv), (v), (vi), (vii), (viii) or otherwise(ix) and (B) the following liabilities, whether known obligations or unknown, whether due or to become due, whether related to the Business or the Purchased Assets and whether disclosed on the Schedules attached hereto, and regardless expenses of when or by whom asserted, including clauses (i) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”):Seller:
(i) those IGC-Advanced Superconductor Tax Liabilities for which Seller is responsible under Section 5.12 hereof;
(ii) any liability, obligation or expense of Seller’s liabilities Seller or obligations under this Agreementits Affiliates which relates to or arises out of the ownership, use or operation of assets and properties of Seller or the Schedules attached hereto and conduct of any other agreements entered into businesses of Seller not conveyed to Buyer hereunder or pursuant hereto;
(iii) any liability, obligation or expense of Seller or its Affiliates which is incurred by Seller or its Affiliates in connection with the transactions contemplated by this Agreement;
(ii) any of Seller’s liabilities or obligations for expenseshereby, fees or Taxes incident to or arising out of the negotiationincluding, 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, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedulewithout limitation, any liability or obligation for (a) bonuses arising as the result of, or dependent upon, the closing of such transactions ("Transaction Dependent Bonus"), or (b) Taxes imposed on Seller, except as otherwise provided in Section 5.12 hereof, including, without limitation, (A) Income Taxes imposed on Seller because Seller is transferring the IGC-Advanced Superconductor Division Assets or because Seller has deferred gain on any Deferred Intercompany Transaction (as such term is used in the Treasury Regulations promulgated under the Code); (B) any liability, obligation or expense of Seller or its Affiliates with respect to Income Taxes; and (C) any liability, obligation or expense of the Seller or its Affiliates for unpaid Taxes for of any periodother person under Treasury Regulation ss.1.1502-6 promulgated under the Code (or any similar provision of state, except for the portion of transfer Taxes to be paid local or foreign law), as a transferee or successor, by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxescontract or otherwise;
(iv) any liability liability, obligation or obligation under expense of Seller or with respect its Affiliates which arises out of, or in connection with, or relate to any Seller Employee Benefit Plan the ownership, use or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to operation of the IGC-Advanced Superconductor Division Assets by Seller or its ERISA Affiliates, or with respect the conduct of the Business by Seller prior to which Seller or any such ERISA Affiliate has any liabilitythe Closing Date except to the extent set forth above in clause (b);
(v) any liability liability, obligation or obligation with respect expense of Seller or its Affiliates to indemnify any person by reason of the fact that such person was a director, officer, employee or agent of the Seller or its Affiliates or serving at the request of the Seller or its Affiliates as a partner, trustee, member, director, officer, employee or agent of another entity (whether such indemnification is for judgments, damages, penalties, fines, costs, amounts paid in settlement, losses, expenses, or otherwise and whether such indemnification is pursuant to any products statute, charter document, bylaw, agreement or services that were marketed or sold prior to the Closing, including product liability, infringement claims and any related claims and litigation arising prior to, on or after the Closing Dateotherwise);
(vi) except as set forth on the Accrued Liabilities and Assumed Payables Scheduleany liability, any of Seller’s liabilities obligation or obligations of any kind to any Business Employees or former employee of Seller, including any liabilities or obligations arising prior expense to the Closing with respect extent related to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule)Excluded Assets;
(vii) any liability liability, obligation or obligation relating expense related to workers’ compensation claims the Collective Bargaining Agreement or any other collective bargaining agreement which were filed or presented on or before arises prior to the Closing Date and to which the Seller or which its Affiliates are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Datebecome a party;
(viii) any of Seller’s liabilities liability, obligation or obligations (A) arising by reason of expense under or related to any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach Benefit Plan maintained by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Lawsits Affiliates;
(ix) any of Seller’s liabilities liability, obligation or obligations relating to any legal action, proceeding expense resulting from or claim arising out of (A) Releases of Hazardous Substances at or in connection with from the Locations caused by Seller’s conduct 's operation at the relevant Locations; (B) Disposal of Hazardous Substances at places other than Locations during the Business or any other conduct dates of Seller, 's operation at the relevant Locations; or (C) violations of Environmental Laws occurring during the dates of Seller’s officers, directors, employees, consultants, agents or advisors on or prior to 's operation at the Closing Daterelevant Locations;
(x) any of Seller’s liabilities liability, obligation or obligations expense for Indebtedness;personal injury or property damage relating to any defect in, or failure to warn with respect to, products sold by Seller prior to the Closing Date; and
(xi) any liabilities or obligations in respect of any of the Excluded Assets (including under any contracts, leases, commitments or understandings related thereto);
(xii) any of Seller’s liabilities or obligations which Buyer may become liable for as a result of or in connection with the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liability;
(xiii) any of Seller’s liabilities or obligations with respect to amounts disputed by Seller and not paid except to the landlords of extent otherwise specifically provided by this Agreement, any liability relating to the properties listed on IGC-Advanced Superconductor Division that, in accordance with United States generally accepted accounting principles consistently applied by Seller, is required to be, but is not, reflected or reserved against in the attached Leased Real Property Schedule; and
(xiv) any other 2001 Financial Statements. Seller shall pay, perform and discharge as they become due and shall indemnify and hold Buyer harmless against all liabilities or and obligations of Seller not expressly assumed by Buyer pursuant relating to the Business which are specifically referred to in this Section 2.2(a) above2.2(c).
Appears in 1 contract
Liabilities Not Assumed. Notwithstanding anything to Other than the contrary Assumed Liabilities (as defined in this AgreementSection 2.4 below), Buyer shall not assume by virtue of this Agreement, and shall have no liability or in obligation for, any way become liable for Liability of Seller or any Subsidiary of Seller’s debtsSeller (the “Excluded Liabilities”), liabilities or obligations including (without limitation) those listed below, and Seller shall, as the case may require, retain and pay, satisfy, discharge, and perform all such Liabilities of any nature whatsoever (Seller other than the Assumed Liabilities), whether accrued, absolute, contingent or otherwise, whether known or unknown, whether due or to become due, whether related to the Business or the Purchased Assets and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including clauses (without limitation) the following Excluded Liabilities:
(a) Any Liability for (i) through (xiv) below (collectively referred Transfer Taxes that are the responsibility of Seller pursuant to herein as the “Excluded Liabilities”):
(i) any of Seller’s liabilities or obligations under this AgreementSection 3.5 hereof, the Schedules attached hereto and any other agreements entered into by Seller in connection with the transactions contemplated by this Agreement;
(ii) any of Seller’s liabilities or obligations for expenses, fees or Taxes incident to or arising out of the negotiation, preparation, approval or authorization of this Agreement (or the consummation (or preparation for the consummationnonpayment thereof) of the transactions contemplated hereby (including all attorneys’ and accountants’ fees, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(iv) any liability or obligation under or with respect to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liability;
Principal Member, (viii) any liability or obligation with respect Taxes relating to the Acquired Assets of the Business attributable to any products taxable period or services that were marketed or sold prior to the Closing, including product liability, infringement claims and any related claims and litigation arising prior to, portion thereof ending on or after the Closing Date;
(vi) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any of Seller’s liabilities or obligations of any kind to any Business Employees or former employee of Seller, including any liabilities or obligations arising prior to the Closing with respect Date and Taxes allocated to the exempt Seller pursuant to Section 6.10(b) hereof, (iv) payments under any Tax allocation, sharing, indemnity or non-exempt status similar agreement (whether oral or written), and (v) Taxes of any Business Employee Person imposed as a transferee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statementssuccessor, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule);
(vii) any liability or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but Taxes relate to claims and/or injuries first arising an event or transaction occurring on or before the Closing Date;
(viiib) Any Liability to indemnify any of Seller’s liabilities or obligations (A) arising Person by reason of any violation or alleged violation of any federalthe fact that such Person was a director, statemanager, local or foreign law or any requirement of any governmental authorityofficer, (B) arising by reason of any breach or alleged breach by Seller of any agreementemployee, contractmember, lease, license, commitment, instrument, judgment, order or decreeconsultant, or (C) arising under any Environmental Lawsagent of Seller, or that such Person was serving at the request of Seller, as a partner, trustee, director, manager, officer, employee, stockholder, member, consultant, or agent of another entity;
(ixc) any Any Liability as a result of Seller’s liabilities or obligations relating to any legal action, or equitable action or judicial or administrative proceeding initiated at any time caused by any action that occurred or claim arising out of or in connection with Seller’s conduct of the Business or any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents or advisors condition that existed on or prior to the Closing DateDate and in respect of anything done, suffered to be done, or omitted to be done by Seller, or any of its directors, managers, officers, employees, members, consultants, or agents;
(xd) Any Liability pertaining to Seller or its business and arising out of or resulting from noncompliance with any Laws, whether legislatively, judicially or administratively promulgated (including, without limitation, any Liability arising out of or resulting from noncompliance with Environmental Laws by Seller’s liabilities or obligations for Indebtedness;
(xi) any liabilities or obligations in respect of any of the Excluded Assets (including under any contracts, leases, commitments or understandings related thereto);
(xiie) Any Liability of Seller under any Acquired Contract for any acts or events occurring on or prior to the Closing or any breaches or defaults existing under such Contracts as of Seller’s liabilities the Closing;
(f) Any Liability under any Contract that is not an Acquired Contract, including but not limited to any Liability for express or obligations which Buyer may become liable implied representations, warranties, guarantees or other service commitments under any Contract that is not an Acquired Contract;
(g) Any Liability of Seller for as a result any violation, misappropriation, or infringement (whether contributory, by inducement, willful, or otherwise) of or any Intellectual Property Right of any third party;
(h) Any Liability relating to any expenses incurred Seller and its Affiliates in connection with this Agreement and the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liabilitytransactions contemplated hereby;
(xiiii) any Any Liability of Seller’s liabilities or obligations Seller with respect to amounts disputed by any insurance policies;
(j) Any Liability of any Affiliate, member, holder of any security, creditor or investor of Seller and not paid of any kind or nature;
(k) Any Liability relating to any Excluded Asset;
(l) The Employee-Related Obligations to the landlords of the properties listed on the attached Leased Real Property Scheduleextent set forth in Section 6.11(c); and
(xivm) any other obligations and liabilities or obligations of Seller not expressly assumed by Buyer pursuant related to Section 2.2(aVoice Over Protocol (VOIP) aboveand Plain Old Telephone Service (POTS).
Appears in 1 contract
Liabilities Not Assumed. Notwithstanding anything in this Agreement to the contrary contrary, Purchaser is not assuming, and will not perform or satisfy, any liabilities not specifically described in this AgreementSection 2.3 as being assumed by Purchaser, Buyer shall not assume or in any way become liable for including any of Seller’s debtsthe following (collectively, liabilities or obligations the “Retained Liabilities”):
(a) Any Taxes of any nature whatsoever Seller (other than the Assumed Liabilitiesincluding of any Subsidiary), whether accrued, absolute, contingent or otherwise, whether known or unknown, whether due or to become due, whether related not relating to the Business or the Purchased Acquired Assets and whether disclosed on or not incurred prior to the Schedules attached heretoClosing;
(b) Taxes attributable to the period prior to the Closing in respect of the Acquired Assets, whether or not payable prior to the Closing;
(c) Taxes arising in connection with the consummation of the transactions contemplated hereby (including any income Taxes arising because Sellers are transferring the Acquired Assets and regardless excluding any Taxes of when or by whom assertedPurchaser);
(d) Taxes of any Person for which any Seller is liable, including clauses Taxes imposed on a Seller under Section 1.1502-6 of the Treasury Regulations (ior any similar provision of state, local or foreign law) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”):a transferee or successor, by contract or otherwise;
(ie) any liability of a Seller to indemnify any Person, including any other Seller’s liabilities , by reason of the fact that such Person was a director, officer, employee or obligations under agent of such Seller or was serving at the request of such Seller as a partner, trustee, director, officer, employee or agent of another Person;
(f) any liability of a Seller arising as a result of any legal or equitable action or judicial or administrative proceeding initiated at any time in respect of anything done, suffered to be done or omitted to be done by Sellers, or any of the directors, officers, employees or agents of any Seller acting in such capacity on behalf of such Seller;
(g) any liability of Sellers incurred in connection with this Agreement, the Schedules attached hereto making or performance of this Agreement and any other agreements entered into by Seller in connection with the transactions contemplated by this Agreement;
(iih) any of Seller’s liabilities or obligations for expenses, fees or Taxes incident liability relating 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, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid services rendered by Buyer pursuant to Section 6.7 hereofa Seller;
(i) any liability under any Seller Plan or other liability of a Seller for making payments or providing benefits of any kind to such Seller’s employees or former employees (including (i) as a result of the sale of the Acquired Assets or as a result of the termination of any Employee’s employment with such Seller, (ii) any obligation to provide former employees so-called COBRA continuation coverage (“COBRA”) to the extent such COBRA continuation coverage is not available under the health care plans of a Seller or under replacement plans with the same insurers on substantially similar terms, (iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation in respect of Seller medical and other benefits for Taxes for any periodexisting retirees, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(iv) any liability or obligation under in respect of existing work-related employee injuries or with respect to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liability;
worker’s compensation claims and (v) any liability or obligation with respect of a Seller pursuant to any products or services that were marketed or sold prior to the Closing, including product liability, infringement claims and any related claims and litigation arising prior to, on or after the Closing DateSection 7.4);
(vij) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any of liability pertaining to a Seller or a Seller’s liabilities business and arising out of or obligations of any kind to any Business Employees resulting from noncompliance on or former employee of Seller, including any liabilities or obligations arising prior to the Closing Date with respect any Laws and Regulations;
(k) any liability of a Seller under any Contract not referred to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule2.1(f);
(viil) any liability of a Seller relating to or arising out of any Excluded Assets;
(m) any liability of a Seller relating to or arising out of any Outstanding Indebtedness of Seller that is not an Assumed Liability;
(n) any liability of a Seller relating to or arising out of any fact, event or condition existing or occurring on or prior to the Closing Date which constitutes a violation of, or gives rise to a duty to remediate under, any Environmental Law and which occurred or occurs on any real property, regardless of whether such Seller has any ownership or leasehold interest in such real property on the Closing Date, and without limit as to point of time, knowledge or amount (including any liability or obligation relating to workers’ compensation claims which were filed any Hazardous Substance (i) generated, used, stored, disposed of or presented on released at any property or before the Closing Date facility owned or which are filed leased by Seller or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Date;
(viii) any of Seller’s liabilities or obligations (A) arising by reason of their Affiliated Persons at any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Laws;
(ix) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct of the Business or any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents or advisors time on or prior to the Closing Date;, (ii) released from or in connection with any property or facility owned or leased by Seller or any of its Affiliated Persons at any time on or prior to the Closing Date or (iii) generated, used, stored, disposed of or released in connection with the operations of Seller on or prior to the Closing Date); and
(xo) any of Seller’s liabilities liability for transfer or obligations for Indebtedness;
(xi) any liabilities or obligations in respect of any of the Excluded Assets (including under any contracts, leases, commitments or understandings related thereto);
(xii) any of Seller’s liabilities or obligations which Buyer may become liable for similar Taxes incurred as a result of or in connection with the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liability;
(xiii) any of Seller’s liabilities or obligations with respect to amounts disputed by Seller purchase and not paid to the landlords sale of the properties listed on the attached Leased Real Property Schedule; and
(xiv) any other liabilities or obligations of Seller not expressly assumed by Buyer pursuant to Section 2.2(a) aboveAcquired Assets.
Appears in 1 contract
Liabilities Not Assumed. Notwithstanding anything to the contrary Except as expressly set forth in this ----------------------- Agreement, the Buyer shall will not assume or in perform any way become liable for any of Seller’s debts, liabilities Liabilities or obligations of any nature whatsoever (other than the Assumed Liabilities), whether accrued, absolute, contingent Seller arising or otherwise, whether known or unknown, whether due or to become due, whether related to the Business or the Purchased Assets and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including clauses (i) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”):
(i) any of Seller’s liabilities or obligations under this Agreement, the Schedules attached hereto and any other agreements entered into by Seller in connection with the transactions contemplated by this Agreement;
(ii) any of Seller’s liabilities or obligations for expenses, fees or Taxes 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, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(iv) any liability or obligation under or with respect to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liability;
(v) any liability or obligation with respect to any products or services that were marketed or sold prior to the Closing, including product liability, infringement claims and any related claims and litigation arising prior to, on or after the Closing Date;
(vi) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any of Seller’s liabilities or obligations of any kind to any Business Employees or former employee of Seller, including any liabilities or obligations arising accruing prior to the Closing not specifically contemplated by Section 2.3 hereof nor any of the following Liabilities and obligations:
(a) Any Liability or obligation of the Seller for Taxes of any Person for any taxable period and any Liability or obligation for Taxes (with respect to the exempt Division or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed otherwise) attributable to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule);
(vii) any liability or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Date;
(viii) any of Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Laws;
(ix) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct of the Business or any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents or advisors Acquired Assets for all periods ending on or prior to the Closing Date;
(xb) Any Liability of the Seller (with respect to the Division or otherwise) for the unpaid Taxes of any of Seller’s liabilities Person for any period prior to the Closing Date, including Taxes imposed on the Seller as a transferee or obligations successor, by contract or otherwise for Indebtednessperiods prior to the Closing;
(xic) Any Liability or obligation of the Seller (with respect to the Division or otherwise) to indemnify any liabilities Person by reason of the fact that such Person was a director, officer, employee or obligations agent of the Seller or was serving at the request of the Seller as a partner, trustee, director, officer, employee or agent of another entity;
(d) Any Liability or obligation of the Seller (with respect to the Division relating to the Acquired Assets or otherwise) as a result of any legal or equitable action or judicial or administrative proceeding initiated at any time caused by any action that occurred or condition that existed prior to the Closing Date and in respect of anything done, suffered to be done or omitted to be done by the Seller or any of its directors, officers, employees or agents prior to the Closing Date;
(e) Any Liability of the Seller for its costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby;
(f) Any Liability or obligation of the Seller under this Agreement or incurred in connection with the making or performance of this Agreement;
(g) Any Liability or obligation of the Seller arising out of any Employee Benefit Plan established or maintained by the Seller for the benefit of past or present employees of any of the Excluded Assets (including under Seller, or to which the Seller contributes, or any contracts, leases, commitments or understandings related thereto)Liability on the termination of any such plan;
(xiih) Except for payment of the Acquisition Bonus, any Liability or obligation of Seller’s liabilities the Seller for making payments or obligations which Buyer may become liable providing benefits of any kind to their employees or former employees for all periods prior to the Closing, including, without limitation, (A) as a result of or in connection with the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws sale of the Acquired Assets or as a result of the termination by the Seller of any “defacto merger” employees or “successor-in-interest” theories of liability;
decision by the Buyer not to hire any such employee, (xiiiB) any of Seller’s liabilities or obligations with respect obligation to amounts disputed provide former employees (including individuals who become former employees by Seller and not paid to the landlords reason of the properties listed on consummation of the attached Leased Real Property Scheduletransactions contemplated by this Agreement) COBRA continuation coverage, (C) any Liability or obligation in respect of medical and other benefits for existing and future retirees and for claims made after Closing in respect of costs and expenses incurred prior to Closing, (D) any Liability or obligation in respect of work-related employee injuries or worker's compensation claims, (E) any Liability or obligation in respect of employee bonuses; and
(xivi) any other liabilities or obligations of Seller not expressly assumed by Buyer pursuant All Safety Liabilities and Costs for all periods prior to Section 2.2(a) abovethe Closing.
Appears in 1 contract
Liabilities Not Assumed. Notwithstanding anything to the contrary in this Agreement, Buyer but subject to the provisions of Section 1.2(a), Purchaser shall not assume or in any way become liable for any of Seller’s 's debts, liabilities or obligations of any nature whatsoever (other than the Assumed Liabilities), whether accrued, absolute, contingent or otherwise, whether known or unknown, whether due or to become due, whether related to the Business or the Purchased Assets and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including clauses (i) through (xiv) below asserted (collectively referred to herein as the “"Excluded Liabilities”"), including, without limitation, any and all liabilities or obligations (whether imposed on Purchaser as a successor or otherwise):
(i) any of Seller’s liabilities relating to or obligations arising under this Agreement, the Schedules attached hereto and any other agreements entered into by Seller or in connection with the transactions contemplated by this Agreement;
any "employee benefit plan" (ii) any of Seller’s liabilities or obligations for expenses, fees or Taxes incident to or arising out of the negotiation, preparation, approval or authorization of this Agreement or the consummation (or preparation for the consummationas defined in Section 2(3) of the transactions contemplated hereby (including all attorneys’ and accountants’ fees, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iiiERISA) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(iv) any liability or obligation under or with respect to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy program or arrangement presently of any kind at any time maintained, sponsored or formerly maintained contributed or required to be contributed to by Seller or its any ERISA AffiliatesAffiliate, or with respect to which Seller or any such ERISA Affiliate has any liability;
(v) any liability or obligation with respect to any products or services that were marketed or sold prior to the Closingpotential -5- liability, including product liability, infringement claims the responsibility for satisfying the continuation coverage requirements of COBRA for all employees or former employees or other service providers (and any related claims and litigation arising prior to, on dependents or after beneficiaries thereof) of Seller or any ERISA Affiliate who are receiving COBRA continuation coverage as of the Closing Date;
(vi) except as set forth Date or who are or become entitled to elect such coverage on the Accrued Liabilities and Assumed Payables Schedule, any account of Seller’s liabilities or obligations of any kind to any Business Employees or former employee of Seller, including any liabilities or obligations arising prior to the Closing with respect to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule);
(vii) any liability or obligation relating to workers’ compensation claims which were filed or presented a qualifying event occurring on or before the Closing Date or which (excluding, with respect to COBRA responsibility, employees of Seller who are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Datehired by Purchaser);
(viiiii) pertaining to the employment or service with, or termination from employment or service with, Seller or any ERISA Affiliate, of Seller’s liabilities or obligations any individual, including but not limited to:
(A) arising by reason of any violation workers' compensation claim or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, other deferred claim;
(B) arising by reason any unemployment compensation tax imposed on Purchaser due to a determination that Purchaser is a successor to all or part of any breach or alleged breach business operation conducted by Seller of or any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or ERISA Affiliate;
(C) arising under bonus obligations, accrued vacation, sick pay, disability or any Environmental Laws;other paid time off; and
(ixD) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim severance obligations.
(iii) arising out of or in connection with Seller’s conduct maintenance obligations under the Leases, including, without limitation, all maintenance obligations (other than those dealing with normal wear and tear) as required by the terms of the Business Leases to have been performed, in whole or any other conduct of Sellerin part, Seller’s officers, directors, employees, consultants, agents or advisors on or prior to the Closing Date;Date with respect to the Leased Real Property and/or the Improvements; and
(xiv) any of Seller’s liabilities or obligations for Indebtedness;
(xi) any liabilities or obligations in respect of any of the Excluded Assets (including under any contracts, leases, commitments or understandings related thereto);
(xii) any of Seller’s liabilities or obligations which Buyer may become liable for as a result arising out of or in connection with any contract or agreement not included among the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liability;
(xiii) any of Seller’s liabilities or obligations with respect to amounts disputed by Seller and not paid to the landlords of the properties listed on the attached Leased Real Property Schedule; and
(xiv) any other liabilities or obligations of Seller not expressly assumed by Buyer pursuant to Section 2.2(a) aboveAssumed Contracts.
Appears in 1 contract
Liabilities Not Assumed. Notwithstanding anything The Parties acknowledge and agree that none of Buyers nor any of their Affiliates shall assume or otherwise be responsible for, and Seller shall indemnify and hold harmless Buyers and their Affiliates from and against all Losses related or attributable to, all Liabilities of Seller or any of its Affiliates whether or not known or accrued and whether arising before or after the Closing (including, for the avoidance of doubt, any predecessor of Seller or any of their respective Affiliates or any prior owner of all or part of their respective businesses and assets) which are not Assumed Liabilities (collectively, the “Excluded Liabilities”), including the following:
(a) all Liabilities to the contrary in this Agreement, Buyer shall not assume extent primarily relating to the operation or in any way become liable for conduct by Seller or any of Seller’s debts, liabilities or obligations its Subsidiaries of any nature whatsoever (business other than the Assumed Liabilities), whether accrued, absolute, contingent or otherwise, whether known or unknown, whether due or Business;
(b) all Liabilities to become due, whether the extent not related to the Business or the Purchased Acquired Assets and whether disclosed on for any claim, demand or other Action against the Schedules attached hereto, and regardless of when or by whom asserted, including clauses (i) through (xiv) below (collectively referred Seller Group relating to herein as the “Excluded Liabilities”):
(i) any of Seller’s liabilities or obligations under this Agreement, the Schedules attached hereto and any other agreements entered into by Seller in connection with the transactions contemplated by this Agreementthe Transaction Agreements by any current or former holder of securities of Seller;
(iic) all Liabilities of Seller or any of Seller’s liabilities its Affiliates, related to that certain Agreement and Plan of Merger (the “Merger Agreement”), dated as of October 22, 2018, by and among STL Parent Corp. (“Parent”), Seller and Table Rock Merger Sub Corp., a wholly-owned subsidiary of Parent, pursuant to which Seller became a wholly-owned subsidiary of Parent upon the consummation of the transactions set forth therein;
(d) all Liabilities to the extent arising out of or obligations relating to any Excluded Assets (except for expensesany such Liabilities which are Assumed Liabilities);
(e) all Seller Taxes;
(f) all Liabilities under or relating to the Retained Employee Benefit Plans (other than the Assumed PTO and the Transferred Employee Liabilities);
(g) all Liabilities, fees or Taxes incident including any Liability to gross-up any Transferred Employee, solely relating to or arising out of the negotiationpayment by Seller to any Offered Employees of any “excess parachute payments” within the meaning of Section 280G of the Code as a result of the Transactions;
(h) all Controlled Group Liability of Seller or any ERISA Affiliate;
(i) all Indebtedness of Seller or any of its Affiliates, preparation, approval except to the extent (i) set forth on Schedule 1.1 – Seller Business Indebtedness or authorization (ii) incurred after the date of this Agreement or the consummation (or preparation for the consummation) of the transactions contemplated hereby (including all attorneys’ and accountants’ fees, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(iv) any liability or obligation under or with respect to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liability;
(v) any liability or obligation with respect to any products or services that were marketed or sold prior to the Closing, including product liability, infringement claims and any related claims and litigation arising prior to, on or after the Closing Date;
(vi) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any of Seller’s liabilities or obligations of any kind to any Business Employees or former employee of Seller, including any liabilities or obligations arising prior to the Closing with respect to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Scheduleas expressly permitted by Section 7.2(k)(i);
(viij) any liability or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which all payables that are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Datenot Assumed Liabilities;
(viiik) all Liabilities to any of Sellerbroker, finder or agent for any investment banking or brokerage fees, finder’s liabilities fees or obligations (A) arising by reason of commission and any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach other fees and expenses payable by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Lawspursuant to Section 13.5;
(ixl) any of Seller’s liabilities or obligations relating all Liabilities related to any legal action, proceeding Contract required to be terminated pursuant to Section 8.14 or claim arising out otherwise entered into in breach of or in connection with Seller’s conduct of the Business or any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents or advisors on or prior to the Closing DateSection 8.14;
(xm) any of all Liabilities related to that certain Environmental Condition at Seller’s liabilities or obligations for Indebtedness;
facilities in Jackson, Missouri, but only to the extent Seller actually receives full indemnification (xiwhich Seller agrees to use commercially reasonable efforts to pursue) any liabilities or obligations in respect of any of the Excluded Assets (including under any contracts, leases, commitments or understandings related thereto);
(xii) any of Seller’s liabilities or obligations which Buyer may become liable for as a result of or in connection with the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liability;
(xiii) any of Seller’s liabilities or obligations with respect to amounts disputed such Liabilities under that certain Asset Transfer Agreement, by Seller and not paid to the landlords of the properties listed on the attached Leased Real Property Scheduleamong Seller, ACF Industries, LLC and ▇▇▇▇ ▇▇▇▇▇, dated October 1, 1994; and
(xivn) any other liabilities or obligations all Railcar Lease Fleet FRA Liabilities in excess of Seller not expressly assumed by Buyer pursuant to Section 2.2(a) abovethe FRA Accrual Amount as of the Closing Date.
Appears in 1 contract
Sources: Asset Purchase Agreement (Greenbrier Companies Inc)
Liabilities Not Assumed. Notwithstanding anything to Other than the contrary Assumed Liabilities (as defined in Section 1.4 below), Purchaser shall not assume by virtue of this Agreement, Buyer and shall not assume have no liability or in obligation for, any way become liable for any Liability of Seller’s debtsSeller (the “Excluded Liabilities”), liabilities or obligations including (without limitation) those listed below, and Seller shall, as the case may require, retain and pay, satisfy, discharge, and perform all such Liabilities of any nature whatsoever (Seller other than the Assumed Liabilities), whether accrued, absolute, contingent or otherwise, whether known or unknown, whether due or including (without limitation) the following Excluded Liabilities:
(a) Any Liability for Taxes relating to become due, whether related to the Business or the Purchased Assets and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including clauses (i) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”):
(i) any of Seller’s liabilities or obligations under this Agreement, the Schedules attached hereto and any other agreements entered into by Seller in connection with the transactions contemplated by this Agreement;
(ii) any of Seller’s liabilities or obligations for expenses, fees or Taxes 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, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(iv) any liability or obligation under or with respect attributable to any Seller Employee Benefit Plan taxable period or any other employee benefit plan, program, policy portion thereof ending on or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liability;
(v) any liability or obligation with respect to any products or services that were marketed or sold prior to the Closing, including product liabilityany other Liability for Taxes of Seller for any taxable period or portion thereof, infringement claims and any related claims and litigation arising prior to, on or after the Closing DateLiability for transfer Taxes;
(vib) except as set forth on Any Liability to indemnify any Person by reason of the Accrued Liabilities and Assumed Payables Schedulefact that such Person was a director, any of Seller’s liabilities manager, officer, employee, stockholder, consultant, or obligations of any kind to any Business Employees or former employee agent of Seller, including or that such Person was serving at the request of Seller, as a partner, trustee, director, manager, officer, employee, stockholder, consultant, or agent of another entity;
(c) Any Liability as a result of any liabilities legal or obligations arising equitable action or judicial or administrative proceeding initiated at any time caused by any action that occurred or condition that existed on or prior to the Closing with Date and in respect of anything done, suffered to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyerbe done, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule);
(vii) any liability omitted to be done by Seller, or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Date;
(viii) any of Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation of any federalits directors, statemanagers, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Laws;
(ix) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct of the Business or any other conduct of Seller, Seller’s officers, directors, employees, stockholders, consultants, or agents or advisors on or prior to the Closing Date;
(xd) Any Liability pertaining to Seller or its business and arising out of or resulting from non-compliance with any of Seller’s liabilities Laws, whether legislatively, judicially or obligations for Indebtednessadministratively promulgated;
(xie) Any Liability of Seller under any liabilities Assigned In-License Contract for any acts or obligations events occurring on or prior to the Closing or any breaches or defaults existing under such Contracts as of the Closing (including without limitation, any such Liability arising under any Contract for Intellectual Property) and any such Liability arising out of or related to services to be performed by Seller or any of its contractual partners prior to the Closing;
(f) Any Liability under any Contract that is not an Assigned In-License Contract, including but not limited to any Liability for express or implied representations, warranties, guarantees or other service commitments under any Contract that is not an Assigned In-License Contract;
(g) Any Liability of Seller for any violation, misappropriation, or infringement (whether contributory, by inducement, willful, or otherwise) of any Intellectual Property Right of any third party;
(h) Any Liability relating to any expenses incurred by Seller and its Affiliates in connection with this Agreement and the transactions contemplated hereby;
(i) Any Liability of Seller with respect to any insurance policies;
(j) Any Liability of Seller with respect to any of the Excluded Assets (including under current or former Employees of Seller, including, but not limited to, any contractsLiability related to payroll, leaseswages and hours, commitments salaries, bonuses, compensation, commissions, benefits, retention pay or understandings arrangements, severance pay or similar benefits, pension benefits, employee classification, terms and conditions of employment, sick leave, vacation pay, paid time off or similar benefits, WARN, discrimination, harassment, termination, or any other employment-related thereto)Liability;
(xiik) any of Seller’s liabilities or obligations which Buyer may become liable for as a result of or in connection with the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result Any Liability of any “defacto merger” Affiliate, stockholder, holder of any security, creditor or “successor-in-interest” theories investor of liabilitySeller of any kind or nature, including but not limited to any Liability under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of contract or Law;
(xiiil) Any Liability relating to any of Seller’s liabilities or obligations with respect to amounts disputed by Seller and not paid to the landlords of the properties listed on the attached Leased Real Property Schedule; andExcluded Asset;
(xivm) any other liabilities Any existing or obligations future Liability of Seller not expressly assumed by Buyer pursuant to Section 2.2(a) aboveany Employee.
Appears in 1 contract
Sources: Asset Purchase Agreement (NextPlay Technologies Inc.)
Liabilities Not Assumed. Notwithstanding anything to With the contrary in this Agreementexception of the Assumed Liabilities, Buyer shall not by execution and performance of this Agreement or otherwise, assume or in otherwise be responsible for any way become liable for debt, liability, obligation or commitment of any nature of Seller, whether relating to any of Seller’s debts's other assets, liabilities operations, businesses or obligations activities, or claims of any nature whatsoever (other than the Assumed Liabilities)such liability or obligation, whether accruedmatured or unmatured, absoluteliquidated or unliquidated, contingent fixed or otherwisecontingent, whether or known or unknown, whether due or to become due, whether related to the Business or the Purchased Assets and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including clauses (i) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”):
(i) any of Seller’s liabilities or obligations under this Agreement, the Schedules attached hereto and any other agreements entered into by Seller in connection with the transactions contemplated by this Agreement;
(ii) any of Seller’s liabilities or obligations for expenses, fees or Taxes 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, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(iv) any liability or obligation under or with respect to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liability;
(v) any liability or obligation with respect to any products or services that were marketed or sold prior to the Closing, including product liability, infringement claims and any related claims and litigation arising occurrences prior to, on at or after the Closing Date;
Date (vi) except as set forth on the Accrued Liabilities and Assumed Payables Scheduleincluding, but not limited to, any of Seller’s liabilities debt, liability, obligation or obligations of commitment arising from any kind to any Business Employees or former employee environmental liability of Seller, including any liabilities or obligations arising pension liability of Seller occurring prior to the Closing Date or any liabilities of Seller for past employment practices) (the "Excluded Liabilities"). As referenced in Section 5.7(f), Seller shall retain responsibility for severance payments with respect to the exempt or non-exempt status those of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule);
(vii) any liability or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented 's former employees hired by Buyer but terminated by Buyer within 30 days after the Closing Date but relate in an aggregate amount not to exceed $50,000 (calculated at the rate of one week's pay for each year of service with the initial service year to commence on the later of (i) January 1, 1996 or (ii) the year such employee commenced service with Seller for each Transferred Employee which is terminated by Buyer). Seller shall retain responsibility for any claims and/or injuries first arising on or before the Closing Date;
by Keebler that any setoffs taken by Seller (viii) any of Seller’s liabilities or obligations (A) arising by reason inclusive of any violation or alleged violation setoffs residing in accounts payable of Seller as of February 28, 1998) were invalid according to Keebler. Seller shall retain responsibility for any claims made by Keebler Company that the setoffs described on Schedule 1.4 hereto (inclusive of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach such setoffs made by Seller of any agreementagainst accounts payable to Keebler Company which are reflected in the Financial Statements), contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Laws;
(ix) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct of which setoffs represent all the Business or any other conduct setoffs taken by Seller against Keebler Company from the inception of Seller, Seller’s officers, directors, employees, consultants, agents or advisors on or prior to were invalid. Seller shall retain all such rights of setoff and the Closing Date;
(x) any causes of Seller’s liabilities or obligations for Indebtedness;
(xi) any liabilities or obligations in respect action and rights of any of the Excluded Assets (including under any contracts, leases, commitments or understandings related thereto);
(xii) any of Seller’s liabilities or obligations which Buyer may become liable for as a result of or in connection with the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liability;
(xiii) any of Seller’s liabilities or obligations recovery with respect to amounts disputed by thereto. Seller and not paid to shall retain responsibility for the landlords of the properties listed agreements set forth on the attached Leased Real Property Schedule; and
(xiv) any other liabilities or obligations of Seller not expressly assumed by Buyer pursuant to Section 2.2(a) aboveSchedule 4.2(l).
Appears in 1 contract
Sources: Asset Purchase Agreement (Delicious Frookie Co Inc /De/)
Liabilities Not Assumed. Notwithstanding anything the assumption of liabilities ----------------------- referred to in the contrary in this Agreementforegoing Section 1.6, Buyer shall not assume or in any way become liable for be deemed to have assumed any of Seller’s debts, the liabilities or obligations of Seller (the "Unassumed Liabilities"), including, without limitation:
(a) any nature whatsoever public or other liability claims with respect to the Business and affairs of Seller (other than the Assumed Liabilities), whether accruedand the acts and omission of its officers, absolutedirectors, contingent or otherwise, whether known or unknown, whether due or to become due, whether related to the Business or the Purchased Assets and whether disclosed on the Schedules attached heretoemployees, and regardless of when or by whom asserted, including clauses (i) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”):
(i) any of Seller’s liabilities or obligations under this Agreement, the Schedules attached hereto and any other agreements entered into by Seller in connection with the transactions contemplated by this Agreement;
(ii) any of Seller’s liabilities or obligations for expenses, fees or Taxes 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, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(iv) any liability or obligation under or with respect to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liability;
(v) any liability or obligation with respect to any products or services that were marketed or sold prior to the Closing, including product liability, infringement claims and any related claims and litigation arising prior to, on agents either before or after the Closing Date;
(vib) except as set forth on any obligation or liability of Seller to either of the Accrued Liabilities and Assumed Payables Schedule, Stockholders or any other officer or director of Seller’s liabilities ;
(c) any obligation or obligations liability for Federal, State, local, foreign income or other taxes, other than sales taxes due in connection with the transactions contemplated herein;
(d) any obligation or liability arising out of any kind or relating, directly or indirectly, to any the operation of the Business Employees or former employee of Seller, including any liabilities or obligations arising prior to the Closing with respect Date, including any rebates, discounts, offsets or concessions attributable to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on amounts invoiced to Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule);
(vii) any liability or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Date;
(viii) any of Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Laws;
(ix) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct of the Business or any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents or advisors on or 's clients prior to the Closing Date;
(xe) any of obligation or liability to Seller’s liabilities 's employees for salary, wages or obligations for Indebtedness;
other compensation or benefits, including any obligation or liability with respect to any pension, retirement, 401(k), savings, profit sharing or other Employee Benefit Plan (xi) any liabilities or obligations as defined in respect of any of the Excluded Assets (including under any contracts, leases, commitments or understandings related theretoSection 2.11);
(xiif) any of liability arising out of, and any expenses relating to, any claim, action, dispute, or litigation involving Seller’s liabilities or obligations which Buyer may become liable for as a result of or in connection with the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liability;
(xiiig) any of Seller’s liabilities or obligations with respect to amounts disputed by Seller and not paid to the landlords of the properties listed on the attached Leased Real Property Schedule; and
(xiv) any other liabilities or obligations liability of Seller for fines, penalties, damages or other amounts payable to any government or governmental agency or instrumentality, including, but not expressly assumed by Buyer pursuant limited to, any liability of Seller for fines, penalties, damages or amounts payable to Section 2.2(a) aboveany government or governmental agency or instrumentality arising out of any violation of 8 U.S.C. 1101 et. seq.; and --- ----
Appears in 1 contract
Sources: Asset Purchase Agreement (Butler International Inc /Md/)
Liabilities Not Assumed. Notwithstanding anything in this Purchase ----------------------- Agreement to the contrary in and notwithstanding the fact that this AgreementPurchase Agreement involves the purchase of Stock, Buyer shall the parties hereby acknowledge that Purchaser will not assume or in any way become liable for perform any of Seller’s debts, liabilities or obligations of any nature whatsoever (other than the Assumed Liabilities), whether accrued, absolute, contingent or otherwise, whether known or unknown, whether due or to become due, whether related to the Business or the Purchased Assets and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including clauses (i) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”):
(i) any of Seller’s liabilities or obligations under this Agreement, the Schedules attached hereto and any other agreements entered into by Seller in connection with the transactions contemplated by this Agreement;
(ii) any of Seller’s liabilities or obligations for expenses, fees or Taxes 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, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iii) except as not specifically set forth on the Accrued Liabilities and Assumed Payables ScheduleSchedule 2.3(a) or (b), any including, but not limited to: ----------------------
(a) Any liability or obligation of Seller Company and Shareholder for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(iv) any liability or obligation under or with respect to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liability;
(v) any liability or obligation with respect to any products or services that were marketed or sold prior to the Closing, including product liability, infringement claims and any related claims and litigation arising prior to, on or after the Closing Date;
(vi) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any of Seller’s liabilities or obligations of any kind to any Business Employees or former employee of Seller, including any liabilities or obligations arising prior to the Closing with respect to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule);
(vii) any liability or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Date;
(viii) any of Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law taxes whether or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Lawsnot incurred prior to the Effective Date;
(ixb) Any liability or obligation of Company and Shareholder for, or in respect of, any loan, account payable or indebtedness to, or for the benefit of, any Person controlling, controlled by or under common control with Company and Shareholder;
(c) Any liability or obligation of Seller’s liabilities or obligations relating to Company and Shareholder arising as a result of any legal actionor equitable action or judicial or administrative proceeding initiated at any time in respect of anything done, proceeding suffered to be done or claim arising out of or in connection with Seller’s conduct of the Business or any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents or advisors omitted to be done on or prior to the Closing DateEffective Date by Company and Shareholder or any of their respective Affiliates, employees or agents;
(xd) any Any liability or obligation of Seller’s liabilities Company and Shareholder incurred in connection with the making or obligations for Indebtednessperformance of this Purchase Agreement;
(xie) Any liability or obligation of Company and Shareholder for taxes (including, but not limited to, noncompetition payments) based on or measured by any liabilities income or obligations in respect of any gain realized upon the transfer of the Excluded Assets (including under any contracts, leases, commitments or understandings related thereto)Stock of the Company hereunder;
(xiif) Any liability or obligation of Company and Shareholder arising out of any "employee benefit plan," as such term is defined by ERISA, established or maintained by Company or to which Company contributes or any liability with respect to any pension or benefit plan of Seller’s liabilities Company or obligations which Buyer may become liable the termination of any such plan;
(g) Any liability or obligation of Company and Shareholder for making payments of any kind (including as a result of or in connection with the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws this sale of Stock or as a result of the termination of employment by Company of employees or other labor claims) to employees of Company, including, but not limited to, any “defacto merger” or “successor-in-interest” theories of liability;
(xiii) any of Seller’s liabilities or obligations with respect to amounts disputed by Seller and not paid to the landlords of the properties listed on the attached Leased Real Property Schedule; and
(xiv) any other liabilities or obligations of Seller Company arising under or with respect to COBRA;
(h) Any liability or obligation of Company and Shareholder with respect to any claims or actions arising under or relating to any Environmental Laws, or related common law theories, including third party claims and any liability or obligation for any penalties, fines, expenses, costs, losses, claims or damages arising out of or resulting from any generation, storage, treatment, handling, disposal or release of Hazardous Materials, in each case arising out of or resulting from or relating to any acts, omissions, occurrences or other events occurring on or prior to the Effective Date;
(i) Any liabilities or obligations of Company and Shareholder to the extent that their existence or materiality constitutes or results in a breach of a representation, warranty or covenant made by Company or Shareholder to Purchaser under, or in connection with, this Purchase Agreement;
(j) Any liabilities or obligations of Company and Shareholder under any leases, contracts, agreements, insurance policies, purchase orders and commitments not listed on Schedules 2.3(a) and 2.3(b); ------------------------------
(k) Any liability for personal injury or property damage which relates to the Company and relates to the period prior to the Effective Date or any liability for personal injury or property damage which relates to any of Company's other businesses, if any;
(l) Any liability under products liability, strict liability or implied warranty claims relating to services rendered or products sold by Company arising out of resulting from or relating to events occurring on or prior to the Effective Date;
(m) Any liability under any theory for services rendered by Company, its employees or its independent contractors (including, but not limited to, taxes, penalties and interest) prior to the Effective Date;
(n) Any liability related to any automobiles;
(o) Any liability related to any real property (other than leasehold interests) owned by Company and/or Shareholder;
(p) Any liability not specifically and expressly assumed by Buyer pursuant to Section 2.2(a) above.2.3 of this Purchase Agreement. ------------
Appears in 1 contract
Sources: Stock Purchase Agreement (Safeguard Health Enterprises Inc)
Liabilities Not Assumed. Notwithstanding anything to the contrary Except as specifically provided herein and in this AgreementSection 1.5(b) below, Buyer shall not assume or in any way become liable responsible for any of Seller’s debts, liabilities or obligations of any nature whatsoever (other than Sellers, and all such liabilities and obligations shall remain solely those of Sellers, and Sellers shall pay, perform and discharge, all such obligations and liabilities of Sellers promptly when due in accordance with their terms. Without limiting the Assumed Liabilitiesgenerality of the preceding sentence and except as specifically provided in Section 1.5(b), whether accruedBuyer shall not assume or become responsible for: (i) any liabilities or obligations of Sellers including, absolutewithout limitation, contingent any personal obligations of any shareholder or otherwisemember of ARO or ROLC incurred in any capacity, whether known including those arising out of any claim, litigation or unknownproceeding, whether due or any contract, license, commitment or other agreement relating to become due, whether related to the operations of the Business or the Purchased Assets and whether disclosed on occurrence of any event before the Schedules attached heretoClosing Date including, and regardless without limitation, accounts payable of when or by whom asserted, including clauses (i) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”):
(i) any of Seller’s liabilities or obligations under this Agreement, the Schedules attached hereto and any other agreements entered into by Seller in connection with the transactions contemplated by this Agreement;
Business; (ii) any of Seller’s liabilities or compensation obligations for expenses, fees or Taxes 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, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(iv) any liability or obligation under or with respect to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liability;
(v) any liability or obligation with respect to any products or services that were marketed or sold prior to the Closing, including product liability, infringement claims and any related claims and litigation arising prior to, on or after the Closing Date;
(vi) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any of Seller’s liabilities or obligations of any kind to any Business Employees or former employee of Seller, including any liabilities or obligations arising prior to the Closing with respect to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule);
(vii) any liability or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Date;
(viii) any of Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Laws;
(ix) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim Sellers arising out of or in connection with Seller’s conduct any employee benefit plan of the Business Sellers or any other conduct liabilities or obligations of SellerSellers to any employees with respect to his or her service to the Business before the Closing Date, Seller’s officersincluding but not limited to any and all accrued vacation and/or sick leave, directorsbonuses and other benefits; (iii) any liabilities or obligations of Sellers for indebtedness for borrowed money, employeesincluding, consultantsbut not limited to, agents any and all liabilities and obligations related to real estate financings and any and all obligations to any secured party in connection with any of the Assets; (iv) any liabilities or advisors on obligations of Sellers for any type of taxes whatsoever; (v) any and all Medicare, Medicaid and other third party payor obligations arising from any acts or omissions for any period prior to the Closing Date;
; (xvi) any liability or obligation for any severance pay due any employee of Seller’s liabilities Sellers upon his or obligations for Indebtedness;
her termination of employment; or (xi) any liabilities or obligations in respect of any of the Excluded Assets (including under any contracts, leases, commitments or understandings related thereto);
(xii) any of Seller’s liabilities or obligations which Buyer may become liable for as a result of or in connection with the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liability;
(xiii) any of Seller’s liabilities or obligations with respect to amounts disputed by Seller and not paid to the landlords of the properties listed on the attached Leased Real Property Schedule; and
(xivvi) any other liabilities or obligations of Seller not expressly assumed by Buyer pursuant any nature relating to Section 2.2(a) abovethe operations of the Business or the occurrence of any event before the Closing Date, whether known or determined as of the Closing Date or unknown or undetermined as of the Closing Date.
Appears in 1 contract
Sources: Asset Purchase Agreement (Radiation Therapy Services Inc)
Liabilities Not Assumed. Notwithstanding anything Other than the liabilities referred to the contrary in this AgreementSection 1.4, Buyer shall not assume or in any way become liable for be deemed to have assumed any of Seller’s debts, the liabilities or obligations of Seller of any nature whatsoever kind (other than together, the Assumed "Unassumed Liabilities"), whether accruedincluding, absolute, contingent or otherwise, whether known or unknown, whether due or to become due, whether related to the Business or the Purchased Assets and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including clauses (i) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”):without limitation:
(i) any of Seller’s liabilities or obligations under this Agreement, the Schedules attached hereto and any other agreements entered into by Seller in connection with the transactions contemplated by this Agreement;
(ii) any of Seller’s liabilities or obligations for expenses, fees or Taxes 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, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(iva) any liability or obligation under or claims with respect to any the business and affairs of Seller Employee Benefit Plan or any other employee benefit planand the acts and omissions of its officers, programdirectors, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliatesemployees and agents, or with respect to which Seller or any such ERISA Affiliate has any liability;
(v) any liability or obligation with respect to any products or services that were marketed or sold prior to the Closing, including product liability, infringement claims and any related claims and litigation arising prior to, on either before or after the Closing Date;
(vib) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any obligation or liability of Seller to any of Seller’s liabilities the Stockholders or obligations of any kind to any Business Employees other officer or former employee director of Seller, including any liabilities or obligations arising prior to the Closing with respect to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule);
(viic) any obligation or liability of Seller or obligation relating to workers’ compensation claims which were filed or presented on or before any Stockholder in connection with any real property lease, including, without limitation, the Closing Date or which are filed or presented after lease of the Closing Date but relate to claims and/or injuries first arising on or before the Closing Datepremises located at ▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇;
(viiid) any of Seller’s liabilities obligation or obligations (A) arising by reason of any violation or alleged violation of any liability for federal, state, local or foreign law income or other taxes (including any requirement of any governmental authorityrelated penalties, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Lawsfines and interest);
(ixe) any of Seller’s liabilities obligation or obligations relating to any legal action, proceeding or claim liability arising out of or in connection with Seller’s conduct of the Business or any other conduct operation of Seller's business prior to the Closing Date, including any rebates, discounts, offsets or concessions attributable to amounts invoiced to Seller’s officers, directors, employees, consultants, agents or advisors on or 's clients prior to the Closing Date;
(xf) any of obligation or liability to Seller’s 's temporary, payrolled or full-time employees for salary, wages or other compensation or benefits, including any with respect to retirement plans and accrued vacation, sick and holiday time and pay, incurred prior to the Closing Date, including any such obligations or liabilities with respect to ▇▇▇▇ or as contemplated by Section 9.3 but excluding any obligations for Indebtednessset forth in Schedule 1.7;
(xig) any liabilities of Seller with respect to any pension, retirement, savings, profit-sharing or obligations in respect of any of the Excluded Assets (including under any contracts, leases, commitments or understandings related thereto)other benefit plans;
(xiih) any of Seller’s liabilities obligation or obligations liability which Buyer may become liable for as a result of or in connection with the failure by Buyer or Seller to comply is inconsistent with any bulk sales representation or bulk transfers laws warranty of Seller or as a result of any “defacto merger” or “successor-in-interest” theories of liabilitythe Stockholders;
(xiiii) any liability arising out of, and any expenses relating to, any claim, action, dispute or litigation involving Seller;
(j) any liability of Seller’s liabilities Seller for fines, penalties, damages or obligations with respect other amounts payable to amounts disputed by Seller and not paid to the landlords of the properties listed on the attached Leased Real Property Scheduleany government or governmental agency or instrumentality; and
(xivk) any other liabilities obligation or obligations liability of Seller not expressly assumed by Buyer pursuant to Section 2.2(a) aboveor the Stockholders for any expenses incurred in preparing or negotiating this Agreement and consummating the transactions contemplated hereunder.
Appears in 1 contract
Sources: Asset Purchase Agreement (Headway Corporate Resources Inc)
Liabilities Not Assumed. Notwithstanding anything Other than the liabilities referred to the contrary in this AgreementSection 1.4, Buyer shall not assume or in any way become liable for be deemed to have assumed any of Seller’s debts, the liabilities or obligations of Seller of any nature whatsoever kind (other than together, the Assumed "Unassumed Liabilities"), whether accruedincluding, absolute, contingent or otherwise, whether known or unknown, whether due or to become due, whether related to the Business or the Purchased Assets and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including clauses (i) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”):without limitation:
(i) any of Seller’s liabilities or obligations under this Agreement, the Schedules attached hereto and any other agreements entered into by Seller in connection with the transactions contemplated by this Agreement;
(ii) any of Seller’s liabilities or obligations for expenses, fees or Taxes 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, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(iva) any liability or obligation under or claims with respect to any the business and affairs of Seller Employee Benefit Plan and the acts and omissions of its current or any other employee benefit planformer officers, programdirectors, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliatesemployees and agents, or with respect to which Seller or any such ERISA Affiliate has any liability;
(v) any liability or obligation with respect to any products or services that were marketed or sold prior to the Closing, including product liability, infringement claims and any related claims and litigation arising prior to, on either before or after the Closing Date;
(vib) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any obligation or liability of Seller to any of Seller’s liabilities the Stockholders or obligations of any kind to any Business Employees current or former employee officer or director of Seller, including any liabilities or obligations arising prior to the Closing with respect to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule);
(viic) any obligation or liability or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Date;
(viii) any of Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation of any for federal, state, local or foreign law income or other taxes (including any requirement related penalties, fines and interest) of Seller, including, without limitation, any governmental authority, (B) and all taxes arising by reason out of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Lawsthe transactions contemplated hereby;
(ixd) any of Seller’s liabilities obligation or obligations relating to any legal action, proceeding or claim liability arising out of or in connection with Seller’s conduct of the Business or any other conduct operation of Seller's business prior to the Closing Date, including any rebates, discounts, offsets or concessions attributable to amounts invoiced to Seller’s officers, directors, employees, consultants, agents or advisors on or 's clients prior to the Closing Date;
(xe) any obligation or liability to Seller's temporary, payrolled, leased or full-time employees who are providing services on behalf of Seller’s Seller for salary, wages, bonuses or other compensation or benefits, including any with respect to retirement plans, and accrued vacation, sick and holiday time and pay incurred prior to the Closing Date, including, without limitation, any liabilities or obligations for Indebtednessof Seller contemplated by Section 10.3 but excluding any liabilities set forth in Schedule 1.7;
(xif) any liabilities of Seller with respect to any pension, retirement, savings, profit-sharing or obligations in respect of any of the Excluded Assets (including under any contracts, leases, commitments or understandings related thereto)other benefit plans;
(xiig) any of Seller’s liabilities obligation or obligations liability which Buyer may become liable for as a result of or in connection with the failure by Buyer or Seller to comply is inconsistent with any bulk sales representation or bulk transfers laws warranty of Seller or as a result of any “defacto merger” or “successor-in-interest” theories of liabilitythe Stockholders;
(xiiih) any liability arising out of, and any expenses relating to, any claim, action, dispute or litigation involving Seller;
(i) any liability of Seller’s liabilities Seller for fines, penalties, damages or obligations with respect other amounts payable to amounts disputed by Seller and not paid to the landlords of the properties listed on the attached Leased Real Property Scheduleany government or governmental agency or instrumentality; and
(xivj) any other liabilities obligation or obligations liability of Seller not expressly assumed by Buyer pursuant to Section 2.2(a) aboveor the Stockholders for any expenses incurred in preparing or negotiating this Agreement and consummating the transactions contemplated hereunder or thereunder.
Appears in 1 contract
Sources: Asset Purchase Agreement (Headway Corporate Resources Inc)
Liabilities Not Assumed. Notwithstanding anything Except for the Liabilities specifically assumed pursuant to Section 2.4(a), the contrary in this Agreement, Buyer shall not assume assume, shall not take subject to and shall not be liable for, any Liabilities of the PhosLo Business, the Seller or in any way become liable for any Affiliate of Seller’s debts, liabilities or obligations of any nature whatsoever the Seller (other than the Assumed Liabilities), whether accrued, absolute, contingent or otherwise, whether known or unknown, whether due or to become due, whether related to the Business or the Purchased Assets and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including clauses (i) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”):). Without limiting the generality of the foregoing and notwithstanding anything in Section 2.4(a) to the contrary, the Excluded Liabilities shall include the following:
(i) any of Seller’s liabilities Liabilities incurred or obligations under this Agreement, the Schedules attached hereto and any other agreements entered into by Seller arising in connection with the transactions contemplated by this Agreement;
(ii) any operation of the PhosLo Business, the condition of the Seller’s liabilities assets or obligations for expenses, fees or Taxes incident to or arising out the ownership of the negotiation, preparation, approval or authorization of this Agreement or Purchased Assets prior to the consummation (or preparation for the consummation) of the transactions contemplated hereby (including all attorneys’ and accountants’ fees, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereofEffective Time, including any claims made by or against the Puerto Rico Taxes;
(iv) any liability or obligation under or with respect to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liability;
(v) any liability or obligation with respect to any products or services that were marketed or sold prior to of the ClosingSeller, including product liability, infringement claims and any related claims and litigation arising prior to, on whether before or after the Closing Date;
(vi) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any that arise out of Seller’s liabilities actions, omissions, circumstances or obligations of any kind to any Business Employees occurrences existing or former employee of Seller, including any liabilities or obligations arising prior to the Closing with respect to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule);
(vii) any liability or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or occurring before the Closing Date;
(viiiii) any claim, lawsuit or Liability of any kind or nature whatsoever (including any Liabilities relating to malpractice, tort or breach of contract claims asserted by any customer, patient, former patient, employee or any other party) that is based on PhosLo Products sold prior to the Effective Time, the sale after the Effective Time of Finished Goods Inventory existing as of the Effective Time, or marketing practices or marketing materials for PhosLo Products used prior to the Effective Time;
(iii) any Liabilities to refund or repay, and all Liability associated with, any unreconciled payments, overpayments, duplicate payments, refunds, discounts, rebates or adjustments due to Medicare, Medicaid, Blue Cross Blue Shield, or any other healthcare reimbursement or payment program or intermediary third-party payor, any states, the Veterans Administration, other governmental programs or any other Person in respect of PhosLo Products sold prior to the Effective Time, including any Liabilities to repay any amounts for failure to report correctly average manufacturing price or best price in violation of any Contract or Permit, including the Seller’s liabilities Medicaid Rebate Agreement, Pharmaceutical Provider Agreement with the Veterans Administration, or obligations 340B Agreement, in violation of any Legal Requirement with respect to the calculation of reported prices, or any Liabilities for rebates or discounts for PhosLo Products bearing the Seller’s NDC number arising under Part D Rebate Contracts and Commercial Rebate Contracts assigned to the Buyer pursuant to Section 8.17;
(Aiv) any Liabilities relating to investigations of the Seller or any Affiliate of the Seller by any Governmental Authority or relating to any noncompliance by the Seller or any Affiliate of the Seller with Legal Requirements, including applicable healthcare laws and regulations;
(v) any Liabilities arising out of or relating to the conduct of the CARE 2 Study or the EPICK Study prior to the Effective Time;
(vi) any Liabilities (whether assessed or unassessed) of the Seller or any Affiliate of the Seller for any Taxes, including any Taxes arising by reason of the transactions contemplated herein;
(vii) all Liabilities with respect to the Wholesaler Charges and Discounts in respect of PhosLo Products sold prior to the Effective Time;
(viii) any violation product liability relating to or alleged violation arising out of any federal, state, local the sale of PhosLo Products prior to the Effective Time or foreign law or any requirement the sale after the Effective Time of any governmental authority, (B) arising by reason the Finished Goods Inventory existing as of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Lawsthe Effective Time;
(ix) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim all Liabilities arising out of or relating to the recall, replacement or return of, or any claim for breach of warranty in connection with Seller’s conduct respect of or for refund of the Business or any other conduct of Sellerpurchase price of, Seller’s officers, directors, employees, consultants, agents or advisors on or the PhosLo Products sold prior to the Closing Date;
(x) all Liabilities of the Seller or its predecessors arising under any of Seller’s liabilities or obligations for IndebtednessEnvironmental Laws;
(xi) any liabilities or obligations in respect Liabilities attributable to any period prior to the Closing Date that arises out of any Contract, including Assigned Contracts, so long as such Liabilities do not arise as a result of the Excluded Assets (including under any contracts, leases, commitments performance or understandings related thereto)non-performance of such Assumed Contract by the Buyer after the Closing Date;
(xii) except as specifically set forth in this Agreement, any Liabilities to former or current officers, directors, employees, shareholders or Affiliates of the Seller or any Affiliate of the Seller’s liabilities , including any Liabilities of the Seller or obligations which Buyer may become liable for as a result any Affiliate of or the Seller in connection with the failure by Buyer any Plans or Seller to comply with collective bargaining, labor or employment agreement or other similar arrangement, any bulk sales or bulk transfers laws or as a result obligations in respect of retiree health benefits, and any “defacto merger” or “successor-in-interest” theories of liabilityaccrued employee paid time off, including for vacation and sick leave;
(xiii) any of Seller’s liabilities or obligations with respect to amounts disputed by Seller and not paid to the landlords Liabilities of the properties listed on Seller or any Affiliate of the attached Leased Real Property ScheduleSeller incurred or arising in connection with this Agreement, including any fees or expenses of the Seller or any Affiliate of the Seller incurred in connection with the transactions contemplated herein; and
(xiv) any other liabilities or obligations of Seller not expressly assumed by Buyer pursuant Liabilities relating to Section 2.2(a) aboveExcluded Assets.
Appears in 1 contract
Liabilities Not Assumed. Notwithstanding anything to the contrary in this Agreement, Buyer Purchaser shall not assume or in any way become liable be responsible for any of Seller’s debts, the following liabilities or obligations of any nature whatsoever (other than the Assumed Liabilities), whether accrued, absolute, contingent or otherwise, whether known or unknown, whether due or to become due, whether related to the Business or the Purchased Assets and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including clauses (i) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”):
(i) 2.2.1 any product liability or similar claim for injury to person, business or property, regardless of Seller’s liabilities when made or obligations under this Agreementasserted, the Schedules attached hereto and which arises out of or is based upon any other agreements entered into express or implied representation, warranty, agreement or guarantee made by Seller or alleged to have been made by Seller, or which is imposed or asserted to be imposed by operation of law in connection with any service performed or product sold or leased by or on behalf of Seller on or before the Closing, including without limitation any claim relating to any product delivered in connection with the transactions contemplated by this Agreementperformance of such service and any claim seeking recovery for consequential damages, lost revenue or income;
2.2.2 sales or use taxes or other taxes of any kind, assessments and penalties (iiA) any payable with respect to the operation of Seller’s liabilities the Business or obligations for expenses, fees ownership of the Assets by Seller on or Taxes before the Closing or from other properties or operations of Seller unrelated to the Business or the Assets or (B) incident to or arising out as a consequence of the negotiation, preparation, approval negotiation or authorization consummation by Seller of this Agreement or the consummation (or preparation for the consummation) of and the transactions contemplated hereby (including all attorneys’ and accountants’ fees, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereofhereby;
(iii) except as set forth on 2.2.3 any liability or obligation under or related to the Accrued Liabilities and Assumed Payables Schedule, Excluded Assets;
2.2.4 any liability or obligation of Seller for Taxes for of any periodkind, except for known or unknown, contingent or otherwise, not either enumerated as an Assumed Liability in Section 2.1 or resulting from any other covenant, agreement or indemnity of Seller in this Agreement or the portion of transfer Taxes other Purchase Documents (as defined below) and instruments to be paid executed and delivered by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico TaxesSeller;
2.2.5 any liability or obligation resulting from violations of any laws or regulations applicable to the Business or the Assets by Seller before the Determination Date or from infringement of third-party rights or interests with respect to the Business before the Determination Date;
2.2.6 any employee liabilities relating to present and past employees of the Business with respect to plans, programs, policies, commitments and other benefit entitlements established or existing on or before Closing (ivwhether or not such liabilities are accrued or payable at Closing, and whether or not such liabilities are contingent in nature), including:
(A) any liability or obligation for workers’ compensation;
(B) any current or future liabilities to employees retiring on, before or after the Closing and their dependents (excluding employees employed by Purchaser after the Closing and who subsequently retire);
(C) any current or future liabilities for benefits that may have been accrued or earned by any employees associated with the Business on or before Closing under any pension plans relating to service before the Closing Date;
(D) any current or future liabilities for claims incurred before Closing and related expenses with respect to any employees associated with the Business under any welfare or disability plans established or existing at or before Closing, regardless of when filed with Purchaser, Seller Employee Benefit Plan or the claims administrator for any other employee benefit such plan;
(E) any retrospective premium on pension, savings, thrift or profit-sharing plan contributions relating to any employees associated with the Business incurred or accrued before the Closing Date, regardless of when invoiced or recorded; or
(F) any monetary liability for severance payments that may arise at any time in favor of any of Seller's employees under any plan, program, policy policy, commitment or arrangement presently any other benefit entitlement, provided such monetary liability relates to periods of employment before the Closing;
2.2.7 any Litigation (as defined herein) pending or formerly maintained or contributed to by threatened against Seller or its ERISA Affiliatesthe Assets, if the cause of action or with respect activities giving rise to which Seller such Litigation arose or any such ERISA Affiliate has any liability;accrued before the Closing Date; or
(v) 2.2.8 any liability or obligation with respect to any products option or services that were marketed or sold prior to the Closing, including product liability, infringement claims and any related claims and litigation arising prior to, on or after the Closing Date;
(vi) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any of Seller’s liabilities or obligations of any kind warrant granted to any Business Employees person or former employee of entity by Seller, including any liabilities or obligations arising prior to the Closing with respect to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule);; or
(vii) 2.2.9 any liability or obligation relating to workers’ compensation claims which were filed of Seller arising or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Date;
(viii) any of Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Laws;
(ix) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct of the Business or any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents or advisors on or prior to the Closing Date;
(x) any of Seller’s liabilities or obligations for Indebtedness;
(xi) any liabilities or obligations in respect of any of the Excluded Assets (including under any contracts, leases, commitments or understandings related thereto);
(xii) any of Seller’s liabilities or obligations which Buyer may become liable for as a result of or incurred in connection with the failure negotiation, preparation and execution of this Agreement and the transactions contemplated hereby and fees and expenses of counsel, accountants, brokers and other experts employed by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liability;
(xiii) any of Seller’s liabilities or obligations with respect to amounts disputed by Seller and not paid to the landlords of the properties listed on the attached Leased Real Property Schedule; and
(xiv) any other liabilities or obligations of Seller not expressly assumed by Buyer pursuant to Section 2.2(a) above.
Appears in 1 contract
Sources: Asset Purchase Agreement (Goldleaf Financial Solutions Inc.)
Liabilities Not Assumed. Notwithstanding anything to Except for the contrary in this AgreementAssumed Liabilities, Buyer Purchaser shall not assume or in any way become liable or otherwise obligated to pay, perform, or discharge any, and Seller shall remain expressly liable for any of Seller’s debtsall, liabilities or and obligations of any nature whatsoever Seller (other than the Assumed Liabilities), whether accrued, absolute, contingent or otherwise, whether known or unknown, whether due or to become due, whether related to the Business or the Purchased Assets and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including clauses (i) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”):), including the following liabilities and obligations of Seller:
(ia) intercompany accounts payable of Seller and accounts payable of Seller to Affiliates;
(b) any of Seller’s liabilities or obligations under this Agreementwith respect to employees of Seller, including employees employed in connection with Seller’s business, arising from such employment (the Schedules attached hereto and “Seller Employees”), except such liabilities or obligations expressly set forth in Schedule 2.3;
(c) any other agreements entered into liabilities or obligation resulting from, arising under, or relating to the termination of employment by Seller of any employee of Seller;
(d) any liabilities or obligations resulting from, arising under, or relating to any Employee Plan maintained by Seller;
(e) any liabilities or obligations resulting from, arising under, or relating to any Employee Plan maintained by Seller’s Affiliates;
(f) all Taxes, documentary charges, recording fees, or similar charges, fees, or expenses that may become payable in connection with the sale of Assets or the transactions contemplated by this Agreementhereby, other than those Taxes imposed on the net income of Purchaser;
(iig) any of all Taxes related to Seller or Seller’s business payable with respect to all periods prior to and including the Closing Date, together with any interest or penalties thereon, including all accrued and unpaid payroll taxes of any kind, except such tax liabilities or obligations for expenses, fees or Taxes 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, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereofexpressly set forth in Schedule 2.3;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(ivh) any liability or obligation under or with respect to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liability;
(v) any liability or obligation with respect to any products or services that were marketed or sold prior to the Closing, including product liability, infringement claims and any related claims and litigation arising prior to, on or after the Closing Date;
(vi) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any of Seller’s liabilities or obligations of any kind resulting from, arising under, or relating to any Business Employees or former employee of SellerNon-Assumed Contract, including any liabilities or obligations resulting from, arising prior under, or relating to the Closing Datatek Consulting Purchase Agreement other than the liability of Seller thereunder with respect to the exempt managers’ bonuses or nonearn-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or outs as expressly set forth on any in Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule)2.3;
(viii) any liabilities or obligations resulting from, arising under, or relating to any Excluded Contract; and
(j) any liability or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first resulting from, arising on or before the Closing Date;
(viii) any of Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decreeunder, or (C) arising under any Environmental Laws;
(ix) any of Seller’s liabilities or obligations relating to any legal action, suit, or proceeding based upon an event occurring or a claim arising out of or in connection with Seller’s conduct of the Business or any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents or advisors on or prior to the Closing Date;
(x) any or after the Closing in the case of Seller’s liabilities or obligations for Indebtedness;
(xi) any liabilities or obligations claims in respect of any of the Excluded Assets (including under any contracts, leases, commitments products sold or understandings related thereto);
(xii) any of Seller’s liabilities or obligations which Buyer may become liable for as a result of or in connection with the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liability;
(xiii) any of Seller’s liabilities or obligations with respect to amounts disputed services delivered by Seller and not paid on or prior to the landlords of Closing or attributable to acts performed or omitted by Seller or its employees or representatives on or prior to the properties listed on the attached Leased Real Property Schedule; and
(xiv) any other liabilities or obligations of Seller not expressly assumed by Buyer pursuant to Section 2.2(a) aboveClosing.
Appears in 1 contract
Liabilities Not Assumed. Notwithstanding Except to the extent expressly assumed by ----------------------- Purchaser pursuant to Section 3.1, Purchaser shall not assume or be liable for any liabilities or obligations of the Company, whether the same are direct or indirect, fixed, contingent or otherwise, known or unknown, whether existing at the Effective Time or arising thereafter as a result of any act, omission or circumstance taking place prior to the Effective Time. Furthermore, notwithstanding anything to the contrary stated in this AgreementSection 3.1, Buyer Purchaser shall not assume or in any way become be liable for any of Seller’s debtsthe following liabilities or obligations:
(a) the Excluded Liabilities;
(b) any of the Company's liabilities or obligations under any Contract and Other Agreement not assigned to Purchaser hereunder, or under any Contract and Other Agreement assigned to Purchaser hereunder to the extent the same relate to periods prior to the Effective Time;
(c) any of the Company's obligations or liabilities that relate to any retirement, pension, profit sharing, stock option or other compensation plan;
(d) any of the Company's liabilities or obligations of any nature whatsoever to any past or present shareholder of the Company (other than the Assumed Liabilities)including, whether accruedwithout limitation, absolute, contingent or otherwise, whether known or unknown, whether due or any shareholder who exercises such shareholder's right to become due, whether related to the Business or the Purchased Assets and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including clauses (i) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”):
(i) any of Seller’s liabilities or obligations under this Agreement, the Schedules attached hereto and any other agreements entered into by Seller in connection with dissent from the transactions contemplated by this Agreement) or any severance, "parachute" or other similar payment to any officer, director or employee of the Company arising by virtue of the transactions contemplated herein;
(iie) any of Seller’s the Company's liabilities or obligations for expensesTaxes, expenses and fees or Taxes incident to or arising out of the negotiation, preparation, approval or authorization of this Agreement or the consummation (or preparation for of the consummation) of the transactions contemplated hereby (including all attorneys’ herein, including, without limitation, any related attorney's and accountants’ accountant's fees, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iiif) except any of the Company's liabilities or obligations against which the Company is insured or otherwise indemnified as set forth on of the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico TaxesEffective Time;
(ivg) any liability or obligation under or with respect to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liability;
(v) any liability or obligation with respect to any products or services that were marketed or sold prior to of the Closing, including product liability, infringement claims and any related claims and litigation arising prior to, on or after the Closing Date;
(vi) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any of Seller’s Company's liabilities or obligations of any kind to any Business Employees or former employee of Seller, including any liabilities or obligations arising prior to the Closing with respect to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule);
(vii) any liability or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Date;
(viii) any of Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order tort or decree, or (C) arising under any Environmental Lawsinfringement of the rights of another;
(ixh) any of Seller’s the Company's liabilities or obligations relating to under any legal action, proceeding Law or claim arising out of or in connection with Seller’s conduct of the Business or any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents or advisors on or prior to the Closing DateOrder;
(x) any of Seller’s liabilities or obligations for Indebtedness;
(xii) any liabilities or obligations in respect of any of the Excluded Assets Company arising from the Distribution (including under including, without limitation, any contracts, leases, commitments or understandings related theretoallocation of rights and property in connection therewith);
(xiij) any obligations or liabilities, including severance, retiree medical and other retiree and pension plan benefits, wages, salaries, bonuses, payroll taxes, sick pay, vacation pay (except to the extent provided in Section 3.1(d) hereof), and other benefits and compensation, for the Company's employees and any post-employment or post-termination welfare benefits (within the meaning of Section 3(1) of ERISA) of any kind with respect to any current or former officer, employee, agent, director or independent contractor of the Company;
(k) any other Tax imposed on the Company;
(l) any of Seller’s the Company's liabilities or obligations arising from any options, warrants, calls, subscriptions or other rights or other agreements or commitments obligating the Company to issue any shares of its capital stock or any grants or offers thereof, or any other securities or commitments obligating the Company to issue any other securities convertible into, exchangeable for or evidencing the right to subscribe for any shares of its capital stock;
(m) any of the Company's liabilities or obligations for its failure to make any federal or state securities law filings for the issuance and sale of shares of the Company's capital stock; and
(n) any of the Company's liabilities or obligations which Buyer may become liable for as a result of or in connection with the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liability;
(xiii) any of Seller’s liabilities or obligations with respect to amounts disputed by Seller and would not paid to the landlords have existed had each of the properties listed on Company's representations and warranties been true as of the attached Leased Real Property Schedule; and
(xiv) any other liabilities or obligations date hereof and as of Seller not expressly assumed by Buyer pursuant to Section 2.2(a) abovethe Closing Date and had the Company complied with each of its covenants contained in this Agreement.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization and Liquidation (Vertel Corp)
Liabilities Not Assumed. Notwithstanding anything Any provision of this Agreement to the contrary notwithstanding (and without implication that Buyer is assuming any liability not expressly excluded and, where applicable, without implication that any of the following have been included in this Agreementthe liabilities described in Section 2.5), except for the liabilities described in Section 2.5, Buyer shall not assume or in any way become liable for any of Seller’s debts, liabilities or obligations of any nature whatsoever (other than the Assumed Liabilities), whether accrued, absolute, contingent or otherwise, whether known or unknown, whether due or to become due, whether related to the Business or the Purchased Assets and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including clauses (i) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”):
(i) any of Seller’s liabilities or obligations under this Agreement, the Schedules attached hereto and any other agreements entered into by Seller in connection with the transactions contemplated by this Agreement;
(ii) any of Seller’s liabilities or obligations for expenses, fees or Taxes incident to or arising out of the negotiation, preparation, approval or authorization virtue of this Agreement or the consummation (or preparation for the consummation) of the transactions contemplated hereby (including all attorneys’ and accountants’ feesand, brokerage fees and transfer Taxes)shall have no liability for, except for the portion any obligations or liabilities of the transfer Taxes Sellers of any kind, character, or description whatsoever, including without limitation the following liabilities:
(a) any of Sellers' obligations hereunder;
(b) any liabilities relating to be paid by Buyer any of the Excluded Assets, or any obligations or liabilities under any Contract not included in the Assumed Contracts;
(c) any obligations or liabilities under the Assumed Contracts relating to the period prior to the Effective Time except insofar as the Purchase Price was reduced pursuant to Section 6.7 hereof2.3(a) as a result of the proration of such obligations and liabilities;
(iiid) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability arising from, or obligation in connection with, the conduct of Seller for Taxes for any period, the business and operations of WPBF or the Assets prior to the Closing Date except for insofar as the portion of transfer Taxes to be paid by Buyer Purchase Price was reduced pursuant to Section 6.7 hereof, including 2.3(a) as a result of the Puerto Rico Taxesproration of such obligations and liabilities;
(ive) any liability intercompany liabilities or obligation under any liabilities by either Seller to any of their respective shareholders, directors or officers or to any Affiliate of either Seller or of any of their respective shareholders, directors or officers or any liabilities relating to the capital stock of either Seller;
(f) any liabilities to or with respect to Sellers' employees, whether or not any Seller Employee Benefit Plan or such employee is offered employment by Buyer after the Closing Date, relating in any other employee benefit planway to such employee's employment with Sellers prior to the Closing Date (including deferred compensation liabilities and obligations for severance benefits, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliatesvacation time, or with respect to which Seller or any such ERISA Affiliate has any liabilitysick leave accrued prior the Closing Date);
(vg) any liability in respect of any past, present, or obligation with respect future litigation, action, suit, proceeding or arbitration arising out of or relating to any products the ownership or services that were marketed operation of the Assets or sold the business and operations of WPBF prior to the Closing, including product liability, infringement claims and any related claims and litigation arising prior to, on Closing Date (whether asserted or commenced before or after the Closing Date;
(vi) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any of Seller’s liabilities or obligations of any kind to any Business Employees or former employee of Seller, including any liabilities or obligations arising prior to the Closing with respect to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule);
(viih) any liability liabilities with respect to or obligation relating to workers’ compensation claims which were filed arising from indebtedness for borrowed money incurred or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or accrued before the Closing Date;
(viiii) any of Seller’s liabilities or obligations (A) arising without limitation by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Laws;
(ix) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct the specific enumeration of the Business or any other conduct of Sellerforegoing, Seller’s officers, directors, employees, consultants, agents or advisors on or prior to the Closing Date;
(x) any of Seller’s liabilities or obligations for Indebtedness;
(xi) any liabilities or obligations in respect of any of the Excluded Assets (including under any contracts, leases, commitments or understandings related thereto);
(xii) any of Seller’s liabilities or obligations which Buyer may become liable for as a result of or in connection with the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liability;
(xiii) any of Seller’s liabilities or obligations with respect to amounts disputed by Seller and not paid to the landlords of the properties listed on the attached Leased Real Property Schedule; and
(xiv) any other liabilities or obligations of Seller not expressly assumed by Buyer pursuant to the provisions of Section 2.2(a2.5; and
(j) aboveany liabilities of Sellers for Taxes relating to periods prior to the Effective Time.
Appears in 1 contract
Sources: Asset Purchase Agreement (Paxson Communications Corp)
Liabilities Not Assumed. Notwithstanding anything to the contrary in this Agreement, Buyer Purchaser shall not assume assume, nor shall it agree to pay, perform or discharge any liability or obligation of Seller which is not expressly listed or referred to in any way become liable for any of Seller’s debts, liabilities or obligations of any nature whatsoever Section 2.1 (other than the Assumed "Excluded Liabilities"), whether accruedwhich Excluded Liabilities shall include, absolutewithout limitation, contingent or otherwise, whether known or unknown, whether due or to become due, whether (i) all liabilities in connection with any outstanding litigation that is related to the Business or the Purchased Assets and whether disclosed on the Schedules attached heretoAssets, and regardless of when or by whom asserted, including clauses (iii) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”):
(i) any of Seller’s all liabilities or obligations under this Agreement, the Schedules attached hereto and any other agreements entered into by Seller in connection with the transactions contemplated by this Agreement;
(ii) any of Seller’s liabilities or obligations for expenses, fees or Taxes 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, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(iv) any liability or obligation under or with respect to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liability;
(v) any liability or obligation with respect to any products or services that were marketed or sold prior to the Closing, including product liability, infringement claims and any related claims and litigation arising prior to, on or filed after the Closing Date;
(vi) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any of Seller’s liabilities or obligations of any kind to any Business Employees or former employee of Seller, including any liabilities or obligations arising prior to the Closing with respect to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule);
(vii) any liability or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but date hereof that relate to claims and/or injuries first arising on activities or before the Closing Date;
(viii) any of Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Laws;
(ix) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct of the Business or any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents or advisors conditions on or prior to the Closing Date;
, except to the extent Purchaser has continued or contributed in any way to the activities which are the subject of such litigation in which case the Damages resulting from Purchaser's pro rata contribution to such activities shall be a Seller Loss (xas defined in Section 13.3), (iii) all accounts payable of the Business as of the Closing Date, (iv) any performance obligations of Seller’s liabilities Seller or obligations for Indebtedness;
(xi) any liabilities or obligations in respect the Business to cure a breach of any of the Excluded Assets Real Property Leases, Contracts with customers of the Business whose average weekly revenues exceed $1,000 a week or more, Personal Property Leases or Other Contracts (a "Performance Obligation to Cure a Breach"), and (v) except as provided in Sections 3.11(a) and 3.11(b), all liabilities for Taxes (as defined below) attributable to Seller for any taxable period on or before the Closing Date, including under without limitation any contracts, leases, commitments or understandings related thereto);
(xii) any Taxes of Seller’s liabilities , or obligations which Buyer may deficiencies in Taxes or claims for Taxes against Seller, that could become liable for a liability of, or that could be assessed or collected against, Purchaser as a result of or in connection with after the failure transfer of assets contemplated by Buyer this Agreement. For purposes of this Section 2.2, "Taxes" shall include (x) any net income, gross income, gross receipts, sales, use, ad valorem, franchise, profits, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property or Seller to comply windfall profit tax, custom duty or other tax of any kind whatsoever, together with any bulk sales interest and any penalty, addition to tax or bulk transfers laws additional amount imposed by any taxing authority (domestic or foreign) and (y) any liability for the payment of any amount of the type described in clause (x) as a result of any “defacto merger” being a member of an affiliated or “successor-in-interest” theories of liability;
(xiii) any of Seller’s liabilities or obligations with respect to amounts disputed by Seller and not paid to the landlords of the properties listed on the attached Leased Real Property Schedule; and
(xiv) any other liabilities or obligations of Seller not expressly assumed by Buyer pursuant to Section 2.2(a) abovecombined group.
Appears in 1 contract
Liabilities Not Assumed. Notwithstanding anything to the contrary Except as expressly set forth in this Agreement, the Buyer shall will not assume or in perform any way become liable for Liabilities not specifically contemplated by Section 2.3 hereof nor any of Seller’s debts, liabilities the following Liabilities (whether or obligations not contemplated by Section 2.3):
(a) any Liability of any nature whatsoever (Seller for income, franchise, transfer, sales, use and other than the Assumed Liabilities), similar Taxes whether accrued, absolute, contingent or otherwise, whether known or unknown, whether due or to become due, whether related not relating to the Business or the Purchased Assets and whether disclosed or not incurred prior to the date hereof;
(b) any Liability of any Seller for the unpaid Taxes of any Person including Taxes imposed on the Schedules attached heretoCompany or any other Seller, as a transferee or successor, by contract, or otherwise;
(c) any Liability of any Seller to indemnify any Person (including any of the Sellers) by reason of the fact that such Person was a director, officer, employee, or -7- 14 agent of the Company or any other Seller or was serving at the request of such entity as a partner, trustee, director, officer, employee, or agent of another entity;
(d) any Liability of any Seller arising as a result of any legal or equitable action or judicial or administrative proceeding initiated at any time in respect of anything done, suffered to be done or omitted to be done by such Sellers or any of their respective directors, officers, employees or agents;
(e) any Liability of the Sellers for costs and regardless expenses incurred in connection with this Agreement, the making or performance of when this Agreement and the transactions contemplated hereby;
(f) any Liability of the Sellers under this Agreement;
(g) any Liability relating to or arising out of services rendered by whom assertedthe Company or any other Seller prior to the date hereof;
(h) any Liability of the Business for trade payables and other accrued liabilities incurred in the Ordinary Course of Business prior to the date hereof, including clauses (i) through (xiv) below (collectively referred to herein other than those assumed by the Buyer as the “Excluded Liabilities”):set forth on Schedule 2.6;
(i) any Liability of Seller’s liabilities the Sellers arising out of any (i) Employee Benefit Plan established or obligations under this Agreement, maintained by the Schedules attached hereto and Company or any other agreements entered into by Seller, (ii) Employee Benefit Plan to which the Company or any other Seller in connection with the transactions contemplated by this Agreementcontributes, or (iii) any termination of any such Employee Benefit Plan, other than as specifically assumed pursuant to Section 2.3(c) hereto;
(j) except as specifically set forth in Section 2.3(c) hereto, any Liability of the Sellers for making payments or providing benefits of any kind to its employees or former employees and beneficiaries of employees and former employees (including, without limitation, (i) as a result of the sale of the Acquired Assets, (ii) any of Seller’s liabilities or obligations for expensesobligation to provide former employees so-called COBRA continuation coverage, fees or Taxes 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, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation in respect of Seller medical and other benefits for Taxes for any periodexisting and future retirees, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(iv) any liability or obligation under in respect of work-related employee injuries or with respect worker's compensation claims arising out of injuries occurring prior to any Seller Employee Benefit Plan or any other employee benefit planthe date hereof, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liability;
and (v) any liability or obligation with respect of Sellers pursuant to any products or services that were marketed or sold prior to the Closing, including product liability, infringement claims and any related claims and litigation arising prior to, on or after the Closing Date;
(viSection 5.1(a) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any of Seller’s liabilities or obligations of any kind to any Business Employees or former employee of Seller, including any liabilities or obligations arising prior to the Closing with respect to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedulehereof);
(viik) any liability or obligation relating Liability pertaining to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Date;
(viii) any of Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Laws;
(ix) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim Business arising out of or in connection with Seller’s conduct of the Business or any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents or advisors on or resulting from noncompliance prior to the Closing Date;
(x) any of Seller’s liabilities or obligations for Indebtedness;
(xi) any liabilities or obligations in respect of any of the Excluded Assets (including under any contracts, leases, commitments or understandings related thereto);
(xii) any of Seller’s liabilities or obligations which Buyer may become liable for as a result of or in connection with the failure by Buyer or Seller to comply date hereof with any bulk sales national, regional or bulk transfers laws local laws, statutes, ordinances, rules, regulations, orders, determinations, judgments, or as a result of any “defacto merger” directives, whether legislatively, judicially or “successor-in-interest” theories of liability;
(xiii) any of Seller’s liabilities or obligations with respect to amounts disputed by Seller and not paid to the landlords of the properties listed on the attached Leased Real Property Scheduleadministratively promulgated; and
(xivl) any other liabilities Liability of the Sellers under any leases, contracts, or obligations of Seller agreements not expressly assumed by Buyer pursuant to Section 2.2(alisted on Schedules 2.1(b) aboveor 2.1(f).
Appears in 1 contract
Sources: Asset Purchase Agreement (Miami Cruiseline Services Holdings I B V)
Liabilities Not Assumed. Notwithstanding anything to the contrary in this Agreementprovisions of Section ----------------------- 2.1, Buyer the Purchaser shall not assume or in any way become liable be responsible for any of Seller’s debts, the following liabilities or obligations (the "Excluded Liabilities"):
2.2.1 any product liability or similar claim for injury to person, business or property, regardless of when made or asserted, which arises out of or is based upon any nature whatsoever express or implied representation, warranty, agreement, or guarantee made by the Seller Parties, or alleged to have been made by the Seller Parties, or which is imposed or asserted to be imposed by operation of law, in connection with any service performed or product sold or leased by or on behalf of the Seller Parties on or before the Closing, including any claim relating to any product delivered in connection with the performance of such service and any claim seeking recovery for consequential damages, lost revenue or income;
2.2.2 any governmental fees, costs, levies, assessments, fines, penalties or interest thereon, including but not limited to sales or use taxes or other taxes, assessments and penalties (A) payable with respect to the operation of the Business or ownership of the Assets by the Seller Parties on or before the Closing, or from other than properties or operations of the Assumed Liabilities), whether accrued, absolute, contingent or otherwise, whether known or unknown, whether due or to become due, whether related Seller Parties unrelated to the Business or the Purchased Assets Assets, or (B) incident to or arising as a consequence of the negotiation or consummation by the Seller Parties of this Agreement and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including clauses (i) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”):
(i) any of Seller’s liabilities or obligations under this Agreement, the Schedules attached hereto and any other agreements entered into by Seller in connection with the transactions contemplated by this Agreement;
(ii) 2.2.3 any of Seller’s liabilities liability or obligations for expenses, fees or Taxes incident obligation attributable 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, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereofExcluded Assets;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, 2.2.4 any liability or obligation of the Seller for Taxes for Parties of any periodkind, except for known or unknown, contingent or otherwise, resulting from any other covenant, agreement, or indemnity of the portion of transfer Taxes Seller Parties in this Agreement or the other Purchase Documents to be paid executed and delivered by Buyer the Sellers (the term the "Purchase Documents" means this Agreement and the schedules, exhibits, and other documents, agreements, certificates, and instruments executed and delivered pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(iv) any liability or obligation under or with respect to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liability;
(v) any liability or obligation with respect to any products or services that were marketed or sold prior to the Closing, including product liability, infringement claims and any related claims and litigation arising prior to, on or after the Closing Date;
(vi) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any of Seller’s liabilities or obligations of any kind to any Business Employees or former employee of Seller, including any liabilities or obligations arising prior to the Closing with respect to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule);
(vii) any liability or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Date;
(viii) any of Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Laws;
(ix) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct of the Business or any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents or advisors on or prior to the Closing Date;
(x) any of Seller’s liabilities or obligations for Indebtedness;
(xi) any liabilities or obligations in respect of any of the Excluded Assets (including under any contracts, leases, commitments or understandings related theretothis Agreement);
(xii) any of Seller’s liabilities or obligations which Buyer may become liable for as a result of or in connection with the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liability;
(xiii) any of Seller’s liabilities or obligations with respect to amounts disputed by Seller and not paid to the landlords of the properties listed on the attached Leased Real Property Schedule; and
(xiv) any other liabilities or obligations of Seller not expressly assumed by Buyer pursuant to Section 2.2(a) above.
Appears in 1 contract
Liabilities Not Assumed. Notwithstanding anything to At the contrary in this AgreementClosing, Buyer the Purchaser shall not assume or in any way become liable for for, and the defined term "Assumed Liabilities" shall not include, any of Seller’s debts, liabilities claims, obligations, contracts or obligations liabilities, of any nature whatsoever (other than the Assumed Liabilities)kind, description or nature, whether accrued, absolute, contingent or otherwise, whether known or unknown, whether due or to become due, whether related to the Business or the Purchased Assets and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including clauses either (i) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”):
(i) any of Seller’s liabilities existing or obligations under this Agreement, the Schedules attached hereto and any other agreements entered into by Seller in connection with the transactions contemplated by this Agreement;
(ii) any of Seller’s liabilities or obligations for expenses, fees or Taxes 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, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(iv) any liability or obligation under or with respect to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liability;
(v) any liability or obligation with respect to any products or services that were marketed or sold prior to the Closing, including product liability, infringement claims and any related claims and litigation arising prior to, on or after the Closing Date;
(vi) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any of Seller’s liabilities or obligations of any kind to any Business Employees or former employee of Seller, including any liabilities or obligations arising prior to the Closing with respect to Effective Date or (ii) arising other than in the exempt or non-exempt status ordinary course of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including business between the Accrued Liabilities Effective Date and Assumed Payables Schedule);
(vii) any liability or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after (collectively, the Closing Date but relate to claims and/or injuries first arising on or before "Excluded Liabilities"). The Excluded Liabilities shall include, without limitation, the Closing Date;following:
(viiia) Any liability of Seller or any affiliate of Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation of Seller to pay any federal, state, local or foreign law income, property, withholding, payroll, franchise, sales or use, or other tax (any requirement interest, fines or penalties with respect thereto), with respect to any claim by any landlord or taxing authority or court or administrative agency for any tax period (including, without limitation, any such liability resulting from the transactions contemplated in this Agreement);
(b) Any liability and other obligation of any governmental authority, (B) arising Seller by reason of underpayments or overpayments of or submission of false, over- stated or unauthorized or medically-unnecessary claims to Medicare, Medicaid or any breach other third-party payors, whether known or alleged breach unknown as of the date of Closing, arising with respect to periods prior to the Closing Date, including any fines, interest and penalties thereon. Furthermore, Seller, its successors, heirs and assigns shall be and remain solely responsible for paying to Medicare, Medicaid and/or any other third party payor all recoupments demanded with respect to goods and services furnished pre-Closing by Seller of or the Business and any agreementoverpayments Seller or Business received from a third party payor, contracttogether with any and all interest, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under fines and/or penalties in any Environmental Laws;manner attributable thereto.
(ixc) Any legal and/or regulatory liabilities of Seller or the Business, including without limitation, any liability of Seller’s liabilities Seller or obligations relating the Business which in any manner relates to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct arises from operation of the Business or as a Medicare and/or Medicaid provider at any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents or advisors on or time prior to the Closing Date;
(xd) any All other liabilities of the Seller’s , unless such liabilities or obligations for Indebtednessare specifically stated to be an Assumed Liability pursuant to this Agreement;
(xie) any Any and all other liabilities of Seller and/or the Business, whether fixed, contingent, known, unknown, liquidated, or obligations in respect unliquidated, of any every kind, description and nature whatsoever (including, without limitation, all liabilities related to or arising from acts or omissions of Seller or by virtue of operation of the Excluded Assets (including under Business prior to the Effective Date), legal and regulatory issues not on the Business' balance sheet, trade accounts, accounts payable, bank debt, other debt, and any contractsand all billings, leases▇▇▇▇▇▇, commitments and costs relating to goods and services provided by the Business up to the Effective Date which are disallowed or understandings related theretoadjusted by third parties);
(xiif) any Any liability or other obligation of Seller’s liabilities the Selling Partners, the Seller or obligations which Buyer may become liable the Business for as a result of payments under buy-sell or in connection with shareholder agreements, the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result payment of any “defacto merger” and all severance pay, accrued vacation, accrued sick time, overtime, wages and all associated tax and withholding liabilities, and other benefits accruing to employees of the Business up to the Effective Date, and all such liabilities and obligations shall be paid in full by Seller on or “successor-in-interest” theories of liabilityprior to the Effective Date, other than liability for the accrued vacation set forth in Schedule 2.5(f) (the "Vacation Liability"), which liability shall be offset from the Initial Consideration and assumed by Purchaser;
(xiiig) any Any fines, penalties, expenses, administrative fees, liabilities and other obligations of whatever kind, description and nature, whether accrued, contingent or otherwise, under Seller’s liabilities or obligations with respect to amounts disputed by Seller 's and/or Business' 401(k) plan and not paid to the landlords other profit sharing and pension plans;
(h) All Medicare and Medicaid Participation Agreements and Medicare and Medicaid provider numbers of the properties listed on the attached Leased Real Property ScheduleBusiness; and
(xiv) any other liabilities or obligations of Seller not expressly assumed by Buyer pursuant to Section 2.2(a) above.
Appears in 1 contract
Liabilities Not Assumed. Notwithstanding anything to the contrary in this Agreement, Buyer Holdings shall not assume or in any way become liable be responsible for any of Seller’s debts, liabilities or obligations of any nature whatsoever (other than the Assumed Liabilities), whether accrued, absolute, contingent or otherwise, whether known or unknown, whether due or to become due, whether related to the Business or the Purchased Assets and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including clauses (i) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”):
(i) any of Seller’s liabilities or obligations under this Agreement, the Schedules attached hereto and any other agreements entered into by Seller in connection with the transactions contemplated by this Agreement;
(ii) any of Seller’s liabilities or obligations for expenses, fees or Taxes 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, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller for Taxes for any periodnot specifically assumed hereunder. Without limitation, except for the portion of transfer Taxes to Holdings shall not be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;responsible for:
(iv) any liability or obligation under or with respect to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liability;
(v) any liability or obligation with respect to any products or services that were marketed or sold prior to the Closing, including product liability, infringement claims and any related claims and litigation arising prior to, on or after the Closing Date;
(vi) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any of Seller’s liabilities or obligations of any kind to any Business Employees or former employee of Seller, including any liabilities or obligations arising prior to the Closing with respect to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule);
(vii) any liability or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Date;
(viiia) any of Seller’s 's liabilities for borrowed money or obligations (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Lawscapital leases;
(ixb) any of Seller’s liabilities products liability, liability arising from or obligations relating to any legal actionEnvironmental Laws and Regulations (hereinafter defined) or other environmental matters, proceeding or claim arising out of or in connection with Seller’s conduct of the Business or any other liabilities associated with the conduct of Seller, Seller’s officers, directors, employees, consultants, agents 's business (including acts or advisors on or omissions) prior to the Closing Date;
(xc) liabilities incurred by Seller in connection with this Agreement and the transactions contemplated herein, including any liquidation or dissolution of Seller’s liabilities or obligations for Indebtedness;
(xid) any liabilities or obligations in respect liability of Seller insured against to the extent such liability is paid by an insurer;
(e) any liability of Seller to any of the Excluded Assets (including under any contractsStockholders, leasesincluding, commitments or understandings related thereto)without limitation, Stockholder Debt, dividends payable and other capital debt;
(xiif) any of Seller’s liabilities expenses which are incurred by Seller in making or obligations carrying into effect this Agreement or which Buyer may become liable for as a result of are incidental thereto, including, without limitation,
(i) any income, sales, transfer, stamp, excise and other taxes, foreign or domestic, Federal or state, required to be paid in connection with the failure by Buyer or Seller respect to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” Seller's operations up to and including the Closing Date, or “successor-in-interest” theories of liability;
(xiii) any of Seller’s liabilities the conveyance, assignment or obligations with respect to amounts disputed by Seller and not paid to the landlords transfer of the properties listed Purchased Assets to Holdings or otherwise, including, without limitation, any tax due on the attached Leased Real Property Scheduleaccount of recapture of depreciation or tax credit; and
(xivii) any other and all costs, expenses or liabilities or obligations of Seller not expressly assumed by Buyer pursuant that arise out of the sale herein contemplated or that arise after the Closing Date; and
(g) any liability for Taxes other than a liability for those Taxes, if any, specified in the definition of Assumed Liabilities; and
(h) any profit-sharing or pension plan contributions; and
(i) any liability under ERISA or the Internal Revenue Code of 1986, as amended, or related to Section 2.2(aany Pension Benefit Plan (hereinafter defined), Welfare Benefit Plan (hereinafter defined) aboveor Other Benefit Arrangement (hereinafter defined).
Appears in 1 contract
Sources: Purchase and Sale Agreement (Jordan Telecommunication Products Inc)
Liabilities Not Assumed. Notwithstanding anything to the contrary Except as expressly set forth in this ----------------------- Agreement, the Buyer shall will not assume or in perform any way become liable for Liabilities not specifically contemplated by Section 2.3 hereof nor any of Seller’s debts, liabilities the following Liabilities (whether or obligations not contemplated by Section 2.3):
(a) any Liability of any nature whatsoever (other than the Assumed Liabilities), Seller or the Stockholder for Taxes whether accrued, absolute, contingent or otherwise, whether known or unknown, whether due or to become due, whether related not relating to the Business and whether or not incurred prior to the Closing and any Liability of the Seller or the Purchased Assets and whether disclosed on Stockholder for the Schedules attached heretounpaid Taxes of any Person under Treasury Regulation 1.1502-6 (or any similar provision of state, and regardless of when local, or foreign law) as a transferee or successor, by whom assertedcontract, including clauses (i) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”):or otherwise;
(ib) any Liability of Seller’s liabilities the Company to indemnify any Person by reason of the fact that such Person was a director, officer, employee, or obligations under agent of the Company or was serving at the request of such entity as a partner, trustee, director, officer, employee, or agent of another entity;
(c) any Liability of the Seller or the Stockholder arising as a result of any legal or equitable action or judicial or administrative proceeding initiated at any time in respect of anything done, suffered to be done or omitted to be done by such Party or any of its directors, officers, employees or agents, excluding any actions or omissions by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ in his capacity as an employee or director of the Buyer after the Closing;
(d) any Liability of the Seller or the Stockholder for costs and expenses incurred in connection with this Agreement, the Schedules attached hereto making or performance of this Agreement and the Transactions;
(e) any other agreements entered into by Liability of the Seller in connection with or the transactions contemplated by Stockholder under this Agreement;
(iif) any of Seller’s liabilities or obligations for expenses, fees or Taxes incident Liability relating to or arising out of the negotiation, preparation, approval products manufactured or authorization of this Agreement or the consummation (or preparation for the consummation) of the transactions contemplated hereby (including all attorneys’ and accountants’ fees, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(iv) any liability or obligation under or with respect to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liability;
(v) any liability or obligation with respect to any products sold or services that were marketed or sold prior to rendered by the Closing, including product liability, infringement claims and any related claims and litigation arising prior to, on or after the Closing Date;
(vi) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any of Seller’s liabilities or obligations of any kind to any Business Employees or former employee of Seller, including any liabilities or obligations arising Company prior to the Closing with respect Date, other than the Assumed Product Warranty Liabilities;
(g) any Liability of the Seller or the Stockholder arising out of any Employee Benefit Plan currently or formerly established or maintained by the Company or to which the Company contributes or has contributed (including (i) any Liability relating to the exempt or non-exempt status termination of any Business Employee such plan, (ii) any Liability that the Seller or Employee Bonuses the Stockholder is required to retain by law to provide former employees so-called COBRA continuation coverage to the extent provided in Section 5.10 of this Agreement, and (whether or not such liability or obligation has been iii) any Liability in respect of medical and other benefits for existing and future retirees that accrued on Seller’s financial statements, disclosed prior to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables ScheduleClosing Date);
(viih) any liability Liability of the Seller or obligation relating the Stockholder in respect of work-related employee injuries that occurred prior to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to worker's compensation claims and/or injuries first arising on or before the Closing Date;
(viii) any of Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Laws;
(ix) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct of the Business or any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents or advisors on or that accrued prior to the Closing Date;
(xi) any Liability pertaining to the Company or the Business which arises out of Seller’s liabilities or obligations for Indebtedness;
(xi) any liabilities or obligations in respect results from the Release prior to Closing of any Chemical Substance and/or noncompliance by Seller prior to the Closing Date with any Legal Requirements as in effect prior to the Closing (including any Environmental Liabilities and Costs and Safety Liabilities and Costs whether or not arising out of or resulting from the Seller's or the Stockholder's noncompliance with Environmental Laws or Safety Laws, except to the extent that such Liability results from an action of the Excluded Assets (including under Buyer but excluding any contracts, leases, commitments actions of Buyer taken to remedy any Release prior to the Closing Date or understandings related theretoany non-compliance prior to the Closing Date with any Legal Requirements as in effect prior to the Closing);
(xiij) any Liability of Seller’s liabilities the Seller or obligations which Buyer may become liable for as a result of the Stockholder (i) under any leases not listed on Schedule 2.1(b) or in connection with (ii) arising from any breach or --------------- default under any Lease occurring prior to the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liabilityClosing Date;
(xiiik) any Liability of Seller’s liabilities the Seller or obligations with the Stockholder in respect to amounts disputed by Seller of Environmental Liabilities and not paid Costs arising out of any condition which existed prior to the landlords Closing and constitutes a violation of or gives rise to a duty to remediate under any Environmental Law;
(l) any Liability of the properties listed on Company to the attached Leased Real Property ScheduleStockholder or any Affiliate of the Stockholder (the "Intercompany Liabilities");
(m) any Liability of the Seller or the Stockholder in respect of debt for borrowed money; and
(xivn) any other liabilities Liability of the Seller or obligations of Seller not expressly assumed by Buyer pursuant the Stockholder to Section 2.2(a) aboveany broker, finder, investment bank or similar Person with respect to the Transactions.
Appears in 1 contract
Sources: Asset Purchase Agreement (Nu Horizons Electronics Corp)
Liabilities Not Assumed. Notwithstanding anything to the contrary Except as expressly provided in this AgreementSECTION 1.2(a) hereof, Buyer shall not assume or in any way become liable for any of Seller’s 's or any of its subsidiaries' debts, liabilities or obligations of any nature whatsoever (other than the Assumed Liabilities), whether accrued, absolute, contingent or otherwise, whether known or unknown, whether due or to become due, whether related to the Business or the Purchased Assets and whether disclosed on the Schedules attached hereto, and regardless of when or by whom assertedasserted (the "EXCLUDED LIABILITIES"), including clauses (i) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”):including:
(i) any of Seller’s 's liabilities or obligations under this Agreement, Agreement and the Schedules and Exhibits attached hereto and any other agreements entered into by Seller in connection with the transactions contemplated by this Agreementhereto;
(ii) any of Seller’s 's liabilities or obligations for expenses, expenses or fees or Taxes 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, brokerage ' fees and transfer Taxesbrokerage fees), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller or any subsidiary for Taxes, including any liability or obligation of Seller or any subsidiary in respect of any amount of federal, state, foreign or other Taxes (including interest, penalties and additions to such Taxes and any liabilities relating to Taxes arising as a result of Seller at any time being a member of an affiliated group (as defined in Section 1504(a) of the Code)) which are imposed on or measured by the income of Seller or any subsidiary for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(iv) any liability or obligation under or with respect to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by any member of the controlled group of companies (as such term is defined in Section 414 of the Code) of which Seller or any of its ERISA Affiliatessubsidiaries is or was a member, or with respect to which Seller Seller, any of its subsidiaries or any such ERISA Affiliate controlled group member has any liability;
(v) any liability liabilities or obligation with respect to any products or services that were marketed or sold prior to the Closingobligations, including product liabilityliability and infringement claims, infringement product return claims (based on product defects or otherwise) and any related claims and litigation litigation, arising prior to, on or after the Closing DateDate that relate to Products distributed prior to the Closing;
(vi) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any of Seller’s 's or its subsidiaries' accounts payable, accrued expenses or other current liabilities;
(vii) any of Seller's or its subsidiaries' liabilities or obligations for vacation pay, sick pay, severance pay, salary, bonuses or other payments or liabilities of any kind to any Business Employees or former employee of Seller, including Employees;
(viii) any liabilities or obligations arising prior of Seller or its subsidiaries relating to the Closing with respect to the exempt Business Employees or non-exempt status any other employees of any Business Employee Seller or Employee Bonuses (whether or its subsidiaries who do not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule)become Transferred Employees;
(viiix) any liability or obligation of Seller or its subsidiaries relating to workers’ ' compensation claims (or similar claims in foreign jurisdictions) with respect to Business Employees who do not become Transferred Employees and, with respect to each Transferred Employee, which were filed or presented to Seller or its subsidiaries on or before the Closing Date date upon which such Transferred Employee was no longer employed by Seller or its subsidiaries or which are filed or presented to Seller or its subsidiaries after such date to the Closing Date but relate extent the incident giving rise to claims and/or injuries first arising on or before the Closing Datesuch claim occurred prior to such date;
(viiix) any of Seller’s 's or its subsidiaries' liabilities or obligations (A) arising by reason of any their violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, or (B) arising by reason of any breach or alleged breach by Seller or any of its subsidiaries of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree;
(xi) any obligations or liabilities of Seller or its subsidiaries (contingent or otherwise and including without limitation, or (Cliability for response costs, personal injury, property damage, natural resource damage, fines, penalties, and costs to correct conditions of non-compliance) arising under all federal, state, local and foreign statutes, regulations, ordinances and other provisions having the force and effect of law, all judicial and administrative orders and determinations, all contractual obligations and all common law, in each case concerning public health and safety, worker health and safety and pollution or protection of the environment, including without limitation, those relating to the handling, treatment, storage, disposal, release or threatened release of hazardous materials, substances or wastes at or from any Environmental Lawspast or current property or facility of the Business or any offsite waste treatment, storage or disposal facility associated with the Business, except for any such obligations or liabilities to the extent the facts or circumstances underlying such obligations or liabilities are caused solely by the conduct of the Business after the Closing;
(ixxii) any of Seller’s 's or its subsidiaries' liabilities or obligations relating to any legal action, proceeding or claim arising out of or in connection with Seller’s 's or the Subsidiaries' conduct of the Business or any other conduct of Seller, its subsidiaries or Seller’s 's or its subsidiaries' officers, directors, employees, consultants, agents or advisors on or advisors, prior to the Closing DateClosing;
(xxiii) any of Seller’s 's or its subsidiaries' liabilities or obligations for Indebtednessindebtedness for borrowed money or indebtedness secured by liens on its assets or guarantees of any of the foregoing;
(xixiv) any of Seller's or its subsidiaries' liabilities or obligations to its shareholders or affiliates;
(xv) any liabilities or obligations in respect of any of the Excluded assets or rights of Seller or any of its subsidiaries other than the Purchased Assets (including under any contracts, leases, commitments or understandings related thereto);
(xii) any of Seller’s liabilities or obligations which Buyer may become liable for as a result of or in connection with the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liability;
(xiii) any of Seller’s liabilities or obligations with respect to amounts disputed by Seller and not paid to the landlords of the properties listed on the attached Leased Real Property Schedule; and
(xivxvi) any other liabilities or obligations of Seller and its subsidiaries not expressly assumed by Buyer pursuant to Section 2.2(a1.2(a) above.
Appears in 1 contract
Liabilities Not Assumed. Notwithstanding anything to Other than the contrary in this AgreementAssumed Liabilities, Buyer ----------------------- shall not assume or become obligated in any way become liable for to pay any Liabilities of Seller or any of Seller’s debtsits Affiliates or the Business, liabilities including any of the following: (a) Liabilities now or obligations hereafter arising from or with respect to the sale, license, provision, performance or delivery by Seller or any of its Affiliates of any nature whatsoever products or services that occurred before the Closing; (b) Liabilities now or hereafter arising from or with respect to any demand, claim, debt, suit, cause of action, arbitration or other than the Assumed Liabilities)proceeding (including a warranty claim, whether accrueda product liability claim or any other claim) that is made or asserted by any third person that relates to any product or service that was sold, absolute, contingent licensed or otherwise, whether known otherwise provided by Seller or unknown, whether due or to become due, whether related to the Business or the Purchased Assets and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including clauses (i) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”):
(i) any of Seller’s liabilities its Affiliates to any customer before the Closing; (c) Liabilities now or obligations under this Agreementhereafter arising from or with respect to noncompliance with any bulk sales, the Schedules attached hereto and any other agreements entered into by Seller in connection with bulk transfer or similar laws applicable to the transactions contemplated by this Agreement;
; (iid) Liabilities now or hereafter arising from or with respect to the employment or termination of any current, former or future employee of Seller or any of Seller’s liabilities or obligations for expensesits Affiliates, fees or Taxes incident to or arising out of the negotiation, preparation, approval or authorization of this Agreement or the consummation (or preparation including Liabilities for the consummation) payment of the transactions contemplated hereby any and all severance pay, wages or accrued and unused vacation time or for reimbursement of any expenses incurred by any such employees (including all attorneys’ and accountants’ fees, brokerage fees and transfer Taxes), except but excluding Liabilities for the portion payment of any and all severance pay that Buyer or DoveBid may, in its sole and absolute discretion, agree to pay to any Offeree (as defined in Section 8.1(g)) or any Transitional Employee (as defined in Section 8.1(g)) upon the transfer Taxes to be paid by termination of such person's employment with Buyer pursuant to Section 6.7 hereof;
or DoveBid, as applicable); (iiie) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability now or obligation of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(iv) any liability or obligation under hereafter arising from or with respect to any Seller Employee Benefit Plan Plans or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by plans of Seller or any of its ERISA Affiliates, ; (f) Liabilities now or hereafter arising from or with respect to which any employee of Seller or any such ERISA Affiliate has any liability;
of its Affiliates, including Liabilities under COBRA and WARN; (vg) any liability Liabilities now or obligation hereafter arising from or with respect to any products breach, violation or services default by Seller or any of its Affiliates of any contract, agreement or commitment of Seller or any of its Affiliates that were marketed occurred (or sold prior to arose from facts occurring) on or before the Closing, including product liability, infringement claims ; (h) Taxes now or hereafter due and payable by Seller or any related claims and litigation arising prior to, on or after the Closing Date;
(vi) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any of Seller’s liabilities or obligations of any kind to any Business Employees or former employee Affiliate of Seller, including any liabilities Taxes on, or obligations arising prior from, Seller's sale, assignment, transfer, conveyance and delivery to the Closing with respect to the exempt or non-exempt status Buyer of any Business Employee of the Assets pursuant to this Agreement; (i) Taxes attributable or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed related to Buyerany of the Assets that relate in any manner to, or set forth on first arose during, any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule);
(vii) any liability time period or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Date;
(viii) any of Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Laws;
(ix) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct of the Business or any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents or advisors portion thereof ending on or prior to the Closing Date;
, and any related Liabilities of Seller and its Affiliates; (xj) any of Seller’s liabilities Liabilities now or obligations for Indebtedness;
(xi) any liabilities hereafter arising from or obligations in with respect of to any of the Excluded Assets Assets; (including under any contracts, leases, commitments k) Liabilities now or understandings related thereto);
(xii) any of Seller’s liabilities hereafter arising from or obligations which Buyer may become liable for as a result of or in connection with the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liability;
(xiii) any of Seller’s liabilities or obligations with respect to amounts disputed the violation (or alleged violation) by Seller or any of its Affiliates of any statute, law, ordinance, regulation, order, judgment or decree of any Governmental Entity or any jurisdiction (other than Assumed Liabilities); and not paid (l) Liabilities now or hereafter arising from or with respect to the landlords any breach, violation or default by Seller or any of its Affiliates of, or any action of Seller or any of its Affiliates pursuant to, any of the properties agreements listed on Schedule C of the attached Leased Real Property Schedule; and
Seller Disclosure Letter that occurred (xivor arose from facts ---------- occurring) any other liabilities on or obligations before the effective date of the applicable Assignment and Assumption Agreement related thereto. All Liabilities of Seller and its Subsidiaries not expressly assumed by Buyer pursuant under Section 4.1 are referred to Section 2.2(a) aboveas the "Excluded Liabilities."
Appears in 1 contract
Liabilities Not Assumed. Notwithstanding anything to the contrary in this Agreement, Buyer Purchaser shall not assume or in any way become liable be responsible for any of Seller’s debts, the following liabilities or obligations of any nature whatsoever (other than the Assumed Liabilities), whether accrued, absolute, contingent or otherwise, whether known or unknown, whether due or to become due, whether related to the Business or the Purchased Assets and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including clauses (i) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”"EXCLUDED LIABILITIES"):
(i) any product liability or similar claim for injury to person, business or property, regardless of when made or asserted, which arises out of or is based upon any express or implied representation, warranty, agreement or guarantee made by Seller’s liabilities , or obligations under this Agreementalleged to have been made by Seller, or which is imposed or asserted to be imposed by operation of law, in connection with any service performed or product sold or leased by or on behalf of Seller on or prior to the Schedules attached hereto and Closing, including, without limitation, any other agreements entered into by Seller claim relating to any product delivered in connection with the transactions contemplated by this Agreementperformance of such service and any claim seeking recovery for consequential damages, lost revenue or income;
(ii) sales or use taxes, recapture taxes, other taxes, assessments and penalties (A) payable with respect to the Business, Assets, properties or operations of Seller or any member of Seller’s liabilities any affiliated group of which Seller is a member for any period prior to the Closing Date, or obligations for expenses, fees or Taxes (B) incident to or arising out as a consequence of the negotiationnegotiation or consummation by Seller, preparationor any member of any affiliated group of which Seller is a member, approval or authorization of this Agreement or the consummation (or preparation for the consummation) of and the transactions contemplated hereby (including all attorneys’ and accountants’ fees, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereofhereby;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller for Taxes for any period, except for under or in connection with the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico TaxesExcluded Assets;
(iv) any liability or obligation under of Seller of any kind, known or with respect to any Seller Employee Benefit Plan unknown, contingent or any other employee benefit planotherwise, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liabilitynot enumerated as an Assumed Liability in Section 2(a);
(v) any liability or obligation resulting from violations of any applicable laws or regulations by Seller prior to the Determination Date or from infringement of third-party rights or interests;
(vi) except to the extent set forth above, any employee liabilities relating to present and past employees of the Business with respect to any products plans, programs, policies, commitments, and other benefit entitlement established or services that were marketed existing on or sold prior to Closing (to the extent such liabilities are accrued or payable before the Closing Date, and whether or not such liabilities are contingent in nature), including
(A) any liability or obligation for workers' compensation;
(B) any current or future liabilities to employees retiring on, before, or after Closing, including product liability, infringement claims and their dependents (excluding employees employed by Purchaser after the Closing and who subsequently retire);
(C) any related claims and litigation arising prior to, current or future liabilities for benefits that may have been accrued or earned by any employees associated with the Business on or after before Closing under any pension plans relating to service prior to the Closing Date;
(viD) except as set forth on the Accrued Liabilities any current or future liabilities for claims incurred prior to Closing and Assumed Payables Schedule, any of Seller’s liabilities or obligations of any kind related expenses with respect to any employees associated with the Business Employees under any life, health, welfare or former employee disability plans established or existing at or prior to Closing, regardless of when filed with Purchaser, Seller, including or the claims administrator for any liabilities such plan;
(E) any retrospective premium or obligations arising pension, savings, thrift, or profit-sharing plan contribution relating to any employees associated with the Business incurred or accrued prior to the Closing with respect Date, regardless of when invoiced or recorded; and
(F) any monetary liability for severance payments that may arise at any time in favor of any of Seller's employees under any plan, program, policy, commitment, or any other benefit entitlement, provided such monetary liability relates to periods of employment prior to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule)Closing;
(vii) any liability Litigation (as defined herein) pending or obligation relating threatened against Seller or the Assets, if the cause of action or activities giving rise to workers’ compensation claims which were filed such litigation arose, accrued or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate occurred prior to claims and/or injuries first arising on or before the Closing Date;
(viii) any liability or obligation that under generally accepted accounting principles ("GAAP") would be required to be accrued and reflected in Seller's most recent balance sheet furnished to Purchaser before Closing, but is not included therein, regardless of Seller’s liabilities the materiality of such items individually or obligations (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Lawsin the aggregate;
(ix) any liability or obligation of Seller’s liabilities Seller arising or obligations relating to any legal action, proceeding or claim arising out of or incurred in connection with Seller’s conduct the negotiation, preparation and execution of this Agreement and the Business or any transactions contemplated hereby and fees and expenses of counsel, accountants and other conduct of Seller, Seller’s officers, directors, employees, consultants, agents or advisors on or prior to the Closing Dateexperts;
(x) any liability or obligation of Seller arising or incurred in connection with any securities of Seller’s liabilities , including, but not limited to, the offer or obligations for Indebtedness;sale of any securities by Seller, the repurchase by Seller of any its securities from its shareholders, and the issuance or payment of any distributions and/or dividends by Seller to its shareholders; and
(xi) any liabilities liability or obligations in respect obligation of any of the Excluded Assets (including under any contracts, leases, commitments Seller arising or understandings related thereto);
(xii) any of Seller’s liabilities or obligations which Buyer may become liable for as a result of or incurred in connection with any letter of intent, agreement or plan of merger or acquisition, non-disclosure, confidentiality, no-shop, standstill or similar agreements which the failure by Buyer Parent or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liability;
(xiii) any of Seller’s liabilities or obligations with respect to amounts disputed by Seller and not paid may have entered into prior to the landlords of the properties listed on the attached Leased Real Property Schedule; and
(xiv) any other liabilities or obligations of Seller not expressly assumed by Buyer pursuant to Section 2.2(a) abovedate hereof.
Appears in 1 contract
Liabilities Not Assumed. Notwithstanding anything Buyer shall not assume or be bound by any obligations or liabilities of Seller that do not relate to the contrary in this AgreementWinnebago. In addition, Buyer shall not assume the following obligations or in liabilities as they relate to Winnebago, if any:
(a) any way become liable obligation or liability of Seller for Taxes and/or assessments for all periods that have accrued as of the Date of Closing except as shown on the Closing Balance Sheet as a current liability per GAAP or which arise from or grow out of the sale of the business;
(b) any obligation or liability arising from existing litigation or claims, if any, or litigation arising out of Seller’s debts, liabilities an occurrence or obligations of any nature whatsoever (other than the Assumed Liabilities), whether accrued, absolute, contingent or otherwiseevent, whether known or unknown, whether due or to become due, whether related to happening before the Business or the Purchased Assets and whether disclosed on the Schedules attached hereto, and regardless Date of when or by whom asserted, including clauses (i) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”):Closing;
(ic) any obligation or liability arising from Seller's failure to perform any of Seller’s liabilities their agreements contained herein or obligations under this Agreement, the Schedules attached hereto and any other agreements entered into incurred by Seller in connection with the consummation of the transactions contemplated hereby including, but not limited to, leases, sign leases or franchise agreements;
(d) any expenses or taxes of Seller incurred in connection with the sale contemplated by this Agreement;
(ii) any of Seller’s liabilities or obligations for expenses, fees or Taxes 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, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(ive) any liability or obligation under any federal, state or with respect local law, regulation, rule, order, or administrative or judicial determination, including any of the foregoing relating to anti-trust, trade regulation, civil rights, employment practices or health and safety standards applicable to employees, which liability or obligation arises or results from any Seller Employee Benefit Plan act, omission or any other employee benefit plan, program, policy event prior to the Date of Closing by or arrangement presently or formerly maintained or contributed to by on behalf of Seller or its ERISA Affiliates, by reason of the ownership or with respect to which operation by or on behalf of Seller or any such ERISA Affiliate has any liabilityof the Purchased Assets before the Date of Closing;
(vf) any liability brokerage or obligation finder's fee payable in connection with respect the transactions contemplated hereby if any such fee is determined to any products or services that were marketed or sold prior to the Closing, including product liability, infringement claims be due and any related claims and litigation arising prior to, on or after the Closing Dateowing as a result of this sale;
(vi) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any of Seller’s liabilities or obligations of any kind to any Business Employees or former employee of Seller, including any liabilities or obligations arising prior to the Closing with respect to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule);
(viig) any obligation or liability or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Date;
(viii) any of Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Laws;
(ix) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim arising out of or in connection with related to claims made before or after the Date of Closing for personal injuries, property damages or consequential damages, which obligation or liability arises from or results from Seller’s conduct 's business, condition or operation of the Business Purchased Assets or otherwise before the Date of Closing.
(h) any purchase money obligations, any obligations secured by any real or personal property or any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents or advisors on or prior to the Closing Date;
(x) any of Seller’s liabilities or obligations for Indebtedness;
(xi) any liabilities or obligations in respect of any of the Excluded Assets (including under any contracts, leases, commitments or understandings related thereto);
(xii) any of Seller’s liabilities or obligations which Buyer may become liable for as a result of or in connection with the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liability;
(xiii) any of Seller’s liabilities or obligations with respect to amounts disputed by Seller and not paid to the landlords of the properties listed on the attached Leased Real Property Schedule; and
(xiv) any other liabilities or obligations of Seller not expressly assumed by Buyer pursuant to Section 2.2(a) aboveIntercompany Accounts.
Appears in 1 contract
Liabilities Not Assumed. Notwithstanding anything to the contrary Except as otherwise expressly provided in this AgreementSection 1.5, Buyer shall does not assume assume, agree to pay, perform or in discharge or otherwise have any way become liable responsibility for any of Seller’s debts, liabilities or obligations of any nature whatsoever (other than the Assumed Liabilities), whether accrued, absolute, contingent or otherwise, whether known or unknown, whether due or to become due, whether related to the Business or the Purchased Assets and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including clauses (i) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”):
(i) any of Seller’s liabilities or obligations under this Agreement, the Schedules attached hereto and any other agreements entered into by Seller in connection with the transactions contemplated by this Agreement;
(ii) any of Seller’s liabilities or obligations for expenses, fees or Taxes 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, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller for Taxes for any periodSeller, except for the portion of transfer Taxes fixed or contingent, and whether arising or to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(iv) any liability or obligation under or with respect to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liability;
(v) any liability or obligation with respect to any products or services that were marketed or sold prior to the Closing, including product liability, infringement claims and any related claims and litigation arising performed prior to, on or after the Closing Date;Closing. Without in any way limiting the generality of the foregoing, Buyer does not assume, and Seller shall pay, perform and discharge:
(vi) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any of Seller’s liabilities or obligations of any kind to any Business Employees or former employee of Seller, including any liabilities or obligations arising prior to the Closing with respect to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule);
(viiA) any liability or obligation relating to workers’ compensation the Excluded Assets;
(B) any liability or obligation resulting from or arising out of claims which were filed based on the service, work performed, product manufactured or presented distributed, in whole or in part, by Seller, arising out of any act, omission, event, occurrence or circumstance that existed on or before the Closing Date Closing, or which are filed relating to any service, work performed or presented after the Closing Date but relate to claims and/or injuries first arising on or product manufactured before the Closing DateClosing;
(viiiC) any of Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law income, sales, real or personal property or other taxes, assessments, fees, levies, imposts, duties, deductions or other charges of any nature whatsoever (including without limitation interest and penalties) imposed by any law, rule or regulation (collectively, the "Taxes") which are attributable or related to the Acquired Assets or the operations and business of the Seller for any periods ending on or before the Closing, or which may be applicable because of the Seller's sale of its business or any requirement of any governmental authoritythe Acquired Assets to the Buyer (collectively, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Lawsthe "Tax Obligations");
(ixD) any of Seller’s liabilities liability based on any obligations owing to or obligations relating to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct of the Business or any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents or advisors on or incurred prior to the Closing Date to any of Seller's employees (which term when used in this Section 1.6 shall include any such employee's dependents, heirs, successors and assigns), whether or not working, retired, laid off or deceased as of the Closing Date, including but not limited to employee-employer discrimination claims, any worker's compensation laws of any state, any employment security laws or similar laws of any state;
(x) any of Seller’s liabilities or obligations for Indebtedness;
(xi) any liabilities or obligations in respect of any of the Excluded Assets (including under any contracts, leases, commitments or understandings related thereto);
(xii) any of Seller’s liabilities or obligations which Buyer may become liable for as a result of or in connection with the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liability;
(xiii) any of Seller’s liabilities or obligations with respect to amounts disputed by Seller and not paid to the landlords of the properties listed on the attached Leased Real Property Schedule; and
(xivE) any other liabilities liability or obligations of Seller not obligation except to the extent expressly assumed by Buyer pursuant to set forth in Section 2.2(a) above1.5.
Appears in 1 contract
Sources: Asset Purchase Agreement (Jvweb Inc)
Liabilities Not Assumed. Notwithstanding anything to Except as expressly provided in Section 1.8 or Schedule 1.8 attached hereto, it is understood and agreed that the contrary in this Agreement, Buyer shall Purchasers do not assume or in agree hereunder to pay, perform or discharge, and the Sellers shall pay, discharge and hold the Purchasers harmless from, any way become liable for any of Seller’s debtsdebt, liabilities obligation, tax or obligations of any nature whatsoever (other than the Assumed Liabilities)liability, whether accrued, absoluteknown or unknown, contingent or otherwise, whether known of the Sellers of any kind or unknownnature whatsoever. Without limiting the foregoing, whether due except as expressly provided in Section 1.8 or to become dueSchedule 1.8, whether related in no event shall the Purchasers assume or incur any liability or obligation in respect of any of the following: (a) payables and liabilities for materials and services owed by the Sellers with respect to the Business arising on or prior to the Purchased Assets and whether disclosed Closing Date; (b) product returns, except as provided in Section 4.7 hereof; (c) liabilities for shortages or damages in product shipped to third parties on or prior to the Schedules attached heretoClosing Date; (d) any product liability, and breach of warranty, or similar claim for injury to person or property regardless of when or by whom asserted, including clauses which resulted from the use of product inventory manufactured by or on behalf of the Sellers and shipped to a third party on or prior to the Closing Date; (i) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”):
(ie) any federal, state or local income or other tax payable with respect to any business, assets, properties or operation of Seller’s liabilities the Sellers or obligations under this Agreementany member of any affiliated group of which the Sellers are a member for any period prior to the Closing Date, the Schedules attached hereto and any other agreements entered into by Seller in connection with the transactions contemplated by this Agreement;
(ii) any of Seller’s liabilities or obligations for expenses, fees or Taxes incident to or arising out as a consequence of the negotiation, preparation, approval negotiations or authorization consummation by the Sellers of this Agreement or the consummation (or preparation for the consummation) of and the transactions contemplated hereby hereby; (including all attorneys’ and accountants’ fees, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(iv) any liability or obligation under or with respect to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liability;
(vf) any liability or obligation with respect to any products or services that were marketed or sold prior to the Closing, including product liability, infringement claims and any related claims and litigation arising prior to, on or after the Closing Date;
(vi) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any of Seller’s liabilities or obligations of any kind to any Business Employees or former employee of Seller, including any liabilities or obligations arising periods prior to the Closing with respect Date under any law, ordinance or governmental or regulatory rule or regulation, whether federal, state or local, to which the exempt Sellers' business operations, assets or non-exempt status of properties is subject, including any Business Employee environmental laws or Employee Bonuses regulations; or (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule);
(viig) any liability or obligation relating with respect to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Date;
(viii) any of Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation of any federalperiods prior to, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Laws;
(ix) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct of the Business or any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents or advisors on or prior to the Closing Date;
(x) any of Seller’s liabilities or obligations for Indebtedness;
(xi) any liabilities or obligations in respect of any of the Excluded Assets (including under any contracts, leases, commitments or understandings related thereto);
(xii) any of Seller’s liabilities or obligations which Buyer may become liable for as a result of or in connection with the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of, the Closing to any employees, agents or independent contractors of any “defacto merger” the Sellers, whether or “successor-in-interest” theories not employed by the Purchasers after the Closing, or under benefit arrangement of liability;
(xiii) any of Seller’s liabilities or obligations the Sellers with respect to amounts disputed by Seller and not paid to the landlords of the properties listed on the attached Leased Real Property Schedule; and
(xiv) any other liabilities or obligations of Seller not expressly assumed by Buyer pursuant to Section 2.2(a) abovethereto.
Appears in 1 contract
Liabilities Not Assumed. Notwithstanding anything to Except for the contrary in this AgreementAssumed Contractual Liabilities and the Assumed Environmental Liabilities (hereinafter defined), Buyer shall the Purchaser does not assume or in agree hereunder to pay, perform or discharge any way become liable for any of Seller’s debtsdebt, liabilities obligation, tax or obligations of any nature whatsoever (other than the Assumed Liabilities)liability, whether accrued, absoluteknown or unknown, contingent or otherwise, whether known or unknown, whether due or to become due, whether related to the Business or the Purchased Assets and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including clauses (i) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”):
(i) any of Seller’s liabilities or obligations under this Agreement, the Schedules attached hereto and any other agreements entered into by Seller in connection with the transactions contemplated by this Agreement;
(ii) any of Seller’s liabilities or obligations for expenses, fees or Taxes incident to or arising out of the negotiationSellers of any kind or nature whatsoever. Without limiting the foregoing, preparation, approval in no event shall the Purchaser assume or authorization of this Agreement or the consummation (or preparation for the consummation) of the transactions contemplated hereby (including all attorneys’ and accountants’ fees, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(iv) incur any liability or obligation under this Agreement or with otherwise in respect to of any Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liability;of the following:
(va) any liability claim for injury to person or obligation with respect to any products property, regardless of when made or services that were marketed or sold prior to the Closingasserted, including product liability, infringement claims and any related claims and litigation arising prior to, on or after the Closing Date;
(vi) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any of Seller’s liabilities or obligations of any kind to any Business Employees or former employee of Seller, including any liabilities or obligations arising prior to the Closing with respect to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule);
(vii) any liability or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Closing Date;
(viii) any of Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Laws;
(ix) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim arising arises out of or is based upon any express or implied representation, warranty, agreement or guarantee made by the Sellers or alleged to have been made by the Sellers, or, except for the Assumed Environmental Liabilities, which is imposed or asserted to be imposed by operation of law, in connection with Seller’s conduct any service performed or product sold or leased by or on behalf of the Business Sellers or arising from any actions or inactions of the Sellers or any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents or advisors on or events occurring prior to the Closing Date;
(xb) any federal, state or local income or other tax payable with respect to the Businesses, Assets, properties or operations of Seller’s liabilities the Sellers or obligations any member of any affiliated group of which the Sellers' are a member or incident to or arising as a consequence of the negotiation or consummation by the Sellers of this Agreement and the transaction contemplated hereby, save and except: (i) any applicable property taxes for Indebtednessthe calendar year 2003 which will be prorated by the parties as of the Closing Date with an appropriate credit to the Purchaser at the Closing, and (ii) any sales or transfer taxes resulting from the consummation of this transaction, which will be the responsibility of the Purchaser;
(xic) except for the Assumed Environmental Liabilities, any liabilities liability or obligations in respect of obligation arising prior to the Closing Date under any law, ordinance or governmental or regulatory rule or regulation, whether federal, state or local, to which the Sellers or Sellers' business operations, assets or properties are subject relating to pollution or protection of the Excluded Assets (including under any contracts, leases, commitments or understandings related thereto)environment;
(xiid) any of Seller’s liabilities liability or obligations which Buyer may become liable for as a result of or in connection with the failure by Buyer or Seller obligation arising prior to comply with any bulk sales or bulk transfers laws or as a result of the Closing to any “defacto merger” employees, agents or “successor-in-interest” theories independent contractors of liability;
(xiii) the Sellers, whether or not employed by the Purchaser after the Closing Date, or under any of Seller’s liabilities or obligations benefit arrangement with respect to amounts disputed by Seller and not paid to the landlords thereto, including any obligations of the properties listed on the attached Leased Real Property ScheduleSellers under any defined benefit plan, employee benefit plan or severance plan; and
(xive) any liability or obligation of the Sellers incurred in connection with the negotiation, preparation and execution of this Agreement and the transactions contemplated hereby, including fees and expenses of counsel, accountants and other liabilities or obligations of Seller not expressly assumed by Buyer pursuant to Section 2.2(a) aboveprofessionals.
Appears in 1 contract
Sources: Asset Purchase Agreement (Basic Energy Services Inc)
Liabilities Not Assumed. Notwithstanding anything any provision hereof to ----------------------- the contrary in this Agreementcontrary, the Buyer shall not assume assume, satisfy or in any way become liable for perform any of Seller’s debtsthe following Liabilities (the "Excluded Liabilities"):
(a) any Liability to the extent such Liability is in respect of, liabilities in connection with, or obligations otherwise arising from the operation or use of the Excluded Assets or any nature whatsoever other assets of the Sellers that are not Acquired Assets;
(b) any Liability including, without limitation, any Environmental Liability, to the extent such Liability is in respect of, in connection with, or arising from the Seller Easements;
(c) any Liabilities, including, without limitation, any Environmental Liabilities, to the extent relating to the off-Site disposal, storage, transportation, discharge, Release, recycling, or the arrangement for such activities of Hazardous Substances that were generated at the Site, at any Offsite Hazardous Substance Facility or at a location other than the Site (other than as a result of subsurface migration from the Assumed LiabilitiesSite), whether accruedwhere the initial disposal, absolutestorage, contingent transportation, discharge, Release or otherwiserecycling of such Hazardous Substances at such Offsite Hazardous Substance Facility occurred on or prior to the Initial Closing Date;
(d) any Liability of the Sellers to the extent arising from the execution, delivery or performance of this Agreement or a Related Agreement or the transactions contemplated hereby or thereby;
(e) any Liability in respect of Taxes to the extent attributable to the Acquired Assets accrued prior to the relevant Closing Date, except those Taxes expressly allocated to the Buyer pursuant to Section 8;
(f) subject to the provisions of Section 5.7, any Liability, whether known funded or unknownunfunded, whether due to the extent arising out of any Employee Benefit Plan established or maintained in whole or in part by any Seller (or its Affiliate) or to become duewhich any Seller (or its Affiliate) contributes or contributed, whether related or is or was required to contribute, at any time prior to the Business Initial Closing Date and any Liability for the termination or discontinuance of, or any Seller's or its Affiliates' withdrawal from, any such Employee Benefit Plan;
(g) any Liabilities of any Seller or any of its Affiliates for any compensation or any benefits whether in relation to any of the Purchased Assets and whether disclosed on the Schedules attached heretoPlant Employees, and regardless independent contractors or any other individuals who are later determined by a court or governmental agency to have been employees of when a Seller or by whom assertedits Affiliates, including clauses including, without limitation, (i) through wages, bonuses, incentive compensation, shift or work schedule adders, on-call pay, call-out pay, vacation pay, sick pay, paid time off, workers compensation, unemployment compensation, withholding obligations, unemployment taxes or similar obligations accruing or related to work performed prior to the Initial Closing Date; (xivii) below severance pay, other termination pay, post-retirement benefits and COBRA coverage, accruing or related to work performed prior to the Initial Closing Date; or (collectively referred iii) any other form of compensation or benefits accruing or related to herein work performed prior to the Initial Closing Date under the terms or provisions of any Employee Benefit Plan of any Seller or such Affiliate, or any other agreement, plan, practice, policy, instrument or document relating to any of the Acquired Assets Employees, other than the Liabilities expressly assumed by the Buyer under Section 5.7;
(h) with respect to the Acquired Assets Employees or any independent contractors, or other individuals subject to Section 5.7, except for liabilities under any employment contracts with NAESCO employees relating to periods on and after the Closing Date, which Liabilities are assumed only to the extent set forth in Section 2.3(b), any Liabilities or obligations relating to the employment or termination of employment, including personal injury, tort, discrimination (including claims for whistleblowing under the Atomic Energy Act and the Energy Reorganization Act of 1974 as amended, as well as claims under Title VII of the Civil Rights Act of 1964, as amended, Executive Order 11246, the Age Discrimination in Employment Act, as amended, the Americans with Disabilities Act, and/or any other federal, state or local statute, ordinance, regulation or order prohibiting discrimination or requiring affirmative action), wrongful discharge, breach of implied or express contract, unfair labor practices or any claim asserted in an individual employee grievance procedure, or constructive termination by any Seller or its Affiliate of any individual, or similar claim or cause of action attributable to any action or inaction by any Seller or any of its Affiliates that arise out of wrongful acts or omissions, occurring prior to the Initial Closing Date or such later date as the “Excluded Liabilities”):individual may have commenced employment with Buyer pursuant to Section 5.7(a) or (b); provided that the Sellers shall not have any liability for similar actions or -------- inactions by any other Person on or after the Initial Closing Date or such later date as the individual shall have commenced employment with the Buyer;
(i) any Liabilities of Seller’s liabilities Sellers to the extent accrued or obligations related to or attributable to the period prior to the Initial Closing Date under this Agreementany contract, license, Permit or other instrument relating to the Acquired Assets (including, without limitation, the Schedules attached hereto Leases, Emergency Preparedness Agreements and any other agreements entered into by Seller in connection with Other Assigned Contracts, the transactions contemplated by this AgreementMaterial Contracts and the NRC Licenses);
(iij) any of Seller’s liabilities or obligations all Liabilities for expenses, assessments for decommissioning and decontamination fund fees or Taxes 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’ accrued and accountants’ fees, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to payable under 42 U.S.C. Section 6.7 hereof;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(iv) any liability or obligation under or with respect to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liability;
(v) any liability or obligation with respect to any products or services that were marketed or sold 2297g-1 prior to the Closing, including product liability, infringement claims and any related claims and litigation arising prior to, on or after the Initial Closing Date;
(vik) except as set forth on the Accrued Liabilities and Assumed Payables Scheduleany Liabilities, including, without limitation, any Environmental Liabilities, resulting from any illegal acts or willful misconduct of Seller’s liabilities the Sellers or obligations of any kind to any Business Employees NAESCO or former employee of Sellertheir employees, including any liabilities agents or obligations arising contractors, occurring prior to the Closing with respect to the exempt or non-exempt status of any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule);
(vii) any liability or obligation relating to workers’ compensation claims which were filed or presented on or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising on or before the Initial Closing Date;
(viiil) any all Liabilities for fees payable to DOE under the DOE Standard Contracts accrued or related to electricity generated and sold prior to the Initial Closing Date, and interest accrued thereon as set forth in Article VIII of Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Lawsthe DOE Standard Contracts;
(ixm) any Liabilities to the extent relating to the Business Finance Authority of Seller’s liabilities the State of New Hampshire Pollution Control Revenue Bonds (as set forth in Schedule 2.4(m), the "Pollution Control Bonds") and any agreements --------------- relating thereto, other than those arising out of the breach by the Buyer of the covenants contained in Section 5.8(d);
(n) any Liens on the Acquired Assets, except for Permitted Encumbrances;
(o) except as otherwise expressly set forth in this Agreement, any other Liability, obligation, claim, action, complaint, debt, suit, cause of action, investigation, or obligations proceeding of any kind whatsoever asserted by any Third Party, against or relating to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct of the Business Buyer, the Sellers or any other conduct the Acquired Assets, for damages suffered by such Third Party arising from or relating to the use, ownership or lease of Seller, Seller’s officers, directors, employees, consultants, agents the Acquired Assets or advisors on or operation of the Facility prior to the Initial Closing Date;
(xp) any all Liabilities of Seller’s liabilities or obligations NEP and PSNH under the Transmission Support Agreement, except for Indebtedness;
(xi) any liabilities or obligations in respect of any of the Excluded Assets (including under any contracts, leases, commitments or understandings related thereto);
(xii) any of Seller’s liabilities or obligations which Buyer may become liable for as a result of or in connection with the failure by Buyer or Seller to comply with any bulk sales or bulk transfers laws or as a result of any “defacto merger” or “successor-in-interest” theories of liability;
(xiii) any of Seller’s liabilities or obligations with respect to amounts disputed by Seller and not paid to the landlords of the properties listed on the attached Leased Real Property ScheduleNEP's transmission support payment obligations; and
(xivq) the escrow account contribution obligation of each Seller under the Unit 2 Memorandum of Understanding with the Town of Seabrook; and
(r) any Liability which is required to be accrued in accordance with GAAP by any Seller on the balance sheet of such Seller as of the Initial Closing Date or a Subsequent Closing Date, as the case may be, , other liabilities or obligations of Seller not expressly assumed by Buyer pursuant to than those Liabilities which are specifically identified as Assumed Liabilities in Section 2.2(a) above2.3.
Appears in 1 contract
Liabilities Not Assumed. Notwithstanding Anything in this Agreement to the ----------------------- contrary notwithstanding, neither HLS nor HIH shall assume or in any way be liable or responsible for, in connection with the acquisition of the Purchased Assets or otherwise, and the US Subsidiary shall continue to be responsible for the payment, performance and discharge of, any liabilities or obligations of the US Subsidiary, except as specifically provided in Section 1.4 hereof. Without limiting the generality of the foregoing, and notwithstanding anything to the contrary in this AgreementSection 1.4 hereof, Buyer neither HLS nor HIH shall assume, the Assumed Liabilities shall not assume or in any way become liable for any of Seller’s debtsinclude, and the US Subsidiary shall retain, the following liabilities or and obligations of any nature whatsoever the US Subsidiary (other than collectively, the Assumed "Excluded -------- Liabilities)"): -----------
(a) all liabilities, whether accrued, absolute, contingent or otherwise, whether known or unknown, whether due or to become due, whether related obligations and expenses relating to the Business or the Purchased Assets and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted, including clauses (i) through (xiv) below (collectively referred to herein as the “Excluded Liabilities”):
(i) any of Seller’s liabilities or obligations under this Agreement, the Schedules attached hereto and any other agreements entered into by Seller in connection with the transactions contemplated by this AgreementAssets;
(iib) any all outstanding checks, unpaid bank charges, bank overdrafts and book overdrafts;
(c) except for sales taxes, property taxes and FICA arising in the ordinary course of Seller’s liabilities or obligations for expenses, fees or Taxes incident to business and accrued on the Pro Forma US Toxicology Business Interim Balance Sheet (or arising out thereafter in the ordinary course of business consistent with past practice, including past practice with respect to accruals, tax returns and payments), all liabilities, obligations and expenses of any kind or nature relating to Taxes (as defined in Section 2 of the negotiation, preparation, approval or authorization of this Agreement or the consummation (or preparation for the consummationAsset Representations and Warranties) of the transactions contemplated hereby (including all attorneys’ and accountants’ fees, brokerage fees and transfer Taxes), except for the portion of the transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof;
(iii) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any liability or obligation of Seller for Taxes for any period, except for the portion of transfer Taxes to be paid by Buyer pursuant to Section 6.7 hereof, including the Puerto Rico Taxes;
(iv) any liability or obligation under or with respect to any Seller Employee Benefit Plan or any other employee benefit plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its ERISA Affiliates, or with respect to which Seller or any such ERISA Affiliate has any liability;
(v) any liability or obligation with respect to any products or services that were marketed or sold prior to the Closing, including product liability, infringement claims and any related claims and litigation arising prior to, on or after the Closing Date;
(vi) except as set forth on the Accrued Liabilities and Assumed Payables Schedule, any of Seller’s liabilities or obligations of any kind to any Business Employees or former employee of Seller, including any liabilities or obligations arising prior to the Closing with respect to the exempt or non-exempt status of US Toxicology Business and the Purchased Assets, for any Business Employee or Employee Bonuses (whether or not such liability or obligation has been accrued on Seller’s financial statements, disclosed to Buyer, or set forth on any Schedule attached hereto including the Accrued Liabilities and Assumed Payables Schedule);
(vii) any liability or obligation relating to workers’ compensation claims which were filed or presented period ending on or before the Closing Date (including, without limitation, any liabilities, obligations and expenses incurred pursuant to any tax sharing agreement, tax indemnification or similar arrangement) and, except as set forth in Section 9.1, any Taxes payable in connection with the sale of the Purchased Assets;
(d) all liabilities and obligations of the US Subsidiary for principal, interest, fees or other amounts due in respect of any indebtedness of the US Subsidiary or APBI for borrowed money, including long-term debt and any current maturities thereof, the deferred purchase price of any of the Purchased Assets in excess of $4,000 in the aggregate (which is the approximate amount reflected on the US Subsidiary's books for capital lease obligations) and all such indebtedness of other persons that is secured by any of the Purchased Assets or that is guaranteed by the US Subsidiary;
(e) all liabilities and obligations of the US Subsidiary or other amounts due with respect to interest and currency swaps, caps, collars and similar agreements or hedging devices under which payments are obligated to be made by the US Subsidiary whether periodically or upon the happening of a contingency;
(f) except for Employee Related Expenses accrued on the Pro Forma US Toxicology Business Interim Balance Sheet in respect of the persons identified on Schedule 1.5(i), obligations to provide COBRA coverage currently provided in respect of family members of employees identified on Schedule 1.5(i) and or Employee Related Expenses in respect of the persons identified on Sche dule 1.5
(i) arising in the ordinary course of business subsequent to the Interim Balance Sheet Date (all of which are filed being assumed pursuant to Section 1.4 hereof), all other liabilities, obligations and expenses of any kind or presented after nature relating to employee compensation, salaries, wages, fringe benefits, medical, dental and supplemental health plans and benefits, any currently existing Benefit Plan (as defined in Section 14.1 of the Asset Representations and Warranties) of the US Subsidiary (collectively referred to as "Employee Related ---------------- Expenses"), including, without limitation, any workers' compensation benefit -------- claim, any plan described in ERISA (as defined in Section 14.1 of the Asset Representations and Warranties), any employee benefit plans as defined in Sec tion 3(3) of ERISA (whether or not covered by ERISA or by any similar foreign law) and any other compensation or benefit arrangements, understandings or agreements maintained, sponsored or contributed to by or on behalf of or with respect to which the US Subsidiary has or in the future could have any other liability or obligation, whether direct or indirect, actual or contingent, as well as all liabilities, obligations and expenses of any kind relating to any Benefit Plan (including the pension plan of the US Subsidiary terminated in 1993) which is no longer in effect; it being understood and agreed by the parties hereto that the Buyer shall not be continuing any currently existing Benefit Plans of the US Subsidiary subsequent to the Closing Date and will implement its own plans at such time.
(g) with the exception of the Disclosed Environmental Liabilities (all of which are being assumed by the Buyer pursuant to Section 1.4(e) hereof) and liabilities described in Section 1.4(f) hereof (but relate only to claims and/or injuries first arising the extent of the Net Basket Amount), all other liabilities, obligations and expenses of any kind or nature relating to Environmental Actions and Environmental Compliance Costs attributable to the ownership or operation of the US Toxicology Business or the Purchased Assets by the US Subsidiary or its predecessors or affiliates on or before prior to the Closing Date or to events that have occurred, or conditions that existed, on or prior to the Closing Date, including, without limitation, the disposal or alleged disposal of Hazardous Substances at the ▇▇▇▇▇ Industrial Services Landfill in New Jersey by the US Subsidiary prior to the Closing Date (the "JIS Landfill Matter");
(viiih) any all liabilities in respect of Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation of any federal, state, local or foreign law or any requirement of any governmental authority, (B) arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree, or (C) arising under any Environmental Laws;
(ix) any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct of the Business or any other conduct of Seller, Seller’s officers, directors, employees, consultants, agents or advisors on or retrospective insurance premium adjustments for periods prior to the Closing Date;
(xi) any of Seller’s all liabilities or obligations for Indebtedness;
(xi) any liabilities or obligations in respect of any of the Excluded Assets compensation due or termination payments payable (including under any contractsemployment taxes, leases, commitments insurance expenses or understandings related thereto);
(xiithe like) any of Seller’s liabilities or obligations which Buyer may become liable for as a result of or in connection with (A) the failure by Buyer or Seller termination of employment prior to comply with any bulk sales or bulk transfers laws or as a result the Closing of any “defacto merger” employee of the US Subsidiary, (B) the termination of employment after the Closing of any employee of the US Subsidiary (other than employees identified on Schedule 1.5(i) hereto), or “successor-in-interest” theories (C) the rejection by any person identified on such Schedule 1.5(i) of liabilityHLS's offer of employment as contemplated by Section 6.11(a) hereof;
(xiiij) any of Seller’s all liabilities or and obligations with respect to amounts disputed by Seller and not paid to the landlords of the properties listed on US Subsidiary due to any stockholder or affiliate of the attached Leased Real Property ScheduleUS Subsidiary; and
(xivk) any other all liabilities relating to the acquisition or obligations operation by APBI Environmental Sciences Group Inc. and/or the subsequent sale by APBI Environmental Science Group Inc. of Seller not expressly assumed by Buyer pursuant to Section 2.2(a) aboveParagon Global Services (formerly ▇▇▇▇▇▇ International Inc.), its agrochemical development division.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Applied Bioscience International Inc)