Assumed Liabilities; Retained Liabilities. (a) On the terms of and subject to the conditions of this Agreement and in reliance upon the representations and warranties contained herein, in addition to purchasing and acquiring the Transferred Assets, Purchaser shall assume and agrees, from and after the date of such assumption, to pay, perform and discharge when due, the following liabilities and obligations (collectively, the “Assumed Liabilities”): (1) the obligations to perform arising in the Ordinary Course of Business after the Closing Date under the Assumed Contracts, but excluding any liabilities or obligations arising prior to the Closing Date or arising out of or relating to a breach, violation, default or failure to perform by Seller that occurred on or prior to the Closing Date; and (2) all liabilities pursuant to the Transferred Assets arising and to be performed from and after the Closing Date, except to the extent such liabilities result from the negligent act or omission by Seller prior to the Closing; and (3) the Personal Time Off balances existing as of the Closing Date, up to eighteen (18) working days, with respect to the Seller Employees that Purchaser elects to hire. (b) Other than the Assumed Liabilities, Purchaser shall not assume by virtue of this Agreement or the transactions contemplated hereby, and shall have no liability for, any other liability of Seller. All liabilities other than Assumed Liabilities are referred to herein as “Retained Liabilities.” The Retained Liabilities will include, without limitation, the following: (i) all trade accounts payable of the Business as of the Closing Date; (ii) any liabilities or obligations of Seller in respect of indebtedness (whether absolute, accrued, contingent, fixed or otherwise, whether due or to become due) of Seller, of any kind, character or description whatsoever; (iii) any liabilities or obligations of Seller related to the employment, termination or compensation of any employee, consultant or service provider of the Seller, including but not limited to compensation claims, Taxes or employer withholdings, workers’ compensation or benefits (however described) owing to any such Person arising out of the operation of the Business by Seller on or prior to the Closing Date; (iv) any liabilities or obligations of Seller which arise from or out of or in connection with any product warranty or product liability claims that accrued or were owing by Seller on or prior to the Closing Date, but excluding liabilities or obligations resulting from (A) Purchaser’s operation of the business following the Closing Date, (B) Purchaser’s modification to Products following the Closing Date, or (C) additional warranties extended by Purchaser following the Closing Date; (v) any liabilities or obligations (whether assessed or unassessed) of Seller for any Taxes, any Transfer Taxes imposed on Seller, or any Taxes of the Business for (x) any period ending on or prior to the Closing Date or (y) the pre-Closing portion of any period ending after the Closing; (vi) any liabilities or obligations arising on or prior to the Closing Date or arising out of or relating to a breach, violation, default or failure to perform by Seller that occurred on or prior to the Closing Date; (vii) any liabilities or obligations relating to or arising under any environmental law or regulation to the extent arising out of the operation of the Business on or prior to the Closing Date; (viii) any liabilities to Seller’s employees and former employees; and (ix) any liabilities or obligations of Seller incurred, arising from or out of or in connection with this Agreement or any of the other Transaction Documents or the events or negotiations leading up to the execution and consummation of the transactions contemplated by the Transaction Documents.
Appears in 2 contracts
Samples: Asset Purchase Agreement (WaferGen Bio-Systems, Inc.), Asset Purchase Agreement (WaferGen Bio-Systems, Inc.)
Assumed Liabilities; Retained Liabilities. (a) On the terms of Except for liabilities relating to Taxes (which shall be governed solely by Section 5.1(d)) and subject to the conditions Section 7.1 of this Agreement Agreement, from and in reliance upon after the representations and warranties contained herein, in addition to purchasing and acquiring the Transferred AssetsClosing, Purchaser shall assume and agrees, from and after the date of such assumption, to pay, perform and discharge when duedischarge, the following liabilities and obligations (all such liabilities and obligations, collectively, the “Assumed Liabilities”):
(1i) all of the liabilities and obligations of Seller to perform arising in the Ordinary Course of Business after the Closing Date Accountholders under the Assumed Contracts, but excluding any liabilities or obligations arising prior to the Closing Date or arising out of or relating to a breach, violation, default or failure to perform by Seller that occurred on or prior to the Closing Date; and
(2) all liabilities pursuant to the Transferred Assets arising and Credit Card Agreements to be performed from and after the Closing Date, Cut-Off Time (except to the extent such liabilities result or obligations arise from or relate to Seller (or one or more of its Affiliates) failing to have performed, complied with or satisfied prior to Closing any obligations of Seller (or any of its Affiliates) with respect to the negligent act Acquired Assets or omission by Seller the Program under applicable Law or pursuant to contractual obligation, in each case to the extent required to have been performed, complied with or satisfied prior to the Closing; and
(3) the Personal Time Off , but shall include credit balances existing as of the Closing Date, up to eighteen (18) working days, with respect to the Seller Employees that Purchaser elects to hire.
(b) Other than extent applied in calculating the Assumed Liabilities, Purchaser shall not assume by virtue of this Agreement or the transactions contemplated hereby, and shall have no liability for, any other liability of Seller. All liabilities other than Assumed Liabilities are referred to herein as “Retained Liabilities.” The Retained Liabilities will include, without limitation, the following:
(i) all trade accounts payable of the Business as of the Closing DateAccountholder Indebtedness);
(ii) any liabilities or obligations of Seller in respect of indebtedness (whether absolute, accrued, contingent, fixed or otherwise, whether due or to become due) of Seller, of any kind, character or description whatsoeverall Ordinary Course Liabilities;
(iii) any expenses, liabilities or obligations (other than any obligations of the Seller addressed in clause (v) of this Section 2.2(a)) to the extent related to any of the Accounts, the ownership and use of the Acquired Assets, or any Assumed Contract, in each case, to the extent arising or accruing during the period beginning on or after the Cut-Off Time (except to the extent such liabilities or obligations arise from or relate to Seller (or one or more of its Affiliates) failing to have performed, complied with or satisfied prior to Closing any obligations of Seller related (or any of its Affiliates) with respect to the employmentAcquired Assets or the Program under applicable Law or pursuant to contractual obligation, termination in each case to the extent required to have been performed, complied with or compensation of any employee, consultant or service provider of the Seller, including but not limited to compensation claims, Taxes or employer withholdings, workers’ compensation or benefits (however described) owing to any such Person arising out of the operation of the Business by Seller on or satisfied prior to the Closing DateClosing);
(iv) any liabilities or obligations all deposits of Seller which arise from or out of or in connection with any product warranty or product liability claims that accrued or were owing by Seller on or prior and all obligations related to the Closing Date, but excluding liabilities or obligations resulting from (A) Purchaser’s operation deposits of the business following the Closing Date, (B) Purchaser’s modification to Products following the Closing Date, or (C) additional warranties extended by Purchaser following the Closing DateSeller;
(v) any liabilities or all of the obligations (whether assessed or unassessed) of Seller for any Taxes, any Transfer Taxes imposed on the Seller, as servicer, originator, transferor, administrator or in any Taxes other capacity to the Master Trust or the Trust and under any Securitization Documents, including all obligations to accept reassignment of receivables pursuant to the terms of the Business for (x) any period ending on or prior to Receivables Purchase Agreement and the Pooling and Servicing Agreement and all obligations initially arising after the Closing Date to make SEC filings on behalf of WFB Funding, the Master Trust or (y) the pre-Closing portion of any period ending after the ClosingTrust;
(vi) any liabilities all fees, normal operating assessments and other charges of the Payment Network relating to the Accounts that are incurred or obligations arising accrue on or prior to after the Closing Date or arising out of or relating with respect to a breach, violation, default or failure to perform by Seller transactions that occurred on or prior to after the Closing Date;Cut-Off Time; and
(vii) all of the obligations expressly assumed by Purchaser pursuant to Section 5.7.
(b) Notwithstanding any liabilities or obligations relating to or arising under any environmental law or regulation provision in this Agreement to the extent arising out of contrary, Purchaser shall assume only the operation of Assumed Liabilities and Parent and Purchaser agree that Parent shall be and remain solely responsible and liable for the Business on or prior to the Closing Date;
(viii) any liabilities to Seller’s employees and former employees; and
(ix) any liabilities or obligations of Seller incurred, arising from or out of or in connection with this Agreement or any of the other Transaction Documents or the events or negotiations leading up to the execution and consummation of the transactions contemplated by the Transaction DocumentsRetained Liabilities.
Appears in 2 contracts
Samples: Sale and Purchase Agreement (Cabela's Master Credit Card Trust), Sale and Purchase Agreement (Cabelas Inc)
Assumed Liabilities; Retained Liabilities. (a) On the terms of and subject to the conditions of this Agreement and in reliance upon the representations and warranties contained herein, in addition to purchasing and acquiring the Transferred Assets, Purchaser shall assume and agrees, from and after the date of such assumption, to pay, perform and discharge when due, the following liabilities and obligations (collectively, the “Assumed Liabilities”):
(1) the obligations to perform arising in the Ordinary Course of Business after the Closing Date under the Assumed Contracts, but excluding any liabilities or obligations arising prior to the Closing Date or arising out of or relating to a breach, violation, default or failure to perform by Seller that occurred on or prior to the Closing Date; and
(2) all liabilities pursuant to the Transferred Assets arising and to be performed from and after the Closing Date, except to the extent such liabilities result from the negligent act or omission by Seller prior to the Closing; and
(3) the Personal Time Off balances existing as of the Closing Date, up to eighteen (18) working days, with respect to the Seller Employees that Purchaser elects to hire.
(b) Other than the Assumed Liabilities, Purchaser Buyer shall not assume by virtue of this Agreement or the transactions contemplated hereby, and shall have no liability for, be liable for any other liability of Seller. All liabilities Liabilities other than Assumed Liabilities are referred to herein as “Retained expressly provided for in this Section 1.2. Buyer shall not assume or be liable for any Liabilities.” The Retained Liabilities will include, without limitation, the following:
(i) all trade accounts payable of the Business as of the Closing Date;
(ii) any liabilities Indebtedness or other obligations of Seller in respect of indebtedness (whether absolute, accrued, contingent, fixed or otherwise, whether due or to become due) of Seller, of any kind, character or description whatsoever;
(iii) any liabilities or obligations of Seller related to the employment, termination or compensation of any employee, consultant or service provider of the Seller, including but not limited to compensation claims, Taxes or employer withholdings, workers’ compensation or benefits (however described) owing to any such Person arising out of the operation of the Business by Seller on or prior to the Closing Date;
(iv) any liabilities or obligations whatever nature of Seller which arise from relate to Photrex or out of or in connection with any product warranty or product liability claims that accrued or were owing by Seller on or other Miravant Derived Photodynamic Therapy programs prior to the Closing Date, but excluding liabilities including sales or obligations resulting from (A) Purchaser’s operation distribution of the business following the Closing Datedrugs, (B) Purchaser’s modification to Products following the Closing Date, equipment or (C) additional warranties extended by Purchaser following the Closing Date;
(v) any liabilities or obligations (whether assessed or unassessed) of Seller for any Taxes, any Transfer Taxes imposed on Seller, or any Taxes of the Business for (x) any period ending on or consumables made prior to the Closing Date that are used or (y) the pre-Closing portion of any period ending consumed after the Closing;
(vi) any liabilities or obligations arising on or prior to the Closing Date or arising out of or relating to a breach, violation, default or failure to perform by Seller that occurred on or prior to the Closing Date;, any replacement, warranty or service claims relating to such sales or distribution, past clinical or nonclinical studies or prior financial obligations or judgments made against Miravant or one or more Miravant Subsidiaries. Notwithstanding the foregoing:
(viii) any liabilities or obligations relating in order to or arising under any environmental law or regulation expedite this overall process and consistent with the Option Agreement, Seller has previously authorized Buyer, at Buyer’s cost using Buyer’s choice of counsel, to attend to the extent arising out finalization of the operation foreclosure related transfer of ownership of the Business on or prior Acquired Assets to Seller by covering Seller’s expenses pertaining to the Closing Date;
foreclosure and the repossession followed by the disposition of collateral as provided herein up to an amount not to exceed $15,000 (viii) any liabilities of which $10,000 has heretofore been paid to Seller’s employees and former employees) with the remaining $5,000 payable upon the Effective Date; and
(ixii) any liabilities or obligations Buyer shall advance all out of pocket fees and expenses of Seller’s counsel in the amount of $1,000 for transfer of patents listed in Annex 1 from Miravant’s name to Seller’s name, from Miravant Subsidiaries’ names to Seller’s name, and subsequently from Seller’s name to Buyer’s name.
(iii) Buyer shall, at Buyer’s cost using Buyer’s choice of counsel, attend to the recovery/transfer of Miravant corporate documents, as necessary for transfer of the Acquired Assets to Buyer.
(b) At the Closing, on the terms and subject to the conditions set forth in this Agreement, the Buyer expressly assumes, the “Assumed Liabilities” and no other Liabilities. The “Assumed Liabilities” are to be paid on a contingency basis according to the rate set by the Financing Payment Schedule. The “Assumed Liabilities” are:
(i) legal fees and expenses of Seller incurred, arising from or out of or incurred in connection with this Agreement or any of the other Transaction Documents or the events or negotiations leading up to the execution and consummation of the transactions contemplated by this Agreement, plus past unpaid patent related expenses of Seller, up to a maximum amount of $40,000.
(ii) On Seller’s behalf, Buyer shall pay Sxxxxx X. Xxxxxxxxxx $13,000 in cash for past expenses payable.
(c) All other Liabilities, independent of the Transaction DocumentsAssumed Liabilities, are retained by Seller (the “Retained Liabilities”).
Appears in 1 contract
Samples: Asset Purchase Agreement (Adgero Biopharmaceuticals Holdings, Inc.)
Assumed Liabilities; Retained Liabilities. It is expressly understood and agreed that, other than the Assumed Liabilities, Purchaser shall not assume, nor shall it be liable for, any liability, Indebtedness, obligation, or Contract of Seller 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, whether fixed, contingent or otherwise, whether known or unknown, and whether or not recorded on the books and records of Seller, all of which shall be retained by Seller and 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 (all of which shall be deemed to be Retained Liabilities) whether or not disclosed on the Certified Financial Statements:
(a) On the terms except for any Assumed Operating Liabilities, any liability of and subject to the conditions of this Agreement and in reliance upon the representations and warranties contained hereinSeller for (i) accrued salaries, in addition to purchasing and acquiring the Transferred Assetswages, Purchaser shall assume and agrees, from and after the date of such assumption, to vacation pay, perform bonuses and discharge when due, the following liabilities other employment benefits or commissions and obligations related Taxes or under any Employee Plan (collectively, the “Assumed Liabilities”):except as expressly provided for in Schedule 1.1(B) and Section 8.8) and/or (ii) severance payments or other termination benefits payable to employees of Seller.
(1b) any liability of Seller directly or indirectly as a member of a group of employers under Section 414(b), (c) or (m) of the obligations to perform arising in the Ordinary Course of Business after the Closing Date under the Assumed ContractsCode, but excluding any liabilities or obligations arising prior to the Closing Date or arising out of any employee benefit plans as defined in Section 3(3) ERISA, maintained by Seller or any Affiliate thereof including, without limitation, liabilities attributable to a complete or partial withdrawal from a multiemployer plan (as defined under Section (3)(37) or Section 4001 of ERISA) or to the PBGC for benefit liabilities or premiums due any liability resulting from failure to provide continuation coverage under group health plan as required under Section 162(k) of the Code, or any liabilities arising out of any nonqualified plan or plans covering any employees or former employees of Seller;
(c) any liability of Seller relating to a breach, violation, default the Excluded Assets;
(d) any liability for any government-imposed fees or failure to perform by Seller that occurred on or charges arising out of doing business prior to the Closing Date; andin any jurisdiction where Seller is not qualified to do business as a foreign corporation that would not have been incurred if such Seller had been so qualified;
(2e) all liabilities pursuant any liability of Seller for any Indebtedness or to the Transferred Assets any trade or non-trade creditor, customer, employee, financial institution, government entity, trust company or other party, either directly or by reason of any guaranty or other Contract other than any Assumed Operating Liabilities;
(f) any liability of Seller arising and to be performed from and after the Closing Date, except to the extent such specifically assumed by Purchaser pursuant to this Agreement;
(g) any obligations and liabilities result arising from the non- compliance by Seller with any federal, state, local or foreign laws, regulations, orders or administrative or judicial determinations (including all Environment Laws), and any obligations and liabilities arising from incidents, occurrences, suits, claims, actions, programs and proceedings of any kind, voluntary or otherwise, relating to alleged or actual pollution, contamination or harm of any kind to the environment (including, without limitation, harm to any person or property), attributable to or caused by, assigned to or otherwise involving Seller, the Purchased Assets, or the Facilities, regardless of when the underlying incident, occurrence, suit, claim, action, program or proceeding occurred or is discovered or made, including without limitation anything contained on Schedules 4.15 and Schedules 4.18(a)-4.18(d) hereof;
(h) any liability for workers compensation claims, general liability claims, automobile liability claims or any other negligent act or omission by Seller prior of Seller, whether related to the ClosingBusiness or otherwise;
(i) any liability of Seller under any Contract except for the Assumed Contracts; and
(3j) any liability of Seller for any Tax except for any Taxes included in the Personal Time Off balances existing as of Assumed Liabilities. On the Closing Date, up Purchaser shall execute and deliver to eighteen Seller an assignment and assumption agreement, which shall be substantially in the form of Exhibit 2.4 (18"Assumption Agreement") working days, with respect to the Seller Employees that Purchaser elects to hire.
(b) Other than reflect Purchaser's assumption of the Assumed Liabilities, . The assumption by Purchaser of any Assumed Contract of Seller shall not assume by virtue of this Agreement include only payment and performance obligations thereunder which accrue or the transactions contemplated hereby, and shall have no liability for, any other liability of Seller. All liabilities other than Assumed Liabilities are referred to herein as “Retained Liabilities.” The Retained Liabilities will include, without limitation, the following:
(i) all trade accounts payable of the Business as of arise after the Closing Date;
(ii) ; in no event shall Purchaser assume or be deemed to assume any liabilities or obligations liability of Seller in respect of indebtedness any nature (whether known, unknown, absolute, accrued, contingent, fixed contingent or otherwise, whether due or to become due) of Seller, of any kind, character or description whatsoever;
(iii) any liabilities or obligations of Seller related relating to the employment, termination or compensation of any employee, consultant or service provider of the Seller, including but not limited to compensation claims, Taxes or employer withholdings, workers’ compensation or benefits (however described) owing to performance under any such Person arising out of the operation of the Business by Seller on or prior to the Closing Date;
(iv) any liabilities or obligations of Seller Assumed Contract which arise from or out of or in connection with any product warranty or product liability claims that accrued or were owing by Seller on or prior to the Closing Date, but excluding liabilities or obligations resulting from (A) Purchaser’s operation of unless such liability is included within the business following the Closing Date, (B) Purchaser’s modification to Products following the Closing Date, or (C) additional warranties extended by Purchaser following the Closing Date;
(v) any liabilities or obligations (whether assessed or unassessed) of Seller for any Taxes, any Transfer Taxes imposed on Seller, or any Taxes of the Business for (x) any period ending on or prior to the Closing Date or (y) the pre-Closing portion of any period ending after the Closing;
(vi) any liabilities or obligations arising on or prior to the Closing Date or arising out of or relating to a breach, violation, default or failure to perform by Seller that occurred on or prior to the Closing Date;
(vii) any liabilities or obligations relating to or arising under any environmental law or regulation to the extent arising out of the operation of the Business on or prior to the Closing Date;
(viii) any liabilities to Seller’s employees and former employees; and
(ix) any liabilities or obligations of Seller incurred, arising from or out of or in connection with this Agreement or any of the other Transaction Documents or the events or negotiations leading up to the execution and consummation of the transactions contemplated by the Transaction DocumentsAssumed Operating Liabilities.
Appears in 1 contract
Samples: Asset Purchase Agreement (Maxwell Technologies Inc)
Assumed Liabilities; Retained Liabilities. (a) On the terms of and subject to the conditions of this Agreement and in reliance upon the representations and warranties contained herein, in addition to purchasing and acquiring the Transferred Assets, Purchaser shall assume and agrees, Effective from and after the date of such assumptionClosing, to Purchaser shall assume, and shall thereafter pay, perform and discharge when dueobserve fully and timely, the following liabilities and obligations (collectively, the “Assumed Liabilities”):
(1) the obligations to perform arising in the Ordinary Course of Business after the Closing Date under the Assumed Contracts, but excluding any liabilities or obligations arising prior . Notwithstanding anything to the Closing Date or arising out of or relating to a breachcontrary contained in this Agreement, violation, default or failure to perform by Seller that occurred on or prior to the Closing Date; and
(2) all liabilities pursuant to the Transferred Assets arising and to be performed from and after the Closing Date, except other than to the extent such liabilities result from the negligent act or omission by Seller prior to the Closing; and
(3) the Personal Time Off balances existing as of the Closing Date, up to eighteen (18) working days, with respect to the Seller Employees that Purchaser elects to hire.
(b) Other than the Assumed Liabilities, Purchaser shall not assume by virtue of this Agreement or the transactions contemplated herebyassume, and shall have no liability fornot be obligated to pay, perform or observe, any other liability Liabilities of Seller. All liabilities other than Assumed Liabilities are referred to herein as the Asset Sellers, including the following (collectively, the “Retained Liabilities.” The Retained Liabilities will include, without limitation, the following:
”): (i) all trade accounts payable of the Business as of the Closing Date;
Indebtedness; (ii) any liabilities or obligations of Seller in respect of indebtedness (whether absolute, accrued, contingent, fixed or otherwise, whether due or to become due) of Seller, of any kind, character or description whatsoever;
(iii) any liabilities or obligations of Seller related to the employment, termination or compensation of any employee, consultant or service provider of the Seller, including but not limited to compensation claims, Taxes or employer withholdings, workers’ compensation or benefits (however described) owing to any such Person arising out of the operation of the Business by Seller on or prior to the Closing Date;
(iv) any liabilities or obligations of Seller which arise from or out of or in connection with any product warranty or product liability claims that accrued or were owing by Seller on or prior to the Closing Date, but excluding liabilities or obligations resulting from all Liabilities (A) Purchaser’s operation of for Taxes that relate to the business following Purchased Assets, the Business or the Assumed Liabilities for Taxable periods (or portions thereof) ending on or before the Closing Date, (B) Purchaser’s modification for payments under any Tax allocation, sharing or similar agreement that relate to Products following the Closing DatePurchased Assets, the Business or the Assumed Liabilities, (C) additional warranties extended by Purchaser following 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 6901 of the Code or any similar Law, in each case with respect to the Purchased Assets, the Business or the Assumed Liabilities, (D) for income Taxes of Seller or any of its Affiliates and (E) for Seller’s or any Affiliate’s share of any Transfer Taxes; (iii) all Liabilities relating to or arising under any Excluded Assets; (iv) all Liabilities relating to the operation of the Business and the ownership of the Purchased Assets on or before the Closing Date;
Date other than the Assumed Liabilities; (v) any liabilities all Product Recall Liabilities and all product liability claims for death, personal injury, other injury to persons or obligations (whether assessed or unassessed) of Seller for any Taxes, any Transfer Taxes imposed on Seller, or any Taxes of damage to property relating to Business Products sold by the Business for prior to the Closing; (xvi) any period ending all Retained Environmental Liabilities; (vii) all Liabilities arising or occurring on or prior to the Closing Date relating to the employment or (y) the pre-Closing portion termination of employment of any period ending after Transferred Employees, including all obligations and Liabilities relating to compensation, benefits, severance and Liabilities under the Closing;
Workers Adjustment and Retraining Notification Act and similar Laws (vicollectively, the “WARN Act”) any liabilities or obligations arising on or prior to the Closing Date or arising out of or relating to a breach, violation, default or failure to perform by Seller that occurred on or prior to before the Closing Date;
; (viiviii) any liabilities or obligations relating to or all Liabilities, whether arising under any environmental law or regulation to the extent arising out of the operation of the Business before, on or prior to after the Closing Date;
(viii) , relating to any liabilities to Seller’s employees and former employees; and
(ix) any liabilities or obligations of Seller incurredBusiness Employees who are not Transferred Employees, arising from or out of or other than as set forth in connection the Transition Services Agreement with this Agreement or any of the other Transaction Documents or the events or negotiations leading up respect to the execution Business Employees employed by Jxxxxx Sub, Estonia Sub, or China Sub, and consummation of the transactions contemplated by the Transaction Documents(vix) all Liabilities associated with items 4 and 5 on Schedule 3.31.
Appears in 1 contract
Assumed Liabilities; Retained Liabilities. (a) On the terms of and subject to the conditions of this Agreement and in reliance upon the representations and warranties contained herein, in addition to purchasing and acquiring the Transferred Assets, Purchaser shall assume and agrees, from and after the date of such assumption, to pay, perform and discharge when due, the following liabilities and obligations (collectively, the “Assumed Liabilities”):
(1) the obligations to perform arising in the Ordinary Course of Business after the Closing Date under the Assumed Contracts, but excluding any liabilities or obligations arising prior to the Closing Date or arising out of or relating to a breach, violation, default or failure to perform by Seller that occurred on or prior to the Closing Date; and
(2) all liabilities pursuant to the Transferred Assets arising and to be performed from and after the Closing Date, except to the extent such liabilities result from the negligent act or omission by Seller prior to the Closing; and
(3) the Personal Time Off balances existing as of the Closing Date, up to eighteen (18) working days, with respect to the Seller Employees that Purchaser elects to hire.
(b) Other than the Assumed Liabilities, Purchaser Buyer shall not assume by virtue of this Agreement or the transactions contemplated hereby, and shall have no liability for, be liable for any other liability of Seller. All liabilities Liabilities other than Assumed Liabilities are referred to herein as “Retained expressly provided for in this Section 1.2. Buyer shall not assume or be liable for any Liabilities.” The Retained Liabilities will include, without limitation, the following:
(i) all trade accounts payable of the Business as of the Closing Date;
(ii) any liabilities Indebtedness or other obligations of Seller in respect of indebtedness (whether absolute, accrued, contingent, fixed or otherwise, whether due or to become due) of Seller, of any kind, character or description whatsoever;
(iii) any liabilities or obligations of Seller related to the employment, termination or compensation of any employee, consultant or service provider of the Seller, including but not limited to compensation claims, Taxes or employer withholdings, workers’ compensation or benefits (however described) owing to any such Person arising out of the operation of the Business by Seller on or prior to the Closing Date;
(iv) any liabilities or obligations whatever nature of Seller which arise from relate to Photrex or out of or in connection with any product warranty or product liability claims that accrued or were owing by Seller on or other Miravant Derived Photodynamic Therapy programs prior to the Closing Date, but excluding liabilities including sales or obligations resulting from (A) Purchaser’s operation distribution of the business following the Closing Datedrugs, (B) Purchaser’s modification to Products following the Closing Date, equipment or (C) additional warranties extended by Purchaser following the Closing Date;
(v) any liabilities or obligations (whether assessed or unassessed) of Seller for any Taxes, any Transfer Taxes imposed on Seller, or any Taxes of the Business for (x) any period ending on or consumables made prior to the Closing Date that are used or (y) the pre-Closing portion of any period ending consumed after the Closing;
(vi) any liabilities or obligations arising on or prior to the Closing Date or arising out of or relating to a breach, violation, default or failure to perform by Seller that occurred on or prior to the Closing Date;, any replacement, warranty or service claims relating to such sales or distribution, past clinical or nonclinical studies or prior financial obligations or judgments made against Miravant or one or more Miravant Subsidiaries. Notwithstanding the foregoing:
(viii) any liabilities or obligations relating in order to or arising under any environmental law or regulation expedite this overall process and consistent with the Option Agreement, Seller has previously authorized Buyer, at Buyer’s cost using Buyer’s choice of counsel, to attend to the extent arising out finalization of the operation foreclosure related transfer of ownership of the Business on or prior Acquired Assets to Seller by covering Seller’s expenses pertaining to the Closing Date;
foreclosure and the repossession followed by the disposition of collateral as provided herein up to an amount not to exceed $15,000 (viii) any liabilities of which $10,000 has heretofore been paid to Seller’s employees and former employees) with the remaining $5,000 payable upon the Effective Date; and
(ixii) any liabilities or obligations Buyer shall advance all out of pocket fees and expenses of Seller’s counsel in the amount of $1,000 for transfer of patents listed in Annex 1 from Miravant’s name to Seller’s name, from Miravant Subsidiaries’ names to Seller’s name, and subsequently from Seller’s name to Buyer’s name.
(iii) Buyer shall, at Buyer’s cost using Buyer’s choice of counsel, attend to the recovery/transfer of Miravant corporate documents, as necessary for transfer of the Acquired Assets to Buyer.
(b) At the Closing, on the terms and subject to the conditions set forth in this Agreement, the Buyer expressly assumes, the “Assumed Liabilities” and no other Liabilities. The “Assumed Liabilities” are to be paid on a contingency basis according to the rate set by the Financing Payment Schedule. The “Assumed Liabilities” are:
(i) legal fees and expenses of Seller incurred, arising from or out of or incurred in connection with this Agreement or any of the other Transaction Documents or the events or negotiations leading up to the execution and consummation of the transactions contemplated by this Agreement, plus past unpaid patent related expenses of Seller, up to a maximum amount of $40,000.
(ii) On Seller’s behalf, Buyer shall pay Xxxxxx X. Xxxxxxxxxx $13,000 in cash for past expenses payable.
(c) All other Liabilities, independent of the Transaction DocumentsAssumed Liabilities, are retained by Seller (the “Retained Liabilities”).
Appears in 1 contract
Samples: Asset Purchase Agreement (DelMar Pharmaceuticals, Inc.)
Assumed Liabilities; Retained Liabilities. (a) On the terms of and subject to the conditions of this Agreement and in reliance upon the representations and warranties contained set forth herein, in addition to purchasing and acquiring the Transferred Assets, Purchaser shall assume and agrees, from and after the date of such assumption, to pay, perform and discharge when due, the following liabilities and obligations (collectively, the “Assumed Liabilities”):
(1) the obligations to perform arising in the Ordinary Course of Business after the Closing Date under the Assumed Contracts, but excluding any liabilities or obligations arising prior to the Closing Date or arising out of or relating to a breach, violation, default or failure to perform by Seller that occurred on or prior to the Closing Date; and
(2) all liabilities pursuant to the Transferred Assets arising and to be performed from and after the Closing Date, except Buyer shall assume, perform, pay, and discharge in full when due the following Liabilities of the Seller (the “Assumed Liabilities”): (i) the accounts payable and other Liabilities outstanding as of the date hereof which are specifically set forth on Section 1.2(a)(i) of the Disclosure Schedule, (ii) deferred revenue reflected on the Financial Statements, and (iii) those executory and other obligations under the Assumed Contracts arising on and after the Closing Date are assumed by Buyer. For clarity, Buyer is assuming only those obligations under the Contracts that are included in the Purchased Assets to the extent that such obligations arise in the course of performing such contracts from and after the Closing Date and is not assuming any obligations or liabilities result from the negligent act that are due to any breach or omission default by Seller prior to the Closing; and
(3) the Personal Time Off balances existing as of the Closing Date, up to eighteen (18) working days, with respect to the or performance by Seller Employees that Purchaser elects to hireunder any such Contract.
(b) Other than Buyer is assuming only the Assumed Liabilities and in no event shall the Buyer or any of its Affiliates be deemed to have assumed any other Liability of the Seller or any of its Affiliates whatsoever (the “Retained Liabilities”). Without limiting the generality of the foregoing, Purchaser shall the Buyer is not assume by virtue of this Agreement or the transactions contemplated herebyassuming any obligation for, and shall have no liability forresponsibility with respect to, Taxes or Liabilities under or relating to any other liability Seller Benefit Plan. The Buyer shall be under no obligation to hire any of the Seller. All liabilities other than Assumed Liabilities are referred to herein as “Retained Liabilities.” The Retained Liabilities will include, without limitation, the following:
’s employees and is not assuming: (i) all trade accounts payable of any obligations or Liabilities with respect to any employees that the Business as of the Closing Date;
Buyer chooses not to hire; and (ii) any liabilities pre-Closing obligations or Liabilities with respect to any employees that the Buyer chooses to hire, in each case including any obligations for employment compensation, benefits or severance under any Seller Benefit Plan.
(c) Notwithstanding any other provision of this Agreement, the obligations of the Seller in pursuant to this Section 1.2 with respect of indebtedness (whether absolute, accrued, contingent, fixed or otherwise, whether due or to become due) of Seller, of any kind, character or description whatsoever;
(iii) any liabilities or obligations of Seller related to the employment, termination or compensation of any employee, consultant or service provider of the Seller, including but not limited to compensation claims, Taxes or employer withholdings, workers’ compensation or benefits (however described) owing to any such Person arising out of the operation of the Business by Seller on or prior to the Closing Date;
(iv) any liabilities or obligations of Seller which arise from or out of or in connection with any product warranty or product liability claims that accrued or were owing by Seller on or prior to the Closing Date, but excluding liabilities or obligations resulting from (A) Purchaser’s operation of the business following the Closing Date, (B) Purchaser’s modification to Products following the Closing Date, or (C) additional warranties extended by Purchaser following the Closing Date;
(v) any liabilities or obligations (whether assessed or unassessed) of Seller for any Taxes, any Transfer Taxes imposed on Seller, or any Taxes of the Business for (x) any period ending on or prior to Retained Liabilities shall survive the Closing Date or (y) the pre-Closing portion of any period ending after the Closing;
(vi) any liabilities or obligations arising on or prior to the Closing Date or arising out of or relating to a breach, violation, default or failure to perform by Seller that occurred on or prior to the Closing Date;
(vii) any liabilities or obligations relating to or arising under any environmental law or regulation to the extent arising out of the operation of the Business on or prior to the Closing Date;
(viii) any liabilities to Seller’s employees and former employees; and
(ix) any liabilities or obligations of Seller incurred, arising from or out of or in connection with this Agreement or any of the other Transaction Documents or the events or negotiations leading up to the execution and consummation of the transactions contemplated by the Transaction Documentsthis Agreement.
Appears in 1 contract
Samples: Asset Purchase Agreement (Icad Inc)
Assumed Liabilities; Retained Liabilities. (a) On Purchaser hereby agrees to assume on the Closing Date as of the Effective Time and discharge in accordance with their terms or as otherwise provided by this Agreement only those Liabilities of and subject Seller related to the conditions Purchased Assets (including the Purchased Contracts) arising and attributable to the period after the Effective Time, other than those Liabilities arising out of or attributable to any breach or other violation in connection therewith by Seller or incurred as a result of an act or omission of Seller in contravention of the provisions of this Agreement and Agreement. Assumed Liabilities are limited to the items expressly described in reliance upon the representations and warranties contained herein, in addition to purchasing and acquiring the Transferred Assetsthis Section 2.03. The foregoing provisions of this Section 2.03 notwithstanding, Purchaser shall not be obligated to assume and agreesany Liability as to which Seller, from and after its Affiliate, or the date of such assumption, counterparty is in default on the Closing Date. The Liabilities to pay, perform and discharge when due, the following liabilities and obligations (collectively, be assumed by Purchaser under this Agreement are referred to as the “Assumed Liabilities.”):
(1b) the obligations to perform arising in the Ordinary Course Purchaser shall not assume or be liable hereunder for any Liabilities of Business after the Closing Date under Seller or any other Person other than the Assumed ContractsLiabilities (such Liabilities, but excluding any liabilities or obligations arising prior the “Retained Liabilities”). For the avoidance of doubt, Retained Liabilities shall include:
(i) all Liabilities of Seller that do not relate to the Closing Date or Purchased Assets;
(ii) all Liabilities arising out of or relating to a breach, violation, default or failure to perform the execution and delivery by Seller that occurred on or any of its Affiliates of this Agreement and the consummation by Seller and such Affiliates of the transactions contemplated hereby, including any Liabilities of Seller for payments of fees and/or expenses to a broker or finder;
(iii) all Liabilities under Environmental Laws arising from or relating to the development, construction, use, ownership, operation. maintenance, leasing, or licensing of the Purchased Assets prior to the Closing Date; andClosing, or caused by Seller or any of its Affiliates prior to the Closing;
(2iv) all liabilities pursuant Liabilities relating to any Retained Asset;
(v) all Liabilities (including any compromise or settlement of Claims) that relate to, or arise out of, Seller’s or its Affiliates’ ownership, leasing, licensing, operation, or maintenance of the Purchased Assets prior to the Transferred Assets Closing;
(vi) all Liabilities related to any current or former employee of Seller or its Affiliates;
(vii) all Liabilities related to or arising and to be performed from and after the Closing Date, except under any Benefit Plan of Seller or its Affiliates;
(viii) all Taxes relating to the extent such liabilities result from ownership of any of the negligent act or omission by Seller Purchased Assets prior to the Closing; and
(3ix) the Personal Time Off balances existing as all Liabilities that relate to, or arise out of, directly or indirectly any breach prior to Closing by Seller of the Closing Date, up to eighteen (18) working days, with respect to the Seller Employees that Purchaser elects to hireany Purchased Contract or Assumed Permit.
(bc) Other than the Assumed Liabilities, Purchaser This Section 2.03 is not intended to and shall not assume by virtue benefit any Person other than Seller and Purchaser.
(d) All of this Agreement or the transactions contemplated herebyRetained Liabilities shall remain and be the Liabilities of Seller, and Purchaser shall have no liability for, any other liability of Selleror responsibility for the Retained Liabilities. Seller covenants and agrees with Purchaser that it shall perform and discharge the Retained Liabilities. All liabilities other than of the Assumed Liabilities are referred to herein as “Retained shall become, remain and be the debts, obligations and liabilities of Purchaser, and Seller shall have no liability or responsibility for the Assumed Liabilities.” The Retained Liabilities will include, without limitation, the following:
(i) all trade accounts payable of the Business as of the Closing Date;
(ii) any liabilities or obligations of Seller in respect of indebtedness (whether absolute, accrued, contingent, fixed or otherwise, whether due or to become due) of Seller, of any kind, character or description whatsoever;
(iii) any liabilities or obligations of Seller related to the employment, termination or compensation of any employee, consultant or service provider of the Seller, including but not limited to compensation claims, Taxes or employer withholdings, workers’ compensation or benefits (however described) owing to any such Person arising out of the operation of the Business by Seller on or prior to the Closing Date;
(iv) any liabilities or obligations of Seller which arise from or out of or in connection with any product warranty or product liability claims that accrued or were owing by Seller on or prior to the Closing Date, but excluding liabilities or obligations resulting from (A) Purchaser’s operation of the business following the Closing Date, (B) Purchaser’s modification to Products following the Closing Date, or (C) additional warranties extended by Purchaser following the Closing Date;
(v) any liabilities or obligations (whether assessed or unassessed) of Seller for any Taxes, any Transfer Taxes imposed on Seller, or any Taxes of the Business for (x) any period ending on or prior to the Closing Date or (y) the pre-Closing portion of any period ending after the Closing;
(vi) any liabilities or obligations arising on or prior to the Closing Date or arising out of or relating to a breach, violation, default or failure to perform by Seller that occurred on or prior to the Closing Date;
(vii) any liabilities or obligations relating to or arising under any environmental law or regulation to the extent arising out of the operation of the Business on or prior to the Closing Date;
(viii) any liabilities to Seller’s employees and former employees; and
(ix) any liabilities or obligations of Seller incurred, arising from or out of or in connection with this Agreement or any of the other Transaction Documents or the events or negotiations leading up to the execution and consummation of the transactions contemplated by the Transaction Documents.
Appears in 1 contract
Samples: Asset Purchase Agreement
Assumed Liabilities; Retained Liabilities. (a) On the terms set forth herein, on and after the Closing Date, Buyer shall assume, perform, pay, and discharge in full when due all Assumed Liabilities.
(b) Buyer is assuming only the Assumed Liabilities from Seller and is not assuming any other Liability of Seller or the Business, whether arising prior to or following the Closing, and subject to the conditions execution and performance of this Agreement shall not render Buyer liable for any such Liability (all of such Liabilities, collectively the “Retained Liabilities”), and in reliance upon the representations and warranties contained herein, in addition to purchasing and acquiring the Transferred Assets, Purchaser shall Buyer does not assume and agreesshall in no event be liable for any such Retained Liabilities, from and after the date of such assumption, to pay, perform and discharge when due, the following liabilities and obligations (collectively, the “Assumed Liabilities”):including:
(1i) the obligations to perform arising in the Ordinary Course of Business after the Closing Date under the Assumed Contracts, but excluding any liabilities or obligations arising prior all Liabilities to the Closing Date or extent arising out of or relating to a breach, violation, default the operation or failure to perform conduct by Seller that occurred on or prior to the Closing Date; and
(2) any of its Affiliates of any retained businesses and all liabilities pursuant to the Transferred Assets arising and to be performed from and after the Closing Date, except Liabilities to the extent such liabilities result from the negligent act arising out of or omission by Seller prior relating to the Closing; and
(3) the Personal Time Off balances existing as of the Closing Date, up to eighteen (18) working days, with respect to the Seller Employees that Purchaser elects to hire.
(b) Other than the Assumed Liabilities, Purchaser shall not assume by virtue of this Agreement or the transactions contemplated hereby, and shall have no liability for, any other liability of Seller. All liabilities other than Assumed Liabilities are referred to herein as “Retained Liabilities.” The Retained Liabilities will include, without limitation, the following:
(i) all trade accounts payable of the Business as of the Closing DateExcluded Asset;
(ii) any liabilities or obligations all Liabilities and commitments of Seller or its Affiliates in respect of indebtedness (whether absolute, accrued, contingent, fixed or otherwise, whether due or Taxes incurred with respect to become due) of Seller, of any kind, character or description whatsoever;
(iii) any liabilities or obligations of Seller related to the employment, termination or compensation of any employee, consultant or service provider of the Seller, including but not limited to compensation claims, Taxes or employer withholdings, workers’ compensation or benefits (however described) owing to any such Person arising out of the operation of the Business by Seller periods ending on or prior to the Closing Date;
(iviii) all Liabilities relating to current or former employees of Seller, including (a) any liabilities compensation or obligations benefits payable to present or past employees of Seller, including any Liabilities arising under any Employee Benefit Plan of Seller which arise from and any of Seller’s Liabilities for vacation, holiday or sick pay and (b) any Liabilities under any employment, consulting or non-competition agreement, change of control agreement, indemnity agreement, any retention or performance-based bonus or other compensation agreement, and any similar agreements, whether written or oral, and any Liabilities arising out of or in connection with any product warranty or product liability claims that accrued or were owing the termination by Seller of any of its employees in anticipation or as a consequence of, or following, consummation of the transactions contemplated by this Agreement; provided, however, that any Liability relating to any employee of Seller who becomes employed by Buyer or any Affiliate thereof on or prior after the Closing Date shall be an Assumed Liability to the Closing Date, but excluding liabilities or obligations resulting from (A) Purchaser’s operation of the business following the Closing Date, (B) Purchaser’s modification to Products following the Closing Date, or (C) additional warranties extended by Purchaser following extent such Liability arises after the Closing Date;
(iv) all debt of Seller or its Affiliates for borrowed money;
(v) all Liabilities to any liabilities broker, finder or obligations (whether assessed agent or unassessed) of Seller similar intermediary for any Taxesbroker’s fee, any Transfer Taxes imposed on Seller, finders’ fee or any Taxes of the Business for (x) any period ending on similar fee or prior commission relating to the Closing Date transactions contemplated by this Agreement for which Seller or (y) the pre-Closing portion of any period ending after the Closingits Affiliates is responsible;
(vi) any liabilities or obligations arising on or prior to the Closing Date or arising out of or relating to a breach, violation, default or failure to perform all costs and expenses incurred by Seller that occurred on or prior to the Closing Date;
(vii) any liabilities or obligations relating to or arising under any environmental law or regulation to the extent arising out of the operation of the Business on or prior to the Closing Date;
(viii) any liabilities to Seller’s employees and former employees; and
(ix) any liabilities or obligations of Seller incurred, arising from or out of or in connection with this Agreement or any of the other Transaction Documents or the events or negotiations leading up to the execution and consummation of the transactions contemplated by this Agreement; and
(vii) any other Liabilities of Seller or current or former Affiliates thereof, if any, other than the Transaction DocumentsAssumed Liabilities.
Appears in 1 contract
Samples: Asset Purchase Agreement (Iconix Brand Group, Inc.)
Assumed Liabilities; Retained Liabilities. (a) On At the terms of and subject to Closing, the conditions of this Agreement and in reliance upon the representations and warranties contained herein, in addition to purchasing and acquiring the Transferred Assets, Purchaser shall assume from the Sellers and agrees, from and after undertake to discharge only those obligations of the date of such assumption, to pay, perform and discharge when due, the following liabilities and obligations (collectively, the “Assumed Liabilities”):
(1) the obligations to perform Sellers arising in the Ordinary Course of Business after the Closing Date under the Assumed Contracts, but excluding any liabilities or obligations arising prior to the Closing Date or arising out of or relating to a breach, violation, default or failure to perform by Seller that occurred on or prior to the Closing Date; and
(2) all liabilities pursuant to the Transferred Assets arising and to be performed from and after the Closing Dateunder (a) each of the Assumed Colocation Agreements; (b) each of the Leases, except subject to the extent Sellers' ability, in accordance with Section 4.8 hereof, to obtain a Lease Assignment for each of such Leases; and (c) the Generator Lease/Purchase Agreements, dated July 31, 2001, January 24, 2001, May 17, 2001, and October 1, 2002 by and between Caterpillar Finance and the Seller or Sellers (the "Generator Leases"), true and complete copies of which are attached hereto as Exhibit A, subject to the Sellers' payment of the monthly payment due and owning as of October 2002 (the "October Generator Payment") under the Generator Leases (collectively, the "Assumed Liabilities"); provided, however, that the liabilities and obligations set forth in clauses (a), (b) and (c) of this Section 1.3 that arise, or are deemed to have arisen, as a result from of any default, breach or violation of such Agreements or Leases by the negligent act or omission by Seller Sellers prior to the Closing; and
(3) the Personal Time Off balances existing as Closing shall specifically not be, or deemed not to be, part of the Closing Date, up to eighteen (18) working days, with respect to Assumed Liabilities and shall be included as part of the Seller Employees that Purchaser elects to hire.
(b) Retained Liabilities. Other than the Assumed Liabilities, the Purchaser does not and shall not assume by virtue of this Agreement or the transactions contemplated herebyin any way be liable or responsible for or undertake to pay, and shall have no liability forperform, satisfy or discharge any other liability of Seller. All liabilities other than Assumed Liabilities are referred liabilities, commitments, debts or obligations, whether known or unknown, relating to herein as “Retained Liabilities.” The Retained Liabilities will include, without limitation, the following:
(i) all trade accounts payable of the Business as of the Closing Date;
(ii) any liabilities or obligations of Seller in respect of indebtedness (whether not, presently existing or hereafter arising, disclosed or undisclosed, absolute, accruedcontingent, contingentinchoate, fixed or otherwise, whether due or to become due) of Seller, of any kind, character or description whatsoever;
(iii) any liabilities or obligations of Seller related to the employment, termination or compensation of any employee, consultant or service provider of the SellerSellers (the "Retained Liabilities") and the Sellers shall pay, including but not limited to compensation claimsperform, Taxes discharge or employer withholdingssatisfy, workers’ compensation or benefits (however described) owing to any such Person arising out when due, in accordance with Section 4.6 hereof, all of the operation of the Business by Seller on or prior to the Closing Date;
(iv) any liabilities or obligations of Seller which arise from or out of or in connection with any product warranty or product liability claims that accrued or were owing by Seller on or prior to the Closing Date, but excluding liabilities or obligations resulting from (A) Purchaser’s operation of the business following the Closing Date, (B) Purchaser’s modification to Products following the Closing Date, or (C) additional warranties extended by Purchaser following the Closing Date;
(v) any liabilities or obligations (whether assessed or unassessed) of Seller for any Taxes, any Transfer Taxes imposed on Seller, or any Taxes of the Business for (x) any period ending on or prior to the Closing Date or (y) the pre-Closing portion of any period ending after the Closing;
(vi) any liabilities or obligations arising on or prior to the Closing Date or arising out of or relating to a breach, violation, default or failure to perform by Seller that occurred on or prior to the Closing Date;
(vii) any liabilities or obligations relating to or arising under any environmental law or regulation to the extent arising out of the operation of the Business on or prior to the Closing Date;
(viii) any liabilities to Seller’s employees and former employees; and
(ix) any liabilities or obligations of Seller incurred, arising from or out of or in connection with this Agreement or any of the other Transaction Documents or the events or negotiations leading up to the execution and consummation of the transactions contemplated by the Transaction DocumentsRetained Liabilities.
Appears in 1 contract
Samples: Asset Purchase Agreement (Access Integrated Technologies Inc)
Assumed Liabilities; Retained Liabilities. (a) On the terms of and subject Subject to the conditions provisions of this Agreement Section 2.3 and in reliance upon 2.6 hereof and the representations and warranties contained hereinSeller's agreement to retain all Retained Liabilities, in addition to purchasing and acquiring the Transferred AssetsBuyer, Purchaser shall assume and agrees, from and after on the date of Closing, agrees to and shall assume, and timely pay and perform all obligations and liabilities of the Seller Parties relating directly to the Assets and to DPLP and the Gathering Joint Venture and their respective properties and interests, and to the ownership and/or operation by the Seller Parties of the Assets. In connection with (but not in limitation of) the foregoing, it is specifically understood and agreed that matters arising out of or otherwise relating to the ownership and/or operation by the Seller Parties of the Assets shall include all matters relating to any damage to property, or injury or death to persons or arising out of the condition of the Assets, including, without limitation, within such assumptionmatters all obligations to properly plug and abandon, or replug and re-abandon, xxxxx located on the Assets, to restore the surface of the Assets, and to comply with, or to bring the Assets into compliance with, applicable Environmental Laws, including conducting any remediation activities which may be required on or otherwise in connection with activities on the Assets, regardless of when the events occurred which give rise to such condition (and regardless of whether Seller, or any other Seller Party, or their respective officers, employees, agents or other representatives, were negligent but excluding gross negligence and willful misconduct) and the above provided for assumptions and indemnifications by Buyer shall expressly cover and include such matters so arising out of such condition (the "Assumed Liabilities").
(b) Except as otherwise provided in Section 4.3(a), Buyer does not assume or agree to pay, perform or discharge, and discharge when dueshall not be responsible for, the following liabilities and obligations (collectively, the “Assumed Liabilities”):
(1) the obligations to perform arising in the Ordinary Course of Business after the Closing Date under the Assumed Contracts, but excluding any Retained Liabilities or any other liabilities or obligations arising prior to the Closing Date of any Seller Party whether accrued, absolute, contingent or arising out of or relating to a breach, violation, default or failure to perform by Seller that occurred on or prior to the Closing Date; andotherwise.
(2c) all liabilities pursuant to the Transferred Assets arising Seller shall and to be performed shall cause each applicable Seller Party, from and after the Closing Date, except to the extent such necessary to hold Buyer harmless therefrom, timely pay and perform all obligations and liabilities result from included in the negligent act or omission by Seller prior to the Closing; and
(3) the Personal Time Off balances existing as of the Closing Date, up to eighteen (18) working days, with respect to the Seller Employees that Purchaser elects to hire.
(b) Other than the Assumed Liabilities, Purchaser shall not assume by virtue of this Agreement or the transactions contemplated hereby, and shall have no liability for, any other liability of Seller. All liabilities other than Assumed Liabilities are referred to herein as “Retained Liabilities.” The Retained Liabilities will include, without limitation, the following:
(i) all trade accounts payable of the Business as of the Closing Date;
(ii) any liabilities or obligations of Seller in respect of indebtedness (whether absolute, accrued, contingent, fixed or otherwise, whether due or to become due) of Seller, of any kind, character or description whatsoever;
(iii) any liabilities or obligations of Seller related to the employment, termination or compensation of any employee, consultant or service provider of the Seller, including but not limited to compensation claims, Taxes or employer withholdings, workers’ compensation or benefits (however described) owing to any such Person arising out of the operation of the Business by Seller on or prior to the Closing Date;
(iv) any liabilities or obligations of Seller which arise from or out of or in connection with any product warranty or product liability claims that accrued or were owing by Seller on or prior to the Closing Date, but excluding liabilities or obligations resulting from (A) Purchaser’s operation of the business following the Closing Date, (B) Purchaser’s modification to Products following the Closing Date, or (C) additional warranties extended by Purchaser following the Closing Date;
(v) any liabilities or obligations (whether assessed or unassessed) of Seller for any Taxes, any Transfer Taxes imposed on Seller, or any Taxes of the Business for (x) any period ending on or prior to the Closing Date or (y) the pre-Closing portion of any period ending after the Closing;
(vi) any liabilities or obligations arising on or prior to the Closing Date or arising out of or relating to a breach, violation, default or failure to perform by Seller that occurred on or prior to the Closing Date;
(vii) any liabilities or obligations relating to or arising under any environmental law or regulation to the extent arising out of the operation of the Business on or prior to the Closing Date;
(viii) any liabilities to Seller’s employees and former employees; and
(ix) any liabilities or obligations of Seller incurred, arising from or out of or in connection with this Agreement or any of the other Transaction Documents or the events or negotiations leading up to the execution and consummation of the transactions contemplated by the Transaction Documents.
Appears in 1 contract
Samples: Asset Purchase Agreement (NGC Corp)
Assumed Liabilities; Retained Liabilities. It is expressly understood and agreed that, other than the Assumed Liabilities, Purchaser shall not assume, nor shall it be liable for, any liability, Indebtedness, obligation, or Contract of Seller 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, whether fixed, contingent or otherwise, whether known or unknown, and whether or not recorded on the books and records of Seller, all of which shall be retained by Seller and 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 (all of which shall be deemed to be Retained Liabilities) whether or not disclosed on the Certified Financial Statements:
(a) On the terms except for any Assumed Operating Liabilities, any liability of and subject to the conditions of this Agreement and in reliance upon the representations and warranties contained hereinSeller for (i) accrued salaries, in addition to purchasing and acquiring the Transferred Assetswages, Purchaser shall assume and agrees, from and after the date of such assumption, to vacation pay, perform bonuses and discharge when due, the following liabilities other employment benefits or commissions and obligations related Taxes or under any Employee Plan (collectively, the “Assumed Liabilities”):except as expressly provided for in Schedule 1.1(B) and Section 8.8) and/or (ii) severance payments or other termination benefits payable to employees of Seller.
(1b) any liability of Seller directly or indirectly as a member of a group of employers under Section 414(b), (c) or (m) of the obligations to perform arising in the Ordinary Course of Business after the Closing Date under the Assumed ContractsCode, but excluding any liabilities or obligations arising prior to the Closing Date or arising out of any employee benefit plans as defined in Section 3(3) ERISA, maintained by Seller or any Affiliate thereof including, without limitation, liabilities attributable to a complete or partial withdrawal from a multiemployer plan (as defined under Section (3)(37) or Section 4001 of ERISA) or to the PBGC for benefit liabilities or premiums due any liability resulting from failure to provide continuation coverage under group health plan as required under Section 162(k) of the Code, or any liabilities arising out of any nonqualified plan or plans covering any employees or former employees of Seller;
(c) any liability of Seller relating to a breach, violation, default the Excluded Assets;
(d) any liability for any government-imposed fees or failure to perform by Seller that occurred on or charges arising out of doing business prior to the Closing Date; andin any jurisdiction where Seller is not qualified to do business as a foreign corporation that would not have been incurred if such Seller had been so qualified;
(2e) all liabilities pursuant any liability of Seller for any Indebtedness or to the Transferred Assets any trade or non-trade creditor, customer, employee, financial institution, government entity, trust company or other party, either directly or by reason of any guaranty or other Contract other than any Assumed Operating Liabilities;
(f) any liability of Seller arising and to be performed from and after the Closing Date, except to the extent such specifically assumed by Purchaser pursuant to this Agreement;
(g) any obligations and liabilities result arising from the non-compliance by Seller with any federal, state, local or foreign laws, regulations, orders or administrative or judicial determinations (including all Environment Laws), and any obligations and liabilities arising from incidents, occurrences, suits, claims, actions, programs and proceedings of any kind, voluntary or otherwise, relating to alleged or actual pollution, contamination or harm of any kind to the environment (including, without limitation, harm to any person or property), attributable to or caused by, assigned to or otherwise involving Seller, the Purchased Assets, or the Facilities, regardless of when the underlying incident, occurrence, suit, claim, action, program or proceeding occurred or is discovered or made, including without limitation anything contained on Schedules 4.15 and Schedules 4.18(a)-4.18(d) hereof;
(h) any liability for workers compensation claims, general liability claims, automobile liability claims or any other negligent act or omission by Seller prior of Seller, whether related to the ClosingBusiness or otherwise;
(i) any liability of Seller under any Contract except for the Assumed Contracts; and
(3j) any liability of Seller for any Tax except for any Taxes included in the Personal Time Off balances existing as of Assumed Liabilities. On the Closing Date, up Purchaser shall execute and deliver to eighteen Seller an assignment and assumption agreement, which shall be substantially in the form of Exhibit 2.4 (18“Assumption Agreement”) working days, with respect to the Seller Employees that Purchaser elects to hire.
(b) Other than reflect Purchaser’s assumption of the Assumed Liabilities, . The assumption by Purchaser of any Assumed Contract of Seller shall not assume by virtue of this Agreement include only payment and performance obligations thereunder which accrue or the transactions contemplated hereby, and shall have no liability for, any other liability of Seller. All liabilities other than Assumed Liabilities are referred to herein as “Retained Liabilities.” The Retained Liabilities will include, without limitation, the following:
(i) all trade accounts payable of the Business as of arise after the Closing Date;
(ii) ; in no event shall Purchaser assume or be deemed to assume any liabilities or obligations liability of Seller in respect of indebtedness any nature (whether known, unknown, absolute, accrued, contingent, fixed contingent or otherwise, whether due or to become due) of Seller, of any kind, character or description whatsoever;
(iii) any liabilities or obligations of Seller related relating to the employment, termination or compensation of any employee, consultant or service provider of the Seller, including but not limited to compensation claims, Taxes or employer withholdings, workers’ compensation or benefits (however described) owing to performance under any such Person arising out of the operation of the Business by Seller on or prior to the Closing Date;
(iv) any liabilities or obligations of Seller Assumed Contract which arise from or out of or in connection with any product warranty or product liability claims that accrued or were owing by Seller on or prior to the Closing Date, but excluding liabilities or obligations resulting from (A) Purchaser’s operation of unless such liability is included within the business following the Closing Date, (B) Purchaser’s modification to Products following the Closing Date, or (C) additional warranties extended by Purchaser following the Closing Date;
(v) any liabilities or obligations (whether assessed or unassessed) of Seller for any Taxes, any Transfer Taxes imposed on Seller, or any Taxes of the Business for (x) any period ending on or prior to the Closing Date or (y) the pre-Closing portion of any period ending after the Closing;
(vi) any liabilities or obligations arising on or prior to the Closing Date or arising out of or relating to a breach, violation, default or failure to perform by Seller that occurred on or prior to the Closing Date;
(vii) any liabilities or obligations relating to or arising under any environmental law or regulation to the extent arising out of the operation of the Business on or prior to the Closing Date;
(viii) any liabilities to Seller’s employees and former employees; and
(ix) any liabilities or obligations of Seller incurred, arising from or out of or in connection with this Agreement or any of the other Transaction Documents or the events or negotiations leading up to the execution and consummation of the transactions contemplated by the Transaction Documents.Assumed Operating Liabilities..
Appears in 1 contract
Samples: Asset Purchase Agreement (Wilson Greatbatch Technologies Inc)
Assumed Liabilities; Retained Liabilities. (a) On the terms of and subject to the conditions of this Agreement and in reliance upon the representations and warranties contained herein, in addition to purchasing and acquiring the Transferred Assets, Purchaser shall assume and agrees, from and after the date of such assumption, to pay, perform and discharge when due, and to indemnify Seller against and hold it harmless from only the following liabilities and obligations of Seller (collectively, but excluding the Retained Liabilities) in respect of the Business (the “Assumed Liabilities”):
(1A) The obligations to perform arising in the ordinary course of the Business after the Technology Closing Date under the Assumed Contracts which constitute a portion of the Technology Assets and (B) the obligations to perform arising in the Ordinary Course ordinary course of the Business after the Manufacturing Closing Date under the Assumed Contracts, but excluding any Contracts which constitute a portion of the Manufacturing Assets;
(ii) The expenses and liabilities or obligations arising prior relating to the Closing Date Business which are incurred or arising out accrued in the ordinary course of or relating to a breach, violation, default or failure to perform by Seller that occurred on or prior to the Business consistent with past practice after the Technology Closing Date; and
(2) all liabilities pursuant to the Transferred Assets arising and to be performed from and after the Closing Date, except to the extent such liabilities result from the negligent act or omission by Seller prior to the Closing; and
(3) the Personal Time Off balances existing as of the Closing Date, up to eighteen (18) working days, with respect to the Seller Employees that Purchaser elects to hire.
(b) Other than the Assumed Liabilities, Purchaser shall not assume by virtue of this Agreement or the transactions contemplated hereby, and shall have no liability for, any other liability of Seller. All liabilities other than Assumed Liabilities are referred to herein as “Retained Liabilities.” The Retained Liabilities will include, without limitation, the following:
(i) all trade accounts payable of the Business as of the Closing DateBusiness;
(ii) any liabilities or obligations of Seller in respect of indebtedness (whether absolute, accrued, contingent, fixed or otherwise, whether due or to become due) of Seller, of any kind, character or description whatsoever, including, but not limited to, indebtedness owed by Seller to any of its stockholders;
(iii) any liabilities or obligations of Seller related to the employment, termination or compensation of any employee, consultant or service provider of the Seller, including but not limited to compensation claims, Taxes or employer withholdings, workers’ compensation or benefits (however described) owing to any such Person person arising out of the operation of the Business by Seller on including, for avoidance of doubt, any and all liabilities or obligations to Transferred Employees incurred prior to the Closing Datetime that any such Transferred Employee becomes an employee of Purchaser;
(iv) any liabilities or obligations of Seller which arise from or out of or in connection with any product warranty or product liability claims that owing, accrued or were owing the underlying facts with respect to which arising out of the operation of the Business by Seller on or prior to (including, for avoidance of doubt, the operation of the Business by Seller through and including the Manufacturing Closing Date, Date but excluding liabilities or obligations resulting from (A) Purchaser’s operation of either modifications to the business following the Closing Date, (B) Purchaser’s modification to Products following the Closing Date, Product made by Purchaser or (C) additional warranties extended by Purchaser following the Technology Closing Date);
(v) any liabilities or obligations (whether assessed or unassessed) of Seller for any Taxes, any Transfer Taxes imposed on Seller, or any Taxes of the Business for (x) any period (or portion thereof) ending on or prior to the Technology Closing Date or (y) and any Taxes of the pre-Closing portion of Business related to the Manufacturing Assets for any period (or portion thereof) ending after on or prior to the ClosingManufacturing Closing Date;
(vi) any liabilities or obligations arising on or prior relating to the Closing Date or arising out of or relating to a breach, violation, default breach or failure of Seller to perform by Seller that occurred on or under an Assumed Contract prior to the Closing Datedate on which any such Assumed Contract is transferred by Seller to Purchaser in accordance with the terms of this Agreement;
(vii) any liabilities or obligations relating to or arising under any environmental law or regulation to the extent arising out of the operation of the Business on or prior to the Technology Closing Date;
(viii) any liabilities Date with respect to Seller’s employees the Technology Asset and former employeesthe Manufacturing Closing Date with respect to the Manufacturing Assets; and
(ixviii) any liabilities or obligations of Seller incurred, arising from or out of or in connection with this Agreement, the Manufacturing Agreement, the License Agreement, the Xxxx of Sale — Technology Assets, the Xxxx of Sale — Manufacturing Assets, the IP Assignment Agreement or any of — Patents and the other IP Assignment Agreement — Trademarks (together, the “Transaction Documents Documents”) or the events or negotiations leading up to the execution and consummation of the transactions contemplated by the Transaction Documents.
Appears in 1 contract
Samples: Asset Purchase Agreement (Osiris Therapeutics, Inc.)
Assumed Liabilities; Retained Liabilities. From and after the Effective Date, Buyer shall assume only (a) On those accounts payable and accrued expenses of Seller that (i) have been incurred in the terms ordinary course of business, (ii) remain outstanding as of the Effective Time, and subject (iii) are taken into account in the final determination of the Adjusted Net Working Capital pursuant to the conditions of this Agreement and in reliance upon the representations and warranties contained herein, in addition to purchasing and acquiring the Transferred Assets, Purchaser shall assume and agrees, from and after the date of such assumption, to pay, perform and discharge when due, the following liabilities and obligations Section 2.3 (collectively, the “Assumed Payables and Expenses”); and (b) except as otherwise indicated on Schedule 1.1(e), the liabilities and obligations of Seller under the Contracts listed on Schedule 1.1(e), including the service obligations related to the retainers received for services which remain to be provided, which remaining service obligations and retainer amounts are set forth on Schedule 1.3(b) under each Contract to which they relate (collectively, the “Assumed Contractual Liabilities”):
), but, in each case, only to the extent (1i) such liabilities and obligations relate to Seller and the conduct of the Business, (ii) the rights under such Contracts are assigned to Buyer or Buyer is otherwise provided the benefits thereof and (iii) such liabilities and obligations arise and are first required to perform arising in the Ordinary Course of Business be performed on or after the Closing Effective Date under the Assumed Contracts, but excluding and do not arise as a result of any liabilities or obligations arising prior to the Closing Date or arising out breach of or relating to a breach, violation, default or failure to perform such Contracts by Seller that occurred on or prior to the Closing Date; and
and (2c) all liabilities pursuant the bonuses described in Schedule 1.3(a) (the “Assumed Bonuses”) that are owed by Seller to Transferred Employees following the Effective Date, but, in each case, only to the Transferred Assets arising extent (i) such liabilities and obligations relate to Seller and the conduct of the Business, (ii) the rights related to such Assumed Bonuses are assigned to Buyer or Buyer is otherwise provided the benefits thereof, (iii) such liabilities and obligations arise and are first required to be performed from on or after the Effective Date and do not arise as a result of any breach of obligations related to the Assumed Bonuses by Seller prior to the Closing Date and (iv) such Assumed Bonuses are taken into account in the final determination of Adjusted Net Working Capital pursuant to Section 2.3 (but for purposes of this clause (iv) only if such Assumed Bonuses were earned in 2021, but payment therefor has been deferred until 2022 or later). The Assumed Payables and Expenses, the Assumed Contractual Liabilities and the Assumed Bonuses are referred to herein collectively as the “Assumed Liabilities”. With the exception of the Assumed Liabilities, Buyer shall not by the execution, delivery or performance of this Agreement, or otherwise, assume or otherwise be responsible for any liability or obligation of any nature of Seller or any of its Affiliates, or claims of such liability or obligation, matured or unmatured, liquidated or unliquidated, fixed or contingent, or known or unknown, whether arising out of occurrences prior to, at or after the Closing Date, except to the extent such liabilities result including any liability or obligation relating to, resulting from the negligent act or omission by arising out of: (A) any Contract of Seller prior to the Closingnot listed on Schedule 1.1(e); and
(3B) the Personal Time Off balances existing as Seller’s or any of the Closing Date, up to eighteen (18) working days, with respect to the Seller Employees that Purchaser elects to hire.
(b) Other than the Assumed Liabilities, Purchaser shall not assume by virtue of this Agreement its Affiliate’s operation or the transactions contemplated hereby, and shall have no liability for, any other liability of Seller. All liabilities other than Assumed Liabilities are referred to herein as “Retained Liabilities.” The Retained Liabilities will include, without limitation, the following:
(i) all trade accounts payable ownership of the Business as or any other business, including any claim for fraud, recklessness, negligence, malpractice, breach of duty or other tortious act arising from any products sold or services provided by Seller or any of its Affiliates; (C) any violation of Law or of the Closing Date;
rights of any third Person by Seller or any of its Affiliates, including requirements relating to the reporting or payment (iior both) of federal, state, local or foreign income, property or other Taxes; (D) any Employee Plan or any contributions, benefits or liabilities therefor or obligations of Seller in respect of indebtedness thereunder (whether absoluteincluding the Retiree Obligations) or any liability for withdrawal or partial withdrawal from, accruedor termination of, contingent, fixed any Employee Plan; or otherwise, whether due or to become due(E) of Seller, any claim of any kindcurrent or former manager, character or description whatsoever;
(iii) any liabilities or obligations of Seller related to the employmentpartner, termination or compensation of any member, shareholder, officer, director, employee, consultant or service provider independent contractor (including those of the Seller, including but not limited Business) related to compensation claims, Taxes or employer withholdings, workers’ compensation or benefits (however described) owing to any such Person arising out of the operation of the Business by Seller on or prior to the Closing Date;
(iv) any liabilities or obligations of Seller which arise from or out of or in connection with any product warranty or product liability claims that accrued or were owing by Seller on or prior to the Closing Date, but excluding liabilities or obligations resulting from (A) Purchaser’s operation of the business following the Closing Date, (B) Purchaser’s modification to Products following the Closing Date, or (C) additional warranties extended by Purchaser following the Closing Date;
(v) any liabilities or obligations (whether assessed or unassessed) of Seller for any Taxes, any Transfer Taxes imposed on Seller, or any Taxes of the Business for (x) any period ending on or prior to the Closing Date or (y) the pre-Closing portion of any period ending after the Closing;
(vi) any liabilities or obligations arising on or prior to the Closing Date or arising out of or relating to a breach, violation, default or failure to perform by Seller that occurred on or prior to the Closing Date;
(vii) any liabilities or obligations relating to or arising under any environmental law or regulation to the extent arising out of the operation of the Business on or prior to the Closing Date;
(viii) any liabilities to Seller’s employees and former employees; and
(ix) any liabilities or obligations of Seller incurred, arising from or out of or in connection with this Agreement or any of its Affiliates, including any claim relating to accrued payroll, bonuses, severance, stock appreciation rights or other compensation or vacation liabilities or any claims with respect to any distributions, dividends or redemption payments with respect to any securities of Seller (collectively, the other Transaction Documents “Retained Liabilities”). Seller shall pay or the events otherwise satisfy or negotiations leading up cause to the execution and consummation of the transactions contemplated by the Transaction Documentsbe paid or otherwise satisfied in full, promptly when due, all Retained Liabilities.
Appears in 1 contract
Assumed Liabilities; Retained Liabilities. (a) On Upon the terms of and subject to the conditions of set forth in this Agreement and in reliance upon the representations and warranties contained hereinAgreement, in addition to purchasing and acquiring the Transferred Assetsat Closing, Purchaser Buyer shall assume and agrees, from and after only the date of such assumption, to pay, perform and discharge when due, the following liabilities and obligations of Seller described on Schedule 2.4 attached hereto (collectively, the “"Assumed Liabilities”):"). Buyer shall assume the Assumed Liabilities pursuant to the terms of the Assumption Agreement. It is expressly understood and agreed by the parties that all debts, liabilities and obligations of Seller of any kind or nature whatsoever, whether absolute, accrued, contingent or otherwise, whether known or unknown, and whether due or to become due at any time, which are not specifically included in the Assumed Liabilities (collectively, the "Retained Liabilities") shall be retained by Seller, and that Buyer shall not assume and shall have no liability or obligation whatsoever with respect to the Retained Liabilities .
(1b) Without limiting the obligations to perform arising in generality of the Ordinary Course of Business after the Closing Date under foregoing, the Assumed Contracts, but excluding Liabilities shall not include any liabilities of the following Retained Liabilities:
(i) any amounts due to the California Public Utility Commission arising out of or obligations arising related to the activities and operations of Seller prior to the Closing Date Closing, including, without limitation, arising out of controversies with the California Public Utility Commission;
(ii) all liabilities and obligations of Seller arising out of or related to the Excluded Assets, including, without limitation, the Non-Assumed Schedule 1.1 Contracts;
(iii) all liabilities and obligations of Seller for goods and services furnished to Seller at any time prior to the Closing;
(iv) all liabilities and obligations arising out of or relating to a breach, violation, default or failure to perform by Seller that occurred events occurring on or prior to the Closing Date, including, without limitation, defaults or breaches by Seller under the Contracts assigned to Buyer pursuant to this Agreement.
(v) all liabilities and obligations of Seller to or on behalf of any Person employed by Seller at any time prior to or on the Closing Date for any aspect of the employment relationship which relates to any time prior to and including the Closing Date, including, without limitation, all liabilities or obligations related to wages, benefits, payroll taxes and withholdings, termination benefits, any Employee Benefit Plans maintained or formerly maintained by Seller or any affiliate of Seller (including, without limitation, any obligations or liabilities under any such plans), or related to any violation of federal or state discrimination, safety or other law regarding employees;
(vi) all liabilities and obligations of Seller not incurred in the ordinary and lawful course of business; and
(2vii) all liabilities pursuant and obligations of Seller of any kind, whether absolute, contingent or otherwise, whether known or unknown, whether due or to the Transferred Assets become due at any time, and whether or not arising and from or related to be performed any Contract, Pay Telephone Location Agreement, Service Agreement or real or personal property lease, or otherwise, that are based upon, arise from and after the Closing Date, except or relate to the extent such liabilities result from the negligent act or omission by Seller any event which occurred at any time prior to the Closing; and
(3) the Personal Time Off balances existing as of the Closing Date, up to eighteen (18) working days, with respect to the Seller Employees that Purchaser elects to hire.
(b) Other than the Assumed Liabilities, Purchaser shall not assume by virtue of this Agreement or the transactions contemplated hereby, and shall have no liability for, any other liability of Seller. All liabilities other than Assumed Liabilities are referred to herein as “Retained Liabilities.” The Retained Liabilities will includeincluding, without limitation, the following:
any liability or obligation (i) all trade accounts payable for violation of the Business as of the Closing Date;
any Environmental Laws, (ii) for any liabilities remedial, removal, response, abatement, monitoring, clean-up, closure or obligations maintenance actions with respect to any Hazardous Substances, (iii) for any death, personal injury or property damage suffered or allegedly suffered by any Person from any cause, (iv) for any act, event or omission of Seller any kind, whether arising from, related to or sounding in respect breach of indebtedness contract or covenant, commission of tort or violation of any Legal Requirement, and (vi) for any actual or accrued liability for any Taxes, including, without limitation, any income tax (whether absolutearising out of the consummation of the Contemplated Transactions or otherwise), withholding tax or similar payroll deduction, real property tax or personal property tax, whether actual, accrued, contingent, fixed contingent or otherwise, whether due or to become due) of Sellerdue at any time, of any kind, character and whether or description whatsoever;
(iii) any liabilities or obligations of Seller related to the employment, termination or compensation of any employee, consultant or service provider of the Seller, including but not limited to compensation claims, Taxes or employer withholdings, workers’ compensation or benefits (however described) owing to any such Person arising out of the operation of the Business by Seller on or prior to the Closing Date;
(iv) any liabilities or obligations of Seller which arise from or out of or in connection with any product warranty or product liability claims that accrued or were owing by Seller on or prior to the Closing Date, but excluding liabilities or obligations resulting from (A) Purchaser’s operation of the business following the Closing Date, (B) Purchaser’s modification to Products following the Closing Date, or (C) additional warranties extended by Purchaser following the Closing Date;
(v) any liabilities or obligations (whether assessed or unassessed) of Seller for any Taxes, any Transfer Taxes imposed on Seller, or any Taxes of the Business for (x) any period ending on or prior to the Closing Date or (y) the pre-Closing portion of any period ending after the Closing;
(vi) any liabilities or obligations arising on or prior to the Closing Date or arising out of or relating to a breach, violation, default or failure to perform by Seller that occurred on or prior to the Closing Date;
(vii) any liabilities or obligations relating to or arising under any environmental law or regulation to the extent arising out of the operation of the Business on or prior to the Closing Date;
(viii) any liabilities to Seller’s employees and former employees; and
(ix) any liabilities or obligations of Seller incurred, arising from or out of or in connection with this Agreement or any of the other Transaction Documents or the events or negotiations leading up to the execution and consummation of the transactions contemplated by the Transaction Documentsdisputed.
Appears in 1 contract
Samples: Asset Purchase Agreement (One Source Telecommunications Inc)
Assumed Liabilities; Retained Liabilities. (a) On the terms of and subject to the conditions of this Agreement and in reliance upon the representations and warranties contained herein, in addition to purchasing and acquiring the Transferred Assets, Purchaser shall assume and agrees, from and after the date of such assumption, to pay, perform and discharge when due, and to indemnify Seller against and hold it harmless from only the following liabilities and obligations of Seller (collectively, but excluding the Retained Liabilities) in respect of the Business (the “Assumed Liabilities”):
(1i) (A) The obligations to perform arising in the ordinary course of the Business after the Technology Closing Date under the Assumed Contracts which constitute a portion of the Technology Assets and (B) the obligations to perform arising in the Ordinary Course ordinary course of the Business after the Manufacturing Closing Date under the Assumed Contracts, but excluding any Contracts which constitute a portion of the Manufacturing Assets;
(ii) The expenses and liabilities or obligations arising prior relating to the Closing Date Business which are incurred or arising out accrued in the ordinary course of or relating to a breach, violation, default or failure to perform by Seller that occurred on or prior to the Business consistent with past practice after the Technology Closing Date; and
(2) all liabilities pursuant to the Transferred Assets arising and to be performed from and after the Closing Date, except to the extent such liabilities result from the negligent act or omission by Seller prior to the Closing; and
(3) the Personal Time Off balances existing as of the Closing Date, up to eighteen (18) working days, with respect to the Seller Employees that Purchaser elects to hire.
(b) Other than the Assumed Liabilities, Purchaser shall not assume by virtue of this Agreement or the transactions contemplated hereby, and shall have no liability for, any other liability of Seller. All liabilities other than Assumed Liabilities are referred to herein as “Retained Liabilities.” The Retained Liabilities will include, without limitation, the following:
(i) all trade accounts payable of the Business as of the Closing DateBusiness;
(ii) any liabilities or obligations of Seller in respect of indebtedness (whether absolute, accrued, contingent, fixed or otherwise, whether due or to become due) of Seller, of any kind, character or description whatsoever, including, but not limited to, indebtedness owed by Seller to any of its stockholders;
(iii) any liabilities or obligations of Seller related to the employment, termination or compensation of any employee, consultant or service provider of the Seller, including but not limited to compensation claims, Taxes or employer withholdings, workers’ compensation or benefits (however described) owing to any such Person person arising out of the operation of the Business by Seller on including, for avoidance of doubt, any and all liabilities or obligations to Transferred Employees incurred prior to the Closing Datetime that any such Transferred Employee becomes an employee of Purchaser;
(iv) any liabilities or obligations of Seller which arise from or out of or in connection with any product warranty or product liability claims that owing, accrued or were owing the underlying facts with respect to which arising out of the operation of the Business by Seller on or prior to (including, for avoidance of doubt, the operation of the Business by Seller through and including the Manufacturing Closing Date, Date but excluding liabilities or obligations resulting from (A) Purchaser’s operation of either modifications to the business following the Closing Date, (B) Purchaser’s modification to Products following the Closing Date, Product made by Purchaser or (C) additional warranties extended by Purchaser following the Technology Closing Date);
(v) any liabilities or obligations (whether assessed or unassessed) of Seller for any Taxes, any Transfer Taxes imposed on Seller, or any Taxes of the Business for (x) any period (or portion thereof) ending on or prior to the Technology Closing Date or (y) and any Taxes of the pre-Closing portion of Business related to the Manufacturing Assets for any period (or portion thereof) ending after on or prior to the ClosingManufacturing Closing Date;
(vi) any liabilities or obligations arising on or prior relating to the Closing Date or arising out of or relating to a breach, violation, default breach or failure of Seller to perform by Seller that occurred on or under an Assumed Contract prior to the Closing Datedate on which any such Assumed Contract is transferred by Seller to Purchaser in accordance with the terms of this Agreement;
(vii) any liabilities or obligations relating to or arising under any environmental law or regulation to the extent arising out of the operation of the Business on or prior to the Technology Closing Date;
(viii) any liabilities Date with respect to Seller’s employees the Technology Asset and former employeesthe Manufacturing Closing Date with respect to the Manufacturing Assets; and
(ixviii) any liabilities or obligations of Seller incurred, arising from or out of or in connection with this Agreement, the Manufacturing Agreement, the License Agreement, the Xxxx of Sale — Technology Assets, the Xxxx of Sale — Manufacturing Assets, the IP Assignment Agreement or any of — Patents and the other IP Assignment Agreement — Trademarks (together, the “Transaction Documents Documents”) or the events or negotiations leading up to the execution and consummation of the transactions contemplated by the Transaction Documents.
Appears in 1 contract
Assumed Liabilities; Retained Liabilities. (a) On the terms of and subject to the conditions of this Agreement and in reliance upon the representations and warranties contained set forth herein, in addition to purchasing and acquiring the Transferred Assets, Purchaser shall assume and agrees, from and after the date of such assumption, to pay, perform and discharge when due, the following liabilities and obligations (collectively, the “Assumed Liabilities”):
(1) the obligations to perform arising in the Ordinary Course of Business after the Closing Date under the Assumed Contracts, but excluding any liabilities or obligations arising prior to the Closing Date or arising out of or relating to a breach, violation, default or failure to perform by Seller that occurred on or prior to the Closing Date; and
(2) all liabilities pursuant to the Transferred Assets arising and to be performed from and after the Closing Date, except Buyer shall assume, perform, pay, and discharge in full when due the following Liabilities of the Seller (the “Assumed Liabilities”): (i) the accounts payable and other Liabilities outstanding as of the date hereof which are specifically set forth on Section 1.2(a)(i) of the Disclosure Schedule, (ii) deferred revenue reflected on the Financial Statements, and (iii) those executory and other obligations under the Assumed Contracts arising on and after the Closing Date are assumed by Buyer. For clarity, Buyer is assuming only those obligations under the Assumed Contracts and only to the extent that such obligations arise in the course of performing such Assumed Contracts from and after the Closing Date and is not assuming any obligations or liabilities result from the negligent act that are due to any breach or omission default by Seller prior to the Closing; and
(3) the Personal Time Off balances existing as of the Closing Date, up to eighteen (18) working days, with respect to the or performance by Seller Employees that Purchaser elects to hireunder any such Assumed Contract.
(b) Other than Buyer is assuming only the Assumed Liabilities and in no event shall the Buyer or any of its Affiliates be deemed to have assumed any other Liability of the Seller or any of its Affiliates whatsoever (the “Retained Liabilities”). Without limiting the generality of the foregoing, Purchaser shall the Buyer is not assume by virtue assuming (x) any Liabilities under that certain Operating Agreement of this Agreement Derm Vantage, LLC, dated as of October 11, 2013, as amended (the “JV Agreement”) or the transactions contemplated hereby(y) any obligation for, and shall have no liability forresponsibility with respect to, Taxes or Liabilities under or relating to any other liability Seller Benefit Plan. The Buyer shall be under no obligation to hire any of the Seller. All liabilities other than Assumed Liabilities are referred to herein as “Retained Liabilities.” The Retained Liabilities will include, without limitation, the following:
’s employees and is not assuming: (i) all trade accounts payable of any obligations or Liabilities with respect to any employees that the Business as of the Closing Date;
Buyer chooses not to hire; and (ii) any liabilities pre-Closing obligations or Liabilities with respect to any employees that the Buyer chooses to hire, in each case including any obligations for employment compensation, benefits or severance under any Seller Benefit Plan.
(c) Notwithstanding any other provision of this Agreement, the obligations of the Seller in pursuant to this Section 1.2 with respect of indebtedness (whether absolute, accrued, contingent, fixed or otherwise, whether due or to become due) of Seller, of any kind, character or description whatsoever;
(iii) any liabilities or obligations of Seller related to the employment, termination or compensation of any employee, consultant or service provider of the Seller, including but not limited to compensation claims, Taxes or employer withholdings, workers’ compensation or benefits (however described) owing to any such Person arising out of the operation of the Business by Seller on or prior to the Closing Date;
(iv) any liabilities or obligations of Seller which arise from or out of or in connection with any product warranty or product liability claims that accrued or were owing by Seller on or prior to the Closing Date, but excluding liabilities or obligations resulting from (A) Purchaser’s operation of the business following the Closing Date, (B) Purchaser’s modification to Products following the Closing Date, or (C) additional warranties extended by Purchaser following the Closing Date;
(v) any liabilities or obligations (whether assessed or unassessed) of Seller for any Taxes, any Transfer Taxes imposed on Seller, or any Taxes of the Business for (x) any period ending on or prior to Retained Liabilities shall survive the Closing Date or (y) the pre-Closing portion of any period ending after the Closing;
(vi) any liabilities or obligations arising on or prior to the Closing Date or arising out of or relating to a breach, violation, default or failure to perform by Seller that occurred on or prior to the Closing Date;
(vii) any liabilities or obligations relating to or arising under any environmental law or regulation to the extent arising out of the operation of the Business on or prior to the Closing Date;
(viii) any liabilities to Seller’s employees and former employees; and
(ix) any liabilities or obligations of Seller incurred, arising from or out of or in connection with this Agreement or any of the other Transaction Documents or the events or negotiations leading up to the execution and consummation of the transactions contemplated by the Transaction Documentsthis Agreement.
Appears in 1 contract
Samples: Asset Purchase Agreement (Icad Inc)
