Assumption of Certain Obligations of the Business. Upon the terms and subject to the conditions of this Agreement, Purchaser (or its applicable Permitted Designee) agrees, effective at the Closing, to assume and to satisfy, pay, perform and discharge when due all Liabilities of Seller and its Affiliates to the extent relating to the Purchased Assets and all Liabilities of Seller and its Affiliates primarily relating to the Business, whether arising prior to or after the Closing, and whether accrued or fixed, known or unknown, absolute or contingent, matured or unmatured or determined or determinable as of the Closing Date, other than the Retained Liabilities (all of the foregoing liabilities and obligations to be so assumed, satisfied or discharged being herein collectively called the “Assumed Liabilities”), including the following (unless a Retained Liability): (a) all Actions to the extent resulting from the conduct of the Business or the ownership of the Equity Interests or the Purchased Assets prior to, at or after the Closing, including lawsuits and claims relating to any alleged Intellectual Property infringement; (b) all Liabilities, including all Actions to the extent arising from the design, construction, testing, marketing, service, operation or sale of the products and services of the Business prior to, at or after the Closing, including indemnification or warranty obligations and irrespective of any legal theory asserted; (c) all Liabilities and other obligations under the Real Property Leases, Equipment Leases and the Assumed Contracts and all purchase orders in respect thereof included in the Purchased Assets; (d) all accounts payable and other accrued expenses of the Business, including accrued Taxes (solely with respect to accrued Taxes, only to the extent included in Final Closing Working Capital and excluding accrued Income Taxes or VATs, neither of which shall be included as an asset or liability in Final Closing Working Capital or assumed by Purchaser (or its applicable Permitted Designee)), and all Liabilities to suppliers for products and services relating to the Business prior to, at or after the Closing; (e) all Liabilities arising prior to, at or after the Closing under any Contracts that are assigned to Purchaser pursuant to Section 2.2 at or subsequent to the Closing; (f) all other Liabilities set forth in Schedule 2.4(f) of the Seller Disclosure Letter; (g) all Assumed Environmental Liabilities; (h) all (A) Liabilities relating to each Transferred Employee (or any dependent or beneficiary of any Transferred Employee) and (B) Liabilities with respect to Former Employees to the extent included as current liabilities in the Final Closing Working Capital, except, in each case, (i) the Retention Bonuses, (ii) the Retained U.S. Pension Plan Liability, (iii) the Retained German Pension Plan Liability, (iv) as set forth in Section 5.5 and (v) the Retained Employee Liabilities; (i) all Liabilities with respect to the Assumed Plans, except as set forth in Section 5.5; (j) all Assumed Debt; (k) all reasonable out-of-pocket costs, expenses or fees arising out of or resulting from the transfer of (i) the Permits as described in Section 2.2(g) and (ii) the Intellectual Property Licenses and Information Technology Contracts as described in Section 2.2(c) and Section 2.2(e), as applicable; (l) all employee-related Liabilities relating to or arising out of the previous reduction in force of Business Employees or Former Employees of the Kessel-lo facility as described on Schedule 2.4(l)(i) of the Seller Disclosure Letter or otherwise related to the integration of the Enterprise and Telecom businesses as described on Schedule 2.4(l)(ii) of the Seller Disclosure Letter, in an amount not to exceed $9,000,000 in the aggregate under this Section 2.4(l); (m) all Liabilities for or with respect to Taxes for which Purchaser bears responsibility pursuant to Article VII; and (n) all other Liabilities that are not Retained Liabilities arising prior to, at or after the Closing to the extent primarily relating to the ownership or operation of the Business, the Purchased Assets or the Conveyed Companies, including all Liabilities included in the Final Closing Working Capital. Notwithstanding anything herein to the contrary and for the avoidance of doubt, the fact that a Liability may fall under the definition of “Assumed Liabilities” and may have been assumed by Purchaser or its Affiliates hereunder, shall not in any respect prevent Purchaser or any other Purchaser Indemnitees from seeking or receiving indemnification hereunder with respect to such Liability to the extent such Person is entitled to indemnification with respect to such Liability or obligation pursuant to the terms of Section 7.6 or Article VIII.
Appears in 2 contracts
Samples: Stock and Asset Purchase Agreement (TE Connectivity Ltd.), Stock and Asset Purchase Agreement (CommScope Holding Company, Inc.)
Assumption of Certain Obligations of the Business. Upon the terms and subject to the conditions of this Agreement, Purchaser (or its applicable Permitted Designee) agrees, effective at the Closing, (x) that all Liabilities of the Conveyed Companies shall remain Liabilities of the Conveyed Companies, and (y) to assume and to satisfy, pay, perform satisfy and discharge when due all only the following Liabilities of Seller and its Affiliates to the extent Asset Selling Entities relating to the Purchased Assets and all Liabilities of Seller and its Affiliates primarily relating to or the Business, whether arising prior to or after the Closing, and whether accrued or fixed, known or unknown, absolute or contingent, matured or unmatured or determined or determinable as of the Closing Date, other than the Retained Liabilities Business (all of the foregoing such liabilities and obligations to be so assumed, satisfied or discharged being herein collectively called the “Assumed Liabilities”), including the following (unless a Retained Liability):
(a) all Actions Liabilities of the type included in the calculation of the Final Closing Working Capital (excluding any trade accounts payable that are primarily related to the extent resulting from the conduct operations of the Business or the ownership of the Equity Interests or the Purchased Assets prior tolocated in Menlo Park, at or after the Closing, including lawsuits and claims relating to any alleged Intellectual Property infringementCalifornia);
(b) all Liabilities, including all Actions to the extent lawsuits, arising from the design, construction, testing, marketing, service, operation or sale of the products and services of the Business prior to, at or after the Closing, including indemnification or warranty obligations and claims relating to any alleged Intellectual Property infringement, and irrespective of any legal theory asserted;
(c) all Liabilities and other obligations under the Real Property Leases, Equipment Leases and the Assumed Contracts and all purchase orders in respect thereof included in the Purchased Assets;
(d) all accounts payable and other accrued expenses of the Business, including accrued Taxes (solely with respect to accrued Taxes, only to the extent included in Final Closing Working Capital and excluding accrued Income Taxes or VATs, neither of which shall be included as an asset or liability in Final Closing Working Capital or assumed by Purchaser (or its applicable Permitted Designee)), and all Liabilities to suppliers for products and services relating to the Business prior to, at or after the Closing;
(e) all Liabilities arising prior to, at or after the Closing under any Contracts that are assigned to Purchaser pursuant to Section 2.2 at Contract or subsequent any purchase orders to the Closingextent such Liabilities primarily related to the Business;
(f) all other Liabilities set forth in Schedule 2.4(f) of the Seller Disclosure Letter;
(g) all Assumed Environmental Liabilities;
(h) all (A) Liabilities relating to each Transferred Employee (or any dependent or beneficiary of any Transferred Employee) and (B) Liabilities with respect to Former Employees to the extent included as current liabilities in the Final Closing Working Capital, except, in each case, (i) the Retention Bonuses, (ii) the Retained U.S. Pension Plan Liability, (iii) the Retained German Pension Plan Liability, (iv) as set forth in Section 5.5 and (v) the Retained Employee Liabilities;
(id) all Liabilities with respect to the Assumed PlansBusiness Employees of an Asset Selling Entity, except as set forth in Section 5.5;
(j) all Assumed Debt;
(k) all reasonable out-of-pocket costs, expenses or fees arising out of or resulting from the transfer of excluding (i) the Permits any Liabilities with respect to a Business Employee arising as described in Section 2.2(g) and a result of a breach of an applicable labor or workplace Law by an Asset Selling Entity prior to Closing, (ii) the Intellectual Property Licenses Retention Bonuses, and Information Technology Contracts as described in Section 2.2(c(iii) and Section 2.2(e), as applicableany long-term disability obligations for any Asset Selling Entity Business Employee that is on long-term disability at the time of the Closing;
(l) all employee-related Liabilities relating to or arising out of the previous reduction in force of Business Employees or Former Employees of the Kessel-lo facility as described on Schedule 2.4(l)(i) of the Seller Disclosure Letter or otherwise related to the integration of the Enterprise and Telecom businesses as described on Schedule 2.4(l)(ii) of the Seller Disclosure Letter, in an amount not to exceed $9,000,000 in the aggregate under this Section 2.4(l);
(me) all Liabilities for or with respect to Taxes for which Purchaser bears responsibility pursuant to Article VII; and
(nf) all other Liabilities that are not Retained Liabilities arising prior to, at or after the Closing to the extent primarily relating to the ownership or operation of the Business, the Purchased Assets or the Conveyed Companies, including all Liabilities included in Companies from and after the Final Closing Working Capital. Notwithstanding anything herein to the contrary and for the avoidance of doubt, the fact that a Liability may fall under the definition of “Assumed Liabilities” and may have been assumed by Purchaser or its Affiliates hereunder, shall not in any respect prevent Purchaser or any other Purchaser Indemnitees from seeking or receiving indemnification hereunder with respect to such Liability to the extent such Person is entitled to indemnification with respect to such Liability or obligation pursuant to the terms of Section 7.6 or Article VIIIDate.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Bel Fuse Inc /Nj)
Assumption of Certain Obligations of the Business. Upon the terms and subject to the conditions of this Agreement, Purchaser (or its applicable Permitted Designee) agrees, effective at the Closing, to (i) assume and and, subject to satisfyArticle VII, pay, perform to satisfy and discharge when due any and all Liabilities of Seller and its Affiliates the Sellers or any of their Affiliates, to the extent relating to to, resulting from, or arising out of, the past, present or future operation or conduct of the Business or ownership or use of the Purchased Assets and all Liabilities of Seller and its Affiliates primarily relating to or the BusinessShares, whether arising prior to to, on or after the Closing, and whether accrued or unaccrued, fixed, known or unknown, absolute or contingent, matured or unmatured or determined or determinable as of the Closing Date, other than the Excluded Assets, Retained Liabilities and the Retained Businesses and (ii) without limiting the applicable provision of Article VII, cause the Conveyed Subsidiaries and their Subsidiaries to satisfy and discharge their respective Liabilities (all of the foregoing liabilities and obligations Liabilities being collectively referred to be so assumedherein as, satisfied or discharged being herein collectively called the “Assumed Liabilities”), including . Assumed Liabilities shall include the following (unless a Retained Liability):following:
(a) all Actions Liabilities assumed by, retained by or agreed to be performed by Purchaser or its Affiliates (including the Conveyed Subsidiaries) pursuant to the terms of this Agreement or any Ancillary Agreement;
(b) except with respect to the Liabilities set forth on Section 2.6(k) of the Seller Disclosure Letter, all Liabilities in respect of any pending or threatened Action, whether class, individual or otherwise in nature, in law or in equity, whether or not presently asserted, arising out of, or to the extent resulting from Relating to the Business or the operation or conduct of the Business or the ownership at any time;
(c) all Liabilities for Taxes in Section 6.6(e)(ii) of the Equity Interests or Conveyed Subsidiaries and their Subsidiaries and all other Liabilities for Taxes relating to the Purchased Assets prior toor the Business with respect to a Post-Closing Tax Period, at except for such Liabilities for Taxes which are borne by the Sellers or after the Closing, including lawsuits and claims relating any of their Affiliates pursuant to any alleged Intellectual Property infringementSection 6.6(e)(i);
(bd) all Liabilities, including all Actions to commenced or otherwise made prior to, on or after the extent Closing, arising from the design, constructionmanufacture, testing, marketing, servicedistribution, operation use, or sale of the products and services of the Business Products prior to, at on or after the Closing, including indemnification or warranty obligations and irrespective of any the legal theory asserted;
(c) all Liabilities and other obligations under the Real Property Leases, Equipment Leases and the Assumed Contracts and all purchase orders in respect thereof included in the Purchased Assets;
(d) all accounts payable and other accrued expenses of the Business, including accrued Taxes (solely with respect to accrued Taxes, only to the extent included in Final Closing Working Capital and excluding accrued Income Taxes or VATs, neither of which shall be included as an asset or liability in Final Closing Working Capital or assumed by Purchaser (or its applicable Permitted Designee)), and all Liabilities to suppliers for products and services relating to the Business prior to, at or after the Closing;
(e) all Liabilities to suppliers for materials and services Relating to the Business ordered in the ordinary course of business consistent with past practice prior to the Closing, including those scheduled to be delivered or provided thereafter, and all Liabilities to customers under purchase orders for Products that have not yet been shipped at the Closing, other than any Accounts Payable arising prior to, at or after the Closing under any Contracts that are assigned to Purchaser pursuant to Section 2.2 at or subsequent to the Closing;
(f) all other Liabilities set forth in Schedule 2.4(f) of Accounts Payable arising from and after the Seller Disclosure LetterClosing;
(g) all Assumed Environmental LiabilitiesLiabilities arising prior to, on or after the Closing under any Contracts, sales orders, purchase orders, instruments or other commitments, obligations or arrangements that are assigned to Purchaser or a Purchaser Designee pursuant to Sections 2.1, 2.2 or 2.3 at or subsequent to the Closing Date, other than any Shared Contractual Liabilities allocated or assigned to Seller Parent pursuant to Section 6.26 (including pursuant to any pass-through or alternative arrangement entered into by the Parties thereunder);
(h) all (A) Liabilities relating to each Transferred Employee (or any dependent or beneficiary of any Transferred Employee) and (B) Liabilities with respect to Former Employees Products returned prior to or after the extent included as current liabilities in the Final Closing Working Capital, except, in each case, (i) the Retention Bonuses, (ii) the Retained U.S. Pension Plan Liability, (iii) the Retained German Pension Plan Liability, (iv) as set forth in Section 5.5 and (v) the Retained Employee LiabilitiesClosing;
(i) all Environmental Liabilities with respect of any nature whatsoever, whether arising prior to or after the Closing, to the Assumed Plansextent arising out of or Relating to the Business, except as set forth in Section 5.5or the leasing, ownership or operation of the Facilities or the Real Property;
(j) all Assumed DebtLiabilities transferred to Purchaser and the Purchaser Designees pursuant to Section 6.7;
(k) all reasonable out-of-pocket costs, expenses intercompany Liabilities (other than Retained Intercompany Payables) solely between the Conveyed Subsidiaries (or fees arising out of or resulting from the transfer of (i) the Permits as described in Section 2.2(g) and (ii) the Intellectual Property Licenses and Information Technology Contracts as described in Section 2.2(c) and Section 2.2(eSubsidiaries thereof), as applicable;
(l) all employee-related Liabilities relating to or arising out of Seller Parent Guarantees that remain outstanding after the previous reduction in force of Business Employees or Former Employees of the Kessel-lo facility as described on Schedule 2.4(l)(i) of the Seller Disclosure Letter or otherwise related to the integration of the Enterprise and Telecom businesses as described on Schedule 2.4(l)(ii) of the Seller Disclosure Letter, in an amount not to exceed $9,000,000 in the aggregate under this Section 2.4(l)Closing Date;
(m) all Shared Contractual Liabilities for allocated or with respect assigned to Taxes for which Purchaser bears responsibility pursuant to Article VII; andSection 6.26 (including pursuant to any pass-through or alternative arrangement entered into by the Parties thereunder);
(n) all (i) Indebtedness, as of the Closing, of the Conveyed Subsidiaries (and any of their Subsidiaries) to the extent included in the calculation of Final Net Cash pursuant to Section 2.10, and (ii) amounts, as of the Closing, for balance sheet line items constituting “non-current other Liabilities that are liabilities” and set forth on the Balance Sheet Statement, not Retained to exceed $15,000,000 in the aggregate; and
(o) all other Liabilities arising prior to, at to or after the Closing to the extent primarily relating to the Business, ownership or operation of the Business, the Purchased Assets or the Conveyed CompaniesSubsidiaries (or their Subsidiaries), including all Liabilities included in the Final Closing Working Capital. Notwithstanding anything herein to the contrary any Governmental Authority and for the avoidance of doubt, the fact that a Liability may fall under the definition of “Assumed Liabilities” and may have been assumed by Purchaser fees arising from or its Affiliates hereunder, shall not in related to any respect prevent Purchaser or any other Purchaser Indemnitees from seeking or receiving indemnification hereunder with respect to such Liability to the extent such Person is entitled to indemnification with respect to such Liability or obligation pursuant to the terms of Section 7.6 or Article VIIIBusiness IP.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Icu Medical Inc/De)
Assumption of Certain Obligations of the Business. Upon the terms and subject to the conditions of this Agreement, Purchaser (or its applicable Permitted Designee) agrees, effective at the Closing, to assume and to satisfy, pay, perform satisfy and discharge when due all Liabilities of Seller and its Affiliates VitalWorks, other than the Retained Liabilities, to the extent relating to the Purchased Assets and all Liabilities of Seller and its Affiliates primarily relating to or the Business, whether arising prior that arise, and relate to a period, on or after the Closing, and whether accrued or fixed, known or unknown, absolute or contingent, matured or unmatured or determined or determinable as of together with the Closing Date, other than the Retained following Liabilities (all of the foregoing such liabilities and obligations to be so assumed, satisfied or discharged being herein collectively called the “Assumed Liabilities”), including the following (unless a Retained Liability):
(a) all Actions Liabilities reflected on the Closing Date Balance Sheet;
(b) any Liability to the Division’s customers incurred by the Division in the Ordinary Course of Business outstanding as of the Closing Date (other than any Liability arising out of or relating to a breach that occurred prior to the Closing Date except for matters listed in Schedule 2.4(i));
(c) any Liability to customers under written warranties set forth in the Customer Contracts given to customers in the Ordinary Course of Business prior to the Closing Date (other than any Liability arising out of or relating to a breach that occurred prior to the Closing Date);
(d) any Liability to be paid or performed on or after the Closing Date under the Assumed Contracts (other than any Liability arising out of or relating to a breach that occurred prior to the Closing Date);
(e) all lawsuits commenced and claims made after the Closing to the extent resulting from the conduct of the Business or the ownership of the Equity Interests or the Purchased Assets prior to, at or after the Closing, including lawsuits and claims relating to any alleged Intellectual Property infringement;
(bf) all Liabilities, including all Actions Liabilities for sales and use Taxes to the extent arising from accrued or reserved against in the design, construction, testing, marketing, service, operation or sale of the products and services of the Business prior to, at or after the Closing, including indemnification or warranty obligations and irrespective of any legal theory assertedWorking Capital Statement;
(cg) all Environmental Liabilities and other obligations under the Real Property Leases, Equipment Leases and the Assumed Contracts and all purchase orders in respect thereof included in the Purchased Assets;
(d) all accounts payable and other accrued expenses of the Business, including accrued Taxes (solely with respect to accrued Taxes, only to the extent included in Final Closing Working Capital and excluding accrued Income Taxes or VATs, neither of which shall be included as an asset or liability in Final Closing Working Capital or assumed by Purchaser (or its applicable Permitted Designee)), and all Liabilities to suppliers for products and services relating to the Business prior to, at or arising after the Closing;
(eh) all Liabilities arising prior to, at or after the Closing under any Contracts that are assigned to Purchaser pursuant to Section 2.2 at or subsequent to the Closing;
(f) all other Liabilities set forth in Schedule 2.4(f) of the Seller Disclosure Letter;
(g) all Assumed Environmental Liabilities;
(h) all (A) Liabilities relating to each Transferred Employee (or any dependent or beneficiary of any Transferred Employee) and (B) Liabilities Employees with respect to Former Employees to periods after the extent included as current liabilities in the Final Closing Working Capital, except, in each case, (i) the Retention Bonuses, (ii) the Retained U.S. Pension Plan Liability, (iii) the Retained German Pension Plan Liability, (iv) as set forth in Section 5.5 and (v) the Retained Employee Liabilities;
(i) all Liabilities with respect to the Assumed PlansClosing, except as set forth in Section 5.5;
(j) all Assumed Debt;
(k) all reasonable out-of-pocket costs, expenses or fees arising out of or resulting from the transfer of (i) the Permits as described in Section 2.2(g) and (ii) the Intellectual Property Licenses and Information Technology Contracts as described in Section 2.2(c) and Section 2.2(e), as applicable;
(l) all employee-related Liabilities relating to or arising out of the previous reduction in force of Business Employees or Former Employees of the Kessel-lo facility as described on Schedule 2.4(l)(i) of the Seller Disclosure Letter or otherwise related to the integration of the Enterprise and Telecom businesses as described on Schedule 2.4(l)(ii) of the Seller Disclosure Letter, in an amount not to exceed $9,000,000 in the aggregate under this Section 2.4(l);
(m) all Liabilities for or with respect to Taxes for which Purchaser bears responsibility pursuant to Article VII7.4; and
(ni) Liabilities resulting from all other Liabilities that are not Retained Liabilities arising prior to, at or after lawsuits pending as of the Closing to the extent primarily relating to the ownership or operation and listed on Schedule 2.4(i). Table of the Business, the Purchased Assets or the Conveyed Companies, including all Liabilities included in the Final Closing Working Capital. Notwithstanding anything herein to the contrary and for the avoidance of doubt, the fact that a Liability may fall under the definition of “Assumed Liabilities” and may have been assumed by Purchaser or its Affiliates hereunder, shall not in any respect prevent Purchaser or any other Purchaser Indemnitees from seeking or receiving indemnification hereunder with respect to such Liability to the extent such Person is entitled to indemnification with respect to such Liability or obligation pursuant to the terms of Section 7.6 or Article VIII.Contents
Appears in 1 contract
Assumption of Certain Obligations of the Business. Upon the terms and subject to the conditions of this Agreement, Purchaser (or its applicable Permitted Designee) agrees, effective at the Closing, to assume and to satisfy, pay, perform and discharge when due all Liabilities of Seller and its Affiliates to the extent relating to the Purchased Conveyed Assets or the Business and all Liabilities arising in the ordinary course of Seller and its Affiliates primarily relating to business, other than the BusinessRetained Liabilities, whether arising prior to or after the Closing, and whether accrued or fixed, known or unknown, absolute or contingent, matured or unmatured or determined or determinable as of the Closing Date, other than the Retained Liabilities (all of the foregoing liabilities and obligations to be so assumed, satisfied or discharged being herein collectively called the “Assumed Liabilities”). Assumed Liabilities shall include, including without limitation, the following (unless a Retained Liability):following:
(a) all Actions to the extent resulting from the conduct indebtedness of the Business or evidenced by the ownership of the Equity Interests or the Purchased Assets prior to, at or after the Closing, including lawsuits and claims relating to any alleged Intellectual Property infringementagreements listed on Schedule 2.4(a);
(b) all Liabilitiesproduct warranty obligations limited to, including all Actions at Purchaser’s option, repair, replace or provide product purchase price credit to the extent customers and contractual obligations with distributors for price adjustments or product repurchase, in each case arising from the designmanufacture, construction, testing, marketing, service, operation distribution or sale of the any products and services of the Business prior to, at on or after the ClosingClosing Date, including indemnification or warranty provided that in no event shall Purchaser’s obligations and irrespective under this Section 2.4(b) be deemed to constitute the assignment of any legal theory assertedcontract, agreement or arrangement with any distributor or independent sales representative or of any rights thereunder, or the assumption by Purchaser of any obligations or duties under any such contract, agreement or arrangement except as expressly provided in this Section 2.4(b) or Section 2.4(f);
(c) all Liabilities and other obligations under any Tax that may be imposed by any Federal, State or local government on the Real Property Leasesownership, Equipment Leases and sale, operation or use of the Assumed Contracts and all purchase orders in respect thereof included in Conveyed Assets after the Purchased AssetsClosing Date, except for any income taxes attributable to income received by Seller;
(d) all accounts payable and other accrued expenses Liabilities of the Business, including accrued Taxes (solely with respect Business arising and to accrued Taxes, only be performed after the Closing Date under or relating to the extent included in Final Closing Working Capital and Assumed Contracts (but specifically excluding accrued Income Taxes breaches by Seller or VATs, neither any of which shall be included as an asset or liability in Final Closing Working Capital or assumed by Purchaser (or its applicable Permitted Designee)), and all Liabilities to suppliers for products and services Seller’s Affiliates of any contracts relating to the Business prior to, at or after as a result of the Closingtransactions contemplated by this Agreement);
(e) all Liabilities arising prior to, at with respect to Employees who are Affected Employees or are otherwise employed by Purchaser after the Closing under Date (including, without limitation, any Contracts that are assigned to Purchaser pursuant to Section 2.2 at or subsequent Liabilities relating to the Closing;hiring, employment or termination of employment by Purchaser of any Employee or other individual, or with respect to vacation accruals or sick leave (in each case to the extent accrued in Closing Date Liabilities) and holiday accruals (whether or not accrued in the Closing Date Liabilities) consistent with Seller’s policies as historically applied); and
(f) all other Liabilities set forth in Schedule 2.4(f) of the Seller Disclosure Letter;
(g) all Assumed Environmental Liabilities;
(h) all (A) Liabilities relating for commissions due to each Transferred Employee (or any dependent or beneficiary of any Transferred Employee) and (B) Liabilities independent sales representatives with respect to Former Employees orders placed prior to Closing and for which the extent included as current liabilities in customer has not yet been billed, provided the Final Closing Working Capitalrevenues associated with such order are recognized by Purchaser, except, in each case, (i) the Retention Bonuses, (ii) the Retained U.S. Pension Plan Liability, (iii) the Retained German Pension Plan Liability, (iv) as set forth in Section 5.5 and (v) the Retained Employee Liabilities;
(i) all Liabilities regardless of whether Purchaser assumes any agreement with respect to the Assumed Plans, except as set forth in Section 5.5;
(j) all Assumed Debt;
(k) all reasonable out-of-pocket costs, expenses or fees arising out of or resulting from the transfer of (i) the Permits as described in Section 2.2(g) and (ii) the Intellectual Property Licenses and Information Technology Contracts as described in Section 2.2(c) and Section 2.2(e), as applicable;
(l) all employee-related Liabilities relating to or arising out of the previous reduction in force of Business Employees or Former Employees of the Kessel-lo facility as described on Schedule 2.4(l)(i) of the Seller Disclosure Letter or otherwise related to the integration of the Enterprise and Telecom businesses as described on Schedule 2.4(l)(ii) of the Seller Disclosure Letter, in an amount not to exceed $9,000,000 in the aggregate such sales representative. Purchaser’s obligations under this Section 2.4(l);
(m) all Liabilities for 2.4 will not be subject to offset or with respect to Taxes for which Purchaser bears responsibility pursuant to Article VII; and
(n) all reduction by reason of any actual or alleged breach of any representation, warranty or covenant contained in this Agreement or any Schedule or Exhibit hereto, or any closing or other Liabilities that are not Retained Liabilities arising prior todocument contemplated by this Agreement or any Schedule or Exhibit hereto, at any right or after the Closing to the extent primarily relating to the ownership or operation alleged right of the Business, the Purchased Assets or the Conveyed Companies, including all Liabilities included in the Final Closing Working Capital. Notwithstanding anything herein to the contrary and for the avoidance of doubt, the fact that a Liability may fall under the definition of “Assumed Liabilities” and may have been assumed by Purchaser or its Affiliates indemnification hereunder, shall not in any respect prevent Purchaser or for any other Purchaser Indemnitees from seeking or receiving indemnification hereunder with respect to such Liability to the extent such Person is entitled to indemnification with respect to such Liability or obligation pursuant to the terms of Section 7.6 or Article VIIIreason.
Appears in 1 contract
Assumption of Certain Obligations of the Business. Upon the terms and subject to the conditions of this Agreement, Purchaser (or its applicable Permitted Designee) agrees, effective at the Closing, to assume and to satisfy, pay, perform satisfy and discharge when due all Liabilities of the Seller and its Affiliates Corporations to the extent relating to the Purchased Assets or the Business and all Liabilities of Seller to cause the Conveyed Companies to satisfy and its Affiliates primarily relating to the Businessdischarge their respective Liabilities, whether arising prior to or after the Closing, and whether accrued or fixed, known or unknown, absolute or contingent, matured or unmatured or determined or determinable as of the Closing Date, other than the Retained Liabilities (all of the foregoing liabilities and obligations to be so assumed, satisfied or discharged being herein herein, collectively called the “Assumed Liabilities”). Assumed Liabilities shall include, including but not be limited to, the following (unless a Retained Liability):following:
(a) all Actions lawsuits commenced and claims made after the Closing to the extent resulting from the conduct of the Business or the ownership of the Equity Interests Shares or the Purchased Assets prior to, at or after the Closing, including lawsuits and claims relating to any alleged Intellectual Property infringement;
(b) all Liabilities, including all Actions to lawsuits commenced and all claims made after the extent Closing, arising from the design, construction, testing, marketing, service, operation or sale of the products and services of the Business prior to, at or after the Closing, including indemnification or warranty obligations and irrespective of any the legal theory asserted;
(c) all Liabilities and other obligations under the Assumed Contracts, Real Property Leases, transferable Governmental Authorizations, and Equipment Leases and the Assumed Contracts and all purchase orders in respect thereof included in the Purchased Assets;
(d) all accounts payable and other accrued expenses of the Business, including accrued Taxes (solely with respect to accrued Taxes, only to the extent included in Final Closing Working Capital and excluding accrued Income Taxes or VATs, neither of which shall be included as an asset or liability in Final Closing Working Capital or assumed by Purchaser (or its applicable Permitted Designee)), and all Liabilities to suppliers for products capacity and services relating to the Business ordered in the ordinary course of the Business prior toto the Closing, but scheduled to be delivered or provided thereafter, and all Liabilities to customers under purchase orders for products of the Business which have not yet been provided at or after the Closing;
(e) all Liabilities arising prior to, at to or after the Closing under any Contracts contracts, agreements, leases, licenses or commitments that are assigned to Purchaser pursuant to Section 2.1, 2.2 or 2.3 at or subsequent to the Closing;
(f) all other Liabilities set forth in Schedule 2.4(fto Business Employees with respect to periods after the Closing, including all future amounts payable under the 2005 Tyco Telecommunications (US) of Inc. Individual Compensation Plan and any subsequent plans and any Liabilities arising under the Seller Disclosure Letter;WARN Act; and
(g) all Assumed Environmental Liabilities;
(h) all (A) Liabilities relating to each Transferred Employee (or any dependent or beneficiary of any Transferred Employee) and (B) Liabilities with respect to Former Employees to the extent included as current liabilities in the Final Closing Working Capital, except, in each case, (i) the Retention Bonuses, (ii) the Retained U.S. Pension Plan Liability, (iii) the Retained German Pension Plan Liability, (iv) as set forth in Section 5.5 and (v) the Retained Employee Liabilities;
(i) all Liabilities with respect to the Assumed Plans, except as set forth in Section 5.5;
(j) all Assumed Debt;
(k) all reasonable out-of-pocket costs, expenses or fees arising out of or resulting from the transfer of (i) the Permits as described in Section 2.2(g) and (ii) the Intellectual Property Licenses and Information Technology Contracts as described in Section 2.2(c) and Section 2.2(e), as applicable;
(l) all employee-related Liabilities relating to or arising out of the previous reduction in force of Business Employees or Former Employees of the Kessel-lo facility as described on Schedule 2.4(l)(i) of the Seller Disclosure Letter or otherwise related to the integration of the Enterprise and Telecom businesses as described on Schedule 2.4(l)(ii) of the Seller Disclosure Letter, in an amount not to exceed $9,000,000 in the aggregate under this Section 2.4(l);
(m) all Liabilities for or with respect to Taxes for which Purchaser bears responsibility pursuant to Article VII; and
(n) all other Liabilities that are not Retained Liabilities arising prior to, at or after the Closing to the extent primarily relating to the ownership or operation of the Business, the Purchased Assets or the Conveyed Companies, Companies including all Liabilities included in on the Final Closing Date Working Capital. Notwithstanding anything herein to the contrary and for the avoidance of doubt, the fact that a Liability may fall under the definition of “Assumed Liabilities” and may have been assumed by Purchaser or its Affiliates hereunder, shall not in any respect prevent Purchaser or any other Purchaser Indemnitees from seeking or receiving indemnification hereunder with respect to such Liability to the extent such Person is entitled to indemnification with respect to such Liability or obligation pursuant to the terms of Section 7.6 or Article VIIICapital Statement.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Videsh Sanchar Nigam LTD)
Assumption of Certain Obligations of the Business. (a) Upon the terms and subject to the conditions of this Agreement, Purchaser (or its applicable Permitted Designee) Buyer agrees, effective at the Closing, to assume and to satisfy, pay, perform and discharge when due all Liabilities of Parent, Seller and its Affiliates their respective Subsidiaries (other than Liabilities of the Sold Companies) to the extent relating to the Purchased Assets and all Liabilities of Seller and its Affiliates primarily relating to or the Business, whether arising prior to to, at or after the Closing, and whether accrued or fixed, known or unknown, absolute or contingent, matured or unmatured or determined or determinable as of the Closing Date, other than the Retained Liabilities (all of the foregoing liabilities and obligations Liabilities to be so assumed, satisfied or discharged being herein collectively called the “Assumed Liabilities”), including the following (unless a Retained Liability):following:
(ai) all Actions Proceedings to the extent resulting from the conduct of the Business or the ownership of the Equity Interests or the Purchased Assets prior to, at or after the Closing, including lawsuits and claims relating to any alleged Intellectual Property infringement;
(bii) all Liabilities, including all Actions to the extent Proceedings arising from the design, construction, testing, marketing, service, operation or sale of the products and services of the Business prior to, at or after the Closing, including indemnification or warranty obligations and irrespective of any legal theory asserted;
(ciii) all Liabilities and other obligations under the Real Property Leases, Equipment Leases and the Assumed Contracts and all purchase orders in respect thereof included in the Purchased Assets;
(div) all accounts payable and other accrued expenses of the BusinessBusiness (for the avoidance of doubt, including accrued Taxes (solely excluding all Liabilities for or with respect to accrued Taxes, only Taxes for which Seller bears responsibility pursuant to the extent included in Final Closing Working Capital and excluding accrued Income Taxes or VATs, neither of which shall be included as an asset or liability in Final Closing Working Capital or assumed by Purchaser (or its applicable Permitted Designee)Section 5.6), and all Liabilities to suppliers for products and services relating to the Business prior to, at or after the Closing;
(ev) all Liabilities arising prior to, at or after the Closing under any Contracts that are assigned to Purchaser Buyer pursuant to Section 2.2 at or subsequent to the Closing;
(fvi) all other Liabilities set forth in on Schedule 2.4(f) of the Seller Disclosure Letter2.4(a)(vi);
(gvii) all Assumed Environmental Liabilities;
(h) all (A) Liabilities relating to each Transferred Employee (or any dependent or beneficiary of any Transferred Employee) and (B) Liabilities with respect to Former Employees to the extent included as current liabilities in the Final Closing Working Capital, except, in each case, (i) the Retention Bonuses, (ii) the Retained U.S. Pension Plan Liability, (iii) the Retained German Pension Plan Liability, (iv) as set forth in Section 5.5 and (v) the Retained Employee Liabilities;
(i) all Liabilities with respect to the Assumed Plans, except as set forth in Section 5.52.5(a)(xii), all Liabilities arising prior to, on or after the Closing under any Environmental Law or relating to Releases of Hazardous Materials, in each case in connection with or relating to any Purchased Asset or the Business;
(jviii) all Assumed Debt;Liabilities arising prior to, on or after the Closing with respect to Business Employees (including, but not limited to, all severance costs for any Employee terminated at the request of Buyer on or after the date hereof but prior to the Closing to the extent such Employee would have been a Business Employee but for such termination), excluding any Liabilities under a collective bargaining agreement to which no Sold Company is a party; and
(k) all reasonable out-of-pocket costs, expenses or fees arising out of or resulting from the transfer of (i) the Permits as described in Section 2.2(g) and (ii) the Intellectual Property Licenses and Information Technology Contracts as described in Section 2.2(c) and Section 2.2(e), as applicable;
(l) all employee-related Liabilities relating to or arising out of the previous reduction in force of Business Employees or Former Employees of the Kessel-lo facility as described on Schedule 2.4(l)(i) of the Seller Disclosure Letter or otherwise related to the integration of the Enterprise and Telecom businesses as described on Schedule 2.4(l)(ii) of the Seller Disclosure Letter, in an amount not to exceed $9,000,000 in the aggregate under this Section 2.4(l);
(mix) all Liabilities for or with respect to Taxes for which Purchaser Buyer bears responsibility pursuant to Article VIISection 5.6; andin each case (for clarity), unless a Liability of the Sold Companies.
(nb) After the Closing Date, Buyer shall take all other actions (or shall cause its Affiliates to take all actions) reasonably requested by Seller to effect the provisions of this Section 2.4, including the prompt assumption of any Assumed Liabilities that are held by Seller and are not Retained Liabilities arising prior to, assumed at or after the Closing to the extent primarily relating to the ownership or operation of the Business, the Purchased Assets or the Conveyed Companies, including all Liabilities included in the Final Closing Working Capital. Notwithstanding anything herein to the contrary and for the avoidance of doubt, the fact that a Liability may fall under the definition of “Assumed Liabilities” and may have been assumed by Purchaser or its Affiliates hereunder, shall not in any respect prevent Purchaser or any other Purchaser Indemnitees from seeking or receiving indemnification hereunder with respect to such Liability to the extent such Person is entitled to indemnification with respect to such Liability or obligation pursuant to the terms of Section 7.6 or Article VIIIClosing.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (L3 Technologies, Inc.)
Assumption of Certain Obligations of the Business. Upon the ---------------------------------------------------- terms and subject to the conditions of this Agreement, Purchaser (or its applicable Permitted Designee) agrees, effective at the Closing, to assume and to satisfy, pay, perform satisfy and discharge when due all Liabilities of the Seller and its Affiliates Corporations to the extent relating to the Purchased Assets or the Business and all Liabilities of Seller to cause the Conveyed Companies to satisfy and its Affiliates primarily relating to the Businessdischarge their respective Liabilities, whether arising prior to or after the Closing, and whether accrued or fixed, known or unknown, absolute or contingent, matured or unmatured or determined or determinable as of the Closing Date, other than the Retained Liabilities (all of the foregoing liabilities and obligations to be so assumed, satisfied or discharged being herein collectively called the “"Assumed Liabilities”"). Assumed Liabilities -------------------- shall include, including but not be limited to, the following (unless a Retained Liability):
following: (a) all Actions lawsuits commenced and claims made after the Closing to the extent resulting from the conduct of the Business or the ownership of the Equity Interests Shares or the Purchased Assets prior to, at to or after the Closing, including lawsuits and claims relating to any alleged Intellectual Property infringement;
; (b) all Liabilities for Taxes to the extent accrued or reserved against in the Working Capital Statement; (c) all Liabilities, including all Actions lawsuits commenced and all claims made prior to or after the extent Closing, arising from the design, constructionmanufacture, testing, marketing, service, operation distribution or sale of the any products and services of the Business prior to, at to or after the Closing, including indemnification or warranty obligations and irrespective of any the legal theory asserted;
(c) all Liabilities and other obligations under the Real Property Leases, Equipment Leases and the Assumed Contracts and all purchase orders in respect thereof included in the Purchased Assets;
; (d) all accounts payable and other accrued expenses of the Business, including accrued Taxes (solely with respect to accrued Taxes, only to the extent included in Final Closing Working Capital and excluding accrued Income Taxes or VATs, neither of which shall be included as an asset or liability in Final Closing Working Capital or assumed by Purchaser (or its applicable Permitted Designee)), and all Liabilities to suppliers for products materials and services relating to the Business ordered in the ordinary course of business prior to, at or after to the Closing;
, but scheduled to be delivered or provided thereafter, and all Liabilities to customers under purchase orders for products of the Business which have not yet been shipped at Closing; (e) all Liabilities arising prior to, at to or after the Closing under any Contracts contracts, agreements, leases, licenses or commitments that are assigned to Purchaser pursuant to Section 2.1, 2.2 or 2.3 at or subsequent to the Closing;
; (f) all other Liabilities set forth in Schedule 2.4(f) of the Seller Disclosure Letter;
(g) all Assumed Environmental Liabilities;
(h) all (A) Liabilities relating to each Transferred Employee (or any dependent or beneficiary of any Transferred Employee) and (B) Liabilities with respect to Former Employees to the extent included as current liabilities in the Final Closing Working Capital, except, in each case, (i) the Retention Bonuses, (ii) the Retained U.S. Pension Plan Liability, (iii) the Retained German Pension Plan Liability, (iv) as set forth in Section 5.5 and (v) the Retained Employee Liabilities;
(i) all Liabilities with respect to products of the Assumed Plans, except Business returned prior to or after the Closing as set forth in Section 5.5;
7.17; (jg) all Assumed Debt;
(k) all reasonable out-of-pocket costsEnvironmental Liabilities, expenses or fees whether arising out of or resulting from the transfer of (i) the Permits as described in Section 2.2(g) and (ii) the Intellectual Property Licenses and Information Technology Contracts as described in Section 2.2(c) and Section 2.2(e), as applicable;
(l) all employee-related Liabilities relating prior to or arising out of after the previous reduction in force of Business Employees or Former Employees of Closing, other than the Kessel-lo facility as described on Schedule 2.4(l)(i) of the Seller Disclosure Letter or otherwise related to the integration of the Enterprise and Telecom businesses as described on Schedule 2.4(l)(ii) of the Seller Disclosure Letter, in an amount not to exceed $9,000,000 in the aggregate under this Section 2.4(l);
Excluded Environmental Liabilities; (mh) all Liabilities for or to Employees with respect to Taxes for which Purchaser bears responsibility pursuant to Article VIIperiods after the Closing, except as otherwise provided in this Agreement; and
and (ni) all other Liabilities that are not Retained Liabilities arising prior to, at to or after the Closing to the extent primarily relating to the ownership or operation of the Business, the Purchased Assets or the Conveyed Companies, including all Liabilities included in the Final Closing Working Capital. Notwithstanding anything herein to the contrary and for the avoidance of doubt, the fact that a Liability may fall under the definition of “Assumed Liabilities” and may have been assumed by Purchaser or its Affiliates hereunder, shall not in any respect prevent Purchaser or any other Purchaser Indemnitees from seeking or receiving indemnification hereunder with respect to such Liability to the extent such Person is entitled to indemnification with respect to such Liability or obligation pursuant to the terms of Section 7.6 or Article VIII.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Energizer Holdings Inc)
Assumption of Certain Obligations of the Business. Upon the terms and subject to the conditions of this Agreement, Purchaser (or its applicable Permitted Designee) agrees, effective at the Closing, to assume and to satisfy, pay, perform and discharge when due all Liabilities of Seller recorded to the Reference Balance Sheet and its Affiliates all liabilities of Seller, to the extent relating to the Purchased Conveyed Assets and all Liabilities of Seller and its Affiliates primarily relating to or the Business, whether arising prior to or after the Closing, and whether accrued or fixed, known or unknown, absolute or contingent, matured or unmatured or determined or determinable as of the types recorded to the Reference Balance Sheet arising between the date of the Reference Balance Sheet and the Closing Date, other than Date in the Retained Liabilities ordinary course of business (all of the foregoing liabilities and obligations, together with the liabilities and obligations to be so assumed, satisfied or discharged set forth in the following sentence being herein collectively called the “Assumed Liabilities”). Assumed Liabilities shall include, including without limitation, the following (unless a Retained Liability):following:
(a) all Actions lawsuits and claims, to the extent resulting from the conduct of the Business or the ownership of the Equity Interests or the Purchased Assets prior toConveyed Assets, at on or after the ClosingClosing Date, including lawsuits and claims relating to any alleged Intellectual Property infringementexcept as expressly provided herein;
(b) all Liabilities, including all Actions to the extent Liabilities arising from the designmanufacture, constructiondistribution, testinguse, marketingimportation, service, operation offer for sale or sale of the any products and services of the Business prior to, at on or after the ClosingClosing Date, including indemnification or including, without limitation, warranty obligations and irrespective of any legal theory assertedship from stock and debit provisions;
(c) any Tax that may be imposed by any federal, state or local government on the ownership, sale, operation or use of the Conveyed Assets on or after the Closing Date, except for any income taxes attributable to income received by Seller and except for any and all Liabilities for Taxes related to the Business or the Conveyed Assets for taxable periods prior to and including the Closing Date, including all Pre-Closing Taxes (as defined in Section 7.13(b)) other obligations under than Taxes attributable to actions of Purchaser occurring after the Real Property Leases, Equipment Leases and the Assumed Contracts and all purchase orders in respect thereof included in the Purchased AssetsClosing;
(d) all accounts payable and other accrued expenses Liabilities of the Business, including accrued Taxes (solely with respect Business arising and to accrued Taxes, only to be performed from and after the extent included in Final Closing Working Capital and excluding accrued Income Taxes Date under or VATs, neither of which shall be included as an asset or liability in Final Closing Working Capital or assumed by Purchaser (or its applicable Permitted Designee)), and all Liabilities to suppliers for products and services relating to the Business prior to, at or after the Closing;Assumed Contracts; and
(e) all those Liabilities arising prior to, at or after the Closing under any Contracts with respect to Affected Employees that are assigned to expressly assumed by Purchaser pursuant to Section 2.2 at or subsequent to the Closing;
(f) all other Liabilities set forth in Schedule 2.4(f) 7.5. ** This portion of the Seller Disclosure Letter;
(g) all Assumed Environmental Liabilities;
(h) all (A) Liabilities relating Agreement is omitted and has been filed separately with the Securities and Exchange Commission pursuant to each Transferred Employee (or any dependent or beneficiary of any Transferred Employee) and (B) Liabilities with respect to Former Employees to the extent included as current liabilities in the Final Closing Working Capital, except, in each case, (i) the Retention Bonuses, (ii) the Retained U.S. Pension Plan Liability, (iii) the Retained German Pension Plan Liability, (iv) as set forth in Section 5.5 and (v) the Retained Employee Liabilities;
(i) all Liabilities with respect to the Assumed Plans, except as set forth in Section 5.5;
(j) all Assumed Debt;
(k) all reasonable out-of-pocket costs, expenses or fees arising out of or resulting from the transfer of (i) the Permits as described in Section 2.2(g) and (ii) the Intellectual Property Licenses and Information Technology Contracts as described in Section 2.2(c) and Section 2.2(e), as applicable;
(l) all employee-related Liabilities relating to or arising out of the previous reduction in force of Business Employees or Former Employees of the Kessel-lo facility as described on Schedule 2.4(l)(i) of the Seller Disclosure Letter or otherwise related to the integration of the Enterprise and Telecom businesses as described on Schedule 2.4(l)(ii) of the Seller Disclosure Letter, in an amount not to exceed $9,000,000 in the aggregate a request for confidential treatment. Purchaser’s obligations under this Section 2.4(l);
(m) all Liabilities for 2.4 shall not be subject to offset or with respect to Taxes for which Purchaser bears responsibility pursuant to Article VII; and
(n) all reduction by reason of any actual or alleged breach of any representation, warranty or covenant contained in this Agreement or any Schedule or Exhibit hereto, or any closing or other Liabilities that are not Retained Liabilities arising prior todocument contemplated by this Agreement or any Schedule or Exhibit hereto, at any right or after the Closing to the extent primarily relating to the ownership or operation alleged right of the Business, the Purchased Assets or the Conveyed Companies, including all Liabilities included in the Final Closing Working Capital. Notwithstanding anything herein to the contrary and for the avoidance of doubt, the fact that a Liability may fall under the definition of “Assumed Liabilities” and may have been assumed by Purchaser or its Affiliates indemnification hereunder, shall not in any respect prevent Purchaser or for any other Purchaser Indemnitees from seeking or receiving indemnification hereunder with respect to such Liability to the extent such Person is entitled to indemnification with respect to such Liability or obligation pursuant to the terms of Section 7.6 or Article VIIIreason.
Appears in 1 contract
Assumption of Certain Obligations of the Business. Upon the terms and subject to the conditions of this Agreement, Purchaser (or its applicable Permitted Designee) agrees, effective at the Closing, to assume and to satisfy, pay, perform and discharge when due all Liabilities of the Seller and its Affiliates Corporations to the extent relating solely to the Purchased Conveyed Assets or the Business and all Liabilities of Seller to cause the Conveyed Subsidiaries and its Affiliates primarily relating their Subsidiaries to the Businesssatisfy and discharge their respective Liabilities, whether arising on, prior to or after the ClosingClosing Date, and whether accrued or fixed, known or unknown, absolute or contingent, matured or unmatured or determined or determinable as of the Closing Date, other than the Retained Liabilities (all of the foregoing liabilities and obligations to be so assumed, satisfied or discharged being herein collectively called the “"Assumed Liabilities”"). Assumed Liabilities shall include, including without limitation, the following (unless a Retained Liability):following:
(a) all Actions lawsuits and claims commencing after the Closing Date to the extent resulting from the conduct of the Business or the ownership of the Equity Interests Shares or the Purchased Assets Conveyed Assets, prior to, at on or after the Closing, including lawsuits and claims relating to any alleged Intellectual Property infringementClosing Date;
(b) all Liabilities, including all Actions Liabilities for Taxes to the extent arising from accrued or reserved against in the design, construction, testing, marketing, service, operation or sale of the products and services of the Business prior to, at or after the Closing, including indemnification or warranty obligations and irrespective of any legal theory assertedWorking Capital Statement;
(c) all Liabilities and other obligations under arising from the Real Property Leasesmanufacture, Equipment Leases and the Assumed Contracts and all purchase orders in respect thereof included in the Purchased Assets;
(d) all accounts payable and other accrued expenses distribution or sale of the Business, including accrued Taxes (solely with respect to accrued Taxes, only to the extent included in Final Closing Working Capital and excluding accrued Income Taxes or VATs, neither any products of which shall be included as an asset or liability in Final Closing Working Capital or assumed by Purchaser (or its applicable Permitted Designee)), and all Liabilities to suppliers for products and services relating to the Business prior to, at or after the Closing;
(e) all Liabilities arising prior toon, at or after the Closing under any Contracts that are assigned to Purchaser pursuant to Section 2.2 at or subsequent to the Closing;
(f) all other Liabilities set forth in Schedule 2.4(f) of the Seller Disclosure Letter;
(g) all Assumed Environmental Liabilities;
(h) all (A) Liabilities relating to each Transferred Employee (or any dependent or beneficiary of any Transferred Employee) and (B) Liabilities with respect to Former Employees to the extent included as current liabilities in the Final Closing Working CapitalDate, exceptincluding, in each casewithout limitation, (i) the Retention Bonuses, (ii) the Retained U.S. Pension Plan Liability, (iii) the Retained German Pension Plan Liability, (iv) as set forth in Section 5.5 and (v) the Retained Employee Liabilities;
(i) all Liabilities with respect to the Assumed Plans, except as set forth in Section 5.5;
(j) all Assumed Debt;
(k) all reasonable out-of-pocket costs, expenses or fees arising out of or resulting from the transfer of (i) the Permits as described in Section 2.2(g) and (ii) the Intellectual Property Licenses and Information Technology Contracts as described in Section 2.2(c) and Section 2.2(e), as applicable;
(l) all employee-related Liabilities relating to or arising out of the previous reduction in force of Business Employees or Former Employees of the Kessel-lo facility as described on Schedule 2.4(l)(i) of the Seller Disclosure Letter or otherwise related to the integration of the Enterprise and Telecom businesses as described on Schedule 2.4(l)(ii) of the Seller Disclosure Letter, in an amount not to exceed $9,000,000 in the aggregate under this Section 2.4(l);
(m) all Liabilities for or with respect to Taxes for which Purchaser bears responsibility pursuant to Article VIIwarranty obligations; and
(nd) all other any Liabilities that are not Retained Liabilities arising prior to, at or after the Closing to the extent primarily relating to the ownership or operation of the BusinessSeller Corporations, the Purchased Assets or the Conveyed CompaniesSubsidiaries or their Subsidiaries (or, including all Liabilities included in the Final Closing Working Capital. Notwithstanding anything herein case of each of the foregoing, their respective Affiliates) to the contrary and for the avoidance Purchaser (or any Affiliate of doubt, the fact that a Liability may fall under the definition Purchaser) arising out of “Assumed Liabilities” and may have been assumed by any lawsuit with Purchaser or its Affiliates hereunder, shall not in any respect prevent Purchaser or any other Purchaser Indemnitees from seeking or receiving indemnification hereunder with respect to such Liability to the extent such Person is entitled to indemnification with respect to such Liability resulting from the conduct of the Business by any Seller Corporation or obligation pursuant Conveyed Subsidiary or their Affiliates prior to the terms of Section 7.6 or Article VIIIClosing Date, including, without limitation, the pending lawsuit with Purchaser listed on Schedule 5.8 hereto.
Appears in 1 contract
Assumption of Certain Obligations of the Business. Upon the terms and subject to the conditions of this Agreement, Purchaser (or its applicable Permitted Designee) agrees, effective at the Closing, to assume and to satisfy, pay, perform and discharge when due all Liabilities of Seller recorded to the Reference Balance Sheet and its Affiliates all liabilities of Seller, to the extent relating to the Purchased Conveyed Assets and all Liabilities of Seller and its Affiliates primarily relating to or the Business, whether arising prior to or after the Closing, and whether accrued or fixed, known or unknown, absolute or contingent, matured or unmatured or determined or determinable as of the types recorded to the Reference Balance Sheet arising between the date of the Reference Balance Sheet and the Closing Date, other than Date in the Retained Liabilities ordinary course of business (all of the foregoing liabilities and obligations, together with the liabilities and obligations to be so assumed, satisfied or discharged set forth in the following sentence being herein collectively called the “"Assumed Liabilities”"). Assumed Liabilities shall include, including without limitation, the following (unless a Retained Liability):following:
(a) all Actions lawsuits and claims, to the extent resulting from the conduct of the Business or the ownership of the Equity Interests or the Purchased Assets prior toConveyed Assets, at on or after the ClosingClosing Date, including lawsuits and claims relating to any alleged Intellectual Property infringementexcept as expressly provided herein;
(b) all Liabilities, including all Actions to the extent Liabilities arising from the designmanufacture, constructiondistribution, testinguse, marketingimportation, service, operation offer for sale or sale of the any products and services of the Business prior to, at on or after the ClosingClosing Date, including indemnification or including, without limitation, warranty obligations and irrespective of any legal theory assertedship from stock and debit provisions;
(c) any Tax that may be imposed by any federal, state or local government on the ownership, sale, operation or use of the Conveyed Assets on or after the Closing Date, except for any income taxes attributable to income received by Seller and except for any and all Liabilities for Taxes related to the Business or the Conveyed Assets for taxable periods prior to and including the Closing Date, including all Pre-Closing Taxes (as defined in Section 7.13(b)) other obligations under than Taxes attributable to actions of Purchaser occurring after the Real Property Leases, Equipment Leases and the Assumed Contracts and all purchase orders in respect thereof included in the Purchased AssetsClosing;
(d) all accounts payable and other accrued expenses Liabilities of the Business, including accrued Taxes (solely with respect Business arising and to accrued Taxes, only to be performed from and after the extent included in Final Closing Working Capital and excluding accrued Income Taxes Date under or VATs, neither of which shall be included as an asset or liability in Final Closing Working Capital or assumed by Purchaser (or its applicable Permitted Designee)), and all Liabilities to suppliers for products and services relating to the Business prior to, at or after the Closing;Assumed Contracts; and
(e) all those Liabilities arising prior to, at or after the Closing under any Contracts with respect to Affected Employees that are assigned to expressly assumed by Purchaser pursuant to Section 2.2 at or subsequent to the Closing;
(f) all other Liabilities set forth in Schedule 2.4(f) 7.5. ------------- ** This portion of the Seller Disclosure Letter;
(g) all Assumed Environmental Liabilities;
(h) all (A) Liabilities relating Agreement is omitted and has been filed separately with the Securities and Exchange Commission pursuant to each Transferred Employee (or any dependent or beneficiary of any Transferred Employee) and (B) Liabilities with respect to Former Employees to the extent included as current liabilities in the Final Closing Working Capital, except, in each case, (i) the Retention Bonuses, (ii) the Retained U.S. Pension Plan Liability, (iii) the Retained German Pension Plan Liability, (iv) as set forth in Section 5.5 and (v) the Retained Employee Liabilities;
(i) all Liabilities with respect to the Assumed Plans, except as set forth in Section 5.5;
(j) all Assumed Debt;
(k) all reasonable out-of-pocket costs, expenses or fees arising out of or resulting from the transfer of (i) the Permits as described in Section 2.2(g) and (ii) the Intellectual Property Licenses and Information Technology Contracts as described in Section 2.2(c) and Section 2.2(e), as applicable;
(l) all employee-related Liabilities relating to or arising out of the previous reduction in force of Business Employees or Former Employees of the Kessel-lo facility as described on Schedule 2.4(l)(i) of the Seller Disclosure Letter or otherwise related to the integration of the Enterprise and Telecom businesses as described on Schedule 2.4(l)(ii) of the Seller Disclosure Letter, in an amount not to exceed $9,000,000 in the aggregate a request for confidential treatment. Purchaser's obligations under this Section 2.4(l);
(m) all Liabilities for 2.4 shall not be subject to offset or with respect to Taxes for which Purchaser bears responsibility pursuant to Article VII; and
(n) all reduction by reason of any actual or alleged breach of any representation, warranty or covenant contained in this Agreement or any Schedule or Exhibit hereto, or any closing or other Liabilities that are not Retained Liabilities arising prior todocument contemplated by this Agreement or any Schedule or Exhibit hereto, at any right or after the Closing to the extent primarily relating to the ownership or operation alleged right of the Business, the Purchased Assets or the Conveyed Companies, including all Liabilities included in the Final Closing Working Capital. Notwithstanding anything herein to the contrary and for the avoidance of doubt, the fact that a Liability may fall under the definition of “Assumed Liabilities” and may have been assumed by Purchaser or its Affiliates indemnification hereunder, shall not in any respect prevent Purchaser or for any other Purchaser Indemnitees from seeking or receiving indemnification hereunder with respect to such Liability to the extent such Person is entitled to indemnification with respect to such Liability or obligation pursuant to the terms of Section 7.6 or Article VIIIreason.
Appears in 1 contract
Assumption of Certain Obligations of the Business. Upon the terms and subject to the conditions of this Agreement, Purchaser (or its applicable Permitted Designee) agrees, effective at the Closing, to assume and to satisfy, pay, perform satisfy and discharge when due all Liabilities of Seller and its Affiliates to the extent relating to the ownership, use or operation of the Purchased Assets and all Liabilities of Seller and its Affiliates primarily relating to or the Business, whether arising prior to to, at or after the Closing, and whether accrued or fixed, known or unknown, absolute or contingent, matured or unmatured or determined or determinable as of the Closing Date, other than the Retained Liabilities (all of the foregoing liabilities and obligations Liabilities to be so assumed, satisfied or discharged being herein collectively called the “Assumed Liabilities”), including . Assumed Liabilities shall include the following (unless a Retained Liability):following:
(a) all Actions lawsuits to the extent resulting from the conduct of the Business or the ownership of the Equity Interests or the Purchased Assets prior to, at or after the Closing, including lawsuits and claims relating to any alleged Intellectual Property infringement;
(b) all Liabilities, including all Actions to the extent lawsuits, arising from the design, construction, testing, marketing, service, operation or sale of the products and services of the Business prior to, at or after the Closing, including indemnification or warranty obligations and irrespective of any legal theory asserted, other than lawsuits arising under Environmental Laws, to the extent resulting from the conduct of the Business or the ownership of the Equity Interests or the Purchased Assets prior to or at the Closing;
(c) all Liabilities and other obligations arising prior to, at or after the Closing under the Real Property Leases, the Equipment Leases and the Assumed Contracts and (including all purchase orders in respect thereof thereof) included in the Purchased Assets;
(d) all accounts payable and other accrued expenses of the Business, including accrued Taxes (solely with respect to accrued Taxes, only to the extent included in Final Closing Working Capital and excluding other than accrued Income Taxes or VATs, neither Taxes) and Assumed Intercompany Payables (other than accounts payable of which shall be included as an asset or liability the Business described in Final Closing Working Capital or assumed by Purchaser (or its applicable Permitted DesigneeSection 2.5(a)(iii)), and all Liabilities to suppliers customers under purchase orders for products and services relating to of the Business prior to, which at or after the ClosingClosing have not yet been provided;
(e) all Liabilities set forth in Schedule 2.4(e) of the Seller Disclosure Letter;
(f) all Liabilities arising prior to, at or after the Closing under any Contracts that are assigned Environmental Law or relating to Purchaser pursuant to Section 2.2 at Hazardous Substances, in each case, arising in connection with the ownership, leasing, operation or subsequent use of the Purchased Assets, the Business, the Equity Interests, the Conveyed Entities, the property subject to the Closing;
(f) all other Liabilities set forth in Schedule 2.4(f) Sublease Agreement, the property subject to the Cork Sublease and any of the Seller Disclosure Letter“Premises” as defined in the Transition Services Agreement (other than any ownership, leasing, operation or use by Seller), including, without limitation, Liabilities relating to lease restoration, lease termination and asbestos-related asset retirement obligations;
(g) all Assumed Environmental Liabilities;
(h) all (A) Liabilities relating to each Transferred Employee (or any dependent or beneficiary of any Transferred Employee) and (B) Liabilities with respect to Former Business Employees (including Liabilities arising under any employment, consulting, severance or similar agreement or other obligation), except to the extent included as current liabilities provided otherwise in Sections 5.5 and 5.6 and other than Liabilities of the Final Closing Working Capitaltype described in Sections 2.5(a)(vii) through 2.5(a)(xii), exceptregardless of whether any such Liability is that of an Asset Selling Entity or a Conveyed Entity, and other than Liabilities relating to any Litigation brought by or on behalf of any Former Employee or Business Employee who does not become a Transferred Employee (or, in each case, any beneficiary thereof); provided that no provision of this Section 2.4(g) or Sections 2.5(a)(vii) through 2.5(a)(xii) shall be interpreted to relieve Purchaser of any obligation to Former Employees or Business Employees imposed by Transfer Regulations; and provided, further, that, for the avoidance of doubt, Litigation shall not include any legal proceeding or claim related to workers’ compensation or equal opportunity and brought by or on behalf of any Former Employee or Business Employee who does not become a Transferred Employee (i) or, in each case, any beneficiary thereof), the Retention Bonuses, (ii) Equal Employment Opportunity Commission or the Retained U.S. Pension Plan Liability, (iii) the Retained German Pension Plan Liability, (iv) as set forth in Section 5.5 and (v) the Retained Employee Liabilities;Office of Federal Contract Compliance; and
(i) all Liabilities with respect to the Assumed Plans, except as set forth in Section 5.5;
(j) all Assumed Debt;
(k) all reasonable out-of-pocket costs, expenses or fees arising out of or resulting from the transfer of (i) the Permits as described in Section 2.2(g) and (ii) the Intellectual Property Licenses and Information Technology Contracts as described in Section 2.2(c) and Section 2.2(e), as applicable;
(l) all employee-related Liabilities relating to or arising out of the previous reduction in force of Business Employees or Former Employees of the Kessel-lo facility as described on Schedule 2.4(l)(i) of the Seller Disclosure Letter or otherwise related to the integration of the Enterprise and Telecom businesses as described on Schedule 2.4(l)(ii) of the Seller Disclosure Letter, in an amount not to exceed $9,000,000 in the aggregate under this Section 2.4(l);
(mh) all Liabilities for or with respect to Taxes for which Purchaser bears responsibility pursuant to Article VII; and
(n) all other Liabilities that are not Retained Liabilities arising prior to, at or after the Closing to the extent primarily relating to the ownership or operation of the Business, the Purchased Assets or the Conveyed Companies, including all Liabilities included in the Final Closing Working Capital. Notwithstanding anything herein to the contrary and for the avoidance of doubt, the fact that a Liability may fall under the definition of “Assumed Liabilities” and may have been assumed by Purchaser or its Affiliates hereunder, shall not in any respect prevent Purchaser or any other Purchaser Indemnitees from seeking or receiving indemnification hereunder with respect to such Liability to the extent such Person is entitled to indemnification with respect to such Liability or obligation pursuant to the terms of Section 7.6 or Article VIII.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Tyco Electronics Ltd.)
Assumption of Certain Obligations of the Business. Upon the terms and subject to the conditions of this Agreement, Purchaser (or its applicable Permitted Designee) agrees, effective at the Closing, to assume and to satisfy, pay, perform and discharge when due all Liabilities of Seller and its Affiliates to the extent relating to the Purchased Conveyed Assets or the Business and all Liabilities arising in the ordinary course of Seller and its Affiliates primarily relating to business, other than the BusinessRetained Liabilities, whether arising prior to or after the Closing, and whether accrued or fixed, known or unknown, absolute or contingent, matured or unmatured or determined or determinable as of the Closing Date, other than the Retained Liabilities (all of the foregoing liabilities and obligations to be so assumed, satisfied or discharged being herein collectively called the “"Assumed Liabilities”"). Assumed Liabilities shall include, including without limitation, the following (unless a Retained Liability):following:
(a) all Actions to the extent resulting from the conduct indebtedness of the Business or evidenced by the ownership of the Equity Interests or the Purchased Assets prior to, at or after the Closing, including lawsuits and claims relating to any alleged Intellectual Property infringementagreements listed on Schedule 2.4(a);
(b) all Liabilitiesproduct warranty obligations limited to, including all Actions at Purchaser's option, repair, replace or provide product purchase price credit to the extent customers and contractual obligations with distributors for price adjustments or product repurchase, in each case arising from the designmanufacture, construction, testing, marketing, service, operation distribution or sale of the any products and services of the Business prior to, at on or after the ClosingClosing Date, including indemnification or warranty provided that in no event shall Purchaser's obligations and irrespective under this Section 2.4(b) be deemed to constitute the assignment of any legal theory assertedcontract, agreement or arrangement with any distributor or independent sales representative or of any rights thereunder, or the assumption by Purchaser of any obligations or duties under any such contract, agreement or arrangement except as expressly provided in this Section 2.4(b) or Section 2.4(f);
(c) all Liabilities and other obligations under any Tax that may be imposed by any Federal, State or local government on the Real Property Leasesownership, Equipment Leases and sale, operation or use of the Assumed Contracts and all purchase orders in respect thereof included in Conveyed Assets after the Purchased AssetsClosing Date, except for any income taxes attributable to income received by Seller;
(d) all accounts payable and other accrued expenses Liabilities of the Business, including accrued Taxes (solely with respect Business arising and to accrued Taxes, only be performed after the Closing Date under or relating to the extent included in Final Closing Working Capital and Assumed Contracts (but specifically excluding accrued Income Taxes breaches by Seller or VATs, neither any of which shall be included as an asset or liability in Final Closing Working Capital or assumed by Purchaser (or its applicable Permitted Designee)), and all Liabilities to suppliers for products and services Seller's Affiliates of any contracts relating to the Business prior to, at or after as a result of the Closingtransactions contemplated by this Agreement);
(e) all Liabilities arising prior to, at with respect to Employees who are Affected Employees or are otherwise employed by Purchaser after the Closing under Date (including, without limitation, any Contracts that are assigned to Purchaser pursuant to Section 2.2 at or subsequent Liabilities relating to the Closing;hiring, employment or termination of employment by Purchaser of any Employee or other individual, or with respect to vacation accruals or sick leave (in each case to the extent accrued in Closing Date Liabilities) and holiday accruals (whether or not accrued in the Closing Date Liabilities) consistent with Seller's policies as historically applied); and
(f) all other Liabilities set forth in Schedule 2.4(f) of the Seller Disclosure Letter;
(g) all Assumed Environmental Liabilities;
(h) all (A) Liabilities relating for commissions due to each Transferred Employee (or any dependent or beneficiary of any Transferred Employee) and (B) Liabilities independent sales representatives with respect to Former Employees orders placed prior to Closing and for which the extent included as current liabilities in customer has not yet been billed, provided the Final Closing Working Capitalrevenues associated with such order are recognized by Purchaser, except, in each case, (i) the Retention Bonuses, (ii) the Retained U.S. Pension Plan Liability, (iii) the Retained German Pension Plan Liability, (iv) as set forth in Section 5.5 and (v) the Retained Employee Liabilities;
(i) all Liabilities regardless of whether Purchaser assumes any agreement with respect to the Assumed Plans, except as set forth in Section 5.5;
(j) all Assumed Debt;
(k) all reasonable out-of-pocket costs, expenses or fees arising out of or resulting from the transfer of (i) the Permits as described in Section 2.2(g) and (ii) the Intellectual Property Licenses and Information Technology Contracts as described in Section 2.2(c) and Section 2.2(e), as applicable;
(l) all employee-related Liabilities relating to or arising out of the previous reduction in force of Business Employees or Former Employees of the Kessel-lo facility as described on Schedule 2.4(l)(i) of the Seller Disclosure Letter or otherwise related to the integration of the Enterprise and Telecom businesses as described on Schedule 2.4(l)(ii) of the Seller Disclosure Letter, in an amount not to exceed $9,000,000 in the aggregate such sales representative. Purchaser's obligations under this Section 2.4(l);
(m) all Liabilities for 2.4 will not be subject to offset or with respect to Taxes for which Purchaser bears responsibility pursuant to Article VII; and
(n) all reduction by reason of any actual or alleged breach of any representation, warranty or covenant contained in this Agreement or any Schedule or Exhibit hereto, or any closing or other Liabilities that are not Retained Liabilities arising prior todocument contemplated by this Agreement or any Schedule or Exhibit hereto, at any right or after the Closing to the extent primarily relating to the ownership or operation alleged right of the Business, the Purchased Assets or the Conveyed Companies, including all Liabilities included in the Final Closing Working Capital. Notwithstanding anything herein to the contrary and for the avoidance of doubt, the fact that a Liability may fall under the definition of “Assumed Liabilities” and may have been assumed by Purchaser or its Affiliates indemnification hereunder, shall not in any respect prevent Purchaser or for any other Purchaser Indemnitees from seeking or receiving indemnification hereunder with respect to such Liability to the extent such Person is entitled to indemnification with respect to such Liability or obligation pursuant to the terms of Section 7.6 or Article VIIIreason.
Appears in 1 contract
Samples: Asset Purchase Agreement (Fairchild Semiconductor International Inc)
Assumption of Certain Obligations of the Business. Upon the terms and subject to the conditions of this Agreement, Purchaser (or its applicable Permitted Designee) agrees, effective at the Closing, to (or to cause its permitted assignees to) assume and to satisfy, pay, perform satisfy and discharge when due all Liabilities of Seller and its Affiliates the Asset Selling Entities to the extent relating to the Purchased Assets and all Liabilities of Seller and its Affiliates primarily relating to or the Business, whether arising prior to or after the Closing, and whether accrued or fixed, known or unknown, absolute or contingent, matured or unmatured or determined or determinable as of the Closing Date, other than the Retained Liabilities (all of the foregoing liabilities and obligations to be so assumed, satisfied or discharged being herein collectively called the “Assumed Liabilities”), including all of the following (unless a Retained Liability):Asset Selling Entities’ Liabilities:
(a) other than any Liabilities which are Retained Liabilities under Section 2.6(j), all Actions lawsuits to the extent resulting from the conduct of the Business or the ownership of the Equity Interests L Tape Product Line or the Purchased Assets prior to, at or after the Closing, including any such lawsuits and claims relating to any alleged Intellectual Property infringement;
(b) other than any Liabilities which are Retained Liabilities under Section 2.6(j), all Liabilities, including all Actions to the extent lawsuits, arising from the design, construction, testing, marketing, service, operation or sale of the products and services of the Business or the L Tape Product Line prior to, at or after the Closing, including indemnification or warranty obligations and irrespective of any the legal theory asserted;
(c) all Liabilities and other obligations under the Real Property Leases, Equipment Leases and the Assumed Contracts and (including all purchase orders in respect thereof thereof) included in the Purchased Assets;
(d) all accounts payable and other accrued expenses of the Business, including accrued Taxes (solely with respect to accrued Taxes, only to the extent included in Final Closing Working Capital and excluding accrued Income Taxes or VATs, neither of which shall be included as an asset or liability in Final Closing Working Capital or assumed by Purchaser (or its applicable Permitted Designee)), Business and all Liabilities to suppliers for products and services to the extent relating to the Business ordered in the ordinary course of the Business prior to, at or after to the Closing, and all Liabilities to customers under purchase orders for products of the Business or the L Tape Product Line which at Closing have not yet been provided;
(e) all Liabilities arising prior to, at to or after the Closing under any Contracts that are assigned to Purchaser pursuant to Section 2.2 or Section 2.7 at or subsequent to the Closing;
(f) all other Liabilities set forth in Schedule 2.4(f) of the Seller Disclosure Letter2.5(f);
(g) subject to Section 2.6(l), all Assumed Liabilities arising prior to or after the Closing under any Environmental LiabilitiesLaw only with respect to the Owned Real Property and the Leased Real Property;
(h) all (A) Liabilities relating to each Transferred Employee (or any dependent or beneficiary of any Transferred Employee) and (B) Liabilities with respect to Former Transferred Employees (other than Liabilities which are Retained Liabilities under Sections 2.6(g), 2.6(h) or 2.6(j) or are under any Seller Benefit Plan (except as provided in Sections 5.4 or 5.5) or other Liabilities retained by Seller or Seller Entities pursuant to the extent included as current liabilities in the Final Closing Working Capital, except, in each case, (i) the Retention Bonuses, (ii) the Retained U.S. Pension Plan Liability, (iii) the Retained German Pension Plan Liability, (iv) as set forth in Section 5.5 and (v) the Retained Employee LiabilitiesSections 5.4 or 5.5);
(i) 50% of the Retention Payments;
(j) all Liabilities with respect to the Assumed Plans and Foreign Plans, except as set forth in Section 5.5;
(j) all Assumed Debt;; and
(k) all reasonable out-of-pocket costs, expenses or fees arising out of or resulting from the transfer of (i) the Permits as described in Section 2.2(g) and (ii) the Intellectual Property Licenses and Information Technology Contracts as described in Section 2.2(c) and Section 2.2(e), as applicable;
(l) all employee-related Liabilities relating to or arising out of the previous reduction in force of Business Employees or Former Employees of the Kessel-lo facility as described on Schedule 2.4(l)(i) of the Seller Disclosure Letter or otherwise related to the integration of the Enterprise and Telecom businesses as described on Schedule 2.4(l)(ii) of the Seller Disclosure Letter, in an amount not to exceed $9,000,000 in the aggregate under this Section 2.4(l);
(m) all Liabilities for or with respect to Taxes for which Purchaser bears responsibility pursuant to Article VII; and
(n) all other Liabilities that are not Retained Liabilities arising prior to, at or after the Closing to the extent primarily relating to the ownership or operation of the Business, the Purchased Assets or the Conveyed Companies, including all Liabilities included in the Final Closing Date Working Capital. Notwithstanding anything herein to the contrary and for the avoidance of doubt, the fact that a Liability may fall under the definition of “Assumed Liabilities” and may have been assumed by Purchaser or its Affiliates hereunder, shall not in any respect prevent Purchaser or any other Purchaser Indemnitees from seeking or receiving indemnification hereunder with respect to such Liability to the extent such Person is entitled to indemnification with respect to such Liability or obligation pursuant to the terms of Section 7.6 or Article VIII.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Tyco International LTD /Ber/)
Assumption of Certain Obligations of the Business. Upon the terms and subject to the conditions of this Agreement, Purchaser (or its applicable Permitted Designee) agrees, effective at the Closing, to assume and to satisfy, pay, perform satisfy and discharge when due all Liabilities of Seller and its Affiliates VitalWorks, other than the Retained Liabilities, to the extent relating to the Purchased Assets and all Liabilities of Seller and its Affiliates primarily relating to or the Business, whether arising prior that arise, and relate to a period, on or after the Closing, and whether accrued or fixed, known or unknown, absolute or contingent, matured or unmatured or determined or determinable as of together with the Closing Date, other than the Retained following Liabilities (all of the foregoing such liabilities and obligations to be so assumed, satisfied or discharged being herein collectively called the “"Assumed Liabilities”), including the following (unless a Retained Liability"):
(a) all Actions Liabilities reflected on the Closing Date Balance Sheet;
(b) any Liability to the Division's customers incurred by the Division in the Ordinary Course of Business outstanding as of the Closing Date (other than any Liability arising out of or relating to a breach that occurred prior to the Closing Date except for matters listed in Schedule 2.4(i));
(c) any Liability to customers under written warranties set forth in the Customer Contracts given to customers in the Ordinary Course of Business prior to the Closing Date (other than any Liability arising out of or relating to a breach that occurred prior to the Closing Date);
(d) any Liability to be paid or performed on or after the Closing Date under the Assumed Contracts (other than any Liability arising out of or relating to a breach that occurred prior to the Closing Date);
(e) all lawsuits commenced and claims made after the Closing to the extent resulting from the conduct of the Business or the ownership of the Equity Interests or the Purchased Assets prior to, at or after the Closing, including lawsuits and claims relating to any alleged Intellectual Property infringement;
(bf) all Liabilities, including all Actions Liabilities for sales and use Taxes to the extent arising from accrued or reserved against in the design, construction, testing, marketing, service, operation or sale of the products and services of the Business prior to, at or after the Closing, including indemnification or warranty obligations and irrespective of any legal theory assertedWorking Capital Statement;
(cg) all Environmental Liabilities and other obligations under the Real Property Leases, Equipment Leases and the Assumed Contracts and all purchase orders in respect thereof included in the Purchased Assets;
(d) all accounts payable and other accrued expenses of the Business, including accrued Taxes (solely with respect to accrued Taxes, only to the extent included in Final Closing Working Capital and excluding accrued Income Taxes or VATs, neither of which shall be included as an asset or liability in Final Closing Working Capital or assumed by Purchaser (or its applicable Permitted Designee)), and all Liabilities to suppliers for products and services relating to the Business prior to, at or arising after the Closing;
(eh) all Liabilities arising prior to, at or after the Closing under any Contracts that are assigned to Purchaser pursuant to Section 2.2 at or subsequent to the Closing;
(f) all other Liabilities set forth in Schedule 2.4(f) of the Seller Disclosure Letter;
(g) all Assumed Environmental Liabilities;
(h) all (A) Liabilities relating to each Transferred Employee (or any dependent or beneficiary of any Transferred Employee) and (B) Liabilities Employees with respect to Former Employees to periods after the extent included as current liabilities in the Final Closing Working Capital, except, in each case, (i) the Retention Bonuses, (ii) the Retained U.S. Pension Plan Liability, (iii) the Retained German Pension Plan Liability, (iv) as set forth in Section 5.5 and (v) the Retained Employee Liabilities;
(i) all Liabilities with respect to the Assumed PlansClosing, except as set forth in Section 5.5;
(j) all Assumed Debt;
(k) all reasonable out-of-pocket costs, expenses or fees arising out of or resulting from the transfer of (i) the Permits as described in Section 2.2(g) and (ii) the Intellectual Property Licenses and Information Technology Contracts as described in Section 2.2(c) and Section 2.2(e), as applicable;
(l) all employee-related Liabilities relating to or arising out of the previous reduction in force of Business Employees or Former Employees of the Kessel-lo facility as described on Schedule 2.4(l)(i) of the Seller Disclosure Letter or otherwise related to the integration of the Enterprise and Telecom businesses as described on Schedule 2.4(l)(ii) of the Seller Disclosure Letter, in an amount not to exceed $9,000,000 in the aggregate under this Section 2.4(l);
(m) all Liabilities for or with respect to Taxes for which Purchaser bears responsibility pursuant to Article VII7.4; and
(ni) Liabilities resulting from all other Liabilities that are not Retained Liabilities arising prior to, at or after lawsuits pending as of the Closing to the extent primarily relating to the ownership or operation of the Business, the Purchased Assets or the Conveyed Companies, including all Liabilities included in the Final Closing Working Capital. Notwithstanding anything herein to the contrary and for the avoidance of doubt, the fact that a Liability may fall under the definition of “Assumed Liabilities” and may have been assumed by Purchaser or its Affiliates hereunder, shall not in any respect prevent Purchaser or any other Purchaser Indemnitees from seeking or receiving indemnification hereunder with respect to such Liability to the extent such Person is entitled to indemnification with respect to such Liability or obligation pursuant to the terms of Section 7.6 or Article VIIIlisted on Schedule 2.4(i).
Appears in 1 contract
Assumption of Certain Obligations of the Business. Upon the terms and subject to the conditions of this Agreement, Purchaser (or its applicable Permitted Designee) agrees, effective at the Closing, to that it shall, or shall cause a Permitted Designee to, assume and to satisfy, pay, perform and discharge when due all Liabilities of Seller and its Affiliates to the extent relating to the Purchased Assets and all Liabilities of Seller and its Affiliates primarily relating to or the Business, whether arising prior to or after the Closing, and whether accrued or fixed, known or unknown, absolute or contingent, matured or unmatured or determined or determinable as of the Closing Date, other than the Retained Liabilities (all of the foregoing liabilities and obligations to be so assumed, satisfied or discharged being herein collectively called the “Assumed Liabilities”); provided that (i) any Assumed Liability that is a Liability of a Conveyed Company as of the Closing shall remain a Liability of such Conveyed Company and (ii) Purchaser and its applicable Permitted Designees are assuming only the Assumed Liabilities. Without limiting the generality of the foregoing, including Assumed Liabilities shall include, without limitation, the following (unless a Retained Liability):following:
(a) all Actions to the extent resulting from the conduct of the Business or the ownership of the Equity Interests or the ownership or operation of the Purchased Assets prior to, at or after the Closing, including lawsuits and claims relating to any alleged Intellectual Property infringement, but in each case other than Actions to the extent relating to (i) Retained Liabilities or (ii) the matter set forth on Schedule 2.4(a);
(b) all Liabilities, including all Actions Actions, to the extent arising from the design, construction, testing, marketing, service, operation or sale of the products and services of the Business prior to, at or after the Closing, including indemnification or warranty obligations and irrespective of any legal theory asserted, in each case other than Liabilities that are Retained Liabilities;
(c) all Liabilities and other obligations under the Real Property Leases, Equipment Leases and the Assumed Contracts Contracts, and all purchase orders in respect thereof included in the Purchased Assets;
(d) all accounts payable and other accrued expenses of the Business, (including accrued non-Income Taxes (solely with respect to accrued Taxes, only to the extent included in Final Closing Working Capital and but excluding accrued Income Taxes or VATs, neither of which shall be included as an asset or liability in Final Closing Working Capital or assumed by Purchaser (or its applicable Permitted Designee)Taxes), and all Liabilities to suppliers for products and services relating to the Business prior to, at or after the Closing;
(e) all Liabilities arising prior to, at or after the Closing under any Contracts that are assigned to Purchaser pursuant to Section 2.1, Section 2.2 or Section 2.7 at or subsequent to the Closing;
(f) all other Liabilities set forth in Schedule 2.4(f2.4(f) of the Seller Disclosure Letter;
(g) all Assumed Liabilities arising prior to, at or after the Closing relating to any Environmental LiabilitiesLaw or Hazardous Substance, to the extent relating to (i) any Purchased Asset or the Business (as currently or formerly conducted), (ii) any property or assets now or previously owned, leased or operated by the Business (as currently or formerly conducted) or any Asset Selling Entity or its predecessors (in each case, to the extent relating to the Purchased Assets or the Business (as currently or formerly conducted)) or (iii) any off-site disposal of waste by the Business (as currently or formerly conducted) or from a Purchased Asset, in each case to the extent relating to the Purchased Assets or the Business;
(h) (i) all (A) Liabilities relating to each Transferred Employee (or any dependent or beneficiary of any Transferred Employee) and (B) Liabilities with respect to Former Transferred Employees (including Liabilities with respect to any Business Benefit Plan, including for the extent included as current liabilities in the Final Closing Working Capital, except, in each case, (i) the Retention Bonusesavoidance of doubt any Business Benefit Plan that is a Retained Benefit Plan), (ii) the Retained U.S. Pension Plan LiabilityDeal Related Severance (to the extent provided therein) and Labor Related Payments, and (iii) the Retained German Identified Pension Plan LiabilityObligations, but excluding (w) Liabilities relating to health and welfare, workers compensation and similar benefits provided under Business Benefit Plans that cannot be attributed to specific Transferred Employees (the “Unattributable Employee Liabilities”), (iv) as set forth in Section 5.5 and (vx) the Retained Severance, (y) the Retention Bonuses and (z) Liabilities relating to the Business Benefit Plans set forth on Schedule 2.4(h) of the Seller Disclosure Letter (the Liabilities described in clauses (w) through (z), the “Excluded Employee Liabilities”);
(i) all Liabilities with respect to the Assumed Plans and the Conveyed Company Benefit Plans, except as set forth in Section 5.5;
(j) all Assumed Debt;
(k) all reasonable out-of-pocket costs, expenses or fees arising out of or resulting from the transfer of (i) the Permits as described in Section 2.2(g) and (ii) the Intellectual Property Licenses and Information Technology Contracts as described in Section 2.2(c) and Section 2.2(e), as applicable;
(l) all employee-related Liabilities relating to or arising out of the previous reduction in force of Business Employees or Former Employees of the Kessel-lo facility as described on Schedule 2.4(l)(i) of the Seller Disclosure Letter or otherwise related to the integration of the Enterprise and Telecom businesses as described on Schedule 2.4(l)(ii) of the Seller Disclosure Letter, in an amount not to exceed $9,000,000 in the aggregate under this Section 2.4(l);
(m) all Liabilities for or with respect to Taxes for which Purchaser bears responsibility pursuant to Article VII; andVII;
(nk) all other Liabilities that are not Retained Liabilities arising prior to, at or after the Closing to the extent primarily relating to the ownership or operation of the Business, Business or the Purchased Assets or the Conveyed CompaniesAssets, including all Liabilities included in the Final Closing Working Capital. Notwithstanding anything herein to the contrary and for the avoidance of doubt, the fact that a Liability may fall ; and
(l) all Liabilities under the definition portion of “Assumed Liabilities” and may have been assumed by Purchaser or its Affiliates hereunder, shall not in any respect prevent Purchaser or any other Purchaser Indemnitees from seeking or receiving indemnification hereunder with respect to such Liability Commingled Contract to the extent such Person is entitled to indemnification with respect to such Liability or obligation pursuant relating to the terms of Section 7.6 or Article VIIIBusiness.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Littelfuse Inc /De)
Assumption of Certain Obligations of the Business. Upon In addition to the transfer of the Conveyed Companies, and thereby the Liabilities thereof pursuant to Section 2.1, upon the terms and subject to the conditions of this Agreement, Purchaser (or its applicable Permitted Designee) agrees, effective at the Closing, to assume and to satisfy, pay, perform satisfy and discharge when due all Liabilities of Seller and its Affiliates to the extent relating to the Purchased Assets and all or the Business (except for the Liabilities of Seller and its Affiliates primarily relating to the BusinessConveyed Companies, which will remain Liabilities of the Conveyed Companies), whether arising prior to or after the Closing, and whether accrued or fixed, known or unknown, absolute or contingent, matured or unmatured or determined or determinable as of the Closing Date, other than the Retained Liabilities (all of the foregoing liabilities and obligations to be so assumed, satisfied or discharged being herein collectively called the “Assumed Liabilities”), including . Assumed Liabilities shall include the following (unless a Retained Liability):following:
(a) all Actions lawsuits to the extent resulting from the conduct of the Business or the ownership of the Equity Interests or the Purchased Assets prior to, at or after the Closing, including lawsuits and claims relating to any alleged Intellectual Property infringementinfringement except for Excluded Employee Liabilities;
(b) all Liabilities, including all Actions to the extent lawsuits arising from the design, construction, testing, marketing, service, operation or sale of the products and services of the Business prior to, at or after the Closing, including indemnification or warranty obligations but excluding Excluded Warranty Obligations and irrespective of any legal theory asserted;
(c) all Liabilities and other obligations under the Real Property Leases, Equipment Leases and the Assumed Contracts and (including all purchase orders in respect thereof thereof) included in the Purchased Assets;
(d) all accounts payable and other accrued expenses of relating to the Business, including accrued Taxes (solely with respect to accrued Taxes, only to the extent included in Final Closing Working Capital and excluding other than accrued Income Taxes Taxes) and Assumed Intercompany Payables (except for any accounts and notes payable not able to be specifically identified as accounts or VATs, neither notes payable of which shall be included as an asset or liability in Final Closing Working Capital or assumed by Purchaser (or its applicable Permitted Designee)the Business), and all Liabilities to suppliers for products and services relating to the Business prior to, at or after the Closing, and all Liabilities to customers under purchase orders for products of the Business which at Closing have not yet been provided;
(e) all Liabilities arising prior to, at or after the Closing under any Contracts that are assigned to Purchaser pursuant to Section 2.2 or Section 2.6 at or subsequent to the Closing;
(f) all other Liabilities set forth in Schedule 2.4(f) of the Seller Disclosure Letter;
(g) all Assumed Environmental LiabilitiesLiabilities with respect to Asset Selling Entity Employees (except with respect to any Retention Bonus for such Asset Selling Entity Employees);
(h) all (A) Liabilities relating to each Transferred Employee (or any dependent or beneficiary of any Transferred Employee) and (B) Liabilities with respect to Former Employees to the extent included as current liabilities in the Final Closing Working Capital, except, in each case, (i) the Retention Bonuses, (ii) the Retained U.S. Pension Plan Liability, (iii) the Retained German Pension Plan Liability, (iv) as set forth in Section 5.5 and (v) the Retained Employee Liabilities;
(i) all Liabilities with respect to the Assumed Plans, except as set forth in Section 5.5;
(j) all Assumed Debt;
(k) all reasonable out-of-pocket costs, expenses or fees arising out of or resulting from the transfer of (i) the Permits as described in Section 2.2(g) and (ii) the Intellectual Property Licenses and Information Technology Contracts as described in Section 2.2(c) and Section 2.2(e), as applicable;
(l) all employee-related Liabilities relating to or arising out of the previous reduction in force of Business Employees or Former Employees of the Kessel-lo facility as described on Schedule 2.4(l)(i) of the Seller Disclosure Letter or otherwise related to the integration of the Enterprise and Telecom businesses as described on Schedule 2.4(l)(ii) of the Seller Disclosure Letter, in an amount not to exceed $9,000,000 in the aggregate under this Section 2.4(l);
(m) all Liabilities for or with respect to Taxes for which Purchaser bears responsibility pursuant to Article VII; and
(ni) all other Liabilities that are not Retained Liabilities arising prior to, at or after the Closing to the extent primarily relating to the ownership or operation of the Business, Business or the Purchased Assets or the Conveyed CompaniesAssets, including all Liabilities included in the Final Closing Date Working Capital. Notwithstanding anything herein to the contrary and for For the avoidance of doubt, the fact parties acknowledge and agree that a Liability may fall under the definition Purchaser’s assumption of “Assumed Liabilities” and may have been assumed by Purchaser or its Affiliates hereunder, shall not in any respect prevent Purchaser or any other Purchaser Indemnitees from seeking or receiving indemnification hereunder with respect to such Liability to the extent such Person is entitled to indemnification with respect to such Liability or obligation Liabilities pursuant to this Section 2.4 does not obviate or otherwise affect Purchaser’s ability to make claims hereunder for any breach of Seller’s representations and warranties hereunder. For the terms avoidance of doubt, the Assumed Liabilities listed in Sections 2.4(a)-2.4(i) do not include any Liabilities of the Conveyed Companies, which are addressed in Section 7.6 or Article VIII2.1.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Preformed Line Products Co)
Assumption of Certain Obligations of the Business. Upon the terms and subject to the conditions of this Agreement, Purchaser (or its applicable Permitted Designee) agrees, effective at the Closing, to assume and to satisfy, pay, perform satisfy and discharge when due all Liabilities of Seller and its Affiliates the Asset Selling Corporations to the extent relating to the Purchased Assets or the Business and all Liabilities of Seller to cause the Conveyed Companies to satisfy and its Affiliates primarily relating to the Businessdischarge their respective Liabilities, whether arising prior to or after the Closing, and whether accrued or fixed, known or unknown, absolute or contingent, matured or unmatured or determined or determinable as of the Closing Date, other than the Retained Liabilities (all of the foregoing liabilities and obligations to be so assumed, satisfied or discharged being herein collectively called the “Assumed Liabilities”). Assumed Liabilities shall include, including but not be limited to, the following (unless a Retained Liability):following:
(a) except as specified in Section 2.6(b)(ii), all Actions lawsuits commenced and claims made after the Closing to the extent resulting from the conduct of the Business or the ownership of the Equity Interests Shares or the Purchased Assets prior to, at to or after the Closing, including lawsuits and claims relating to any alleged Intellectual Property infringement;
(b) all Liabilities for Taxes to the extent accrued or reserved against in the Working Capital Statement;
(c) except as provided in Section 2.6(g), all Liabilities, including all Actions lawsuits commenced and all claims made prior to or after the extent Closing, arising from the design, constructionmanufacture, testing, marketing, service, operation distribution or sale of the any products and services of the Business prior to, at to or after the Closing, including indemnification or warranty obligations and irrespective of any the legal theory asserted;
(c) all Liabilities and other obligations under the Real Property Leases, Equipment Leases and the Assumed Contracts and all purchase orders in respect thereof included in the Purchased Assets;
(d) all accounts payable and other accrued expenses of the Business, including accrued Taxes (solely with respect to accrued Taxes, only to the extent included in Final Closing Working Capital and excluding accrued Income Taxes or VATs, neither of which shall be included as an asset or liability in Final Closing Working Capital or assumed by Purchaser (or its applicable Permitted Designee)), and all Liabilities to suppliers for products materials and services relating to the Business ordered in the ordinary course of business prior toto the Closing, but scheduled to be delivered or provided thereafter, and all Liabilities to customers under purchase orders for products of the Business which have not yet been shipped at or after the Closing;
(e) all Liabilities arising prior to, at to or after the Closing under any Contracts contracts, agreements, leases, licenses or commitments that are assigned to Purchaser pursuant to Section 2.1, 2.2 or 2.3 at or subsequent to the Closing;
(f) all other Liabilities set forth in Schedule 2.4(f) with respect to products of the Seller Disclosure LetterBusiness returned prior to or after the Closing;
(g) all Assumed Environmental Liabilities, whether arising prior to or after the Closing, other than the Excluded Environmental Liabilities;
(h) all (A) Liabilities relating to each Transferred Employee (or any dependent or beneficiary of any Transferred Employee) and (B) Liabilities with respect to Former Employees to accruing after the extent included Closing, except as current liabilities otherwise provided in the Final Closing Working Capital, except, in each case, (i) the Retention Bonuses, (ii) the Retained U.S. Pension Plan Liability, (iii) the Retained German Pension Plan Liability, (iv) as set forth in Section 5.5 and (v) the Retained Employee Liabilities;this Agreement; and
(i) all Liabilities with respect to the Assumed Plans, except as set forth in Section 5.5;
(j) all Assumed Debt;
(k) all reasonable out-of-pocket costs, expenses or fees arising out of or resulting from the transfer of (i) the Permits as described in Section 2.2(g) and (ii) the Intellectual Property Licenses and Information Technology Contracts as described in Section 2.2(c) and Section 2.2(e), as applicable;
(l) all employee-related Liabilities relating to or arising out of the previous reduction in force of Business Employees or Former Employees of the Kessel-lo facility as described on Schedule 2.4(l)(i) of the Seller Disclosure Letter or otherwise related to the integration of the Enterprise and Telecom businesses as described on Schedule 2.4(l)(ii) of the Seller Disclosure Letter, in an amount not to exceed $9,000,000 in the aggregate under this Section 2.4(l);
(m) all Liabilities for or with respect to Taxes for which Purchaser bears responsibility pursuant to Article VII; and
(n) all other Liabilities that are not Retained Liabilities arising prior to, at to or after the Closing to the extent primarily relating to the ownership or operation of the Business, the Purchased Assets or the Conveyed Companies, including all Liabilities included in the Final Closing Working Capital. Notwithstanding anything herein Back to the contrary and for the avoidance of doubt, the fact that a Liability may fall under the definition of “Assumed Liabilities” and may have been assumed by Purchaser or its Affiliates hereunder, shall not in any respect prevent Purchaser or any other Purchaser Indemnitees from seeking or receiving indemnification hereunder with respect to such Liability to the extent such Person is entitled to indemnification with respect to such Liability or obligation pursuant to the terms of Section 7.6 or Article VIII.Contents
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Cadbury Schweppes Public LTD Co)
Assumption of Certain Obligations of the Business. Upon the terms and subject to the conditions of this Agreement, Purchaser (or its applicable Permitted Designee) agrees, effective at the Closing, to (i) assume and and, subject to satisfyArticle VII, pay, perform to satisfy and discharge when due any and all Liabilities of Seller and its Affiliates the Sellers or any of their Affiliates, to the extent relating to to, resulting from, or arising out of, the past, present or future operation or conduct of the Business or ownership or use of the Purchased Assets and all Liabilities of Seller and its Affiliates primarily relating to or the BusinessShares, whether arising prior to to, on or after the Closing, and whether accrued or unaccrued, fixed, known or unknown, absolute or contingent, matured or unmatured or determined or determinable as of the Closing Date, other than the Excluded Assets, Retained Liabilities and the Retained Businesses and (ii) without limiting the applicable provision of Article VII, cause the Conveyed Subsidiaries and their Subsidiaries to satisfy and discharge their respective Liabilities (all of the foregoing liabilities and obligations Liabilities being collectively referred to be so assumedherein as, satisfied or discharged being herein collectively called the “Assumed Liabilities”). Assumed Liabilities shall include the following:
a. all Liabilities assumed by, retained by or agreed to be performed by Purchaser or its Affiliates (including the following (unless a Retained Liability):
(aConveyed Subsidiaries) all Actions pursuant to the extent resulting from the conduct terms of the Business this Agreement or the ownership of the Equity Interests or the Purchased Assets prior to, at or after the Closing, including lawsuits and claims relating to any alleged Intellectual Property infringementAncillary Agreement;
(b) all Liabilities, including all Actions to the extent arising from the design, construction, testing, marketing, service, operation or sale of the products and services of the Business prior to, at or after the Closing, including indemnification or warranty obligations and irrespective of any legal theory asserted;
(c) all Liabilities and other obligations under the Real Property Leases, Equipment Leases and the Assumed Contracts and all purchase orders in respect thereof included in the Purchased Assets;
(d) all accounts payable and other accrued expenses of the Business, including accrued Taxes (solely with respect to accrued Taxes, only to the extent included in Final Closing Working Capital and excluding accrued Income Taxes or VATs, neither of which shall be included as an asset or liability in Final Closing Working Capital or assumed by Purchaser (or its applicable Permitted Designee)), and all Liabilities to suppliers for products and services relating to the Business prior to, at or after the Closing;
(e) all Liabilities arising prior to, at or after the Closing under any Contracts that are assigned to Purchaser pursuant to Section 2.2 at or subsequent to the Closing;
(f) all other Liabilities set forth in Schedule 2.4(f) of the Seller Disclosure Letter;
(g) all Assumed Environmental Liabilities;
(h) all (A) Liabilities relating to each Transferred Employee (or any dependent or beneficiary of any Transferred Employee) and (B) Liabilities with respect to Former Employees to the extent included as current liabilities in the Final Closing Working Capital, except, in each case, (i) the Retention Bonuses, (ii) the Retained U.S. Pension Plan Liability, (iii) the Retained German Pension Plan Liability, (iv) as set forth in Section 5.5 and (v) the Retained Employee Liabilities;
(i) all Liabilities b. except with respect to the Assumed Plans, except as Liabilities set forth in on Section 5.5;
(j) all Assumed Debt;
(k) all reasonable out-of-pocket costs, expenses or fees arising out of or resulting from the transfer of (i) the Permits as described in Section 2.2(g) and (ii) the Intellectual Property Licenses and Information Technology Contracts as described in Section 2.2(c) and Section 2.2(e), as applicable;
(l) all employee-related Liabilities relating to or arising out of the previous reduction in force of Business Employees or Former Employees of the Kessel-lo facility as described on Schedule 2.4(l)(i) of the Seller Disclosure Letter or otherwise related to the integration of the Enterprise and Telecom businesses as described on Schedule 2.4(l)(ii2.6(k) of the Seller Disclosure Letter, all Liabilities in an amount respect of any pending or threatened Action, whether class, individual or otherwise in nature, in law or in equity, whether or not presently asserted, arising out of, or to exceed $9,000,000 the extent Relating to the Business or the operation or conduct of the Business at any time;
c. all Liabilities for Taxes in Section 6.6(e)(ii) of the aggregate under this Conveyed Subsidiaries and their Subsidiaries and all other Liabilities for Taxes relating to the Purchased Assets or the Business with respect to a Post-Closing Tax Period, except for such Liabilities for Taxes which are borne by the Sellers or any of their Affiliates pursuant to Section 2.4(l6.6(e)(i);
(m) d. all Liabilities, including all Actions commenced or otherwise made prior to, on or after the Closing, arising from the design, manufacture, testing, marketing, distribution, use, or sale of Products prior to, on or after the Closing, including warranty obligations and irrespective of the legal theory asserted;
e. all Liabilities to suppliers for materials and services Relating to the Business ordered in the ordinary course of business consistent with past practice prior to the Closing, including those scheduled to be delivered or with respect provided thereafter, and all Liabilities to Taxes customers under purchase orders for which Purchaser bears responsibility pursuant Products that have not yet been shipped at the Closing, other than any Accounts Payable arising prior to Article VII; andthe Closing;
(n) f. Accounts Payable arising from and after the Closing;
g. all other Liabilities that are not Retained Liabilities arising prior to, at on or after the Closing under any Contracts, sales orders, purchase orders, instruments or other commitments, obligations or arrangements that are assigned to Purchaser or a Purchaser Designated Affiliate pursuant to Sections 2.1, 2.2 or 2.3 at or subsequent to the Closing Date, other than any Shared Contractual Liabilities allocated or assigned to Seller Parent pursuant to Section 6.26 (including pursuant to any pass-through or alternative arrangement entered into by the Parties thereunder);
h. all Liabilities with respect to Products returned prior to or after the Closing;
i. all Environmental Liabilities of any nature whatsoever, whether arising prior to or after the Closing, to the extent primarily relating arising out of or Relating to the Business, or the leasing, ownership or operation of the Facilities or the Real Property;
j. all Liabilities transferred to Purchaser and the Purchaser Designated Affiliates pursuant to Section 6.7;
k. all intercompany Liabilities (other than Retained Intercompany Payables) solely between the Conveyed Subsidiaries (or Subsidiaries thereof);
l. Liabilities arising out of Seller Parent Guarantees that remain outstanding after the Closing Date;
m. Shared Contractual Liabilities allocated or assigned to Purchaser pursuant to Section 6.26 (including pursuant to any pass-through or alternative arrangement entered into by the Parties thereunder);
n. all (i) Indebtedness, as of the Closing, of the Conveyed Subsidiaries (and any of their Subsidiaries) to the extent included in the calculation of Final Net Cash pursuant to Section 2.10, and (ii) amounts, as of the Closing, for balance sheet line items constituting “non-current other liabilities” and set forth on the Balance Sheet Statement, not to exceed $15,000,000 in the aggregate; and
o. all other Liabilities arising prior to or after the Closing relating to the Business, ownership or operation of the Purchased Assets or the Conveyed CompaniesSubsidiaries (or their Subsidiaries), including all Liabilities included in the Final Closing Working Capital. Notwithstanding anything herein to the contrary any Governmental Authority and for the avoidance of doubt, the fact that a Liability may fall under the definition of “Assumed Liabilities” and may have been assumed by Purchaser fees arising from or its Affiliates hereunder, shall not in related to any respect prevent Purchaser or any other Purchaser Indemnitees from seeking or receiving indemnification hereunder with respect to such Liability to the extent such Person is entitled to indemnification with respect to such Liability or obligation pursuant to the terms of Section 7.6 or Article VIIIBusiness IP.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Icu Medical Inc/De)
