Assumption of Liabilities. Notwithstanding anything to the contrary contained in this Agreement or any Company Transaction Document, and regardless of whether such liability is disclosed in this Agreement, in any of the Transaction Documents, on any Schedule hereto or thereto or otherwise, and regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwise, the Buyer will not assume, agree to pay, perform or discharge or in any way be responsible for any debts (including interest and/or penalties thereon), liabilities or obligations of the Company or in connection with the Development Work of any kind or nature whatsoever, whether fixed or unfixed, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured (the “Excluded Liabilities”), except that the Buyer will assume at the Closing the following obligations: (i) all obligations of the Company under the Assumed Contracts, and (ii) the obligations set forth on Schedule 1.2(ii) (collectively, the “Assumed Liabilities”); provided however, that any liability or obligation relating to or arising from any breach, or event, circumstance or condition that with notice, lapse of time or both would constitute or result in a breach, by the Company on or before the Closing Date, of any of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting the generality of the foregoing, the Buyer is not assuming or agreeing to pay, perform or discharge or in any way be responsible for, any Excluded Liabilities, which shall include (i) all Indebtedness (which, for the avoidance of doubt, shall include all notes and interest payable to the Company’s shareholders), (ii) all Company Taxes, (iii) all obligations and liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of the transactions contemplated by this Agreement), (iv) all obligations and liabilities arising on or before the Closing Date, (v) all liabilities and obligations relating to or arising out of any transaction contemplated by this Agreement and (vi) any other liabilities owed to the stockholders of the Company.
Appears in 3 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Kensey Nash Corp), Asset Purchase Agreement (Kensey Nash Corp)
Assumption of Liabilities. Notwithstanding anything Purchaser does not and shall not assume or agree to the contrary contained in this Agreement or any Company Transaction Documentassume, and regardless shall not acquire or take over, the Liabilities and obligations of whether such liability is disclosed in this AgreementSeller of any nature, in any of the Transaction Documentsdirect, on any Schedule hereto or thereto contingent or otherwise, and regardless except for the obligations which arise out of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation ownership of the Development Work Properties by Purchaser (but only to the extent such Liabilities and obligations first arise or otherwise, accrue after the Buyer will not assume, agree to pay, perform or discharge or in any way be responsible for any debts (including interest and/or penalties thereon), liabilities or Closing Date) and the obligations of Seller under the Company Third Party Leases which first arise or in connection with the Development Work of any kind or nature whatsoever, whether fixed or unfixed, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured (the “Excluded Liabilities”), except that the Buyer will assume at accrue from and after the Closing the following obligations: Date (i) all obligations of the Company under the Assumed Contracts, and (ii) the obligations set forth on Schedule 1.2(ii) (collectively, the “Assumed Liabilities”); . Except as set forth in the preceding sentence, and except as otherwise provided howeverherein or in the Stock Purchase Agreement, that Purchaser shall not, directly or indirectly, assume any liability Liabilities, obligations, or obligation relating to responsibilities of Seller of any nature whatsoever (the “Retained Liabilities”), whether liquidated or unliquidated, known or unknown, actual or inchoate, accrued, contingent or otherwise, and whether arising from any breachfacts existing or events occurring prior to, or event, circumstance or condition that with notice, lapse of time or both would constitute or result in a breach, by the Company on or before after the Closing Date, of any of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting the generality of the foregoing, the Buyer it is not assuming or agreeing to payexpressly agreed that Purchaser shall have no Liability to, perform or discharge for, or in any way be responsible for, any Excluded Liabilities, which shall include respect of (i) all Indebtedness (which, for the avoidance any obligation or Liability of doubt, shall include all notes and interest payable Seller to the Company’s shareholders)any present or former customer or supplier of Seller, (ii) all Company Taxes, (iii) all obligations and liabilities related any obligation or Liability of Seller with respect to employee compensation (which for the avoidance claims on account of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations personal injury arising out of any injury sustained by any Person at any of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of the transactions contemplated by this Agreement), (iv) all obligations and liabilities arising on or before Properties prior to the Closing Date, (iii) any Liability or obligation relating to any of the matters disclosed or required to be disclosed on the Schedules hereto including, without limitation, any Liability, obligation or related expense arising out of, pursuant to or in connection with the matters set forth on Schedule 5.4 and any claim, action, suit, litigation or administrative, arbitration or other proceeding or governmental investigation involving Seller or any employee of Seller or regardless of whether any such claim, action, suit, litigation, arbitration, proceeding or investigation is made, brought or commenced prior to or after the Closing Date, (iv) any obligation or Liability of Seller which is incurred or arises after the Closing Date which constitute Assumed Liabilities and (v) all liabilities and obligations relating any obligation of Seller for state, local, foreign or federal Taxes including, without limitation, any obligation for franchise, unitary business, capital stock or income Taxes (subject to or arising out of any transaction contemplated by this Agreement and (vi) any other liabilities owed to the stockholders of the CompanySection 4.6 hereof).
Appears in 2 contracts
Samples: Real Estate Purchase and Sale Agreement, Real Estate Purchase and Sale Agreement (CrossAmerica Partners LP)
Assumption of Liabilities. Upon the terms and subject to the conditions of this Agreement, Purchaser shall unconditionally assume on the Closing Date and shall unconditionally pay, perform and discharge when due, and Purchaser shall fully and forever indemnify and defend Seller and each Seller Representative, and hold Seller and each Seller Representative harmless, from and against any and all debts, obligations and other Liabilities (including reasonable out-of-pocket attorney's and other professional fees, including any related to the enforcement of this Agreement) of whatever kind and nature, primary or secondary, direct or indirect, absolute or contingent, known or unknown, accrued or unaccrued, whether relating to or arising prior to, at or after the Closing, in each case, to the extent resulting from, arising out of or relating to the Portfolio (except with respect to the Excluded Liabilities (as defined herein), which Seller is retaining and shall be solely responsible for), including the following (collectively, the "Assumed Liabilities"):
(a) all Indebtedness secured by any asset included in the Portfolio, including any Liabilities to lenders under or in connection with the Assumed Loans or the Prepayable Debt;
(b) all Liabilities with respect to or otherwise in connection with all pending, threatened or other actions, suits, proceedings, investigations or other claims that relate to the Portfolio or any asset in the Portfolio, at Law, in equity or otherwise, or any tort or other claims relating to or arising from the Portfolio or any asset in the Portfolio or any matter, fact, circumstance or condition relating to the Portfolio or any asset in the Portfolio;
(c) all Liabilities relating to or arising from the ownership, operation, possession or management of the Portfolio or any asset in the Portfolio, including (1) accounts payable and trade obligations and (2) to the extent set forth in Section 1.1(f) of the Seller Disclosure Letter, inter-company obligations;
(d) all Liabilities under or in connection with the leases, agreements, commitments, licenses or other contracts, including any Assigned Contracts, included in the Portfolio or relating to any asset in the Portfolio;
(e) all Liabilities for any violation arising in connection with or related to the Portfolio or any asset of the Portfolio under any Law, ordinance, rule or regulation relating to zoning, environmental matters, health, safety or any other matter;
(f) all Liabilities relating to the condition of the Portfolio or any asset in the Portfolio or the presence thereon of any Hazardous Materials or otherwise arising under any Environmental Law or constituting an Environmental Claim in relation to the Portfolio or any asset in the Portfolio;
(g) all items of income and expense that are assumed by Purchaser pursuant to Section 1.9; and
(h) all other Liabilities in any way resulting from, arising out of or relating to the Portfolio or any asset in or activity resulting from, arising out of or relating to the Portfolio. Purchaser's obligations under this Section 1.6 shall not be subject to offset or reduction by reason of any actual or alleged breach of any representation, warranty or covenant contained in this Agreement or any document delivered in connection herewith or any right or alleged right to indemnification hereunder. Notwithstanding anything to the contrary contained in this Agreement or any Company Transaction Documentherein, and regardless of whether such liability is disclosed in this Agreement, in any of the Transaction Documents, on any Schedule hereto or thereto or otherwise, and regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwise, the Buyer will not assume, agree Seller shall assign to pay, perform or discharge or in any way be responsible for any debts (including interest and/or penalties thereon), liabilities or obligations of the Company or in connection with the Development Work of any kind or nature whatsoever, whether fixed or unfixed, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured (the “Excluded Liabilities”), except that the Buyer will assume Purchaser at the Closing the following obligations: (i) all obligations of the Company under the Assumed ContractsClosing, and (ii) the obligations set forth on Schedule 1.2(ii) (collectively, the “Assumed Liabilities”); provided however, that any liability or obligation relating subject to or arising from any breach, or event, circumstance or condition that Purchaser complying with notice, lapse of time or both would constitute or result in a breach, by the Company on or before the Closing Date, of any of its obligations under this Section 1.6 to indemnify and defend Seller and each Seller Representative, and hold Seller and each Seller Representative harmless, from and against any and all Assumed Liabilities, all proceeds Seller or any Subsidiary thereof may be entitled to after the date hereof with respect of any insurance policy held at any time prior to the Closing by Seller or any subsidiary thereof with respect to any Portfolio Property to the extent related to an Assumed Contract shall Liability, such assignment to be effected by an Excluded Liability. Without limiting the generality of the foregoing, the Buyer is not assuming or agreeing instrument mutually acceptable to pay, perform or discharge or in any way be responsible for, any Excluded Liabilities, which shall include (i) all Indebtedness (which, for the avoidance of doubt, shall include all notes Purchaser and interest payable to the Company’s shareholders), (ii) all Company Taxes, (iii) all obligations and liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of the transactions contemplated by this Agreement), (iv) all obligations and liabilities arising on or before the Closing Date, (v) all liabilities and obligations relating to or arising out of any transaction contemplated by this Agreement and (vi) any other liabilities owed to the stockholders of the CompanySeller.
Appears in 2 contracts
Samples: Transaction Agreement (Affordable Residential Communities Inc), Transaction Agreement (Chateau Communities Inc)
Assumption of Liabilities. Notwithstanding anything (a) Upon the terms and subject to the contrary contained in this Agreement or any Company Transaction Document, and regardless of whether such liability is disclosed conditions set forth in this Agreement, in any as of the Transaction DocumentsClosing Date, on any Schedule hereto or thereto or otherwisethe Acquirors jointly and severally agree to assume, satisfy, perform, pay and regardless discharge each of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwise, the Buyer will not assume, agree to pay, perform or discharge or in any way be responsible for any debts (including interest and/or penalties thereon), liabilities or obligations of the Company or in connection with the Development Work of any kind or nature whatsoever, whether fixed or unfixed, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured following Liabilities (the “Excluded "Assumed Liabilities”), except that the Buyer will assume at the Closing the following obligations: "):
(i) all obligations Liabilities of any of the Company Elan Companies or any of their respective Subsidiaries arising out of any product liability, patent infringement, breach of warranty or similar claim for injury to person or property asserted on or after the Closing Date but only to the extent resulting from the use or misuse of Products sold on or after the Closing Date by or on behalf of the Acquirors (including all proceedings relating to any such Liabilities);
(ii) all Liabilities of any of the Elan Companies or any of their respective Subsidiaries under the Assumed Contracts, and (ii) but only to the obligations set forth on Schedule 1.2(ii) (collectively, the “Assumed Liabilities”); provided however, that any liability or obligation relating to or arising extent such Liabilities arise from any breach, or event, circumstance or condition that with notice, lapse of time or both would constitute or result occurring in a breach, by the Company period (or portion thereof) on or before after the Closing Date;
(iii) all Liabilities of any of the Elan Companies or any of their respective Subsidiaries arising out of government seizures, field corrections, withdrawals or recalls of Products sold on or after the Closing Date by or on behalf of the Acquirors, which are claimed on or after the Closing Date;
(iv) all Liabilities for Taxes arising out of, directly or indirectly, the Purchased Assets or the ownership, Control, lease or license of any of the Purchased Assets for any Post-Closing Tax Period, other than the Excluded Tax Liabilities;
(v) all Liabilities of any of the Elan Companies or any of their respective Subsidiaries arising out of user or other similar fees payable to the FDA or other Governmental or Regulatory Authority but only to the extent that such fees are due and payable on account of the operation of the Businesses on or after the Closing Date (and to the extent that any of the Elan Companies or any of their respective Subsidiaries have paid any such fee prior to the Closing Date, the Acquirors shall promptly reimburse the appropriate Elan Company or Subsidiary for such payment, subject to the provisions of Section 11.02(b)); and
(vi) all other Liabilities of any of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting the generality Elan Companies or any of their respective Subsidiaries arising out of, directly or indirectly, the Purchased Assets or the ownership, Control, lease or license of any of the foregoingPurchased Assets, but only to the extent such Liabilities arise from the Acquirors' operation of the Businesses on or after the Closing Date.
(b) Notwithstanding anything contained in this Agreement to the contrary or any disclosure to the Acquirors, from and after the Closing Date, the Buyer is Acquirors shall not assuming or agreeing to assume any, and the Elan Companies shall retain and pay, perform or and discharge or in any way be responsible forwhen due, any all of the following Liabilities ("Excluded Liabilities, which shall include "):
(i) all Indebtedness (which, accounts payable and other Liabilities of the Elan Companies and their respective Subsidiaries for the avoidance of doubt, shall include all notes materials and interest payable services with respect to the Company’s shareholders), manufacture of the Products or any Current Skelaxin Improvement or Sonata Line Extension incurred prior to the Closing Date;
(ii) all Company Taxesany income Tax payable by the Elan Companies or any member of any affiliated group of which the Elan Companies are, or have been, a member, or any Tax arising out of, directly or indirectly, the Purchased Assets or the ownership, Control, lease or license of any of the Purchased Assets for any Pre-Closing Tax Period, other than any transfer Tax for which the Acquirors are responsible pursuant to Section 4.03 ("Excluded Tax Liability");
(iii) all obligations and liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations Liabilities of the Company Elan Companies and their respective Subsidiaries arising out of any product liability, patent infringement, breach of warranty or similar claim for injury to person or property whenever asserted which resulted from the use or misuse of Products sold prior to the Closing Date (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as including all proceedings relating to any such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of the transactions contemplated by this AgreementLiabilities), ;
(iv) all obligations Liabilities of the Elan Companies and liabilities their respective Subsidiaries arising on out of government seizures, field corrections, withdrawals or before recalls of Products sold prior to the Closing Date, which are claimed prior to, on or after the Closing Date;
(v) except as otherwise expressly provided in Section 8.16, all liabilities Liabilities of the Elan Companies and obligations relating their respective Subsidiaries with respect to any litigation or other claims to the extent arising from any event, circumstance or condition occurring or alleged to have occurred prior to the Closing Date;
(vi) all Liabilities of the Elan Companies and their respective Subsidiaries arising out of user or other similar fees payable to the FDA or other Governmental or Regulatory Authority to the extent that such fees are payable on account of the operation of the Businesses prior to the Closing Date;
(vii) any Liability of the Elan Companies or any of their respective Affiliates arising out of any Excluded Asset or arising out of the operation or conduct by the Elan Companies or their Affiliates of any transaction contemplated business other than the Businesses;
(viii) except as otherwise expressly provided in Section 2.04, any Liabilities arising from or pursuant to any Contracts as to which an Elan Third Party Consent is not obtained by this Agreement the Closing Date regardless of whether the Acquirors waive delivery of such Elan Third Party Consent;
(ix) except as otherwise expressly provided in Section 8.10, any Liability with respect to the employees or independent contractors of the Elan Companies or their Affiliates, including any Liability with respect to the Employee Benefit Plans and any Liability with respect to the employment of Employees by the Elan Companies or any of their Affiliates;
(vix) except as otherwise expressly provided in Section 8.10, any Liabilities for severance or other obligations arising out of the cessation of employment at or prior to the Closing of Employees or any other former employees of the Elan Companies or their Affiliates by the Elan Companies or their Affiliates;
(xi) any Liability of the Elan Companies to any of their respective Affiliates;
(xii) except as otherwise expressly provided in Section 8.16, all Liabilities of the Elan Companies and their respective Subsidiaries arising out of any Elan Companies Proceeding; and
(xiii) any other liabilities owed to the stockholders Liability of any of the CompanyElan Companies or any of their respective Subsidiaries that is not specifically listed as an Assumed Liability under Section 3.01(a).
Appears in 2 contracts
Samples: Asset Purchase Agreement (Elan Corp PLC), Asset Purchase Agreement (King Pharmaceuticals Inc)
Assumption of Liabilities. Notwithstanding anything to With the contrary contained exception of those liabilities expressly assumed by Buyer in this Agreement or any Company Transaction Document, and regardless of whether such liability is disclosed in this Agreement, in any of the Transaction Documents, on any Schedule hereto or thereto or otherwise, and regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection accordance with the Buyer’s due diligence investigation provisions of subsection 1(d) (the Development Work or otherwise“Assumed Liabilities”), the Buyer will does not assume, agree to pay, perform or discharge or assume and shall in any way no event be responsible liable for any debts (including interest and/or penalties thereon)debts, liabilities or obligations of the Company Corporation or in connection with the Development Work of any kind or nature whatsoeverStockholder, whether fixed or unfixedcontingent, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured unsecured, or otherwise (the “Excluded Liabilities”). Without limiting the foregoing, except that the Buyer will assume at the Closing the following obligations: does not assume:
(i) all obligations of any liability for Taxes (as hereinafter defined) payable for any periods prior to and including the Company under the Assumed ContractsClosing Date, and (ii) the obligations unless specifically set forth on Schedule 1.2(ii1(d)(i);
(ii) (collectively, the “Assumed Liabilities”); provided however, that any liability or obligation relating to any employee, director, officer or arising from any breach, or event, circumstance or condition that with notice, lapse of time or both would constitute or result in a breach, by the Company on or before the Closing Date, of any of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting the generality stockholder of the foregoingCorporation, the Buyer is not assuming or agreeing to pay, perform or discharge or in any way be responsible forincluding without limitation, any Excluded Liabilities, which shall include liability in connection with any Employee Benefit Plan (ias hereinafter defined) all Indebtedness (which, for the avoidance of doubt, shall include all notes and interest payable to the Company’s shareholdersnot specifically set forth on Schedule 1(d)(i), (ii) all Company Taxes, ;
(iii) all obligations any trade payables not specifically set forth on Schedule 1(d)(i);
(iv) unless specifically set forth on Schedule 1(d)(i), any liability or obligation for brokerage commissions, finders’ fees or professional services of any kind, including attorneys’ fees, incurred in connection with the negotiation and liabilities related to employee compensation (which for the avoidance execution of doubt shall include payroll this Agreement and accrued vacation expenses) and employee benefit plans or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of the transactions contemplated by hereby whether or not disclosed in this Agreement;
(v) any liability or obligation arising under any arbitration or litigation proceeding, whether or not disclosed in this Agreement, unless such liability is pursuant to a settlement agreement executed prior to the date hereof and included herein as an Assigned Contract (as hereinafter defined), ;
(ivvi) all obligations and liabilities any liability or obligation arising from events occurring on or before prior to the Closing Date, whether or not disclosed in this Agreement, arising from (vA) all liabilities and obligations relating environmental matters, (B) the infringement by the Corporation upon any intellectual property rights of others, or (C) the failure to comply with any requirements of law or any requirements of governmental bodies or agencies having jurisdiction over the Corporation, the Acquired Assets or the conduct of the Business; and
(vii) any liability or obligation arising out as a result of, or which existence constitutes, a breach of any transaction contemplated by this Agreement and (vi) any other liabilities owed to the stockholders of the CompanyCorporation’s representations, warranties or covenants contained in this Agreement.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Nova Measuring Instruments LTD), Asset Purchase Agreement (Nova Measuring Instruments LTD)
Assumption of Liabilities. Notwithstanding anything (a) Simultaneously with the Closing, the Purchaser or an Affiliate of Purchaser shall assume and be liable for, and shall pay, perform and discharge, when due, and no other Liabilities: (i) all Liabilities arising after the Closing under the Transferred Contracts but only to the contrary contained in this Agreement extent that such Liabilities thereunder do not relate to any failure to perform, improper performance, or other breach, default or violation of any such Transferred Contract by Seller or any Company Transaction DocumentAffiliate of Seller prior to the Closing; (ii) all Liabilities arising from the conduct of the Business or the ownership of the Transferred Assets by Purchaser or any Affiliate of Purchaser following the Closing, including without limitation the design, manufacture, import, sale or offer for sale of any products by the Purchaser or any Affiliate of Purchaser irrespective of when such products were designed, manufactured, imported, or offered for sale; and regardless (iii) all Liabilities of whether such liability is disclosed the Purchaser incurred in accordance with this Agreement, in any including, without limitation, those set forth on Part 1.5(a) of the Transaction DocumentsDisclosure Letter (the Liabilities described in clauses “(i)”, on any Schedule hereto or thereto or otherwise“(ii)”, and regardless “(iii)” of this sentence being collectively referred to as the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwise“Assumed Liabilities”).
(b) Notwithstanding Section 1.5(a), the Buyer will Purchaser shall not assume, agree assume and shall not be responsible to pay, perform or discharge any Liabilities of Seller or in any way be responsible for any debts (including interest and/or penalties thereon), liabilities or obligations of the Company or in connection with the Development Work its Affiliates of any kind or nature whatsoever, whether fixed or unfixed, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured whatsoever other than the Assumed Liabilities (the “Excluded Liabilities”), except that the Buyer will assume at the Closing the following obligations: (i) all obligations of the Company under the Assumed Contracts, and (ii) the obligations set forth on Schedule 1.2(ii) (collectively, the “Assumed Liabilities”); provided however, that any liability or obligation relating to or arising from any breach, or event, circumstance or condition that with notice, lapse of time or both would constitute or result in a breach, by the Company on or before the Closing Date, of any of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting the generality of the foregoing, the Buyer is Excluded Liabilities shall include, but not assuming or agreeing to paybe limited to, perform or discharge or in any way be responsible for, any Excluded Liabilities, which shall include the following:
(i) any and all Indebtedness (which, for the avoidance of doubt, shall include all notes and interest payable Liabilities to the Company’s shareholders)extent arising from, or incurred in connection with, the Excluded Assets;
(ii) any and all Company Taxes, Liabilities of Seller or any of its Affiliates for Seller Transaction Expenses (as defined in Section 10.5(b) below);
(iii) any and all Liabilities of Seller or any of its Affiliates listed on Part 1.5(b) of the Disclosure Letter;
(iv) all Liabilities to the extent arising from the conduct of the Business or the ownership of the Transferred Assets on and prior to the Closing Date including, without limitation, all Liabilities associated with administering and honoring all repair and replacement warranties, returns and similar obligations and liabilities related to employee compensation (which for the avoidance of doubt shall include payroll products and accrued vacation expenses) and employee benefit plans or obligations services of the Company Business sold on or prior to the Closing Date or such services provided on or prior to the Closing Date; provided that, with respect to products sold or services performed prior to the Closing, Purchaser will administer and honor all such warranties, returns and similar obligations on behalf of Seller and any Affiliate of Seller;
(whichv) any Liability for (x) Taxes of Seller or any Affiliate of Seller or relating to the Transferred Assets or the Assumed Liabilities for any Pre-Closing Period, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claimsy) as a result Taxes that arise out of the consummation of the transactions contemplated by this Agreement), hereby or that are the responsibility of Seller pursuant to Section 1.7 or (ivz) all obligations and liabilities arising on other Taxes of Seller or before the Closing Date, (v) all liabilities and obligations relating to or arising out any Affiliate of Seller of any transaction contemplated kind or description (including any Liability for Taxes of Seller or any Affiliate of Seller that becomes a Liability of Purchaser or any Affiliate of Purchaser under any common Legal Requirement doctrine of de facto merger or transferee or successor liability or otherwise by this Agreement operation of contract or Legal Requirement, except current real estate and personal property taxes with respect to the Business or the Transferred Assets to the extent such Taxes relate to a Post-Closing Period);
(vi) any other liabilities owed to the stockholders Liabilities of Seller or any Affiliate of the CompanySeller for any Pre-Closing Period relating to present or former employees, officers, directors, retirees, independent contractors or consultants of Seller or any Affiliate of Seller, including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;
(vii) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of Seller or any Affiliate of Seller, including, with respect to any breach of fiduciary obligations;
(viii) any Liabilities associated with debt, loan or credit facilities of the Seller and/or any Affiliate of Seller; and
(ix) any Liabilities arising out of, in respect of or in connection with the failure by Seller or any of its Affiliates to comply with any Legal Requirement or Order.
Appears in 2 contracts
Samples: Share and Asset Purchase Agreement (Oclaro, Inc.), Share and Asset Purchase Agreement (Ii-Vi Inc)
Assumption of Liabilities. Notwithstanding anything to (a) On the contrary contained in this Agreement or terms set forth herein, on and after the Closing Date, Buyer shall assume, perform and pay the Assumed Liabilities.
(b) Buyer is assuming only the Assumed Liabilities from the Seller and its Affiliates and is not assuming any Company Transaction Document, and regardless of whether such other liability is disclosed in this Agreement, in any of the Transaction Documents, on any Schedule hereto or thereto or otherwise, and regardless of the Buyer’s Seller or any of its directors’Affiliates of whatever nature, officers’whether presently in existence or arising hereafter and whether or not identified in any disclosures in the Seller Disclosure Schedule (the “Retained Liabilities”) and Buyer does not assume and shall in no event be liable for any such Retained Liabilities, employees’ including, but not limited to:
(i) all liabilities to the extent arising out of or agents’ knowledge relating to the operation or awareness conduct by the Seller or any of its Affiliates of any liabilityretained businesses, whether learned in connection with and all liabilities to the Buyer’s due diligence investigation extent arising out of or relating to any Excluded Asset;
(ii) all liabilities and commitments of the Development Work Seller or otherwiseits Affiliates in respect of Taxes incurred with respect to a Pre-Closing Period;
(iii) all debt of Seller or its Affiliates for borrowed money;
(iv) all liabilities to any broker, the Buyer will not assume, agree to pay, perform finder or discharge agent or in any way be responsible similar intermediary for any debts broker’s fee, finders’ fee or similar fee or commission relating to the transactions contemplated by this Agreement for which the Seller or its Affiliates is responsible pursuant to Section 3.16;
(v) all liabilities of Seller and its Affiliates with respect to any Environmental Law or environmental conditions, events, or circumstances, including interest and/or penalties thereon), with respect to any release of Hazardous Substances after the Closing Date to the extent said liabilities or obligations of the Company arise from or in connection with the Development Work of any kind conditions, events or nature whatsoever, whether fixed or unfixed, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured (the “Excluded Liabilities”), except that the Buyer will assume at the Closing the following obligations: (i) all obligations of the Company under the Assumed Contracts, and (ii) the obligations set forth on Schedule 1.2(ii) (collectively, the “Assumed Liabilities”); provided however, that any liability or obligation relating to or arising from any breach, or event, circumstance or condition that with notice, lapse of time or both would constitute or result in a breach, by the Company circumstances occurring on or before the Closing Date, including without limitation the migration of any of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting the generality of the foregoing, the Buyer is not assuming Hazardous Substances which were released on or agreeing to pay, perform or discharge or in any way be responsible for, any Excluded Liabilities, which shall include (i) all Indebtedness (which, for the avoidance of doubt, shall include all notes and interest payable prior to the Company’s shareholders)Closing Date;
(vi) with respect to any Purchased Assets and Assigned Contracts, all liabilities and obligations arising thereunder prior to the Closing, out of breaches or violations thereof, or amounts due thereunder that relate to periods prior to the Closing (iisubject to Section 2.6) all Company Taxes, (iii) all obligations and liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of from the consummation of the transactions contemplated by this Agreementhereby (subject to Section 2.8), ; and
(iv) all obligations and liabilities arising on or before the Closing Date, (v) all liabilities and obligations relating to or arising out of any transaction contemplated by this Agreement and (vivii) any other liabilities owed of the Seller or current or former Affiliates thereof related to the stockholders of Purchased Assets, if any, other than the CompanyAssumed Liabilities.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Iconix Brand Group, Inc.)
Assumption of Liabilities. Notwithstanding anything Upon the terms and subject to the contrary contained in this Agreement or any Company Transaction Document, and regardless conditions of whether such liability is disclosed in this Agreement, in any on the Closing Date Buyer, or the applicable Assignee, shall assume, effective as of the Transaction Documents, on any Schedule hereto or thereto or otherwiseClosing, and regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned shall timely perform and discharge in connection accordance with the Buyer’s due diligence investigation of the Development Work or otherwisetheir respective terms, the Buyer will not assume, agree to pay, perform or discharge or in any way be responsible for any debts (including interest and/or penalties thereon), liabilities or obligations of the Company or in connection with the Development Work of any kind or nature whatsoever, whether fixed or unfixed, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured (the “Excluded Liabilities”), except that the Buyer will assume at the Closing the following obligations: (i) all obligations of the Company under the Assumed Contracts, and (ii) the obligations set forth on Schedule 1.2(ii) Liabilities (collectively, the “Assumed Liabilities”); provided however):
(a) all Liabilities of the Seller or any of its Subsidiaries arising out of the ownership of the Acquired Assets or operation of the Business or the Acquired Assets on or after the Closing Date that are Related to any Acquired Asset;
(b) all Liabilities arising on or after the Closing Date or Designation Assignment Date, that any liability or obligation as applicable, relating to the payment or performance of obligations with respect to the Assigned Agreements;
(c) all Liabilities arising on or after the Closing Date from or related to any breachClaim, Action, arbitration, audit, hearing, investigation, suit, litigation or other proceeding (whether civil, criminal, administrative, investigative, or eventinformal and whether pending or threatened or having any other status) arising out of the Assumed Liabilities, circumstance the Acquired Assets or condition that with notice, lapse the operation of time or both would constitute or result in a breach, by the Company Business on or before after the Closing Date (but not prior to the Closing Date) or relating to facts, of any of its obligations under an actions, omissions, circumstances or conditions existing, occurring or accruing on or after the Closing Date (but not prior to the Closing Date) that are Related to the Acquired Assets or the Assumed Contract shall be an Excluded Liability. Without limiting the generality of the foregoing, Liabilities;
(d) Buyer’s obligation to pay the Buyer is not assuming Occupancy Costs;
(e) subject to Section 2.8(e), all Liabilities for warranties and protection agreements or agreeing other services contracts (other than warranties relating to payIntellectual Property) for the goods and services of Sellers sold or performed prior to the Closing, perform or discharge or including any Liabilities owed by Sears Re to any Seller in any way be responsible for, any respect of reinsurance of such warranties and protection agreements (the “PA Liabilities”);
(f) all Assumed Customer Credits;
(g) all Cure Costs solely with respect to the Assigned Agreements;
(h) all Excluded Liabilities, which shall include Asset-Sale Taxes (except if otherwise provided in Section 2.4(i));
(i) all Indebtedness Liabilities resulting from actions or inactions taken by the Sellers or any Affiliate of Sellers in compliance with Section 9.2;
(which, for the avoidance of doubt, shall include j) all notes and interest payable Liabilities with respect to the Company’s shareholders), Transferred Employees (iii) all Company Taxes, (iii) all obligations and liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) extent arising as a result of an event, action or omission that occurs on or following the consummation Closing or (ii) expressly assumed by Buyer and its Subsidiaries pursuant to Section 9.7;
(k) the Severance Reimbursement Obligations, Assumed 503(b)(9) Liabilities, Other Payables and all payment obligations with respect to the Ordered Inventory; provided, that:
(i) Buyer shall not be required to make any payments with respect to the Other Payables until the later of (1) the transactions contemplated Closing Date and (2) the date that the applicable obligation thereunder becomes due in the Ordinary Course of Business;
(ii) Buyer shall not be required to make any payments with respect to Assumed 503(b)(9) Liabilities until the earlier of (1) the date that is 120 days following the Closing Date and (2) the date on which a chapter 11 plan of reorganization is confirmed by this Agreementthe Bankruptcy Court with respect to the Debtors;
(iii) Buyer’s obligations with respect to the Severance Reimbursement Obligations shall not exceed $43,000,000 in the aggregate, and notwithstanding Section 2.3(k)(i), the timing of such reimbursement shall be made in accordance with Section 9.7(i);
(iv) all Buyer’s obligations and liabilities arising on or before with respect to the Closing Date, Assumed 503(b)(9) Claims shall not exceed $139,000,000 in the aggregate;
(v) all liabilities and Buyer’s obligations relating with respect to or arising out of any transaction contemplated by this Agreement and the Other Payables shall not exceed $166,000,000 in the aggregate;
(vi) any other liabilities owed In the event that the Aggregate DIP Shortfall Amount is a positive number, Buyer’s obligations to assume the Liabilities described in this clause (k) shall be reduced dollar for dollar by the Aggregate DIP Shortfall Amount in the following order, until the aggregate amount of all such reductions is equal to the stockholders of Aggregate DIP Shortfall Amount: first, the Company.Severance Reimbursement Obligations, second, the Other Payables and third, the Assumed 503(b)(9)
Appears in 2 contracts
Samples: Asset Purchase Agreement (Sears Holdings Corp), Asset Purchase Agreement (Esl Partners, L.P.)
Assumption of Liabilities. Notwithstanding anything Upon the sale and purchase of the Contributed Assets, FRS shall assume and agree to pay or discharge when due the contrary contained liabilities and obligations of Clintec which are to be performed after the Closing Date (as defined in Section 1.6 below) as are described on Schedule 1.2. Such liabilities to be assumed by FRS under this Agreement are hereinafter sometimes referred to as the "Assumed Liabilities." Except as otherwise specifically provided in this Agreement Section 1.2, (a) FRS shall not assume or any Company Transaction Document, and regardless of whether such liability is disclosed in this Agreement, in any of the Transaction Documents, on any Schedule hereto or thereto or otherwise, and regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwise, the Buyer will not assume, agree to pay, perform or discharge or in any way be responsible liable for any debts (including interest and/or penalties thereon)obligation or liability of Clintec, liabilities or obligations of the Company or in connection with the Development Work of any kind or nature whatsoevernature, whether fixed or unfixedknown, known or unknown, absolute contingent or contingentotherwise, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured (the “Excluded Liabilities”), except that the Buyer will assume at the Closing the following obligationsincluding without limitation: (i) all obligations any liability of Clintec incurred in connection with this Agreement and the Company under the Assumed Contractstransactions provided for herein, including brokerage, accounting and counsel fees, transfer and other taxes, and expenses pertaining to the performance by Clintec of its obligations hereunder, (ii) the obligations set forth on Schedule 1.2(ii) (collectively, the “Assumed Liabilities”); provided however, that any liability or obligation of Clintec arising out of any contract or agreement, (iii) any liability or obligation arising out of or relating to the clinical development or arising from testing of the Compounds or the Other Compounds on or prior to Closing, (iv) any breachobligations to Clintec's employees, including without limitation, any pension, retirement, or eventprofit-sharing plan or trust, circumstance (v) any litigation, proceeding, claim by any person or condition that with notice, lapse entity or other obligation of time Clintec arising out of the conduct of Clintec's business or both would constitute its use of the Compounds or result in a breach, by the Company on or before other Contributed Assets prior to the Closing Date, of any of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting the generality of the foregoingwhether or not such litigation, the Buyer proceeding, claim or obligation is not assuming pending, threatened, or agreeing to payasserted before, perform on, or discharge or in any way be responsible for, any Excluded Liabilities, which shall include (i) all Indebtedness (which, for the avoidance of doubt, shall include all notes and interest payable to the Company’s shareholders), (ii) all Company Taxes, (iii) all obligations and liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of the transactions contemplated by this Agreement), (iv) all obligations and liabilities arising on or before after the Closing Date, (vvi) Taxes (as defined in Section 1.8) whether relating to periods before or after the Closing Date, and (vii) any obligations under any law, including but not limited to antitrust, civil rights, health, safety, labor, discrimination and environmental laws; and (b) Clintec shall be solely responsible for, and shall discharge, any and all liabilities and obligations relating to or arising out of any transaction contemplated by this Agreement and (vi) any other liabilities owed to Clintec not included within the stockholders Assumed Liabilities. The assumption of the CompanyAssumed Liabilities by FRS hereunder shall be treated as independent of its existing business and shall not enlarge any rights of third parties under contracts or arrangements with FRS or Clintec. Nothing herein shall prevent FRS from contesting in good faith any of the Assumed Liabilities.
Appears in 2 contracts
Samples: Contribution Agreement (Transcend Therapeutics Inc), Contribution Agreement (Transcend Therapeutics Inc)
Assumption of Liabilities. Notwithstanding anything to Purchaser shall assume only those liabilities specifically described on Schedule 1.2 (the contrary contained "Assumed Liabilities"). Except for the Assumed Liabilities specifically described in this Agreement the immediately preceding sentence, Purchaser has not assumed or any Company Transaction Documentundertaken, and regardless of whether such liability is disclosed in this Agreementnot assuming or undertaking, in any of the Transaction Documents, on any Schedule hereto or thereto or otherwise, and regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwise, the Buyer will not assume, agree to pay, perform or discharge or in perform, any way be responsible for any debts (including interest obligation or liability of Seller, all of which obligations and liabilities Seller and OTC hereby undertake to fully discharge, pay and/or penalties thereon), liabilities or obligations of satisfy as and when the Company or in connection with the Development Work of any kind or nature whatsoever, whether fixed or unfixed, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured (the “Excluded Liabilities”), except that the Buyer will assume at the Closing the following obligations: (i) all obligations of the Company under the Assumed Contracts, and (ii) the obligations set forth on Schedule 1.2(ii) (collectively, the “Assumed Liabilities”); provided however, that any liability or obligation relating to or arising from any breach, or event, circumstance or condition that with notice, lapse of time or both would constitute or result in a breach, by the Company on or before the Closing Date, of any of its obligations under an Assumed Contract shall be an Excluded Liabilitysame may become due. Without limiting the generality of the foregoing, the Buyer is Purchaser shall not assuming or agreeing be deemed to payhave assumed, perform or discharge or in any way be responsible fornor shall Purchaser assume, any Excluded Liabilities, which shall include (i) all Indebtedness (which, for the avoidance of doubt, shall include all notes and interest payable to the Company’s shareholders), (ii) all Company Taxes, (iii) all obligations and liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of the transactions contemplated by this Agreement), (iv) all obligations and liabilities arising on or before the Closing Date, (v) all liabilities and obligations relating to liability based upon or arising out of any transaction contemplated by tortious or wrongful actions of Seller or any liability for the payment of (i) any liability or obligation of Seller arising out of or in connection with the negotiation and preparation of this Agreement and the consummation and the performance of the transactions contemplated hereby including, without limitation, any tax liability so arising; (viii) any other liabilities owed liability or obligation of Seller for any foreign, federal, state, county or local taxes, or any interest or penalties thereon, accrued for, applicable to or arising from any period ending on or prior to the stockholders date of Closing other than the CompanyMexican Value Added Tax (the "VAT") on the assets of Seller located at the facility in Reynosa, Tamaulipas, Mexico, which will be shared in accordance with Section 8.2 hereof; (iii) any salary, wage, benefit, bonus, vacation pay, sick leave, insurance, employment tax or similar liability of Seller to any employee, officer, director or other person or entity allocable to services performed on or prior to the date hereof; or (iv) any contributions to any pension, employee benefit or profit sharing plan of Seller, ODM or OTC for the benefit of any of Seller's employees, officers or directors.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Oryx Technology Corp), Asset Purchase Agreement (Oryx Technology Corp)
Assumption of Liabilities. Notwithstanding anything (1) From and after the Closing Date, Buyer shall assume, and shall honor, pay, perform and satisfy when due any and all liabilities, obligations and responsibilities to, or in respect of, each Transferred Employee, and each former employee and officer of Echelon and its subsidiaries, arising under the terms of, or in connection with, any Employee Benefit Plan, in each case, in accordance with the terms thereof in effect immediately prior to the contrary date hereof, with respect to events or claims arising at any time; provided, that nothing contained herein shall constitute a commitment or obligation on the part of Buyer to continue any such Employee Benefit Plan after the Closing Date except that Buyer shall provide, or shall cause to be provided, effective commencing on the Closing Date, coverage to all current and former employees of Echelon and its subsidiaries (including any employees who do not accept the offer of employment described in Section 11.1 hereof), and their spouses and dependents, under a group health plan which does not contain any waiting period or exclusion or limitation with respect to any pre-existing conditions, and Buyer shall be solely responsible for compliance with the requirements of Section 4980B of the Code and part 6 of subtitle B of Title I of ERISA ("COBRA"), including, without limitation, the provision of continuation coverage, with respect to all such current and former employees, spouses and dependents, for whom a qualifying event occurs before, on or after the Closing Date. The terms "group health plan", "continuation coverage", "qualifying event" and "qualified beneficiary" are used in this Agreement or any Company Transaction DocumentSection 11.2(a)(1) with the respective meanings ascribed thereto in COBRA.
(2) On the Closing Date, Buyer shall assume sponsorship of the Echelon International Corporation Savings Plan (the "Savings Plan") and the related trust, and regardless the liabilities thereunder, with respect to all persons entitled to benefits under the provisions of whether the Savings Plan, and Echelon shall cause all right, title, interest, authorities, obligations, duties, liabilities and assets of Echelon and its subsidiaries in, to and under the Savings Plan and the related trust to be transferred to and assumed by Buyer and any successor trustee, respectively, in accordance with applicable law. At Closing, the parties shall execute and deliver such liability is disclosed documents and instruments as may be required to effect such assumption and transfer and to ensure that all assets of the Savings Plan, as the same exist immediately prior to the Closing Date, shall be transferred with the Savings Plan to the extent provided in this AgreementSection 11(a)(2). Effective upon Closing, Buyer will be substituted for Echelon as the plan sponsor under the Savings Plan. For a period of at least twelve (12) months following the Closing Date, Buyer covenants and agrees to maintain the Savings Plan in accordance with the terms of the Savings Plan as in effect on the date hereof, except to the extent that Buyer is required to amend the Savings Plan to comply with applicable law.
(3) Buyer shall be solely responsible for and shall indemnify and hold Echelon and its subsidiaries harmless from any obligations or Losses relating to claims made by any of the Transaction DocumentsTransferred Employees for their compensation, on severance or termination pay, benefits or notice under any Schedule hereto applicable Federal, state or thereto local law or under any plan, policy, practice or agreement, in each case, that accrues after the Closing Date and arises as a result of their employment or separation from employment with Buyer or its subsidiaries after the Closing Date.
(b) Subject to Section 11.2(a) hereof, Echelon shall be solely responsible for and shall indemnify and hold Buyer harmless from any obligations or Losses relating to claims made by any current or former employee of Echelon and its subsidiaries, including, without limitation, the Transferred Employees, for their compensation, severance or termination pay, benefits or notice under any applicable Federal, state or local law or under any plan, policy, practice or agreement, in each case, that accrue through the Closing Date as a result of their employment or separation from employment with Echelon or its subsidiaries. On or prior to the Closing Date, Echelon shall satisfy all obligations (including payments due as a result of a change of control of Echelon or otherwise, ) then due and regardless of the Buyer’s payable under any employment agreement entered into by Echelon or any of its directors’, officers’, employees’ or agents’ knowledge or awareness subsidiaries (including the employment agreements described on Schedule XIII) and shall deliver to Buyer copies of any liability, whether learned and all employee estoppel letters delivered in connection therewith.
(c) Accrued but unpaid vacation, sick or other paid time off with the Buyer’s due diligence investigation respect to all employees of the Development Work or otherwise, the Buyer will not assume, agree to pay, perform or discharge or in any way be responsible for any debts (including interest and/or penalties thereon), liabilities or obligations Echelon and its subsidiaries as of the Company or in connection with the Development Work of any kind or nature whatsoever, whether fixed or unfixed, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured (the “Excluded Liabilities”), except that the Buyer will assume at the Closing the following obligations: (i) all obligations of the Company under the Assumed Contracts, and (ii) the obligations set forth on Schedule 1.2(ii) (collectively, the “Assumed Liabilities”); provided however, that any liability or obligation relating to or arising from any breach, or event, circumstance or condition that with notice, lapse of time or both would constitute or result in a breach, by the Company on or before the Closing Date, including, without limitation, the Transferred Employees, shall, to the extent permitted by applicable law, be assumed by Buyer and paid by Buyer in accordance with the terms of the applicable policies and procedures of Echelon and its subsidiaries in effect on the date hereof.
(d) In the event of any of its obligations under an Assumed Contract shall be an Excluded Liability"plant closing" or "mass layoff" by Buyer, as defined by the Federal Worker Adjustment Retraining Notification Act, 29 U.S.C. ss. Without limiting the generality of the foregoing2101 et seq. ("WARN"), the Buyer is not assuming or agreeing to pay, perform or discharge or in any way be responsible for, any Excluded Liabilitiesstate law equivalent, which shall include (i) all Indebtedness (which, for the avoidance of doubt, shall include all notes and interest payable to the Company’s shareholders), (ii) all Company Taxes, (iii) all obligations and liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of the transactions contemplated by this Agreement), (iv) all obligations and liabilities arising on or before occur after the Closing Date, (v) Buyer shall comply with all liabilities of the requirements of WARN and obligations relating to or arising out any applicable state law equivalent and shall indemnify Echelon and its subsidiaries from and against any Losses incurred by Echelon and its subsidiaries as the result of any transaction contemplated by this Agreement and action against Buyer or Echelon (viand/or its subsidiaries) any other liabilities owed to the stockholders of the Companyunder WARN.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Echelon International Corp), Merger Agreement (Echelon International Corp)
Assumption of Liabilities. Notwithstanding anything to (a) At the contrary contained in this Agreement or any Company Transaction DocumentEffective Time, Covisint shall assume and regardless of whether such liability is disclosed in this Agreement, in any of the Transaction Documents, on any Schedule hereto or thereto or otherwise, and regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwise, the Buyer will not assume, agree to pay, perform or discharge or in any way and be responsible for any debts all of the liabilities and obligations, known and unknown, whether absolute or contingent, to the extent (including interest and/or penalties thereonbut only to the extent) that such liabilities and obligations relate to the Transferred Assets or the Covisint Business (the “Assumed Liabilities”), including without limitation: (i) all of Compuware’s payment, performance and other obligations under the Assigned Contracts, whether arising prior to, on or after the Effective Time; and (ii) all other liabilities relating to the Transferred Assets, whether incurred prior to, on or after the Effective Time. Notwithstanding the foregoing, Covisint shall assume and agree to discharge and be responsible for all of the liabilities and obligations relating to the Covisint Employees, Former Covisint Employees, Compuware Plans, and the Covisint Plans as specifically set forth in the Employee Benefits Agreement. For purposes of clarity, the Assumed Liabilities only include such liabilities and obligations that relate to the Transferred Assets or the Covisint Business that are liabilities or obligations of the Company Compuware and do not include any liabilities or obligations of any Compuware Entity that is organized in connection with the Development Work a foreign jurisdiction.
(b) Except as provided under this Section 2.2, Covisint shall not assume or agree to perform, pay or discharge, or have any liability for, and Compuware shall remain unconditionally liable for and shall discharge, any obligations, liabilities and commitments of Compuware, of any kind or nature whatsoever, whether fixed or unfixednature, known or unknown, absolute fixed or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured contingent (the “Excluded Liabilities”), except that the Buyer will assume at the Closing the following obligations: .
(ic) all obligations The assumption of the Company liabilities by Covisint under the Assumed Contracts, and (ii) the obligations set forth on Schedule 1.2(ii) (collectively, the “Assumed Liabilities”); provided however, that this Section 2.2 shall not enlarge any liability rights of Third Parties under Contracts with Covisint or obligation relating to or arising from any breach, or event, circumstance or condition that with notice, lapse of time or both would constitute or result in a breach, by the Company on or before the Closing Date, of any of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting the generality of the foregoing, the Buyer is not assuming or agreeing to pay, perform or discharge or in any way be responsible for, any Excluded Liabilities, which shall include (i) all Indebtedness (which, for the avoidance of doubt, shall include all notes and interest payable to the Company’s shareholders), (ii) all Company Taxes, (iii) all obligations and liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of the transactions contemplated by this Agreement), (iv) all obligations and liabilities arising on or before the Closing Date, (v) all liabilities and obligations relating to or arising out of any transaction contemplated by this Agreement and (vi) any other liabilities owed to the stockholders of the CompanyCompuware.
Appears in 2 contracts
Samples: Contribution Agreement (Covisint Corp), Contribution Agreement (Covisint Corp)
Assumption of Liabilities. Notwithstanding anything to the contrary contained in this Agreement or any Company Transaction Document, and regardless of whether such liability is disclosed in this Agreement, in any of the Transaction Documents, on any Schedule hereto or thereto or otherwise, and regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwise, the Buyer will not shall assume, agree to payperform, perform or and discharge or in any way be responsible when due only those obligations of Seller arising out of the contracts and agreements listed on Schedules 7(j) and 7(k) with respect to the period from and after the Closing (the Assumed Liabilities"). Seller and Buyer agree that, other than the Assumed Liabilities, Buyer does not agree to assume and shall have no responsibility for any debts of the debts, obligations or liabilities of Seller (including interest and/or penalties thereonthe "Excluded Liabilities"), liabilities or obligations all of which shall remain the sole responsibility of Seller. The Excluded Liabilities include without limitation all of the Company following:
(a) Any tax liability or tax obligation of Seller, which has been or may be asserted by any taxing authority, including without limitation any such liability or obligation arising out of or in connection with this Agreement or the Development Work transactions contemplated hereby.
(b) Any liability or obligation of Seller whether incurred prior to, at or subsequent to the Closing for any amounts due or which may become due to any person or entity solely by reason of the fact that such person or entity is or has been a holder of any kind debt or nature whatsoeverequity security of Seller.
(c) Any trade account payable or note payable of Seller or any contract obligation of Seller (other than the Assumed Liabilities) whether incurred prior to, whether fixed at or unfixedsubsequent to the Closing.
(d) Any liability or obligation arising out of any litigation, suit, proceeding, action, claim or investigation, at law or in equity or in arbitration, related to Seller's operation of the Business prior to the Closing.
(e) Any claim, liability or obligation, known or unknown, absolute contingent or contingentotherwise, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidatedthe existence of which is a breach of, or secured inconsistent with, any representation, warranty or unsecured (the “Excluded Liabilities”), except that the Buyer will assume at the Closing the following obligations: (i) all obligations covenant of the Company under the Assumed Contracts, and (ii) the obligations Seller set forth on Schedule 1.2(iiin this Agreement.
(f) (collectively, the “Assumed Liabilities”); provided however, that any Any liability or obligation relating to or arising from any breach, or event, circumstance or condition that with notice, lapse of time or both would constitute or result specifically stated in a breach, by the Company on or before the Closing Date, of any of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting the generality of the foregoing, the Buyer is not assuming or agreeing to pay, perform or discharge or in any way be responsible for, any Excluded Liabilities, which shall include (i) all Indebtedness (which, for the avoidance of doubt, shall include all notes and interest payable to the Company’s shareholders), (ii) all Company Taxes, (iii) all obligations and liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of the transactions contemplated by this Agreement), (iv) all obligations and liabilities arising on or before the Closing Date, (v) all liabilities and obligations relating to or arising out of any transaction contemplated by this Agreement and (vi) any other liabilities owed or the Schedules hereto as not to the stockholders of the Companybe assumed by Buyer.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Smartserv Online Inc), Asset Purchase Agreement (Data Transmission Network Corp)
Assumption of Liabilities. Notwithstanding anything Leap hereby assumes and agrees to pay, perform, fulfill and discharge, in accordance with their respective terms, all of the following Liabilities (regardless of when or where such Liabilities arose or arise or were or are incurred), except to the contrary contained in this Agreement or any Company Transaction Document, and regardless of whether such liability is disclosed extent otherwise set forth in this Agreement, in or the Separation and Distribution Agreement:
(a) all Liabilities to or relating to any of the Transaction Documents, on any Schedule hereto or thereto or otherwiseLeap Individual, and regardless of the Buyer’s his or any of its directors’her respective dependents and beneficiaries, officers’in each case relating to, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwise, the Buyer will not assume, agree to pay, perform or discharge or in any way be responsible for any debts (including interest and/or penalties thereon), liabilities or obligations of the Company or in connection with the Development Work of any kind or nature whatsoever, whether fixed or unfixed, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured (the “Excluded Liabilities”), except that the Buyer will assume at the Closing the following obligations: (i) all obligations of the Company under the Assumed Contracts, and (ii) the obligations set forth on Schedule 1.2(ii) (collectively, the “Assumed Liabilities”); provided however, that any liability or obligation relating to or arising from any breach, or event, circumstance or condition that with notice, lapse of time or both would constitute or result in a breach, by the Company on or before the Closing Date, of any of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting the generality of the foregoing, the Buyer is not assuming or agreeing to pay, perform or discharge or in any way be responsible for, any Excluded Liabilities, which shall include (i) all Indebtedness (which, for the avoidance of doubt, shall include all notes and interest payable to the Company’s shareholders), (ii) all Company Taxes, (iii) all obligations and liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of the transactions contemplated by this Agreement), (iv) all obligations and liabilities arising on or before the Closing Date, (v) all liabilities and obligations relating to or arising out of or resulting from employment by QUALCOMM or a QUALCOMM Entity before becoming a Leap Individual arising under a QUALCOMM Plan, but only to the extent such Liabilities relate to the payment of a bonus to a Leap Individual or relate to the payment or crediting of accrued vacation and sick pay; (b) all other Liabilities to or relating to Leap Individuals and other employees or former employees of Leap or a Leap Entity, and their dependents and beneficiaries, to the extent relating to, arising out of or resulting from future, present or former employment with Leap or a Leap Entity (including Liabilities under Leap Plans); (c) all Liabilities relating to, arising out of or resulting from any transaction contemplated other actual or alleged employment relationship with Leap or a Leap Entity (including without limitation, actual or alleged offers of employment with Leap or a Leap Entity made prior to the Close of the Distribution Date to employees of QUALCOMM, a QUALCOMM Entity or any other Person, by this Agreement any Person who at the time of the actual or alleged offer of employment was an employee of QUALCOMM or a QUALCOMM Entity and who then became an employee of Leap or a Leap Entity); and (vid) any all other Liabilities relating to, arising out of or resulting from obligations, liabilities owed and responsibilities expressly assumed or retained by Leap, a Leap Entity, or a Leap Plan pursuant to this Agreement. As to bonus arrangements under a QUALCOMM Plan for which QUALCOMM has accrued a liability and which would be payable for the stockholders first time after the Distribution Date, a Leap Individual's termination of employment with QUALCOMM to become a Leap Individual shall not prevent or terminate Leap's assumption of the Companyliability to pay such bonus amount, even though the applicable QUALCOMM Plan may provide that termination of employment with QUALCOMM terminates QUALCOMM's liability for this bonus.
Appears in 2 contracts
Samples: Employee Benefits Agreement (Leap Wireless International Inc), Employee Benefits Agreement (Leap Wireless International Inc)
Assumption of Liabilities. Notwithstanding anything (a) On the Closing Date, effective immediately upon consummation of the Closing, Buyer shall assume and agree to discharge only the contrary contained in this Agreement or any Company Transaction Document, liabilities and regardless obligations of whether such liability is disclosed Seller identified on Exhibit F hereto (the “Assumed Liabilities”).
(b) Except as set forth in this Agreement, in Buyer shall not assume and shall not be liable for any liabilities and obligations of Seller or the conduct of the Transaction Documentsbusiness by Seller of whatever nature whether presently in existence or arising hereafter, on any Schedule hereto or thereto or otherwiseexcept for the Assumed Liabilities. All such liabilities and obligations not assumed by Buyer as contemplated by this Agreement, shall be retained by and regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwise, the Buyer will not assume, agree to pay, perform or discharge or in any way be responsible for any debts (including interest and/or penalties thereon), remain liabilities or and obligations of the Company or in connection with the Development Work of any kind or nature whatsoeverSeller (collectively, whether fixed or unfixed, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured (the “Excluded Liabilities”), except that the Buyer will assume at the Closing the following obligations: (i) all obligations of the Company under the Assumed Contracts, and (ii) the obligations set forth on Schedule 1.2(ii) (collectively, the “Assumed Liabilities”); provided however, that any liability or obligation relating to or arising from any breach, or event, circumstance or condition that with notice, lapse of time or both would constitute or result in a breach, by the Company on or before the Closing Date, of any of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting the generality of the foregoing, Buyer shall not assume and shall not be liable for any of the Buyer is not assuming following liabilities or agreeing to pay, perform or discharge or in any way be responsible for, any Excluded Liabilities, which shall include obligations of Seller: (i) all Indebtedness any liability or obligation for taxes attributable to or imposed upon Seller or Buyer, or attributable to or imposed upon the Assets for any period (which, for the avoidance of doubt, shall include all notes and interest payable or portion thereof) ending on or prior to the Company’s shareholders)applicable Closing Date, including without limitation taxes imposed upon Seller as a result of the transactions contemplated by this Agreement; (ii) all Company Taxeslawsuits, claims and other liabilities or obligations arising in connection with all actions, suits, claims, investigations or proceedings to the extent relating to the conduct of the business relating to the Assets by Seller prior to Closing or the ownership of the Assets by Seller prior to Closing; (iii) all liabilities or obligations and liabilities related relating to the employment, failure to employ or termination of employment of any individual with respect to the business relating to the Assets by Seller or relating to or under any labor agreements or employee benefit or compensation (which arrangements, plans, programs, policies, practices or agreements, including, without limitation, severance or accrued vacation pay, of Seller or for the avoidance benefit of doubt shall include payroll and accrued vacation expensesemployees of Seller; (iv) and employee benefit plans or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required any liability arising under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” Environmental Laws (as such term is defined in Section 7(j) hereof) with respect to the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result conduct of the consummation of business relating to the transactions contemplated Assets by this Agreement), (iv) all obligations and liabilities arising on or before the Closing Date, Seller prior to Closing; (v) all liabilities and obligations relating to any indebtedness for borrowed money or arising out otherwise of any transaction contemplated by this Agreement and Seller; (vi) any other liabilities owed amounts payable to Seller’s affiliates; or (vii) any workers’ compensation claims relating to employees of Seller and resulting from the stockholders of the Companyemployment by Seller.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Macrovision Corp), Asset Purchase Agreement (Macrovision Corp)
Assumption of Liabilities. Notwithstanding anything to (a) On and after the contrary contained in this Agreement or any Company Transaction DocumentClosing Date, and regardless of whether such liability is disclosed in this Agreement, in any of the Transaction Documents, on any Schedule hereto or thereto or otherwise, and regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwise, the Buyer will not assume, agree to pay, perform or discharge or in any way be responsible for any debts (including interest and/or penalties thereon), liabilities or obligations of the Company or in connection with the Development Work of any kind or nature whatsoever, whether fixed or unfixed, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured (the “Excluded Liabilities”), except that the Buyer Retail Sub will assume at the Closing the following obligations: and discharge all Liabilities (i) all obligations included in the calculation of the Company under the Assumed ContractsFinal Closing Working Capital, and (ii) arising out of or \ relating to the obligations set forth Assets or the conduct of the Business on Schedule 1.2(iior after the Closing Date (including Liabilities relating to the Remediated Sites to the extent arising out of any violation or alleged violation of or non-compliance or alleged non-compliance with any Environmental Law or Environmental Permit after the Closing Date or any release into the environment on or after the Closing Date of any Materials of Environmental Concern), (iii) subject to the terms and conditions of Article IX, arising out of Environmental Claims or otherwise arising under or relating to Environmental Laws and arising out of or relating to the Assets or the conduct of the Business prior to the Closing Date, in each case to the extent relating to the Identified Contamination Sites and the Unknown Sites (excluding any Environmental Claims relating to any Hazardous Waste Site where Materials of Environmental Concern have been transported for storage, treatment or disposal prior to the Closing Date), or (iv) specified in Section 6.9 (collectively, the “"Assumed Liabilities”"); .
(b) Except for the Assumed Liabilities specifically assumed by Retail Sub hereunder, the parties hereto agree that Retail Sub is not assuming any Liability of Seller or of any Affiliate of Seller (or to which any asset of Seller is subject) and Retail Sub hereby disclaims any Liabilities of Seller or of any Affiliate of Seller not so specifically assumed, including the Retained Liabilities. The parties intend that, except as expressly provided howeverherein, that Retail Sub is not, nor is it to be deemed, a successor of Seller or of any liability Affiliate of Seller with respect to any of Seller's or obligation relating of any such Affiliate's Liabilities to third persons arising or arising from any breachaccruing before, or event, circumstance or condition that with notice, lapse of time or both would constitute or result in a breach, by the Company on or before after the Closing Date, of any of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting the generality of the foregoingfirst sentence of this Section 2.3(b), the Buyer is not assuming or agreeing to pay, perform or discharge or in any way be responsible for, any Excluded Liabilities, which shall include (i) all Indebtedness (which, for the avoidance of doubt, shall include all notes and interest payable to the Company’s shareholders), (ii) all Company Taxes, (iii) all obligations and liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of the transactions contemplated by this Agreement), (iv) all obligations and liabilities arising on or before the Closing Date, (v) all liabilities and obligations relating to or arising out of any transaction contemplated by this Agreement and (vi) any other liabilities owed to the stockholders of the Company."Retained Liability" includes:
Appears in 2 contracts
Samples: Asset Contribution and Recapitalization Agreement (Clark Usa Inc /De/), Asset Contribution and Recapitalization Agreement (Clark Refining & Marketing Inc)
Assumption of Liabilities. Notwithstanding anything Subject to the contrary contained in this Agreement or any Company Transaction Document, terms and regardless conditions of whether such liability is disclosed in this Agreement, in any at the Closing, Buyer shall assume and agree to perform, pay or discharge the liabilities and obligations of the Transaction Documents, Seller and the Company related to the Business set forth on any Schedule hereto or thereto or otherwise, and regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection 1.5 including all liabilities associated with the Buyer’s due diligence investigation of Contracts and all accounts payable set forth on the Development Work Adjusted Closing Date Balance Sheet (as defined below) (the "Assumed Liabilities"). Except as set forth in this Section 1.5, Buyer shall not assume or otherwise, the Buyer will not assume, agree to pay, perform or discharge or in any way be responsible for any debts (including interest and/or penalties thereon), liabilities or obligations of Seller or the Company or in connection with Company. Following the Development Work of any kind or nature whatsoeverClosing, whether fixed or unfixedSeller shall perform, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured (the “Excluded Liabilities”), except that the Buyer will assume at the Closing the following obligations: (i) all obligations of the Company under the Assumed Contracts, and (ii) the obligations set forth on Schedule 1.2(ii) (collectively, the “Assumed Liabilities”); provided however, that any liability or obligation relating to or arising from any breach, or event, circumstance or condition that with notice, lapse of time or both would constitute or result in a breach, by the Company on or before the Closing Date, of any of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting the generality of the foregoing, the Buyer is not assuming or agreeing to pay, perform pay or discharge or in any way be responsible for, any Excluded Liabilities, which shall include (i) all Indebtedness (which, for the avoidance of doubt, shall include all notes and interest payable to the Company’s shareholders), (ii) all Company Taxes, (iii) all obligations and liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of the transactions contemplated by this Agreement), (iv) all obligations and liabilities arising on or before the Closing Date, (v) all liabilities and obligations relating to the Business, other than the Assumed Liabilities, that arose or relate to events occurring prior to the Closing, including (i) all claims relating to products sold or distributed by the Company prior to the Closing Date with the exception of warranty repairs in the ordinary course of business and (ii) all liabilities and obligations of Seller or the Company to employees, agents, representatives or similar persons under any oral or written agreement, arrangement, benefit plan, insurance policy or other program except as provided in the Transfer of Undertakings (Protection of Employment) Regulations 1981, as amended. Other than the Assumed Liabilities, the Seller shall continue to be responsible for all debts payable by and claims outstanding against the Business at Closing or arising out by reason of anything done or omitted to be done prior to Closing including all moneys, wages (including accrued holiday pay), taxes, rent and other expenses accrued as at Closing or in respect of any transaction contemplated by deed, matter, act or thing done or occurring up to that time, and, other than the Assumed Liabilities, this Agreement and (vi) any other liabilities owed shall not operate to transfer to the stockholders Buyer or shall be construed as an acceptance by the Buyer or shall make the Buyer liable for any debts, liabilities or obligations in respect of any assets of the Companybusiness not purchased by the Buyer or in respect or anything done or omitted to be done before Closing in the course of or in connection with the Business or otherwise in respect of any asset of the Business not transferred under this Agreement. All amounts payable or receivable in respect of the Business which are of a periodical nature including rents, rates, insurance premiums, petrol, gas, water, electricity and telephone charges, royalties and other outgoings or receipts relating to the Business shall (unless otherwise expressly agreed) be apportioned between the Seller and the Buyer as at Closing on the day to day basis.
Appears in 1 contract
Assumption of Liabilities. Notwithstanding anything to (a) On the contrary contained in this Agreement or terms set forth herein, on and after the Closing Date, Buyer shall assume, perform and pay the Assumed Liabilities.
(b) Buyer is assuming only the Assumed Liabilities from the Seller and its Affiliates and is not assuming any Company Transaction Document, and regardless of whether such other liability is disclosed in this Agreement, in any of the Transaction Documents, on any Schedule hereto or thereto or otherwise, and regardless of the Buyer’s Seller or any of its directors’Affiliates of whatever nature, officers’whether presently in existence or arising hereafter (the “Retained Liabilities”) and Buyer does not assume and shall in no event be liable for any such Retained Liabilities, employees’ including, but not limited to:
(i) all liabilities to the extent arising out of or agents’ knowledge relating to the operation or awareness conduct by the Seller or any of its Affiliates of any liabilityretained businesses and all liabilities to the extent arising out of or relating to any Excluded Asset;
(ii) all liabilities and commitments of the Seller or its Affiliates in respect of Taxes incurred with respect to periods ending on or prior to the Closing Date;
(iii) all liabilities and commitments relating to current or former employees of the Seller or its Affiliates, including without limitation (a) any compensation or benefits payable to present or past employees of the Seller or its Affiliates, including without limitation, any liabilities arising under any Employee Benefit Plan of the Seller or its Affiliates and any of the Seller’s or its Affiliates’ liabilities for vacation, holiday or sick pay, and (b) any liabilities under any employment, consulting or non-competition agreement, change of control agreement, indemnity agreement, any retention or performance-based bonus or other compensation agreement, and any similar agreements, whether learned in connection with the Buyer’s due diligence investigation written or oral, and any liabilities arising out of the Development Work termination by the Seller or otherwiseits Affiliates of any of their employees in anticipation or as a consequence of, or following, consummation of the Buyer will not assumetransactions contemplated by the Documents executed or delivered pursuant to this Agreement;
(iv) all debt of Seller or its Affiliates for borrowed money;
(v) all liabilities to any broker, agree to pay, perform finder or discharge agent or in any way be responsible similar intermediary for any debts broker’s fee, finders fee or similar fee or commission relating to the transactions contemplated by this Agreement for which the Seller or its Affiliates is responsible pursuant to Section 3.22;
(vi) all liabilities of Seller and its Affiliates with respect to any Environmental Law or environmental conditions, events, or circumstances, including interest and/or penalties thereon), with respect to any release of Hazardous Substances after the Closing Date to the extent said liabilities or obligations of the Company arise from or in connection with the Development Work of any kind conditions, events or nature whatsoever, whether fixed or unfixed, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured (the “Excluded Liabilities”), except that the Buyer will assume at the Closing the following obligations: (i) all obligations of the Company under the Assumed Contracts, and (ii) the obligations set forth on Schedule 1.2(ii) (collectively, the “Assumed Liabilities”); provided however, that any liability or obligation relating to or arising from any breach, or event, circumstance or condition that with notice, lapse of time or both would constitute or result in a breach, by the Company circumstances occurring on or before the Closing Date, including without limitation the migration of any of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting the generality of the foregoing, the Buyer is not assuming or agreeing to pay, perform or discharge or in any way be responsible for, any Excluded Liabilities, Hazardous Substances which shall include (i) all Indebtedness (which, for the avoidance of doubt, shall include all notes and interest payable to the Company’s shareholders), (ii) all Company Taxes, (iii) all obligations and liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of the transactions contemplated by this Agreement), (iv) all obligations and liabilities arising were released on or before prior to the Closing Date, ;
(v) all liabilities and obligations relating to or arising out of any transaction contemplated by this Agreement and (vivii) any other liabilities owed to the stockholders of the CompanySeller or current or former Affiliates thereof, including without limitation Exeter Hong Kong Ltd., if any, other than the Assumed Liabilities.
Appears in 1 contract
Samples: Asset Purchase Agreement (Iconix Brand Group, Inc.)
Assumption of Liabilities. Notwithstanding anything to the contrary contained in this Agreement or any Company Transaction Document, and regardless of whether such liability is disclosed in this Agreement, in any As of the Transaction DocumentsClosing Date, on any Schedule hereto or thereto or otherwise, Buyer shall assume and regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwise, the Buyer will not assume, agree undertake to pay, discharge and perform all obligations and Liabilities of each Seller under the Licenses owned by such Seller and included in the Purchased Assets and the Assumed Contracts to which such Seller is a party insofar as they relate to the time on or discharge after the Closing Date or in arise out of events occurring on or after the Closing Date (the "Assumed Liabilities"). Buyer shall not assume any way be responsible for any debts (including interest and/or penalties thereon), liabilities or obligations of the Company or in connection with the Development Work other Liability of any kind or nature whatsoever, whether fixed or unfixed, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidatedSeller, or secured any predecessor or unsecured (Affiliate of any Seller, nor any Liability associated with or relating to the “Excluded Liabilities”)Purchased Assets or the Stations, except that the Buyer will assume at the Closing the following obligations: including, without limitation, (i) all obligations of the Company any Liabilities under any Contract not included in the Assumed Contracts, and (ii) any Liabilities under the obligations set forth on Schedule 1.2(ii) (collectively, the “Assumed Liabilities”); provided however, that any liability or obligation Contracts and Licenses relating to or arising from any breach, or event, circumstance or condition that with notice, lapse of time or both would constitute or result in a breach, by the Company on or before period prior to the Closing Date, of any of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting the generality of the foregoing, the Buyer is not assuming or agreeing to pay, perform or discharge or in any way be responsible for, any Excluded Liabilities, which shall include (i) all Indebtedness (which, for the avoidance of doubt, shall include all notes and interest payable to the Company’s shareholders), (ii) all Company Taxes, (iii) all obligations any Action relating to the Stations and liabilities related the Purchased Assets prior to the Closing, (iv) any Liabilities of each Seller arising under capitalized leases, financing arrangements or indebtedness, (v) any Liabilities of each Seller under any employee compensation pension, retirement, health and welfare or other benefit plan or collective bargaining agreement, (which vi) any obligation to any employee of each Seller for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete paymentsretention, performance or stay bonus, benefits, deferred compensationvacation time, continuation coverage required under COBRA for each individual who is sick leave accrued or becomes an “M & A Qualified Beneficiary” (as such term is defined any other compensation payable in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of connection with the consummation of the transactions contemplated by this Agreement)Agreement or otherwise due and payable prior to the Closing, (ivvii) all obligations and liabilities arising on any Liability under or before with respect to any Governmental Order to be discharged prior to the Closing DateClosing, (vviii) all liabilities and obligations any Tax Liability of a Seller or (ix) any Liability relating to or arising out of any transaction contemplated by this Agreement of the Excluded Assets (the Liabilities listed in Clauses (i) through (ix) above and (vi) any other liabilities owed to Liability that is not an Assumed Liability, collectively, the stockholders of the Company"Excluded Liabilities").
Appears in 1 contract
Assumption of Liabilities. Notwithstanding anything Effective as of the Effective Time, Assignee hereby assumes and agrees faithfully to perform and fulfill all the Assignor Liabilities (as defined below), in accordance with their respective terms. Thereafter, Assignee shall be responsible for all Assignor Liabilities held by Assignor, regardless of when or where such Liabilities (as defined below) arose or arise, or whether the facts on which they are based occurred prior to, on or after the date hereof, regardless of where or against whom such Liabilities are asserted or determined (including any Assignor Liabilities arising out of claims made by Assignor’s or Assignee’s respective directors, officers, consultants, independent contractors, employees or agents against Assignor or Assignee or their respective affiliates) or whether asserted or determined prior to the contrary contained in this Agreement or any Company Transaction Documentdate hereof, and regardless of whether such liability is disclosed in this Agreementarising from or alleged to arise from negligence, in any recklessness, violation of the Transaction Documentslaw, on any Schedule hereto misrepresentation by Assignor or thereto or otherwise, and regardless of the Buyer’s Assignee or any of its their respective directors’, officers’, employees’ employees or agents’ knowledge or awareness of any liability.
(a) As used in this Agreement “Liabilities” means all debts, liabilities, guarantees, assurances, commitments and obligations, whether learned in connection with the Buyer’s due diligence investigation of the Development Work fixed, contingent or otherwiseabsolute, the Buyer will asserted or unasserted, matured or unmatured, liquidated or unliquidated, accrued or not assume, agree to pay, perform or discharge or in any way be responsible for any debts (including interest and/or penalties thereon), liabilities or obligations of the Company or in connection with the Development Work of any kind or nature whatsoever, whether fixed or unfixedaccrued, known or unknown, absolute due or contingentto become due, asserted whenever or unassertedhowever arising (including, xxxxxx without limitation, whether arising out of any contract or inchoate, liquidated tort based on negligence or unliquidated, strict liability) and whether or secured not the same would be required by generally accepted principles and accounting policies to be reflected in financial statements or unsecured disclosed in the notes thereto.
(the b) As used in this Agreement “Excluded Assignor Liabilities”), except that the Buyer will assume at the Closing ” shall mean (without duplication) the following obligationsLiabilities other than the Excluded Liabilities set forth on Exhibit B: (i) all obligations Liabilities reflected in the Assignor Balance Sheet, subject to any discharge of such Liabilities subsequent to the date of the Company under the Assumed Contracts, and (ii) the obligations set forth on Schedule 1.2(ii) (collectively, the “Assumed Liabilities”)Assignor Balance Sheet; provided however, that any liability or obligation relating to or arising from any breach, or event, circumstance or condition that with notice, lapse of time or both would constitute or result in a breach, by the Company on or before the Closing Date, of any of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting the generality of the foregoing, the Buyer is not assuming or agreeing to pay, perform or discharge or in any way be responsible for, any Excluded Liabilities, which shall include (i) all Indebtedness (which, for the avoidance of doubt, shall include all notes and interest payable to the Company’s shareholders), (ii) all Company Taxes, Liabilities of Assignor or its subsidiaries that arose after the date of the Assignor Balance Sheet that would be reflected in the balance sheet of Assignor as of the Effective Time if such balance sheet was prepared using the same principles and accounting policies under which the Assignor Balance Sheet was prepared; (iii) all obligations and liabilities related to employee compensation (which for Liabilities that should have been reflected in the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations Assignor Balance Sheet as of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined Effective Time but are not reflected in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of the transactions contemplated by this Agreement), Assignor Balance Sheet for any reason; (iv) all obligations and liabilities arising on or before the Closing Date, Assignor Contingent Liabilities (as defined below); (v) all liabilities and obligations Liabilities, whether arising before, on or after the Effective Time, substantially or exclusively relating to or to, arising out of or resulting from: (1) the operation of Assignor’s business, as conducted at any transaction time prior to the Effective Time (including any Liability relating to, arising out of or resulting from any act or failure to act by any director, officer, employee, agent or representative (whether or not such act or failure to act is or was within such person’s authority)); (2) the operation of any business conducted by Assignee at any time after the Effective Time (including any Liability relating to, arising out of or resulting from any act or failure to act by any director, officer, employee, agent or representative (whether or not such act or failure to act is or was within such person’s authority)); or (3) any Assignor Assets; (vi) outstanding indebtedness of Assignor as set forth on the Assignor Balance Sheet; (vii) all other Liabilities of Assignor with respect to any matter occurring prior to the Effective Time including, without limitation, Liabilities relating to any acts of fraud, deceit, misrepresentations to third parties or indebtedness not reflected on the Assignor Balance Sheet; and (vii) all Liabilities that are expressly contemplated by this Agreement or the Split-Off Agreement as Liabilities to be assumed by Assignee, and (vi) any other liabilities owed to the stockholders all agreements, obligations and Liabilities of the CompanyAssignee under this Agreement.
Appears in 1 contract
Assumption of Liabilities. Notwithstanding anything to Upon the contrary contained in this Agreement or any Company Transaction Document, sale and regardless of whether such liability is disclosed in this Agreement, in any purchase of the Transaction DocumentsSubject Assets, on any Schedule hereto or thereto or otherwise, and regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation exception of the Development Work or otherwise, the Buyer will not assume, agree to pay, perform or discharge or those matters listed in any way be responsible for any debts Schedule 1.2 hereto (including interest and/or penalties thereon), liabilities or obligations of the Company or in connection with the Development Work of any kind or nature whatsoever, whether fixed or unfixed, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured (the “Excluded Liabilities”), except that the Buyer will assume at the Closing the following obligations: (i) all obligations of the Company under the Assumed Contracts, and (ii) the obligations set forth on Schedule 1.2(ii) (collectively, the “Assumed Liabilities”); provided however, that Buyer shall not assume and shall not be liable for any debt, obligation, responsibility or liability of Seller, or obligation relating any Affiliate (as defined below), or any claim against any of the foregoing or against the Subject Assets of the Business arising prior to Closing, whether known or unknown, contingent or absolute, asserted or unasserted, or otherwise. Without limiting the foregoing sentence, Buyer shall have no responsibility with respect to the following, whether or not disclosed in the Base Balance Sheet or a Schedule, including without limitation:
(i) any liabilities and obligations related to or arising from the transactions with any breachofficer, director or shareholder of Seller or any person or organization controlled by, controlling, or eventunder common control with any of them (an “Affiliate”);
(ii) liabilities and obligations for taxes of any kind, circumstance including taxes related to or condition arising solely from the transfers contemplated hereby, which transfer taxes shall be the responsibility of Seller, provided, ad valorem property taxes due on the Subject Assets (or under any real or personal property lease) shall be prorated among Buyer and Seller based upon the number of days in the taxable period to which such ad valorem property taxes apply that each party owns the Subject Assets;
(iii) liabilities and obligations of Seller for damage or injury to person or property, including, without limitation, injuries to employees;
(iv) liabilities and obligations to employees of Seller, whether for accident, disability, or workers compensation insurance or benefits, benefits under employee benefit plans, or obligations related to or resulting from severance of employment by Seller;
(v) workmen’s liens on any of the Subject Assets;
(vi) liabilities incurred by Seller or Shareholder in connection with noticethis Agreement and the transactions provided for herein, lapse including counsel, broker and accountant’s fees, filing fees, transfer and other taxes, and expenses pertaining to Seller’s liquidation or the performance by Seller of time its obligations hereunder;
(vii) liabilities of Seller related to environmental matters, including without limitation, liabilities associated with any disposal or both would constitute use of hazardous materials or result in a breachsubstances under Federal (including CERCLA) or state laws, common law or otherwise;
(viii) liabilities of Seller related to the Occupational Safety and Health Act (“OSHA”), or any other similarly applicable state law, and liabilities for healthcare expenses incurred prior to Closing;
(ix) liabilities of Seller with respect to any options, warrants, agreements or convertible or other rights to acquire any shares of its capital stock of any class or under any benefit plans;
(x) liabilities of Seller regarding any products manufactured or distributed by Seller prior to the Company on Closing Date; and
(xi) any other liabilities arising out of facts or before circumstances existing prior to the Closing Date or the operation of Seller’s Business prior to the Closing Date, of any of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting the generality of the foregoing, the Buyer is not assuming or agreeing to pay, perform or discharge or in any way be responsible for, any Excluded Liabilities, which shall include (i) all Indebtedness (which, for the avoidance of doubt, shall include all notes save and interest payable except to the Company’s shareholders)extent, (ii) all Company Taxesif any, (iii) all obligations and liabilities related to employee compensation (which for included within the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of the transactions contemplated by this Agreement), (iv) all obligations and liabilities arising on or before the Closing Date, (v) all liabilities and obligations relating to or arising out of any transaction contemplated by this Agreement and (vi) any other liabilities owed to the stockholders of the CompanyAssumed Liabilities.
Appears in 1 contract
Samples: Asset Purchase Agreement (Computer Software Innovations Inc)
Assumption of Liabilities. Notwithstanding anything to the contrary contained in this Agreement or any Company Transaction Document, and regardless of whether such liability is disclosed Except as expressly provided in this Agreement, in Purchaser shall not assume any of the Transaction Documents, on any Schedule hereto or thereto or otherwise, and regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwise, the Buyer will not assume, agree to pay, perform or discharge or in any way be responsible for any debts (including interest and/or penalties thereon), liabilities or obligations of Seller. Purchaser hereby undertakes, assumes and agrees to perform, pay, honor, satisfy, fulfill, and discharge the Company following, hereinafter referred to as the "Assumed Liabilities", whether liquidated, unliquidated, accrued, absolute, contingent, or otherwise:
(a) any and all obligations, liabilities, or commitments specifically undertaken or assumed by Purchaser pursuant to the terms of this Agreement, including without limitation the Accrued Liabilities and the matters described in connection Section 4.15(b) hereof, in accordance with the Development Work provisions thereof;
(b) any and all unperformed and unfulfilled liabilities, obligations, and commitments required to be performed and fulfilled by Seller under the terms of any kind or nature whatsoeverthe Contracts and the other executory contracts, agreements, purchase, and sales orders, leases, licenses, commitments, and undertakings of the Business entered into in the Ordinary Course of Business, whether fixed or unfixed, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidatednot set forth in Schedule 1.12, or secured or unsecured which have been entered into between the date hereof and Closing in the Ordinary Course of Business;
(the “Excluded Liabilities”), except that the Buyer will assume at the Closing the following obligations: (ic) any and all obligations liability for accrued vacation for all of the Company under Hired Employees for all relevant periods prior to Closing, together with the Assumed Contracts, other liabilities which collectively comprise the Accrued Liabilities;
(d) any and (ii) the obligations all liability and responsibility for workers' compensation claims as set forth on Schedule 1.2(iiin Section 6.5;
(e) (collectively, the “Assumed Liabilities”); provided however, that any liability or obligation relating to or arising from any breach, or event, circumstance or condition that with notice, lapse of time or both would constitute or result in a breach, by the Company on or before the Closing Date, of any of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting the generality of the foregoing, the Buyer is not assuming or agreeing to pay, perform or discharge or in any way be responsible for, any Excluded Liabilities, which shall include (i) all Indebtedness (which, for the avoidance of doubt, shall include all notes and interest payable to the Company’s shareholders), (ii) all Company Taxes, (iii) all obligations and liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of the transactions contemplated by this Agreement), (iv) all obligations and liabilities arising on or before the Closing Date, (v) all liabilities and obligations relating to claims asserted at any time on or after the Closing Date by any person or entity (including the expense of defense and settlement thereof) for or relating to personal injury, wrongful death, or property damage which occur on or after the Closing Date, including without limitation claims which involve allegations of Product Warranty Liability or Product Liability, which is actually or allegedly caused by, arising out of any transaction contemplated or resulting from Products or services sold or provided by this Agreement and (vi) any other liabilities owed to Purchaser, whether directly or indirectly, in the stockholders conduct of the Company.ASD business; and,
(f) other than Accounts Payable and intercompany liabilities, any and all liabilities, obligations, and commitments incurred in the Ordinary Course of Business since the Balance Sheet Date and in accordance with the terms of this Agreement. It is expressly agreed that Purchaser has not assumed or agreed to perform, pay, or discharge, and that Seller hereby undertakes, assumes, and agrees to perform, pay, honor, satisfy, fulfill, and discharge, the Excluded Liabilities, whether liquidated, unliquidated, accrued, absolute, contingent, or otherwise, including without limitation;
Appears in 1 contract
Assumption of Liabilities. Notwithstanding anything Upon the terms and subject to the contrary contained in this Agreement or any Company Transaction Document, conditions and regardless of whether such liability is disclosed exclusions set forth in this Agreement, in any of the Transaction Documents, on any Schedule hereto Buyer shall assume and discharge or thereto or otherwiseperform when due, and regardless of shall assume pursuant to the Buyer’s Assignment and Assumption Agreement and the Employee Benefits Assignment and Assumption Agreement, all Liabilities (other than the Retained Liabilities) related exclusively to, arising exclusively out of, or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned incurred exclusively in connection with the Buyer’s due diligence investigation of Business or the Development Work operation thereof, currently or otherwiseas hereafter conducted, the Buyer will not assumeand whether accrued before, agree to pay, perform on or discharge or in any way be responsible for any debts (including interest and/or penalties thereon), liabilities or obligations of the Company or in connection with the Development Work of any kind or nature whatsoever, whether fixed or unfixed, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured (the “Excluded Liabilities”), except that the Buyer will assume at after the Closing the following obligations: Date (i) all obligations of the Company under the Assumed Contracts, and (ii) the obligations set forth on Schedule 1.2(iiunless otherwise specified) (collectively, the “Assumed Liabilities”"ASSUMED LIABILITIES"); provided however, that any liability or obligation including the following:
(a) all Liabilities relating to accounts payable of the Business and the Division, other than Retained Liabilities;
(b) all Liabilities relating to, arising out of or incurred in connection with any Acquired Contract;
(c) all Liabilities arising from out of or in connection with any breach, warranties relating to the sale or event, circumstance disposition of any product or condition that with notice, lapse of time or both would constitute or result in a breach, service by the Company Business or the Division;
(d) all Liabilities arising out of or in connection with any product-liability claims or Losses that involve the use of any product manufactured, designed, sold or otherwise disposed of exclusively by the Business or the Division, whether before, on or before after the Closing Date, of any of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting the generality of the foregoing, the Buyer is not assuming or agreeing to pay, perform or discharge or in any way be responsible for, any Excluded Liabilities, which shall include ;
(ie) all Indebtedness (whichLiabilities for sales, for the avoidance of doubttransfer, shall include all notes documentary, use, filing and interest payable to the Company’s shareholders), (ii) all Company Taxes, (iii) all obligations similar Taxes and liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined fees arising solely in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of connection with the transactions contemplated by this Agreement), whether levied on Buyer or Seller;
(ivf) all obligations and liabilities arising Liabilities for Taxes attributable to the Purchased Assets, the Business or the Division that relate to taxable periods, or portions thereof, ending on or before prior to the Closing Date, but only to the extent that (vi) the preparation of Returns relating to, or the payment of, such Taxes is or has been the direct responsibility of the Division (including the management, employees or agents thereof) prior to or on the Closing Date or (ii) such Taxes arise out of or in connection with untrue or inaccurate information provided to Seller by the Division (including the management, employees or agents thereof) prior to the Closing Date (all Liabilities referred to in this Section 2.2(f), together with all Liabilities referred to in Section 2.2(e), the "ASSUMED TAXES");
(g) all liabilities and obligations Liabilities assumed by Buyer pursuant to Article V;
(h) all Environmental Liabilities; and
(i) all Liabilities relating to or to, arising out of any transaction contemplated or incurred in connection with those certain Severance Agreements dated as of December 27, 2001, by this Agreement and (vi) any other liabilities owed to the stockholders between Seller and each of the CompanyWilliam Reisdorf, Robert Hogan, Chad Archer, Rodney Cole and David Nxxxx.
Appears in 1 contract
Assumption of Liabilities. Notwithstanding anything (a) Upon the terms and subject to the contrary contained in this Agreement or any Company Transaction Document, and regardless conditions of whether such liability is disclosed in this Agreement, in any Purchaser shall assume, effective as of the Transaction Documents, on any Schedule hereto or thereto or otherwiseClosing, and regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwise, the Buyer will not assume, agree to shall pay, perform or and discharge or in any way be responsible for any debts (including interest and/or penalties thereon)when due, liabilities or obligations the following Liabilities of the Company or in connection with the Development Work of (excluding any kind or nature whatsoever, whether fixed or unfixed, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured (the “Excluded Retained Liabilities”), except that the Buyer will assume at the Closing the following obligations: (i) all obligations of the Company under the Assumed Contracts, and (ii) the obligations set forth on Schedule 1.2(ii) (collectively, the “Assumed Liabilities”); provided however, that any liability in each case, without further recourse to the Company:
(i) all Liabilities under or obligation otherwise arising out of or relating to the Transferred Contracts, whether arising prior to, on or after the Closing Date;
(ii) all Accounts Payable of the Company, whether arising from prior to, on or after the Closing;
(iii) all Liabilities under or otherwise arising out of or relating to the Transferred Permits, whether arising prior to, on or after the Closing Date;
(iv) all Liabilities in respect of any breachProceedings to which the Company is a party, whether arising prior to, on or after the Closing Date (including any Liabilities relating to any product liability, consumer protection, consumer fraud, breach of warranty or similar claim for injury to person or property);
(v) all Liabilities to the extent arising out of or relating to the return (including any return based on breach of warranty) of, or eventrefund, circumstance adjustment, allowance, rebate or condition that with noticeexchange in respect of, lapse of time any product produced, manufactured or both would constitute or result in a breach, sold by the Company Company, whether arising prior to, on or before after the Closing Date;
(vi) one-half of all Transfer Taxes;
(vii) all Liabilities with respect to the Transferred Employees (or any dependent or beneficiary of any Transferred Employee) to the extent arising on or after the Closing Date, of any of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting the generality including with respect to severance arrangements in effect as of the foregoing, date hereof described in Exhibits C or D of the Buyer is not assuming or agreeing to pay, perform or discharge or in any way be responsible for, any Excluded Liabilities, which shall include Company Disclosure Schedule;
(iviii) all Indebtedness Liabilities related to the Transferred Benefit Plans and the Rejected Offer Liabilities;
(whichix) all Change in Control Payments; and
(x) all other Liabilities of the Company, or otherwise arising out of or relating to the Transferred Assets or the ownership or operation thereof, whether arising prior to, on or after the Closing Date, including, for the avoidance of doubt, shall include all notes and interest payable to the Company’s shareholders), (ii) all Company Taxes, (iii) all obligations and liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined Liabilities included in the Treas. Reg. §54.4980B-9 and workers’ compensation claimscalculation of Current Liabilities, subject to adjustment as provided in Section 2.02.
(b) as a result Notwithstanding any other provision of the consummation of the transactions contemplated by this Agreement), (iv) all obligations and liabilities arising on or before Purchaser shall not assume any Retained Liability. The term “Retained Liabilities” means the Closing Date, (v) all liabilities and obligations relating to or arising out of any transaction contemplated by this Agreement and (vi) any other liabilities owed to the stockholders following Liabilities of the Company.:
Appears in 1 contract
Samples: Asset Purchase Agreement (Albany Molecular Research Inc)
Assumption of Liabilities. Notwithstanding anything As of the Cutoff Date, Drive shall assume the Assumed Liabilities, as set out in Schedule 1.1(b) hereto, and the Parties hereby confirm and agree that on and after the Cutoff Date, Drive shall assume all duties, obligations, and liabilities or claims against Auto related to the contrary contained in this securitization transactions or the FCAR - Bank of America warehouse facility (excluding those duties, obligations and liabilities or claims arising under the Master Purchase Agreement or any Company Transaction Documentdated March 30, 1999, as amended, among Auto, FirstCity Consumer Finance Corporation, and regardless of whether such liability is disclosed in this Agreement, in any of the Transaction Documents, on any Schedule hereto or thereto or otherwise, and regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwise, the Buyer will not assume, agree to pay, perform or discharge or in any way be responsible for any debts (including interest and/or penalties thereon), liabilities or obligations of the Company or in connection with the Development Work of any kind or nature whatsoever, whether fixed or unfixed, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured (the “Excluded Liabilities”), except that the Buyer will assume at the Closing the following obligations: (i) all obligations of the Company under the Assumed Contracts, and (ii) the obligations set forth on Schedule 1.2(ii) (collectively, the “Assumed Liabilities”FCAR Receivables L.L.C.); provided however, that Drive shall not assume or otherwise be responsible for any liability obligations, known or obligation relating unknown, contingent or direct, asserted or unasserted that arise before the Cutoff Date with respect to the securitization transactions or arising from the FCAR - Bank of America warehouse facility, except as set forth in Schedule 1.1(b), nor any breachduties, obligations and liabilities of, or eventclaims nor against, circumstance Auto or condition that with notice, lapse of time or both would constitute or result in a breach, by the Company on or before the Closing Date, of any of its Affiliates (or their respective employees, agents, officers, directors, trustees, representatives, subsidiaries, past or present shareholders, or Affiliates or any predecessor entities), including, without limitation, any obligations to cure existing defaults (known or unknown or asserted or unasserted) and any responsibility for any act, error or omission related to the business of Auto or any of its Affiliates, or the Assets pertaining to the period prior to the Cutoff Date. The assumption of liabilities by Drive under an Assumed Contract this Section 2.4 shall be an Excluded Liability. Without limiting the generality not constitute a release by Auto or its Affiliates of the foregoingduties, obligations, and responsibilities of Auto or its Affiliates under the Buyer is not assuming or agreeing to pay, perform or discharge or in any way be responsible for, any Excluded Liabilities, which shall include (i) all Indebtedness (which, for the avoidance of doubt, shall include all notes and interest payable to the Company’s shareholders), (ii) all Company Taxes, (iii) all obligations and liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations basic documents of the Company (which, for securitization transactions and the avoidance FCAR - Bank of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of the transactions contemplated by this Agreement), (iv) all obligations and liabilities arising on or before the Closing Date, (v) all liabilities and obligations relating to or arising out of any transaction contemplated by this Agreement and (vi) any other liabilities owed to the stockholders of the CompanyAmerica warehouse facility.
Appears in 1 contract
Samples: Contribution and Assumption Agreement (Firstcity Financial Corp)
Assumption of Liabilities. Notwithstanding anything to (1) From and after the contrary contained in this Agreement or any Company Transaction DocumentClosing ------------------------- Date, Buyer shall assume, and regardless of whether such liability is disclosed in this Agreementshall honor, in any of the Transaction Documents, on any Schedule hereto or thereto or otherwise, and regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwise, the Buyer will not assume, agree to pay, perform or discharge and satisfy when due any and all liabilities, obligations and responsibilities to, or in any way be responsible for any debts (including interest and/or penalties thereon)respect of, liabilities or obligations each Transferred Employee, and each former employee and officer of Echelon and its subsidiaries, arising under the Company terms of, or in connection with, any Employee Benefit Plan, in each case, in accordance with the Development Work terms thereof in effect immediately prior to the date hereof, with respect to events or claims arising at any time; provided, that nothing contained herein shall constitute a -------- commitment or obligation on the part of Buyer to continue any kind or nature whatsoever, whether fixed or unfixed, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidatedsuch Employee Benefit Plan after the Closing Date except that Buyer shall provide, or secured or unsecured (the “Excluded Liabilities”)shall cause to be provided, except that the Buyer will assume at the Closing the following obligations: (i) all obligations of the Company under the Assumed Contracts, and (ii) the obligations set forth effective commencing on Schedule 1.2(ii) (collectively, the “Assumed Liabilities”); provided however, that any liability or obligation relating to or arising from any breach, or event, circumstance or condition that with notice, lapse of time or both would constitute or result in a breach, by the Company on or before the Closing Date, coverage to all current and former employees of Echelon and its subsidiaries (including any employees who do not accept the offer of its obligations employment described in Section 11.1 ---- hereof), and their spouses and dependents, under an Assumed Contract a group health plan which does not contain any waiting period or exclusion or limitation with respect to any pre-existing conditions, and Buyer shall be an Excluded Liability. Without limiting solely responsible for compliance with the generality requirements of Section 4980B of the foregoingCode and part 6 of subtitle B of Title I of ERISA ("COBRA"), including, without limitation, the Buyer is not assuming or agreeing provision of ----- continuation coverage, with respect to payall such current and former employees, perform or discharge or in any way be responsible for, any Excluded Liabilities, which shall include (i) all Indebtedness (whichspouses and dependents, for the avoidance of doubtwhom a qualifying event occurs before, shall include all notes and interest payable to the Company’s shareholders), (ii) all Company Taxes, (iii) all obligations and liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of the transactions contemplated by this Agreement), (iv) all obligations and liabilities arising on or before after the Closing Date. The terms "group health plan", "continuation coverage", "qualifying event" and "qualified beneficiary" are used in this Section 11.2(a)(1) with the respective meanings ascribed thereto in COBRA. ----------
(2) On the Closing Date, Buyer shall assume sponsorship of the Echelon International Corporation Savings Plan (vthe "Savings Plan") and the ------------ related trust, and the liabilities thereunder, with respect to all persons entitled to benefits under the provisions of the Savings Plan, and Echelon shall cause all right, title, interest, authorities, obligations, duties, liabilities and obligations relating assets of Echelon and its subsidiaries in, to or arising out and under the Savings Plan and the related trust to be transferred to and assumed by Buyer and any successor trustee, respectively, in accordance with applicable law. At Closing, the parties shall execute and deliver such documents and instruments as may be required to effect such assumption and transfer and to ensure that all assets of any transaction contemplated by this Agreement and (vi) any other liabilities owed the Savings Plan, as the same exist immediately prior to the stockholders of the Company.Closing
Appears in 1 contract
Assumption of Liabilities. Notwithstanding anything to the contrary contained in this Agreement or any Company Transaction Document, and regardless of whether such liability is disclosed in this Agreement, in any of the Transaction Documents, on any Schedule hereto or thereto or otherwise, and regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwise, the Buyer will not shall assume, agree to payperform, perform and discharge when due only those obligations of Seller arising out of the contracts, leases and agreements listed on Schedules 7(j) and 7(k) which are or discharge become assignable with respect to the period from and after the date of this Agreement or in any way the date such contract, lease or agreement becomes assignable, as the case may be responsible (the Assumed Liabilities"). Seller and Buyer agree that, other than the Assumed Liabilities, Buyer does not agree to assume and shall have no responsibility for any debts of the debts, obligations or liabilities of Seller (including interest and/or penalties thereonthe "Excluded Liabilities"), liabilities or obligations all of which shall remain the sole responsibility of and shall be paid and discharged by Seller as they become due. The Excluded Liabilities include without limitation all of the Company following:
(a) Any tax liability or tax obligation of Seller, its directors, officers, shareholders and agents which has been or may be asserted by any taxing authority, including without limitation any such liability or obligation arising out of or in connection with this Agreement or the Development Work transactions contemplated hereby.
(b) Any liability or obligation of Seller whether incurred prior to, at or subsequent to the date of this Agreement for any amounts due or which may become due to any person or entity who is or has been a holder of any kind debt or nature whatsoeverequity security of Seller.
(c) Any trade account payable or note payable of Seller or any contract obligation of Seller (other than the Assumed Liabilities) whether incurred prior to, whether fixed at or unfixedsubsequent to the date of this Agreement.
(d) Any liability or obligation arising out of any litigation, suit, proceeding, action, claim or investigation, at law or in equity or in arbitration, related to Seller's operation of the Business prior to the date of this Agreement.
(e) Any claim, liability or obligation, known or unknown, absolute contingent or contingentotherwise, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidatedthe existence of which is a breach of, or secured inconsistent with, any representation, warranty or unsecured (the “Excluded Liabilities”), except that the Buyer will assume at the Closing the following obligations: (i) all obligations covenant of the Company under the Assumed Contracts, and (ii) the obligations Seller set forth on Schedule 1.2(iiin this Agreement.
(f) (collectively, the “Assumed Liabilities”); provided however, that any Any liability or obligation relating to or arising from any breach, or event, circumstance or condition that with notice, lapse of time or both would constitute or result specifically stated in a breach, by the Company on or before the Closing Date, of any of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting the generality of the foregoing, the Buyer is not assuming or agreeing to pay, perform or discharge or in any way be responsible for, any Excluded Liabilities, which shall include (i) all Indebtedness (which, for the avoidance of doubt, shall include all notes and interest payable to the Company’s shareholders), (ii) all Company Taxes, (iii) all obligations and liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of the transactions contemplated by this Agreement), (iv) all obligations and liabilities arising on or before the Closing Date, (v) all liabilities and obligations relating to or arising out of any transaction contemplated by this Agreement and (vi) any other liabilities owed or the Schedules hereto as not to the stockholders of the Companybe assumed by Buyer.
Appears in 1 contract
Samples: Purchase Agreement (Data Transmission Network Corp)
Assumption of Liabilities. Notwithstanding anything (a) Upon the terms and subject to the contrary contained in this Agreement or any Company Transaction Document, and regardless conditions of whether such liability is disclosed in this Agreement, on the Closing Date, Buyer shall deliver to Sellers an undertaking and assumption, in any the form of the Transaction DocumentsExhibit A, on any Schedule hereto or thereto or otherwisepursuant to which Buyer shall assume and be obligated for, and regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwise, the Buyer will not assume, shall agree to pay, perform and discharge in accordance with their terms, the following obligations and liabilities of each Seller or discharge Option Party (except to the extent such obligations and liabilities constitute Excluded Liabilities):
(i) all liabilities of Seller or Option Party to the extent reflected or reserved against on the Closing Date Balance Sheet and included in “Current Liabilities” in the calculation of the Closing Date Working Capital Amount or Closing Date Working Capital Deficit, as the case may be;
(ii) all liabilities and obligations related to, associated with or arising out of (A) the occupancy, operation, use or control of any of the Real Property listed or described in Schedules 3.10(a) or 3.10(b) applicable to the Stations on or after the Closing Date or (B) the operation of the Business on or after the Closing Date, in each case incurred or imposed as a requirement of any Environmental Law, including, without limitation, any Release or storage of any Contaminants on, at or from (1) any real property owned, leased, or operated in connection with the Business after the Closing Date (including, without limitation, all facilities, improvements, structures and equipment thereon, surface water thereon or adjacent thereto and soil or groundwater thereunder) or any conditions whatsoever on, under or in such real property or (2) any way real property or facility owned by a third Person at which Contaminants generated by the Business were sent on or after the Closing Date;
(iii) all liabilities and obligations of Seller or Option Party to the extent arising on or after the Closing Date under (A) the Station Agreements and other agreements included as Purchased Assets and (B) the leases, contracts and other agreements entered into by Seller or Option Party, as applicable, with respect to the Business after the date hereof consistent with the terms of Section 5.4 of this Agreement, except, in each case, (i) to the extent such liabilities and obligations, but for a breach or default by Seller or Option Party, as applicable, would have been paid, performed or otherwise discharged on or prior to the Closing Date or to the extent the same arise out of any such breach or default or (ii) to the extent such liabilities would be responsible for the account of Seller or Option Party, as applicable, pursuant to Section 2.5(b);
(iv) all liabilities for Taxes that are the responsibility of Buyer pursuant to Section 6.1 hereof; and
(v) for the avoidance of doubt, all liabilities and obligations of Buyer pursuant to Section 6.2 hereof. All of the foregoing to be assumed by Buyer hereunder (including the Option Liabilities which Buyer has the right to assume pursuant to the Option Exercise Agreement) are referred to herein as the “Assumed Liabilities.”
(b) Buyer shall not assume or be obligated for any debts (including interest and/or penalties thereon)of, and each Seller and Option Party, pursuant to the terms of the Option Exercise Agreement, as applicable, shall solely retain, pay, perform, defend and discharge all of, its liabilities or obligations of the Company or in connection with the Development Work of any and every kind or nature whatsoever, whether fixed direct or unfixedindirect, known or unknown, absolute or contingent, asserted not expressly assumed by Buyer under Section 2.3(a) and, notwithstanding anything to the contrary in Section 2.3(a), none of the following (whether or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured not included in Option Liabilities) (the herein referred to as “Excluded Liabilities”), except that the Buyer will assume at the Closing the following obligations: ) shall be “Assumed Liabilities” for purposes of this Agreement:
(i) all obligations any foreign, federal, state, county or local income Taxes which arise from the operation of the Company under Stations or the Assumed Contracts, and Business or the ownership of the Purchased Assets prior to the Closing Date;
(ii) the obligations set forth on Schedule 1.2(ii) (collectively, the “Assumed Liabilities”); provided however, that any liability or obligation relating to of any Seller or Option Party, as applicable, in respect of indebtedness for borrowed money or any intercompany payable of any Seller or Option Party, as applicable, or any of its Affiliates;
(iii) all liabilities and obligations related to, associated with or arising from out of (A) the occupancy, operation, use or control of any breach, of the Real Property listed or event, circumstance described in Schedules 3.10(a) or condition that with notice, lapse 3.10(b) prior to the Closing Date or (B) the operation of time or both would constitute or result in a breach, by the Company on or before Business prior to the Closing Date, in each case incurred or imposed under Environmental Laws existing prior to the Closing Date, including, without limitation, (1) any Release or storage of any of its obligations Contaminants prior to the Closing Date on, at or from any such Real Property (including, without limitation, all facilities, improvements, structures and equipment thereon, surface water thereon or adjacent thereto and soil or groundwater thereunder), (2) any conditions on, under an Assumed Contract shall be an Excluded Liability. Without limiting or in such Real Property existing prior to the generality of the foregoingClosing Date that require Remedial Action under Environmental Laws, the Buyer is not assuming or agreeing to pay(3) any conditions on, perform or discharge under or in any way be responsible for, any Excluded Liabilities, real property or facility owned by a third party at which shall include Contaminants generated by the Business were sent prior to the Closing Date;
(iiv) all Indebtedness (whichliabilities of any Seller or Option Party, for the avoidance of doubtas applicable, shall include all notes and interest payable Parent to the Company’s shareholdersextent arising prior to the Closing Date in connection with the ownership or operation of the Purchased Assets or the Business, other than current liabilities of any Seller or Option Party, as applicable, to the extent reflected or reserved against on the Closing Date Balance Sheet and included in “Current Liabilities” in the calculation of the Closing Date Working Capital Amount or Closing Date Working Capital Deficit, as the case may be;
(v) any liabilities or obligations, whenever arising, related to, associated with or arising out of the Excluded Assets;
(vi) any liabilities or obligations, whenever arising, related to, associated with or arising out of the employee benefit agreements, plans or arrangements of any Seller, Belo, Parent, Sander, Option Party or any of their Affiliates (including, without limitation, all Employee Plans), ;
(iivii) all Company Taxes, (iii) all obligations and liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or severance obligations of any Seller, Belo, Parent, Sander, Option Party or any of their Affiliates, if any, to former employees of any Seller or Option Party, as applicable, arising prior to the Company (which, for Closing Date or employees of Seller or Option Party arising out of Seller’s or Option Party’s termination of the avoidance employment of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined employees on the Closing Date in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of connection with the consummation of the transactions contemplated by this Agreementhereby and Buyer’s offer of employment to the Affected Employees as contemplated in Section 6.2(a), other than the obligations of Buyer pursuant to Section 6.2(b), Section 6.2(h) and Section 6.2(i);
(ivviii) all any intercompany liabilities or obligations due from any Seller or Option Party, as applicable, to any of its Affiliates;
(ix) any costs and liabilities arising on expenses incurred by any Seller, Option Party or before the Closing Date, (v) all liabilities Parent incident to its negotiation and obligations relating to or arising out preparation of any transaction contemplated by this Agreement or the Ancillary Agreements and its performance and compliance with the agreements and conditions contained herein or therein; and
(vix) any other of Seller’s or Parent’s or Option Party’s liabilities owed to or obligations under this Agreement or the stockholders of the CompanyAncillary Agreements.
Appears in 1 contract
Assumption of Liabilities. (i) Subject to the terms and conditions of this Agreement, the Purchaser shall assume and become responsible for, from and after the Closing Date, the Assumed Liabilities. On and after the Closing Date, and subject to the provisions in Section 9 regarding indemnification, the Purchaser shall have complete control over the payment, settlement, or other disposition of, or any dispute involving, any of the Assumed Liabilities, and the Purchaser shall conduct and control all negotiations and proceedings with respect to the Assumed Liabilities. The Purchaser's assumption of the Assumed Liabilities shall in no way expand the rights or remedies of any third party against the Sellers or the Purchaser as compared to the rights and remedies which such third party would have had against any of them if the Purchaser had not assumed the Assumed Liabilities pursuant to this Agreement.
(ii) Notwithstanding anything to the contrary contained in this Agreement set forth herein, the Purchaser shall not assume or any Company Transaction Documentbecome responsible for, and regardless of the Sellers shall remain exclusively liable for, any and all liabilities or obligations (whether such liability is disclosed in this Agreementknown or unknown, in any whether absolute or contingent, whether liquidated or unliquidated, whether accrued or unaccrued, whether due or to be come due, and whether claims with respect thereto are asserted before or after the Closing Date) of the Transaction DocumentsSellers which are not Assumed Liabilities (collectively, on any Schedule hereto or thereto or otherwisethe "RETAINED LIABILITIES"). The Retained Liabilities shall include, without limitation, the following:
A. all obligations and regardless liabilities of the Buyer’s Stockholder and Mr. Folz;
X. any obligation or liability of either Seller arising from a breach of a representation or warranty herein on its part or its failure to fully, faithfully and promptly perform any agreement or covenant on its part contained herein;
C. any obligation or liability of its directors’the Sellers to the extent that the Sellers shall be indemnified by an insurer; provided that any insurance proceeds related to such obligation or liability shall be an Excluded Asset;
D. all liabilities and obligations of the Sellers, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned the Stockholder and Mr. Folz for costs and expensxx xxxxxred in connection with the Buyer’s due diligence investigation preparation and negotiation of the Development Work this Agreement or otherwise, the Buyer will not assume, agree to pay, perform or discharge or in any way be responsible for any debts (including interest and/or penalties thereon), liabilities or obligations of the Company or in connection with the Development Work of any kind or nature whatsoever, whether fixed or unfixed, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured (the “Excluded Liabilities”), except that the Buyer will assume at the Closing the following obligations: (i) all obligations of the Company under the Assumed Contracts, and (ii) the obligations set forth on Schedule 1.2(ii) (collectively, the “Assumed Liabilities”); provided however, that any liability or obligation relating to or arising from any breach, or event, circumstance or condition that with notice, lapse of time or both would constitute or result in a breach, by the Company on or before the Closing Date, of any of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting the generality of the foregoing, the Buyer is not assuming or agreeing to pay, perform or discharge or in any way be responsible for, any Excluded Liabilities, which shall include (i) all Indebtedness (which, for the avoidance of doubt, shall include all notes and interest payable to the Company’s shareholders), (ii) all Company Taxes, (iii) all obligations and liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of the transactions contemplated by this Agreement;
E. all liabilities and obligations of the Sellers under this Agreement or any other agreement not entered into in the Ordinary Course of Business, except for obligations incurred in developing and deploying the Microvend Technology in an amount no greater than $95,000 (representing the aggregate of all remaining obligations of Folz Vending pursuant to (i) xxxx certain promissory note, dated December 20, 2001, by Folz Vending in favor of Fundxxxxtal Dynamics Industries, Inc. in the original principal amount of $250,000 (pursuant to which as of the date of this Agreement there are three remaining payments due in an amount of $25,000 each), and (ivii) that certain Consulting Agreement, dated as of January 1, 2002, by and between Folz Vending and Fundamental Xxxxmics Industries, Inc.);
F. all liabilities and obligations of the Sellers for any Taxes (including without limitation those attributable to the Acquired Assets for Pre-Closing Periods);
G. all liabilities and obligations of the Sellers under any contract that is not an Assigned Contract;
H. all obligations of the Sellers arising and due to be performed prior to the Closing Date under the Assigned Contracts except to the extent that an accrual in respect of any such obligation is included in the Closing Date Adjusted Working Capital and reflected in the Adjustment Report, and all liabilities for any breach, act or omission by the Sellers prior to the Closing Date under any Assigned Contract;
I. all liabilities and obligations arising on out of events, conduct or before conditions existing or occurring prior to the Closing Date that constitute a violation of or noncompliance with any Law, any Order, or Permit;
J. all liabilities and obligations (including without limitation costs of cleanup and remediation) resulting from any violation of any Environmental Law;
K. all liabilities and obligations of the Sellers with respect to, and claims of, any acts of negligence or tort including libel and slander, occurring prior to the Closing Date, (v) including without limitation any workers compensation claim;
L. all claims against, or liabilities or obligations of or in connection with, any Employee Benefit Plans, including without limitation any excise Taxes, penalties or other liabilities imposed under ERISA or the Code;
M. except as specifically set forth in Section 6(d), all liabilities and obligations relating of the Sellers to pay severance, termination pay, redundancy pay, pay in lieu of notice, accrued vacation pay or other benefits to any current or former employee of the Sellers whose employment is terminated (or treated as terminated) in connection with the consummation of the transactions contemplated by this Agreement (other than liabilities or obligations for severance, termination pay, redundancy pay, pay in lieu of notice, accrued vacation pay or other benefits to any Continuing Employees who are terminated by the Purchaser or any successor to the Purchaser following the Closing Date) and all liabilities resulting from the termination of employment of employees of the Sellers prior to the Closing Date, including without limitation any liabilities of the Sellers pursuant to agreements and plans identified in Schedules hereto;
N. all liabilities and obligations of the Sellers for all compensation and benefits accrued or incurred prior to the Closing Date in favor of employees of the Sellers, including without limitation accrued vacation and personal time, premiums or benefits under any Employee Benefit Plan and severance pay; provided, however, that the Purchaser shall assume liability for accrued vacation and personal time for Continuing Employees to the extent of the accrual therefor set forth on Schedule 2(b)(ii)(N) hereto;
O. all liabilities and obligations of the Sellers arising out of any transaction contemplated claim, suit, action, arbitration proceeding, investigation or other similar matter which commenced or relates to the ownership and operation of the Acquired Assets on or prior to the Closing Date; provided that, to the extent related to the foregoing, any counterclaim or recovery shall be an Excluded Asset;
P. all liabilities and obligations of the Sellers under any agreements relating to the disposition of material assets, businesses or companies (whether by this Agreement sale of assets, sale of stock, merger or otherwise) entered into at any time prior to the Closing Date;
Q. all liabilities and (vi) obligations of the Sellers arising out of any events, conduct or conditions existing or occurring prior to the Closing Date that constitute or allegedly constitute an infringement or violation of, or constitute or allegedly constitute a misappropriation of, any Intellectual Property rights of any other liabilities owed to Person;
R. all obligations for refunds, rebates, discounts, promotional credits, warranty claims and the stockholders like not specifically reserved or accrued for in the Financial Statements;
S. all Transaction Taxes, which shall be duly and timely paid by the Sellers in accordance with Section 2(h) hereof;
T. all Indebtedness of the Company.Sellers; U. all liabilities and obligations identified on Schedule 2(b)(ii)(U); and
Appears in 1 contract
Samples: Asset Purchase Agreement (American Coin Merchandising Inc)
Assumption of Liabilities. Notwithstanding anything At the Closing, subject to the contrary contained terms and conditions hereof, the Purchaser shall assume all liabilities and obligations of the Seller arising under the Computer Software Contracts (collectively, the "Assumed Liabilities"). Except as otherwise provided in this Agreement Section 1.4, in no event shall Purchaser assume or incur any direct or indirect liability, obligation, indebtedness, commitment, expense, claim, deficiency, guaranty or endorsement of or by any person of any type, whether accrued, absolute, contingent, matured, unmatured or other of Seller (collectively, the "Excluded Liabilities") including, without limitation:
(a) any product Liability or similar claim for injury to person or property, or any Company Transaction Documentother liability based on tortious or illegal conduct, and regardless of whether such liability when made or asserted, which arises out of or is disclosed in this Agreementbased upon any express or implied representation, warranty, agreement or guarantee made by Seller, or alleged to have been made by Seller, or which is imposed or asserted to be imposed by operation of law, in connection with any service performed and/or product sold, leased or delivered by or on behalf of Seller, or any claim seeking recovery for consequential damage, lost revenue or income;
(b) any Liability with regard to any federal, state, local or foreign income or other tax, including without limitation, any interest or penalties thereon, (i) payable with respect to the Business or the Assets (but only to the extent attributable to periods on or prior to the closing), or the Seller or (ii) incident to or arising as a consequence of the Transaction Documents, on negotiation or consummation by Seller of this Agreement and the transactions contemplated hereby;
(c) any Schedule hereto Liability arising prior to or thereto or otherwise, and regardless as of the Buyer’s Closing Date to any employees, agents, or any independent contractors of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liabilitySeller, whether learned or not employed by Purchaser after the date hereof, or under any benefit arrangement with respect thereto; and
(d) any Liability of Seller arising or incurred in connection with the Buyer’s due diligence investigation negotiation, preparation and execution of the Development Work or otherwise, the Buyer will not assume, agree to pay, perform or discharge or in any way be responsible for any debts (including interest and/or penalties thereon), liabilities or obligations of the Company or in connection with the Development Work of any kind or nature whatsoever, whether fixed or unfixed, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured (the “Excluded Liabilities”), except that the Buyer will assume at the Closing the following obligations: (i) all obligations of the Company under the Assumed Contracts, this Agreement and (ii) the obligations set forth on Schedule 1.2(ii) (collectively, the “Assumed Liabilities”); provided however, that any liability or obligation relating to or arising from any breach, or event, circumstance or condition that with notice, lapse of time or both would constitute or result in a breach, by the Company on or before the Closing Date, of any of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting the generality of the foregoing, the Buyer is not assuming or agreeing to pay, perform or discharge or in any way be responsible for, any Excluded Liabilities, which shall include (i) all Indebtedness (which, for the avoidance of doubt, shall include all notes and interest payable to the Company’s shareholders), (ii) all Company Taxes, (iii) all obligations and liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of the transactions contemplated by this Agreement)hereby and fees and expenses of counsel, (iv) all obligations accountants and liabilities arising on or before the Closing Date, (v) all liabilities and obligations relating to or arising out of any transaction contemplated by this Agreement and (vi) any other liabilities owed to the stockholders of the Companyexperts.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Myturn Com Inc)
Assumption of Liabilities. Notwithstanding anything (a) Subject to the contrary contained in this Agreement or any Company Transaction Document, terms and regardless conditions of whether such liability is disclosed in this Agreement, at Closing, Buyer shall assume and thereafter in any of due course fully satisfy those obligations arising under the Transaction DocumentsDesignated Contracts which are assignable and are assigned by Seller to Buyer, on any Schedule hereto or thereto or otherwisewith respect to, and regardless only with respect to, performance of obligations (including payments to be made on account of services) to be rendered thereunder after the Buyer’s or any of its directors’Closing Date.
(b) Except as provided in paragraph (a) above, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwise, the Buyer will shall not assume, agree to pay, perform or discharge or assume nor in any way be liable or responsible for any debts (including interest and/or penalties thereon), liabilities or obligations of the Company debts, obligations, Contracts, liabilities, claims or in connection with the Development Work lawsuits of Seller (or any other Operator Affiliate) of whatsoever kind or nature whatsoever, whether fixed or unfixed, known or unknownnature, absolute or contingent, asserted or unassertedwhich shall be retained, xxxxxx or inchoateand paid, liquidated or unliquidated, or secured or unsecured performed and/or discharged by Seller in a timely manner in accordance with their respective terms (the “Excluded "Retained Liabilities”"), except that the Buyer will assume at the Closing the following obligations: (i) all obligations of the Company under the Assumed Contracts, and (ii) the obligations set forth on Schedule 1.2(ii) (collectively, the “Assumed Liabilities”); provided however, that any liability or obligation relating to or arising from any breach, or event, circumstance or condition that with notice, lapse of time or both would constitute or result in a breach, by the Company on or before the Closing Date, of any of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting the generality of the foregoing, the Buyer is not assuming or agreeing to pay, perform or discharge or in any way be responsible for, any Excluded Liabilities, which shall The Retained Liabilities include (i) all Indebtedness (which, for the avoidance of doubt, shall include all notes and interest payable to the Company’s shareholders), (ii) all Company Taxes, (iii) all obligations and liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company Operator Affiliates' liabilities for Taxes (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, including deferred compensation, continuation coverage required under COBRA for each individual who is Taxes) that have been or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) may be incurred as a result of the consummation operation of the transactions contemplated by this Agreement)Business or ownership of the Acquisition Assets before the Closing; (ii) all obligations or liabilities arising under any Contract that is not transferred to Buyer as part of the Acquisition Assets; (iii) all liabilities arising out of or relating to any breach or default (or an event that, with the passing of time or the giving of notice or both, would constitute a default) under any Designated Contract relating to periods prior to the Closing Date; (iv) all obligations and liabilities arising on or before claims relating to any misfeasance or omissions relating to periods prior to the Closing Date, ; (v) any liabilities relating to accrued payroll, sick pay or accrued vacation pay or other employee benefits for employees and former employees of any Operator Affiliate, except with respect to accrued sick pay and accrued vacation pay for any such employees who become Rehired Employees such Retained Liability shall be limited to Seller's obligation to pay for any sick or vacation pay for sick leave or vacation days used by or paid to such Rehired Employees within 180 days following the Closing in accordance with Section 9.2(d); (vi) all liabilities or obligations under any employment, severance, retention or termination agreement with any employee of any Operator Affiliate or any of their Affiliates; and (vii) all obligations relating to or liabilities arising out of or related to any transaction contemplated by this Agreement and (vi) any other liabilities owed employee grievances commenced or relating to periods prior to the stockholders Closing whether or not the affected employees become employees of the CompanyBuyer.
Appears in 1 contract
Samples: Asset Purchase Agreement (Integrated Living Communities Inc)
Assumption of Liabilities. Notwithstanding anything to Except as set forth on Schedule 1.03, Purchaser does not assume or otherwise become responsible for, any liability or obligation of the contrary contained in this Agreement Seller or any Company Transaction Document, and regardless claims of whether such liability is disclosed in this Agreementor obligation, in any of the Transaction Documents, on any Schedule hereto matured or thereto or otherwise, and regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwise, the Buyer will not assume, agree to pay, perform or discharge or in any way be responsible for any debts (including interest and/or penalties thereon), liabilities or obligations of the Company or in connection with the Development Work of any kind or nature whatsoever, whether fixed or unfixed, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoateunmatured, liquidated or unliquidated, fixed or secured contingent, or unsecured (known or unknown, whether arising out of occurrences prior to, at or after the “Excluded Liabilities”)date hereof, except that including without limitation:
a. Liability for a warranty claim for any product or service of the Buyer will assume at Seller based upon any express warranty, oral or written, or any implied warranty arising due to the statements or conduct of Seller or their employees or agents which shall have arisen prior to the Closing Date;
b. Any injury to or death of any person or damage to or destruction of any property, whether based on negligence, breach of warranty, strict liability, enterprise liability or any other legal or equitable theory arising from defects in products manufactured, distributed or sold for use by, or for services performed by Seller which shall have arisen prior to the following obligationsClosing Date;
c. Any liabilities to or in respect of any employee of the Seller including, without limitation: (i) all obligations of any employment agreement between the Company under the Assumed Contracts, Seller and any employee; (ii) any liability under any employee benefit plan or other fringe benefit program maintained by Seller or to which the obligations set forth on Schedule 1.2(iiSeller makes contributions, or any contributions, benefits or liabilities thereto, or any liability for Seller’s withdrawal or partial withdrawal from or termination of any such plan or program; (iii) any liabilities arising under collective bargaining or similar agreement or arrangement; (collectivelyiv) any claim arising as a result of or in connection with termination of any matter described in the immediately preceding clauses (i) through (iii), inclusive; and (v) any claim of an unfair labor practice, or any claim under any state unemployment compensation or worker’s compensation law or regulation or under any federal or state employment discrimination or wage and hour law or regulation, whether asserted prior to or after the “Assumed Liabilities”); provided howeverClosing Date and whether or not the basis for any claim, that any liability, damages or penalty which shall have arisen prior to the Closing Date;
d. Any liability or obligation relating to or arising from of Seller in respect of any breach, or event, circumstance or condition that with notice, lapse of time or both would constitute or result in a breach, by the Company tax (including without limitation any personal property tax accrued but not yet payable on or before the Closing Date);
e. Any action, of any of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting the generality of the foregoingsuit, the Buyer is not assuming claim or agreeing to pay, perform or discharge or in any way be responsible for, any Excluded Liabilities, which shall include proceeding (i) all Indebtedness (which, for against the avoidance of doubt, shall include all notes and interest payable to the Company’s shareholders), Seller or (ii) all Company Taxeswhich adversely affects the Assets and which shall have been asserted prior to the Closing Date or the basis of which shall have arisen prior to the Closing Date;
f. Any of Seller’s liabilities or obligations resulting from entering into, (iii) all or consummating the transactions contemplated by, this Agreement;
g. All liabilities of the Seller under any agreement other than obligations and to render services after Closing under Agreements with customers identified on Schedule 1.01(c), including without limitation, any real property lease or debt for money borrowed or any employment agreement or consulting agreement or similar;
h. Any liability of Seller in respect of any lease of real property or tangible personal property;
i. Any other liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company (which, for the avoidance Seller whether actual or contingent; and
j. Any liability of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result any affiliate of the consummation of the transactions contemplated by this Agreement)Seller, (iv) all obligations and liabilities arising on or before the Closing Dateincluding but not limited to, (v) all liabilities and obligations relating to or arising out of any transaction contemplated by this Agreement and (vi) any other liabilities owed to the stockholders of the CompanyIceWeb, Inc., a Delaware corporation.
Appears in 1 contract
Assumption of Liabilities. Notwithstanding anything Subject to the contrary contained in terms and conditions of this Agreement and in addition to the liabilities and obligations of Purchaser under Purchaser’s Ancillary Documents, Purchaser hereby assumes and agrees to perform and discharge only the following liabilities and obligations of Seller or its Affiliates arising out of the operation of the Business (the “Assumed Liabilities”): liabilities and obligations of Seller and its Affiliates arising under the Assumed Contracts (but only to the extent such contracts do not constitute Excluded Assets and are properly and effectively assigned to Purchaser) to the extent such liabilities and obligations arise solely after the Effective Time and do not result from a default or breach by Seller or its Affiliates prior to the Effective Time. Notwithstanding any Company Transaction Document, and regardless other provision of whether such liability is disclosed in this Agreement, in any Purchaser shall not assume any, and Seller hereby expressly retains responsibility for all, of the Transaction Documentsliabilities and obligations of Seller and its Affiliates, on any Schedule hereto whether or thereto not accrued, whether fixed or otherwisecontingent, whether or not disclosed, and regardless of the Buyer’s whether known or any of its directors’unknown, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwisethat are not expressly assumed by Purchaser pursuant to this Section 1.2 (collectively, the Buyer will not “Excluded Liabilities”). In no event shall Purchaser assume, agree to pay, perform or discharge or in satisfy any way be responsible for any debts (including interest and/or penalties thereon), liabilities or obligations of the Company Excluded Liabilities or in connection with the Development Work of otherwise have any kind or nature whatsoever, whether fixed or unfixed, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured (the “Excluded Liabilities”), except that the Buyer will assume at the Closing the following obligations: (i) all obligations of the Company under the Assumed Contracts, and (ii) the obligations set forth on Schedule 1.2(ii) (collectively, the “Assumed Liabilities”); provided however, that any liability or obligation relating to or arising from any breach, or event, circumstance or condition that with notice, lapse of time or both would constitute or result in a breach, by the Company on or before the Closing Date, of any of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting the generality of the foregoing, the Buyer is not assuming or agreeing to pay, perform or discharge or in any way be responsible for, responsibility for any Excluded Liabilities. For purposes of clarification, which the Excluded Liabilities shall include (i) all Indebtedness (whichinclude, for but not be limited to, the avoidance of doubt, shall include all notes following liabilities and interest payable to the Company’s shareholders), (ii) all Company Taxes, (iii) all obligations and liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company Seller and its Affiliates:
(which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claimsa) as a result of the consummation of the transactions contemplated by this Agreement), (iv) all obligations and liabilities arising on or before the Closing Date, (v) all All liabilities and obligations relating to the Excluded Assets (as hereinafter defined);
(b) Any debt, obligation, responsibility or arising out liability of any transaction contemplated by this Agreement and (vi) any other liabilities Seller, whether known or unknown, contingent or absolute, or fixed or otherwise, owed to any of its Affiliates. “Affiliates” shall mean with respect to any party, a party, person or entity that, directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such party, where “control”, “controlled by” and “under common control with” means the stockholders possession, directly or indirectly, of the Companypower to direct or cause the direction of the management and policies of such party, whether through the ownership of voting securities, by voting trust, contract or similar arrangement, as trustee or executor, or otherwise.
Appears in 1 contract
Samples: Asset Purchase Agreement (Caraustar Industries Inc)
Assumption of Liabilities. Notwithstanding anything to the contrary contained in this Agreement or any Company Transaction Document, and regardless of whether such liability is disclosed in this Agreement, in any Effective as of the Transaction DocumentsClosing, on any Schedule hereto none of Atmel, Atmel France or thereto or otherwise, and regardless of the Buyer’s Selling Subsidiaries or any of its Atmel’s or the Selling Subsidiaries’ respective directors’, shareholders, officers’, employees’ , agents, consultants, representatives, Affiliates, successors or agents’ knowledge assigns shall have any liability or awareness of any liabilityobligation with respect to, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwiseand Buyer shall absolutely and irrevocably assume and be solely liable and responsible for, the Buyer will not assume, agree to and thereafter pay, perform and discharge when due, all liabilities, duties and obligations of Atmel and the Selling Subsidiaries, to the extent related to or discharge arising from, the Assets and/or the Business, and of the Transferred Entities (including all and any liability for or in any way be responsible for any debts (including interest and/or penalties thereonrelation to Taxes, whenever arising), liabilities or obligations of other than the Company or in connection with the Development Work of any kind or nature whatsoever, whether fixed or unfixed, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured (the “Excluded Liabilities”), except that the Buyer will assume at the Closing the following obligations: (i) all obligations of the Company under the Assumed Contracts, and (ii) the obligations as set forth on Schedule 1.2(ii) below (collectively, the “Assumed Liabilities”); provided however):
(a) The Assumed Liabilities shall include, that any liability or obligation relating without limitation, the following obligations and liabilities arising prior to or arising from any breach, or event, circumstance or condition that with notice, lapse of time or both would constitute or result in a breach, by at the Company on or before the Closing Date, of any of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting the generality of the foregoing, the Buyer is not assuming or agreeing to pay, perform or discharge or in any way be responsible for, any Excluded Liabilities, which shall include Closing:
(i) all Indebtedness (which, for obligations and liabilities arising under the avoidance of doubt, shall include all notes and interest payable to the Company’s shareholders), Transferred Contracts;
(ii) all Company Taxes, obligations and liabilities under Contracts entered into after the Closing Date;
(iii) all obligations and liabilities under Open Purchase Orders and related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of the transactions contemplated by this Agreement), Contracts;
(iv) all obligations and liabilities with respect to the Business Employees, including, without limitation, liabilities, expenses, costs and obligations arising on under or before required by the Benefit Plans, collective bargaining agreements, employment agreements, applicable Law or relating to payroll, vacation, sick leave, workers’ compensation and unemployment benefits of any kind applicable to the Business Employees, including Employee Advances, but not including obligations and liabilities related to or arising out of the settlement of all options, restricted stock units or other right to purchase shares of common stock of Atmel which were granted to any Atmel UK Employee or France Employee by Atmel, Atmel UK or Atmel France and which are exercised, in accordance with the terms of the plan, program or arrangement under which such options, restricted stock units or rights were granted, after the Closing Date, ; and
(v) all other liabilities set forth on the Audited Balance Sheet.
(b) The Assumed Liabilities shall include, without limitation the following obligations and obligations liabilities arising after the Closing:
(i) any liabilities relating to the Business in connection with any Litigation;
(ii) any liabilities arising under Environmental Law and relating to or arising out of any transaction contemplated by this Agreement and the ownership or operation of the Business or the ownership, use, scrapping, destruction, possession or condition of the Assets;
(viiii) any liabilities for personal injury or property damage, whether in Contract, tort, strict liability or under any other theory, arising from products sold or services rendered by the Business; and
(iv) any liabilities owed from the making, using, selling and purchase or use by customers and end users of any product made, used, sold, purchased or distributed in the Business, including those related to the stockholders of the Companyproduct warranty or quality.
Appears in 1 contract
Samples: Share and Asset Purchase and Sale Agreement (Atmel Corp)
Assumption of Liabilities. Notwithstanding As additional consideration hereunder, from and after the Closing Date Buyer shall assume and discharge the Assumed Liabilities. Except as provided in the preceding sentence, and notwithstanding anything else to the contrary contained in this Agreement or any Company Transaction Documentherein, and regardless of whether such liability is disclosed in this Agreement, in any of the Transaction Documents, on any Schedule hereto or thereto or otherwise, and regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwise, the Buyer will not assume, agree to pay, perform or discharge or in any way be responsible for any debts (including interest and/or penalties thereon), liabilities or obligations of the Company or in connection with the Development Work of any kind or nature whatsoever, whether fixed or unfixed, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured (the “Excluded Liabilities”), except that the Buyer will assume at the Closing the following obligations: (i) all obligations of the Company under the Assumed Contracts, and (ii) the obligations set forth on Schedule 1.2(ii) (collectively, the “Assumed Liabilities”); provided however, that any liability or obligation relating to or arising from any breach, or event, circumstance or condition that with notice, lapse of time or both would constitute or result in a breach, by the Company on or before the Closing Date, of any of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting the generality of the foregoing, the Buyer is not assuming or agreeing to payand shall not be liable for any Liabilities of Seller, perform or discharge or in any way be responsible forincluding, without limitation, any Excluded Liabilities, which shall include Liabilities (i) all Indebtedness (which, for the avoidance of doubt, under Contracts which shall include all notes and interest payable not have been assigned to the Company’s shareholders), Buyer pursuant to this Agreement; (ii) all Company Taxes, for indebtedness for borrowed money; (iii) all obligations and liabilities related to employee compensation (which for the avoidance by reason of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations arising out of the Company (whichany default or breach by Seller of any Contract, for the avoidance of doubtany penalty against Seller under any Contract, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of the transactions contemplated by this Agreement), (iv) all obligations and liabilities arising on or before the Closing Date, (v) all liabilities and obligations relating to or arising out of any transaction event which with the passage of time or after giving of notice, or both, would constitute or give rise to such a breach, default or penalty, whether or not such Contract is being assigned to and assumed by Buyer pursuant to this Agreement; (iv) the existence of which would conflict with or constitute a breach of any representation, warranty or agreement of Seller contained herein; (v) relating to or in any way arising out of the Excluded Assets; (vi) for Seller's expenses referred to in Section 11.6 hereof; (vii) to any stockholder or Affiliate of Seller or to any present or former employee, officer or director of Seller, including, without limitation, any bonuses, any termination or severance pay related to the transfer of employees to Buyer in connection with the transactions contemplated hereby, and any post retirement medical benefits or other compensation or benefits; (viii) relating to the execution, delivery and consummation of this Agreement and the transactions contemplated hereby, including, without limitation, any and all Taxes incurred as a result of the sale contemplated by this Agreement Agreement; (ix) for any Taxes accrued or incurred prior to the Closing Date or relating to any period (or portion of a period) prior thereto; (x) relating to or arising out of any environmental matter, including, without limitation, any violation of any Environmental Law or any other law relating to health and safety of the public or the employees of Seller; (xi) relating to, or arising out of, products manufactured or services rendered by Seller, or the conduct or operation of the business of Seller, prior to the Closing Date; and (vixii) of Seller arising under or pursuant to this Agreement; and provided further, that Buyer shall have the right not to assume any other liabilities owed Contract if any party to the stockholders such Contract is in breach thereof or default thereunder as of the CompanyClosing Date or there has occurred any event which with the passage of time or after giving of notice, or both, would become such a breach or default. Buyer shall not assume or be bound by any Liabilities of Seller, except as expressly assumed by it pursuant to this Agreement. Seller hereby agrees to indemnify and hold Buyer harmless from and against any and all Liabilities of Seller not agreed to be assumed by Buyer pursuant to this Agreement. Nothing contained in this Section 2.5 shall relieve or release Seller from any obligations under covenants, warranties or agreements contained in this Agreement.
Appears in 1 contract
Assumption of Liabilities. Notwithstanding anything to (a) At the contrary contained in this Agreement Closing, Purchaser and/or one or any Company Transaction Documentmore of its Affiliates or Subsidiaries shall assume, and regardless of whether such liability is disclosed in this Agreement, in any of the Transaction Documents, on any Schedule hereto or thereto or otherwise, shall be solely and regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwise, the Buyer will not assume, agree to pay, perform or discharge or in any way be responsible exclusively liable only for any debts (including interest and/or penalties thereon), liabilities or obligations of the Company or in connection with the Development Work of any kind or nature whatsoever, whether fixed or unfixed, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured (the “Excluded Liabilities”), except that the Buyer will assume at the Closing the following obligations: (i) all those obligations of the Company Seller under the Assumed Contractscontracts, agreements, leases, licenses, permits, applications, unfilled sales and purchase orders, invoices and other commitments assigned to Purchaser pursuant to Sections 2.1(b) and (c) (collectively, the “Seller Agreements”) that arise, and relate to a period, on or after the Closing Date, including all unperformed and unfulfilled obligations expressly identified in such Seller Agreements incurred on or after the Closing Date in respect of services rendered or goods sold to or by Seller on or after the Closing Date which are required to be performed and fulfilled under the Seller Agreements; and (ii) the obligations those liabilities set forth on Schedule 1.2(ii2.3 (which such schedule may be subsequently updated by mutual agreement of Purchaser and Seller within 5 Business Days of the date of this Agreement) (collectively, the “Assumed Liabilities”); provided however, that any liability .
(b) Nothing contained in this Agreement shall require Purchaser or obligation relating to or arising from any breach, or event, circumstance or condition that with notice, lapse of time or both would constitute or result in a breach, by the Company on or before the Closing Date, of any of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting the generality of the foregoing, the Buyer is not assuming or agreeing Affiliates to pay, perform or discharge any Assumed Liability so long as it shall in good faith and by appropriate and legal means contest or cause to be contested the amount or validity thereof and shall have indemnified and have held harmless Seller and its Affiliates with respect thereto pursuant to the terms of this Agreement.
(c) Nothing contained in this Section 2.3 or in any way instrument of assumption executed by Purchaser at the Closing shall release or relieve Seller from its representations, warranties, covenants and agreements contained in this Agreement or any certificate, schedule, instrument, agreement or document executed pursuant hereto or in connection herewith, including, the obligations of Seller to indemnify Purchaser in accordance with the provisions of Article X hereto.
(d) Notwithstanding the foregoing, Purchaser and its Affiliates shall not, and nothing in this Agreement shall require Purchaser and/or its Affiliates to, assume or be liable or otherwise be responsible forfor any Liabilities of Seller or its Subsidiaries with respect to any Plan (including, but not limited to, any Excluded Liabilities, which shall include (i) all Indebtedness (which, for the avoidance of doubt, shall include all notes and interest payable to the Company’s shareholdersTitle IV Plan), (ii) all Company Taxes, (iii) all obligations and liabilities related except as may be required by law or pursuant to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of the transactions contemplated by this any Seller Agreement), (iv) all obligations and liabilities arising on or before the Closing Date, (v) all liabilities and obligations relating to or arising out of any transaction contemplated by this Agreement and (vi) any other liabilities owed to the stockholders of the Company.
Appears in 1 contract
Assumption of Liabilities. Notwithstanding anything Upon the terms and subject to the contrary contained in this Agreement or any Company Transaction Document, and regardless conditions of whether such liability is disclosed in this Agreement, in any at the Closing, Buyer will assume (or will cause an Affiliated Buyer to assume) and thereafter pay, discharge or perform when due all of the Transaction Documents, on any Schedule hereto or thereto or otherwise, EPD Group Members’ liabilities and regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness obligations of any liabilitykind, character or description (whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwise, the Buyer will not assume, agree to pay, perform or discharge or in any way be responsible for any debts (including interest and/or penalties thereon), liabilities or obligations of the Company or in connection with the Development Work of any kind or nature whatsoever, whether fixed or unfixed, known or unknown, absolute accrued, absolute, contingent or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured (the “Excluded Liabilities”otherwise), except that to the Buyer will assume at extent arising out of or pertaining to the Closing Business (as currently or formerly conducted) or the following obligations: Purchased Assets other than the Retained Liabilities (i) all obligations of the Company under the Assumed Contracts, and (ii) the obligations set forth on Schedule 1.2(ii) (collectively, the “Assumed Liabilities”) (provided that neither Buyer nor any Affiliated Buyer will be required to assume, pay, discharge or perform the Assumed Liabilities of the Acquired Entities, but such Assumed Liabilities will constitute Assumed Liabilities for all other purposes of this Agreement, including Section 10.03(b); provided however), that including the following:
(a) All obligations and liabilities of any liability EPD Group Member under the Assigned Contracts (to the extent they relate to the Business) and Assigned Purchase Orders;
(b) Subject to any indemnification obligations and covenants of Parent pursuant to Article 8, any and all liabilities, whether accrued, contingent, absolute, determined, determinable, known, unknown or obligation otherwise, arising under or relating to Environmental Laws or relating to Hazardous Substances and arising from events occurring or conditions existing after the Closing Date in connection with the Business, except with respect to, and to the extent of (i) any breach, Hazardous Substance that first came to be located at the Transferred Real Property prior to the Closing Date and (ii) any actual or event, circumstance alleged violations of Environmental Law arising from events occuring or condition that with notice, lapse of time or both would constitute or result in a breach, by the Company on or before conditions existing prior to the Closing Date;
(c) All liabilities and obligations arising after Closing that relate to a Buyer Group Member’s employment or termination of Transferred Employees or compensation or employee benefits provided by a Buyer Group Member to Transferred Employees, but excluding any liabilities and obligations arising from an EPD Group Member’s (other than an Acquired Entity) employment or termination of any of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting the generality of the foregoing, the Buyer is not assuming or agreeing to pay, perform or discharge or a Transferred Employee and except as provided in any way be responsible for, any Excluded Liabilities, which shall include Article 7;
(id) all Indebtedness (which, for the avoidance of doubt, shall include all notes and interest payable to the Company’s shareholders), (ii) all Company Taxes, (iii) all obligations and liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of the transactions contemplated by this Agreement), (iv) all obligations and liabilities arising on or before the Closing Date, (v) all All liabilities and obligations relating to or arising out under the Employee Benefit Plans of any transaction contemplated by this Agreement each Acquired Entity and the liabilities under the Canadian pension plans described on Schedule 2.03(d), except as provided in Article 7;
(vie) any Liabilities for all Taxes of the Acquired Entities other than those Taxes included in Retained Liabilities pursuant to Section 2.04(b);
(f) All obligations and liabilities owed of the Business to the stockholders extent included or reflected in Final Net Working Capital;
(g) Up to $6.0 million of the CompanyIndebtedness described on Schedule 2.03(g); and
(h) All Post-Closing Asbestos Matters, Post-Closing Exposure Matters, Post-Closing Product Liability Matters, and Post-Closing Workers Compensation Matters.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Goodyear Tire & Rubber Co /Oh/)
Assumption of Liabilities. Notwithstanding anything to the contrary contained in this Agreement or any Company Transaction Document, and regardless of whether such liability is disclosed in this Agreement, in any of the Transaction Documents, on any Schedule hereto or thereto or otherwise, and regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in In connection with the Buyer’s due diligence investigation sale of the Development Work or otherwiseAssets to Buyer, Buyer will assume those liabilities of the Seller specifically set forth in Schedule 1.02 hereto. Buyer will not assume, agree to pay, perform or discharge or in any way be responsible for any debts (including interest and/or penalties thereon)liabilities, liabilities or obligations of the Company or in connection with the Development Work of any kind or nature whatsoeverliens, whether fixed or unfixedclaims, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidatedobligations, or secured encumbrances of Seller, contingent or unsecured (otherwise, other than those specifically described in Schedule 1.02 and the “Excluded Liabilities”)Assets shall be sold and conveyed to Buyer free and clear of all liabilities, liens, claims, obligations, and encumbrances, except that the Buyer will assume at the Closing the following obligations: (i) all obligations of the Company under the Assumed Contracts, and (ii) the obligations as set forth on Schedule 1.2(ii) (collectively, the “Assumed Liabilities”); provided however, that any liability or obligation relating to or arising from any breach, or event, circumstance or condition that with notice, lapse of time or both would constitute or result in a breach, by the Company on or before the Closing Date, of any of its obligations under an Assumed Contract shall be an Excluded Liability1.02. Without limiting the generality of the foregoingforegoing and, the except as set forth on Schedule 1.02, in no event will Buyer is not assuming assume or agreeing to pay, perform or discharge or in any way otherwise be responsible foror liable for any or the following types of liabilities or obligations:
(a) any costs or expenses of the Seller or the Shareholders incurred in negotiating, entering into and carrying out its or their obligations under this Agreement;
(b) any income, sales, property, franchise, use or other tax of Seller or any Shareholder arising out of or resulting from the sale of the Assets pursuant to this Agreement or any transaction of Seller or any Shareholder prior to or subsequent to the execution of this Agreement;
(c) any costs and expenses incurred by Seller or any Shareholder in connection with the operation of the Seller after the Closing (as defined herein) or the liquidation and dissolution of the Seller;
(d) any liability relating to, or arising out of the use or ownership of the Excluded Assets;
(e) any obligations or liabilities arising under any employment agreements or employee incentive plans (including, but not limited to any accrued vacation or sick leave) or any other employee cost of Seller including any obligation to contribute to, or any liability in connection with, any Excluded Liabilities, which shall include (i) all Indebtedness (which, for the avoidance of doubt, shall include all notes and interest payable to the Company’s shareholders), (ii) all Company Taxes, (iii) all obligations and liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans maintained by the Seller for its employees, former employees, retirees, their beneficiaries or obligations any other person ("Employee Benefit Plans"), and any continuation coverage (including any penalties, excise taxes or interest resulting from the failure to provide continuation coverage) required by Section 4980B of the Company Internal Revenue Code of 1986 (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of the transactions contemplated by this Agreement"Code"), (iv) all obligations and liabilities arising due to qualifying events as defined therein, occurring on or before the Closing Date, (v) all liabilities and obligations relating to or any liability arising out of any transaction contemplated by this Agreement disputes, claims or threatened claims between the Seller and its employees or former employees;
(vif) any noncompliance by the Seller with any applicable laws, rules and regulations, including without limitation, those relating to employment and labor management relations and provisions thereof relating to wages and the payment thereof, hours of work, collective bargaining agreements, and workers' compensation laws;
(g) any claim arising out of violations of any environmental laws or out of any events, actions or omissions, of whatever nature or type, occurring or existing prior to Closing;
(h) any contingent or unknown liability of the Seller;
(i) any liability, obligation or cost resulting from any claim or lawsuit or other liabilities owed proceeding relating to the stockholders Assets or naming Seller, or any successor thereof, or the Shareholders as a party arising out of events, transactions or circumstances occurring or existing prior to Closing; or
(j) any claim against Buyer or Seller, which claim is based, in whole or in part, upon the Companyfailure of Seller or Buyer to comply with laws applicable to bulk transfers.
Appears in 1 contract
Assumption of Liabilities. Notwithstanding Amylin is not assuming or in any way becoming liable or responsible for any Liability of Restoragen, except as expressly set forth in this Section 1.3. On the Closing Date, Amylin agrees to assume, and perform and pay in accordance with their respective terms, all obligations arising with respect to periods commencing after the Closing under the Acquired Contracts and the obligations to Third Parties described on Exhibit C (the “Assumed Liabilities”). Without limiting the generality of the foregoing and notwithstanding anything to the contrary contained in this Agreement or any Company Transaction Document, and regardless of whether such liability is disclosed in this Agreement, in any of the Transaction Documents, on any Schedule hereto or thereto or otherwise, and regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwise, the Buyer will not assume, agree to pay, perform or discharge or in any way be responsible for any debts (including interest and/or penalties thereon), liabilities or obligations of the Company or in connection with the Development Work of any kind or nature whatsoever, whether fixed or unfixed, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured (the “Excluded Liabilities”), except that the Buyer will assume at the Closing the following obligations: (i) all obligations of the Company under the Assumed Contracts, and (ii) the obligations set forth on Schedule 1.2(ii) (collectively, the “Assumed Liabilities”); provided however” shall not include, that and Amylin shall not be required to assume or to perform or discharge:
(a) any liability Liability of any stockholder of Restoragen or obligation any other Person, except for Restoragen;
(b) any Liability of Restoragen arising out of or relating to the execution, delivery or performance of any of the Transactional Agreements;
(c) any Liability of Restoragen for any fees, costs or expenses of the type referred to in Section 16.2(a) of this Agreement;
(d) any Liability of Restoragen arising from or relating to any breachaction taken by Restoragen, or eventany failure on the part of Restoragen to take any action, circumstance at any time after the Closing Date;
(e) any Liability of Restoragen arising from or condition that with noticerelating to any claim or Proceeding against Restoragen, lapse including, without limitation, any claim or Proceeding against Restoragen relating to clinical trials conducted by or on behalf of time Restoragen prior to the Closing Date;
(f) any Liability of Restoragen for the payment of any Tax;
(g) any Liability of Restoragen to any employee or both would constitute former employee of Restoragen;
(h) any Liability of Restoragen to any of its stockholders, Affiliates or result in a breachtheir respective Representatives;
(i) any Liability under any Acquired Contract, by the Company on or before if Restoragen shall not have obtained, prior to the Closing Date, any Consent required to be obtained from any Person or Court Approval with respect to the assignment or delegation to Amylin of any of its rights or obligations under an Assumed such Acquired Contract;
(j) any Liability under any Contract shall be an Excluded Liability. Without limiting the generality to which Restoragen is a party or to which any of the foregoingAssets are subject, other than the Buyer Acquired Contracts;
(k) any Liability that is not assuming inconsistent with or agreeing to payconstitutes an inaccuracy in, perform or discharge that arises or exists by virtue of any Breach of, (x) any representation or warranty made by Restoragen in any way be responsible for, any Excluded Liabilities, which shall include (i) all Indebtedness (which, for the avoidance of doubt, shall include all notes and interest payable to the Company’s shareholders), (ii) all Company Taxes, (iii) all obligations and liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company Transactional Agreements, or (which, for the avoidance y) any covenant or obligation of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined Restoragen contained in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result any of the consummation of the transactions contemplated by this Agreement), Transactional Agreements; or
(iv) all obligations and liabilities arising on or before the Closing Date, (v) all liabilities and obligations relating to or arising out of any transaction contemplated by this Agreement and (vil) any other liabilities owed Liability that is not referred to specifically in the stockholders second sentence of the Companythis Section 1.3.
Appears in 1 contract
Samples: Asset Purchase and License Agreement (Restoragen Inc)
Assumption of Liabilities. Notwithstanding anything to the contrary contained in this Agreement or any Company Transaction Document, From and regardless of whether such liability is disclosed in this Agreement, in any of the Transaction Documents, on any Schedule hereto or thereto or otherwise, and regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwise, the Buyer will not assume, agree to pay, perform or discharge or in any way be responsible for any debts (including interest and/or penalties thereon), liabilities or obligations of the Company or in connection with the Development Work of any kind or nature whatsoever, whether fixed or unfixed, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured (the “Excluded Liabilities”), except that the Buyer will assume at the Closing the following obligations: (i) all obligations of the Company under the Assumed Contracts, and (ii) the obligations set forth on Schedule 1.2(ii) (collectively, the “Assumed Liabilities”); provided however, that any liability or obligation relating to or arising from any breach, or event, circumstance or condition that with notice, lapse of time or both would constitute or result in a breach, by the Company on or before after the Closing Date, Buyer shall assume and agree to pay when due, perform and discharge (a) the executory Liabilities of any Seller under each Contract in effect on the Closing Date and assigned to Buyer pursuant to Section 2.1, but only to the extent such Liabilities would not be required to be accrued on a balance sheet of its obligations under an Seller as of the Closing Date prepared in accordance with GAAP and Buyer has in fact benefitted from the performance by the other party to such contract from and after the Closing Date and (b) the liabilities of Seller to be assumed by Buyer pursuant to Section 2.4 (subject to the rest of this Section 2.3, the liabilities described in the foregoing clauses (a) and (b) are collectively referred to as the "Assumed Contract shall be an Excluded LiabilityLiabilities"). Without limiting the generality of Notwithstanding the foregoing, the Buyer is not assuming or agreeing and shall not be deemed to paybe assuming any of the following, perform or discharge or in any way be responsible for, any Excluded Liabilities, all of which shall include be excluded from and shall not constitute Assumed Liabilities:
(i) all Indebtedness (whichany Liability of Seller or any of its Affiliates to any Person the existence of which constitutes a breach of any covenant, for the avoidance agreement, repre sentation or warranty of doubt, shall include all notes and interest payable to the Company’s shareholders), Seller contained in this Agreement;
(ii) all Company Taxesany Liability of Seller or any of its Affiliates for any federal, state, local or foreign income or excise taxes, franchise taxes, sales taxes, state or local property taxes or other taxes of any kind or description (iii) all obligations including interest and liabilities related penalties thereon), including Seller's pro rata portion of any real and personal property taxes with respect to employee compensation (which for the avoidance its ownership and use of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations any of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of the transactions contemplated by this Agreement), (iv) all obligations and liabilities arising on or Acquisition Assets before the Closing Date;
(iii) any Liability of Seller or any of its Affiliates for any accounts payable or under any other agreement to which Seller or any of its Affil iates is a party;
(iv) whether or not such agreements are assigned to or assumed by Buyer hereunder, any Liabil ity of Seller or any of its Affiliates arising out of or resulting from any breach by Seller or any of its Affiliates of any Contract or other agreement to which Seller or any of its Affiliates is a party;
(v) all liabilities and obligations relating to any Liability of Seller or any of its Affiliates arising out of or resulting from any violation or alleged violation by Seller or any such Affiliate of any Applicable Law or in connection with or arising out of the sale by Seller or any transaction contemplated by this Agreement and such Affiliate of any product or the provision of any service;
(vi) any Liability of Seller or any of its Affiliates to any officer, director, employee (including any Designated Employee), consultant or agent of Seller or any such Affiliate, including, without limitation, employment agreements between the Seller and any of its employees (whether or not such employment agreements are set forth on Schedule 3.16 of the Disclosure Schedule), workers' compensation, union contracts, medical or sick pay liabilities (including, without limitation, for continuation coverage mandated by law), pension or profit sharing liabilities or severance liabilities (including, without limitation, under the WARN Act) whether or not resulting from the transactions contemplated herein and any other liabilities owed employee benefit offered by Seller or any such Affiliate, including any liability for contributions or payments to be made under any employee benefit plan (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")) or other plan or arrangement maintained for an officer, director, employee, consultant or agent of Seller or any such Affiliate; except as expressly set forth in Section 5.12 or 7.2 hereof, in no event shall Buyer incur any obligation for any Liability relating to any Designated Employee that arises or accrues prior to such time, if any, as such Designated Employee is employed by Buyer;
(vii) any Liability (including expenses) resulting from any Proceeding affecting any of the Acquisition Assets or the A/TS Network existing or arising on or resulting from events which occurred or failed to occur at or prior to the stockholders Effective Time;
(viii) any Liability relating to any of the CompanyExcluded Storage Tanks;
(ix) any Liability of Seller under any Contract which is required to be disclosed in the Disclosure Schedule and is not so disclosed;
(x) any Liability of Seller under or relating to the Uno-Ven Trademark License Agreement;
(xi) any Liability of Seller or any of Seller's Affiliates under any contract or agreement providing for the purchase by Seller or any of Seller's Affiliates of Outside Sourced Petroleum Products; and
(xii) the Excluded California Lease Obligations.
Appears in 1 contract
Assumption of Liabilities. Notwithstanding anything (a) At the Closing, the Buyer shall execute and deliver an Instrument of Assumption of Liabilities (the "Assumption Agreement") substantially in the form attached hereto as Exhibit B, pursuant to which it shall assume and agree to fully assume, perform, pay and discharge: (i) all those liabilities, claims and obligations set forth on Schedule 1.3
(a) attached hereto, with respect to the contrary contained Assets that are outstanding on or arising after the date hereof (the obligations set forth in this Agreement sub-section 1.3(a)(i) are collectively, the "Assumed Current Liabilities"); (ii) those liabilities, claims, or obligations outstanding on or arising after the date hereof under the Contract Rights, including, without limitation, the License Agreements; and (iii) those liabilities, claims or obligations outstanding on or arising after the date hereof from any Company Transaction Documentagreement, and regardless of whether such liability is disclosed in this Agreementcontract, in any commitment or other contract documents which the Buyer has requested be transferred to it pursuant to Section 1.1
(a) but which has not been so transferred due to the failure of the Transaction DocumentsSeller to obtain the consent or approval required for such transfer, provided that the Buyer has received substantially the same economic benefit of such contract as if such consent or approval had been obtained and (iv) any liabilities, claims, or obligations resulting from or arising out of any matters set forth on any Schedule hereto or thereto disclosed in any other writing to, and accepted by, the Buyer (the obligations set forth in (i), (ii), (iii) and (iv) are, collectively, the "Assumed Liabilities").
(b) Except as otherwise provided herein or on any Schedule hereto, the Buyer shall not assume any of the liabilities of the Selling Parties and shall purchase the Assets free and clear of all liens, mortgages, security interests, encumbrances and claims. Without limiting the foregoing, the Buyer shall not at the Closing assume or agree to perform, pay or discharge, any obligations, liabilities and commitments, fixed or contingent, of the Selling Parties other than the Assumed Liabilities, including but not limited to:
(i) severance, termination or other payments or benefits (including but not limited to post-retirement benefits) including but not limited to those owing under the Seller's severance policy or any employment agreement to any employees (union or non-union), sales agents or independent contractors employed by the Seller prior to the Closing (collectively, "Seller's Employees"), liabilities arising under any federal, state, local or foreign "plant closing law", liabilities accruing under the Seller's employee benefit plans, vacation pay plans or programs, retirement plans, and liabilities for any Employee Plan (as defined in Section 2.17) except those liabilities to Seller's Employees who become employees of the Buyer after the Closing relating solely to and arising solely out of their term of employment with the Buyer;
(ii) worker's compensation claims arising from events prior to the Closing;
(iii) stock option or other stock-based awards made to Seller's Employees;
(iv) liabilities for any federal, state, local or foreign income taxes (including interest, penalties and additions to such taxes) or any deferred income taxes of the Selling Parties;
(v) liabilities for any payroll taxes (including interest, penalties and additions to such taxes), except those liabilities to Seller's Employees who become employees of the Buyer after the Closing relating solely to and arising solely out of their term of employment with the Buyer;
(vi) liabilities incurred for violations of occupational safety, wage, health, welfare, employee benefit or environmental laws or regulations prior to the date hereof;
(vii) except as otherwise agreed to between the parties, liabilities to the extent related solely to the Excluded Assets;
(viii) except as provided in Section 11 hereof, any tax (including but not limited to any federal, state, local or foreign income, franchise, single business, value added, excise, customs, intangible, sales, transfer, recording, documentary or other tax) imposed upon, or incurred by, the Selling Parties, if any, in connection with or related to this Agreement or the transactions contemplated hereby (including interest, penalties and additions to such taxes);
(ix) liabilities for any commercial rent taxes to the extent accrued but not paid prior to the date hereof;
(x) other than the Assumed Liabilities, any liabilities of the Seller to third parties arising out of the failure of the Seller to obtain any necessary consents to the assignment to the Buyer of contracts or leases to which the Seller is a party (including damages asserted by third parties for breach of such contracts or leases due to the failure to obtain such consents);
(xi) liabilities, contingent or otherwise, and regardless of the Buyer’s which are not disclosed on Schedule 1.3(a);
(xii) liabilities for borrowed money or any of its directors’liabilities, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work contingent or otherwise, to creditors of the Buyer will not assumeSelling Parties, agree to pay, perform or discharge or in any way be responsible other than the Assumed Liabilities;
(xiii) liabilities of the Seller for any debts state franchise taxes or annual license or other fees relating to qualification as a foreign corporation or authorization to do business in such states (including interest and/or interest, penalties thereonand additions to such taxes and fees), ; and
(xiv) any other liabilities or obligations of the Company or in connection with the Development Work of any kind or nature whatsoever, whether fixed now in existence or unfixed, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured (the “Excluded Liabilities”), except that arising hereafter not expressly assumed by the Buyer will assume at the Closing the following obligations: (iunder Section 1.3(a) all obligations of the Company under the Assumed Contracts, and (ii) the obligations set forth on Schedule 1.2(ii) (collectively, the “Assumed Liabilities”); provided however, that any liability or obligation relating to or arising from any breach, or event, circumstance or condition that with notice, lapse of time or both would constitute or result in a breach, by the Company on or before the Closing Date, of any of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting the generality of the foregoing, the Buyer is not assuming or agreeing to pay, perform or discharge or in any way be responsible for, any Excluded Liabilities, which shall include (i) all Indebtedness (which, for the avoidance of doubt, shall include all notes and interest payable to the Company’s shareholders), (ii) all Company Taxes, (iii) all obligations and liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of the transactions contemplated by this Agreement), (iv) all obligations and liabilities arising on or before the Closing Date, (v) all liabilities and obligations relating to or arising out of any transaction contemplated by this Agreement and (vi) any other liabilities owed to the stockholders of the Companyhereof.
Appears in 1 contract
Assumption of Liabilities. Notwithstanding anything (a) Buyer expressly is not assuming any obligations or liabilities, whether accrued, absolute, contingent, matured, unmatured or other, of Seller, the Shareholders or their respective affiliates. To the extent that Buyer assumes any agreement required to the contrary contained be set forth in this Agreement or any Company Transaction Document, and regardless of whether such liability is disclosed in this Agreement, in any Section 2.7 of the Transaction DocumentsSeller Schedule ("Assignable Contracts"), on any Schedule hereto or thereto or otherwise, and regardless which assumption shall be at Buyer's sole option exercisable within 90 days of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwise, the Closing Date (subject to Seller's consent not to be unreasonably withheld). Buyer will not assume, agree to pay, perform or discharge or in any way shall also assume and be responsible for liabilities thereunder arising after the date of assumption (other than those caused by an act or omission of Seller or its affiliates). If the assignment to Buyer of an Assignable Contract is subject to the consent of a third party, the assignment shall be conditioned upon such consent. Buyer and Seller each shall reasonably cooperate in obtaining any debts such consent. If such consent is not obtained, at Buyer's request Seller will perform under such contract for Buyer's benefit and Buyer will indemnify Seller for any Losses (as defined in Section 6.2(a)) resulting from such performance. Subject to Article VI, Seller and the Shareholders will severally indemnify and hold Buyer harmless from and against any and all losses, costs, expenses, claims, liabilities, deficiencies, judgments and damages (including interest and/or penalties thereon), liabilities reasonable attorneys' fees) incurred or obligations of the Company or in connection with the Development Work of any kind or nature whatsoever, whether fixed or unfixed, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured (the “Excluded Liabilities”), except that the suffered by Buyer will assume at the Closing the following obligations: (i) all obligations of the Company under the Assumed Contracts, and (ii) the obligations set forth on Schedule 1.2(ii) (collectively, the “Assumed Liabilities”); provided however, that any liability or obligation relating to or arising from any breach, or event, circumstance or condition that with notice, lapse of time or both would constitute or result in a breach, by the Company on or before the Closing Date, of any of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting the generality of the foregoing, the Buyer is not assuming or agreeing to pay, perform or discharge or in any way be responsible for, any Excluded Liabilities, which shall include (i) all Indebtedness (which, for the avoidance of doubt, shall include all notes and interest payable to the Company’s shareholders), (ii) all Company Taxes, (iii) all obligations and liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of the transactions contemplated by this Agreement), (iv) all obligations and liabilities arising on or before the Closing Date, (v) all liabilities and obligations relating to or arising out of any transaction contemplated by this Agreement and liabilities or obligations to third parties of Seller or any of Seller's stockholders, affiliates or successors, including without limitation the following liabilities or obligations: (vi1) any other liabilities owed liability or obligation for any Taxes (as defined in Section 2.4) incurred or accrued by Seller for any period or any liability for Taxes of any person or entity attributable to the stockholders Assets for any period or portion of any period ending on or prior to the CompanyClosing Date; (2) any liability or obligation of Seller as a result of any legal or equitable action or judicial or administrative proceeding initiated at any time in respect of anything done or suffered to be done by the Seller or any of its directors, officers, employees, or agents to third parties; or (3) any liability or obligation of Seller relating to or in connection with any product liability or warranty matters relating to Seller's products (i.e., motor vehicles), or the return of Seller's products from customers or any other person or entity.
(b) Subject to Article VI, Buyer will indemnify and hold Seller and Shareholders harmless from and against any and all losses, costs, expenses, claims, liabilities, deficiencies, judgments and damages (including reasonable attorney's fees) incurred or suffered by Seller or Shareholders related to or arising out of any liabilities or obligations to third parties of Buyer, including without limitation the following liabilities or obligations: (1) any liability or obligation for any Taxes accrued by Buyer for any period or any liability for Taxes of any person or entity attributable to the Assets for any period or portion of any period commencing after the Closing Date; (2) any liability or obligation of Buyer as a result of any legal or equitable action or judicial or administrative proceeding initiated at any time in respect of anything done or suffered to be done by Buyer or any of its directors, officers, shareholders, employees or agents after the Closing Date; or (3) any liability or obligation of Buyer relating to or in connection with any product liability or warranty matters relating to Buyer's products (i.e., motor vehicles), inventory provided by Seller under the Inventory Agreement or the return of any product from customers or any other person or entity.
Appears in 1 contract
Assumption of Liabilities. (a) In connection with the acquisition by Buyer of the Assets as of the Effective Time, Buyer shall assume only those liabilities under the Material Contracts (as defined herein) of Seller that are expressly identified on the attached Exhibit B. Buyer does not hereby, and will not at any time be required to, assume, pay, perform or discharge any other obligations, claims, liabilities, costs or expenses of Seller, including without limitation any of the following: (i) any liability in respect of separation or severance pay to any person employed by Seller; (ii) any liability under any plan, fund, program, policy or arrangement under which any persons are provided or promised pensions, retirement income, deferred compensation or profit-sharing; (iii) any liability under any plan, fund, program or arrangement under which any persons are provided or promised bonuses, incentive pay, severance pay, vacations or vacation pay, salary continuation, medical insurance or benefits, savings benefits, stock options, life insurance or death benefits, travel or accident benefits or unemployment benefits; (iv) any liability for occupational health and safety or environmental matters; (v) any liability of Seller (including without limitation any liability or potential liability with respect to any consolidated return filed or to be filed by any person) for federal, state or local income or other taxes or penalties or interest thereon; (vi) any pending or threatened litigation against Seller or any affiliate of Seller; (vii) any intercompany loans, advances or other obligations owed by Seller to any affiliate of Seller; and (viii) liability of any kind, direct or indirect, fixed or contingent, arising out of, resulting from or
(b) Notwithstanding anything to the contrary contained in this Agreement or any Company Transaction Document, and regardless of whether such liability is disclosed in this Agreement, to the extent that the assignment hereunder of any Material Contract shall require the consent of any other party (or in the event that any of the Transaction Documents, on any Schedule hereto or thereto or otherwise, and regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwise, the Buyer will not assume, agree to pay, perform or discharge or in any way same shall be responsible for any debts (including interest and/or penalties thereonnon-assignable), liabilities neither this Agreement nor any action taken pursuant to its provisions shall constitute an assignment or obligations of an agreement to assign if such assignment or attempted assignment would constitute a breach thereof or result in the Company loss or in connection with the Development Work of any kind or nature whatsoeverdiminution thereof; provided, whether fixed or unfixed, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured (the “Excluded Liabilities”), except that the Buyer will assume at the Closing the following obligations: (i) all obligations of the Company under the Assumed Contracts, and (ii) the obligations set forth on Schedule 1.2(ii) (collectively, the “Assumed Liabilities”); provided however, that any liability or obligation relating in each such case, Seller and the Shareholders shall use their best efforts to or arising from any breach, or event, circumstance or condition that with notice, lapse obtain the consent of time or both would constitute or result in a breach, by the Company on or before the Closing Date, of any of its obligations under such other party to an Assumed Contract shall be an Excluded Liabilityassignment to Buyer. Without limiting the generality of the foregoing, the Buyer If such consent is not assuming or agreeing obtained and is waived by Buyer prior to paythe Closing, perform or discharge or Seller and the Shareholders shall cooperate with Buyer in any way be responsible for, reasonable arrangement designed to provide for Buyer the benefits under any Excluded Liabilities, which shall include (i) all Indebtedness (which, for such contract from and after the avoidance of doubt, shall include all notes and interest payable to the Company’s shareholders), (ii) all Company Taxes, (iii) all obligations and liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of the transactions contemplated by this Agreement), (iv) all obligations and liabilities arising on or before the Closing Date, (v) all liabilities and obligations relating to or arising out of any transaction contemplated by this Agreement and (vi) any other liabilities owed to the stockholders of the CompanyEffective Time.
Appears in 1 contract
Assumption of Liabilities. Notwithstanding anything (a) Upon and subject to the contrary contained in this Agreement or any Company Transaction Document, terms and regardless conditions of whether such liability is disclosed in this Agreement, in any the Buyer shall assume and become responsible for, from and after the Closing, all obligations and nonperformance refunds of the Transaction DocumentsSellers as set forth on SCHEDULE 1.2(A) attached hereto that accrue and are required to be performed from and after the Closing provided that as of the date such Assigned Contract or Lease is assigned to the Buyer, on the Sellers are not in default thereunder (other than because of a provision of the type set forth in 11 U.S.C. ss. 365(e)) or any Schedule hereto such default has been cured by the Sellers (the "Assumed Liabilities").
(b) The Buyer shall not assume or thereto or otherwiseotherwise become responsible for, and regardless of the Buyer’s or Sellers shall remain liable for, any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwise, the Buyer will not assume, agree to pay, perform or discharge or in any way be responsible for any debts (including interest and/or penalties thereon), and all liabilities or obligations of the Company or in connection with the Development Work of any kind or nature whatsoever, (whether fixed or unfixed, known or unknown, whether absolute or contingent, asserted or unasserted, xxxxxx or inchoate, whether liquidated or unliquidated, whether due or secured to become due, and whether claims with respect thereto are asserted before or unsecured after the Closing) of the Sellers which are not Assumed Liabilities (collectively, the “Excluded "Retained Liabilities”"). The Retained Liabilities shall constitute claims and alleged claims in each Seller's Bankruptcy Case; PROVIDED, except HOWEVER, that nothing herein shall grant or create any rights in favor of the holders of Retained Liabilities or create any priority to right of payment. It is expressly understood and agreed that the Parties intend that the Buyer will assume at shall not be considered to be a successor to the Closing Sellers by reason of any theory of law or equity and that the Buyer shall have no liability except as expressly provided in this Agreement for any liability of the Sellers. The Retained Liabilities shall include, without limitation, the following obligations: (for purposes of the following clauses, the term "Seller" shall include each Seller and each of its subsidiaries):
(i) all obligations liabilities of the Company under the Assumed ContractsSellers for any federal, and (ii) the obligations set forth on Schedule 1.2(ii) (collectivelystate, the “Assumed Liabilities”); provided howeverforeign, that any liability local or obligation relating to or arising from any breach, or event, circumstance or condition that with notice, lapse of time or both would constitute or result in a breach, by the Company on or before the Closing Date, of any of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting the generality of the foregoing, the Buyer is not assuming or agreeing to pay, perform or discharge or in any way be responsible for, any Excluded Liabilities, which shall include (i) all Indebtedness (which, for the avoidance of doubt, shall include all notes and interest payable to the Company’s shareholders), other taxes;
(ii) all Company Taxes, (iii) all obligations and liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company (which, Sellers for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is costs and expenses incurred in connection with this Agreement or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of the transactions contemplated by this Agreement), ;
(iii) all liabilities or obligations of the Sellers under this Agreement or the Ancillary Agreements;
(iv) all liabilities and obligations and liabilities arising on of the Sellers under any agreements, contracts, leases or before the Closing Date, licenses which are not Assumed Liabilities;
(v) all liabilities and obligations of the Sellers relating to the manufacture or sale or distribution of products or the provision of services, including, without limitation, claims for infringement, or customer support claims, or for repair, replacement or return of products manufactured or sold or distributed by the Sellers, including, without limitation, any claims relating to or arising out of Year 2000 problems (but excluding any transaction contemplated of the foregoing liabilities or obligations arising from the sale by this Agreement and Buyer after the Closing of Acquired Assets consisting of products produced by the Sellers);
(vi) all liabilities and obligations of the Sellers arising out of events, conduct or conditions existing or occurring prior to the Closing that constitute a material violation of or non-compliance with any other law, rule or regulation, any judgment, decree or order of any Governmental Entity, or any Permit;
(vii) all liabilities and obligations of the Sellers related directly or indirectly to the environmental condition (and any adverse consequences arising therefrom) of the facilities, equipment and properties of the Sellers arising out of events, conduct or conditions occurring prior to the Closing, regardless of whether such condition constitutes a violation of, or non-compliance with any applicable federal, state or local law, statute or regulation relating to the environment or occupational health and safety (collectively, "Environmental Laws");
(viii) except as specifically set forth in Section 1.3(d) and Section 1.7 hereof, all liabilities or obligations of the Sellers to pay any compensation, bonus, incentive, accrued salary, accrued vacation, sick pay or severance benefits or unemployment compensation or employee welfare or pension benefits to any current or former employee, agent, consultant, advisor or independent contractor of any Sellers and all liabilities resulting from the termination of employment of employees of the Sellers that arose under any federal, state, local or foreign law or under any employee benefit plan established or maintained by the Sellers;
(ix) all liabilities of the Sellers for injury to or death of persons or damage to or destruction of property arising out of events, conduct or conditions occurring prior to the Closing;
(x) all liabilities of the Sellers for medical, dental and disability (both long-term and short-term) benefits, whether insured or self-insured, owed to the stockholders employees or former employees of the CompanySeller;
(xi) all liabilities or obligations of the Sellers and each ERISA affiliate arising out of or with respect to any "multiemployer plan" (as defined in Section 3(37) of ERISA) or other employee benefit plan;
(xii) all liabilities of the Sellers arising out of any claim, suit, action, arbitration, proceeding, investigation or other similar matter which commenced or relates to the ownership of the Acquired Assets on or prior to the Closing or the operation of the business of the Sellers;
(xiii) all liabilities of the Sellers for any claims and administrative or other expenses of whatever kind or nature, arising prior or subsequent to the commencement of the Bankruptcy Case, whether or not asserted; and
(xiv) all liabilities of the Sellers, or any of its officers, directors or employees (in such capacities) to any person or entity as a shareholder of the Sellers, including, without limitation, in connection with any pending, threatened or future shareholder lawsuit.
Appears in 1 contract
Assumption of Liabilities. (a) In connection with the acquisition by Buyer of the Assets at the Closing, Buyer shall assume only those liabilities under the Material Contracts (as defined in this Agreement) of Seller, which Material Contracts are expressly identified on the attached Exhibit B. Buyer does not hereby, and will not at any time be required to, assume, pay, perform or discharge any other obligations, claims, liabilities, costs or expenses of Seller, including without limitation any of the following: (i) any liability in respect of separation or severance pay to any person employed by Seller; (ii) any liability under any plan, fund, program, policy or arrangement under which any persons are provided or promised pensions, retirement income, deferred compensation or profit-sharing; (iii) any liability under any plan, fund, program or arrangement under which any persons are provided or promised bonuses, incentive pay, severance pay, vacations or vacation pay, salary continuation, medical insurance or benefits, savings benefits, stock options, life insurance or death benefits travel or accident benefits or unemployment benefits; (iv) any liability for occupational health and safety or environmental matters; (v) any liability of Seller (including without limitation any liability or potential liability with respect to any consolidated return filed or to be filed by any person) for federal, state or local income or other taxes or penalties or interest thereon; (vi) any pending or threatened litigation against Seller or any affiliate of Seller; (vii) any intercompany loans, advances or other obligations owed by Seller to any affiliate of Seller; and (viii) liability of any kind, direct or indirect, fixed or contingent, arising out of, resulting from or relating to actions taken or omitted to be taken by Seller prior to, on or after the Closing Date.
(b) Notwithstanding anything to the contrary contained in this Agreement or any Company Transaction Document, and regardless of whether such liability is disclosed in this Agreement, to the extent that the assignment hereunder of any Material Contract (as defined in this Agreement) shall require the consent of any other party (or in the event that any of the Transaction Documents, on any Schedule hereto or thereto or otherwise, and regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwise, the Buyer will not assume, agree to pay, perform or discharge or in any way same shall be responsible for any debts (including interest and/or penalties thereonnon-assignable), liabilities neither this Agreement nor any action taken pursuant to its provisions shall constitute an assignment or obligations of an agreement to assign if such assignment or attempted assignment would constitute a breach thereof or result in the Company loss or in connection with the Development Work of any kind or nature whatsoeverdiminution thereof; provided, whether fixed or unfixed, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured (the “Excluded Liabilities”), except that the Buyer will assume at the Closing the following obligations: (i) all obligations of the Company under the Assumed Contracts, and (ii) the obligations set forth on Schedule 1.2(ii) (collectively, the “Assumed Liabilities”); provided however, that any liability or obligation relating in each such case, Seller and the Shareholder shall use their best efforts to or arising from any breach, or event, circumstance or condition that with notice, lapse obtain the consent of time or both would constitute or result in a breach, by the Company on or before the Closing Date, of any of its obligations under such other party to an Assumed Contract shall be an Excluded Liabilityassignment to Buyer. Without limiting the generality of the foregoing, the Buyer If such consent is not assuming or agreeing to payobtained, perform or discharge or Seller shall cooperate with Buyer in any way be responsible for, reasonable arrangement designed to provide for Buyer the benefits under any Excluded Liabilities, which shall include (i) all Indebtedness (which, for such contract from and after the avoidance of doubt, shall include all notes and interest payable to the Company’s shareholders), (ii) all Company Taxes, (iii) all obligations and liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of the transactions contemplated by this Agreement), (iv) all obligations and liabilities arising on or before the Closing Date, (v) all liabilities and obligations relating to or arising out of any transaction contemplated by this Agreement and (vi) any other liabilities owed to the stockholders of the CompanyClosing.
Appears in 1 contract
Assumption of Liabilities. Notwithstanding anything Subject to the contrary contained in this Agreement or any Company Transaction Document, and regardless provisions of whether such liability is disclosed in this Agreement, in any from and after the Effective Date, Buyer shall assume all of the Transaction Documents, on any Schedule hereto or thereto or otherwise, liabilities and regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwise, the Buyer will not assume, agree to pay, perform or discharge or in any way be responsible for any debts (including interest and/or penalties thereon), liabilities or obligations of the Company or in connection with the Development Work Selling Entities arising out of any kind or nature whatsoever, whether fixed or unfixed, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured (the “Excluded Liabilities”), except that the Buyer will assume at the Closing the following obligations: (i) all obligations of the Company under the Assumed Contracts, and (ii) the obligations set forth those matters listed on Schedule 1.2(ii) 1.4 hereto, but only to the extent such liabilities and obligations arise or are first required to be performed after the Effective Date (collectively, the “Assumed Liabilities”); provided however. With the exception of the Assumed Liabilities, that Buyer shall not by the execution and performance of this Agreement, or otherwise, assume or otherwise be responsible for any liability or obligation relating to of any nature of any Selling Entity or arising from any breachOwner, or eventclaims of such liability or obligation, matured or unmatured, liquidated or unliquidated, fixed or contingent, or known or unknown, whether arising out of occurrences prior to, at or after the Effective Date, including, without limitation, those arising from: (v) any occurrence or circumstance (whether known or condition unknown) that with noticeoccurs or exists prior to, at or after the Effective Date and that constitutes, or that by the lapse of time or both delivery of notice (or both) would constitute constitute, a breach or result in default under any lease, contract, instrument or agreement of any Selling Entity (whether written or oral); (w) any claim for negligence or other tortious act, regardless of whether such claim occurs prior to, at or after the Effective Date; (x) any violation of the requirements of any governmental authority or of the rights of any natural person, corporation (including any non-profit corporation), limited liability company, joint venture, general, limited [**] denotes confidential treatment has been requested for the bracketed portion. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission. or other form of partnership, estate, trust, association, organization, labor union, or other entity or enterprise (each, a breach“Person”), by including, without limitation, requirements relating to the Company on reporting or before payment (or both) of federal, state, local or foreign income, property or other taxes; (y) the Closing Date, misclassification of any of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting the generality purported independent contractors engaged by any Selling Entity as “employees” for purposes of the foregoingInternal Revenue Code of 1986, as amended (the Buyer is not assuming “Code”) and the treasury regulations promulgated thereunder (the “Treasury Regulations”); or agreeing (z) any employee benefit plan or any other fringe benefit program maintained by any Selling Entity or to paywhich any Selling Entity contributes or any contributions, perform benefits or discharge liabilities therefor or in any way be responsible forliability for any Selling Entity’s withdrawal or partial withdrawal from, or termination of, any Excluded Liabilities, which shall include (i) all Indebtedness (which, for the avoidance of doubt, shall include all notes and interest payable to the Company’s shareholders), (ii) all Company Taxes, (iii) all obligations and liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans such plan or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of the transactions contemplated by this Agreement), (iv) all obligations and liabilities arising on or before the Closing Date, (v) all liabilities and obligations relating to or arising out of any transaction contemplated by this Agreement and (vi) any other liabilities owed to the stockholders of the Companyprogram.
Appears in 1 contract
Samples: Purchase Agreement (CBIZ, Inc.)
Assumption of Liabilities. Notwithstanding anything (a) At the Closing, the Buyer shall assume and agree to pay, discharge, or perform, as appropriate, when due only the Liabilities of the Seller specifically identified below in this Section 2.5(a) (the “Assumed Liabilities”):
(i) the Accounts Payable, but in each case only to the contrary contained extent set forth on the Closing Balance Sheet;
(ii) the Accrued Expenses, but in each case only to the extent set forth on the Closing Balance Sheet;
(iii) the Crestmark Note, the outstanding balance of which as of the Closing Date shall be reflected on the Closing Balance Sheet;
(iv) any post-Closing executory obligations under those Contracts identified as assumed Contracts on Section 4.16 of the Disclosure Schedule.
(b) Notwithstanding paragraph (a) above or any other provision of this Agreement, the Buyer is not assuming under this Agreement or any Company other Transaction DocumentDocument any Liability that is not specifically identified as an Assumed Liability under Section 2.5(a) (each, and regardless of whether such liability is disclosed in this Agreementan “Excluded Liability”), in including any of the Transaction Documents, on any Schedule hereto or thereto or otherwise, and regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwise, the Buyer will not assume, agree to pay, perform or discharge or in any way be responsible for any debts (including interest and/or penalties thereon), liabilities or obligations of the Company or in connection with the Development Work of any kind or nature whatsoever, whether fixed or unfixed, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured (the “Excluded Liabilities”), except that the Buyer will assume at the Closing the following obligationsfollowing: (i) all obligations Liabilities arising out of any Default by the Company under the Assumed ContractsSeller of any provision of any Contract, and Law, or Governmental Permit; (ii) all product Liabilities, Liabilities relating to services provided, or similar claims for injury to any Person or property, regardless of when made or asserted, that arises out of or are based upon any express or implied representation, warranty, agreement, services or guarantee provided by the obligations set forth Seller, or alleged to have been made by the Seller, or that are imposed or asserted to be imposed by operation of Law in connection with any service performed or product sold or leased by or on Schedule 1.2(iibehalf of the Seller on or prior to the Closing; (iii) (collectivelyany federal, state, or local income or other Tax payable with respect to the Business, the “Assumed Liabilities”)Purchased Assets, or other properties or operations of the Seller or any member of any affiliated group of which the Seller is a member for the Pre-Closing Tax Period; provided however(iv) any Liabilities under or in connection with any Excluded Assets; (v) all Liabilities arising prior to the Closing Date, that or as a result of the Closing, for severance, bonuses, or any liability other form of compensation to any employees, agents, or obligation relating to independent contractors of the Seller, whether or not employed by the Buyer after the Closing and whether or not arising or under any applicable Law, Benefit Plan, or other arrangement with respect thereto, except for accrued vacation and vacation pay for Transferred Employees included in Accrued Expenses; (vi) all Liabilities of the Seller arising or incurred in connection with the negotiation, preparation, and execution of this Agreement and the Transactions; (vii) all Liabilities arising out of the announcement of the Transactions; (viii) all Environmental Liabilities arising from any breach, or event, circumstance or condition that with notice, lapse of time or both would constitute or result in a breach, by the Company related to circumstances existing on or before the Closing Date, ; (ix) the amount of all Outstanding Checks; (x) all Liabilities to give credits or take other remedial action for defective goods or services; (xi) all Liabilities for money borrowed (other than the Crestmark Note); (xii) all Liabilities of any Seller Party or Affiliate thereof based upon an act or omission of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting such Person after the generality of the foregoing, the Buyer is not assuming or agreeing to pay, perform or discharge or in any way be responsible for, any Excluded Liabilities, which shall include Closing; (ixiii) all Indebtedness (which, for the avoidance of doubt, shall include all notes and interest payable to the Company’s shareholders), (ii) all Company Taxes, (iii) all obligations and liabilities Liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of the transactions contemplated by this Agreement), (iv) all obligations and liabilities arising on or before the Closing Date, (v) all liabilities and obligations relating to or arising out of any transaction contemplated by this Agreement Benefit Plan; and (vixiv) any other liabilities owed to the stockholders Liabilities, regardless of the Companywhen made or asserted, that are not specifically assumed hereunder.
Appears in 1 contract
Samples: Asset Purchase Agreement (World Health Alternatives Inc)
Assumption of Liabilities. Notwithstanding anything to the contrary contained in this Agreement or any Company Transaction Document, and regardless of whether such liability is disclosed in this Agreement, in any of the Transaction Documents, on any Schedule hereto or thereto or otherwise, and regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwise, the Buyer will not shall assume, agree to payperform, perform and discharge when due those obligations of Seller with respect to the period from and after the Closing Date (i) to provide the warranty services and materials under the customer contracts listed on Schedule 3(i), (ii) to supply parts and repair services under the customer contracts listed on Schedule 3(ii), and (iii) under sales agency contracts, written or discharge or oral, listed on Schedule 1(e) (collectively the "Assumed Liabilities"); provided, however, the provision of such warranty services and materials under each contract identified in any way Schedule 3(i) shall not begin until after the applicable Meteorological Equipment has been installed and accepted by the customer. Buyer shall be responsible compensated for such warranty services and materials as provided in Section 13(e). Seller and Buyer agree that, other than the Assumed Liabilities, Buyer does not agree to assume 2 -161- and shall have no responsibility for any debts of the debts, obligations or liabilities of Seller (including interest and/or penalties thereonthe "Excluded Liabilities"), liabilities or obligations all of which shall remain the sole responsibility of and shall be paid and discharged by Seller as they become due. The Excluded Liabilities include without limitation all of the Company following:
(a) Any tax liability or tax obligation of Seller, its directors, officers, shareholders and agents which has been or may be asserted by any taxing authority, other than any such liability or obligation arising out of or in connection with transfer of the Development Work Assets as contemplated by this Agreement.
(b) Any liability or obligation of Seller or any contract obligation of Seller (other than the Assumed Liabilities) whether incurred prior to, at or subsequent to the Closing Date, arising out of Seller's operation of the Business.
(c) Any liability or obligation arising out of any kind litigation, suit, proceeding, action, claim or nature whatsoeverinvestigation, whether fixed at law or unfixedin equity or in arbitration, related to Seller's operation of the Business prior to the Closing Date.
(d) Any claim, liability or obligation, known or unknown, absolute contingent or contingentotherwise, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidatedthe existence of which is a breach of, or secured inconsistent with, any representation, warranty or unsecured (the “Excluded Liabilities”), except that the Buyer will assume at the Closing the following obligations: (i) all obligations covenant of the Company under the Assumed Contracts, and (ii) the obligations Seller set forth on Schedule 1.2(iiin this Agreement.
(e) (collectively, the “Assumed Liabilities”); provided however, that any Any liability or obligation relating to or arising from any breach, or event, circumstance or condition that with notice, lapse of time or both would constitute or result specifically stated in a breach, by the Company on or before the Closing Date, of any of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting the generality of the foregoing, the Buyer is not assuming or agreeing to pay, perform or discharge or in any way be responsible for, any Excluded Liabilities, which shall include (i) all Indebtedness (which, for the avoidance of doubt, shall include all notes and interest payable to the Company’s shareholders), (ii) all Company Taxes, (iii) all obligations and liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of the transactions contemplated by this Agreement), (iv) all obligations and liabilities arising on or before the Closing Date, (v) all liabilities and obligations relating to or arising out of any transaction contemplated by this Agreement and (vi) any other liabilities owed or the Schedules hereto as not to the stockholders of the Companybe assumed by Buyer.
Appears in 1 contract
Samples: Asset Purchase Agreement (Data Transmission Network Corp)
Assumption of Liabilities. Notwithstanding anything to the contrary contained in this Agreement or any Company Transaction Document, and regardless of whether such liability Liability is disclosed in this Agreement, in any of the Transaction Documents, on any Schedule hereto or thereto or otherwise, and regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liabilityLiability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work Business or otherwise, the Buyer will not assume, agree to pay, perform or discharge or in any way be responsible for any debts (including interest and/or penalties thereon), liabilities or obligations of the Company or in connection with the Development Work of any kind or nature whatsoever, whether fixed or unfixed, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured Liabilities (the “Excluded Liabilities”), except that the Buyer will assume at following the Closing the following obligations: (i) all obligations of the Company arising under the Assumed Contracts, and including any royalties that are due there under after the Closing (ii) the obligations set forth on Schedule 1.2(ii) (collectively, the “Assumed Liabilities”); provided provided, however, that any liability or obligation Liability relating to or arising from any breach, or event, circumstance or condition that with notice, lapse of time or both would constitute or result in a breach, by the Company Company, on or before the Closing Date, of any of its obligations under an Assumed Contract thereunder shall be an Excluded Liability. Without limiting the generality of the foregoing, the Buyer is not assuming or agreeing to pay, perform or discharge or in any way be responsible for, any Excluded Liabilities, which shall include include, but not be limited to: (i) all Indebtedness (which, for the avoidance of doubt, shall include all notes and interest payable to the Company’s shareholders)Indebtedness, (ii) all Company Taxes, (iii) all obligations and liabilities Liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company (which, for the avoidance of doubt, shall include including severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of the transactions contemplated by this Agreement), (iv) all obligations Liabilities related to litigation and liabilities arising environmental matters with respect to the Assets for any period (or portion thereof) ending on or before the Closing Date, (v) all liabilities and obligations Liabilities relating to or arising out of any transaction contemplated by this Agreement and or the Transaction Documents, (vi) any Liabilities with respect to any Products, or (vii) any other liabilities owed or obligations associated with the ownership of the Assets on or prior to Closing or the stockholders of the CompanyCompany at any time.
Appears in 1 contract
Samples: Asset Purchase Agreement (Cytori Therapeutics, Inc.)
Assumption of Liabilities. Notwithstanding anything to At the contrary contained in this Agreement or any Company Transaction Document, and regardless of whether such liability is disclosed in this Agreement, in any of the Transaction Documents, on any Schedule hereto or thereto or otherwise, and regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwiseClosing, the Buyer will not assume, agree shall assume all liabilities (the "Assumed Liabilities") of the Sellers arising out of or relating primarily to pay, perform or discharge or in any way be responsible for any debts the business of each such Seller (including interest and/or penalties thereonbut not limited to claims, actions, Proceedings and liabilities for product warranty, breach of contract, breach of warranty, tort or infringement), except the Excluded Liabilities. The Buyer shall not assume any liabilities or obligations of the Company or in connection with the Development Work any Seller of any kind or nature whatsoever, whether fixed or unfixed, known or unknown, absolute fixed, contingent or contingentotherwise of each such Seller (the "Excluded Liabilities"): (a) for any Environmental, asserted Health and Safety Liabilities resulting from the ownership, operation or unasserted, xxxxxx or inchoate, liquidated or unliquidatedcondition of the Facilities, or secured with respect to any site to which Hazardous Materials generated by any Seller were transported, or unsecured for any liabilities or obligations resulting from any Hazardous Activity conducted by any Seller, (b) for any Taxes resulting from the “Excluded Liabilities”conduct of the business of the Sellers, including all Taxes on Real Property, except such Taxes on Real Property as are accrued and reflected on the face of the Closing Balance Sheet, (c) for any violation by any Seller of any Legal Requirement, (d) to any retired or other former employees of any Seller including but not limited to pension payments to Xxxx and Xxxxx Xxxxxx ($1,226 per month plus COLA), except that Xxxxxxxx Xxxxx ($335 per month), Xxxxx Held ($35 per month) and Xxxx Xxxx ($800 per month) or with respect to the Buyer will assume note payable to Xxxx and Xxxxx Xxxxxx in the principal amount of $120,000 due October 2007, (e) under any Plans maintained at the Closing the following obligations: any time by any Seller or to which or in which any Seller contributes or participates, or relating to any termination of any such Plan, (if) all for any liabilities or obligations of the Company any Seller arising under the Assumed Contractsthis Agreement, including without limitation, for any obligations arising under Section 6.2 hereof, for any breach of any representation or warranty made by any Seller contained herein or for any other breach hereof, and (iig) for any liabilities (other than such liabilities described in (a) through (f) above) of which the obligations set forth Sellers have Knowledge on Schedule 1.2(ii) (collectively, or prior to the “Assumed Liabilities”); provided however, that any liability Closing Date and which are not reflected on the face of the Closing Balance Sheet or obligation relating to or arising from any breachin the notes thereto, or event, circumstance or condition that with notice, lapse of time or both would constitute or result in a breach, by the Company on or before the Closing Date, of any of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting the generality of the foregoing, the Buyer is not assuming or agreeing to pay, perform or discharge or in any way be responsible for, any Excluded Liabilities, which shall include (i) all Indebtedness (which, for the avoidance of doubt, shall include all notes and interest payable to the Company’s shareholders), (ii) all Company Taxes, (iii) all obligations and liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of the transactions contemplated by this Agreement), (iv) all obligations and liabilities arising on or before the Closing Date, (v) all liabilities and obligations relating to or arising out of any transaction contemplated by this Agreement and (vi) any other liabilities owed to the stockholders of the CompanyDisclosure Letter.
Appears in 1 contract
Assumption of Liabilities. Notwithstanding anything to the contrary contained in this Agreement or any Company Transaction Document, and regardless of whether such liability is disclosed in this Agreement, in any Assignee hereby assumes all of the Transaction Documents, on any Schedule hereto or thereto or otherwise, and regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwise, the Buyer will not assume, agree to pay, perform or discharge or in any way be responsible for any debts (including interest and/or penalties thereon)duties, liabilities or and obligations of WEO arising from and after the Company or in connection with the Development Work of any kind or nature whatsoever, whether fixed or unfixed, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured (the “Excluded Liabilities”), except that the Buyer will assume at the Closing the following obligations: date hereof which relate to (i) all obligations of the Company under WEO Operating Contracts or the Assumed Contracts, WEO Operating Assets and (ii) work performed on Projects pursuant to Development Management Agreements after the date hereof, and shall include (a) those duties, liabilities and obligations set forth relating to any Development Management Agreements (and the provision of leasing services pursuant to Section 4.3 of the WEO Agreement) arising from and after the date hereof (b) those duties, liabilities and obligations arising from or on Schedule 1.2(iiaccount of (x) the employment by WEO or its Subsidiaries of any employees or individuals serving as independent contractors acting in a manner comparable to that of individual employees, or (collectivelyy) other matters relating to the relationship of individuals (who performed work for WEO or its Subsidiaries in the WEO offices) with WEO or its Subsidiaries (including, with respect to (x) and (y), sexual harassment (except harassment by an individual whose knowledge is attributed to EOP under Section 13.9 of the Separation Agreement), wrongful termination claims, employment discrimination claims, refusal to hire claims, claims related to pension or profit sharing issues, vacation time, sick pay, employment conditions or any other claims or causes of action a person may have on account of being an employee or independent contractor), whether arising before, on or after the date hereof, (c) all of the duties, liabilities and obligations of Assignor under the WEO Operating Contracts arising from and after the date hereof, (d) liabilities incurred by WEO in the ordinary course of business (including liabilities to vendors) other than under Project Contracts whether arising before on or after the date hereof; and shall not include (i) those duties, liabilities and obligations of WEO that directly or indirectly relate to or arise from the rights, duties or obligations of WEO as a direct or indirect member and/or manager of the Project Entities or of the Owners, or (ii) those duties, liabilities and obligations to Wxxxxx, EOP or any of such parties’ affiliates arising or accruing under the WEO Agreement (other than the provision of leasing services pursuant to Section 4.3 of the WEO Agreement), or (iii) liabilities and obligations arising from any development management, property management or leasing services provided by WEO arising prior to the date hereof or (iv) any liability or obligation to the extent covered by valid and collectible insurance available to WEO or Affiliates, or (v) development management services regarding the projects commonly known as “Gap,” “Seaport” and “Parkside,” or (vi) tort liabilities or governmental fines or penalties arising out of facts or circumstances occurring prior to the date hereof. The liabilities assumed by Assignee under this Section 3 are referred to as the “Assumed Liabilities”); provided however, that any liability or obligation relating to or arising from any breach, or event, circumstance or condition that with notice, lapse of time or both would constitute or result in a breach, by the Company on or before the Closing Date, of any of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting the generality of the foregoing, the Buyer is not assuming or agreeing to pay, perform or discharge or in any way be responsible for, any Excluded Liabilities, which shall include (i) all Indebtedness (which, for the avoidance of doubt, shall include all notes and interest payable to the Company’s shareholders), (ii) all Company Taxes, (iii) all obligations and liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of the transactions contemplated by this Agreement), (iv) all obligations and liabilities arising on or before the Closing Date, (v) all liabilities and obligations relating to or arising out of any transaction contemplated by this Agreement and (vi) any other liabilities owed to the stockholders of the Company.
Appears in 1 contract
Samples: Separation Agreement (Equity Office Properties Trust)
Assumption of Liabilities. Notwithstanding anything to the contrary contained in this Agreement or any Company Transaction Document, The Buyer shall assume and regardless of whether such liability is disclosed in this Agreement, in any of the Transaction Documents, on any Schedule hereto or thereto or otherwise, and regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwise, the Buyer will not assume, agree to pay, perform or discharge or in any way be responsible for any debts (including interest and/or penalties thereon)and discharge, liabilities or solely the debts, liabilities, obligations and contracts of the Company or in connection with the Development Work of any kind or nature whatsoeverSeller specifically described on Schedule 1.3 attached to this Agreement, whether fixed or unfixed, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured (the “Excluded Liabilities”), except it be acknowledged and agreed that the Buyer will assume at the Closing the following obligations: (i) all obligations of the Company Liabilities under the Assumed Contracts, Contracts are limited to obligations relating to the performance thereunder from and after the Closing Date (ii) the obligations set forth on Schedule 1.2(ii) (collectively, the “Assumed Liabilities”); provided however. Except for the Assumed Liabilities, that the Buyer shall not assume or be responsible for any liability or obligation relating to or arising from any breachclaims against, or eventliabilities, circumstance commitments, contracts, agreements or condition obligations whatsoever of the Seller, including without Limitation, the following (collectively, the “Excluded Liabilities”):
(a) any of the costs and expenses incurred in connection with the future operations or liquidation or dissolution of the Seller and the costs or expenses of the Seller Parties incurred in negotiating, entering into and carrying out its obligations pursuant to this Agreement;
(b) any unknown Liability of the Seller;
(c) any and all Indebtedness that is not an Assumed Liability;
(d) any Liabilities arising out of or in connection with noticethe Excluded Assets;
(e) any Liabilities arising out of or in connection with periods or activity prior to the Closing Date related to any Governmental Authority, lapse or any violation of time a Legal Requirement (including without limitation, Environmental Laws);
(f) any Liability of the Seller arising out of any claim, litigation, or both would constitute Proceeding threatened or result in a breach, by the Company pending on or before the Closing DateDate or any claim, of any of its obligations under litigation, or Proceeding threatened or initiated after the Closing Date to the extent based on an Assumed Contract shall be an Excluded Liability. Without limiting the generality act or omission of the foregoingSeller or any current or former officer, director, employee, agent or representative of the Seller or the operation of the Business and/or Assets occurring before the Closing Date;
(g) any Environmental Claim or other conditions that could give rise to or relate to Liability under Environmental Laws or similar legal requirements attributable or relating to the Assets (including, without limitation, the Buyer is not assuming operation thereof), the Business, or agreeing the Seller Parties, including any Liability (INCLUDING WITHOUT LIMITATION STRICT LIABILITY) or obligation arising under or relating to pay, perform or discharge or in any way be responsible for, any Excluded Liabilities, which shall include (i) all Indebtedness (which, for the avoidance of doubt, shall include all notes and interest payable Environmental Laws with respect to the Company’s shareholders), (ii) all Company Taxes, (iii) all obligations and liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans Business Facilities based upon facts existing or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of the transactions contemplated by this Agreement), (iv) all obligations and liabilities arising circumstances occurring on or before the Closing Date or resulting from, caused by or related to any act or omission of any third party or the Seller or any current or former officer, director, partner, employee, agent, representative, tenant or invitee of the Seller which occurred on or prior to the Closing Date, the existence, presence, dispersal or release of any Hazardous Substances on, under, about or within any soil, groundwater or other media at any facility or property owned, operated, leased, managed or otherwise controlled by a Seller Party, or of which the Assets are a part or which relate to the Assets, or the continuation of practices or operations of the Seller Parties with respect to the Assets or the Business Facilities, that were occurring or in effect on or prior to the Closing Date;
(vh) all liabilities the responsibility for, any contributions to, or any Liability in connection with, any Benefit Plan maintained by the Seller (or Commonly Controlled Entity) for its employees, former employees, retirees, their beneficiaries or any other person, and obligations any continuation coverage (including any penalties, excise taxes or interest resulting from the failure to provide continuation coverage) required by Section 4980B of the Code due to qualifying events which occur on or before the Closing Date (except as obligated by Legal Requirements);
(i) any Liability of the Seller for any Tax of any kind or nature, including without limitation, any Tax which may become payable by reason of the sale and transfer of the Assets, or be imposed upon the Seller by reason of receipt of the Purchase Price or relief from any Liability pursuant to or in connection with this Agreement;
(j) any Liability of the Seller for any noncompliance by the Seller with any applicable Legal Requirement, including without limitation those relating to employment and labor management relations (including noncompliance under the Worker Adjustment and Retraining Notification Act) and any provisions thereof relating to wages and the payment thereof, hours of work, terms of employment, collective bargaining agreements, workers’ compensation laws and the withholding and payment of federal Social Security and similar taxes arising from the Business prior to the Closing Date or otherwise arising prior to the Closing Date;
(k) any failure by the Seller to withhold all amounts required by law or agreement to be withheld from the wages or salaries of its employees, and any Liability for any wage arrearages, taxes or penalties for failure to comply with any of the foregoing arising prior to the Closing Date or otherwise arising from the Assets or the operation thereof prior to the Closing Date;
(l) any Liability to employees of the Seller, including, without limitation, any severance or retention obligations, accrued vacation and any bonus obligations arising prior to the Closing Date or otherwise arising from the Assets or the operation thereof prior to the Closing Date to the extent that the liability is not recorded in the Financial Statements or is specifically reflected in the calculation of Net Working Capital as of the Closing Date;
(m) any Liability or obligation of any kind under any contract that is not an Assumed Contract;
(n) any Liability that arises out of or relates to the ownership or operation of the Business or the Assets on or prior to the Closing Date to the extent that the liability is specifically reflected in the calculation of Net Working Capital as of the Closing Date; and
(o) any Liability arising out of any transaction contemplated by this Agreement controversies between the Seller and (vi) its employees or former employees or any union or other liabilities owed collective bargaining unit representing any of its employees arising prior to the stockholders of Closing Date or otherwise arising from the CompanyAssets or the operation thereof prior to the Closing Date.
Appears in 1 contract
Samples: Asset Purchase Agreement (Omni Energy Services Corp)
Assumption of Liabilities. Notwithstanding anything (a) As additional consideration for the Purchased Assets, Purchaser shall, on the date hereof, by its execution and delivery of the Assumption Agreement, assume and agree to pay and perform all Liabilities of Seller (other than the "Retained Liabilities," as defined below) relating to the contrary contained in this Agreement or any Company Transaction Document, and regardless of whether such liability is disclosed in this Agreement, in any of the Transaction Documents, on any Schedule hereto or thereto or otherwise, and regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwise, the Buyer will Business.
(b) Purchaser shall not assume, agree to pay, pay or perform or discharge or in any way be responsible and Seller shall remain obligated for any debts (including interest and/or penalties thereon), liabilities or obligations the following Liabilities of the Company or in connection with the Development Work of any kind or nature whatsoeverSeller, whether fixed or unfixednot relating to the Business (collectively, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured (the “Excluded "Retained Liabilities”), except that the Buyer will assume at the Closing the following obligations: "):
(i) all obligations any Liability relating to the violation or failure to comply with any Law relating to the operation of the Company under the Assumed Contracts, and Business prior to date hereof;
(ii) any Liability arising out of or relating to the obligations Retained Assets;
(iii) any Liability of Seller for any Taxes for any periods (or portions thereof) prior to the date hereof, whether or not relating to the Business and, with respect to periods subsequent to the date hereof, other than with respect to the operation of the Business or the ownership or use of the Purchased Assets; or
(iv) any Liability of Seller with respect to any employee benefit or incentive plan, agreement or arrangement, including without limitation, any pension, life insurance, profit sharing, bonus, incentive, deferred compensation, stock purchase, stock option, group insurance, cafeteria, vacation pay, severance pay or retirement plan, agreement or arrangement except as specifically set forth herein (excluding, however, those Liabilities set forth on Schedule 1.2(ii2.7 hereto);
(v) (collectivelythe fees, the “Assumed Liabilities”); provided howevercosts and expenses of any person, that any liability firm, corporation or obligation relating to or arising from any breachother entity acting on behalf of, or eventrepresenting the Seller or the Stockholders as broker, circumstance or condition that with noticefinder, lapse of time or both would constitute or result in a breachinvestment banker, by the Company on or before the Closing Datefinancial advisor, of any of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting the generality of the foregoingaccountant, the Buyer is not assuming or agreeing to pay, perform or discharge attorney or in any way be responsible forsimilar capacity, any Excluded Liabilities, which shall include (i) all Indebtedness (which, for the avoidance of doubt, shall include all notes whether in connection with this Agreement and interest payable to the Company’s shareholders), (ii) all Company Taxes, (iii) all obligations and liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of the transactions contemplated by this Agreement), (iv) all obligations and liabilities arising on hereby or before the Closing Date, (v) all liabilities and obligations relating to or arising out of any transaction contemplated by this Agreement and otherwise;
(vi) any other liabilities owed Liability of Seller arising after Closing to its officers, employees or affiliates including, without limitation, the stockholders of the CompanyStockholders.
Appears in 1 contract
Samples: Asset Purchase Agreement (Diamond Technology Partners Inc)
Assumption of Liabilities. (a) Subject to the terms and conditions of this Agreement, the Buyer or any Designated Transferee shall assume and become responsible for, from and after the Closing, the Assumed Liabilities.
(b) Notwithstanding anything to the contrary contained in this Agreement or any Company Transaction Document, and regardless of whether such liability is disclosed in this Agreement, in any of the Transaction Documents, on any Schedule hereto or thereto or otherwise, and regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwiseset forth herein, the Buyer will shall not assumeassume or become responsible for, agree to payand each Seller shall remain solely liable for, perform or discharge or in any way be responsible for any debts (including interest and/or penalties thereon), and all liabilities or obligations of the Company or in connection with the Development Work of any kind or nature whatsoever, (whether fixed or unfixed, known or unknown, whether absolute or contingent, asserted or unasserted, xxxxxx or inchoate, whether liquidated or unliquidated, whether accrued or secured unaccrued, whether due or unsecured to become due, and whether claims with respect thereto are asserted before or after the Closing) of such Seller which are not Assumed Liabilities (collectively, the “Excluded "Retained Liabilities”"). The Retained Liabilities shall include, except that without limitation, the Buyer will assume at the Closing the following obligations: following:
(i) all liabilities and obligations of the Company under the Assumed Contracts, either Seller for costs and (ii) the obligations set forth on Schedule 1.2(ii) (collectively, the “Assumed Liabilities”); provided however, that any liability expenses incurred in connection with this Agreement or obligation relating to or arising from any breach, or event, circumstance or condition that with notice, lapse of time or both would constitute or result in a breach, by the Company on or before the Closing Date, of any of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting the generality of the foregoing, the Buyer is not assuming or agreeing to pay, perform or discharge or in any way be responsible for, any Excluded Liabilities, which shall include (i) all Indebtedness (which, for the avoidance of doubt, shall include all notes and interest payable to the Company’s shareholders), (ii) all Company Taxes, (iii) all obligations and liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of the transactions contemplated by this Agreement), ;
(iv) all obligations and liabilities arising on or before the Closing Date, (vii) all liabilities and obligations relating of either Seller under this Agreement or any of the Ancillary Agreements;
(iii) all liabilities and obligations of either Seller for any Taxes (except of the type listed on the Closing Statement as defined in Section 2.6(b));
(iv) all liabilities and obligations of either Seller under any agreements, contracts, leases or licenses that are not Assigned Contracts;
(v) all obligations of either Seller arising prior to the Closing under the Assigned Contracts, and all liabilities for any breach, act or omission by either Seller prior to the Closing under any Assigned Contract;
(vi) all liabilities and obligations of either Seller arising out of events, conduct or conditions existing or occurring prior to the Closing that constitute a violation of or noncompliance with any Law or Regulation, any judgment, decree or order of any Governmental Entity, or any Permit;
(vii) all liabilities and obligations of either Seller (including without limitation costs of cleanup and remediation) resulting from (A) any releases of any Materials of Environmental Concern into the environment in connection with the operation of either the NMC Business or the CMS Business or any other business by either Seller or any predecessor business or company prior to the Closing Date or for which either Seller is liable pursuant to any indemnity or otherwise; (B) the existence of any Materials of Environmental Concern at any site on which the business or operations of the NMC Business or the CMS Business or any predecessor business or company was conducted prior to the Closing Date or to which any such Materials of Environmental Concern were transported; (C) any release of any Materials of Environmental Concern at any such location if such release could give rise under any Environmental Law to liability on the part of either Seller or any predecessor business or company; or (D) any violation of any Environmental Law by either Seller or any predecessor business or company which occurred prior to the Closing; provided, however, that the liabilities and obligations referred to in this clause (ix) shall constitute Retained Liabilities only to the extent asserted by the Buyer prior to the fifth anniversary of the Closing Date; provided, further however, that Retained Liabilities shall include all Damages which result from an event, condition, release or violation asserted by the Buyer prior to such date whether or not they are known or asserted before such fifth anniversary;
(viii) all liabilities and obligations of either Seller for injury to or death of persons or damage to or destruction of property occurring prior to the Closing (including without limitation any workers compensation claim);
(ix) all intercompany liabilities of either Seller and its Affiliates;
(x) any claims against, or liabilities or obligations of or in connection with, any Employee Benefit Plans, including without limitation any excise Taxes, penalties or other liabilities imposed under ERISA or the Code;
(xi) all liabilities and obligations of either Seller to pay severance, termination pay, redundancy pay, pay in lieu of notice or other benefits to any current or former employee of either Seller whose employment is terminated (or treated as terminated) by either Seller in connection with the consummation of the transactions contemplated by this Agreement, and all liabilities resulting from the termination of employment of employees of either Seller prior to the Closing that arose under any Law or Regulation or under any Employee Benefit Plan established or maintained by such Seller, including without limitation any liabilities of such Seller pursuant to agreements and plans listed in Section 3.13(e) of the Disclosure Schedule;
(xii) all liabilities and obligations of either Seller for all compensation and benefits accrued by employees of either Seller employed in the NMC Business or the CMS Business prior to the Closing other than those of the nature and type included on Exhibit A-1 and Exhibit A-2; ------- --- ------- ---
(xiii) all liabilities and obligations of either Seller arising out of any transaction claim, suit, action, arbitration, proceeding, investigation or other similar matter which commenced or relates to the ownership of the Acquired Assets or the operation of the NMC Business or the CMS Business on or prior to the Closing;
(xiv) all liabilities and obligations of either Seller for income, transfer, sales, use or other Taxes arising in connection with the consummation of the transactions contemplated by this Agreement;
(xv) all liabilities and obligations under foreign currency contracts to which either Seller is a party;
(xvi) all liabilities and obligations of either Seller with respect to any overdraft facility, bank credit line or indebtedness for borrowed money;
(xvii) all liabilities and obligations of either Seller relating to any of the Excluded Assets;
(xviii) all liabilities and obligations under Restricted Assets to the extent either Seller does not obtain the consents and waivers necessary to assign, transfer, sublease or sublicense such Restricted Assets to the Buyer and such Seller does not provide to the Buyer the benefits of such Restricted Assets pursuant to Section 2.9(b);
(xix) all liabilities and obligations with respect to the matters for which any provision of this Agreement provides that the Buyer shall assume no liability;
(xx) all liabilities and obligations of either Seller not related primarily to either the NMC Business or the CMS Business;
(vixxi) all liabilities and obligations of either Seller under any agreements relating to the disposition of significant assets, businesses or companies (whether by sale of assets, sale of stock, merger or otherwise) entered into at any time prior to the Closing; and
(xxii) all liabilities and obligations of either Seller arising out of events, conduct or conditions existing or occurring prior to the Closing that do or allegedly constitute an infringement or violation of, or do or allegedly constitute a misappropriation of, any Intellectual Property rights of any other liabilities owed to the stockholders of the Companyperson or entity.
Appears in 1 contract
Assumption of Liabilities. Notwithstanding anything to As partial consideration for the contrary contained in this Agreement or any Company Transaction Document, and regardless of whether such liability is disclosed in this Agreement, in any of the Transaction Documents, on any Schedule hereto or thereto or otherwise, and regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwiseSubject Assets, the Buyer will shall assume and perform the Assumed Liabilities. Except for the Assumed Liabilities, the Buyer shall not assumebe obligated under, agree to paynor shall the Buyer be or become liable for, perform any obligation, Contract, debt or discharge or in any way be responsible for any debts (including interest and/or penalties thereon), liabilities or obligations liability of the Company Seller or in connection with the Development Work of Subject Business, including, without limitation, (a) any kind product liability, warranty or nature whatsoever, whether fixed other claim for personal injury or unfixed, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured (the “Excluded Liabilities”), except that the Buyer will assume at the Closing the following obligations: (i) all obligations of the Company under the Assumed Contracts, and (ii) the obligations set forth on Schedule 1.2(ii) (collectively, the “Assumed Liabilities”); provided however, that any liability or obligation property damage relating to or arising from any breach, or event, circumstance or condition that with notice, lapse of time or both would constitute or result in a breach, products sold by the Company on or before Subject Business prior to the Closing Date, of (b) any of its obligations or liabilities arising under an any Assumed Contract shall be an Excluded Liability. Without limiting the generality of the foregoing, the Buyer is not assuming in connection with any breach or agreeing to pay, perform or discharge or in any way be responsible for, any Excluded Liabilities, which shall include (i) all Indebtedness (which, for the avoidance of doubt, shall include all notes and interest payable to the Company’s shareholders), (ii) all Company Taxes, (iii) all obligations and liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of the transactions contemplated by this Agreement), (iv) all obligations and liabilities arising default thereunder that occurred on or before the Closing Date, (vc) all any accounts payable of the Subject Business, (d) any obligations or liabilities and obligations of the Seller to any Employee, whether or not hired by the Buyer, relating to or arising out of any transaction contemplated by this Agreement and periods ending on or before the Closing Date, including, without limitation, any obligations or liabilities for salaries, wages, commissions, bonuses, payroll Taxes, vacation pay, severance pay, workers’ compensation, employee benefits or retirement plan contributions accrued as of the Closing Date, or (vie) any other obligations, debts, liabilities owed or claims arising from or relating to the stockholders operation of the CompanySubject Business and/or the ownership of the Subject Assets on or prior to the Closing Date. The Seller covenants and agrees to pay and discharge (i) all obligations, debts and liabilities of the Seller and/or the Subject Business other than the Assumed Liabilities, and (ii) on or before the Closing Date all accounts payable of the Subject Business existing as of the Closing Date.
Appears in 1 contract
Samples: Asset Purchase Agreement (Ari Network Services Inc /Wi)
Assumption of Liabilities. Notwithstanding anything Upon the terms and subject to the contrary conditions contained in this Agreement or any Company Transaction Documentherein, at the Closing, Buyer shall assume and regardless of whether such liability is disclosed in this Agreement, in any of the Transaction Documents, on any Schedule hereto or thereto or otherwise, and regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwise, the Buyer will not assume, agree to pay, perform or discharge or in any way be responsible for any debts (including interest and/or penalties thereon)perform, liabilities or as appropriate, only the obligations of Seller accruing, arising out of or related to the Company Assumed Contracts(the "Assumed Liabilities"). It is specifically agreed and understood that any liabilities, obligations or in connection with the Development Work commitments of any kind or nature whatsoeverthat are not specifically included in the Assumed Liabilities, whether fixed accrued or unfixedunaccrued, whether known or unknown, absolute and whether now existing or contingenthereafter arising from the operations of Seller, asserted the transactions contemplated hereby or unassertedotherwise, xxxxxx including without limitation, liabilities, obligations or inchoatecommitments:
(a) for any taxes of Seller for any period and any liabilities for any taxes levied or imposed upon the Assets for any period (or any portion of any period) ending on or prior to the Closing;
(b) of Seller to its employees incurred or made in connection with their employment with Seller (except as specified in the Transition Plan (as defined in Section 5.5 of this Agreement)), liquidated including under the Benefit Plans (as defined in Section 2.8 of this Agreement), the Employee Retirement Income Security Act of 1974, as amended ("ERISA") and the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended ("COBRA") (except as provided in Section 5.6(d) below);
(c) arising from the breach or unliquidatedperformance of any contract, commitment, agreement or understanding of any kind, or secured or unsecured from the use of the Assets by Seller that occurred prior to the Closing;
(the “Excluded Liabilities”), except that the Buyer will assume at d) relating to workers' compensation claims in existence as of the Closing the following obligations: (i) all obligations of the Company under the Assumed Contracts, and (ii) the obligations set forth on Schedule 1.2(ii) (collectively, the “Assumed Liabilities”); provided however, that any liability or obligation relating to Date or arising from any breach, facts or event, circumstance or condition events that with notice, lapse of time or both would constitute or result in a breach, by the Company occur on or before the Closing Date, of any of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting the generality of the foregoing, the Buyer is not assuming ; or
(e) relating to product warranty or agreeing liability claims arising with respect to pay, perform or discharge or in any way be responsible for, any Excluded Liabilities, which shall include (i) all Indebtedness (which, for the avoidance of doubt, shall include all notes and interest payable products produced prior to the Company’s shareholders), (ii) all Company Taxes, (iii) all obligations and liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of the transactions contemplated by this Agreement), (iv) all obligations and liabilities arising on or before the Closing Date, ; or
(vf) all liabilities and obligations relating to any liens or arising out of any transaction contemplated by this Agreement encumbrances on the Assets; are excluded from the Assumed Liabilities and (vi) any other shall remain liabilities owed to the stockholders of the CompanySeller to be satisfied by Seller (the "Excluded Liabilities").
Appears in 1 contract
Assumption of Liabilities. Notwithstanding anything Effective as of the date hereof, Comcast Distribution LLC will absolutely and irrevocably assume and agree to be liable and responsible to pay when due, perform and discharge, all the Comcast Assumed Liabilities (except to the contrary contained extent such Comcast Assumed Liabilities are Liabilities of a Comcast Transferred Subsidiary, in this which case such Comcast Transferred Subsidiary shall retain such Comcast Assumed Liabilities), in accordance with their respective terms, as separately evidenced by a Bxxx of Sale and Assignment and Assumption Agreement substantially in the form attached hereto as Exhibit C. Comcast Distribution LLC shall be responsible for all Comcast Assumed Liabilities (except to the extent such Comcast Assumed Liabilities are Liabilities of a Comcast Transferred Subsidiary, in which case such Comcast Transferred Subsidiary shall be responsible for such Comcast Assumed Liabilities), regardless of when or any Company Transaction Documentwhere such Comcast Assumed Liabilities arose or arise, or whether the facts on which they are based occurred prior to, on or subsequent to the date hereof, regardless of where or against whom such Liabilities are asserted or determined or whether asserted or determined prior to the date hereof, and regardless of whether such liability is disclosed in this Agreementarising from or alleged to arise from negligence, in recklessness, violation of Law, fraud or misrepresentation or any other cause by a Member of the Transaction Documents, on any Schedule hereto or thereto or otherwise, and regardless of the Buyer’s Group or any of its their respective Subsidiaries, directors’, officers’, employees’ employees or agents’ knowledge agents or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwise, the Buyer will not assume, agree Affiliates. The Comcast Assignee hereby agrees (and shall cause each Comcast Transferred Subsidiary) to pay, perform or discharge or in any way be responsible for any debts (including interest and/or penalties thereon), liabilities or obligations of the Company or in connection with the Development Work of any kind or nature whatsoever, whether fixed or unfixed, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured (the “Excluded Liabilities”), except that the Buyer will assume at the Closing the following obligations: (i) bound by all obligations of the Company under Comcast Partners in accordance with Section 8.4(h)(v) of the Assumed ContractsPartnership Agreement, and (ii) the obligations set forth on Schedule 1.2(ii) (collectively, Comcast Partners agree to be jointly and severally liable with the “Assumed Liabilities”); provided however, that any liability or obligation relating to or arising from any breach, or event, circumstance or condition that with notice, lapse of time or both would constitute or result in a breach, by the Company on or before the Closing Date, of any of Comcast Assignee for its obligations under an the Dissolution Documents. The Comcast Assumed Contract Liabilities shall be an not include the Comcast Excluded Liability. Without limiting the generality of the foregoing, the Buyer is not assuming or agreeing to pay, perform or discharge or in any way be responsible for, any Excluded Liabilities, which shall include (i) all Indebtedness (which, for the avoidance of doubt, shall include all notes and interest payable to the Company’s shareholders), (ii) all Company Taxes, (iii) all obligations and liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of the transactions contemplated by this Agreement), (iv) all obligations and liabilities arising on or before the Closing Date, (v) all liabilities and obligations relating to or arising out of any transaction contemplated by this Agreement and (vi) any other liabilities owed to the stockholders of the Company.
Appears in 1 contract
Samples: Master Distribution, Dissolution and Cooperation Agreement (Time Warner Cable Inc.)
Assumption of Liabilities. Notwithstanding anything (a) Pursuant to the contrary contained in this Agreement or any Company Transaction Document, and regardless terms of whether such liability is disclosed in this Agreement, in any Buyer (either directly or through a Buyer Bank Subsidiary) shall assume at the Close of Business on the Closing Date all of the Transaction Documents, on any Schedule hereto or thereto or otherwise, and regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwise, the Buyer will not assume, agree to pay, perform or discharge or in any way be responsible for any debts (including interest and/or penalties thereon), liabilities or obligations of the Company or in connection with the Development Work of any kind of Seller (whether absolute, contingent, accrued, asserted or nature whatsoever, whether fixed or unfixedunasserted, known or unknown, absolute or contingentotherwise) from and after the Closing Date with respect to or arising under or in connection with any or each of the following (except to the extent included in the Excluded Liabilities, collectively, the "Liabilities"):
(i) the Assumed Deposits;
(ii) the Assets;
(iii) all liabilities and obligations of Seller and its Affiliates relating to Transferred Employees specifically assumed by Buyer pursuant to Section 8.3 of this Agreement; and
(iv) any Miscellaneous Liabilities, Accrued Interest and any FAS 91 Fees, earned, unbilled and unearned, or unamortized fees from the Business, in each case which are not otherwise deducted in determining the Net Book Value of any Asset. More generally, all periodic fees or charges must be shared on proportionate basis as of the Closing Date in accordance with Section 2.6.
(b) Except for the Liabilities expressly set forth in Section 2.2(a), Buyer is not assuming, and expressly shall have no obligation with respect to (and shall not assume or be deemed to assume), any liability or obligation of Seller of any nature whatsoever, whether accrued, absolute, contingent or otherwise, asserted or unasserted, xxxxxx known or inchoateunknown (collectively, liquidated or unliquidated, or secured or unsecured (the “Excluded "Contingent Liabilities”"), except that the Buyer will assume at the Closing the following obligations: (i) all obligations of the Company relating to or arising under the Assumed Contractsor in connection with any Excluded Asset, and (ii) existing at the time of or arising out of or relating to acts, events or omissions to act that occurred prior to the Closing Date, or (iii) relating to or arising under any earnout payments or similar amounts (whether under Section 2.1(c) of the Merger Agreement, or otherwise) due or owing by or in respect of Xxxxx Xxxxx with respect to which there is not any accrual on the books of Xxxxx Xxxxx as of the Closing Date (which payment shall be made by Seller on behalf of Xxxxx Xxxxx when due), it being understood that, in each case, Seller shall remain and be solely and exclusively liable with regard to such liabilities and obligations set forth on Schedule 1.2(ii) (collectively, the “Assumed Liabilities”); provided however, that any liability or obligation relating to or arising from any breach, or event, circumstance or condition that with notice, lapse of time or both would constitute or result in a breach, by the Company on or before the Closing Date, of any of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting the generality of the foregoing, the Buyer is not assuming or agreeing to pay, perform or discharge or in any way be responsible for, any "Excluded Liabilities, which shall include (i) all Indebtedness (which, for the avoidance of doubt, shall include all notes and interest payable to the Company’s shareholders"), (ii) all Company Taxes, (iii) all obligations and liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of the transactions contemplated by this Agreement), (iv) all obligations and liabilities arising on or before the Closing Date, (v) all liabilities and obligations relating to or arising out of any transaction contemplated by this Agreement and (vi) any other liabilities owed to the stockholders of the Company.
Appears in 1 contract
Samples: Purchase of Assets and Liability Assumption Agreement (Mellon Financial Corp)
Assumption of Liabilities. Notwithstanding anything (a) Purchaser does not and shall not assume or agree to the contrary contained in this Agreement or any Company Transaction Documentassume, and regardless shall not acquire or take over, the liabilities and obligations of whether such liability is disclosed in this Agreement, in any of the Transaction DocumentsCompanies of any nature, on any Schedule hereto or thereto direct, contingent or otherwise, and regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwise, the Buyer will not assume, agree to pay, perform or discharge or in any way be responsible for any debts (including interest and/or penalties thereon), liabilities or obligations of the Company or in connection with the Development Work of any kind or nature whatsoever, whether fixed or unfixed, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured (the “Excluded Liabilities”), except that the Buyer will assume at the Closing the following obligations: (i) all the obligations which arise out of the Company under actions of Purchaser (or its Designee) from and after the Assumed Contractstransfer of the Assets to Purchaser (or its Designee), and (ii) the Prorated Personal Property Taxes and (iii) the liabilities and obligations of the Companies expressly set forth on Schedule 1.2(ii) EXHIBIT G-1 hereto or with respect to the performance under the Assigned Contracts listed on EXHIBIT C-1 hereto from and after the Closing Date which will be assumed by Purchaser, or its Designee, at the Closing (collectivelyall of such assumed liabilities being hereinafter referred to as the "Assumed Liabilities"). Doctor does not and shall not assume or agree to assume, and shall not acquire or take over, the “Assumed Liabilities”); provided however, that any liability or obligation relating to or arising from any breach, or event, circumstance or condition that with notice, lapse of time or both would constitute or result in a breach, by the Company on or before the Closing Date, liabilities and obligations of any of its the Companies of any nature, direct, contingent or otherwise, except the obligations which arise out of the actions of Doctor from and after the transfer of the Doctor's Assets to Doctor and the liabilities and obligations of the Companies expressly set forth on EXHIBIT G-2 hereto or with respect to the performance under an the Doctor's Assigned Contracts listed on EXHIBIT C-2 hereto from and after the Closing Date which will be assumed by Doctor at the Closing (the "Doctor's Assumed Contract shall be an Excluded LiabilityLiabilities"). Without limiting the generality of the foregoing, the Buyer it is not assuming expressly agreed that none of Purchaser, any of its Designees or agreeing to payDoctor shall have any liability to, perform or discharge for, or in any way be responsible for, any Excluded Liabilities, which shall include respect of (i) all Indebtedness any employees of any of the Companies, except for liabilities and obligations arising solely out of the employment of such persons by Purchaser (whichor its Designee) or Doctor, for as the avoidance case may be, after the Closing Date or which are reflected on the Closing Date Balance Sheet and are part of doubt, shall include all notes and interest payable to the Company’s shareholders), Assumed Liabilities or (ii) all Company Taxesany Taxes of any of the Companies arising or relating to any period prior to the Closing Date or any activity of the Companies prior to or after the Closing Date except for the Prorated Personal Property Taxes or unless otherwise expressly set forth on EXHIBIT G-1 OR G-2, respectively, or (iii) all obligations and any of the liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of any of the Company (which, for Companies to the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is extent such liabilities or becomes an “M & A Qualified Beneficiary” (obligations are not included as such term is defined Assumed Liabilities or Doctor's Assumed Liabilities in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result schedules attached to the Closing Date Balance Sheet, arise out of the consummation of warranty obligations assumed by Purchaser or do not relate to the transactions contemplated by this Agreement), (iv) all obligations performance under the Assigned Contracts or Doctor's Assigned Contracts from and liabilities arising on or before after the Closing Date, (v) all liabilities and obligations relating to or arising out of any transaction contemplated by this Agreement and (vi) any other liabilities owed to the stockholders of the Company.
Appears in 1 contract
Samples: Master Asset Purchase Agreement (Eye Care Centers of America Inc)
Assumption of Liabilities. Notwithstanding anything At the Closing, the Company shall assign to the contrary contained in this Agreement or any Company Transaction DocumentPurchaser, and regardless of whether such liability is disclosed in this Agreement, in any of the Transaction Documents, on any Schedule hereto or thereto or otherwise, Purchaser shall assume and regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwise, the Buyer will not assume, agree to pay, perform or discharge or in any way be responsible for any debts (including interest and/or penalties thereon)and discharge, liabilities or obligations from and after the Closing, only the following Liabilities of the Company or in connection with the Development Work of any kind or nature whatsoever, whether fixed or unfixed, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured (the “Excluded all such Liabilities”), except that the Buyer will assume at the Closing the following obligations: (i) all obligations of the Company under the Assumed Contracts, and (ii) the obligations set forth on Schedule 1.2(ii) (collectively, the “Assumed Liabilities”):
(a) Any account payable (other than in respect of amounts owed to Xxxxxx & Xxxxxx, legal counsel to the Company, and amounts owed to Xxxxxxx Xxxxxx, patent counsel to the Company, in connection with the transactions contemplated hereby (the “Excluded Payables”); provided however, that any liability or obligation relating to or arising from any breach, or event, circumstance or condition that with notice, lapse of time or both would constitute or result in a breach, by the Company on or before the Closing Date, of any of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting the generality of the foregoing, the Buyer is not assuming or agreeing to pay, perform or discharge or in any way be responsible for, any Excluded Liabilities, which shall include ) either (i) all Indebtedness reflected on the Interim Balance Sheet or (whichii) incurred after the date of the Interim Balance Sheet in the ordinary course of business that, for in the avoidance case of doubteither of clause (i) or clause (ii), shall include all notes remains unpaid at and interest payable is not delinquent immediately prior to the Closing;
(b) Any Liability arising after the occurrence of the Closing under the Assigned Contracts (other than any Liability under the Assigned Contracts arising out of or relating to a breach or violation of, or non-compliance with, any of the covenants, obligations, representations, warranties or other provisions of any such Assigned Contract that relates to periods prior to the occurrence of the Closing or to the extent that such Liability would constitute a breach or violation of, or non-compliance with, any covenant, obligations, representation, warranty or other provision of this Agreement or any Ancillary Agreement); and
(c) Any Liability arising after the occurrence of the Closing under the Assigned Governmental Authorizations (other than any Liability under the Assigned Governmental Authorizations arising out of or relating to a breach or violation of, or non-compliance with, any of the Company’s shareholders), (ii) all Company Taxes, (iii) all obligations and liabilities related under any such Assigned Governmental Authorization that relates to employee compensation (which for periods prior to the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations occurrence of the Company (whichClosing or to the extent that such Liability would constitute a breach or violation of, for the avoidance of doubt, shall include severance, or non-compete paymentscompliance with, benefitsany covenant, deferred compensationobligation, continuation coverage required under COBRA for each individual who is representation, warranty or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result other provision of the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement), (iv) all obligations and liabilities arising on or before the Closing Date, (v) all liabilities and obligations relating to or arising out of any transaction contemplated by this Agreement and (vi) any other liabilities owed to the stockholders of the Company.
Appears in 1 contract
Assumption of Liabilities. Notwithstanding anything to (a) From and after the contrary contained in this Agreement or any Company Transaction Document, and regardless of whether such liability is disclosed in this Agreement, in any of the Transaction Documents, on any Schedule hereto or thereto or otherwise, and regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwiseClosing, the Buyer will not assume, agree shall assume and the Buyer hereby agrees to pay, perform or and discharge or in any way be responsible for any debts when due only those liabilities (including interest and/or penalties thereon)together with the Assumed Note Balance, liabilities or obligations the “Assumed Liabilities”) of the Company Sellers directly related to the Business (i) as specifically set forth on Schedule 2.4(a) or in connection with (ii) arising pursuant to the Development Work terms of the Assigned Contracts after the Closing Date. On the Closing Date, the Buyer shall execute and deliver to the Sellers the Assignment and Assumption Agreement.
(b) Other than the Assumed Liabilities, the Buyer shall not assume (or be deemed to assume) pursuant to this Agreement or otherwise any kind or nature whatsoever, whether fixed or unfixed, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured liabilities (the “Excluded Liabilities”)) of either Seller, except that the Buyer will assume at the Closing the following obligations: including, without limitation, (i) all obligations Income Taxes of the Company under the Assumed Contracts, and either Seller; (ii) an amount equal to 50% of the obligations set forth on Schedule 1.2(ii) Transfer Taxes (collectively, the “Assumed Liabilities”as hereinafter defined); provided however, that (iii) all other Taxes attributable to periods ending on or prior to the Closing Date; (iv) Taxes of any other Person for which either Seller may be liable by contract or otherwise; (v) any liability of any kind due to illegal or obligation relating tortious conduct prior to the Closing Date by either Seller, or either Seller’s officers, directors (or Persons in similar positions), partners, employees or agents, whether to any employees or other third parties; (vi) any liability for product liability lawsuits arising from the sale of any breach, or event, circumstance or condition that with notice, lapse of time or both would constitute or result in a breach, by the Company Product on or before the Closing Date, ; (vii) any liability for the infringement of any item of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting Intellectual Property in connection with the generality sale of the foregoing, the Buyer is not assuming or agreeing to pay, perform or discharge or in any way be responsible for, any Excluded Liabilities, which shall include (i) all Indebtedness (which, for the avoidance of doubt, shall include all notes and interest payable to the Company’s shareholders), (ii) all Company Taxes, (iii) all obligations and liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of the transactions contemplated by this Agreement), (iv) all obligations and liabilities arising Product on or before the Closing Date; (viii) any liability for violation of any Environmental Law, (v) all liabilities and obligations or any generation, treatment, use, transportation or disposal, or arrangements for transportation or disposal, of Hazardous Substances, or the presence of Hazardous Substances, on, at, beneath near or within the Leased Real Property occurring on or before the Closing Date or any liability under any Environmental Law relating to any property or arising out business formerly owned or operated by either Seller or the Principal Owners or any of their respective predecessors; (ix) any transaction contemplated by this Agreement liabilities with respect to any Contract listed on Schedule 2.4(b); and (vix) any other liabilities owed liability not expressly assumed by the Buyer pursuant to the stockholders of the Companythis Agreement.
Appears in 1 contract
Assumption of Liabilities. Notwithstanding anything Upon the sale and purchase of the Purchased Assets, MAXIMUS shall assume and agree to pay or discharge when due the contrary contained liabilities and obligations of TMR described on Schedule 1.2 which are to be performed after the Closing Date (as defined in Section 1.7 below). The liabilities to be assumed by MAXIMUS under this Agreement are hereinafter sometimes referred to as the "Assumed Liabilities." Except as otherwise specifically provided in this Agreement Section 1.2 (a) MAXIMUS shall not assume or any Company Transaction Document, and regardless of whether such liability is disclosed in this Agreement, in any of the Transaction Documents, on any Schedule hereto or thereto or otherwise, and regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwise, the Buyer will not assume, agree to pay, perform or discharge or in any way be responsible liable for any debts (including interest and/or penalties thereon)obligation or liability of TMR, liabilities or obligations of the Company or in connection with the Development Work of any kind or nature whatsoevernature, whether fixed or unfixedknown, known or unknown, absolute contingent or contingentotherwise, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured (the “Excluded Liabilities”), except that the Buyer will assume at the Closing the following obligationsincluding without limitation: (i) all obligations any liability of TMR incurred in connection with this Agreement and the Company under the Assumed Contractstransactions provided for herein, including brokerage, accounting and counsel fees, transfer and other taxes, and expenses pertaining to the performance by TMR of its obligations hereunder, (ii) the obligations set forth on Schedule 1.2(ii) (collectivelyany litigation, the “Assumed Liabilities”); provided howeverproceeding, that claim by any liability person or entity or other obligation of TMR relating to the business or arising from any breach, operations of or event, circumstance or condition that with notice, lapse of time or both would constitute or result in a breach, by otherwise relating to the Company on or before Purchased Assets prior to the Closing Date, of any of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting the generality of the foregoingwhether or not such litigation, the Buyer proceeding, claim or obligation is not assuming pending, threatened, or agreeing to payasserted before, perform on, or discharge or in any way be responsible for, any Excluded Liabilities, which shall include (i) all Indebtedness (which, for the avoidance of doubt, shall include all notes and interest payable to the Company’s shareholders), (ii) all Company Taxes, (iii) all obligations and liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of the transactions contemplated by this Agreement), (iv) all obligations and liabilities arising on or before after the Closing Date, (viii) any liability or obligation of TMR for Taxes (as defined in Section 2.7) whether relating to periods before or after the Closing Date, and (iv) any obligations of TMR under any law, including but not limited to antitrust, civil rights, health, safety, labor, discrimination and environmental laws; and (b) TMR shall be solely responsible for any and all liabilities and obligations relating to or arising out of any transaction contemplated by this Agreement and (vi) any other liabilities owed to TMR not included within the stockholders Assumed Liabilities. The assumption of the CompanyAssumed Liabilities by MAXIMUS hereunder shall be treated as independent of its existing business and shall not enlarge any rights of third parties under contracts or arrangements with MAXIMUS or TMR. Nothing herein shall prevent MAXIMUS from contesting in good faith any of the Assumed Liabilities with any party to whom any such Assumed Liability relates.
Appears in 1 contract
Samples: Asset Purchase Agreement (SCB Computer Technology Inc)
Assumption of Liabilities. Notwithstanding anything Buyer shall assume on the Date of Closing all obligations, duties and liabilities arising under or with respect to the contrary contained in this Agreement or any Company Transaction Document, and regardless of whether such liability is disclosed in this Agreement, in any of the Transaction Documents, on Assumed Obligations. Seller and Buyer acknowledge and agree that Buyer has not agreed to assume any Schedule hereto or thereto or otherwise, of Seller's liabilities and regardless obligations except for the Assumed Obligations. The assumption of the Buyer’s AssumedObligations by Buyer hereunder shall not enlarge any rights of third parties under contracts or arrangements with Buyer or Seller and nothing herein shall prevent any party from contesting in good faith with any third party any of its directors’said liabilities. Except as expressly provided herein, officers’, employees’ or agents’ knowledge or awareness of Buyer does not and shall not assume any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwise, the Buyer will not assume, agree to pay, perform or discharge or in any way be responsible for any debts (including interest and/or penalties thereon), liabilities or obligations of the Company Seller or in connection with the Development Work of any kind or nature whatsoeverother person, whether fixed or unfixedcorporation, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidatedpartnership, or secured or unsecured (the “Excluded Liabilities”)entity, except that the Buyer will assume at the Closing the following obligations: (i) all obligations incurred as a consequence of the Company under ownership of the Assumed ContractsAssets or as a consequence of the operation of the Restaurant or as a consequence of this Agreement or the sale, assignment and (ii) the obligations set forth on Schedule 1.2(ii) (collectively, the “Assumed Liabilities”); provided however, that any liability or obligation relating to or arising from any breach, or event, circumstance or condition that with notice, lapse of time or both would constitute or result in a breach, by the Company on or before the Closing Date, of any of its obligations under an Assumed Contract shall be an Excluded Liabilitytransfer contemplated hereunder. Without limiting the generality of the foregoing, it is understood and agreed that Buyer shall not assume and shall not pay any of the Buyer is not assuming or agreeing to payfollowing liabilities: Liabilities incurred by Seller in connection with this Agreement and the transactions provided for herein (including, perform or discharge or in any way be responsible forwithout limitation, any Excluded Liabilitiescounsel and accountant's fees, which shall include (i) all Indebtedness (which, for the avoidance of doubt, shall include all notes and interest payable expenses pertaining to the Company’s shareholdersperformance by Seller of its obligations hereunder). Except as provided in Section 14.8 below, Taxes of Seller (whether relating to periods before or after the Date of Closing), (ii) all Company Taxes, (iii) all obligations and liabilities related to employee compensation (which including any liability for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of the transactions contemplated by this Agreement), (iv) all obligations and liabilities arising on or before the Closing Date, (v) all liabilities and obligations relating to or Taxes arising out of any transaction contemplated by this Agreement transferee liability. Liabilities of Seller with respect to any options, warrants, agreements or convertible or other rights to acquire any shares of its capital stock of any class. Liabilities in connection with or relating to all actions, suits, claims, proceedings, demands, assessments and judgments, costs, losses, liabilities, damages, deficiencies and expenses (vi) whether or not arising out of third-party claims), including, without limitation, interest, penalties, reasonable attorneys' and accountants' fees and all amounts paid in investigation, defense or settlement of any other liabilities owed to the stockholders of the Companyforegoing.
Appears in 1 contract
Assumption of Liabilities. Notwithstanding anything (a) Upon the terms and subject to the contrary contained in this Agreement conditions hereof, at Closing the applicable Purchaser will, or any Company Transaction Documentwill cause an affiliate of Purchaser to, and regardless of whether such liability is disclosed in this Agreement, in any assume from each of the Transaction Documentsapplicable Seller Entities, on any Schedule hereto or thereto or otherwise, and regardless as of the Buyer’s or any of its directors’Closing Date, officers’the payment, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation discharge and performance of the Development Work or otherwisefollowing liabilities and obligations, the Buyer will not assume, agree to pay, perform or discharge or in any way be responsible for any debts (including interest and/or penalties thereon), liabilities or obligations of the Company or in connection with the Development Work of any kind or nature whatsoever, whether fixed or unfixed, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured (the “Excluded Liabilities”), except that the Buyer will assume at the Closing the following obligations: (i) all obligations of the Company under the Assumed Contracts, and (ii) the obligations set forth on Schedule 1.2(ii) without duplication (collectively, the “Assumed Liabilities”); provided however, that any liability or obligation relating to or arising from any breach, or event, circumstance or condition that with notice, lapse of time or both would constitute or result in a breach, by the Company on or before the Closing Date, of any of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting the generality of the foregoing, the Buyer is not assuming or agreeing to pay, perform or discharge or in any way be responsible for, any Excluded Liabilities, which shall include ):
(i) all Indebtedness (which, for the avoidance of doubt, shall include all notes and interest payable to the Company’s shareholders), (ii) all Company Taxes, (iii) all obligations and liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of the transactions contemplated by this Agreement), (iv) all obligations and liabilities arising on or before the Closing Date, (v) all liabilities and obligations relating to or arising periods after the Closing Date under and with respect to the Seller Assigned Licenses, including without limitation, any liabilities and obligations relating to periods after the Closing Date out of any transaction contemplated by this Agreement and (vi) Federal or State Law, rule of the FCC or applicable state regulatory commission or any other Governmental Authority to which the Seller Assigned Licenses, or the Customer Agreements are subject;
(ii) all liabilities owed and obligations relating to periods after the Closing Date under the Customer Agreements; and
(iii) all liabilities and obligations set forth on Schedule 1.2(a)(iii) arising with respect to Customers, including unearned or deferred revenues or activation fees, customer deposits and prepayments, and loyalty reward points (subject to Purchaser’s preferred method of administration and redemption regarding such loyalty reward points), in each case only to the stockholders extent included in Section 1.4.
(b) Neither Purchaser nor any of its Affiliates shall assume or undertake in any way to perform, pay, satisfy or discharge any liability or obligation of Seller or any of its Affiliates of any nature whatsoever, whether known or unknown, determined or undetermined, liquidated or unliquidated, direct or indirect, contingent or accrued, matured or unmatured, and whether or not relating to the Purchased Assets or the Seller Business, other than the Assumed Liabilities, without duplication, including without limitation, any liabilities and obligations (i) in connection with device insurance of the CompanyCustomers or (ii) relating to periods prior to or on the Closing Date out of any Federal or State Law, rule of the FCC or applicable state regulatory commission or any other Governmental Authority to which the Seller Assigned Licenses, or the Customer Agreements are subject (collectively, the “Excluded Liabilities”).
Appears in 1 contract
Samples: Purchase and Sale Agreement (United States Cellular Corp)
Assumption of Liabilities. Notwithstanding (a) Unless otherwise expressly provided in this Article IX, Seller and its Affiliates shall retain liability and responsibility for all employment, compensation, severance and employee benefit-related Liabilities, obligations and commitments (including, but not limited to, claims for wrongful dismissal, constructive dismissal, unfair dismissal, notice of termination of employment, pay in lieu of notice or termination, termination indemnities or other indemnities, any damages arising from a breach of a Business Employee’s or Former Business Employee’s employment contract, and any payments required to be made under any Law of any jurisdiction or the applicable collective bargaining agreement in respect of the termination of a Business Employee’s or Former Business Employee’s employment, including payments in respect of accrued wages, vacation, overtime, bonuses and other plans, programs or obligations) (i) arising prior to the Closing Date that relate to any current or former officer, director, employee or independent contractor of the Business including any Former Business Employee or any Business Employee (or any dependent or beneficiary thereof); (ii) or arising on or after the Closing Date that relate to any Business Employee to whom Seller and its Affiliates offer employment between the date hereof and the Closing; or (iii) arising between the Closing Date and the Commencement Date that relate to any Inactive Business Employee.
(b) (i) Unless otherwise expressly provided in this Article IX, effective as of the Closing Date, Purchaser shall, or shall cause an Affiliate of Purchaser to, assume and be solely responsible and liable for all employment, compensation, severance and employee benefit-related Liabilities, obligations and commitments arising on or after the Closing Date (including, but not limited to, claims for wrongful dismissal, constructive dismissal, unfair dismissal, notice of termination of employment, pay in lieu of notice of termination, termination indemnities or other indemnities, any damages arising from a breach of a Transferred Employee’s, Business Employee’s or Former Business Employee of a Transferred Entity’s employment contract, and any payments required to be made under any Law of any jurisdiction or the applicable collective bargaining agreement in respect of the termination of a Transferred Employee, or Former Business Employee of a Transferred Entity’s employment including payments in respect of accrued wages, vacation, overtime, bonuses and other plans, programs or obligations) that relate to any Transferred Employee or such Former Business Employee; (ii) Seller and its Affiliates shall, solely in relation to obligations triggered by the sale of the Business, including the sale of any Transferred Entity, retain all Liabilities and responsibilities arising from Seller’s and its Affiliates’ failure to perform and discharge any obligation and requirement of Seller or its Affiliates to inform and consult with any works council or union or employee representatives and under the Acquired Rights Directive or under transfer of undertakings in the applicable foreign jurisdiction prior to the Closing that relate to any Former Business Employee, Business Employee or Transferred Employee (or any dependent or beneficiary thereof) incurred prior to, on or after the Closing Date. Purchaser shall, or shall cause an Affiliate of Purchaser to, solely in relation to obligations triggered by the sale of the Business, including the sale of any Transferred Entity, assume all Liabilities and responsibilities arising from Purchaser’s or its Affiliate’s failure to perform and discharge any obligation or requirement of Purchaser or its Affiliate to inform and consult with any works council or union or employee representatives and under the Acquired Rights Directive or under transfer of undertakings in the applicable foreign jurisdiction prior to Closing that relate to any Former Business Employee, Business Employee of a Transferred Entity or Transferred Employee (or any dependent or beneficiary thereof) incurred prior to, on or after the Closing Date.
(c) Purchaser and its Affiliates shall be liable for Liabilities relating to the litigations and claims set forth in Section 9.02(c) of the Seller Disclosure Schedule.
(d) Seller and its Affiliates shall retain all liabilities and obligations for all workers’ compensation, short- and long-term disability, medical, prescription drug, dental, vision, life insurance, accidental death and dismemberment and other welfare benefit claims incurred by Business Employees (other than Business Employees of any Transferred Entity) prior to the Closing Date or incurred by Inactive Business Employees prior to becoming Transferred Employees that are covered under the terms of the applicable plans of Seller or its Affiliates. With respect to claims incurred prior to the Closing with respect to Business Employees of the Transferred Entities and with respect to claims incurred on or after the Closing Date or the Commencement Date, as applicable, by the Transferred Employees and their eligible dependents for workers’ compensation, short- and long-term disability, medical, prescription drug, dental, vision, life insurance, accidental death and dismemberment and other welfare benefit claims, Purchaser, or its Affiliates, shall be responsible. For these purposes, a claim shall be deemed to be incurred: (i) in the case of workers’ compensation and short- or long-term disability benefits (including related health benefits), at the time of the injury, sickness or other event giving rise to the claim for such benefits; (ii) in the case of medical, prescription drug, dental or vision benefits, at the time professional services, equipment or prescription drugs covered by the applicable plan are obtained; (iii) in the case of life insurance benefits, upon death; and (iv) in the case of accidental death and dismemberment benefits, at the time of the accident. For the avoidance of doubt and notwithstanding anything to the contrary contained set forth herein, this Section 9.02(d) shall not apply to any claims, Liabilities or obligations arising out of or relating to exposure of any Business Employee, Former Business Employee, Transferred Employee or former employee or independent contractor of the Transferred Entities or the Business to Hazardous Materials, which matters shall be addressed exclusively by the provisions of Sections 1.03(a)(ii) and 4.17 herein.
(e) Except as specifically set forth in this Agreement Article IX or any Company Transaction Documentrequired by applicable Law, and regardless collective bargaining agreement, trade union agreement or works council agreement: (i) none of whether such liability is disclosed in this AgreementPurchaser nor its Affiliates shall be obligated to assume, in continue or maintain any of the Transaction DocumentsBenefit Plans that are sponsored or maintained by Seller or any Affiliate of Seller (other than a Transferred Entity); (ii) no assets or Liabilities of any such Benefit Plans shall be transferred to, on or assumed by, Purchaser or its Affiliates or their respective benefit plans; and (iii) Seller and its Affiliates (other than the Transferred Entities) shall be solely responsible for funding and/or paying any Schedule hereto benefits under such Benefit Plans, including any termination benefits and other employee entitlements accrued under such plans by or thereto or otherwise, and regardless attributable to employees of any of the Buyer’s Seller or its Affiliates.
(f) Seller shall indemnify and keep indemnified each of Purchaser and its Affiliates against any of Liability relating to: (i) any Liability which may be treated as due from Purchaser or its directors’, officers’, employees’ or agents’ knowledge or awareness Affiliates in relation to the trustees of any liabilityoccupational pension scheme operated for the benefit of Transferred Employees who are employed primarily in the United Kingdom (the “UK Transferred Employees”), whether learned including the Xxxxxxx-Xxxxx Squibb Pension Plan (the “Seller’s UK DB Pension Plan”) and the Seller’s supplemental pension and ancillary benefits provision as described in connection with the BuyerDecember 13, 2007 letter to certain UK Transferred Employees (the “Seller’s due diligence investigation UK Supplemental Pension Program”) under section 75 or section 75A of the Development Work or otherwise, United Kingdom Pensions Act 1995 (as amended) to the Buyer will not assume, agree to pay, perform or discharge or in any way be responsible for any debts (including interest and/or penalties thereon), liabilities or obligations extent that the Liability arises out of the Company or in connection with an employment cessation event (within the Development Work of any kind or nature whatsoever, whether fixed or unfixed, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured (the “Excluded Liabilities”), except that the Buyer will assume at the Closing the following obligations: (i) all obligations meaning of the Company under the Assumed Contracts, and Occupational Pension Schemes (iiEmployer Debt) the obligations set forth on Schedule 1.2(ii) (collectively, the “Assumed Liabilities”); provided however, that any liability or obligation relating to or arising from any breach, or event, circumstance or condition that with notice, lapse of time or both would constitute or result in a breach, by the Company on or before the Closing Date, of any of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting the generality of the foregoing, the Buyer is not assuming or agreeing to pay, perform or discharge or in any way be responsible for, any Excluded Liabilities, which shall include (i) all Indebtedness (which, for the avoidance of doubt, shall include all notes and interest payable to the Company’s shareholders), (ii) all Company Taxes, (iii) all obligations and liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” Regulations 2005 (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claimsamended)) as a result of the consummation of the transactions contemplated by this Agreement), (iv) all obligations and liabilities arising on or before the Closing Date, (v) all liabilities and obligations relating to or arising out of any transaction contemplated by this Agreement ; and (viii) any other liabilities owed contribution notice or financial support direction that may be issued pursuant to the stockholders Pensions Xxx 0000 in relation to any occupational pension scheme operated prior to Closing for the benefit of the CompanyUK Transferred Employees, including Seller’s UK DB Pension Plan and Seller’s UK Supplemental Pension Program.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Bristol Myers Squibb Co)
Assumption of Liabilities. Notwithstanding anything to the contrary contained in this Agreement or Buyer does not hereby and shall not at any Company Transaction Document, and regardless of whether such liability is disclosed in this Agreement, in time assume any of the Transaction Documents, on any Schedule hereto or thereto or otherwise, and regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwise, the Buyer will not assume, agree to pay, perform or discharge or in any way be responsible for any debts (including interest and/or penalties thereon), liabilities or obligations of the Company or in connection with the Development Work Seller of any kind or nature whatsoever, whether fixed or unfixed, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured whatsoever except as may be specifically set forth herein (the “Excluded Liabilities”), except that the Buyer will assume at the Closing the following obligations: (i) all obligations of the Company under the Assumed Contracts, and (ii) the obligations set forth on Schedule 1.2(ii) (collectively, the “Assumed Liabilities”); provided however, that any liability or obligation relating to or arising from any breach, or event, circumstance or condition that with notice, lapse of time or both would constitute or result in a breach, by the Company on or before the Closing Date, of any of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting the generality of the foregoing, the Buyer is Excluded Liabilities shall include:
(a) any liability of Seller for Taxes, including, but not assuming or agreeing to paylimited to, perform or discharge all liabilities for or in respect of any way be responsible for, any Excluded Liabilities, which shall include (i) Taxes for all Indebtedness (which, for the avoidance of doubt, shall include all notes and interest payable periods ending on or prior to the Company’s shareholders)Closing Date;
(b) any liability for product liability claims arising from the manufacture, sale, use or production of any Acquired Asset or other product or service produced, imported, sold or provided by Seller or its Predecessors in Interest prior to the Closing;
(iic) all Company Taxes, (iii) all obligations and liabilities related to employee compensation (which any liability for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans infringement claims arising from any product or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is service produced by or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation use of the transactions contemplated Acquired Assets prior to the Closing;
(d) any liability of Seller or its Predecessors in Interest under this Agreement or any other Ancillary Agreements;
(e) any liability for legal, accounting and audit fees and any other expenses incurred by Seller or its Predecessors in Interest in connection with this Agreement), Agreement or any other Ancillary Agreements;
(ivf) any liability of Seller or its Predecessors in Interest relating primarily or exclusively to any asset of Seller or its Affiliates other than the Acquired Assets;
(g) all obligations and liabilities arising on relating to the ownership or use of the Acquired Assets or the Alachua Facility by any person or entity at or before the Closing Date, Closing;
(vh) all liabilities and obligations relating to the tax collector of Alachua County (the “Alachua County Tax Collector”), or arising out to any Ad Valorem taxes for tax years prior to calendar year 2006, or to the claims or rights of any transaction contemplated by this Agreement and holders of any tax certificates issued for any tax year prior to calendar year 2006, or to any obligation of any debtors or the Seller under any motion, order or approved action within the Bankruptcy Case, including any payment or performance obligation required to remove any liens or encumbrances on the Acquired Assets; and
(vii) any liabilities or legal responsibility whatsoever, express or implied, to any Person or Governmental Authority, whether known or unknown, including but not limited to statutory, regulatory, contract, consent or common law, of Seller or its Predecessors in Interest, regarding the Property, Acquired Assets or the Alachua Facility including response action, as a Potentially Responsible Party, for an actual or threatened release of a hazardous material or any other liabilities owed Pre-Existing Environmental Conditions in existence prior to the stockholders of the CompanyClosing Date.
Appears in 1 contract
Assumption of Liabilities. Notwithstanding anything (a) Upon the terms and subject to the contrary contained in this Agreement or any Company Transaction Document, and regardless conditions of whether such liability is disclosed in this Agreement, in any of at the Transaction DocumentsClosing, on any Schedule hereto or thereto or otherwiseSeller shall assign to Purchaser, and regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwise, the Buyer will not assume, agree to pay, perform or Purchaser shall assume and discharge or perform when due, pursuant to the assignment and assumption agreement substantially in any way the form of Annex A to be responsible for any debts executed and delivered by Purchaser at the Closing (including interest and/or penalties thereonthe “Assumption Agreement”), only the following specifically enumerated liabilities or obligations of Seller, in each case only to the Company extent specifically relating to the Business or the Transferred Assets (collectively, the “Assumed Liabilities”):
(i) all rights and obligations of Seller arising after the Closing Date under the In-Process Contracts, In-Process Engagements and Other Contracts listed on Schedule 2.12 of the Disclosure Memorandum;
(ii) all other liabilities and obligations specifically assumed by Purchaser under Article VI and Sections 9.01 and 9.02, including the payables properly accrued in connection with the Development Work Business after the Closing Date;
(iii) any and all vacation and sick days accrued but unused by Transferred Employees (as defined below), as set forth in Section 4.09.
(b) Notwithstanding any other provision of this Agreement, Purchaser shall not assume, succeed to, be liable for, be subject to, or be obligated for, nor shall the Transferred Assets be subject to, any liabilities, claims, contracts or obligations of any kind or nature whatsoever, whether fixed or unfixedknown, known or unknown, absolute absolute, accrued, contingent or contingent, asserted otherwise that either Seller or unasserted, xxxxxx or inchoate, liquidated or unliquidatedShareholder is, or secured could become, subject to or unsecured liable for, other than the Assumed Liabilities (the “Excluded Liabilities”), except that all of which shall be retained by Seller, including without limitation the Buyer will assume at the Closing the following obligations: following:
(i) all obligations liabilities, as defined in accordance with generally accepted accounting principles, of the Company under the Assumed Contracts, and (ii) the obligations set forth on Schedule 1.2(ii) (collectively, the “Assumed Liabilities”); provided however, that any liability or obligation relating Seller existing prior to or arising from any breach, or event, circumstance or condition that with notice, lapse of time or both would constitute or result in a breach, by the Company on or before the Closing Date, of any of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting the generality of the foregoingwhether absolute or contingent, the Buyer is or whether or not assuming recorded, disclosed, or agreeing actually accrued prior to pay, perform or discharge or in any way be responsible for, any Excluded Liabilities, which shall include (i) all Indebtedness (which, for the avoidance of doubt, shall include all notes and interest payable to the Company’s shareholders), (ii) all Company Taxes, (iii) all obligations and liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of the transactions contemplated by this Agreement), (iv) all obligations and liabilities arising on or before the Closing Date, but excluding liabilities arising solely out of the conduct of the Business after the Closing Date or otherwise specifically assumed by the Purchaser in paragraph 1.02(a);
(vii) all liabilities and obligations relating to or of Seller arising out of or relating to any transaction contemplated by this Agreement and (vi) any environmental matter, breach of contract, breach of warranty, tort, infringement, violation of Law, negligence, gross negligence, willful misconduct, misfeasance or malfeasance or other liabilities owed similar event or occurrence at or prior to the stockholders Closing, including without limitation all liabilities and obligations of Seller under the Completed Contracts, the Other Contracts and the In-Process Contracts in each case relating to the period ending on the Closing Date;
(iii) except for the Assumed Liabilities specifically assumed by Purchaser pursuant to Article VI,all liabilities and obligations of Seller owing to its current or former directors, officers, representatives, agents or employees, including any liabilities and obligations of Seller with respect to any retention, incentive or similar payments from Seller relating to the sale of the Company.Business;
(iv) except as set forth in Section 9.01, all liabilities and obligations of Seller for unpaid Taxes (with respect to the Business or otherwise) for periods through the Closing. “Taxes” means all taxes, however denominated, including any interest or penalties that may become payable in respect thereof, imposed by any federal, state, local or foreign government or any agency or political subdivision of any such government, which taxes shall include all net income, alternative or add-on minimum tax, gross income, gross receipts, sales, use, goods and services, ad valorem, earnings, franchise, profits, license, withholding (including all obligations to withhold or collect for taxes imposed on others), payroll, employment, excise, severance, stamp, occupation, premium, property, excess profit or windfall profit tax, custom duty, value added or other tax, governmental fee or other like assessment or charge of any kind whatsoever, together with any interest and any penalty, addition to tax, or additional amount (whether payable directly, by withholding or otherwise);
Appears in 1 contract
Samples: Purchase and Sale Agreement (Peregrine Systems Inc)
Assumption of Liabilities. Notwithstanding anything to the contrary contained in this Agreement or any Company Transaction Document, and regardless of whether such liability is disclosed in this Agreement, in any of the Transaction Documents, on any Schedule hereto or thereto or otherwise, and regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwise, the Buyer will not shall assume, agree to payperform, perform or and discharge or in any way be responsible when due only those obligations of Seller arising out of the contracts, leases and agreements listed on Schedules 7(j) and 7(k) with respect to the period from and after the date of this Agreement (the Assumed Liabilities"). Seller and Buyer agree that, other than the Assumed Liabilities, Buyer does not agree to assume and shall have no responsibility for any debts of the debts, obligations or liabilities of Seller (including interest and/or penalties thereonthe "Excluded Liabilities"), liabilities or obligations all of which shall remain the sole responsibility of and shall be paid and discharged by Seller as they become due. The Excluded Liabilities include without limitation all of the Company following:
(a) Any tax liability or tax obligation of Seller, its directors, officers, shareholders and agents which has been or may be asserted by any taxing authority, including without limitation any such liability or obligation arising out of or in connection with this Agreement or the Development Work transactions contemplated hereby.
(b) Any liability or obligation of Seller whether incurred prior to, at or subsequent to the date of this Agreement for any amounts due or which may become due to any person or entity who is or has been a holder of any kind debt or nature whatsoeverequity security of Seller.
(c) Any trade account payable or note payable of Seller or any contract obligation of Seller (other than the Assumed Liabilities) whether incurred prior to, whether fixed at or unfixedsubsequent to the date of this Agreement.
(d) Any liability or obligation arising out of any litigation, suit, proceeding, action, claim or investigation, at law or in equity or in arbitration, related to Seller's operation of the Business prior to the date of this Agreement.
(e) Any claim, liability or obligation, known or unknown, absolute contingent or contingentotherwise, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidatedthe existence of which is a breach of, or secured inconsistent with, any representation, warranty or unsecured (the “Excluded Liabilities”), except that the Buyer will assume at the Closing the following obligations: (i) all obligations covenant of the Company under the Assumed Contracts, and (ii) the obligations Seller set forth on Schedule 1.2(iiin this Agreement.
(f) (collectively, the “Assumed Liabilities”); provided however, that any Any liability or obligation relating to or arising from any breach, or event, circumstance or condition that with notice, lapse of time or both would constitute or result specifically stated in a breach, by the Company on or before the Closing Date, of any of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting the generality of the foregoing, the Buyer is not assuming or agreeing to pay, perform or discharge or in any way be responsible for, any Excluded Liabilities, which shall include (i) all Indebtedness (which, for the avoidance of doubt, shall include all notes and interest payable to the Company’s shareholders), (ii) all Company Taxes, (iii) all obligations and liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of the transactions contemplated by this Agreement), (iv) all obligations and liabilities arising on or before the Closing Date, (v) all liabilities and obligations relating to or arising out of any transaction contemplated by this Agreement and (vi) any other liabilities owed or the Schedules hereto as not to the stockholders of the Companybe assumed by Buyer.
Appears in 1 contract
Samples: Asset Purchase Agreement (Data Transmission Network Corp)
Assumption of Liabilities. Notwithstanding anything to Upon the contrary contained in this Agreement or any Company Transaction Document, sale and regardless of whether such liability is disclosed in this Agreement, in any purchase of the Transaction Documents, on any Schedule hereto or thereto or otherwise, and regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwisePurchased Assets, the Buyer will not assume, shall assume and agree to pay, perform pay or discharge when due only those liabilities incurred in the operation of the Division's business from and after the Closing Date and those liabilities and obligations of Seller which are to be performed after the Closing Date which are specifically set forth and described on Schedule 1.2. The liabilities to be assumed by the Buyer under this Agreement are hereinafter sometimes referred to as the "Assumed Liabilities." Except as otherwise specifically provided in this Section 1.2, (a) Buyer shall not assume or in any way be responsible liable for any debts (including interest and/or penalties thereon)obligation or liability of Seller, liabilities or obligations of the Company or in connection with the Development Work of any kind or nature whatsoevernature, whether fixed or unfixedknown, known or unknown, absolute contingent or contingentotherwise, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured (the “Excluded Liabilities”), except that the Buyer will assume at the Closing the following obligationsincluding without limitation: (i) all obligations any liability of Seller incurred in connection with this Agreement and the Company under the Assumed Contractstransactions provided for herein, including brokerage, accounting and counsel fees, transfer and other taxes, and expenses pertaining to its liquidation or the performance by Seller of its obligations hereunder, (ii) the obligations set forth on Schedule 1.2(ii) (collectively, the “Assumed Liabilities”); provided however, that any liability or obligation of Seller arising out of any contract or agreement, (iii) any obligations to Seller's employees, including without limitation, any pension, retirement, profit-sharing plan or trust, or any severance payments (iv) any litigation, proceeding, claim by any person or entity or other obligation of Seller relating to the business or arising from any breach, operations of the Division or event, circumstance or condition that with notice, lapse of time or both would constitute or result in a breach, by otherwise relating to the Company on or before Purchased Assets prior to the Closing Date, of any of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting the generality of the foregoingwhether or not such litigation, the Buyer proceeding, claim or obligation is not assuming pending, threatened, or agreeing to payasserted before, perform on, or discharge or in any way be responsible for, any Excluded Liabilities, which shall include (i) all Indebtedness (which, for the avoidance of doubt, shall include all notes and interest payable to the Company’s shareholders), (ii) all Company Taxes, (iii) all obligations and liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of the transactions contemplated by this Agreement), (iv) all obligations and liabilities arising on or before after the Closing Date, (v) all liabilities and obligations taxes whether relating to periods before or arising out of any transaction contemplated by this Agreement after the Closing Date, and (vi) any other obligations under any law, including but not limited to antitrust, civil rights, health, safety, labor, discrimination and environmental laws; and (b) Seller shall be solely responsible for, and shall discharge, any and all liabilities owed and obligations of Seller not included within the Assumed Liabilities. The parties agree that Seller's obligations and liabilities are exclusive of and do not include any liabilities or obligations arising out of the operations of the Division and the use of the Purchased Assets from and after the Closing as such liabilities and obligations shall be those of the Buyer. The assumption of any Assumed Liabilities by the Buyer hereunder shall be treated as independent of its existing business and shall not enlarge any rights of third parties under contracts or arrangements with the Buyer or Seller. Nothing herein shall prevent the Buyer from contesting in good faith any of the Assumed Liabilities. In connection with clause (iii) above, Seller further agrees that it will be responsible for any severance payable to any of the Division's employees who are terminated by Buyer within sixty (60) days of the Closing, but only to the stockholders extent of Seller's severance policy obligations as in existence immediately prior to the Company.Closing or as may be required of Seller by law. 1.3
Appears in 1 contract
Assumption of Liabilities. Notwithstanding anything to the contrary contained in this Agreement or any Company Transaction Document, and regardless of whether such liability is disclosed in this Agreement, in any Effective as of the Transaction DocumentsClosing Date, on any Schedule hereto or thereto or otherwise, Assignee will assume and regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwise, the Buyer will not assume, agree to pay, perform or discharge or and discharge, as and when due, and indemnify and hold each Assignor harmless from and against, (x) each liability listed in any way Schedule 1.03, (y) each obligation of each Assignor to be responsible performed after the Closing Date with respect to the Assets and the Assigned Contracts and (z) each other liability of each Assignor thereunder (including liabilities for any debts (including interest and/or penalties thereonbreach of a representation, warranty or covenant, or for any claims for indemnification contained therein), liabilities to the extent and only to the extent that such liability is due to the actions of Assignee (or obligations any of Assignee's affiliates, representatives or agents) after the Company Closing Date (collectively, the "Assumed Liabilities"). Assignee shall not assume, and shall not be obligated to pay, perform or in connection with the Development Work discharge, any liability or obligation of any kind or nature whatsoever, whether fixed or unfixed, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured (the “Excluded Liabilities”), except that the Buyer will assume at the Closing the following obligations: (i) all obligations of the Company under Assignor other than the Assumed Contracts, and Liabilities (ii) whether or not related to the obligations set forth on Schedule 1.2(iiAssets or Business) (collectively, the “Assumed "Excluded Liabilities”"); provided however, that and shall not be obligated for any other claim, loss or liability or obligation relating to any act, omission or arising from breach by any breachAssignor with respect to the Business, the Assets or the Assigned Contracts, or eventfor any claim, circumstance loss or condition that with noticeliability related to the Excluded Assets or the Excluded Liabilities, lapse all of time or both would constitute or result in a breachwhich, by the Company on or before the Closing DateAssignors shall remain obligated to pay, of any of its obligations under an Assumed Contract shall be an Excluded Liabilityperform and discharge and to indemnify and hold Assignee harmless against. Without limiting the generality of the foregoing, among other things, all liabilities arising from the Buyer is not assuming or agreeing to pay, perform or discharge or matters described in any way be responsible for, any Excluded Liabilities, which shall include (i) all Indebtedness (which, for the avoidance of doubtProspectus under the caption "Legal Proceedings", shall include all notes and interest payable be Excluded Liabilities except to the Company’s shareholders), (ii) all Company Taxes, (iii) all obligations and liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (extent expressly assumed as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of the transactions contemplated by this Agreement), (iv) all obligations and liabilities arising provided on or before the Closing Date, (v) all liabilities and obligations relating to or arising out of any transaction contemplated by this Agreement and (vi) any other liabilities owed to the stockholders of the CompanySchedule 1.03.
Appears in 1 contract
Assumption of Liabilities. Notwithstanding anything (a) Subject to the contrary contained in this Agreement or any Company Transaction Document, terms and regardless of whether such liability is disclosed conditions set forth in this Agreement, in any of at the Transaction DocumentsClosing, on any Schedule hereto or thereto or otherwise, and regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwise, the Buyer will not Purchaser shall assume, agree to pay, perform and discharge all duties, responsibilities, obligations or discharge liabilities of Seller (whether accrued, contingent or in any way otherwise) to be responsible for any debts discharged, performed, satisfied or paid on or after the Closing Date (including interest and/or penalties thereonor the Transfer Date with respect to a Transferred Employee), liabilities or obligations of the Company or in connection with the Development Work of any kind or nature whatsoever, whether fixed or unfixed, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured (the “Excluded Liabilities”), except that the Buyer will assume at the Closing respect to the following obligations: (i) all obligations of the Company under the Assumed Contracts, and (ii) the obligations set forth on Schedule 1.2(ii) (collectively, the “Assumed Liabilities”); provided however):
(i) the Deposits, that including Deposits in IRAs and related account agreements;
(ii) the Personal Property and the Real Property, excluding any duty, responsibility, obligation or liability arising from or obligation relating to (A) the Real Property or (B) in whole or in part with respect to an Environmental Condition migrating to or from the Real Property, if any claim, demand or proceeding, or any notice of the foregoing arising from or relating to (A) or (B) of this Section 2.2(a)(ii) is made or commenced prior to the Closing or if any breachsuch duty, obligation or liability relates to a period prior to the Closing;
(iii) the Safe Deposit Agreements;
(iv) the Loans;
(v) liabilities to any Transferred Employee in respect of his or her employment with Purchaser on or after the Transfer Date, including as set forth in Section 8.7; and
(vi) liabilities for Taxes of, or eventrelating to, circumstance the Assets, the Assumed Liabilities or condition that with noticethe business or operation of the Branches (other than Excluded Taxes).
(b) Notwithstanding anything to the contrary in this Agreement, lapse of time Purchaser shall not assume or both would constitute be bound by any duties, responsibilities, obligations or result in a breach, by the Company on or before the Closing Dateliabilities, of any kind or nature, known, unknown, contingent or otherwise, of Seller or any of its obligations under an Affiliates, other than the Assumed Contract shall be an Excluded Liability. Without limiting the generality of the foregoingLiabilities or as otherwise expressly assumed hereunder (all duties, the Buyer is not assuming or agreeing to payresponsibilities, perform or discharge or in any way be responsible for, any Excluded Liabilities, which shall include (i) all Indebtedness (which, for the avoidance of doubt, shall include all notes and interest payable to the Company’s shareholders), (ii) all Company Taxes, (iii) all obligations and liabilities related to employee compensation (which for of Seller or any of its Affiliates, other than the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans Assumed Liabilities or other obligations of expressly assumed hereunder, the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of the transactions contemplated by this AgreementExcluded Liabilities”), (iv) all obligations and liabilities arising on or before the Closing Date, (v) all liabilities and obligations relating to or arising out of any transaction contemplated by this Agreement and (vi) any other liabilities owed to the stockholders of the Company.
Appears in 1 contract
Samples: Purchase and Assumption Agreement (HCSB Financial Corp)
Assumption of Liabilities. Notwithstanding As additional consideration hereunder, from and after the Closing Date Buyer shall assume and discharge the Assumed Liabilities. Except as provided in the preceding sentence, and notwithstanding anything else to the contrary contained in this Agreement or any Company Transaction Documentherein, Buyer is not assuming and regardless of whether such liability is disclosed in this Agreement, in any of the Transaction Documents, on any Schedule hereto or thereto or otherwise, and regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwise, the Buyer will shall not assume, agree to pay, perform or discharge or in any way be responsible liable for any debts (including interest and/or penalties thereon)Liabilities of Seller, liabilities or obligations of the Company or in connection with the Development Work of including, without limitation, any kind or nature whatsoever, whether fixed or unfixed, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured (the “Excluded Liabilities”), except that the Buyer will assume at the Closing the following obligations: (i) all obligations of the Company under the Assumed Contracts, and Contracts which shall not have been assigned to Buyer pursuant to this Agreement; (ii) the obligations set forth on Schedule 1.2(ii) (collectively, the “Assumed Liabilities”)for indebtedness for borrowed money; provided however, that any liability or obligation relating to or arising from any breach, or event, circumstance or condition that with notice, lapse of time or both would constitute or result in a breach, by the Company on or before the Closing Date, of any of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting the generality of the foregoing, the Buyer is not assuming or agreeing to pay, perform or discharge or in any way be responsible for, any Excluded Liabilities, which shall include (i) all Indebtedness (which, for the avoidance of doubt, shall include all notes and interest payable to the Company’s shareholders), (ii) all Company Taxes, (iii) all obligations and liabilities related to employee compensation (which for the avoidance by reason of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations arising out of the Company (whichany default or breach by Seller of any Contract, for the avoidance of doubtany penalty against Seller under any Contract, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of the transactions contemplated by this Agreement), (iv) all obligations and liabilities arising on or before the Closing Date, (v) all liabilities and obligations relating to or arising out of any transaction event which with the passage of time or after giving of notice, or both, would constitute or give rise to such a breach, default or penalty, whether or not such Contract is being assigned to and assumed by Buyer pursuant to this Agreement; (iv) the existence of which would conflict with or constitute a breach of any representation, warranty or agreement of Seller contained herein; (v) relating to or in any way arising out of the Excluded Assets; (vi) for Seller's expenses referred to in Section 11.6 hereof; (vii) to any stockholder or Affiliate of Seller or to any present or former employee, officer or director of Seller, including, without limitation, any bonuses, any termination or severance pay related to the transfer of employees to Buyer in connection with the transactions contemplated hereby, and any post retirement medical benefits or other compensation or benefits; (viii) relating to the execution, delivery and consummation of this Agreement and the transactions contemplated hereby, including, without limitation, any and all Taxes incurred as a result of the sale contemplated by this Agreement Agreement; (ix) for any Taxes accrued or incurred prior to the Closing Date or relating to any period (or portion of a period) prior thereto; (x) relating to or arising out of any environmental matter, including, without limitation, any violation of any Environmental Law or any other law relating to health and safety of the public or the employees of Seller; (xi) relating to, or arising out of, products manufactured or services rendered by Seller, or the conduct or operation of the business of Seller, prior to the Closing Date; and (vixii) of Seller arising under or pursuant to this Agreement; and provided further, that Buyer shall have the right not to assume any other liabilities owed Contract if any party to the stockholders such Contract is in breach thereof or default thereunder as of the CompanyClosing Date or there has occurred any event which with the passage of time or after giving of notice, or both, would become such a breach or default. Buyer shall not assume or be bound by any Liabilities of Seller, except as expressly assumed by it pursuant to this Agreement. Nothing contained in this Section 2.5 shall relieve or release Seller from any obligations under covenants, warranties or agreements contained in this Agreement.
Appears in 1 contract
Assumption of Liabilities. Notwithstanding anything a. Subject to the contrary contained in this Agreement or any Company Transaction Document, terms and regardless conditions of whether such liability is disclosed in this Agreement, in any of the Transaction Documents, on any Schedule hereto or thereto or otherwise, CSI will assume and regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwise, the Buyer will not assume, agree undertake to pay, perform satisfy or discharge the liabilities, obligations, and commitments of Anchor arising on or after the Closing Date under the contracts listed in Schedule A hereto and any way be responsible for other contracts entered into between the date of this Agreement and the Closing which CSI expressly agrees in writing to assume.
b. Except as set forth in Section 3.a of this Agreement, CSI expressly disclaims any debts (including interest and/or penalties thereon)liabilities, liabilities obligations or obligations of the Company commitments, direct or in connection with the Development Work of any kind or nature whatsoever, whether fixed or unfixed, known or unknownindirect, absolute or contingent, asserted or unassertedof Anchor, xxxxxx or inchoate, liquidated or unliquidatedXxxxxxxxx, or secured or unsecured (the “Excluded Liabilities”)any other person of any nature whatsoever without regard to whether any such liability, except that the Buyer will assume at the Closing the following obligations: (i) all obligations of the Company under the Assumed Contracts, and (ii) the obligations set forth on Schedule 1.2(ii) (collectively, the “Assumed Liabilities”); provided however, that any liability or obligation relating to or arising from any breachobligation, or event, circumstance or condition that with notice, lapse of time or both would constitute or result in a breach, by the Company on or before the Closing Date, of any of its obligations under an Assumed Contract shall be an Excluded Liabilitycommitment has been disclosed. Without limiting the generality of the foregoing, except as set forth in Section 3.a of this Agreement, CSI will take title to the Buyer is not assuming Anchor Assets, including Xxxxxxxxx'x shares, free and clear of any and all undisclosed liabilities, obligations, or agreeing to paycommitments of Anchor, perform Xxxxxxxxx, or discharge or in any way other person, and Anchor and Xxxxxxxxx will be solely responsible for, any Excluded Liabilities, which shall include (i) all Indebtedness (which, for the avoidance satisfaction and discharge of doubtall such liabilities, shall include obligations, and commitments, and will indemnify and hold harmless CSI against all notes those liabilities, obligations, and interest payable to commitments. Without limiting the Company’s shareholders)generality of any of the foregoing, (ii) all Company Taxesexcept as set forth in Section 3.a, (iii) all obligations and CSI will not assume any liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of Anchor, Xxxxxxxxx, or any other person for:
(1) Any litigation, arbitration, or administrative proceedings proceedings pending, threatened, or commenced after the Company (which, for the avoidance Closing Date against or relating to Anchor or Xxxxxxxxx or directly or indirectly arising out of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of the transactions contemplated by this Agreement), (iv) all obligations and liabilities arising based on facts existing on or before prior to the Closing Date relating to the business or operations of Anchor, Xxxxxxxxx, or the Anchor Assets;
(2) Any liability or obligation as guarantor, surety, cosigner, endorser, comaker, or indemnitor;
(3) Any environmental claims arising from actions taken by Anchor or Xxxxxxxxx, or from the failure to take action by Anchor or Xxxxxxxxx if the context so requires, on or prior to the Closing Date, ;
(v4) all Any liabilities and obligations for taxes relating to the business or operations of Anchor, Xxxxxxxxx, or the Anchor Assets on or prior to the Closing Date;
(5) Any liability or obligation of Anchor to Xxxxxxxxx;
(6) Any liability or obligation directly or indirectly arising out of or based on facts existing on or prior to the Closing Date between Anchor, Xxxxxxxxx, and any transaction contemplated by of the employees, former employees, employees' collective bargaining representatives or job applications of Anchor;
(7) Any claims relating to health insurance, workers compensation, severance or other employee benefits arising from, or in connection with, the employment of persons on or prior to the Closing Date; and
(8) Any liens, pledges, claims, security interests, conditional sales contracts or other encumbrances upon or relating to Anchor, Xxxxxxxxx, or the Anchor Assets whatsoever, whether existing at the date of this Agreement or arising at any time after the date of this Agreement up to and (vi) any other liabilities owed to including the stockholders of the CompanyClosing Date.
Appears in 1 contract
Assumption of Liabilities. Notwithstanding anything (a) On the terms and subject to the contrary contained in this Agreement or any Company Transaction Document, and regardless conditions of whether such liability is disclosed in this Agreement, in any effective as of the Transaction Documents, on any Schedule hereto or thereto or otherwise, Closing and regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwisewithout further action, the Buyer will not assume, Purchaser shall assume and agree to pay, perform perform, satisfy and discharge when due, all obligations and liabilities (other than Excluded Liabilities) of whatever kind and nature, primary or discharge secondary, direct or in any way be responsible for any debts (including interest and/or penalties thereon)indirect, liabilities absolute or obligations of the Company or in connection with the Development Work of any kind or nature whatsoever, whether fixed or unfixedcontingent, known or unknown, absolute whether or contingentnot accrued, asserted arising before, on or unassertedafter the Closing Date, xxxxxx relating to, resulting from or inchoate, liquidated arising out of the Business or unliquidated, any of the Acquired Assets or secured any present or unsecured former owner or operator of the Business or any of the Acquired Assets (the “Excluded Liabilities”"ASSUMED LIABILITIES"), except that including, without limitation, the Buyer will assume at the Closing the following obligations: obligations and liabilities specified below:
(i) all The obligations and liabilities of the Company Roadway or ATS under the Assumed Contracts, and ;
(ii) the obligations set forth on Schedule 1.2(ii) (collectively, the “Assumed Liabilities”); provided however, that any liability or obligation relating to or arising from any breach, or event, circumstance or condition that with notice, lapse of time or both would constitute or result The accounts payable and accrued expenses in a breach, by the Company on or before the Closing Date, of any of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting the generality respect of the foregoing, the Buyer is not assuming or agreeing to pay, perform or discharge or in any way be responsible for, any Excluded Liabilities, which shall include (i) all Indebtedness (which, for the avoidance of doubt, shall include all notes and interest payable to the Company’s shareholders), (ii) all Company Taxes, Business;
(iii) The obligations and liabilities in respect of the Business arising at any time, including, without limitation, obligations and liabilities for refunds, adjustments, allowances, damages, repairs, exchanges, returns, warranties, property damage and personal injury;
(iv) The obligations and liabilities relating to the Acquired Assets;
(v) The obligations and liabilities arising as a result of being an owner, occupant or operator of any facility or Acquired Assets used in the conduct of the Business, including, without limitation, all obligations and liabilities related relating to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company (whichpersonal injury, for the avoidance of doubtproperty damage, shall include severancenatural resources, non-compete payments, benefits, deferred worker's compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” employee safety and health and laws and regulations relating to the environment;
(as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claimsvi) as a result of the consummation of the transactions contemplated by this Agreement), (iv) all obligations and liabilities arising on or before the Closing Date, (v) all The liabilities and obligations relating to any litigation, action, suit, claim, investigation or proceeding pending on the date of this Agreement, or instituted after the date of this Agreement, based in whole or in part on events or conditions occurring or existing in connection with, or arising out of, or otherwise relating to, the Business whether such events or conditions occurred before, on or after the date of this Agreement; and
(vii) Any and all liabilities or obligations with respect to any transaction contemplated by this Agreement and Transferred Employee (vias defined in SECTION 7.1(a)) any other liabilities owed arising prior to the stockholders Closing Date or on or after the Closing Date, including any compensation, severance, workers compensation or employee benefit obligations.
(b) Notwithstanding SECTION 1.3(a), for purposes of this Agreement, the Companyterm "ASSUMED LIABILITIES" will not include any Excluded Liabilities. For purposes of this Agreement, the term "EXCLUDED LIABILITIES" means the obligations or liabilities expressly retained by ATS as identified on SCHEDULE 1.3(b).
Appears in 1 contract
Assumption of Liabilities. (a) On the Closing Date, Purchaser shall assume only the liabilities of Seller listed on Exhibit 1.3 and shall cause all such assumed liabilities to be discharged when due.
(b) Notwithstanding anything in this Agreement to the contrary contained contrary, Purchaser shall not assume, or in any way be liable or responsible for, any liabilities or obligations of Seller except as specifically provided in Exhibit 1.3 and except as otherwise provided in this Agreement or any Company Transaction Document, and regardless of whether such liability is disclosed in this Agreement, in any of the Transaction Documents, on any Schedule hereto other instrument or thereto or otherwise, and regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned agreement executed in connection with the Buyer’s due diligence investigation of the Development Work or otherwise, the Buyer will not assume, agree to pay, perform or discharge or in any way be responsible for any debts (including interest and/or penalties thereon), liabilities or obligations of the Company or in connection with the Development Work of any kind or nature whatsoever, whether fixed or unfixed, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured (the “Excluded Liabilities”), except that the Buyer will assume at the Closing the following obligations: (i) all obligations of the Company transactions contemplated under the Assumed Contracts, and (ii) the obligations set forth on Schedule 1.2(ii) (collectively, the “Assumed Liabilities”); provided however, that any liability or obligation relating to or arising from any breach, or event, circumstance or condition that with notice, lapse of time or both would constitute or result in a breach, by the Company on or before the Closing Date, of any of its obligations under an Assumed Contract shall be an Excluded Liabilitythis Agreement. Without limiting the generality of the foregoing, Purchaser shall not assume the Buyer is not assuming or agreeing to pay, perform or discharge or in any way be responsible for, any Excluded Liabilities, which shall include following:
(i) all Indebtedness (which, for the avoidance any liability or obligation of doubt, shall include all notes and interest payable Seller not relating to the Company’s shareholders), Seller Assets;
(ii) all Company Taxesexcept as expressly provided in Section 9.7 of this Agreement, (iii) all obligations any liability or obligation of Seller arising out of or in connection with the negotiation and liabilities related to employee compensation (which for the avoidance preparation of doubt shall include payroll this Agreement and accrued vacation expenses) and employee benefit plans or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation and performance of the transactions contemplated hereby;
(iii) any liability or obligation of Seller arising out of a default by this Agreement), Seller or other event occurring prior to the Closing Date in connection with any contract or agreement acquired by Purchaser as part of the Assets or assumed by Purchaser as part of the assumed liabilities;
(iv) all obligations and liabilities any liability or obligation of Seller for taxes, including income, sales, payroll, franchise, or other taxes, or any interest or penalties thereon, applicable to or arising on or from any period before the Closing Date, ; and
(v) all except as otherwise provided in this Agreement, any liability or obligation of Seller, including, but not limited to liabilities and obligations relating to copyright, trademark or other intellectual property, tort liability, employment discrimination, wrongful termination, errors and omissions liability, employee payroll and employee benefits liability, liability under employment agreements or pertaining to covenants not to compete, obligations arising out of any transaction contemplated by this Agreement and (vi) any other liabilities owed or relating to the stockholders of the Companypension plans.
Appears in 1 contract
Assumption of Liabilities. Notwithstanding anything TLC or an Affiliate of TLC shall assume at the Effective Time, and shall perform or discharge on or after the Effective Time, only (A) the contracts, leases, commitments, obligations and liabilities of Practice which are included in the definition of Assumed Contracts; (B) Practice's trade accounts payable and other short-term obligations incurred in the Ordinary Course of Business no more than thirty (30) days prior to the contrary contained in this Agreement or any Company Transaction DocumentClosing Date; and (C) the Security Interests described on Schedule 2(b) (the "Permitted Encumbrances") (the foregoing (A), (B) and (C) are hereinafter collectively referred to as the "Assumed Liabilities"), and regardless of whether such liability is disclosed in this Agreement, in neither TLC nor any of its Affiliates shall assume any other liabilities of Practice. Other than the Transaction DocumentsAssumed Liabilities, on neither TLC nor any Schedule hereto or thereto or otherwiseof its Affiliates shall be deemed to have assumed, and regardless of the Buyer’s nor shall TLC or any of its directors’, officers’, employees’ or agents’ knowledge or awareness Affiliates assume any Liability of Practice including but not limited to: (A) any Liability which may be incurred by reason of any liabilitybreach of or default under contracts, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwiseleases, the Buyer will not assume, agree to pay, perform or discharge or in any way be responsible for any debts (including interest and/or penalties thereon), liabilities commitments or obligations of Practice which occurred prior to the Company Effective Time; (B) any Liability for any employee benefits payable to employees of Practice, including, but not limited to, liabilities arising under any Employee Benefit Plan of Practice; (C) any Liability based upon or in connection with the Development Work arising out of a violation of any kind or nature whatsoeverlaws by Practice, whether fixed or unfixedincluding, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured (the “Excluded Liabilities”), except that the Buyer will assume at the Closing the following obligations: (i) all obligations of the Company under the Assumed Contracts, and (ii) the obligations set forth on Schedule 1.2(ii) (collectively, the “Assumed Liabilities”); provided however, that any liability or obligation relating to or arising from any breach, or event, circumstance or condition that with notice, lapse of time or both would constitute or result in a breach, by the Company on or before the Closing Date, of any of its obligations under an Assumed Contract shall be an Excluded Liability. Without without limiting the generality of the foregoing, the Buyer is not assuming any such liability which may arise in connection with agreements, contracts, commitments or agreeing to payprovision of services by Practice or any Physician Owner; (D) any Liability based upon or arising out of any tortious or wrongful actions of Practice or any Physician Owner, perform or discharge or in (E) any way be responsible for, any Excluded Liabilities, which shall include (i) all Indebtedness (which, Liability for the avoidance payment of doubt, shall include all notes and interest payable any taxes imposed by law on Practice arising from any activities of Practice prior to the Company’s shareholders), (ii) all Company Taxes, (iii) all obligations and liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans Effective Time or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation by reason of the transactions contemplated by this Agreement), ; (iv) all obligations and liabilities arising on or before the Closing Date, (v) all liabilities and obligations relating to or arising out of any transaction contemplated by this Agreement and (viF) any other liabilities owed Liability for the payment of legal fees incurred by Practice prior to the stockholders Closing; (G) any term debt of Practice not included in the CompanyPermitted Encumbrances; or (H) any trade accounts payable not included in the Assumed Liabilities (collectively the "Retained Liabilities").
Appears in 1 contract
Assumption of Liabilities. Notwithstanding anything At the Closing and except as otherwise specifically provided in Section 1.6.3, PRG shall assume and agree to pay, discharge or perform, as appropriate, without duplication, solely the following liabilities and obligations of Seller (the "Assumed Liabilities"):
1.6.1 all accounts payable of Seller arising before the Closing in the regular and ordinary course of the Business;
1.6.2 obligations to perform services and deliver products, accruing after the Closing, pursuant to contracts with customers entered into in the ordinary course of business; and
1.6.3 all liabilities and obligations of Seller in respect of the agreements, contracts, commitments and leases which are specifically identified on Schedule 1.6.3 attached hereto.
1.6.4 In no event, however, shall PRG assume or incur any liability or obligation under this Section 1.6 or otherwise in respect of any of the following liabilities or obligations:
(a) liabilities or obligations arising out of any breach by Seller of any provision of any agreement, contract, commitment or lease, including but not limited to liabilities or obligations arising out of Seller's failure to perform any agreement, contract, commitment or lease in accordance with its terms prior to the contrary contained in this Agreement Closing;
(b) any indebtedness for borrowed money, including without limitation, any indebtedness arising under any note, debenture, bond, letter of credit agreement, loan agreement or other contract or commitment for the borrowing or lending of money relating to the Business or agreement or arrangement for a line of credit, or any Company Transaction Document, and regardless of whether such liability is disclosed in this Agreementguaranties, in any manner, whether directly or indirectly, of any indebtedness, dividend or other obligation of any other person or entity relating to the Transaction DocumentsBusiness (other than endorsements in the ordinary course of business of negotiable instruments for deposit or collection);
(c) any product liability or similar claim for injury to person or property, on any Schedule hereto or thereto or otherwise, and regardless of when made or asserted, which arises out of or is based upon any express or implied representation, warranty, agreement or guarantee made by Seller, or alleged to have been made by Seller, or which is imposed or asserted to be imposed by operation of law, in connection with any service performed or product sold or leased by or on behalf of Seller on or prior to the Buyer’s or Closing, including without limitation any of its directors’, officers’, employees’ or agents’ knowledge or awareness of claim relating to any liability, whether learned product delivered in connection with the Buyer’s due diligence investigation performance of such service and any claim seeking recovery for consequential damage, lost revenue or income;
(d) any federal, state or local income or other tax (i) payable with respect to the business, assets, properties or operations of Seller or any Shareholder or any member of any affiliated group of which Seller or any Shareholder is a member for any period prior to the Closing Date, or (ii) incident to or arising as a consequence of the Development Work negotiation or otherwiseconsummation by Seller or Shareholder of this Agreement and the transactions contemplated hereby;
(e) any liability or obligation under, in connection with, or with respect to the Buyer will not assume, agree Excluded Assets;
(f) any liability or obligation arising prior to pay, perform or discharge or in any way be responsible for any debts (including interest and/or penalties thereon), liabilities or obligations as a result of the Company Closing to any employees, agents or independent contractors of Seller, whether or not employed by PRG after the Closing, or under any benefit arrangement with respect thereto, except for obligations incurred in the ordinary course of the Business set forth on Schedule 1.6.4;
(g) any liability or obligation of Seller or any Shareholder arising or incurred in connection with the Development Work negotiation, preparation and execution of this Agreement and the consummation of the transactions contemplated hereby (including, without limitation, fees and expenses of counsel, accountants and other experts);
(h) any kind liability or nature whatsoever, whether fixed obligation of Seller or unfixed, known any Shareholder to or unknown, absolute relating to any person or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured (the “Excluded Liabilities”), except that the Buyer will assume at the Closing the following obligations: entity affiliated with Seller; and
(i) all obligations of the Company under the Assumed Contracts, and (ii) the obligations set forth on Schedule 1.2(ii) (collectively, the “Assumed Liabilities”); provided however, that any liability or obligation relating to or arising from any breach, or event, circumstance or condition that with notice, lapse of time or both would constitute or result in a breach, by the Company on or before the Closing Date, of any of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting the generality of the foregoing, the Buyer is not assuming or agreeing to pay, perform or discharge or in any way be responsible for, any Excluded Liabilities, which shall include (i) all Indebtedness (which, for the avoidance of doubt, shall include all notes and interest payable to the Company’s shareholders), (ii) all Company Taxes, (iii) all obligations and liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (plan except as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of the transactions contemplated by this Agreement), (iv) all obligations and liabilities arising on or before the Closing Date, (v) all liabilities and obligations relating to or arising out of any transaction contemplated by this Agreement and (vi) any other liabilities owed to the stockholders of the Companyotherwise specifically provided above.
Appears in 1 contract
Samples: Acquisition Agreement (Production Resource Group LLC)
Assumption of Liabilities. Notwithstanding anything to Upon the contrary contained in this Agreement or any Company Transaction DocumentClosing, Purchaser will assume all of Seller's obligations and regardless of whether such liability is disclosed in this Agreement, in any of the Transaction Documents, on any Schedule hereto or thereto or otherwise, and regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwise, the Buyer will not assume, agree to pay, perform or discharge or in any way be responsible for any debts (including interest and/or penalties thereon), liabilities or obligations of the Company or in connection with the Development Work of any kind or nature whatsoeverwhatsoever related to, whether fixed arising from or unfixed, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured associated with any of the following to the extent they relate to the Assets (the “Excluded Liabilities”"ASSUMED LIABILITIES"), except that for Excluded Liabilities:
(a) Except for the Buyer will assume at payment obligations pro-rated to Seller under Section 3.6, all liabilities and obligations under all agreements, contracts, undertakings, and licenses assigned to Purchaser under this Agreement, including the Closing the following obligations: (i) all obligations of the Company under the Assumed Facilities Contracts, and (ii) the obligations set forth Transferable Permits in accordance with the terms thereof, except in each case to the extent such liabilities and obligations, but for a breach or default by Seller or a related waiver or extension given by Seller, would have been paid, performed or otherwise discharged on Schedule 1.2(ii) (collectively, or prior to the “Assumed Liabilities”)Closing Date or to the extent the same arise out of any such breach or default or related waiver or extension given by Seller; provided howeverthat, that any liability or obligation relating to or arising from any breach, or event, circumstance or condition that with notice, lapse of time or both would constitute or result in a breach, by the Company on or before the Closing Date, of any of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting the generality for purposes of the foregoing, the Buyer phrase "breach or default by Seller or a related waiver or extension given by Seller" shall not include any such breach, default, waiver or extension that is not assuming or agreeing has been also engaged in or agreed to payby the Facilities Owners in common or by the Operating Agent acting on behalf of any Facilities Owner, perform including the Seller;
(b) All liabilities or discharge obligations of Seller under or related to Environmental Laws or relating to any claim in any way be responsible forrespect of Environmental Conditions or Hazardous Substances arising under Laws, any Excluded Liabilitiesincluding Environmental Laws, which shall include or the common law, whether such liability or obligation is known or unknown, contingent or accrued, to the extent relating to the Facilities or the Facilities Switchyard, including (i) all Indebtedness (which, for the avoidance any violation or alleged violation of doubt, shall include all notes and interest payable Environmental Laws with respect to the Company’s shareholders)ownership, (ii) all Company Taxeslease, (iii) all obligations and liabilities related to employee compensation (which for the avoidance maintenance or operation of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations any of the Company (whichAssets, for including any fines or penalties that arise in connection with the avoidance of doubtownership, shall include severancelease, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is maintenance or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result operation of the consummation of the transactions contemplated by this Agreement)Assets prior to, (iv) all obligations and liabilities arising on or before after the Closing Date, and the costs associated with correcting any such violations; (vii) loss of life, injury to Persons or property or damage to natural resources (whether or not such loss, injury or damage arose or was made manifest before the Closing Date or arises or becomes manifest on or after the Closing Date), in each case, caused (or allegedly caused) by any Environmental Condition or the presence or Release of Hazardous Substances at, on, in, under, or migrating from the Assets prior to, on or after the Closing Date, including any Environmental Condition or Hazardous Substances contained in building materials at or adjacent to the Assets or in the soil, surface water, sediments, groundwater, landfill cells, or in other environmental media at or near the Assets; and (iii) the investigation or Remediation (whether or not such investigation or Remediation commenced before the Closing Date or commences on or after the Closing Date) of any Environmental Condition or Hazardous Substances that are present or have been Released prior to, on or after the Closing Date at, on, in, under or migrating from the Assets or in the soil, surface water, sediments, groundwater, landfill cells or in other environmental media at or adjacent to the Assets;
(c) Subject to Section 6.8, all liabilities and obligations of Seller in respect of Decommissioning the Facilities, the Facilities Switchyard and the Site and the Decommissioning costs relating thereto, whether arising prior to, on or after the Closing Date (collectively, "ASSUMED DECOMMISSIONING LIABILITIES"); and
(d) Other than the liabilities and obligations of Seller in respect of Decommissioning the Facilities, the Facilities Switchyard and the Site, which are addressed in Section 2.4(c), all liabilities and obligations of Seller arising under or relating to Nuclear Laws, and all liabilities and obligations of Seller arising under or relating to Nuclear Materials or to any claim in respect thereof, whether based on Nuclear Laws, Environmental Laws, common law or otherwise (including liabilities and obligations for Department of Energy Decommissioning and Decontamination Fees due for periods following the Closing), whether such liabilities or obligations are known or unknown, contingent or accrued, in each case, arising or occurring prior to, on or after the Closing Date, including all asserted or unasserted liabilities or obligations to third parties (including employees of the Operating Agent) for personal injury or tort, or any other theory of liability, arising out of the ownership, lease, maintenance or operation of the Assets prior to, on or after the Closing Date, including liabilities and obligations arising out of or resulting from the transportation, treatment, storage or disposal of Nuclear Materials, including liabilities and obligations arising out of or resulting from a "nuclear incident" or "precautionary evacuation" (as such terms are defined in the Atomic Energy Act) at the Facilities, or any transaction contemplated by other licensed nuclear reactor site in the United States, or in the course of the transportation of Nuclear Materials to or from the Facilities, or any other such site prior to, on or after the Closing Date, including liability for all deferred premiums assessed in connection with such a nuclear incident or precautionary evacuation under any applicable NRC or industry retrospective rating plan or insurance policy, including any mutual insurance pools established in compliance with the requirements imposed under Section 170 of the Atomic Energy Act and 10 C.F.R. Part 140 or 10 C.F.R. ss. 50.54(w), including, subject to Section 3.6, all liabilities and obligations of Seller for retrospective premium obligations under the Facilities Insurance Policies (collectively, "ASSUMED NUCLEAR LIABILITIES");
(e) Any and all liabilities and obligations respecting any changes or improvements needed to the Assets, if any, for them to be in material compliance with respect to safety, building, fire, land use, access (including, without limitations, the Americans With Disabilities Act) or similar Laws respecting the physical condition of the Assets;
(f) Without limiting the representations and warranties of Seller contained herein or Purchaser's rights for a breach thereof, any and all liabilities, claims, fines, penalties and expenses not otherwise enumerated above which in any way arise out of or are related to or associated with the ownership, possession, use or operation of the Assets before or after the Closing; and
(g) All other liabilities expressly allocated to Purchaser in this Agreement and (vi) any other liabilities owed to or in the stockholders of the CompanyAncillary Agreements.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Pinnacle West Capital Corp)
Assumption of Liabilities. Notwithstanding anything to (a) At the contrary contained in this Agreement or any Company Transaction DocumentClosing, Purchaser will assume and regardless of whether such liability is disclosed in this Agreement, in any of the Transaction Documents, on any Schedule hereto or thereto or otherwise, and regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwise, the Buyer will not assume, agree to pay, perform or discharge or in any way be responsible for any debts (including interest and/or penalties thereon)perform, liabilities or obligations of as the Company or in connection with the Development Work of any kind or nature whatsoevercase may be, whether fixed or unfixedwhen due, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured (the “Excluded Liabilities”), except that the Buyer will assume at the Closing the following obligations: only (i) all obligations the executory obligations, which arise in the ordinary course of business on or after the Company Closing Date under the Assumed Contracts, if any, and those outstanding trade payables incurred thereunder by the Seller in the ordinary course of business which are reflected in the Final Working Capital Statement, and (ii) the obligations set forth Liabilities specifically identified on Schedule 1.2(ii2.3(a) hereto (collectively, the “"Assumed Liabilities”"); provided however.
(b) Notwithstanding subsection (a) above or any other provision of this Agreement, Purchaser is not assuming under this Agreement any Liability that is not specifically identified as an Assumed Liability in subsection (a) above (collectively, the "Excluded Liabilities"), including, without limitation, any liability of the following: (i) any and all Liabilities of the Seller or obligation relating to or NexCoil arising from or incurred in connection with the negotiation, preparation and execution of this Agreement and the transactions contemplated hereby; (ii) the Seller Employee Liabilities; (iii) any breachTax payable with respect to the Business, the Assets or event, circumstance other properties or condition that with notice, lapse assets of time the Seller or both would constitute or result in NexCoil for a breach, by the Company on or before period prior to the Closing Date, of including any of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting Taxes imposed upon the generality of Seller, NexCoil the foregoing, Business or the Buyer is not assuming or agreeing to pay, perform or discharge or in any way be responsible for, any Excluded Liabilities, which shall include (i) all Indebtedness (which, for the avoidance of doubt, shall include all notes and interest payable to the Company’s shareholders), (ii) all Company Taxes, (iii) all obligations and liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of Assets resulting from the transactions contemplated by this Agreement), hereby; (iv) any and all obligations and liabilities Liabilities arising on under Environmental Laws to the extent related in whole or before part to any condition in existence prior to the Closing Date, ; (v) any and all liabilities and obligations relating Liabilities with respect to worker's compensation claims, regardless of when made or asserted, related to any event, condition, fact or circumstance existing or arising, in whole or in part, on or prior to the Closing Date; (vi) any product Liability or similar claim for injury to person or property, regardless of when made or asserted, that arises out of or is based upon any express or implied representation, warranty, agreement or guarantee made by the Seller, or alleged to have been made by the Seller, or that is imposed or asserted to be imposed by operation of law in connection with any service performed or product sold or leased by or on behalf of the Seller on or prior to the Closing; (vii) Liabilities arising out of or related to any Default by the Seller of any provision of any Contract or under any Law; (viii) Liabilities of the Seller or NexCoil arising out of any transaction contemplated by this Agreement administrative sanctions and other administrative proceedings, as well as any threatened fraud and abuse proceedings respecting the Business; (ix) any Liabilities with respect to any litigation claims relating to any period prior to the Closing Date; (x) any Liabilities arising out of or related to any Employee Plans or Multiemployer Plan; (xi) any Liabilities accruing, arising out of, or relating to the ownership, conduct or operation of the Business prior to the Closing Date or the ownership or use of the Assets prior to the Closing Date; (xii) any Liability under or in connection with any Excluded Assets; and (vixiii) any other liabilities owed to the stockholders Liabilities, regardless of the Companywhen made or asserted, that are not specifically assumed by Purchaser hereunder.
Appears in 1 contract
Samples: Asset Purchase Agreement
Assumption of Liabilities. Notwithstanding anything to Upon the contrary contained in this Agreement or any Company Transaction DocumentClosing, each Purchaser will assume its respective Proportionate Share of, and regardless of whether such liability is disclosed in this Agreement, in any of the Transaction Documents, on any Schedule hereto or thereto or otherwise, and regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwise, the Buyer will not assume, agree to pay, perform or and discharge or when due (in any way be responsible for any debts (including interest and/or penalties thereonaccordance with each Purchaser's Proportionate Share), all of Seller's obligations and liabilities or obligations of the Company or in connection with the Development Work of any kind or nature whatsoeverwhatsoever related to, arising from or associated with any of the following to the extent relating to any of the Purchased Assets, except for the Excluded Liabilities (in respect of each Purchaser, as to its respective Proportionate Share, collectively, the "Assumed Liabilities"):
(a) Except for the payment obligations prorated to Seller under Section 3.4, all liabilities and obligations under all contracts, agreements, arrangements, commitments, undertakings, and licenses assigned to a Purchaser under this Agreement, including the Generation Facility Contracts and the Transferable Permits, except in each case to the extent such liabilities and obligations, but for a material breach or default by Seller or a related waiver or extension obtained by Seller, would have been paid, performed or otherwise discharged on or prior to the Closing Date or to the extent the same arise out of any such material breach or default by Seller or obtained related waiver or extension obtained by Seller; provided that, for purposes of the foregoing, no such breach, default, waiver or extension shall include or consist of any such breach, default, waiver or extension that is or has been also engaged in, obtained by or agreed to by the STP Owners in common or by the Operating Agent acting on behalf of any STP Owner, including Seller;
(b) All liabilities or obligations of Seller arising under or relating to the following: (i) the costs for corrective actions associated with any violation or alleged violation of Environmental Laws with respect to the ownership, lease, maintenance or operation of any of the Purchased Assets, on or after the Closing Date, regardless of when events giving rise to corrective action occurred; (ii) any fines or penalties arising in connection with any violation or alleged violation of Environmental Laws with respect to the ownership, lease, maintenance or operation of any of the Purchased Assets, on or after the Closing Date; (iii) loss of life, injury to Persons or property or damage to natural resources (whether or not such loss, injury or damage arose or was made manifest before the Closing Date or arises or becomes manifest on or after the Closing Date), in each case caused (or allegedly caused) by any Environmental Condition or the presence or Release of Hazardous Substances at, on, in, under, or migrating from or to any of the Purchased Assets prior to, on or after the Closing Date, including any Environmental Condition or Hazardous Substances contained in building materials at any of the Purchased Assets (or in environmental media at adjacent properties to the extent that such Hazardous Substances have migrated from the Purchased Assets) or in the soil, surface water, sediments, groundwater, landfill cells, or in other environmental media at any of the Purchased Assets (or in environmental media at adjacent properties to the extent that such Hazardous Substances have migrated from the Purchased Assets); and (iv) the investigation or Remediation (whether or not such investigation or Remediation commenced before the Closing Date or commences on or after the Closing Date) of any Environmental Condition or Hazardous Substances that are present or have been Released prior to, on or after the Closing Date at, on, in, under or migrating from or to any of the Purchased Assets or in the soil, surface water, sediments, groundwater, landfill cells or in other environmental media at the Purchased Assets (or in environmental media at adjacent properties to the extent that such Hazardous Substances have migrated from the Purchased Assets); provided that nothing set forth in this Section 2.3(b) shall require a Purchaser to assume any liabilities or obligations that are Excluded Liabilities pursuant to Section 2.4(h) or Section 2.4(i);
(c) Any liabilities or obligations of Seller in respect of Decommissioning and the Decommissioning costs related thereto, whether fixed arising prior to, on or unfixedafter the Closing Date;
(d) Subject to the proration provisions of Section 3.4, all liabilities and obligations for any Department of Energy Decommissioning and Decontamination Fees due and payable on or after the Closing Date and any additional Decommissioning and Decontamination Fees that become effective on or after the Closing Date, whether assessed with respect to any period occurring prior to, on or after the Closing Date;
(e) Other than the liabilities and obligations of Seller in respect of Decommissioning, which are addressed in Section 2.3(c) or in respect of Decommissioning and Decontamination Fees which are addressed in Section 2.3(d), all liabilities and obligations of Seller arising under or relating to Nuclear Laws, and all liabilities and obligations of Seller arising under or relating to Nuclear Materials or any claim in respect thereof, whether based on Nuclear Laws, Environmental Laws, common law or otherwise (including liabilities and obligations for Department of Energy Decommissioning and Decontamination Fees due for periods following the Closing), whether such liabilities or obligations are known or unknown, absolute contingent or contingentaccrued, asserted in each case, arising or unassertedoccurring prior to, xxxxxx on or inchoate, liquidated or unliquidated, or secured or unsecured (the “Excluded Liabilities”), except that the Buyer will assume at after the Closing the following obligations: Date, including:
(i) all asserted or unasserted liabilities or obligations to third parties (including employees of the Company under the Assumed Contracts, and (iiOperating Agent) the obligations set forth on Schedule 1.2(ii) (collectively, the “Assumed Liabilities”); provided however, that any liability for personal injury or obligation relating to or arising from any breachtort, or eventany other theory of liability, circumstance arising out of the ownership, lease, maintenance or condition that with noticeoperation of any of the Purchased Assets prior to, lapse of time or both would constitute or result in a breach, by the Company on or before after the Closing Date, of any of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting the generality of the foregoing, the Buyer is not assuming or agreeing to pay, perform or discharge or in any way be responsible for, any Excluded Liabilities, which shall include (i) all Indebtedness (which, for the avoidance of doubt, shall include all notes and interest payable to the Company’s shareholders), ;
(ii) all Company Taxes, (iii) all obligations and liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of the transactions contemplated by this Agreement), (iv) all obligations and liabilities arising on or before the Closing Date, (v) all liabilities and obligations relating to or arising out of or resulting from the transportation, treatment, storage or disposal of any transaction contemplated by Nuclear Materials; and
(iii) all liabilities and obligations arising out of or resulting from a "nuclear incident" or "precautionary evacuation" (as such terms are defined in the Atomic Energy Act) at the Generation Facility, or any other licensed nuclear reactor site in the United States, or in the course of the transportation of Nuclear Materials to or from the Generation Facility, or any other such site prior to, on or after the Closing Date, together with any and all liabilities for deferred premiums assessed in connection with such a nuclear incident or precautionary evacuation under any applicable NRC or industry retrospective rating plan or insurance policy, including any mutual insurance pools established in compliance with the requirements imposed under Section 170 of the Atomic Energy Act and 10 C.F.R. Part 140 or 10 C.F.R. Section 50.54(w) and, subject to Section 3.4, all liabilities and obligations of Seller for retrospective premium obligations under the Generation Facility Insurance Policies;
(f) Any and all liabilities and obligations respecting any changes or improvements needed to the Purchased Assets, if any, for them to be in material compliance with respect to safety, building, fire, land use, access (including the Americans With Disabilities Act) or similar Laws respecting the physical condition of the Purchased Assets;
(g) Without limiting the representations and warranties of Seller contained herein or a Purchaser's rights for a breach thereof, any and all liabilities, obligations, claims, fines, penalties and expenses not otherwise enumerated above which in any way arise out of or are related to or associated with the ownership, possession, use or operation of any of the Purchased Assets before or after the Closing, including any of the foregoing arising out of or resulting from any change in Law or decision or order of any Governmental Authority; and
(h) All other liabilities or obligations expressly allocated to a Purchaser in this Agreement and (vi) or in any other liabilities owed to the stockholders of the CompanyAncillary Agreements.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Texas Genco Holdings Inc)
Assumption of Liabilities. Notwithstanding anything to At the contrary contained in this Agreement Closing, the Buyer shall assume all liabilities of each Seller of any nature, known or any Company Transaction Documentunknown, and regardless of whether such liability is disclosed in this Agreementfixed, in any of the Transaction Documents, on any Schedule hereto or thereto contingent or otherwise, and regardless arising out of or relating primarily to the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with Business (the Buyer’s due diligence investigation of "Assumed Liabilities"). Notwithstanding the Development Work or otherwiseforegoing, the Buyer will shall not assume, agree to pay, perform or discharge or in assume any way be responsible for any debts (including interest and/or penalties thereon), liabilities or obligations of the Company or in connection with the Development Work Sellers of any kind or nature whatsoever, whether fixed or unfixednature, known or unknown, absolute fixed, contingent or contingentotherwise arising out of or relating to the following, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured (the “Excluded Liabilities”), except that the Buyer will assume at the Closing the following obligations: (i) all of which shall remain obligations of the Company Sellers (the "Excluded Liabilities"): (a) for any Taxes resulting from the conduct of the business of the Sellers on or prior to the Closing Date (b) under any Plans listed on EXHIBIT B and any Plans maintained at any time by the Stockholder for the benefit of the Sellers' employees (c) under any Contracts listed on EXHIBIT B, (d) relating to any Excluded Assets, (e) any liabilities or obligations imposed on any Seller by virtue of being a member of a group of affiliated companies that includes the Stockholder or another Affiliate thereof, including, for example, joint and several liability under the Assumed ContractsCode or ERISA, and (iif) the obligations set forth on Schedule 1.2(ii) (collectively, the “Assumed Liabilities”); provided however, that for any product liability or obligation relating to or arising claims resulting from any breach, or event, circumstance or condition that with notice, lapse of time or both would constitute or result in a breach, by the Company occurrences on or before prior to the Closing Date, Date regardless of any of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting the generality of the foregoing, the Buyer whether such claim is not assuming brought before or agreeing to pay, perform or discharge or in any way be responsible for, any Excluded Liabilities, which shall include (i) all Indebtedness (which, for the avoidance of doubt, shall include all notes and interest payable to the Company’s shareholders), (ii) all Company Taxes, (iii) all obligations and liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of the transactions contemplated by this Agreement), (iv) all obligations and liabilities arising on or before after the Closing Date, (vg) all liabilities and for any claims or obligations relating to the Proceedings listed on Part 3.13 of the Disclosure Letter, (h) resulting from any claim by a stockholder or former stockholder of any Seller, or any other Person, seeking to assert, or based upon ownership or rights of ownership of any shares of capital stock or securities of, or equity interest in, any Seller, or any rights under any Organizational Documents of any Seller, (i) costs, expenses, obligations and liabilities incurred or accrued by the Sellers in connection with this Agreement or the Contemplated Transactions but excluding any costs, expenses, obligations and liabilities arising out of the failure to obtain any transaction contemplated by this Agreement and (vi) any other liabilities owed consents or waivers with respect to Contracts to be assigned to the stockholders Buyer hereunder, (j) all indebtedness for borrowed money including without limitation the Sellers' loan agreements and subordinated debt agreements listed on Part 3.29 of the CompanyDisclosure Letter.
Appears in 1 contract
Samples: Asset Purchase Agreement (Allied Healthcare Products Inc)
Assumption of Liabilities. Notwithstanding anything The Real Property is presently encumbered by the Column Financial Deed of Trust securing a loan in the original principal amount of $12,750,000 with a principal balance of $12,661,554.14 as of June 11, 1999 (the "Existing Loan"). The Existing Loan is held presently by LaSalle National Bank, as Trustee ("Lender"). Contributor hereby represents and warrants to Company with respect to the contrary contained Existing Loan that:
(i) Subject to the terms and conditions set forth in this Agreement the Column Financial Deed of Trust, the Existing Loan is assumable with the prior written consent of Lender and the payment to Lender of an assumption fee of one percent (1%) of the then existing principal balance;
(ii) The Existing Loan is in full force and effect and there is no event of default existing thereunder or any Company Transaction Documentevent which with the passage of time or notice, or both, would constitute an event of default either by Contributor, or to the actual knowledge of Contributor, or Lender; and
(iii) As of the Closing, all payments and regardless the performance of whether such liability is disclosed in all other obligations of Contributor pursuant to the terms and provisions of the Existing Loan will be fully current. Within ten (10) days after the Effective Date, Company, with the full cooperation of Contributor, shall apply to Lender to assume the Existing Loan. Subject to the further provisions of this Agreement, in Company shall assume the Existing Loan at Closing (the "Assumption"). While not a condition to Contributor's obligations hereunder, Contributor and Company shall endeavor to secure Contributor's release from its obligations under the Existing Loan; but if Contributor is not released from its obligations under the Existing Loan pursuant to Company's assumption thereof, then Company shall defend, indemnify and hold Contributor and its partners harmless from and against any and all liability for the performance of such obligations arising from and after the Transaction DocumentsClosing. In any event, on Company shall defend, indemnify and hold Waranch harmless from and against any Schedule hereto or thereto or otherwise, and regardless of all liability for the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness performance of any liabilityenvironmental indemnity obligation or "non-recourse carve-out" guaranty obligation undertaken by Waranch, whether learned individually, in connection with the Buyer’s due diligence investigation of the Development Work or otherwiseAssumption, the Buyer will not assume, agree to pay, perform or discharge or in any way be responsible for any debts (including interest and/or penalties thereon), liabilities or obligations of the Company or in connection with the Development Work of any kind or nature whatsoever, whether fixed or unfixed, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured (the “Excluded Liabilities”), except that the Buyer will assume at the Closing the following obligations: (i) all obligations of the Company under the Assumed Contracts, and (ii) the obligations set forth on Schedule 1.2(ii) (collectively, the “Assumed Liabilities”); provided however, that any liability or obligation relating to or arising from any breach, or event, circumstance or condition that with notice, lapse of time or both would constitute or result in a breach, by the Company on or before the Closing Date, of any of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting the generality of the foregoing, the Buyer is not assuming or agreeing to pay, perform or discharge or in any way be responsible for, any Excluded Liabilities, which shall include (i) all Indebtedness (which, for the avoidance of doubt, shall include all notes and interest payable but only to the Company’s shareholders), (ii) all Company Taxes, (iii) all obligations and liabilities related to employee compensation (which for extent such performance is required because of environmental or recourse events occurring after the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of the transactions contemplated by this Agreement), (iv) all obligations and liabilities arising on or before the Closing Date, (v) all liabilities and obligations relating to or arising out of any transaction contemplated by this Agreement and (vi) any other liabilities owed to the stockholders of the CompanyClosing.
Appears in 1 contract
Samples: Contribution Agreement (Pan Pacific Retail Properties Inc)
Assumption of Liabilities. Notwithstanding anything Subject to the contrary contained in this Agreement or any Company Transaction Document, terms and regardless conditions of whether such liability is disclosed in this Agreement, on the Closing Date, Buyer shall assume as of the Closing, the following liabilities and obligations of Seller and of Banshee (collectively, the "Assumed Liabilities"):
(a) any trade payable reflected on the Closing Balance Sheet; and
(b) all of Seller's or Banshee's obligations to be performed in the ordinary course of business and consistent with past practice after the Closing Date pursuant to the express terms of the Seller Contracts included in the Assets, and bonus payments not to exceed $172,634 in the aggregate payable to Transferred Employees; it being expressly understood and agreed, however, that (i) in no event shall Buyer assume or otherwise be bound by or responsible for (x) any liability, duty or obligation of Seller or of Banshee under any Indebtedness Contract or of any Seller Contract which is in excess or more burdensome than disclosed in writing to Buyer prior to the execution hereof (which disclosure may be made by delivery to Buyer of true and complete copies of the Seller Contracts and all amendments thereto), or which is incurred by Seller or Banshee after the date hereof in violation of this Agreement; (y) any amount payable (including fines, penalties, premiums and interest) to any Person under any of the Transaction DocumentsSeller Contracts relating solely to periods on or prior to the Closing Date or to goods delivered or services rendered or performed prior to the Closing Date, unless reflected as a current liability on any Schedule hereto the Closing Balance Sheet and then only to the extent reflected on the Closing Balance Sheet, or thereto or otherwise, and regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of (z) any liability, whether learned duty or obligation arising out of a breach, violation or default by Seller or Banshee of or under, or any failure of the Business or the Assets to be in connection compliance with the Buyer’s due diligence investigation of requirements of, any Seller Contract, prior to the Development Work or otherwise, the Buyer will not assume, agree to pay, perform or discharge or in any way be responsible for any debts Closing Date (including interest and/or penalties thereon)any event, liabilities fact or obligations circumstance existing or occurring as of or prior to the Company or in connection Closing that, with the Development Work passage of any kind time or nature whatsoever, whether fixed or unfixed, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidatedthe giving of notice, or secured both, may become such a breach, violation, default or unsecured (the “Excluded Liabilities”failure to comply), except that the Buyer will assume at the Closing the following obligations: (i) all obligations of the Company under the Assumed Contracts, ; and (ii) the Buyer may elect not to assume Seller's or Banshee's obligations set forth on Schedule 1.2(ii) (collectively, the “Assumed Liabilities”); provided however, that under any liability Seller Contract which can be terminated without penalty or obligation relating cost to Seller or Banshee prior to or arising from any breach, or event, circumstance or condition that with notice, lapse of time or both would constitute or result in a breach, by the Company on or before the Closing Date, of any of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting the generality as of the foregoingClosing, the provided Buyer is gives Seller written notice as provided below and cooperates with Seller as may be reasonably required to effect such termination, and further provided that all parties to such Seller Contract consent to such termination in writing. Any election of Buyer not assuming or agreeing to pay, perform or discharge or in assume any way be responsible for, any Excluded Liabilities, which shall include (i) all Indebtedness (which, for the avoidance of doubt, shall include all notes and interest payable Seller Contract pursuant to the Company’s shareholders), clause (ii) all Company Taxes, (iii) all obligations and liabilities related of this Section 2.3 shall be made by written notice to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of the transactions contemplated by this Agreement), (iv) all obligations and liabilities arising on or before the Closing Date, (v) all liabilities and obligations relating to or arising out of any transaction contemplated by this Agreement and (vi) any other liabilities owed Seller at least 2 days prior to the stockholders of the CompanyClosing.
Appears in 1 contract
Assumption of Liabilities. Notwithstanding anything (a) Upon the terms and subject to the contrary contained in this Agreement or any Company Transaction Document, and regardless conditions of whether such liability is disclosed in this Agreement, in any Purchaser shall irrevocably assume, effective as of the Transaction Documents, on any Schedule hereto or thereto or otherwiseClosing, and regardless of from and after the Buyer’s or any of its directors’Closing, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwise, the Buyer will not assume, agree to Purchaser shall pay, perform or and discharge or in any way be responsible for any debts (including interest and/or penalties thereon), liabilities or obligations of the Company or in connection with the Development Work of any kind or nature whatsoever, whether fixed or unfixed, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured (the “Excluded Liabilities”), except that the Buyer will assume at the Closing when due the following obligations: (i) all obligations , liabilities and commitments of the Company under the Assumed Contracts, and (ii) the obligations set forth on Schedule 1.2(ii) Seller or of any Seller Subsidiary of any nature (collectively, the “Assumed Liabilities”); provided however, that any liability whether known or obligation unknown, express or implied, primary or secondary, direct or indirect, liquidated, absolute, accrued, contingent or otherwise whether due or to become due:
(i) all obligations, liabilities and commitments arising out of, relating to or arising from otherwise in any breachway in respect of any of the Transferred Assets, Transferred Permits or event, circumstance the operation or condition that with notice, lapse conduct of time the Business by Purchaser or both would constitute or result in a breach, by the Company its affiliates on or before after the Closing Date;
(ii) all obligations, liabilities and commitments arising out of, relating to or otherwise in any way in respect of any suit, action or proceeding (a “Proceeding”) and any Claims, in each case arising out of the operation or conduct of the Business by Purchaser or its affiliates on or after the Closing Date;
(iii) all obligations, liabilities and commitments assumed by Purchaser pursuant to Article VI;
(iv) (A) all obligations, liabilities and commitments arising out of, relating to or otherwise in any way in respect of any and all products manufactured or sold by Purchaser or its affiliates on or after the Closing Date, including obligations, liabilities and commitments for refunds, adjustments, allowances, repairs, exchanges, returns and warranty, product liability, merchantability and other Claims relating to such products, and (B) all service obligations and warranty obligations of Seller or any Seller Subsidiary to repair or replace defective goods or services sold by the Business under the terms of any of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting the generality of the foregoingwritten contract, the Buyer is not assuming commitment or agreeing to pay, perform or discharge or in any way be responsible for, any Excluded Liabilities, which shall include (i) all Indebtedness (which, for the avoidance of doubt, shall include all notes and interest payable to the Company’s shareholders), (ii) all Company Taxes, (iii) all obligations and liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined sale transaction entered into in the Treas. Reg. §54.4980B-9 ordinary course of business and workers’ compensation claimsrelating to products shipped or services performed not more than six (6) as a result of the consummation of the transactions contemplated by this Agreement), (iv) all obligations and liabilities arising on or before months prior to the Closing Date; provided that Purchaser assumes no obligation of Seller or any Seller Subsidiary for incidental or consequential damages or for any personal injury, or for infringement of Intellectual Property, the sole obligation of Purchaser hereunder being the obligation to repair or replace defective goods or services;
(v) all obligations, liabilities and obligations commitments arising out of, relating to or otherwise in any way in respect of being the owner, lessee or occupant of, or the operator of the activities conducted at, the Transferred Real Property on or after the Closing Date except for such obligations, liabilities and commitments constituting Retained Liabilities;
(vi) all liabilities, obligations and commitments for (A) Taxes arising out of or relating to or in respect of the Business or the Transferred Assets for any transaction contemplated by Post-Closing Tax Period (as defined in Section 10.06(b)), including the Post-Closing Tax Period of a Straddle Period (as defined in Section 10.06(b)), and (B) Transfer Taxes (collectively, the “Assumed Tax Liabilities”);
(vii) all obligations, liabilities and commitments under Environmental Laws and Environmental Permits arising out of the conduct of the Business after the Closing Date or conditions related to the Transferred Assets where such conditions first come into existence after Closing or to the extent any pre-Closing conditions are exacerbated after Closing; and
(viii) all obligations, liabilities and commitments with respect to the Business Employees (as defined in Section 3.12(a)) that (A) Purchaser has specifically agreed to assume pursuant to Article VI or (B) that transfer automatically to Purchaser or its affiliates under Applicable Law (collectively, the “Covered Employee Liabilities”).
(b) Notwithstanding any other provision of this Agreement and (vi) any other liabilities owed to the stockholders contrary, Purchaser shall not assume any Retained Liabilities, each of the Company.which shall be retained and shall be paid, performed and discharged when due by Seller or a Seller Subsidiary, as applicable. The term “Retained Liabilities” means:
Appears in 1 contract
Assumption of Liabilities. Notwithstanding anything any contrary provision contained herein, the Purchaser shall not be deemed to have assumed, nor shall the contrary contained in this Agreement Purchaser assume, any contract, lease, liability, performance or any Company Transaction Document, and regardless obligation of whether such the Sellers unless specifically referenced as an assumed liability is disclosed in by the express terms of this Agreement, in any of the Transaction Documentsincluding, on any Schedule hereto or thereto or otherwise, and regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwise, the Buyer will but not assume, agree to pay, perform or discharge or in any way be responsible for any debts (including interest and/or penalties thereon), liabilities or obligations of the Company or in connection with the Development Work of any kind or nature whatsoever, whether fixed or unfixed, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured (the “Excluded Liabilities”), except that the Buyer will assume at the Closing the following obligationslimited to: (i) all any liability which may be incurred by reason of any breach of or default under such contracts, leases, commitments or obligations which occurred prior to the close of business on the Company under the Assumed Contracts, and Closing Date; (ii) the obligations set forth on Schedule 1.2(ii) (collectively, the “Assumed Liabilities”); provided however, that any liability or obligation relating of the Sellers which pertains exclusively to assets of the Sellers not transferred to the Purchaser hereunder; (iii) any liability based upon or arising from out of a violation of any breach, antitrust or event, circumstance similar restraint-of-trade laws by any Seller at or condition that with notice, lapse prior to the close of time or both would constitute or result in a breach, by the Company business on or before the Closing Date, of any of its obligations under an Assumed Contract shall be an Excluded Liability. Without including, without limiting the generality of the foregoing, the Buyer is not assuming any such antitrust liability which may arise in connection with agreements, contracts, commitments or agreeing to pay, perform or discharge or in any way be responsible for, any Excluded Liabilities, which shall include (i) all Indebtedness (which, orders for the avoidance sale of doubt, shall include all notes and interest payable goods or provision of services by any Seller reflected on the books of any Seller at or prior to the Company’s shareholders), close of business on the Closing Date; (iiiv) all Company Taxes, any liability based upon or arising out of any tortious actions of any Seller or any agent of the Sellers; (iiiv) all obligations and liabilities related to employee compensation (which any liability for the avoidance payment of doubt shall include payroll and accrued vacation expenses) and employee benefit plans any taxes imposed by law on any Seller arising from or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation by reason of the transactions contemplated by this Agreement), (iv) all obligations and liabilities arising on or before the Closing Date, (v) all liabilities and obligations relating to or arising out of any transaction contemplated by this Agreement and ; (vi) any other liabilities owed liability imposed by any federal, state or local governmental or regulatory agency or authority by reason of events that have occurred prior to the stockholders close of business on the Closing Date; (vii) any liability or obligation in respect of any tax of any kind including sales, use or excise taxes, income taxes, taxes based on or measured by income or franchise taxes attributable to periods or events prior to or ending on the close of business on the Closing Date; (viii) any liability or obligation of any Business with respect to any taxes, legal, accounting, brokerage or finder's fees or other expenses of whatever kind or nature incurred by or on behalf of any Seller, or any Affiliate, stockholder, director, employee or officer of any Seller incurred in connection with the transaction or performances contemplated by this Agreement; (ix) breach or default of any obligation under any Employee Benefit Plan of any Seller; (x) any liability with respect to the accounts receivable of any Seller including, but not limited to, refund of overpayments, escheat liability, or credit balances on account of overpayments to any Seller; (xi) any employment contract; (xii) any obligation of USD or the Sellers under any contracts for equipment services and supplies that relate to all centers owned directly or indirectly by USD other than obligations which related to service or supplies within the 30 day period following the Closing Date; or (xiii) any liability which does not relate in any way to the ownership, management, or operation of the Company.Businesses. Except as limited by the
Appears in 1 contract
Assumption of Liabilities. Notwithstanding anything to Upon the contrary contained in this Agreement or any Company Transaction DocumentClosing, each Purchaser will assume its respective Proportionate Share of, and regardless of whether such liability is disclosed in this Agreement, in any of the Transaction Documents, on any Schedule hereto or thereto or otherwise, and regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwise, the Buyer will not assume, agree to pay, perform or and discharge or when due (in any way be responsible for any debts (including interest and/or penalties thereonaccordance with each Purchaser's Proportionate Share), all of Seller's obligations and liabilities or obligations of the Company or in connection with the Development Work of any kind or nature whatsoeverwhatsoever related to, arising from or associated with any of the following to the extent relating to any of the Purchased Assets, except for the Excluded Liabilities (in respect of each Purchaser, as to its respective Proportionate Share, collectively, the "Assumed Liabilities"):
(a) Except for the payment obligations prorated to Seller under Section 3.4, all liabilities and obligations under all contracts, agreements, arrangements, commitments, undertakings, and licenses assigned to a Purchaser under this Agreement, including the Generation Facility Contracts and the Transferable Permits, except in each case to the extent such liabilities and obligations, but for a material breach or default by Seller or a related waiver or extension obtained by Seller, would have been paid, performed or otherwise discharged on or prior to the Closing Date or to the extent the same arise out of any such material breach or default by Seller or obtained related waiver or extension obtained by Seller; provided that, for purposes of the foregoing, no such breach, default, waiver or extension shall include or consist of any such breach, default, waiver or extension that is or has been also engaged in, obtained by or agreed to by the STP Owners in common or by the Operating Agent acting on behalf of any STP Owner, including Seller;
(b) All liabilities or obligations of Seller arising under or relating to the following: (i) the costs for corrective actions associated with any violation or alleged violation of Environmental Laws with respect to the ownership, lease, maintenance or operation of any of the Purchased Assets, on or after the Closing Date, regardless of when events giving rise to corrective action occurred; (ii) any fines or penalties arising in connection with any violation or alleged violation of Environmental Laws with respect to the ownership, lease, maintenance or operation of any of the Purchased Assets, on or after the Closing Date; (iii) loss of life, injury to Persons or property or damage to natural resources (whether or not such loss, injury or damage arose or was made manifest before the Closing Date or arises or becomes manifest on or after the Closing Date), in each case caused (or allegedly caused) by any Environmental Condition or the presence or Release of Hazardous Substances at, on, in, under, or migrating from or to any of the Purchased Assets prior to, on or after the Closing Date, including any Environmental Condition or Hazardous Substances contained in building materials at any of the Purchased Assets (or in environmental media at adjacent properties to the extent that such Hazardous Substances have migrated from the Purchased Assets) or in the soil, surface water, sediments, groundwater, landfill cells, or in other environmental media at any of the Purchased Assets (or in environmental media at adjacent properties to the extent that such Hazardous Substances have migrated from the Purchased Assets); and (iv) the investigation or Remediation (whether or not such investigation or Remediation commenced before the Closing Date or commences on or after the Closing Date) of any Environmental Condition or Hazardous Substances that are present or have been Released prior to, on or after the Closing Date at, on, in, under or migrating from or to any of the Purchased Assets or in the soil, surface water, sediments, groundwater, landfill cells or in other environmental media at the Purchased Assets (or in environmental media at adjacent properties to the extent that such Hazardous Substances have migrated from the Purchased Assets); provided that nothing set forth in this Section 2.3(b) shall require a Purchaser to assume any liabilities or obligations that are Excluded Liabilities pursuant to Section 2.4(h) or Section 2.4(i);
(c) Any liabilities or obligations of Seller in respect of Decommissioning and the Decommissioning costs related thereto, whether fixed arising prior to, on or unfixedafter the Closing Date;
(d) Subject to the proration provisions of Section 3.4, all liabilities and obligations for any Department of Energy Decommissioning and Decontamination Fees due and payable on or after the Closing Date and any additional Decommissioning and Decontamination Fees that become effective on or after the Closing Date, whether assessed with respect to any period occurring prior to, on or after the Closing Date;
(e) Other than the liabilities and obligations of Seller in respect of Decommissioning, which are addressed in Section 2.3(c) or in respect of Decommissioning and Decontamination Fees which are addressed in Section 2.3(d), all liabilities and obligations of Seller arising under or relating to Nuclear Laws, and all liabilities and obligations of Seller arising under or relating to Nuclear Materials or any claim in respect thereof, whether based on Nuclear Laws, Environmental Laws, common law or otherwise (including liabilities and obligations for Department of Energy Decommissioning and Decontamination Fees due for periods following the Closing), whether such liabilities or obligations are known or unknown, absolute contingent or contingentaccrued, asserted in each case, arising or unassertedoccurring prior to, xxxxxx on or inchoate, liquidated or unliquidated, or secured or unsecured (the “Excluded Liabilities”), except that the Buyer will assume at after the Closing the following obligations: Date, including:
(i) all asserted or unasserted liabilities or obligations to third parties (including employees of the Company under the Assumed Contracts, and (iiOperating Agent) the obligations set forth on Schedule 1.2(ii) (collectively, the “Assumed Liabilities”); provided however, that any liability for personal injury or obligation relating to or arising from any breachtort, or eventany other theory of liability, circumstance arising out of the ownership, lease, maintenance or condition that with noticeoperation of any of the Purchased Assets prior to, lapse of time or both would constitute or result in a breach, by the Company on or before after the Closing Date, of any of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting the generality of the foregoing, the Buyer is not assuming or agreeing to pay, perform or discharge or in any way be responsible for, any Excluded Liabilities, which shall include (i) all Indebtedness (which, for the avoidance of doubt, shall include all notes and interest payable to the Company’s shareholders), ;
(ii) all Company Taxes, (iii) all obligations and liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of the transactions contemplated by this Agreement), (iv) all obligations and liabilities arising on or before the Closing Date, (v) all liabilities and obligations relating to or arising out of or resulting from the transportation, treatment, storage or disposal of any transaction contemplated by Nuclear Materials; and
(iii) all liabilities and obligations arising out of or resulting from a "nuclear incident" or "precautionary evacuation" (as such terms are defined in the Atomic Energy Act) at the Generation Facility, or any other licensed nuclear reactor site in the United States, or in the course of the transportation of Nuclear Materials to or from the Generation Facility, or any other such site prior to, on or after the Closing Date, together with any and all liabilities for deferred premiums assessed in connection with such a nuclear incident or precautionary evacuation under any applicable NRC or industry retrospective rating plan or insurance policy, including any mutual insurance pools established in compliance with the requirements imposed under Section 170 of the Atomic Energy Act and 10 C.F.R. Part 140 or 10 C.F.R. ss. 50.54(w) and, subject to Section 3.4, all liabilities and obligations of Seller for retrospective premium obligations under the Generation Facility Insurance Policies;
(f) Any and all liabilities and obligations respecting any changes or improvements needed to the Purchased Assets, if any, for them to be in material compliance with respect to safety, building, fire, land use, access (including the Americans With Disabilities Act) or similar Laws respecting the physical condition of the Purchased Assets;
(g) Without limiting the representations and warranties of Seller contained herein or a Purchaser's rights for a breach thereof, any and all liabilities, obligations, claims, fines, penalties and expenses not otherwise enumerated above which in any way arise out of or are related to or associated with the ownership, possession, use or operation of any of the Purchased Assets before or after the Closing, including any of the foregoing arising out of or resulting from any change in Law or decision or order of any Governmental Authority; and
(h) All other liabilities or obligations expressly allocated to a Purchaser in this Agreement and (vi) or in any other liabilities owed to the stockholders of the CompanyAncillary Agreements.
Appears in 1 contract
Assumption of Liabilities. Notwithstanding anything Other than the Assumed Liabilities set forth on Schedule A, which shall be assumed by KII at closing pursuant to an Assignment, Bxxx of Sale and Assumption Agreement in substantially the contrary contained in this Agreement or any Company Transaction Documentform of Exhibit A annexed hereto, and regardless of whether such liability is disclosed in this Agreement, in any of the Transaction Documents, on any Schedule hereto or thereto or otherwise, and regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwise, the Buyer will KII shall not assume, agree pay or discharge, and shall not be liable for, and Seller, Representing Party and LD shall, jointly but not severally, discharge, indemnify and hold YGYI, KII and each of their Affiliates (and their respective officers and directors) harmless, in accordance with the provisions of, and subject to paythe conditions and limitations set forth in, perform Article IX hereof, from and against, any liability (actual or discharge or in any way be responsible for any debts (including interest and/or penalties thereoncontingent), liabilities loss, commitment, obligation or obligations expense of Seller, LD or the Company Representing Party:
(a) incident to, or arising out of, the negotiation and preparation of, or the performance of any Seller, LD or the Representing Party under this Agreement;
(b) incident to, or arising out of, any claims, actions, suits, proceedings, liabilities, fines, penalties, deficiencies or judgments existing on the Closing Date or arising at any time thereafter as a result of or in connection with the Development Work conduct of the business of the Seller, INXL or INXH prior to Closing Date, including, without limitation, the ownership or use of the Assets, INXL Assets or INXH’s Assets by Seller, LD or the Representing Party, and Seller’s and the Representing Party’ conduct of the Seller’s business up to and including the Closing Date and LD’s and the Representing Party’s conduct of INXL’s and INXH’s business up to and including the Closing Date;
(c) incident to, or arising out of, any tax liabilities (or penalties or interest thereon) or regulatory liabilities (or fines or penalties), of any kind nature whatsoever of any of Seller, LD, the Represnting Party INXL or nature whatsoeverINXH whether on account of this Agreement or otherwise, whether fixed or unfixedincluding, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured (the “Excluded Liabilities”), except that the Buyer will assume at the Closing the following obligations: without limitation; (i) all obligations of the Company under the Assumed Contracts, and (ii) the obligations set forth on Schedule 1.2(ii) (collectively, the “Assumed Liabilities”); provided however, that any liability or obligation relating to or arising from any breach, or event, circumstance or condition that with notice, lapse of time or both would constitute or result in a breach, by the Company on or before the Closing Date, of any of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting the generality of the foregoing, the Buyer is not assuming or agreeing to pay, perform or discharge or in any way be responsible for, any Excluded Liabilities, which shall include (i) all Indebtedness (which, for the avoidance of doubt, shall include all notes and interest payable to the Company’s shareholders), (ii) all Company Taxes, (iii) all obligations and liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) may arise as a result of the consummation sale of the transactions Assets or equity of INXLas contemplated by this Agreement), ; or (ivii) all obligations and liabilities arising on relating to the operations of such Seller prior to or before after the Closing Date;
(d) incident to, (v) all liabilities and obligations relating to or arising out of of, any transaction contemplated by this Agreement and (vi) any other liabilities owed with respect to the stockholders conduct of the Companybusiness of Seller INXL or INXH up to and including the Closing Date; and
(e) incident to, or arising out of, any liabilities of Seller INXL or INXH not reflected in the Balance Sheet or Seller’s , Representing Party’s or LD’s Schedules.
Appears in 1 contract
Samples: Asset and Equity Purchase Agreement (Youngevity International, Inc.)
Assumption of Liabilities. Notwithstanding anything Upon the terms and subject to the contrary conditions contained herein:
(a) At the Final Closing, the Company shall assume and thereafter pay, discharge, perform or otherwise satisfy in this Agreement or any Company Transaction Documentaccordance with their respective terms and be responsible for the liabilities and obligations of the Sellers listed on Schedule 2.3 hereto (the "Assumed Liabilities"). Each of the Sellers shall remain liable for, and regardless hold the Company harmless against, all of whether such liability is disclosed in this Agreementtheir respective liabilities other than the Assumed Liabilities and for the other liabilities indemnified herein (e.g. liabilities under the Sony Agreement arising prior to the Final Closing or under the Network Production Agreement even though assumed by Buyers). Except for the Assumed Liabilities, in the Company does not assume and shall not be liable or responsible for any liabilities or obligations of the Transaction Documents, on any Schedule hereto or thereto or otherwise, and regardless of the Buyer’s either Seller or any of its directors’predecessors, officers’constituent partners, employees’ joint venturers, Related Persons or agents’ knowledge or awareness of any liabilityAffiliates, whether learned now or hereafter due, including liabilities or obligations incurred in connection with the Buyer’s due diligence investigation of the Development Work or otherwisewith, the Buyer will not assume, agree to pay, perform or discharge or in any way be responsible for any debts (including interest and/or penalties thereon)arising out of, liabilities or obligations related to, the execution of this Agreement, the purchase of the Company or in connection with the Development Work of any kind or nature whatsoever, whether fixed or unfixed, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured (the “Excluded Liabilities”), except that the Buyer will assume at the Closing the following obligations: (i) all obligations of the Company under the Assumed Contracts, and (ii) the obligations set forth on Schedule 1.2(ii) (collectivelyBusiness, the “Assumed Liabilities”); provided however, that any liability ownership or obligation relating to or arising from any breach, or event, circumstance or condition that with notice, lapse of time or both would constitute or result in a breach, by the Company on or before the Closing Date, use of any of its obligations under an the Assets or the conduct of the Business prior to the Final Closing (the "Non-Assumed Contract shall be an Excluded Liability. Liabilities").
(b) Without limiting the generality of the foregoingforegoing clause (a), except for the Assumed Liabilities, the Buyer is Company expressly shall not assuming assume any liabilities or agreeing to payobligations of Sellers, perform or discharge any of their respective predecessors, constituent partners, Related Persons or in any way be responsible for, any Excluded Liabilities, Affiliates for the following (which shall include be part of the Non-Assumed Liabilities): (i) all Indebtedness (whichfor any liability or obligation arising out of or relating to any claims, for the avoidance of doubtcontroversies, shall include all notes and interest payable litigation or administrative proceedings whether pending, threatened or existing on or prior to the Company’s shareholders), Final Closing Date or based on facts existing on or prior to the Final Closing Date; (ii) all Company Taxesfor any liability or obligation with respect to any employee, consultant or contractor or former employee, consultant or contractor (iii) all obligations and liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans including without limitation any performer, actor, musician, host, writer, director, producer or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined other person employed in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result Exploitation of the consummation of the transactions contemplated by this Agreementany Library Right or Library Tangible Asset), (iv) all obligations and liabilities arising on or before the Closing Date, (v) all liabilities and obligations relating to or arising out of employment with or engagement by either Seller, or any transaction contemplated by this Agreement and of their respective predecessors, constituent partners, Related Persons or Affiliates whether pursuant to the terms of any contract, agreement, commitment, undertaking, benefit plan or other arrangement or otherwise; (viiii) any other liabilities owed liability of either Seller to any of their predecessors, constituent partners, Related Persons or Affiliates; or (iv) for any liability or obligation with respect to any environmental damage or any violation or alleged violation of any real estate lease or for any environmental law relating to the stockholders of Assets to the Company.extent that the foregoing is associated with
Appears in 1 contract
Samples: Asset Purchase Agreement (All American Communications Inc)
Assumption of Liabilities. Notwithstanding anything Upon the terms and subject to the contrary contained conditions set forth in this Agreement Agreement, at the Closing, the Buyer shall assume and timely satisfy and discharge all Liabilities of the Seller and its Affiliates under, or any Company Transaction Documentin respect of or relating, to the Acquired Assets or the Product to the extent that they:
(a) arise out of or relate to the Buyer’s or its Affiliates’ ownership, operation, development, commercialization, manufacturing, packaging, importing, marketing, distribution, supply or sale of the Product or the Product Business or use of the Acquired Assets from and after the Closing (even if ordered prior to the Closing) and regardless of whether such Liabilities are based on allegations of the design or development of the Product or the Acquired Assets before Closing;
(b) arise out of or relate to Legal Proceedings, regardless of when such Legal Proceeding was commenced or made, and irrespective of the legal theory asserted (including product liability is disclosed claims, including claims alleging defects in this Agreementthe Product and claims involving the death of or injury to any individual relating to the Product), to the extent arising from the development, commercialization, manufacturing, packaging, importing, marketing, distribution or sale of any unit of the Product or the use of the Acquired Assets (even if ordered prior to Closing), in any each case, by or on behalf of the Transaction DocumentsBuyer or its Affiliates from and after the Closing, on including all Legal Proceedings relating to the alleged infringement or misappropriation by the Buyer of any Schedule hereto third party intellectual property rights for the development, commercialization, manufacture, packaging, import, marketing, distribution, sale or thereto or otherwiseuse of the Product from and after Closing, and in each case, regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation such Liabilities are based on allegations of the Development Work design or otherwise, the Buyer will not assume, agree to pay, perform or discharge or in any way be responsible for any debts (including interest and/or penalties thereon), liabilities or obligations development of the Company Product or in connection with the Development Work of any kind or nature whatsoever, whether fixed or unfixed, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured Acquired Assets before Closing;
(the “Excluded Liabilities”), except that the Buyer will assume at the Closing the following obligations: (ic) all obligations of the Company arise under the Assumed ContractsCommercial Contracts from and after the Closing, and except as such Liabilities relate to a breach of such Assumed Commercial Contracts by Seller that occurred on or before the Closing (iiwhich are Excluded Liabilities); or
(d) arise or are expressly assumed or borne by the obligations set forth on Schedule 1.2(ii) Buyer pursuant to the terms of this Agreement or any Ancillary Documents [***] (collectively, the “Assumed Liabilities”); provided however, that any liability or obligation relating to or arising from any breach, or event, circumstance or condition that with notice, lapse . For purposes of time or both would constitute or result in a breach, by the Company on or before the Closing Date, of any of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting the generality of the foregoingthis Agreement, the Buyer is not assuming or agreeing to pay, perform or discharge or in any way be responsible for, any Excluded term “Liabilities, which shall include (i) all Indebtedness (which, for the avoidance of doubt, shall include all notes and interest payable to the Company’s shareholders), (ii) all Company Taxes, (iii) all obligations and liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of the transactions contemplated by this Agreement), (iv) all obligations and liabilities arising on or before the Closing Date, (v) means all liabilities and obligations relating of every kind, nature, character and description (whether known or unknown, whether accrued or fixed, whether absolute, contingent or otherwise, whether liquidated or unliquidated, whether asserted or unasserted, matured or unmatured and whether due or to or arising out of any transaction contemplated by this Agreement and (vi) any other liabilities owed to the stockholders of the Companybecome due).
Appears in 1 contract
Assumption of Liabilities. Notwithstanding anything (a) Upon the terms and subject to the contrary contained in this Agreement or any Company Transaction Document, and regardless conditions of whether such liability is disclosed in this Agreement, on the Closing Date, Buyer shall deliver to Seller an undertaking and assumption, in any the form of the Transaction DocumentsExhibit A, on any Schedule hereto or thereto or otherwisepursuant to which Buyer shall assume and be obligated for, and regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwise, the Buyer will not assume, shall agree to pay, perform and discharge in accordance with their terms, the following obligations and liabilities of Seller or discharge Option Party (except to the extent such obligations and liabilities constitute Excluded Liabilities):
(i) all liabilities of Seller or Option Party to the extent reflected or reserved against on the Closing Date Balance Sheet and included in “Current Liabilities” in the calculation of the Closing Date Working Capital Amount or Closing Date Working Capital Deficit, as the case may be;
(ii) all liabilities and obligations related to, associated with or arising out of (A) the occupancy, operation, use or control of any of the Real Property listed or described in Schedules 3.10(a) or 3.10(b) applicable to the Station on or after the Closing Date or (B) the operation of the Business on or after the Closing Date, in each case incurred or imposed as a requirement of any Environmental Law, including, without limitation, any Release or storage of any Contaminants on, at or from (1) any real property owned, leased, or operated in connection with the Business after the Closing Date (including, without limitation, all facilities, improvements, structures and equipment thereon, surface water thereon or adjacent thereto and soil or groundwater thereunder) or any conditions whatsoever on, under or in such real property or (2) any way real property or facility owned by a third Person at which Contaminants generated by the Business were sent on or after the Closing Date;
(iii) all liabilities and obligations of Seller or Option Party to the extent arising on or after the Closing Date under (A) the Station Agreements and other agreements included as Purchased Assets and (B) the leases, contracts and other agreements entered into by Seller or Option Party, as applicable, with respect to the Business after the date hereof consistent with the terms of Section 5.4 of this Agreement, except, in each case, (i) to the extent such liabilities and obligations, but for a breach or default by Seller or Option Party, as applicable, would have been paid, performed or otherwise discharged on or prior to the Closing Date or to the extent the same arise out of any such breach or default or (ii) to the extent such liabilities would be responsible for the account of Seller or Option Party, as applicable, pursuant to Section 2.5(b);
(iv) all liabilities for Taxes that are the responsibility of Buyer pursuant to Section 6.1 hereof; and
(v) for the avoidance of doubt, all liabilities and obligations of Buyer pursuant to Section 6.2 hereof. All of the foregoing to be assumed by Buyer hereunder (including the Option Liabilities which Buyer has the right to assume pursuant to the Option Exercise Agreement) are referred to herein as the “Assumed Liabilities.”
(b) Buyer shall not assume or be obligated for any debts (including interest and/or penalties thereon)of, and Seller and Option Party, pursuant to the terms of the Option Exercise Agreement, as applicable, shall solely retain, pay, perform, defend and discharge all of, its liabilities or obligations of the Company or in connection with the Development Work of any and every kind or nature whatsoever, whether fixed direct or unfixedindirect, known or unknown, absolute or contingent, asserted not expressly assumed by Buyer under Section 2.3(a) and, notwithstanding anything to the contrary in Section 2.3(a), none of the following (whether or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured not included in Option Liabilities) (the herein referred to as “Excluded Liabilities”), except that the Buyer will assume at the Closing the following obligations: ) shall be “Assumed Liabilities” for purposes of this Agreement:
(i) all obligations any foreign, federal, state, county or local income Taxes which arise from the operation of the Company under Station or the Assumed Contracts, and Business or the ownership of the Purchased Assets prior to the Closing Date;
(ii) the obligations set forth on Schedule 1.2(ii) (collectively, the “Assumed Liabilities”); provided however, that any liability or obligation relating to of Seller or Option Party, as applicable, in respect of indebtedness for borrowed money or any intercompany payable of Seller or Option Party, as applicable, or any of its Affiliates;
(iii) all liabilities and obligations related to, associated with or arising from out of (A) the occupancy, operation, use or control of any breach, of the Real Property listed or event, circumstance described in Schedules 3.10(a) or condition that with notice, lapse 3.10(b) prior to the Closing Date or (B) the operation of time or both would constitute or result in a breach, by the Company on or before Business prior to the Closing Date, in each case incurred or imposed under Environmental Laws existing prior to the Closing Date, including, without limitation, (1) any Release or storage of any of its obligations Contaminants prior to the Closing Date on, at or from any such Real Property (including, without limitation, all facilities, improvements, structures and equipment thereon, surface water thereon or adjacent thereto and soil or groundwater thereunder), (2) any conditions on, under an Assumed Contract shall be an Excluded Liability. Without limiting or in such Real Property existing prior to the generality of the foregoingClosing Date that require Remedial Action under Environmental Laws, the Buyer is not assuming or agreeing to pay(3) any conditions on, perform or discharge under or in any way be responsible for, any Excluded Liabilities, real property or facility owned by a third party at which shall include Contaminants generated by the Business were sent prior to the Closing Date;
(iiv) all Indebtedness (whichliabilities of Seller or Option Party, for the avoidance of doubtas applicable, shall include all notes and interest payable Parent to the Company’s shareholdersextent arising prior to the Closing Date in connection with the ownership or operation of the Purchased Assets or the Business, other than current liabilities of Seller or Option Party, as applicable, to the extent reflected or reserved against on the Closing Date Balance Sheet and included in “Current Liabilities” in the calculation of the Closing Date Working Capital Amount or Closing Date Working Capital Deficit, as the case may be;
(v) any liabilities or obligations, whenever arising, related to, associated with or arising out of the Excluded Assets;
(vi) any liabilities or obligations, whenever arising, related to, associated with or arising out of the employee benefit agreements, plans or arrangements of Seller, Belo, Parent, Sander, Option Party or any of their Affiliates (including, without limitation, all Employee Plans), ;
(iivii) all Company Taxes, (iii) all obligations and liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or severance obligations of Seller, Belo, Parent, Sander, Option Party or any of their Affiliates, if any, to former employees of Seller or Option Party, as applicable, arising prior to the Company (which, for Closing Date or employees of Seller or Option Party arising out of Seller’s or Option Party’s termination of the avoidance employment of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined employees on the Closing Date in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of connection with the consummation of the transactions contemplated by this Agreementhereby and Buyer’s offer of employment to the Affected Employees as contemplated in Section 6.2(a), other than the obligations of Buyer pursuant to Section 6.2(b), Section 6.2(h) and Section 6.2(i);
(ivviii) all any intercompany liabilities or obligations due from Seller or Option Party, as applicable, to any of its Affiliates;
(ix) any costs and liabilities arising on expenses incurred by Seller, Option Party or before the Closing Date, (v) all liabilities Parent incident to its negotiation and obligations relating to or arising out preparation of any transaction contemplated by this Agreement or the Ancillary Agreements and its performance and compliance with the agreements and conditions contained herein or therein; and
(vix) any other of Seller’s or Parent’s or Option Party’s liabilities owed to or obligations under this Agreement or the stockholders of the CompanyAncillary Agreements.
Appears in 1 contract
Assumption of Liabilities. (a) On the Closing Date, Purchaser shall assume only the liabilities of Seller listed on Exhibit 1.3 and shall cause all such assumed liabilities to be discharged when due. (b) Notwithstanding anything in this Agreement to the contrary contained contrary, Purchaser shall not assume, or in any way be liable or responsible for, any liabilities or obligations of Seller except as specifically provided in Exhibit 1.3 and except as otherwise provided in this Agreement or any Company Transaction Document, and regardless of whether such liability is disclosed in this Agreement, in any of the Transaction Documents, on any Schedule hereto other instrument or thereto or otherwise, and regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned agreement executed in connection with the Buyer’s due diligence investigation of the Development Work or otherwise, the Buyer will not assume, agree to pay, perform or discharge or in any way be responsible for any debts (including interest and/or penalties thereon), liabilities or obligations of the Company or in connection with the Development Work of any kind or nature whatsoever, whether fixed or unfixed, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured (the “Excluded Liabilities”), except that the Buyer will assume at the Closing the following obligations: (i) all obligations of the Company transactions contemplated under the Assumed Contracts, and (ii) the obligations set forth on Schedule 1.2(ii) (collectively, the “Assumed Liabilities”); provided however, that any liability or obligation relating to or arising from any breach, or event, circumstance or condition that with notice, lapse of time or both would constitute or result in a breach, by the Company on or before the Closing Date, of any of its obligations under an Assumed Contract shall be an Excluded Liabilitythis Agreement. Without limiting the generality of the foregoing, Purchaser shall not assume the Buyer is not assuming or agreeing to pay, perform or discharge or in any way be responsible for, any Excluded Liabilities, which shall include following:
(i) all Indebtedness (which, for the avoidance any liability or obligation of doubt, shall include all notes and interest payable Seller not relating to the Company’s shareholders), Seller Assets;
(ii) all Company Taxesexcept as expressly provided in Section 9.7 of this Agreement, (iii) all obligations any liability or obligation of Seller arising out of or in connection with the negotiation and liabilities related to employee compensation (which for the avoidance preparation of doubt shall include payroll this Agreement and accrued vacation expenses) and employee benefit plans or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation and performance of the transactions contemplated hereby;
(iii) any liability or obligation of Seller arising out of a default by this Agreement), Seller or other event occurring prior to the Closing Date in connection with any contract or agreement acquired by Purchaser as part of the Assets or assumed by Purchaser as part of the assumed liabilities;
(iv) all obligations and liabilities any liability or obligation of Seller for taxes, including income, sales, payroll, franchise, or other taxes, or any interest or penalties thereon, applicable to or arising on or from any period before the Closing Date, ; and
(v) all except as otherwise provided in this Agreement, any liability or obligation of Seller, including, but not limited to liabilities and obligations relating to copyright, trademark or other intellectual property, tort liability, employment discrimination, wrongful termination, errors and omissions liability, employee payroll and employee benefits liability, liability under employment agreements or pertaining to covenants not to compete, obligations arising out of any transaction contemplated by this Agreement and (vi) any other liabilities owed or relating to the stockholders of the Companypension plans.
Appears in 1 contract
Samples: Asset Purchase Agreement
Assumption of Liabilities. (a) On the terms and subject to the conditions provided for in this Agreement, on the Closing Date, Buyer shall assume the Assumed Liabilities. Except for the Assumed Liabilities, nothing in this Agreement is intended or shall be deemed to subject Buyer, any of its Affiliates or any of the officers, directors, employees or agents of Buyer or its Affiliates, to any Liability by reason of the transfer of assets contemplated hereby under the laws of the United States of America, any State, territory or possession thereof or the District of Columbia or any other jurisdiction based, in whole or in part, directly or indirectly, on any theory of law, including any theory of successor, assignee or transferee liability. Notwithstanding anything to the contrary contained herein, Seller and Buyer agree that Buyer is not under any obligation to close any Pipeline Mortgage Loans in connection with which Seller, the broker or correspondent, including any employees or agents of Seller, broker or correspondent, has engaged in unlicensed mortgage activity or mortgage activity from an unlicensed location or was otherwise in violation of Applicable Requirements.
(b) Notwithstanding any provision in this Agreement or any Company Transaction Documentother writing to the contrary, Buyer is assuming only the Assumed Liabilities and regardless is not assuming any other liability or obligation of whether such liability is disclosed in this Agreement, in any of the Transaction Documents, on any Schedule hereto or thereto or otherwise, and regardless of the Buyer’s Seller (or any predecessor of Seller or any prior owner of all or part of its directors’, officers’, employees’ or agents’ knowledge or awareness businesses and assets). All such other liabilities and obligations shall be retained by and remain obligations and liabilities of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwise, the Buyer will Seller (all such liabilities and obligations not assume, agree being assumed being herein referred to pay, perform or discharge or in any way be responsible for any debts (including interest and/or penalties thereon), liabilities or obligations of the Company or in connection with the Development Work of any kind or nature whatsoever, whether fixed or unfixed, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured (as the “Excluded Liabilities”). Notwithstanding anything to the contrary in this Agreement, except that the Buyer will assume at the Closing the following obligations: term “Excluded Liabilities” includes:
(i) all obligations Liabilities relating to any compensation or benefits of any director, officer, personnel, former personnel, independent contractor, agent, or other representative of Seller or any Plans, including, in respect of workers’ compensation or claims relating to employment of personnel by, or provision of services by personnel to, Seller prior to the Company under the Assumed ContractsClosing, and including severance obligations, if any;
(ii) any right, title, benefit, privileges and interest in and to, and all of the obligations set forth on Schedule 1.2(iiburdens, and Liabilities under, Assumed Broker Agreements with respect to (A) any mortgage loans that are not included in the Assets or (collectively, B) any mortgage loans that closed in the “Assumed Liabilities”); provided however, that any liability or obligation relating to or arising from any breach, or event, circumstance or condition that with notice, lapse name of time or both would constitute or result in a breach, by the Company on or Seller before the Closing Date, of any of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting the generality of the foregoing, the Buyer is not assuming or agreeing to pay, perform or discharge or in any way be responsible for, any Excluded Liabilities, which shall include (i) all Indebtedness (which, for the avoidance of doubt, shall include all notes and interest payable to the Company’s shareholders), (ii) all Company Taxes, ;
(iii) all obligations and liabilities related any Taxes of Seller with respect to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of the transactions contemplated by this Agreement), (iv) all obligations and liabilities arising on or taxable periods ending before the Closing Date; and
(iv) with respect to taxable periods beginning before the Closing Date and ending after the Closing Date, (v) all liabilities and obligations relating to or arising out any Taxes of any transaction contemplated by this Agreement and (vi) any other liabilities owed Seller that are allocable to the stockholders portion of such period ending prior to the CompanyClosing Date.
Appears in 1 contract
Samples: Asset Purchase and Sale Agreement (Franklin Credit Management Corp/De/)
Assumption of Liabilities. Notwithstanding anything to the contrary contained in this Agreement or any Company Transaction Document, and regardless of whether such liability is disclosed in this Agreement, in any of the Transaction Documents, on any Schedule hereto or thereto or otherwise, and regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwise, the Buyer will not shall assume, agree to payperform, perform or and discharge or in any way be responsible when due only those obligations of Seller arising out of the subscriptions listed on Schedule 2 with respect to the period from and after the Closing Date (the Assumed Liabilities"). Seller and Buyer agree that, other than the Assumed Liabilities, Buyer does not agree to assume and shall have no responsibility for any debts of the debts, obligations or liabilities of Seller (including interest and/or penalties thereonthe "Excluded Liabilities"), liabilities or obligations all of which shall remain the sole responsibility of and shall be paid and discharged by Seller as they become due. The Excluded Liabilities include without limitation all of the Company following:
(a) Any tax liability or tax obligation of Seller, its directors, officers, shareholders and agents which has been or may be asserted by any taxing authority, including without limitation any such liability or obligation arising out of or in connection with this Agreement or the Development Work transactions contemplated hereby.
(b) Any liability or obligation of Seller whether incurred prior to, at or subsequent to the Closing Date for any amounts due or which may become due to any person or entity who is or has been a holder of any kind debt or nature whatsoeverequity security of Seller.
(c) Any trade account payable or note payable of Seller or any contract obligation of Seller (other than the Assumed Liabilities) whether incurred prior to, whether fixed at or unfixedsubsequent to the Closing Date, including without limitation all obligations to Xxxxxx Xxxxxxxxxxx (including the payment for termination of the contract with Xxxxxx Xxxxxxxxxxx), Xxxxxx-Xxxxx, and NW Aero.
(d) Any liability or obligation arising out of any litigation, suit, proceeding, action, claim or investigation, at law or in equity or in arbitration, related to Seller's operation of the Business prior to the Closing Date.
(e) Any claim, liability or obligation, known or unknown, absolute contingent or contingentotherwise, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidatedthe existence of which is a breach of, or secured inconsistent with, any representation, warranty or unsecured (the “Excluded Liabilities”), except that the Buyer will assume at the Closing the following obligations: (i) all obligations covenant of the Company under the Assumed Contracts, and (ii) the obligations Seller set forth on Schedule 1.2(iiin this Agreement.
(f) (collectively, the “Assumed Liabilities”); provided however, that any Any liability or obligation relating to or arising from any breach, or event, circumstance or condition that with notice, lapse of time or both would constitute or result specifically stated in a breach, by the Company on or before the Closing Date, of any of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting the generality of the foregoing, the Buyer is not assuming or agreeing to pay, perform or discharge or in any way be responsible for, any Excluded Liabilities, which shall include (i) all Indebtedness (which, for the avoidance of doubt, shall include all notes and interest payable to the Company’s shareholders), (ii) all Company Taxes, (iii) all obligations and liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of the transactions contemplated by this Agreement), (iv) all obligations and liabilities arising on or before the Closing Date, (v) all liabilities and obligations relating to or arising out of any transaction contemplated by this Agreement and (vi) any other liabilities owed or the Schedules hereto as not to the stockholders of the Companybe assumed by Buyer.
Appears in 1 contract
Samples: Asset Purchase Agreement (Data Transmission Network Corp)
Assumption of Liabilities. Notwithstanding anything (a) Subject to and upon all of the contrary contained in this Agreement or any Company Transaction Document, terms and regardless conditions of whether such liability is disclosed in this Agreement, in any at the Closing, Purchaser shall assume and agree to pay, perform and discharge the obligations and liabilities of Seller (the "Assumed Obligations") under the terms of those Scheduled Contracts specifically set forth on Schedule 2.6(a) hereto to the extent that such Scheduled Contracts have not been performed at the time of the Transaction DocumentsClosing and are not in default;
(b) Except as provided in Section 2.6(a), on any Schedule hereto or thereto or otherwise, and regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwise, the Buyer Purchaser will not assume, assume or agree to pay, perform or discharge or in any way discharge, and shall not be responsible for for, any debts (other liabilities or obligations of Seller, whether accrued, absolute, contingent or otherwise, including interest and/or penalties thereon)without limitation, liabilities or obligations of the Company based on, arising out of, or in connection with:
(i) any expenses incurred by Seller or its Affiliates in connection with the Development Work of any kind or nature whatsoevernegotiation, whether fixed or unfixedpreparation, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured (the “Excluded Liabilities”), except that the Buyer will assume at the Closing the following obligations: (i) all obligations execution and performance of the Company under the Assumed Contracts, and Transactions;
(ii) any events or circumstances occurring prior to the obligations set forth on Schedule 1.2(ii) (collectivelyClosing Date, the “Assumed Liabilities”); provided howeverincluding, that without limitation, any obligation or liability of Seller or obligation its Affiliates arising out of or relating to the Assumed Liabilities which are payable or arising from performable prior to Closing;
(iii) any breachTaxes which are attributable or relate to the Assets or the Business or Seller, or event, circumstance or condition that with notice, lapse of time or both would constitute or result in a breach, by the Company for any periods ending on or before the Closing Date, or which may be applicable because of Seller's sale of the Business or any of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting the generality of the foregoing, the Buyer is not assuming or agreeing Assets to pay, perform or discharge or in any way be responsible for, any Excluded Liabilities, which shall include (i) all Indebtedness (which, for the avoidance of doubt, shall include all notes and interest payable to the Company’s shareholders), (ii) all Company Taxes, (iii) all obligations and liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of the transactions contemplated by this Agreement), Purchaser;
(iv) all any lease obligations and liabilities arising on or before the Closing Date, indebtedness of Seller or its Affiliates;
(v) all liabilities and obligations relating to any unlicensed or arising out unauthorized use by Seller or its Affiliates of any transaction contemplated by this Agreement and trademark or other intellectual property rights;
(vi) any note, account payable or other liabilities owed obligation to any person, entity or Governmental Body, except to the stockholders of extent expressly assumed herein;
(vii) any claims or conditions arising under any federal, state or foreign statutes, laws, ordinances, regulations, rules, permits, judgments, orders or decrees attributable or relating to the CompanyAssets (including, without limitation, the operation thereof) or the Business or Seller or its Affiliates.
Appears in 1 contract
Assumption of Liabilities. Notwithstanding anything Upon the terms and subject to the contrary contained in this Agreement or any Company Transaction Document, conditions and regardless of whether such liability is disclosed limitations set forth in this Agreement, in any at the Closing, TRM or the applicable Tower Entity will assume from the applicable member of the Transaction DocumentsHIG Group, on as appropriate, any Schedule hereto or thereto or otherwise, and regardless all Liabilities of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwise, the Buyer will not assume, agree to pay, perform or discharge or in any way be responsible for any debts (including interest and/or penalties thereon), liabilities or obligations of the Company or in connection with the Development Work such Person of any kind or nature whatsoever, whether fixed or unfixed, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured (character to the “Excluded Liabilities”), except that the Buyer will assume at the Closing the following obligations: (i) all obligations of the Company under the Assumed Contracts, and (ii) the obligations set forth on Schedule 1.2(ii) (collectively, the “Assumed Liabilities”); provided however, that any liability or obligation extent relating to or arising from any breach, the ownership or event, circumstance or condition that with notice, lapse of time or both would constitute or result in a breach, by the Company on or before the Closing Date, of any of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting the generality use of the foregoingTransferred Assets or the Employee Group, including Transferred Employees and Non-Transferred Employees, as such Liabilities exist as of the Buyer is not assuming or agreeing to payClosing, perform or discharge or in any way be responsible for, any but excluding all Excluded Liabilities, which shall include regardless of when such Liabilities may be discovered or reported ("Assumed Liabilities"), including the following Liabilities:
(a) any Liability relating to any failure or alleged failure to comply with, or any violation or alleged violation of, any Applicable Law to the extent relating to the Transferred Assets, the Employee Group, including any Transferred Employees and any Non-Transferred Employees;
(b) any Liability to the extent relating to any breach of any contract or agreement included in the Transferred Assets;
(c) any Liability to the extent relating to any employee within the Employee Group, including any Transferred Employee or any Non-Transferred Employee, including any Liability to the extent relating to (i) all Indebtedness (which, for any employee benefit plan or employee benefits maintained by any member of the avoidance HIG Group or any Person who was an Affiliate of doubt, shall include all notes and interest payable the HIG Group on or prior to the Company’s shareholders)Closing Date with respect to any employee within the Employee Group, including any Transferred Employee or any Non-Transferred Employee, (ii) all Company Taxesthe termination of any employee benefit or employee benefit plans with respect to any employee within the Employee Group, including any Transferred Employee or any Non-Transferred Employee, (iii) all obligations and liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and employee benefits accrued vacation expensesby any employee within the Employee Group, including any Transferred Employee or any Non-Transferred Employee, (iv) and the termination of employment of any employee benefit plans within the Employee Group, including any Transferred Employee or obligations any Non-Transferred Employee, including, any termination of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as any such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of Person deemed to have occurred upon the consummation of the transactions contemplated by this Agreement or the Stock Purchase Agreement), or (ivv) all obligations and liabilities arising any "Success Bonus", "Stay Bonus" or other bonus, profit sharing or incentive compensation payable to any Transferred Employee pursuant to any bonus plan of or maintained by any member of the HIG Group or any Person who was an Affiliate of the HIG Group on or before prior to the Closing Date, ;
(vd) all liabilities and obligations any Liability arising under any Producer Agreement or to the extent relating to the Producer under any such Producer Agreement or the activities of such Producer under such Producer Agreement;
(e) 50% of any Other Liability; and
(f) any Liability for Taxes relating to or arising out from the ownership or use of the Transferred Assets, or any transaction contemplated by this Agreement of the Employee Group, including the Transferred Employees and (vi) any other liabilities owed the Non-Transferred Employees prior to the stockholders of the CompanyClosing Date.
Appears in 1 contract
Samples: Asset Purchase Agreement (CastlePoint Holdings, Ltd.)
Assumption of Liabilities. Notwithstanding anything to At the contrary contained in this Agreement or any Company Transaction DocumentClosing, and regardless of whether such liability is disclosed in this Agreement, in any of the Transaction Documents, on any Schedule hereto or thereto or otherwise, and regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwise, the Buyer will not assume, agree to pay, perform or discharge or in ------------------------- assume and become responsible only for the liabilities of Sellers which are reflected on the June 30 Balance Sheet and any way be responsible for any trade debts (including interest and/or penalties thereonpayroll) of the Sellers incurred between July 1, 2002 and the Closing Date, but only to the extent that such trade debts arose in the ordinary course of business consistent with past practice, and Sellers' obligations under the Assumed Contracts (collectively, the "Assumed Liabilities"). Other than the Assumed ------------------- Liabilities, Buyer shall not assume any liabilities or obligations of the Company or in connection with the Development Work Sellers of any kind or nature whatsoever, whether fixed or unfixed, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured (the “Excluded Liabilities”), except that the Buyer will assume at the Closing the following obligations: (i) all obligations of the Company under the Assumed Contracts, and (ii) the obligations set forth on Schedule 1.2(ii) (collectively, the “Assumed Liabilities”); provided however, that any liability or obligation relating to or arising from any breach, or event, circumstance or condition that with notice, lapse of time or both would constitute or result in a breach, by the Company on or before the Closing Date, of any of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting the generality of the foregoing, Buyer shall not be responsible for any liabilities associated with, arising out of or relating to the Excluded Assets. Sellers acknowledge that the following is a non-exclusive listing of some of the liabilities and obligations of Sellers which Buyer is shall not assuming assume or agreeing agree to pay, perform or discharge (unless and only to the extent they are included in the Assumed Liabilities): (A) any and all items of governmental, judicial, or adversarial proceedings (public or private), litigation, hearings, arbitrations, disputes or investigations against or involving any Seller, its subsidiaries affiliates, directly or indirectly; (B) any and all amounts claimed against any Seller or Buyer by, or on behalf of, any former or current employee of such Seller, relating to, based upon or arising from or in any way be responsible for, any Excluded Liabilities, which shall include connection with (i) all Indebtedness (which, service performed for the avoidance of doubt, shall include all notes and interest payable such Seller prior to the Company’s shareholders)Closing Date, including without limitation any claim or claims relative to, based upon or arising from or in connection with the terms and conditions of employment or the termination of employment with such Seller, (ii) all Company Taxesany contracts of employment between a Seller and any of its employees, or (iii) any and all obligations union or collective bargaining contracts, agreements, benefit plans, or understandings to which a Seller is a signatory or by which a Seller is claimed to be bound, or (iv) any and all liabilities related which arise out of or relate to employee pension, profit sharing, health, welfare, disability, workers' compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee or other employment benefit plans maintained by a Seller or obligations any union or other labor organization or any of the Company (whichits subsidiaries or affiliates, for the avoidance including without limitation any liability arising from such Seller's under-funding or termination of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is any such plans or becomes an “M & A Qualified Beneficiary” (as such term is defined reduction of any other employment benefits of any kind or nature whatsoever in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of connection with the consummation of the transactions contemplated by this Agreement or otherwise; (C) Taxes, including any Taxes arising as a result of the sale of the Acquired Assets pursuant to this Agreement), and including any Taxes with respect to the Acquired Assets relating to the Pre-Closing Period; (ivD) any and all obligations claims arising out of, related to or based upon any products sold, developed, delivered or manufactured, or any services provided, by a Seller and, without limiting the representations and warranties set forth at Section 3.21, any and ------------ all claims arising or accruing on or after the Closing with respect to sales of products or provision of services which occurred prior to Closing; (E) any and all claims, liabilities and obligations, costs and expenses (including without limitation fees, disbursements and expenses of legal counsel, experts and engineers and the costs of investigation, feasibility study and remedial action) arising from or under Environmental Law or Environmental Claims, without regard as to whether Buyer has conducted any environmental due diligence, and whether such Environmental Claims arise or accrue before, on or after the Closing in connection with acts, events or omissions that occurred, or conditions or circumstances that existed, on or before the Closing Date, (v) all liabilities Closing. The parties hereto expressly agree and obligations relating acknowledge that Buyer is not and will not be a successor-in-interest to or arising out of any transaction contemplated by this Agreement and (vi) any other liabilities owed to the stockholders of the Companyeither Seller.
Appears in 1 contract
Assumption of Liabilities. Notwithstanding anything to Except as set forth in section 2.2, at the contrary contained in this Agreement or any Company Transaction DocumentClosing, Buyer shall assume and regardless of whether such liability is disclosed in this Agreement, in any of the Transaction Documents, on any Schedule hereto or thereto or otherwise, and regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwise, the Buyer will not assume, shall agree to pay, perform and discharge all of the liabilities and obligations (whether incurred, accrued, arising or discharge known before or after the Closing, and whether or not reflected or provided for, or required to be reflected or provided for, on the Closing Balance Sheet as defined in section 3.3) which relate to or arise out of the Business or the operation, condition or use of any way Purchased Asset prior to the Closing (collectively, the "Assumed Liabilities"). The Assumed Liabilities shall include, but not be responsible for limited to, all liabilities and obligations which at any debts time relate to or arise out of the following:
(including interest and/or penalties thereona) any demands, claims, actions or causes of action ("Claims"), liabilities whether for personal injuries or property, consequential or other damages of any kind, asserted in respect of products manufactured or sold before the Closing by Seller or any predecessor thereof;
(b) the obligations of the Company or in connection with the Development Work of any kind or nature whatsoever, whether fixed or unfixed, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured (the “Excluded Liabilities”), except that the Buyer will assume at the Closing the following obligations: (i) all obligations of the Company Seller under the Assumed Contracts, and ;
(iic) the obligations set forth of Seller under the agreements, identified on Schedule 1.2(ii2.1(c) hereto, between Seller and certain individuals currently employed by Seller for severance, disability and other payments to be made, after the Closing, following the termination by Buyer of any such individual's employment;
(collectivelyd) to the extent applicable to any of the employees of the Business, the “Assumed Liabilities”); provided howevereach bonus, that any liability severance or obligation relating to termination agreement, hospitalization, retirement, medical or arising from any breachother medical, life or eventother insurance, circumstance supplemental employment benefit, profit sharing, pension or condition that with noticeretirement plan, lapse agreement, program or arrangement and each other employee benefit plan or other welfare plan, agreement, program or arrangement, whether formal or informal, maintained by Seller as of time or both would constitute or result in a breach, by the Company on or before the Closing Date;
(e) any Claims against the Business or Seller which are asserted by any employees of Seller or their beneficiaries, of any of its obligations under an Assumed Contract shall be an Excluded Liability. Without limiting the generality of the foregoing, the Buyer is not assuming heirs or agreeing to pay, perform or discharge or in any way be responsible for, any Excluded Liabilitiesassignees, which shall include Claims relate to events occurring, or actions taken or omitted to be taken, before or after the Closing;
(i) all Indebtedness (which, for the avoidance of doubt, shall include all notes and interest payable to the Company’s shareholders), (ii) all Company Taxes, (iii) all obligations and liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of the transactions contemplated by this Agreement), (iv) all obligations and liabilities arising on or before the Closing Date, (v) all liabilities and obligations relating to or arising out of any transaction contemplated by this Agreement and (vif) any taxes, charges, fees, levies and other liabilities owed to the stockholders of the Company.assessments imposed by any governmental body, including income, gross receipts, excise,
Appears in 1 contract
Assumption of Liabilities. Notwithstanding anything (a) As of the Closing, Home Products shall assume and thereafter pay, perform, or discharge when due the following obligations (collectively, the "Division Assumed Liabilities") of AAC:
(i) the accounts payable and accrued Liabilities (as defined in Section 1.2(c) hereof) of AAC arising from the operation in the ordinary course of the business of the Division;
(ii) obligations or Liabilities under contracts, commitments, purchase orders, warranties, and other executory obligations of AAC to be paid or performed by their terms on or after the Closing and which relate solely or primarily to the contrary contained business of the Division, including those that are set forth on Schedule 1.2(xiii) which obligate AAC to pay more than $100,000 in this Agreement or any Company Transaction Documentfiscal year, and regardless of whether such liability is disclosed in this Agreement, in the obligation to accept any inventory returned by customers of the Transaction DocumentsDivision in the ordinary course of the business of the Division and consistent with past experience;
(iii) any Liability arising out of or in connection with any third-party claim (including product liability claims) for damages, on reimbursement, or compensation resulting directly or indirectly from any Schedule hereto accident or thereto event relating to the Division Assets or the business of the Division;
(iv) obligations or Liabilities to employees of AAC employed solely or primarily in the business of the Division, including without limitation, any obligations accrued or earned prior to the Closing which are not due or payable until after the Closing; and
(v) all other Liabilities, contingent or otherwise, and regardless that arise out of or are related to the operation of the Buyer’s business of the Division and the ownership of the Division Assets described in Section 1.1 before, on, or after the Closing, including, without limitation, all such Liabilities arising by reason of any violation or claimed violation (by acts or events or omissions occurring on or after the Closing) of any federal, state, local, or foreign law, rule, regulation, ordinance, or any of its directors’requirement with government authority, officers’including, employees’ or agents’ knowledge or awareness without limitation, all such Liabilities arising by reason of any liabilityviolation or claimed violation (by acts or events or omissions occurring on or after the Closing) of any federal, whether learned state, local, or foreign law, rule, regulation, ordinance, or any requirement with government authority, including any Liability in connection with environmental laws or any environmental claim; provided, however, that Division Assumed Liabilities shall not include any Liabilities, contingent or otherwise, arising on or before the Closing, to the extent AAC has recourse against any third party to recover, in whole or in part, through contribution, indemnification, reimbursement, by contract or operation of law. Except as set forth in this Section 1.2, Home Products will assume no other Liabilities in connection with the Buyer’s due diligence investigation Division Assets. (The Liabilities of AAC which are not assumed pursuant to this Agreement are hereinafter collectively referred to as the "Division Non-Assumed Liabilities.")
(b) Notwithstanding Section 1.2(a), each of the Development Work or otherwisefollowing is a Division Non-Assumed Liability:
(i) any of AAC's obligations hereunder;
(ii) any Liability of AAC arising from indebtedness for borrowed money and long term debt of AAC, except to the Buyer will not assumeextent Home Products has expressly assumed such Liability as a Division Assumed Liability;
(iii) except to the extent Home Products has expressly assumed such Liability as a Division Assumed Liability, agree to pay, perform or discharge or in any way be responsible for any debts (including interest and/or penalties thereon), liabilities or obligations Liability of the Company AAC arising from or in connection with the Development Work conduct of the business of the Division or the ownership of the Division Assets by AAC prior to the Closing;
(iv) except as set forth in Section 4.2 hereof, any kind Liability of AAC for Taxes (as defined in Section 1.2(d) hereof) incurred in connection with the business or nature whatsoever, whether fixed or unfixed, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidatedassets of the Division with respect to any taxable period, or secured or unsecured (the “Excluded Liabilities”)portion thereof, except that the Buyer will assume at the Closing the following obligations: (i) all obligations of the Company under the Assumed Contracts, and (ii) the obligations set forth on Schedule 1.2(ii) (collectively, the “Assumed Liabilities”); provided however, that any liability or obligation relating to or arising from any breach, or event, circumstance or condition that with notice, lapse of time or both would constitute or result in a breach, by the Company ending on or before the Closing. For this purpose, the determination of the Taxes incurred with respect to the portion of the year or period ending on, and the portion of the year or period beginning after, the Closing Date, of any of its obligations under an Assumed Contract Date shall be an Excluded Liability. Without limiting determined by assuming that the generality taxable year or period ended at the close of the foregoing, the Buyer is not assuming or agreeing to pay, perform or discharge or in any way be responsible for, any Excluded Liabilities, which shall include (i) all Indebtedness (which, for the avoidance of doubt, shall include all notes and interest payable to the Company’s shareholders), (ii) all Company Taxes, (iii) all obligations and liabilities related to employee compensation (which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result of the consummation of the transactions contemplated by this Agreement), (iv) all obligations and liabilities arising business on or before the Closing Date, except that any real property taxes, exemptions, allowances or deductions that are calculated on an annual basis shall be prorated on the basis of the number of days in the annual period elapsed through the Closing Date as compared to the number of days in the annual period elapsing after the Closing Date.
(v) all liabilities and obligations relating to or arising out any Liability in respect of any transaction contemplated by this Agreement and contract or agreement to which AAC is a party or beneficiary which is not an Assigned Contract (via "Retained Contract") any other liabilities owed to the stockholders of the Companyor an Assigned Lease (a "Retained Lease").
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Samples: Purchase Agreement (Alumax Inc)
Assumption of Liabilities. Notwithstanding anything to (a) On and after the contrary contained in this Agreement or any Company Transaction DocumentClosing Date, Purchaser will assume and regardless of whether such liability is disclosed in this Agreement, in any of the Transaction Documents, on any Schedule hereto or thereto or otherwise, and regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwise, the Buyer will not assume, agree to pay, perform or and fully discharge or in any way be responsible for any debts (including interest and/or penalties thereon), liabilities or obligations when due all Liabilities of the Company (i) solely related to or solely arising from or in connection with the Development Work Assets or the Business and (ii) in the case of any kind Liabilities related to or nature whatsoeverarising partly from or in connection with the Assets or the Business and partly from any other assets or business of the Company, to the extent such Liabilities relate to or arise from or in connection with the Assets or the Business (in each case including, without limitation, any Claims and Damages arising from the assignment to Purchaser of any contract or other agreement pursuant to the terms of this Agreement), whether fixed or unfixed, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured (the “Excluded Liabilities”), except that the Buyer will assume at the Closing the following obligations: such Liabilities specified in clause (i) all or (ii) are incurred or arising prior to, on, or after the Closing Date, including, without limitation, those obligations of the Company under the Assumed Contractsto be assumed by Purchaser pursuant to Section 5.2 hereof, and (ii) the obligations set forth on Schedule 1.2(ii) other than Retained Liabilities (collectively, the “"Assumed Liabilities”"); . Except as set forth in this Section 1.3 and except as otherwise expressly provided howeverin this Agreement, that any liability or obligation relating to or arising from any breach, or event, circumstance or condition that with notice, lapse of time or both would constitute or result in a breach, by the Company on or before the Closing Date, Purchaser will assume no other Liabilities of any kind of its obligations under an Assumed Contract shall be an Excluded Liability. description of the Company.
(b) Without limiting the generality of Section 1.3(a) hereof, and notwithstanding any other provision hereof, each of the foregoingfollowing is a "Retained Liability" (except to the extent that it is a Liability that decreases Net Financial Assets):
(i) any of the Company's obligations hereunder;
(ii) any Liability for federal, state or local income taxes of the Buyer is not assuming or agreeing Company, its stockholders and any other Person (other than payroll withholding taxes to pay, perform or discharge or in any way be responsible for, any Excluded Liabilitiesthe extent that they decrease Net Financial Assets, which shall include (i) all Indebtedness (which, for the avoidance of doubt, shall include all notes and interest payable to the Company’s shareholdersconstitute Assumed Liabilities), (ii) all Company Taxes, ;
(iii) Corporate Office expenses other than those liabilities for certain Corporate Office Employees set forth in Section 5.2 hereof (all obligations and liabilities related to employee compensation of which shall constitute Assumed Liabilities);
(which for the avoidance of doubt shall include payroll and accrued vacation expensesiv) and employee benefit plans or obligations any Liability of the Company (which, for the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is arising from Indebtedness or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) as a result any overdrafts on any bank accounts of the consummation of the transactions contemplated by this Agreement), (iv) all obligations and liabilities arising on or before the Closing Date, Company;
(v) all liabilities and obligations relating any Liability assumed or to or arising out of any transaction contemplated be assumed by this Agreement and Newco under the Contribution Agreement;
(vi) except for the Company's obligations under a sharing agreement and sublease agreement in the form set forth as Exhibits F-1 and F-2 hereto, any other liabilities owed to the stockholders of the Company's obligations under the Contribution Agreement, the Maine Media Purchase Agreement, the Adjustment Escrow Agreement or the Security Escrow Agreement;
(vii) any Liability for dividends; and
(viii) any Liabilities relating to current, former or inactive Corporate Office Employees that are not to be assumed by Purchaser pursuant to Section 5.2 hereof.
Appears in 1 contract
Assumption of Liabilities. Notwithstanding anything to the contrary contained in this Agreement or any Company Transaction Document, (a) From and regardless of whether such liability is disclosed in this Agreement, in any of the Transaction Documents, on any Schedule hereto or thereto or otherwise, and regardless of the Buyer’s or any of its directors’, officers’, employees’ or agents’ knowledge or awareness of any liability, whether learned in connection with the Buyer’s due diligence investigation of the Development Work or otherwise, the Buyer will not assume, agree to pay, perform or discharge or in any way be responsible for any debts (including interest and/or penalties thereon), liabilities or obligations of the Company or in connection with the Development Work of any kind or nature whatsoever, whether fixed or unfixed, known or unknown, absolute or contingent, asserted or unasserted, xxxxxx or inchoate, liquidated or unliquidated, or secured or unsecured (the “Excluded Liabilities”), except that the Buyer will assume at the Closing the following obligations: (i) all obligations of the Company under the Assumed Contracts, and (ii) the obligations set forth on Schedule 1.2(ii) (collectively, the “Assumed Liabilities”); provided however, that any liability or obligation relating to or arising from any breach, or event, circumstance or condition that with notice, lapse of time or both would constitute or result in a breach, by the Company on or before after the Closing Date, Buyer shall assume and shall honor, pay, perform, and satisfy when due any and all liabilities, obligations and responsibilities (whether known or unknown on the Closing Date) solely with respect to the Transferred Employees or any former employees of the Division, and any of its obligations their beneficiaries, arising under an Assumed Contract shall be an Excluded Liability. Without limiting the generality terms of, or in connection with, or with respect to any Employee Benefit Plan or any other employee benefit or fringe benefit, retention, bonus, short-term or long-term disability, vacation, sick or other paid time off plan, policy, arrangement or agreement that benefits or benefited any Transferred Employee or former employee of the foregoingDivision with respect to claims or events arising at any time; provided, however, that such liabilities, obligations and responsibilities shall not include any Retained Liabilities (collectively referred to herein as the "ASSUMED EMPLOYEE BENEFIT PLANS"). Except as otherwise provided for by this Agreement, Buyer is not assuming shall assume and be solely responsible for any obligations and Liabilities relating to claims made by any of the Transferred Employees and each former employee of the Division, for their compensation, severance, or agreeing to termination pay, perform benefits or discharge notice under any Federal, state or in local law or under any way plan, policy, practice or agreement which arises as a result of their employment or separation from employment with Seller or Buyer or their respective Affiliates at any time. Notwithstanding any other provisions of this Agreement to the contrary, on and after the Closing Date, Buyer shall reimburse Seller for fifty percent (50%) of all Liabilities relating to any post-retirement plans, arrangements or agreements (other than any Liabilities associated with the Alside Retirement Plan) with respect to Earl R. Karges, Edwin J. Kazanovicz, Donald A. Vickers or George L. Xxxxxxxx, xx xny xx xxx xxxxxxxxxxxes xx xxxx xxxxxxxxals.
(x) On the Closing Date, Buyer shall assume sponsorship of and be responsible for, any Excluded Liabilities, which shall include substituted for Seller as the plan sponsor of (i) the AmerCable Retirement Plan (the "RETIREMENT PLAN") and the related trust, and the liabilities thereunder, with respect to all Indebtedness persons entitled to benefits under the provisions of the Retirement Plan (whichincluding, for the avoidance of doubtdoubt Stephanie Johnson, shall include all notes Robert Winspear, and interest payable to the Company’s shareholders), Lisa Curry) and (ii) all Company Taxesothxx Xxxxxxx Xxxxxxee Xxxxxxx Xxxxx, (iii) all obligations and liabilities related to employee compensation (excluxxxx xxx Xssumed Employee Benefit Plans in which for the avoidance of doubt shall include payroll and accrued vacation expenses) and employee benefit plans or obligations both employees of the Company (which, for Division and employees of any division of Seller other than the avoidance of doubt, shall include severance, non-compete payments, benefits, deferred compensation, continuation coverage required under COBRA for each individual who is Division participate. On or becomes an “M & A Qualified Beneficiary” (as such term is defined in the Treas. Reg. §54.4980B-9 and workers’ compensation claims) soon as a result of the consummation of the transactions contemplated by this Agreement), (iv) all obligations and liabilities arising on or before practicable following the Closing Date, but in any event not later than thirty (v30) days following the Closing Date, Seller shall cause all right, title, interest, authorities, obligations, duties, liabilities and obligations relating assets of Seller in, to and under the Retirement Plan and the related trust and the other Assumed Employee Benefit Plans to be transferred to Buyer and any successor trustee, where applicable, and Buyer shall assume all authorities, obligations, duties and liabilities under the Retirement Plan, in accordance with applicable law. On or arising out as soon as practicable following the Closing Date, but in any event not later than thirty (30) days following the Closing Date, the parties shall execute and deliver such documents and instruments as may be required to effect the assumption and transfer of the Retirement Plan and of all other Assumed Employee Benefit Plans to be transferred to Buyer by and to Buyer and to ensure that all assets, contracts and agreements of or associated with the Retirement Plan and any other Assumed Employee Benefit Plans to be transferred to Buyer, as the same exist immediately prior to the Closing Date, shall be transferred with the Retirement Plan and such Assumed Employee Benefit Plans to the extent provided herein.
(c) Nothing in this Agreement shall be deemed to prevent or restrict Buyer from amending, merging or terminating the Retirement Plan or any Assumed Employee Benefit Plan in accordance with the respective terms and conditions thereof or from transferring the Transferred Employees or former employees of the Division to another employee plan or program that is maintained by Buyer or one of its subsidiaries. The parties agree and understand that Buyer assumes no responsibility and makes no commitment for the maintenance and continuation after the Closing Date of any transaction contemplated by this Agreement and (vi) Assumed Employee Benefit Plan or the provisions of any other liabilities owed particular benefits for any Transferred Employee or former employee of the Division after the Closing Date, subject to the stockholders applicable terms and conditions of each relevant Assumed Employee Benefit Plan.
(d) In the Company.event of any "plant closing" or "mass layoff" by Buyer, as defined by the Federal Worker Adjustment Retraining Notification Act, 29 U.S.
Appears in 1 contract
