Excluded Liabilities. Notwithstanding anything to the contrary contained herein, other than the Assumed Liabilities, the Seller Parties shall be responsible for all of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreement, and Buyer shall not assume, or in any way be liable or responsible for, any Liabilities of the Seller Parties (the “Excluded Liabilities”). Without limiting the generality of the foregoing, Buyer shall not assume the following: (a) any Liability to pay any Taxes of the Seller Parties or any of their Affiliates, regardless of whether arising in connection with the consummation of the transactions contemplated hereby or otherwise; (b) any Liability of the Seller Parties or their Affiliates for performance under this Agreement or any of the Ancillary Agreements; (c) any Liability under any Assigned Contract or any Transferring Real Property Lease arising out of facts, circumstances or occurrences existing prior to the Closing Date or relating to any breach, violation or failure to perform that occurred prior to the Closing Date (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead apply); (d) any Liability under any Real Property Lease that is not a Transferring Real Property Lease; (e) any Liability relating to any Debt of the Seller Parties or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing Date); (f) any Liability for any accounts payable or other accruals related to the Business arising prior to the Closing Date; (g) any Liability arising out of the Seller Parties’ or their Affiliates’ obligations under or agreements with any Payment Programs (including pursuant to any Provider Agreements); (h) any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time; (i) any Liability arising out of or relating to or any Payment Program or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time; (j) any Liability relating to or arising from a Security Incident occurring prior to the Closing Date; (k) any Liability relating to or arising from the Excluded Assets or the Excluded Business; (l) any Liability arising under any employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans; (m) any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement; (n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or prior to the Closing Date and relating to the Business, the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates; (o) any Liability of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person; (p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent; (q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior the Closing Date; or (r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed Liability.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Opko Health, Inc.), Asset Purchase Agreement (Opko Health, Inc.)
Excluded Liabilities. Notwithstanding anything to the contrary contained hereinin this Agreement, Buyer and its Affiliates shall not assume by virtue of this Agreement or any Other Transaction Agreement, or the transactions contemplated hereby or thereby, or otherwise, and shall have no liability for, and Sellers shall retain and be fully responsible for paying, performing and discharging when due, any and all Liabilities of Sellers or any of their Affiliates other than the Assumed LiabilitiesLiabilities (collectively, the Seller Parties shall be responsible for all of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreement, and Buyer shall not assume, or in any way be liable or responsible for, any Liabilities of the Seller Parties (the “Excluded Liabilities”). ): Without limiting the generality of the foregoing, Buyer shall not assume the followingExcluded Liabilities include:
(a) any Liability Liabilities of Sellers in respect of any Excluded Assets or other assets of Sellers that are not Purchased Assets;
(b) (i) any Liabilities for Taxes imposed with respect to, arising out of or relating to pay the Purchased Assets, the Assumed Liabilities or the Business that are incurred in, or attributable to, any Pre-Closing Tax Period (such Taxes for a Straddle Period to be allocated in accordance with Section 7.1); (ii) any Transfer Tax allocated to Sellers under Section 7.3; (iii) any Taxes imposed under, or triggered by, any applicable “bulk sales”, “bulk transfer” or similar Laws as a result of the Seller Parties transactions contemplated by this Agreement, other than Transfer Taxes payable pursuant to Section 7.3; (iv) any withholding Taxes imposed on Buyer or any of its Affiliates resulting from the transactions contemplated by this Agreement, to the extent not withheld pursuant to Section 2.8; (v) any Taxes imposed with respect to, arising out of or relating to any Excluded Asset or Excluded Liability; and (vi) any Taxes imposed on the Sellers or any of their AffiliatesAffiliates other than Taxes allocated to Buyer pursuant to this Agreement;
(c) any fines and penalties imposed by any Governmental Entity resulting from any act or omission of Sellers and not related to the Purchased Assets and any Liabilities arising out of, regardless in respect of whether arising or in connection with the failure by Sellers or any of Sellers’ Affiliates to comply with any Law or Order;
(d) any Liabilities of Sellers arising as a result of their execution and delivery of this Agreement or any Other Transaction Agreement, the performance of Sellers’ obligations hereunder or thereunder or the consummation by Sellers of the transactions contemplated hereby or otherwise;
(b) any Liability of the Seller Parties or their Affiliates for performance under this Agreement or any of the Ancillary Agreements;
(c) any Liability under any Assigned Contract or any Transferring Real Property Lease arising out of facts, circumstances or occurrences existing prior to the Closing Date or relating to any breach, violation or failure to perform that occurred prior to the Closing Date (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead apply);
(d) any Liability under any Real Property Lease that is not a Transferring Real Property Leasethereby;
(e) any Liability relating to any Debt Liabilities of the Seller Parties Sellers or their Affiliates (other than, for the elimination relating to current or former employees or independent contracts of doubt, any trade payables Sellers or other obligations arising under Assigned Contracts on or following the Closing Date);its Affiliates; and
(f) any Liability indebtedness for any accounts payable or other accruals related to the Business arising prior to the Closing Date;
(g) any Liability arising out borrowed money of the Seller Parties’ or their Affiliates’ obligations under or agreements with any Payment Programs (including pursuant to any Provider Agreements);
(h) any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(i) any Liability arising out of or relating to or any Payment Program or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(j) any Liability relating to or arising from a Security Incident occurring prior to the Closing Date;
(k) any Liability relating to or arising from the Excluded Assets or the Excluded Business;
(l) any Liability arising under any employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;
(m) any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or prior to the Closing Date and relating to the Business, the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;
(o) any Liability of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed LiabilitySellers.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Digital Media Solutions, Inc.), Asset Purchase Agreement (Digital Media Solutions, Inc.)
Excluded Liabilities. Notwithstanding anything to the contrary contained hereinset forth in Section 2.1(c) or elsewhere in this Agreement, the Acquiror is not assuming or agreeing to pay or discharge any of the Liabilities of the Company or its Subsidiaries other than the Assumed Liabilities, the Seller Parties shall be responsible for all of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreement, and Buyer shall not assume, or in any way be liable or responsible for, any Liabilities of the Seller Parties (the “Excluded Liabilities”). Without limiting the generality of the foregoing, Buyer shall not assume the following:
(a) any Liability to pay any Taxes of the Seller Parties or any of their Affiliates, regardless of whether arising in connection with the consummation of the transactions contemplated hereby or otherwise;
(b) any Liability of the Seller Parties or their Affiliates for performance under this Agreement or any of the Ancillary Agreements;
(c) any Liability under any Assigned Contract or any Transferring Real Property Lease arising out of facts, circumstances or occurrences existing prior to the Closing Date or relating to any breach, violation or failure to perform that occurred prior to the Closing Date (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead apply);
(d) any Liability under any Real Property Lease that is not a Transferring Real Property Lease;
(e) any Liability relating to any Debt of the Seller Parties or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing Date);
(f) any Liability for any accounts payable or other accruals related to the Business arising prior to the Closing Date;
(g) any Liability arising out of the Seller Parties’ or their Affiliates’ obligations under or agreements with any Payment Programs (including pursuant to any Provider Agreements);
(h) any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from the operation of the Business prior to the Closing Date orincluding, for the avoidance of doubt, from the operation :
(i) any Indebtedness (including any interest thereon or other amounts payable in connection therewith) of the Excluded Business at Company or any point in timeof its Subsidiaries;
(iii) any Liability set forth in Section 2.1(d)(ii) of the Disclosure Schedule;
(iii) any Liability arising out of or relating to or any Payment Program or any other payor Excluded Asset (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business prior to the Closing Date orincluding, for the avoidance of doubt, from the operation of the Excluded Business at any point in timeoutstanding checks);
(jiv) any Liability (A) for Taxes of the Company or any of its Subsidiaries or (B) for Taxes, whether or not accrued, assessed or currently due and payable relating to the operation or arising from ownership of the Business or the Transferred Assets for any Pre-Closing Tax Period; provided, that Taxes for a Security Incident occurring prior to Straddle Period shall be apportioned in the Closing Datemanner described in Section 7.1 hereof;
(kv) all Liabilities of the Company or any Liability of its Subsidiaries arising out of or relating to the Company Plans, except to the extent included in the Assumed Liabilities;
(vi) all Liabilities of the Company or any of its Subsidiaries arising from out of or relating to the Excluded Assets operation or conduct by the Excluded Company or any of its Subsidiaries of any business other than the Business;
(lvii) any Liability arising under for any employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates intercompany accounts payable (including trade accounts payable);
(viii) any of the Seller Parent Benefit Plans;
(m) Company’s Liabilities under this Agreement, any Liability relating toAncillary Agreement, arising from the Disclosure Schedule and any other agreements entered into by the Company or in connection with Business Employees or former employees any of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties its Subsidiaries in connection with the transactions contemplated by this Agreement;
(nix) any Liability arising under Environmental Laws out of or with relating to the Retained Litigation;
(x) any Liability arising out of or relating to any Action relating to or otherwise in respect to Hazardous Substances arising from facts, circumstances of the operation of the Business or conditions, existing, initiated or occurring on or the Transferred Assets prior to the Closing Date and Date, including, for the avoidance of doubt, the matters set forth on Section 2.1(d)(x) of the Disclosure Schedule;
(xi) any Liability arising out of or relating to any Excluded Assets;
(xii) all Liabilities under Shared Contracts to the Business, extent not transferred to the Purchased Assets Acquiror or any real property currently its Affiliates in accordance with Section 5.5;
(xiii) all Liabilities under the IT Asset Contracts to the extent not transferred to the Acquiror or formerly owned, operated, used or leased by the Seller Parties or their its Affiliates;
(oxiv) all Liabilities (A) (1) under any Liability Environmental Laws or otherwise arising out of the Seller Parties or their Affiliates arising from or relating to violation any Environmental Condition relating to the period prior to the Closing and (2) with respect to operations of the Intellectual Business prior to the Closing at the Leased Real Property rights or any former real property used by the Business or (B) relating to the use, application, malfunction, defect, design, operation, performance or suitability of any Product sold or distributed prior to the Closing by or on behalf of, or service of the Business rendered prior to the Closing by or on behalf of, the Company or any of its Subsidiaries to any Person;
(pxv) any Liability arising out ofinvolving current or former employees, related todirectors and individual independent contractors of the Company or its Subsidiaries, including with respect to any wages, bonuses, commissions, independent contractor or agent payments, payroll, workers’ compensation, unemployment benefits, severance, change of control bonuses, success bonuses, stay or retention obligations, or any other similar payments, in connection with, any litigation brought by any stockholder of Seller Parent or derivatively each case except to the extent included in the name of Seller ParentFinal Net Working Capital or the Assumed Liabilities;
(qxvi) discontinued operations of the Business, including product lines that have been disposed of, and including, for the avoidance of doubt, any operations in respect of Harsco Industrial Air-X-Changers Pty. Ltd.; and
(xvii) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed LiabilityTransaction Expenses.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Harsco Corp), Asset Purchase Agreement (Chart Industries Inc)
Excluded Liabilities. Notwithstanding anything any provision in this Agreement or any other writing to the contrary contained herein, other than the Assumed Liabilitiescontrary, the Buyer is not assuming any Liability of any Seller Parties of whatever nature, whether presently in existence or arising hereafter, except for the Liabilities described in Exhibit B, which Buyer hereby assumes effective as of the Closing, defined below. Except for the Liabilities described in Exhibit B, all such Liabilities shall be responsible for all of the Seller Parties’ respective Liabilities not expressly assumed retained by Buyer under this Agreement, and Buyer shall not assume, or in any way be liable or responsible for, any remain Liabilities of the applicable Seller Parties (all such Liabilities not being assumed being herein referred to as the “Excluded Liabilities”). Without limiting the generality of the foregoingThe Excluded Liabilities shall include, Buyer shall not assume the following:
without limitation, (ai) any Liability to pay of any Seller for or on account of income, transfer, sales, use, state or other Taxes of the Seller Parties (including transfer, documentary, sales, use stamp, registration, any conveyance fees or recording charges or any of their Affiliates, regardless of whether arising other Tax incurred in connection with the consummation of the transactions contemplated hereby or otherwise;
Contemplated Transactions), (bii) any Liability of any Seller for the Seller Parties unpaid Taxes of any other Person as a transferee or their Affiliates for performance under this Agreement successor, by contract, or any of the Ancillary Agreements;
otherwise, (ciii) any Liability under any Assigned Contract employee benefit plan, (iv) Liability for any Taxes incurred by any Seller relating to or any Transferring Real Property Lease arising out of facts, circumstances or occurrences existing any period prior to the Closing Date or relating to Closing, (v) any breach, violation or failure to perform that occurred prior to the Closing Date (other than Liabilities Liability in respect of accounts payable or other accrualsany Debt of any Seller, for which Section 1.4(g(vi) shall instead apply);
any contingent liabilities, (dvii) any Liability under of a Company to an Affiliate of a Company or to its stockholders or owners, (viii) any Real Property Lease that is not Liabilities of a Transferring Real Property Lease;
Company’s Affiliates, (eix) any Company Employee Plan, (x) any Liability relating to compliance with Legal Requirements by a Company, employee Liabilities and breaches of any Debt of the Seller Parties or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing Date);
(f) any Liability for any accounts payable or other accruals related to the Business arising prior to the Closing Date;
Closing, (gxi) any Liability arising out Liabilities in respect of the Seller Parties’ or their Affiliates’ obligations under or agreements with any Payment Programs Transaction Expenses, (including pursuant to any Provider Agreements);
(hxii) any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
Assets; and (ixiii) any Liability arising out of or Liabilities relating to or any Payment Program or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(j) any Liability relating to or arising from a Security Incident occurring prior to the Closing Date;
(k) any Liability relating to or arising from the Excluded Assets or the Excluded Business;
(l) any Liability arising under any employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;
(m) any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or prior to the Closing Date and account receivables relating to the Business, the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;
(o) any Liability pre-Closing operations of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed LiabilityBusiness.
Appears in 2 contracts
Samples: Asset Purchase Agreement (WebXU, Inc.), Asset Purchase Agreement (WebXU, Inc.)
Excluded Liabilities. Notwithstanding anything to the contrary contained herein, other than Except for the Assumed Liabilities, the Seller Parties shall be responsible for all of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreement, and Buyer Purchaser shall not assume, assume or in any way be liable or responsible for, for any Liabilities of the Seller Parties Sellers or their Affiliates (collectively, the “Excluded Liabilities”). Without limiting the generality , which Liabilities shall be retained by and remain Liabilities of the foregoingSellers or their Affiliates to be satisfied and discharged by the Sellers or their Affiliates in accordance with their respective terms, Buyer shall not assume including the followingfollowing Excluded Liabilities:
(a) any Liability Liabilities to pay the extent relating to any Taxes of the Seller Parties Excluded Assets or any of their Affiliates, regardless of whether arising in connection with the consummation of the transactions contemplated hereby or otherwiseSellers’ Other Businesses;
(b) any Liability Liabilities of the Seller Parties Sellers or their Affiliates for performance under this Agreement to indemnify, or to advance or reimburse the fees, costs and expenses in relation to indemnifiable claims of any directors, officers, employees or agents of the Sellers or any of their Affiliates relating to, arising out of or resulting from their conduct in such capacities prior to the Ancillary AgreementsClosing;
(c) any Liability under any Assigned Contract or any Transferring Real Property Lease arising out of facts, circumstances or occurrences existing prior to the Closing Date or relating to any breach, violation or failure to perform that occurred prior to the Closing Date (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead apply)Intercompany Payables and Intercompany Agreements;
(d) any Liability under any Real Property Lease that is not a Transferring Real Property LeaseIndebtedness outstanding as of immediately prior to the Closing;
(e) any Liability Liabilities relating to any Debt (i) Taxes of the Seller Parties Sellers or their Affiliates (other thanfor any period or relating to, arising out of or resulting from the Transferred Assets or the Business for the elimination of doubt, any trade payables period or other obligations arising under Assigned Contracts portion thereof ending on or following prior to the Closing Date)Effective Time and (ii) one-half of any Transfer Taxes;
(f) any Liability for any accounts payable or other accruals related to the Business arising prior to the Closing DateExcluded Employee Liabilities;
(g) any Liability arising out of the Seller Parties’ or their Affiliates’ obligations under or agreements with any Payment Programs (including pursuant to any Provider Agreements)Liabilities for Transaction Expenses;
(h) any Liability Liabilities for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(i) Losses relating to any Liability Actions arising out of or relating to any period prior to the Closing and (ii) any fees, costs and expenses incurred in connection with any of the foregoing;
(i) except as otherwise provided in this Agreement or the Transaction Documents, any Liabilities for or in connection with (i) any products or services developed and available for sale, sold or provided by the Sellers or any Payment Program of their Affiliates or (ii) any other payor (including Medicare or Medicaid)Works in Progress, making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered in each case on or after prior to the Closing Date, due to overpaymentsincluding product liability claims, duplicate paymentsintellectual property infringement claims or warranty, fraudrepair and other obligations; provided, incorrect billinghowever, retroactive denials or that the Sellers shall not be responsible for any other reason relating to any action product liability claims or inaction of the Seller Parties warranty or their Affiliates repair obligations for or in connection with the operation of the Business prior any component that was a Work in Progress if and after such component ceases to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point be a Work in timeProgress;
(j) any Liability relating to Liabilities retained by the Sellers or arising from a Security Incident occurring prior to their Affiliates under the Closing DateSublease;
(k) any Liability other Liabilities arising out of, relating to or arising resulting from any current, former or prospective Business Service Provider with respect to his/her services or termination of services at or before the Excluded Assets Closing (including as a result of the consummation of the Contemplated Transactions) with the Sellers or the Excluded Business;any of their Affiliates; and
(l) any Liability arising under any employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;
(m) any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or prior to the Closing Date and relating to the Business, the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;
(o) any Liability of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability Liabilities arising out of, related to, relating to or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed Liabilityresulting from Covered Claims.
Appears in 2 contracts
Samples: Stock and Asset Purchase Agreement (Houghton Mifflin Harcourt Co), Stock and Asset Purchase Agreement (Scholastic Corp)
Excluded Liabilities. Notwithstanding anything to the contrary contained herein, Purchaser shall have no responsibility or liability for any liabilities or other obligations of Seller other than the Assumed Liabilities, and all liabilities and other obligations of Seller other than the Assumed Liabilities shall remain obligations of Seller Parties shall be responsible for all of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreement, and Buyer shall not assume, or in any way be liable or responsible for, any Liabilities of the Seller Parties (the “Excluded Liabilities”). Without limiting the generality of the foregoing, Buyer Excluded Liabilities shall not assume include, without limitation, the following:
: (ai) any Liability to pay any Taxes Liabilities of the Seller Parties pursuant to the WARN Act relating to the action or inaction of any of their Affiliates, regardless of whether arising Party in connection with the consummation of the transactions transaction contemplated hereby or otherwise;
hereby, (bii) any Liability of the Seller Parties or their Affiliates for performance under this Agreement or any of the Ancillary Agreements;
Liabilities (cx) any Liability under any Assigned Contract or any Transferring Real Property Lease arising out of facts, circumstances or occurrences existing prior to the Closing Date or relating to any breach, violation or failure to perform that occurred prior to the Closing Date (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead apply);
(d) any Liability under any Real Property Lease that is not a Transferring Real Property Lease;
(e) any Liability relating to any Debt of the Seller Parties or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing Date);
(f) any Liability for any accounts payable or other accruals related to the Business arising prior to the Closing Date;
(g) any Liability or arising out of the employment or termination of employment by Seller Parties’ or their Affiliates’ obligations under or agreements with any Payment Programs (including pursuant to any Provider Agreements);
(h) any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance its controlled Affiliates of any Health Care Law arising from the operation current or former employee or retiree of the Business prior to the Closing Date orSeller, for the avoidance including any Employee of doubtSeller (and any dependents or beneficiaries thereof) or (y) related to, from the operation of the Excluded Business at any point in time;
(i) any Liability arising out of or relating under any compensation or employee benefit plan, program or arrangement sponsored, maintained or contributed to by Seller or any Payment Program or any other payor (including Medicare or Medicaid)of its Affiliates, making any claims or any offsetsincluding, withholding funds from Buyerwithout limitation, or requiring Buyer to refund any payments for services rendered the Employee Benefit Plans, in each case, whether arising prior to, on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(jiii) any Liability relating Liabilities related to or arising from a Security Incident occurring out of accounts payable, including without limitation those payable to Seller’s Affiliates, and other accrued liabilities in respect of periods prior to the Closing Date;
, (kiv) any Liability Taxes (whether assessed or unassessed) of or relating to the Seller or arising from relating to the Excluded Assets Business or the Excluded Business;
Transferred Assets for any taxable period (lor portion thereof) any Liability arising under any employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;
(m) any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring ending on or prior to the Closing Date and relating Date, or arising or incurred with respect to the Business, the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;
(o) any Liability operations of the Seller Parties prior to the Closing Date, (v) Seller’s share of Transfer Taxes as set forth in Section 7.12(e), (vi) any Liabilities derived or their Affiliates arising resulting from or relating to violation the matters set forth on Schedule 5.6 hereto or Liens expunged with respect to the Transferred Assets by the Sale Order, (vii) any Liabilities related to or arising out of any investigations or proceedings of the Intellectual Property rights of any Person;
U.S. Customs and Border Protection with respect to the Seller or the Business and (pviii) any Liability arising out of, related Liabilities pursuant to, or in connection withunder, any litigation brought by any stockholder the Indenture dated March 23, 2005, among Escada AG, the Subsidiary Guarantors named therein, The Bank of Seller Parent or derivatively in the name of Seller Parent;
New York and AIB BNY Fund Management (qIreland) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed LiabilityLimited.
Appears in 2 contracts
Samples: Asset Purchase and Sale Agreement, Asset Purchase and Sale Agreement
Excluded Liabilities. Notwithstanding anything any other provision in this Agreement to the contrary contained hereincontrary, Purchaser shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of Sellers or any of their Affiliates of any kind or nature whatsoever, whether presently in existence or arising hereafter, other than the Assumed Liabilities, the Seller Parties shall be responsible for all of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreement, and Buyer shall not assume, or in any way be liable or responsible for, any Liabilities of the Seller Parties (the “Excluded Liabilities”). Sellers shall be solely responsible for all Excluded Liabilities and shall, and shall cause each of their Affiliates to, pay and satisfy in due course all Excluded Liabilities. Without limiting the generality of the foregoing, Buyer the Excluded Liabilities shall not assume include the following:
(ai) any Liability to pay any Taxes all Liabilities of the Seller Parties Sellers arising or any of their Affiliates, regardless of whether arising incurred in connection with the consummation negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby or otherwiseand thereby;
(bii) any Liability all Liabilities of the Seller Parties or their Affiliates Sellers for performance under this Agreement or any of the Ancillary AgreementsIndemnified Taxes;
(ciii) any Liability under any Assigned Contract or any Transferring Real Property Lease arising out of facts, circumstances or occurrences existing prior to the Closing Date or relating to any breach, violation or failure to perform that occurred prior to the Closing Date (other than all Liabilities in respect of accounts payable any pending or other accruals, for which Section 1.4(g) shall instead apply)threatened Action;
(div) any Liability all Environmental Claims and all other Liabilities under any Real Property Lease that is not a Transferring Real Property Lease;
(e) any Liability relating to any Debt of the Seller Parties or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing Date);
(f) any Liability for any accounts payable or other accruals related to the Business arising prior to the Closing Date;
(g) any Liability arising out of the Seller Parties’ or their Affiliates’ obligations under or agreements with any Payment Programs (including pursuant to any Provider Agreements);
(h) any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(i) any Liability Environmental Laws arising out of or relating to any actions or omissions of Sellers or any Payment Program or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(j) any Liability relating to or arising from a Security Incident occurring prior to the Closing Date;
(k) any Liability relating to or arising from the Excluded Assets or the Excluded Business;
(l) any Liability arising under any employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;
(m) any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring conditions existing on or prior to the Closing Date and relating to the Business, the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their AffiliatesClosing;
(ov) all Liabilities to indemnify, reimburse or advance amounts to any Liability of the Seller Parties present or their Affiliates arising from former officer, director, employee or relating to violation of the Intellectual Property rights agent of any PersonSeller (including with respect to any breach of fiduciary obligations by same);
(pvi) all Liabilities under the Excluded Contracts;
(vii) all Indebtedness of any Liability Seller and all Liabilities associated therewith;
(viii) all Liabilities arising out of, related to, in respect of or in connection with, any litigation brought with the failure by any stockholder Seller or any of Seller Parent its Affiliates to comply with any Law or derivatively in the name of Seller ParentOrder;
(qix) Liabilities of any kind or nature whatsoever to any direct or indirect investor in C Quadrant or any of its Affiliates; and
(x) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior Seller to the Closing Date; or
(r) any other Liability extent arising out of the operation or conduct by such Seller Parties of any business or their Affiliates that is not specifically included as an Assumed Liabilityoperating activities.
Appears in 2 contracts
Samples: Purchase Agreement (Lowell Farms Inc.), Purchase Agreement
Excluded Liabilities. Notwithstanding anything Neither Buyer nor any Buyer Designee shall assume or be obligated to the contrary contained hereinpay, other than perform or otherwise assume or discharge any liabilities or obligations of Seller or any of its Affiliates, whether direct or indirect, known or unknown, absolute or contingent, except for the Assumed Liabilities, the Seller Parties shall be responsible for Liabilities (all of the Seller Parties’ respective Liabilities such liabilities and obligations not expressly so assumed by Buyer under this Agreement, and Buyer shall not assume, or in any way be liable or responsible for, any Liabilities of the Seller Parties (being referred to herein as the “Excluded Liabilities”). Without limiting For the generality avoidance of doubt, the parties agree that, except for the Assumed Liabilities, Seller and its Subsidiaries shall retain the liabilities and obligations arising from the conduct and operation of the foregoingPurchased Business and ownership of the Purchased Assets on and prior to the Closing Date, Buyer shall and that the Excluded Liabilities include, but are not assume limited to, any and all liabilities or obligations set forth or described in paragraphs (a) through (n) below, and all liabilities and obligations arising from the followingconduct of Seller’s and its Subsidiaries’ businesses other than the Purchased Business (to the extent of the Purchased Assets and the Assumed Liabilities) and ownership of the Excluded Assets, in each case, whether or not any such liability or obligation has a value for accounting purpose or is carried or reflected on or specifically referred to in Seller’s or the applicable Subsidiary’s books or financial statements:
(a) any Liability to pay any Taxes of the Seller Parties or any of their Affiliatesunpaid vacation, regardless of whether arising in connection with the consummation of the transactions contemplated hereby or otherwisepersonal days and floating holidays accrued by Transferred Employees;
(b) any Liability of the Seller Parties or their Affiliates for performance under this Agreement or any of the Ancillary AgreementsExcluded Taxes;
(c) any Liability under any Assigned Contract or any Transferring Real Property Lease arising out of facts, circumstances or occurrences existing prior to the Closing Date or relating to any breach, violation or failure to perform that occurred prior to the Closing Date (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead apply)Environmental Liabilities;
(d) any Liability under and all liabilities or obligations arising out of or related to any Real Property Lease that is not a Transferring Real Property LeaseExcluded Asset, including any Premises and including where such liabilities or obligations may be otherwise borne by Buyer by operation of law (except as explicitly identified as an Assumed Liability);
(e) any Liability liabilities or obligations under any Contract, Licenses or Government Permits arising out of or relating to any Debt of the failure by Seller Parties or their Affiliates (other thanany Affiliate to perform, for the elimination of doubtbreach, any trade payables or other obligations arising under Assigned Contracts default, violation thereof occurring on or following prior to the Closing Date);
(f) any Liability for any accounts payable customer rebate or other accruals related similar incentive obligation with respect to sales of products of the Purchased Business arising prior to on or before the Closing Date;
(g) any Liability arising out trade payables (except to the extent they relate to Purchased Assets to be delivered to Buyer after the Closing Date), indebtedness for borrowed money or guarantees thereof of the Seller Parties’ and its Subsidiaries or their Affiliates’ intercompany obligations under of Seller or agreements with any Payment Programs (including pursuant to any Provider Agreements)Subsidiary;
(h) any Liability for laboratory testing performance and all liabilities or results, obligations relating to or in connection with (i) the employment and any laboratory or medical malpractice claims termination of such employment by Seller or any violation or non-compliance Subsidiary of any Health Care Law employee or former employee of Seller or a Subsidiary on or before the Closing Date; and/or (ii) any employee’s or former employee’s or his/her dependents’ rights or obligations under any fringe benefit of employment with Seller or a Subsidiary, including any Benefit Plan of Seller or an Affiliate of Seller or any ERISA Affiliate and/or (iii) any liability arising out of Seller’s or any Affiliate’s obligations to inform, notify or consult any employee of Seller or any Affiliate or their appropriate representatives concerning the sale of the Purchased Business and all liabilities, obligations, costs claims and demands arising from the operation or in respect of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in timesuch liability or obligation;
(i) any Liability arising out of and all liabilities or obligations in connection with, or relating to to, any actions, suits, claims or proceedings against Seller or any Payment Program Subsidiary which arise or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered accrue on or after before the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(j) any Liability benefit liabilities relating to or arising in connection with Section 4980B of the Code (COBRA) or otherwise by operation of applicable Law to provide continuation of health care coverage to employees or former employees of Seller or a Subsidiary or their dependents arising from a Security Incident qualifying event occurring prior to on or before the Closing Date;
(k) any Liability relating to or arising from liabilities of the Excluded Assets or the Excluded BusinessBenefit Plans;
(l) any Liability liabilities relating to or arising under from violations of applicable Law by Seller or any employee compensation Affiliate prior to or employee benefit plan adopted by on the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;Closing Date; and
(m) any Liability relating to, arising from all costs and expenses incurred by Seller or in connection with Business Employees or former employees an applicable Subsidiary incident to the negotiation and preparation of the Business during all time periods prior to this Agreement and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection its performance and compliance with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or prior to the Closing Date agreements and relating to the Business, the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;
(o) any Liability of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed Liabilityconditions contained herein.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Verso Technologies Inc), Asset Purchase Agreement (NMS Communications Corp)
Excluded Liabilities. Notwithstanding anything Section 2.03 or any other provision in this Agreement to the contrary contained hereincontrary, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities, the Seller Parties shall be responsible for all of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreement, and Buyer shall not assume, or in any way be liable or responsible for, any Liabilities of the Seller Parties (the “Excluded Liabilities”). Seller shall pay and satisfy in due course all Excluded Liabilities. Without limiting the generality of the foregoing, Buyer the Excluded Liabilities shall not assume include the following:
(a) any Liability all trade accounts payable of Seller to pay any Taxes of the Seller Parties or any of their Affiliates, regardless of whether arising third parties in connection with the consummation Business that remain unpaid as of the transactions contemplated hereby or otherwiseClosing Date;
(b) any Liability of Seller arising or incurred in connection with the Seller Parties or their Affiliates for negotiation, preparation, investigation and performance under of this Agreement or any of Agreement, the Ancillary AgreementsDocuments and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(c) any Liability for (i) Taxes of Seller (or any stockholder or Affiliate of Seller) or the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period; (ii) Taxes that arise out of the consummation of the transactions contemplated hereby; or (iii) other Taxes of Seller (or any stockholder or Affiliate of Seller) of any kind or description (including any Liability for Taxes of Seller (or any stockholder or Affiliate of Seller) that becomes a Liability of Buyer under any Assigned Contract common law doctrine of de facto merger or any Transferring Real Property Lease arising out transferee or successor liability or otherwise by operation of facts, circumstances contract or occurrences existing prior to the Closing Date or relating to any breach, violation or failure to perform that occurred prior to the Closing Date (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead applyLaw);
(d) any Liability under any Real Property Lease that is not a Transferring Real Property LeaseLiabilities relating to or arising out of the Excluded Assets;
(e) any Liability Liabilities in respect of any pending or threatened Action arising out of, relating to any Debt or otherwise in respect of the Seller Parties operation of the Business or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts Purchased Assets to the extent such Action relates to such operation on or following the Closing Date);
(f) any Liability for any accounts payable or other accruals related to the Business arising prior to the Closing Date;
(f) any product liability or similar claim for injury to a Person or property that arises out of or is based upon any express or implied representation, warranty, agreement or guaranty made by Seller, or by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured or sold or any service performed by Seller prior to the Closing Date, irrespective of whether such claim or resulting Liability arose prior to, on or after the Closing;
(g) any recall, design defect or similar claims of any products manufactured or sold or any service performed by Seller prior to the Closing Date, irrespective of whether such claim or resulting Liability arising out of arose prior to, on or after the Seller Parties’ or their Affiliates’ obligations under or agreements with any Payment Programs (including pursuant to any Provider Agreements)Closing;
(h) any Liability for laboratory testing performance Liabilities of Seller arising under or resultsin connection with any Seller Employee Plan, any laboratory irrespective of whether such Liabilities arose prior to, on or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from after the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in timeClosing;
(i) any Liability arising out Liabilities of Seller for any present or relating to former Seller Employee, officers, directors, retirees, independent contractors or consultants of Seller, including any Payment Program or any other payor (including Medicare or Medicaid), making Liabilities associated with any claims for wages or any offsetsother benefits, withholding funds from Buyerbonuses, accrued vacation, workers’ compensation, severance, retention, termination or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate other payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(j) any Liability relating Liabilities with respect to the Continuing Employees that relate to the period prior to the Closing or arising from that arise on or prior to the Closing;
(k) all Liabilities under Seller’s 2017 Non-Qualified Equity Incentive Plan, the 2003 CardioTech Stock Incentive Plan and any employee stock ownership plan or program;
(l) any Liabilities and obligations related to the provision of notice or payment in lieu of notice and applicable penalties under the Worker Adjustment and Retraining Notification Act of 1988 (“WARN”) or any comparable state or local Law or any similar provision in a Security Incident occurring collective bargaining agreement related to termination for which the initial provision of notice occurs on or prior to the Closing Date;
(k) any Liability relating to or arising from the Excluded Assets or the Excluded Business;
(l) any Liability arising under any employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;
(m) any Liability relating toLiabilities and obligations related to wages, arising from bonuses, commissions, independent contractor payments, payroll, workers’ compensation, unemployment benefits, stay, change of control, severance, bonus or similar payments due by Seller to any Person under any plan, agreement or arrangement of Seller which obligation, in connection with Business Employees each case, either arises at or former employees of the Business during all time periods prior to and through the Closing, including any severance, change is payable or becomes due in control whole or other payments triggered upon termination in part as a result of employment with any Seller Parties in connection with the consummation of the transactions contemplated by this Agreement, including all employer Taxes that are payable in connection with or as a result of the payment of such liability or obligation;
(n) any Liability arising Liabilities and obligations relating to the classification by Seller of any Person who has performed services to, for or on behalf of the Business prior to the Closing as an employee or an independent contractor, or as an exempt or non-exempt employee under the Fair Labor Standards Act of 1938, as amended, and comparable state and local Laws;
(o) any Environmental Claims, or Liabilities under Environmental Laws Laws, to the extent arising out of or with respect relating to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring conditions existing on or prior to the Closing Date and relating to the BusinessDate, the Purchased Assets including any post-Closing migration or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;
(o) any Liability degradation of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any PersonHazardous Materials;
(p) any Liability Liabilities of the Business relating to or arising out offrom unfulfilled commitments, related toquotations, purchase orders, customer orders or in connection with, any litigation brought work orders that (i) do not constitute part of the Purchased Assets issued by any stockholder of the Business’ customers to Seller Parent on or derivatively before the Closing; (ii) did not arise in the name ordinary course of Seller Parentbusiness; or (iii) are not validly and effectively assigned to Buyer pursuant to this Agreement;
(q) all any Liabilities related to indemnify, reimburse or advance amounts to any Action present or the defenseformer officer, settlement director, employee or agent of Seller (including with respect to any breach of fiduciary obligations by same) (other disposition of than pursuant to any Action occurring prior the Closing Date; orAssumed Contracts);
(r) any Liabilities under any Contracts (other Liability than Assumed Contracts) (i) that are not validly and effectively assigned to Buyer pursuant to this Agreement, or (ii) to the extent such Liabilities arise out of or relate to a breach by Seller of such Contracts prior to Closing;
(s) any Liabilities associated with debt, loans or credit facilities of Seller or the Business, owing to financial institutions or other third parties; and
(t) any Liabilities arising out of, in respect of or in connection with the failure by Seller Parties or their any of its Affiliates that is not specifically included as an Assumed Liabilityto comply with any Law or Governmental Order.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Adams Michael F), Asset Purchase Agreement (AdvanSource Biomaterials Corp)
Excluded Liabilities. Notwithstanding anything Purchaser and its Affiliates shall have no obligations with respect to any of the contrary contained herein, other than the Assumed Liabilities, the Seller Parties shall be responsible for all following Liabilities of any member of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this AgreementGroup, and Buyer shall not assume, or in any way be liable or responsible for, any Liabilities the applicable member of the Seller Parties Group shall remain responsible for paying, performing and discharging when due all such Liabilities (collectively, the “Excluded Liabilities”). Without limiting the generality of the foregoing, Buyer shall not assume the following:):
(a) any Liability to pay any Taxes All Liabilities of Seller and the other members of the Seller Parties Group to the extent either arising out of or any of their Affiliates, regardless of whether arising in connection with relating to the consummation of the transactions contemplated hereby or otherwiseExcluded Assets;
(b) All Liabilities for Taxes relating to the Transferred Assets or the Assumed Liabilities for which Seller is responsible pursuant to Section 7.1(iii);
(c) All Liabilities agreed to be performed by Seller or any Liability member of the Seller Parties or their Affiliates for performance under Group pursuant to the terms of this Agreement or any of the Ancillary Agreements;
(cd) any Liability under any Assigned Contract or any Transferring Real Property Lease arising out of facts, circumstances or occurrences existing prior to the Closing Date or relating to any breach, violation or failure to perform that occurred prior to the Closing Date All Liabilities (other than Liabilities in respect for Taxes) resulting from the manner of accounts payable or other accruals, for which Section 1.4(g) shall instead apply);
(d) any Liability under any Real Property Lease that is not a Transferring Real Property Leaseconducting the Pre-Closing Restructuring;
(e) Any Indebtedness (other than any Liability relating to any Debt intercompany Indebtedness solely between members of the Alkali Group) of the Seller Parties Group, of the Alkali Group or their Affiliates (other than, for of the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing Date)Business;
(f) All out-of-pocket expenses of any Liability for any accounts payable member of the Seller Group arising or other accruals related to the Business arising incurred prior to the Closing Datein connection with the negotiation, preparation, investigation and performance of this Agreement, the Ancillary Agreement and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel, accountants, consultants and advisers;
(g) any Liability arising out Except to the extent set forth on Section 5.7 of the Seller Parties’ Disclosure Schedule, all intercompany Liabilities or their Affiliates’ obligations under intercompany payables between any member of the Seller Group, on the one hand, and any member of the Alkali Group, on the other hand, of any kind or agreements with any Payment Programs (including pursuant to any Provider Agreements)nature;
(h) Except as otherwise set forth in this Agreement, all Liabilities under (i) the Seller Benefit Plans and (ii) any Liability for laboratory testing performance or resultsother “employee benefit plan” (within the meaning of Section 3(3) of ERISA), other than any laboratory or medical malpractice claims or Business Employee Plans, with respect to which Seller has any violation or non-compliance of any Health Care Law arising from the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;Liability; and
(i) All Liabilities of Seller under the Revenue Bonds (except for any Liability and all such Liabilities arising out of or relating to or any Payment Program or any other payor (including Medicare or Medicaida breach of Section 5.16 by Purchaser), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(j) any Liability relating to or arising from a Security Incident occurring prior to the Closing Date;
(k) any Liability relating to or arising from the Excluded Assets or the Excluded Business;
(l) any Liability arising under any employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;
(m) any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or prior to the Closing Date and relating to the Business, the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;
(o) any Liability of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed Liability.
Appears in 2 contracts
Samples: Stock and Asset Purchase Agreement (Tronox LTD), Stock and Asset Purchase Agreement (FMC Corp)
Excluded Liabilities. Notwithstanding anything to the contrary contained herein, other than the Assumed Liabilities, the Seller Parties shall be responsible for all Neither Buyer nor either of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreement, and Subsidiaries nor any other Affiliate of Buyer shall not assume, or in will have any way be liable or responsible for, responsibility for any Liabilities of the Seller Parties of any nature whatsoever that do not constitute Assumed Liabilities (collectively, the “Excluded Liabilities”). Without limiting For the generality avoidance of doubt, the foregoing, Buyer parties acknowledge and agree that the Excluded Liabilities shall not assume the followinginclude any and all Liabilities:
(a) related to any Liability to pay any Taxes Indebtedness of the Seller Parties or any of their Affiliates, regardless of whether arising in connection with the consummation of the transactions contemplated hereby or otherwiseand Seller Transaction Expenses;
(b) any Liability of the Seller Parties or their Affiliates for performance under this Agreement or any of the Ancillary Agreements;
(c) any Liability under any Assigned Contract or any Transferring Real Property Lease arising out of facts, circumstances or occurrences existing prior to the Closing Date or relating to any breach, violation or failure to perform that occurred prior to the Closing Date (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead apply);
(d) any Liability under any Real Property Lease that is not a Transferring Real Property Lease;
(e) any Liability relating to any Debt of the Seller Parties or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing Date);
(f) any Liability for any accounts payable or other accruals related to the Business arising prior to the Closing Date;
(g) any Liability arising out of the Seller Parties’ or their Affiliates’ obligations under or agreements with any Payment Programs (including pursuant to any Provider Agreements);
(h) any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
Taxes (i) any Liability arising out of or relating to or any Payment Program or any other payor Seller, (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(jii) any Liability relating to or arising from a Security Incident occurring prior to the Closing Date;
(k) any Liability relating to or arising from the Excluded Assets or the Excluded Business;
(l) any Liability arising under any employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;
(m) any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or prior to the Closing Date and relating to the Business, the Purchased Assets or the Assumed Liabilities for any real property currently Pre-Closing Tax Period; (iii) that arise out of the consummation of the transactions contemplated hereby or formerly ownedthat are the responsibility of Seller pursuant to Section 7.5(a); (iv) of any Person of any kind or description that becomes a Liability of Buyer under any common law doctrine of de facto merger or transferee or successor Liability or otherwise by operation of Contract or Legal Requirement in connection with the transactions contemplated hereby; or (v) relating to the Business, operated, used the Purchased Assets or leased the Assumed Liabilities arising from any action taken by the Seller Parties or their Affiliateson the Closing Date before the Closing outside the ordinary course of business;
(oc) obligation of Seller to indemnify any Liability Person by reason of the fact that the Person was a partner, manager, trustee, director, officer, employee or agent of Seller Parties or their any of its Affiliates arising from or relating to violation of was serving at the Intellectual Property rights request of any such Person as a partner, manager, trustee, director, officer, employee or agent of another Person;
(pd) resulting from, arising out of or relating to, or caused by any Liability Excluded Asset;
(e) resulting from, arising out of, related torelating to or caused by (i) any Benefit Plans or (ii) any compensation, salary, wages, or in connection with, commissions owing to any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parentemployees;
(qf) resulting from, arising out of, relating to or caused by any Environmental Claim arising prior to the Closing; and
(g) other than the Assumed Liabilities, all Liabilities arising from or related to any Action or the defense, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) any other Liability operation of the Seller Parties or their Affiliates that is not specifically included as an Assumed LiabilityBusiness prior to the Closing.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Advanced BioEnergy, LLC), Asset Purchase Agreement
Excluded Liabilities. Notwithstanding anything the provisions of Section 2.3 or any other provision in this Agreement to the contrary contained hereincontrary, Buyer shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of Seller or any of its Affiliates of any kind or nature whatsoever, and Seller shall, and shall cause each of its Affiliates to, pay and satisfy when due and remain liable for any and all Liabilities that encumber the Business or the Purchased Assets, in each case other than the Assumed LiabilitiesLiabilities (collectively, the Seller Parties shall be responsible for all of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreement, and Buyer shall not assume, or in any way be liable or responsible for, any Liabilities of the Seller Parties (the “Excluded Liabilities”). Without limiting the generality of the foregoing, Buyer shall not assume including, without limitation, the following:
(a) any Liability to pay any Taxes Liabilities of the Seller Parties arising or any of their Affiliates, regardless of whether arising incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the applicable Ancillary Documents and the Contemplated Transactions, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any Liability for (i) Taxes of Seller (or the Member or any Affiliate of Seller or the Member) or relating to the Business, the Purchased Assets or the Assumed Liabilities for the Pre-Closing Period; (ii) Taxes that arise out of the consummation of the transactions contemplated hereby or otherwise;
that are the responsibility of Seller pursuant to Sections 10.1(a) or 10.1(b); or (biii) other Taxes of Seller (or the Member or Affiliate of Seller or the Member) of any kind or description (including any Liability for Taxes of Seller (or the Member or Affiliate of Seller Parties or their Affiliates for performance the Member) that becomes a Liability of Buyer under this Agreement any common law doctrine of de facto merger or any transferee or successor liability or otherwise by operation of the Ancillary Agreementscontract or Law);
(c) all Accounts Payable;
(d) any Liability under any Assigned Contract Liabilities relating to or any Transferring Real Property Lease arising out of factsor incurred in connection with, circumstances any of the Excluded Assets;
(e) any Liabilities in respect of any pending or occurrences existing threatened Action arising out of, relating to or otherwise in respect of the operation of the Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing;
(f) all employee-related Liabilities and obligations of Seller incurred prior to the Closing Date or arising out of or relating to any breachevent, violation action or failure inaction occurring prior to perform that occurred the Closing Date, including all Liabilities and obligations of Seller arising under or relating to Plans (or any insurance or service contract related thereto) or relating to payroll, vacation, sick leave, workers’ compensation and unemployment benefits of any kind, prior to the Closing Date (other than Liabilities in respect notwithstanding the continuation of accounts payable or other accruals, for which Section 1.4(g) shall instead apply);
(d) any Liability account under any Real Property Lease that is not a Transferring Real Property Lease;
(e) any Liability relating to any Debt of the Seller Parties or their Affiliates (other thanPlan mandated by applicable Law, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts all Liabilities accrued on or following the Closing Date);
(f) any Liability for any accounts payable or other accruals related to the Business arising prior to the Closing DateDate pursuant to any Plan shall be considered an Excluded Liability for purposes of this Section 2.4);
(g) any Liability arising out Liabilities of the Seller Parties’ Member or their Affiliates’ obligations under or agreements with any Payment Programs (including pursuant to any Provider Agreements)Affiliate of the Member;
(h) any Liability for laboratory testing performance Environmental Claims, or resultsLiabilities under Environmental Laws, arising out of or relating to any laboratory past or medical malpractice claims present Events existing on or prior to the Closing;
(i) any violation Liabilities of the Business relating or non-compliance of any Health Care Law arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to Seller on or before the Closing, (ii) did not arise in the ordinary course of business or (iii) are not validly and effectively assigned to Buyer pursuant to this Agreement;
(j) any Liabilities to indemnify, reimburse or advance amounts to any present or former Business Employee (including with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section 8.2(a);
(k) any Liabilities under any Contracts, including Intellectual Property Licenses, (i) which are not validly and effectively assigned to Buyer pursuant to this Agreement, (ii) which do not conform to the representations and warranties with respect thereto contained in this Agreement or (iii) to the extent such Liabilities arise out of or relate to the operation of the Business prior to the Closing Date or, for the avoidance or a breach by Seller of doubt, from the operation of the Excluded Business at any point in time;
(i) any Liability arising out of or relating to or any Payment Program or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business such Contracts prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(j) any Liability relating to or arising from a Security Incident occurring prior to the Closing Date;
(k) any Liability relating to or arising from the Excluded Assets or the Excluded BusinessClosing;
(l) any Liability arising under any employee compensation or employee benefit plan adopted by Liabilities associated with Indebtedness outstanding as of immediately prior to the Seller Parties or their Affiliates including any of the Seller Parent Benefit PlansClosing;
(m) any Liability relating toLiabilities arising out of, arising from in respect of or in connection with Business Employees the failure by Seller or former employees any of the Business during all time periods prior its Affiliates to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment comply with any Seller Parties in connection with the transactions contemplated by this Agreement;Law or Order; and
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or prior to the Closing Date and relating to the Business, the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;
(o) any Liability of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder Liabilities of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement Member based upon Seller’s or other disposition of any Action the Member’s acts or omissions occurring prior after the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed Liabilitydate hereof.
Appears in 1 contract
Samples: Asset Purchase Agreement (Quality Distribution Inc)
Excluded Liabilities. Notwithstanding anything Except as and to the contrary contained hereinlimited extent specifically set forth in Section 2.03, BofI is not assuming any Liabilities of HRB Bank. HRB Bank is, and following the Closing HRB Bank will continue to be, responsible for all Liabilities of HRB Bank other than the Assumed LiabilitiesLiabilities (collectively, the Seller Parties shall be responsible for all of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreement, and Buyer shall not assume, or in any way be liable or responsible for, any Liabilities of the Seller Parties (the “Excluded Liabilities”). Without limiting the generality of the foregoing, Buyer shall not assume the Excluded Liabilities include the following:
(a) any Liability to pay any Taxes arising out of the Seller Parties or any of their Affiliates, regardless of whether arising in connection with the consummation business of the transactions contemplated hereby or otherwise;
(b) any Liability of the Seller Parties or their Affiliates for performance under this Agreement HRB Bank or any transactions or series of the Ancillary Agreements;
(c) transactions, any Liability under any Assigned Contract facts or series of facts existing, or any Transferring Real Property Lease arising out events or series of facts, circumstances or occurrences existing prior events to the Closing Date extent they occurred on or relating to any breach, violation or failure to perform that occurred prior to the Closing Date (other than the Liabilities in expressly assumed by BofI pursuant to Section 2.03);
(b) any Liability with respect of accounts payable to employment or consulting agreements, pension, profit-sharing, welfare or benefit plans, or amounts owing for commissions or compensation, termination, severance or other accrualspayments to present or former employees, officers, managers or members of HRB Bank and/or to the spouse, dependents, and beneficiaries of such individuals, regardless of whether any such person is employed by HRB Bank or BofI following the Closing;
(c) any Liability of HRB Bank for which Section 1.4(g) shall instead apply)any Taxes of any kind or nature, or any interest or penalties thereon, including any of HRB Bank's Tax obligations arising out of the transactions contemplated hereunder;
(d) any Liability under any Real Property Lease that is not a Transferring Real Property Leaseall FHLB Advances (if any) and Federal Reserve Borrowings (if any);
(e) any Liability under or relating to any Debt of the Seller Parties or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing Date)Retained Contracts;
(f) any Liability arising from or relating to the Excluded Assets;
(g) any Liability for any accounts payable commissions or other accruals related payments due to the Business arising brokers on any Brokered Deposits incurred or accrued prior to the Closing Date;
(g) any Liability arising out of the Seller Parties’ or their Affiliates’ obligations under or agreements with any Payment Programs (including pursuant to any Provider Agreements);
(h) any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law Liabilities arising from the operation of the Business prior or related to the Closing Date orPending Litigation, for the avoidance of doubt, which are expressly retained by HRB Bank and expressly excluded from the operation of the Excluded Business at any point in time;Assumed Liabilities to be assumed by BofI; and
(i) any Liability arising out fee payable by HRB Bank pursuant to its engagement letter with either of Xxxxxxx, Xxxxx. & Co. or relating to or any Payment Program First Annapolis Consulting, Inc. or any other payor (including Medicare broker, investment bank, consultant or Medicaid)other advisor engaged by HRB Bank, making any claims Block Financial or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for Affiliate thereof and any other reason relating to costs, expenses or other Liabilities incurred by HRB Bank, Block Financial or any action or inaction of the Seller Parties or their Affiliates Affiliate thereof in connection with the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(j) any Liability relating to or arising from a Security Incident occurring prior to the Closing Date;
(k) any Liability relating to or arising from the Excluded Assets or the Excluded Business;
(l) any Liability arising under any employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;
(m) any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or prior to the Closing Date and relating to the Business, the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;
(o) any Liability of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed LiabilityDivestiture Transactions.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything Buyer shall not assume or be obligated to the contrary contained hereinpay, other than the Assumed Liabilitiesperform or otherwise discharge any liability or obligation of any Seller, the Seller Parties shall be responsible for all of the Seller Parties’ respective Liabilities direct or indirect, known or unknown, absolute or contingent, not expressly assumed by Buyer under pursuant to the Instrument of Assumption (all such liabilities and obligations not being assumed being herein called the "Excluded Liabilities") and, notwithstanding anything to the contrary in SECTION 2.3, none of the following shall be Assumed Liabilities for purposes of this Agreement, and Buyer shall not assume, or in any way be liable or responsible for, any Liabilities of the Seller Parties (the “Excluded Liabilities”). Without limiting the generality of the foregoing, Buyer shall not assume the following:
(a) any Liability liabilities in respect of Taxes for which any Seller is liable pursuant to pay any Taxes of the Seller Parties or any of their Affiliates, regardless of whether arising in connection with the consummation of the transactions contemplated hereby or otherwiseSECTION 8.3;
(b) any Liability payables and other liabilities or obligations of the Divisions to any Seller Parties or their Affiliates for performance under this Agreement or any of the Ancillary Agreementstheir respective Affiliates;
(c) any Liability under costs and expenses incurred by any Assigned Contract Seller incident to its negotiation and preparation of this Agreement and its performance and compliance with the agreements and conditions contained herein;
(d) any liabilities or obligations in respect of any Transferring Real Excluded Assets;
(e) any liabilities in respect of the lawsuits, claims, suits, proceedings or investigations set forth in SCHEDULE 5.22;
(f) accrued liabilities of any kind, including accrued payroll, accrued expenses and accrued sales tax liabilities;
(g) any liabilities and obligations related to, or arising from (i) the occupancy, operation, use or control of any of the Business Property Lease arising out of facts, circumstances or occurrences existing prior to the Closing Date or relating to any breach, violation or failure to perform that occurred prior to the Closing Date (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(gii) shall instead apply);
(d) any Liability under any Real Property Lease that is not a Transferring Real Property Lease;
(e) any Liability relating to any Debt of the Seller Parties or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing Date);
(f) any Liability for any accounts payable or other accruals related to the Business arising prior to the Closing Date;
(g) any Liability arising out of the Seller Parties’ or their Affiliates’ obligations under or agreements with any Payment Programs (including pursuant to any Provider Agreements);
(h) any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from the operation of the Business prior to the Closing Date orDate, for in each case incurred or imposed by any Environmental Law, including liabilities and obligations related to, or arising from, any Release of any Contaminant on, at or from (A) the avoidance of doubtBusiness Property, from the operation of the Excluded Business at any point in time;
(i) any Liability arising out of including all facilities, improvements, structures and equipment thereon, surface water thereon or relating to adjacent thereto and soil or groundwater thereunder, or any Payment Program conditions whatsoever on, under or any other payor (including Medicare or Medicaid)in the vicinity of such real property, making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business each case prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
or (jB) any Liability relating real property or facility owned by a third Person to or arising from a Security Incident occurring which Contaminants generated by the Business were sent prior to the Closing Date;
(h) any product liability or claims for injury to person or property, regardless of when made or asserted, relating to products distributed or sold by either Division or services performed by any Seller prior to the Closing Date;
(i) obligations and liabilities relating to the Xxxxxx'x relationship;
(j) the systems contracts, agreements or commitments (other than those related exclusively or primarily to the Chicago Division);
(k) fees or commissions of any Liability relating to broker, finder, financial advisor or arising from the Excluded Assets or the Excluded Businessintermediary, including Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation;
(l) other than as set forth in SECTION 2.3(d) and (e), employee severance, stay bonuses and other employee obligations and liabilities to any Liability arising under any employee compensation current or employee benefit plan adopted by the Seller Parties or their Affiliates including any former employees of the Seller Parent Benefit PlansBusiness;
(m) current payables of any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreementkind;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or prior to the Closing Date obligations and liabilities relating to the Business, the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;Ogilvy relationship; and
(o) any Liability of the Seller Parties or their Affiliates arising from or obligations and liabilities relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively trucks used in the name of Seller Parent;
(q) all Liabilities related to Maryland Division, including any Action equipment located therein or the defense, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed Liabilityaffixed thereto.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything Specifically, and without in any way limiting the generality of Section 2.4(a), the Assumed Liabilities will not include, and in no event will the Purchaser assume, agree to pay, discharge or satisfy, or otherwise have any responsibility for, any liability or obligation (together with all other liabilities of the contrary contained herein, other than the Company that are not Assumed Liabilities, the Seller Parties shall be responsible for all of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreement, and Buyer shall not assume, or in any way be liable or responsible for, any Liabilities of the Seller Parties (the “"Excluded Liabilities”). Without limiting the generality of the foregoing, Buyer shall not assume the following:"):
(a) relating to any Liability liability or obligation (including, without limitation, accounts payable) owed to pay any Taxes shareholder or any Affiliate of the Seller Parties or any of their Affiliates, regardless of whether arising in connection with the consummation of the transactions contemplated hereby or otherwiseCompany;
(b) for Taxes with respect to any Liability of the Seller Parties or their Affiliates for performance under this Agreement or any of the Ancillary Agreementsperiod;
(c) for any Liability under indebtedness with respect to borrowed money and notes payable, including any Assigned Contract interest or any Transferring Real Property Lease arising out of factspenalties accrued thereon, circumstances or occurrences existing prior to (collectively, the "Closing Date or relating to any breach, violation or failure to perform that occurred prior to the Closing Date (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead applyIndebtedness");
(d) relating to, resulting from or arising out of (i) claims made in pending or future Proceedings or (ii) claims based on violations of law as in effect on or prior to the Closing, breach of contract, employment practices, or environmental, health and safety matters or any Liability under other actual or alleged failure of the Company to perform any Real Property Lease that is not a Transferring Real Property Leaseobligation, in each case arising out of or relating to events which shall have occurred, or services performed, or the operation of the Business, prior to the Closing;
(e) any Liability relating pertaining to any Debt of the Seller Parties or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing Date)Excluded Asset;
(f) relating to, resulting from or arising out of any Liability for any accounts payable former operations of the Company that have been discontinued or other accruals related disposed of prior to the Business arising Closing;
(g) under or relating to any Company Benefit Plan, whether or not such liability or obligation arises prior to or after the Closing Date;
(gh) any Liability arising out of the Seller Parties’ Company arising or their Affiliates’ obligations under incurred in connection with the negotiation, preparation and execution of this Agreement and the transactions contemplated hereby and any fees and expenses of counsel, accountants, brokers, financial advisors or agreements with any Payment Programs (including pursuant to any Provider Agreements);
(h) any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from the operation other experts of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;Company; and
(i) any Liability arising out of or relating to or any Payment Program or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason Environmental Indemnification Obligations. Such Excluded Liabilities shall include all Proceedings relating to any action or inaction all of the Seller Parties or their Affiliates foregoing and all costs and expenses in connection with the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(j) any Liability relating to or arising from a Security Incident occurring prior to the Closing Date;
(k) any Liability relating to or arising from the Excluded Assets or the Excluded Business;
(l) any Liability arising under any employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;
(m) any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or prior to the Closing Date and relating to the Business, the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;
(o) any Liability of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed Liabilitytherewith.
Appears in 1 contract
Samples: Asset Purchase Agreement (North American Galvanizing & Coatings Inc)
Excluded Liabilities. Notwithstanding anything any provision in this Agreement to the contrary contained hereincontrary, other than except for the Assumed Liabilities, the Seller Parties shall be responsible for all of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreement, and Buyer shall not assumeassume or be obligated to pay, perform or in otherwise discharge any way be liable or responsible for, any other Liabilities of Seller. From and after the Closing, Seller Parties shall remain liable for and shall pay, perform and discharge when due all Liabilities of Seller and its Affiliates that are not specifically included in the Assumed Liabilities (the “Excluded Liabilities”). Without limiting the generality of the foregoing, Buyer shall including, but not assume limited to, the following:
(ai) all Liabilities of Seller under or related to the Excluded Assets, including all Liabilities of Seller under or related to Excluded Contracts;
(ii) all Liabilities of Seller arising from the breach or default (or any Liability act or omission by Seller which, with or without notice or lapse of time or both, would constitute a breach or default) prior to pay the Closing of any term, covenant or provision of any Contract;
(iii) all Liabilities of Seller related to the current portion of long-term debt, cash overdrafts and the fair value of derivatives;
(iv) all Liabilities for Taxes with respect to the Business or Acquired Assets for all periods prior to the Effective Time;
(v) all Liabilities of Seller now existing or which may hereafter exist by reason of any violation or alleged violation of any Laws, including but not limited to any Laws with respect to the Seller Parties termination of employment or period of service of any employee or independent contractor employed or retained by Seller, or any of their Affiliates, regardless before or at the time of whether the Closing, or by an employee or independent contractor of Seller in which Seller is alleged to be responsible for the acts or omissions of any such Person, relating to the ownership, use or operation of the Acquired Assets or the Business prior to the Closing;
(vi) all Liabilities of Seller arising out of or relating to any Proceeding against Seller or any of their employees or agents to the extent (A) resulting from any acts or omissions which occurred prior to the Closing, (B) in respect of the operation of the Business to the extent such litigation or claim related to the operation of the Business on or prior to the Closing Date, or (C) with respect to any Excluded Assets;
(vii) all Liabilities arising out of or related to any Employee Plan, or relating to payroll, vacation, sick leave, workers’ compensation, unemployment benefits, pension benefits, employee equity incentive or profit sharing plans, health care plans or benefits, or any other employee plans or benefits of any kind for Seller’s or any of Seller’s Affiliates’ employees or former employees or both, including but not limited to claims listed on Schedule 1.4(b)(vii);
(viii) all Liabilities arising out of or relating to violations of any Environmental Laws arising from any real property owned or utilized in connection with the Business prior to the Closing, including the Wilmarco Avenue Property (the “Real Property”), or any condition thereon;
(ix) any Liability arising out of or relating to Seller’s leasing or operation of the Real Property;
(x) any Liability to any taxing authority arising out of Laws applicable to bulk sales transactions and any Liability arising out of non-compliance with such bulk sales Laws (except for any applicable sales Taxes due with respect to the transfer to Buyer of owned motor vehicles included in the Acquired Assets, as provided in Section 4.5);
(xi) any Liability to indemnify, reimburse or advance amounts to any officer, director, employee or agent of Seller;
(xii) any Liability arising out of or relating to the products of Seller to the extent sold prior to the Effective Time;
(xiii) any Liability of Seller or any other Person to distribute to the Stockholders or otherwise apply all or any part of the consideration received hereunder;
(xiv) any Liability of Seller for income, transfer, sales, use, and other Taxes arising in connection with the consummation of the transactions contemplated hereby or otherwise;
(b) including any Liability of income Taxes arising because Seller is transferring the Seller Parties or their Affiliates for performance under this Agreement or any of the Ancillary Agreements;
(c) any Liability under any Assigned Contract or any Transferring Real Property Lease arising out of facts, circumstances or occurrences existing prior to the Closing Date or relating to any breach, violation or failure to perform that occurred prior to the Closing Date (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead applyAcquired Assets);
(dxv) any Liability all obligations of Seller for Indebtedness, including obligations under any Real Property Lease that is not a Transferring Real Property Leaseguarantees for Affiliate Indebtedness;
(exvi) any Liability relating to any Debt of the Seller Parties or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing Date);
(f) any Liability for any accounts payable or other accruals related to the Business arising prior to the Closing Date;
(g) any Liability arising out of the Seller Parties’ or their Affiliates’ obligations under or agreements with any Payment Programs (including pursuant to any Provider Agreements);
(h) any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(i) any Liability all Liabilities arising out of or relating to the termination of employment or period of service of any employee or independent contractor employed or retained by Seller, or any Payment Program or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyerof its Affiliates, or requiring Buyer to refund any payments for services rendered on arising out of or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their Affiliates in connection with the operation Seller’s sale of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(j) any Liability relating to or arising from a Security Incident occurring prior to the Closing Date;
(k) any Liability relating to or arising from the Excluded Assets or the Excluded Business;
(l) any Liability arising under any employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;
(m) any Liability relating toAcquired Assets to Buyer, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or prior to the Closing Date and relating to the Business, the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;
(o) any Liability of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior the Closing DateClosing; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed Liability.and
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything to the contrary contained herein, other than the Assumed Liabilities, the Seller Parties shall be responsible for all of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under in this Agreement, and neither Buyer nor any Affiliate of Buyer (including the Buyer Designees) shall not assume, assume or in have any way be liable obligation or responsible for, liability for any Liabilities of the liability or obligation of Seller Parties of any nature which is not specifically included in the Assumed Liabilities (collectively, the “Excluded Liabilities”). Without limiting the generality of the foregoing, Buyer shall the Assumed Liabilities do not assume the followinginclude:
(ai) any Liability to pay liability or obligation for any Taxes of the Tax imposed on Seller Parties or any Affiliate of their AffiliatesSeller or any member of any Affiliated Group of which Seller or any Affiliate of Seller is or was a member, regardless except to the extent accrued as a current liability in the Final Closing Statement;
(ii) liabilities and obligations for personal injury or property damage relating to products manufactured by the Business in the United States to the extent the date of whether occurrence is on or prior to the Effective Time;
(iii) any claim, obligation or liability arising from or relating to any Excluded Asset;
(iv) any Indebtedness of Seller or its Affiliates for borrowed money or otherwise evidenced by a note, bond, debenture or similar instrument;
(v) any fees, costs and expenses that have been incurred or that are incurred by Seller or its Affiliates in connection with the consummation of the transactions contemplated hereby or otherwiseby this Agreement;
(bvi) any Liability obligation or liability of the Business in favor of Seller Parties or their any of its Affiliates for performance under pursuant to any agreements or binding arrangements in effect as of the Closing;
(vii) any obligation of Seller or any Affiliate arising out of this Agreement or any of the Ancillary AgreementsTransaction Document;
(cviii) any Liability under any Assigned Contract obligation or any Transferring Real Property Lease liability arising out of facts, circumstances or occurrences existing prior to the Closing Date or relating to any breach, violation or failure to perform that occurred prior to the Closing Date Employee Benefit Plan (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead apply);
(d) any Liability under any Real Property Lease that is not a Transferring Real Property Lease;
(e) any Liability relating to any Debt of the Seller Parties or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing Date);
(f) any Liability for any accounts payable or other accruals related to the Business arising prior to the Closing Date;
(g) any Liability arising out of the Seller Parties’ or their Affiliates’ obligations under or agreements with any Payment Programs (including pursuant to any Provider Agreements);
(h) any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from this does not include Employee Benefit Plans maintained by Acquired Companies or the operation of the Excluded Business at any point in timeAssumed Employee Benefit Plan);
(iix) any Liability arising out of liability or relating obligation for personal injury or property damage occurring or alleged to or any Payment Program or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business have occurred prior to the Closing Date or, for in the avoidance of doubt, from the operation of the Excluded Business at any point in time;United States; and
(jx) any Liability liability arising out of relating to any business of Seller or arising from a Security Incident occurring prior to the Closing Date;
(k) any Liability relating to or arising from the Excluded Assets or the Excluded Business;
(l) any Liability arising under any employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;
(m) any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or Affiliate other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or prior to the Closing Date and relating to than the Business, the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;
(o) any Liability of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed Liability.
Appears in 1 contract
Samples: Purchase Agreement (Hardinge Inc)
Excluded Liabilities. Notwithstanding anything to the contrary -------------------- contained hereinin this Agreement and regardless of whether such liability is disclosed herein or on any schedule hereto, other than Purchaser will not assume or be liable for any liabilities or obligations of the Assumed Debtors not described in Section 2.2(a) hereof (the "Excluded Liabilities"), including, without -------------- -------------------- limitation, the Seller Parties shall be responsible for all following liabilities and obligations of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreement, and Buyer shall not assume, or in any way be liable or responsible for, any Liabilities of the Seller Parties (the “Excluded Liabilities”). Without limiting the generality of the foregoing, Buyer shall not assume the followingCompany:
(ai) liabilities or obligations for any Liability contracts, agreements, leases or other arrangements except to pay the extent Purchaser or its nominees, assignees or designees is an assignee of an Assigned Lease;
(ii) liabilities or obligations for accounts payable, accrued liabilities or indebtedness (including indebtedness to Parent), or any undisclosed or contingent liabilities;
(iii) liabilities or obligations under Purchase Orders;
(iv) liabilities or obligations with respect to all Taxes, including without limitation, all Taxes of the Seller Parties Debtors relating to the ownership or operation of the Stores and/or the Purchased Assets on or prior to the Closing Date and all Taxes arising out of or relating to any of their Affiliates, regardless the transactions contemplated hereby;
(v) liabilities of whether arising the Debtors for costs and expenses incurred in connection with this Agreement and the consummation of the transactions contemplated hereby or otherwisehereby;
(bvi) any Liability liabilities or obligations of the Seller Parties or their Affiliates for performance Debtors under this Agreement or any of the Ancillary Agreementsagreements contemplated hereby;
(cvii) any Liability under any Assigned Contract liabilities or any Transferring Real Property Lease obligations arising out of facts, circumstances or occurrences existing prior to the Closing Date or relating to any breach, violation or failure to perform that occurred prior to the Closing Date (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead apply)Excluded Assets;
(dviii) liabilities or obligations for any Liability under claims (whenever made) or proceedings arising out of, relating to, resulting from or caused by any Real Property Lease that is not a Transferring Real Property Lease;
(e) products manufactured, serviced, distributed or sold by the Debtors or any Liability relating to any Debt of the Seller Parties or their its Affiliates (other than, for the elimination of doubt, or any trade payables or other obligations arising under Assigned Contracts predecessor) at any time on or following the Closing Date);
(f) any Liability for any accounts payable or other accruals related to the Business arising prior to the Closing Date;
(gix) liabilities or obligations for any Liability claims (whenever made) arising out of the Seller Parties’ of, relating to, resulting from or their Affiliates’ obligations under caused by any transaction, status, event, condition, occurrence or agreements with any Payment Programs situation existing, arising or occurring (including pursuant to any Provider Agreements);
(hA) any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(i) any Liability arising out of or relating to or any Payment Program or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their Affiliates in connection with the ownership or operation of the Business prior to Stores, the Closing Date or, for Warehouses and/or the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(j) any Liability relating to or arising from a Security Incident occurring prior to the Closing Date;
(k) any Liability relating to or arising from the Excluded Purchased Assets or the Excluded Business;
(l) any Liability arising under any employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;
(m) any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or prior to the Closing Date and relating to or (B) in connection with the Business, the Purchased Assets Debtors or any real property currently of their affiliates' businesses or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;
(o) activities at any Liability of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related time prior to, on or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior after the Closing Date; or
(rx) any liabilities or obligations (including but not limited to any claim of any governmental agency, any trustee, any fiduciary, any plan administrator, any other person dealing with any employee benefit or other plan, any employee or any beneficiary and without regard to whether such liability or obligation arises prior to, on or after the Closing Date or results from an event, prior to, on or after the Closing Date) including in connection with provision of the Services which relate to (A) any program, plan, policy or arrangement (whether or not terminated) (i) which is or has been maintained, established, or offered by the Company or Parent, (ii) to which the Company or Parent contributes or has contributed, (iii) to which the Company or Parent has or has had any obligation to contribute or (iv) to which the Company or Parent has or has had any liability or potential liability, and under which current or former employees, retirees, individual contractors (or their spouses, dependents or other beneficiaries) of the Company or its predecessors may receive benefits or have received benefits, (B) any Tax, penalty, assessment, fine or other liability relating to any such program, plan or policy, which may result as a violation of law, including any violation of the Code, ERISA or any proposed, temporary or final regulation thereunder, (c) any liability, including any potential or actual liability, relating to any failure to comply with the requirements of the Code and/or ERISA with respect to the foregoing or (D) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed Liabilitypayments to Debtors' employees.
Appears in 1 contract
Samples: Asset Purchase, License & Agency Agreement (Montgomery Ward Holding Corp)
Excluded Liabilities. Notwithstanding anything to the contrary contained hereinin this Agreement, other than the Assumed Liabilities, the Seller Parties shall neither Buyer nor any of its Subsidiaries will assume or otherwise be responsible for all of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreement, and Buyer shall not assume, or in any way be liable or responsible for, any Liabilities of Seller or any of its Subsidiaries (or any predecessor of any of the foregoing or any prior owner of all or part if its business or assets) of whatever nature, and Seller Parties or one of its Subsidiaries will be solely responsible for all such Liabilities, that are not Assumed Liabilities (collectively, the “Excluded Liabilities”). Without limiting , including the generality of the foregoing, Buyer shall not assume the followingfollowing Liabilities:
(a) any Liability to pay any Taxes all Liabilities of the Seller Parties or any of their Affiliates, regardless its Subsidiaries to the extent arising out of whether arising in connection with or relating to the consummation operation or conduct by Seller or any of its Subsidiaries of any business other than the transactions contemplated hereby or otherwiseBusiness;
(b) any Liability all Liabilities of the Seller Parties or their Affiliates for performance under this Agreement or any of its Subsidiaries to the Ancillary Agreementsextent arising out of or relating to any Excluded Asset;
(c) any Liability under any Assigned Contract all Liabilities of Seller or any Transferring Real Property Lease of its Subsidiaries to the extent related to any current, former or prospective employees, directors or independent contractors of Seller or any of its Subsidiaries, including the Transferred Employees, in each case arising out of facts, circumstances or occurrences existing prior to the Closing Date or relating to any breach, violation or failure to perform that occurred prior to the Closing Date (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead apply)Closing;
(d) all Liabilities of Seller or any Liability of its Subsidiaries under any Real Property Lease that is not a Transferring Real Property Lease;
(e) any Liability or relating to any Debt of the Seller Parties or their Affiliates (other thanEmployee Benefit Plans, for the elimination of doubtwhether such Liabilities arise prior to, any trade payables or other obligations arising under Assigned Contracts on or following the Closing Date);
(f) any Liability for any accounts payable or other accruals related to the Business arising prior to after the Closing Date;
(e) all Indebtedness of Seller or any of its Subsidiaries, including the Transferred Subsidiary, incurred or existing at or prior to the Closing;
(f) all Liabilities of Seller or any of its Subsidiaries to any broker, finder or agent for any investment banking or brokerage fees, finder’s fees or commission and any other fees and expenses, including legal fees, payable by Seller pursuant to Section 13.5 with respect to the Transactions;
(g) any Liability arising out of the all Liabilities for Seller Parties’ or their Affiliates’ obligations under or agreements with any Payment Programs (including pursuant to any Provider Agreements)Taxes;
(h) any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims all Accounts Payable of Seller or any violation of its Subsidiaries to the extent they do not relate primarily to the Business;
(i) all Liabilities for which Seller or nonany of its Subsidiaries (excluding, for certainty, the Transferred Subsidiary) is expressly made responsible pursuant to the terms of this Agreement or the Transaction Agreements;
(j) all Liabilities of the Transferred Subsidiary, which, but for the fact that they are Liabilities of the Transferred Subsidiary as of the Closing, would not be Assumed Liabilities;
(k) all Seller Transaction Expenses;
(l) out-compliance of-pocket acquisition and integration costs and expenses in respect of acquisitions (whether by merging or consolidating with, or by purchasing a substantial portion of the assets or equity securities of, or by any Health Care Law arising from the operation other manner any corporation, partnership, joint venture or other entity) entered into by or on behalf of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(i) any Liability arising out of or relating to or any Payment Program or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(j) any Liability relating to or arising from a Security Incident occurring prior to the Closing Date;
(k) any Liability relating to or arising from the Excluded Assets or the Excluded Business;
(l) any Liability arising under any employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;; and
(m) any Liability relating to, arising from or all Liabilities in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or prior to the Closing Date and relating to the Business, the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;
(o) any Liability of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed LiabilityEnvironmental Claim.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything to the contrary contained herein, other than the Assumed Liabilities, the Seller Parties shall be responsible for all of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under in this Agreement, and Buyer shall not assume, or in any way be liable or responsible forand Seller and its Affiliates shall retain, any pay, perform and discharge when due, all Liabilities of Seller and its Affiliates arising out of or related to the Seller Parties Product and the Business prior to the Closing Date (collectively, the “Excluded Liabilities”), except for any post-Closing Date liabilities expressly agreed to be assumed by Buyer pursuant to this Agreement. Without limiting the generality of the foregoing, Buyer The Excluded Liabilities shall not assume include the following:
(a) any Liability to pay any Taxes account payables and Liabilities of the Seller Parties or any of their Affiliates, regardless of whether arising in connection its Affiliates for materials and services with respect to the consummation manufacture of the transactions contemplated hereby Product or otherwise;
(b) any Liability of the Seller Parties or their Affiliates for performance under this Agreement or any of the Ancillary Agreements;
(c) any Liability under any Assigned Contract or any Transferring Real Property Lease arising out of facts, circumstances or occurrences existing prior to the Closing Date or relating to any breach, violation or failure to perform that occurred prior to the Closing Date (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead apply);
(d) any Liability under any Real Property Lease that is not a Transferring Real Property Lease;
(e) any Liability relating to any Debt of the Seller Parties or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing Date);
(f) any Liability for any accounts payable or other accruals related to the Business arising Inventory prior to the Closing Date;
(gb) any Liability Tax payable with respect to any business, asset, property or operation of Seller or any member of any affiliated group of which Seller is a member (including any Taxes relating to or arising out of the operation of the Business) arising out of, directly or indirectly, the Assets or the ownership, control, lease, or license of any of the Assets for any pre-Closing Tax period, other than any Tax for which Buyer is responsible pursuant to Section 10.03;
(c) any Liability of Seller Parties’ or their Affiliates’ obligations under any of its Affiliates arising out of or agreements relating to any Excluded Asset or arising out of the operations or conduct by Seller or its Affiliates of any business other than the Business;
(d) any Liability of Seller or any of its Affiliates arising out of or relating to independent contractors or employees, including any Liability with any Payment Programs respect to employment, compensation or benefits (including pursuant severance and benefit plans) for the present or future employees of Seller for all employment relating to the Business;
(e) all Liabilities of Seller and any of its Affiliates arising out of any product liability, patent infringement, breach of warranty or claim for injury to person or property whenever asserted which resulted from the use or misuse of Product sold prior to the Closing Date (including all proceedings relating to any Provider Agreementssuch Liabilities);
(f) all Liabilities of Seller and any of its Affiliates arising out of government seizures, field corrections, withdrawals or recalls of Product sold prior to the Closing Date, whether claimed prior to, on or after the Closing Date;
(g) all Liabilities of Seller and any of its Affiliates 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;
(h) all Liabilities of Seller and any Liability for laboratory testing performance of its Affiliates arising out of user or results, any laboratory other similar fees payable to the FDA or medical malpractice claims or any violation or non-compliance other Governmental Authority in the Territory to the extent such fees are payable on account of any Health Care Law arising from the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in timeDate;
(i) all Liabilities of Seller and any Liability of its Affiliates arising out of or related to the use, maintenance, occupancy or possession of the Catalent Facility or the Manufacturing Equipment prior to and during the term of the Supply Agreement, and all Liabilities arising out of or related to the cleaning and removal of such Manufacturing Equipment from the Catalent Facility (except for those costs and expenses of Seller to be reimbursed by Buyer pursuant to the Supply Agreement), and the restoration of the Catalent Facility to its prior condition; and
(j) all other Liabilities of whatever kind and nature, primary or secondary, direct or indirect, absolute or contingent, known or unknown, whether or not accrued, arising out of or relating to to, directly or any Payment Program or any other payor (including Medicare or Medicaid)indirectly, making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their Affiliates in connection with the Seller’s operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation or Seller’s ownership of the Excluded Business at any point in time;
Assets (jincluding the Product) any Liability relating to or arising from a Security Incident occurring prior to the Closing Date;
(k) any Liability relating to or arising from the Excluded Assets or the Excluded Business;
(l) any Liability arising under any employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;
(m) any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or prior to the Closing Date and relating to the Business, the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;
(o) any Liability of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed Liability.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything to the contrary contained herein, other than the Assumed Liabilities, the Seller Parties shall be responsible for all of the Seller Parties’ respective Liabilities not Except as expressly assumed by pursuant to Section 1.3, Buyer under this Agreement, is not assuming and Buyer shall not assume, have any liability or in any way be liable or responsible for, obligation whatsoever for any Liabilities of the Seller Parties or any of its Affiliates (or any predecessors of Seller or any of its Affiliates) whatsoever, all of which will be retained and satisfied when due by Seller or any of its Affiliates, as applicable (collectively, the “Excluded Liabilities”). Without limiting the generality of the foregoing, Buyer which Excluded Liabilities shall not assume include the following:
(a) any Liability to pay any Taxes all Liabilities of the Seller Parties or any of their Affiliates, regardless of whether its Affiliates arising in connection with under this Agreement or the Related Agreements or from the consummation of the transactions contemplated hereby or otherwisethereby;
(b) any Liability all Liabilities of the Seller Parties or their Affiliates for performance under this Agreement or any of the Ancillary Agreementsits Affiliates (or any predecessor thereto) to any present or former director, officer, employee, consultant or independent contractor of Seller or any of its Affiliates (or any predecessor thereto), or any of their respective spouses, children, other dependents or beneficiaries, including any and all Liabilities arising under any federal, state, local or foreign Laws, Approvals or Orders;
(c) any Liability under any Assigned Contract all Liabilities of Seller or any Transferring Real Property Lease arising out of facts, circumstances its Affiliates (or occurrences existing prior to the Closing Date or relating any predecessor thereto) to any breachAffiliate or current or former member, violation stockholder, convertible debt holder, option or failure to perform that occurred prior to the Closing Date warrant holder or holder of other equity or debt interests (other than Liabilities in respect or any of accounts payable their successors, assigns, heirs or other accruals, for which Section 1.4(glegal representatives) shall instead applyof Seller or any of its Affiliates (or any predecessor thereto);
(d) all Liabilities of Seller or any Liability under of its Affiliates (or any Real Property Lease that is not a Transferring Real Property Leasepredecessor thereto) in respect of any Indebtedness, trade payables, accrued expenses or Transaction Expenses, including all intercompany payable balances owing by Seller or any of its Affiliates;
(e) all Liabilities of Seller or any Liability of its Affiliates (or any predecessor thereto) for or in respect of Taxes for any period, including any Taxes resulting from or relating to any Debt the consummation of the transactions contemplated hereby (including any Taxes that may become due as a result of any bulk sales or similar Tax that may be assessed against Seller Parties or their any of its Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing DateClosing);
(f) all Liabilities arising in connection with or in any Liability way relating to any real property now or previously owned, leased or operated by Seller or any of its Affiliates (or any predecessor thereto), or any activities or operations occurring or conducted at any real property now or previously owned, operated or leased by Seller or any of its Affiliates (or any predecessor thereto) (including offsite disposal), including any Liabilities arising under or relating to any Environmental Laws or any Liabilities associated with any Environmental Condition;
(g) all Liabilities resulting from or relating to (or allegedly resulting from or relating to) the performance of any services or sale of any products by Seller or any of its Affiliates (or any predecessor thereto) prior to the Closing;
(h) all Liabilities arising under or relating to any written or oral Contract to which Seller or any of its Affiliates is a party or by which Seller, its Affiliates or any of their respective assets or properties is otherwise subject or bound, other than Liabilities arising under the Assigned Contracts to the extent provided in Section 1.3;
(i) all Liabilities of Seller or any of its Affiliates (or any predecessor thereto) for any accounts payable Actions against Seller or other accruals related to the Business arising prior to any of its Affiliates (or any predecessor thereto), including any Actions pending or threatened against Seller or any of its Affiliates (or any predecessor thereto) as of the Closing Date;
(gj) all Liabilities of Seller or any Liability of its Affiliates (or any predecessor thereto) arising out of the Seller Parties’ or their Affiliates’ obligations under resulting from any violation of or agreements non-compliance with any Payment Programs federal, state, local or foreign Approvals, Laws or Orders;
(including k) all Liabilities of Seller or any of its Affiliates (or any predecessor thereto) arising out of, relating to or resulting from any obligation to indemnify any Person (other than pursuant to any Provider Agreementsan Assigned Contract to the extent assumed pursuant to Section 1.3);
(hl) all Liabilities relating to, based in whole or in substantial part on events or conditions occurring or existing in connection with, or arising out of, the employment of any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims employee of Seller or any violation or non-compliance of its Affiliates up to the Closing and with respect to the termination of any Health Care Law employee of Seller or any of its Affiliates on or before the Closing Date;
(m) all Liabilities arising from under any Employee Benefit Plan or any benefit, Tax or compensation Liability of any ERISA Affiliate;
(n) all other Liabilities arising out of or relating to the ownership or operation of the Acquired Assets or the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;Closing; and
(io) any Liability all Liabilities arising out of or relating to or attributable in any Payment Program or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business prior manner to the Closing Date or, for the avoidance Excluded Assets. The disclosure of doubt, from the operation of the Excluded Business at any point in time;
(j) any Liability relating on any schedule to this Agreement shall not create an Assumed Liability or arising from a Security Incident occurring prior to the Closing Date;
(k) any Liability relating to or arising from the Excluded Assets or the Excluded Business;
(l) any Liability arising under any employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;
(m) any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or prior to the Closing Date and relating to the Business, the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;
(o) any Liability of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included Buyer, except where such disclosed Liability has been expressly assumed by Buyer as an Assumed LiabilityLiability pursuant to Section 1.3.
Appears in 1 contract
Samples: Asset Purchase Agreement (Ballard Power Systems Inc.)
Excluded Liabilities. Notwithstanding anything to the contrary contained hereinforegoing, other than the Assumed Liabilities, the Seller Parties Liabilities shall be responsible for all not in any event include any of the Seller Parties’ respective following Liabilities not expressly assumed by Buyer under this Agreement, and Buyer shall not assume, or in any way be liable or responsible for, any Liabilities of the Seller Parties (the “Excluded Liabilities”). Without limiting the generality of the foregoing, Buyer shall not assume the following:):
(a) All Liabilities associated with any Liability to pay any Taxes of the Seller Parties or any of their Affiliates, regardless of whether arising in connection with the consummation of the transactions contemplated hereby or otherwiseExcluded Asset;
(b) All Liabilities for Taxes applicable to any Liability of Purchased Asset with respect to any period (or portion thereof) ending before the Seller Parties or their Affiliates for performance under this Agreement or any of the Ancillary Agreementsapplicable Closing in which such Purchased Asset was Transferred;
(c) any Liability under any Assigned Contract or any Transferring Real Property Lease All Liabilities (i) arising out of facts, circumstances or occurrences existing prior to the Closing Date or relating to the Pre-Existing Environmental Condition of any breachPurchased Asset, violation (ii), whether accruing before, on or failure after the Land Rights Closing or the Undepreciated Assets Closing, arising under Environmental Law (including the exposure of any Person to perform that occurred prior Hazardous Materials) and arising from or related to any Excluded Asset or the Closing Date acts or omissions of Seller or any of its Representatives, excluding, in each case of (other than i) and (ii), any of the Liabilities defined in respect of accounts payable or other accrualsSection 2.04(a)(iv)(B) (collectively, for which Section 1.4(g) shall instead applythe “Excluded Environmental Liabilities”);
(d) any Liability under any Real Property Lease that is not a Transferring Real Property Lease;
(e) any Liability relating to any Debt of the Seller Parties or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing Date);
(f) any Liability for any accounts payable or other accruals related to the Business arising prior to the Closing Date;
(g) any Liability arising out of the Seller Parties’ or their Affiliates’ obligations under or agreements with any Payment Programs (including pursuant to any Provider Agreements);
(h) any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(i) any Liability All Liabilities arising out of or relating to Seller (i) breaching any provision of any Assumed Contract, this Agreement or any Payment Program Ancillary Agreement, (ii) conducting, operating or using the Undepreciated Assets in a manner that materially violates any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyerapplicable Law and has a material adverse effect on the Undepreciated Assets, or requiring Buyer to refund any payments for services rendered on or after (iii) that are the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction result of the failure of Seller Parties to conduct, operate or their Affiliates use the Undepreciated Assets in connection accordance with the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in timeGood Utility Practice;
(je) any Liability relating to or arising from a Security Incident occurring prior to the Closing Date;
(k) any Liability relating to or arising from the Excluded Assets or the Excluded Business;
(l) any Liability arising under any employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;
(m) any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions All Liabilities that are expressly contemplated by this Agreement or the Schedules to this Agreement;
(n) , any Liability arising under Environmental Laws Ancillary Agreement or with respect any Conveyance Document to Hazardous Substances arising from facts, circumstances be assumed or conditions, existing, initiated or occurring on or prior retained by Seller. Notwithstanding anything in this Section 2.05 to the Closing Date contrary, nothing in this Section 2.05 shall affect the exculpation or indemnification rights and relating to the Businessobligations, the Purchased Assets or any real property currently or formerly ownedif any, operated, used or leased by the Seller Parties or their Affiliates;
(o) any Liability of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to under any Action or the defense, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed LiabilityAncillary Agreement.
Appears in 1 contract
Samples: Asset Purchase Agreement
Excluded Liabilities. Notwithstanding anything to Except as specifically set forth in Section 2.3 and the contrary contained hereinTransaction Documents, other than the Assumed Liabilities, the Seller Parties shall be responsible for all of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreement, and Buyer shall not assume, pay, or in any way be liable or responsible for, and the Sellers shall remain responsible for any Liabilities of the Seller Parties following debts, claims, commitments, Liabilities and obligations of Sellers and the Business (the “"Excluded Liabilities”"). Without limiting the generality of the foregoing, Buyer shall not assume including the following:
(a) any Liability to pay or obligation of Sellers under this Agreement or on account of any Taxes of the Seller Parties or any of their Affiliates, regardless of whether arising in connection with the consummation of the transactions contemplated hereby hereby, including, without limitation, any Liability or otherwiseobligation of Sellers to attorneys, accountants, brokers, or others for services rendered or expenses incurred by or on behalf of Sellers, and all other expenses of Sellers associated with the sale of the Transferred Assets;
(b) any Liability Liabilities and obligations of Sellers for any federal, state, local or foreign income, excise, sales, personal, payroll or other taxes, including penalties and interest, of any kind whatsoever payable with respect to the operations of the Seller Parties or their Affiliates for performance under this Agreement or any of the Ancillary Agreements;
(c) any Liability under any Assigned Contract or any Transferring Real Property Lease arising out of facts, circumstances or occurrences existing prior to the Closing Date or relating to any breach, violation or failure to perform that occurred prior to the Closing Date (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead apply);
(d) any Liability under any Real Property Lease that is not a Transferring Real Property Lease;
(e) any Liability relating to any Debt of the Seller Parties or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing Date);
(f) any Liability for any accounts payable or other accruals related to the Business arising prior to the Closing Date;
(gc) any Liability Liabilities or obligations of Sellers relating to any cause of action, claims, lawsuits and demands of any nature with respect to the Transferred Assets or the Business which arose prior to the Closing Date;
(d) any tax (including, without limitation, any federal, state or local income, franchise, sales, transfer, recording, documentary or other tax) imposed upon or incurred by Sellers arising out of or in connection with the negotiation and preparation of this Agreement and the consummation and performance of the transactions contemplated hereby;
(e) to the extent (v) relating to, (x) resulting from, (y) caused by, or (z) arising out of the Seller Parties’ ownership, operation or their Affiliates’ control of the Business by Sellers prior to the Closing Date:
(i) any accident or occurrence occurring on or prior to the Closing Date resulting in personal injury, sickness, death, property damage, property destruction or loss of use of property arising out of or resulting from the operation of the Business by Sellers,
(ii) any breach of contract, workers' compensation claim or violation of any law or final order of any federal, state, judicial, quasi-judicial or governmental body,
(iii) any personal injury, sickness, death or property damage resulting from occurrences occurring prior to the Closing Date arising out of a defect or alleged defect of services or goods sold by Sellers prior to the Closing Date including, without limitation, any such Liabilities or obligations for defects or alleged defects in design or failure to perform, or
(iv) any warranty or guaranty liabilities relating to services or goods which were performed or sold by Sellers prior to the Closing Date in connection with contracts (other than the Assumed Contracts);
(f) any violation, Liability, penalty, cost, damage, fine, order, judgment or obligation under Environmental Laws to the extent such violation or agreements with obligation arises out of acts or omissions of Sellers occurring prior to the Closing Date, including, without limitation, the matters disclosed on Schedule 4.12;
(g) any Payment Programs (including pursuant to any Provider Agreements)Indebtedness of the Sellers, except as reflected in the Closing Financial Statements, as updated by the final Closing Date Working Capital Statement;
(h) any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or nonLiabilities arising directly out of the Excluded Assets;
(i) inter-compliance company payables and receivables between the Business and the balance of any Health Care Law Xxxxxx'x business arising from the operation conduct of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(i) any Liability arising out of or relating to or any Payment Program or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(j) any Liability relating to or arising from a Security Incident occurring payroll obligations of the Business in respect of periods prior to the Closing Date;
(k) obligations under any Liability relating to or arising from the Excluded Assets or the Excluded BusinessSeller Benefit Plan, except as specifically provided in Section 2.3(d) and Article 6;
(l) any Liability arising under any employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit PlansLiabilities, if any, listed on Schedule 2.4;
(m) any Liability relating to, arising from or in connection with Business Employees or former employees claims by any of the Business during all time directors, officers, employees or shareholders of the Sellers relating to this Master Agreement or its performance or consummation, or any claims by any of them relating to or arising out of:
(i) their employment (including without limitation any modification or termination thereof by Sellers);
(ii) any employment contract; or
(iii) any pension or other benefit liabilities of Sellers to the extent such claims relate to periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;Closing Date; and
(n) any Liability arising other Liabilities (whether contingent, actual or contractual), obligations, claims, or commitments, disclosed or undisclosed, of Sellers which are not assumed by Buyer under Environmental Laws or with respect to Hazardous Substances arising from factsthis Agreement. For the avoidance of doubt, circumstances or conditions, existing, initiated or occurring none of the liabilities and obligations of the Foreign Subsidiaries which are identified on or prior to the Closing Date and relating to the Business, the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;
(o) any Liability of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed LiabilityFinancial Statements shall constitute "Excluded Liabilities".
Appears in 1 contract
Samples: Master Transaction Agreement (Kaiser Group International Inc)
Excluded Liabilities. Notwithstanding anything herein to the contrary contained hereincontrary, other than the Assumed Liabilities, the Seller Parties shall be responsible for all of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreementretain, and Buyer Xxxxx shall not assume, or in any way be liable or responsible forat the Closing, any the following Liabilities of the Seller Parties (the “Excluded Liabilities”). Without limiting the generality of the foregoing, Buyer shall not assume the following:):
(a) any Liabilities of Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the Ancillary Documents and the transactions contemplated hereby and thereby, including fees and expenses of counsel, accountants, consultants, advisers and others, including any Seller Expenses;
(b) any Liabilities, including any Taxes, relating to or arising out of the Excluded Assets;
(c) any Liabilities under the Equity Plan and the Deferred Compensation Plan;
(d) any Liabilities to the extent not relating to or arising from the business and operations of the University or the Purchased Assets;
(e) any Liabilities for any Indebtedness for borrowed money (as specified in clause (a) of the definition of “Indebtedness”) as of the Closing; and
(f) any Liability to pay (i) for income Taxes of Seller (or any stockholder or Affiliate of Seller), including any Taxes of the Seller Parties (or any stockholder or Affiliate of their Affiliates, regardless Seller) that arise out of whether arising in connection with the consummation of the transactions contemplated hereby or otherwise;
(b) any Liability of the Seller Parties or their Affiliates for performance under by this Agreement or any of the Ancillary Agreements;
(cii) any Liability under any Assigned Contract or any Transferring Real Property Lease arising out of facts, circumstances or occurrences existing prior to the Closing Date or relating to any breach, violation or failure to perform that occurred prior to the Closing Date (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead apply);
(d) any Liability under any Real Property Lease that is not a Transferring Real Property Lease;
(e) any Liability relating to any Debt of the Seller Parties or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing Date);
(f) any Liability for any accounts payable or other accruals related to the Business arising prior to the Closing Date;
(g) any Liability arising out of the Seller Parties’ or their Affiliates’ obligations under or agreements with any Payment Programs (including pursuant to any Provider Agreements);
(h) any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(i) any Liability arising out of or relating to or any Payment Program or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(j) any Liability relating to or arising from a Security Incident occurring prior to the Closing Date;
(k) any Liability relating to or arising from the Excluded Assets or the Excluded Business;
(l) any Liability arising under any employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;
(m) any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or prior to the Closing Date and Taxes relating to the Business, University or the Purchased Assets or for any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;
(o) any Liability of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior the Pre-Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed LiabilityTax Period.
Appears in 1 contract
Samples: Asset Purchase Agreement
Excluded Liabilities. Notwithstanding anything to the contrary contained herein, other than the Assumed Liabilities, the Seller Parties Neither Buyer nor any of its Affiliates shall be responsible for all of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreement, and Buyer shall not assume, nor shall they be or in any way be liable or become responsible for, any Liabilities of Seller or of any of Seller’s Affiliates other than the Seller Parties Assumed Liabilities (collectively, the “Excluded Liabilities”). Without limiting the generality of the foregoing, Buyer the following shall not assume constitute the followingExcluded Liabilities notwithstanding any other provision of this Agreement:
(a) all Liabilities for (i) Transfer Taxes and (ii) Taxes (other than Transfer Taxes) attributable to the Acquired Assets for any Liability to pay Pre-Closing Tax Period or any period after [***], including any Taxes of the Seller Parties or any of their Affiliates, regardless of whether arising in connection with the consummation of the transactions contemplated hereby or otherwiseallocated to a Pre-Closing Tax Period pursuant to Section 9.4;
(b) any Liability all Liabilities with respect to employees of the Seller Parties or their Affiliates for performance under this Agreement or any of the Ancillary Agreementsits Affiliates or any employee benefit plans or programs of Seller or any of its Affiliates;
(c) any Liability under any Assigned Contract or any Transferring Real Property Lease arising out of facts, circumstances or occurrences existing prior to the Closing Date or relating to any breach, violation or failure to perform that occurred prior to the Closing Date (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead apply);
(d) any Liability under any Real Property Lease that is not a Transferring Real Property Lease;
(e) any Liability relating to any Debt of the Seller Parties or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing Date);
(f) any Liability for any accounts payable or other accruals related to the Business arising prior to the Closing Date;
(g) any Liability arising out of the Seller Parties’ or their Affiliates’ obligations under or agreements with any Payment Programs (including pursuant to any Provider Agreements);
(h) any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(i) any Liability arising out of or relating to or any Payment Program or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(j) any Liability relating to or arising from a Security Incident occurring prior to the Closing Date;
(k) any Liability relating to or arising from the Excluded Assets or the Excluded Business;
(l) any Liability arising under any employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;
(m) any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or prior to the Closing Date and relating to the Business, the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;
(o) any Liability of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action Excluded Asset;
(d) all Liabilities arising out of the ownership or use of, or Seller’s or any of its Affiliates’ performance under, any Acquired Asset, to the defenseextent arising or occurring (i) prior to or at the Closing or [***] or (ii) as a result of any facts or occurrences existing prior to or at the Closing or [***], settlement including any failure to perform or other disposition breach, default or violation by Seller or any of its Affiliates of any Action Contract or applicable Law prior to or at the Closing or [***]; and
(e) all Liabilities arising out of (i) the TATCIST Study to the extent arising or occurring prior to or at the Closing Date; or
or arising out of or occurring as a result of any facts or occurrences existing prior to or at the Closing or (rii) any other Liability of pre-clinical or clinical trial with respect to the Seller Parties Compound that was commenced prior to the Closing, including, in each case, all Liabilities for product liability claims with respect to any patient first dosed with the Compound or their Affiliates that is not specifically included as an Assumed Liabilityany Product prior to the Closing.
Appears in 1 contract
Samples: Option and Asset Purchase Agreement (Fusion Pharmaceuticals Inc.)
Excluded Liabilities. Notwithstanding anything any provision in this Agreement to the contrary contained hereincontrary, Buyer is not assuming and is not responsible for paying, performing or discharging any Liability of Seller (or any Affiliate of Seller) of any kind or nature whatsoever other than the Assumed LiabilitiesLiabilities (collectively, the Seller Parties shall be responsible for all of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreement, and Buyer shall not assume, or in any way be liable or responsible for, any Liabilities of the Seller Parties (the “Excluded Liabilities”). Without limiting the generality of the foregoing, Buyer shall the Excluded Liabilities include, but are not assume limited to, the following:
(ai) all Liabilities arising under or with respect to Excluded Contracts or the Excluded Assets;
(ii) all Liabilities to be paid or retained by Seller pursuant to the terms of this Agreement, including all Liabilities related to or arising from the Excluded Assets (including, without limitation, all Liabilities of, relating to or arising from the Employee Benefit Plans, except the Assumed 2022 Incentive Compensation Liabilities, Defined Bonus and Commission Plan Assumed Liabilities, and Earned and Unused Paid Leave Assumed Liabilities);
(iii) all Liabilities for legal, accounting, audit and investment banking fees, brokerage commissions and any Liability to pay any Taxes of the other like expense incurred by Seller Parties or any of their Affiliates, regardless of whether arising in connection with the consummation negotiation and preparation of this Agreement and the transactions contemplated hereby or otherwisehereby;
(biv) any Liability all Environmental Liabilities resulting from the conduct, operation or ownership of the Seller Parties Business or their Affiliates for performance under this Agreement or any of the Ancillary AgreementsAcquired Assets prior to the Effective Time;
(cv) all Liabilities relating to the exposure or alleged exposure of any Liability under person to asbestos in any Assigned Contract form in connection with or in any Transferring Real Property Lease arising out way relating to or resulting from the conduct, operation or ownership of facts, circumstances the Business or occurrences existing the Acquired Assets prior to the Closing Date or Effective Time;
(vi) all Liabilities relating to any breachLaws concerning wages, violation hours, classification of employees and independent contractors (including consultants), and the collection and payment of withholding and/or social security Taxes in any way relating to or failure to perform that occurred resulting from the conduct, operation or ownership of the Business or the Acquired Assets prior to the Closing Date Effective Time;
(other than a) all Liabilities with respect to a Product/Service recall made before the Effective Time and, (b) to the extent in respect excess of accounts payable the Buyer Recall Cap, all Liabilities for a Recall after the Effective Time relating to Products/Services that were manufactured, produced, distributed, or other accruals, for which Section 1.4(g) shall instead applysold on or prior to the Effective Time by the Business (the “Recall Excluded Liabilities”);
(dviii) any Liability under any Real Property Lease that is not a Transferring Real Property Lease;
All Taxes (ea) any Liability of the Seller, including Taxes allocated to the Seller pursuant to Section 4.3(b) or Section 4.3(c) of this agreement, of (b) arising out of or relating to any Debt the conduct, operation or ownership of the Seller Parties Business or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing Date);
(f) any Liability for any accounts payable or other accruals related to the Business arising Acquired Assets prior to the Closing Date;
Effective Time (g) any Liability arising out of the Seller Parties’ or their Affiliates’ obligations under or agreements with any Payment Programs (including pursuant to any Provider Agreements);
(h) any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from the operation of the Business prior to the Closing Date orincluding, for the avoidance of doubt, from all Taxes arising pursuant to an Assumed Contract prior to the operation Effective Time). Seller shall pay, perform and discharge, as and when due, all of the Excluded Business at any point in time;
(i) any Liability arising out of or relating to or any Payment Program or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(j) any Liability relating to or arising from a Security Incident occurring prior to the Closing Date;
(k) any Liability relating to or arising from the Excluded Assets or the Excluded Business;
(l) any Liability arising under any employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;
(m) any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or prior to the Closing Date and relating to the Business, the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;
(o) any Liability of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed LiabilityLiabilities.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything Under no circumstance shall Buyer assume or be obligated to pay, and none of the contrary Assets shall be or become liable for or subject to, any of the Excluded Liabilities, including, but not limited to, the following liabilities, which shall be and remain liabilities of Seller:
(a) liabilities not listed on the list of Assumed Liabilities contained herein, in Schedule 2.03;
(b) liabilities accrued on the Interim Financial Statements other than the Assumed Liabilities, the Seller Parties shall be responsible for all of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreement, and Buyer shall not assume, or in any way be liable or responsible for, any Liabilities of the Seller Parties (the “Excluded Liabilities”). Without limiting the generality of the foregoing, Buyer shall not assume the following:
(a) any Liability to pay any Taxes of the Seller Parties or any of their Affiliates, regardless of whether arising in connection with the consummation of the transactions contemplated hereby or otherwise;
(b) any Liability of the Seller Parties or their Affiliates for performance under this Agreement or any of the Ancillary Agreements;
(c) liabilities or obligations associated with any Liability under any Assigned Contract or any Transferring Real Property Lease arising out of facts, circumstances or occurrences existing prior to the Closing Date or relating to any breach, violation or failure to perform that occurred prior to the Closing Date (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead apply)Excluded Assets;
(d) liabilities or obligations associated with any Liability under any Real Property Lease that is and all indebtedness of Seller for borrowed money not a Transferring Real Property Leaseincluded in the Assumed Liabilities;
(e) any Liability relating to any Debt of the Seller Parties liabilities or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned the Rejected Contracts on or following the Closing Date)Completed Contracts;
(f) any Liability liabilities or obligations arising out of or in connection with claims, litigation and proceedings (whether instituted prior to or after Closing) for any accounts payable acts or other accruals related omissions that occurred, or arise from events that occurred, prior to the Business Closing Date, Table of Contents including such liabilities or obligations as are reflected on the Interim Financial Statements;
(g) liabilities or obligations (i) to Seller’s employees, (ii) with respect to the Employee Benefit Plans and Other Plans, (iii) of Seller to the Internal Revenue Service or any other Governmental Authority relating to Seller’s employees, in each case arising from or relating to periods prior to Closing (whether or not triggered by the Transaction or the announcement thereof);
(h) penalties, fines, settlements, interest, costs and expenses arising out of or incurred as a result of any actual or alleged violation by Seller of any Legal Requirement prior to the Closing Date;
(gi) any Liability arising out of the Seller Parties’ liabilities or their Affiliates’ obligations under or agreements with any Payment Programs (including pursuant to any Provider Agreements);
(h) any Liability for laboratory testing performance or resultsthe WARN Act, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from the operation of the Business prior to the Closing Date orif any, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(i) any Liability arising out of or relating resulting from layoffs or termination of employees by Seller prior to or any Payment Program or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after Closing and/or the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction consummation of the Seller Parties or their Affiliates Transaction sufficient in connection with the operation of aggregate to require notice under the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in timeWARN Act;
(j) any Liability relating liabilities related to or arising from a Security Incident occurring prior to Seller’s use of cash collateral under §363(c) of the Closing Date;Bankruptcy Code; and
(k) any Liability relating to or arising from the Excluded Assets or the Excluded Business;
all liabilities for expenses (li) any Liability arising under any employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;
negotiation and preparation of this Agreement and (mii) any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or prior to the Closing Date and relating to the BusinessTransaction, in each case to the Purchased Assets or any real property currently or formerly owned, operated, used or leased extent incurred by the Seller Parties or their Affiliates;
(o) any Liability of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities and including those related to any Action or the defenselegal counsel, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed Liabilityaccounting, brokerage and investment advisors fees and disbursements.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything Section 2.3 or any other provision of this Agreement to the contrary contained hereincontrary, all Liabilities of the Sellers (other than the Assumed Liabilities, ) shall remain the Seller Parties shall be responsible for all Liabilities of the Seller Parties’ respective Liabilities Sellers and shall not expressly be assumed by Buyer under this Agreementpursuant hereto (collectively, and Buyer shall not assume, or in any way be liable or responsible for, any Liabilities of the Seller Parties (the “Excluded Liabilities”). Without limiting the generality of the foregoing, Buyer Excluded Liabilities shall not assume include the followingfollowing Liabilities:
(a) any Liability for Taxes arising as a result of the Sellers’ operation of the Business or their ownership of the Purchased Assets prior to pay the Effective Time, including any deferred Taxes of the Seller Parties or any of their Affiliates, regardless of whether arising in connection with the consummation of the transactions contemplated hereby or otherwisenature;
(b) any Liability under any Contract not assumed by Buyer under Section 2.3;
(c) subject to Article X, any Liability under any Contract assumed by Buyer that arises out of or relates to any Breach that occurred prior to the Effective Time;
(d) any Liability under any Employee Plans or any Liability relating to payroll, bonus, incentive (including sales commissions), vacation, sick leave, workers’ compensation, unemployment benefits, pension benefits, employee stock option or profit-sharing plans, health care plans or benefits or any other employee plans or benefits of any kind applicable to the Employees (or former Employees or both);
(e) any Liability under any employment, severance, retention or termination agreement with any Employee (or former Employee or both) of the Seller Parties Sellers or any of their Affiliates for performance under Affiliates;
(f) any Liability arising out of or relating to any Employee grievance arising out of or relating to events that occurred prior to the Effective Time whether or not the affected Employees are hired by Buyer;
(g) any Liability to indemnify, reimburse or advance amounts to any officer, director, employee or agent of the Sellers arising out of or relating to events occurring prior to the Effective Time;
(h) any Liability arising out of any Proceeding pending as of the Effective Time;
(i) any Liability arising out of any Proceeding commenced after the Effective Time and arising out of or relating to any occurrence or event happening prior to the Effective Time;
(j) subject to Section 2.3(j), any Liability arising out of or resulting from the Sellers’ compliance or non-compliance with any applicable Law or Order of any Governmental Entity, including non-compliance with any applicable environmental or health Law;
(k) any Liability of the Sellers arising out of or resulting from the consummation of the transactions contemplated by this Agreement or any of the Ancillary Agreements;
(c) any Liability under any Assigned Contract or any Transferring Real Property Lease arising out of facts, circumstances or occurrences existing prior to the Closing Date or relating to any breach, violation or failure to perform that occurred prior to the Closing Date (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead apply);
(d) any Liability under any Real Property Lease that is not a Transferring Real Property Lease;
(e) any Liability relating to any Debt of the Seller Parties or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing Date);
(f) any Liability for any accounts payable or other accruals related to the Business arising prior to the Closing Date;
(g) any Liability arising out of the Seller Parties’ or their Affiliates’ obligations under or agreements with any Payment Programs (including pursuant to any Provider Agreements);
(h) any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(i) any Liability arising out of or relating to or any Payment Program or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(j) any Liability relating to or arising from a Security Incident occurring prior to the Closing Date;
(k) any Liability relating to or arising from the Excluded Assets or the Excluded Business;
(l) any Liability arising under any employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;Sellers based upon the Sellers’ actions or omissions occurring after the Effective Time; and
(m) any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior Sellers not related to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or prior to the Closing Date and relating to the Business, the Purchased Assets or any real property currently or formerly owned, operated, used or leased by otherwise unrelated to the Seller Parties or their Affiliates;
(o) any Liability of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed LiabilityBusiness.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything to the contrary contained hereinprovisions of Section 1.3 or any other provisions of this Agreement, other than except only for the Assumed Liabilities, the Seller Parties shall be responsible for all of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreement, and Buyer shall not assume, perform, pay, discharge, or in indemnify the Seller against, or otherwise have any way be liable responsibility or responsible liability for, any Liabilities of the Seller Parties of any nature whatsoever, whether arising prior to, on, or after the Closing, and whether primary or secondary, direct or indirect, absolute or contingent, known or unknown (collectively, the “Excluded Liabilities”). Without limiting The Excluded Liabilities shall remain the generality of sole responsibility of, and shall be retained by, the foregoing, Buyer shall not assume Seller. The Excluded Liabilities include without limitation the following:
(a) any Liability Liabilities relating to pay or arising out of any Taxes of the Seller Parties or any of their Affiliates, regardless of whether arising in connection with the consummation of the transactions contemplated hereby or otherwiseExcluded Assets;
(b) any Liability Liabilities related to Employee Plans (including without limitation in respect of the Seller Parties any severance or their Affiliates for performance under this Agreement separation-related payments, any collective bargaining agreement and any unfunded or any of the Ancillary Agreementsunderfunded defined benefit, pension or similar plan or arrangement);
(c) any Liability under any Assigned Contract or any Transferring Real Property Lease arising out Liabilities in respect of facts, circumstances or occurrences existing prior to the Closing Date or relating to any breachof the employees or former employees of the Seller, violation including any for or failure relating to perform that occurred prior any accrued salaries, wages, payroll taxes, severance entitlements, health, medical, retirement, sick pay, vacation or deferred compensation benefits, pension or other retirement benefits, or any other Liabilities or obligations or expenses arising out of or relating to the Closing Date (other than Liabilities in respect employment of accounts payable any such employees or other accruals, for which Section 1.4(g) shall instead apply)any termination of any of such employees by any Seller or any Affiliate thereof;
(d) any Liability under any Real Property Lease that is not a Transferring Real Property LeaseIndebtedness of the Seller;
(e) any Liability relating to any Debt of the Seller Parties or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing Date)Cure Amounts;
(f) any Liability for any accounts payable or other accruals related to the Business arising prior to the Closing DateTaxes;
(g) any Liability arising out of any legal action, suit, proceeding or investigation pending or threatened as of the Seller Parties’ Closing or their Affiliates’ obligations under commenced after the Closing and to the extent arising out of any circumstance, occurrence or agreements with any Payment Programs (including pursuant event happening prior to any Provider Agreements)the Closing;
(h) any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation arising out of the Seller’s compliance or non-compliance of with any Health Care Law arising from the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in timeApplicable Law;
(i) any Liability to the extent arising out of employment, employment grievances or relating to or termination of employment of any Payment Program or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered Persons employed by the Seller on or after before the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for including any other reason workmen’s compensation claims relating to any action events which transpired on or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business prior to before the Closing Date or, for the avoidance of doubt, from the operation (whether or not known or reported as of the Excluded Business at Closing Date), or any point in timebonus, benefit, severance or similar payment that the Seller is obligated to make to any current or former employee, director, consultant or other Person as a result of the transfer of the Transferred Assets or the CryoScience Business;
(j) any Liability relating to or arising from a Security Incident occurring prior to of any Affiliate of the Closing DateSeller;
(k) any Liability relating to or arising from the Excluded Assets or the Excluded Business;Transaction Expenses; and
(l) any Liability arising under any employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plansthose Liabilities identified on Schedule 1.4(l) hereto;
(m) any Liability relating to, arising from or in connection with Business Employees under any Environmental Laws arising out of or former employees relating to the operation of the Business during all time periods prior to and through Seller’s businesses or the ClosingSeller’s leasing, ownership or operation of real property including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;Owned Real Property; and
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or prior to the Closing Date and relating to the Business, the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;
(o) any Liability of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively all other Liabilities not expressly included in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed LiabilityLiabilities.
Appears in 1 contract
Samples: Asset Purchase Agreement
Excluded Liabilities. Notwithstanding anything in this Agreement to the contrary contained hereincontrary, other than the Assumed Liabilities, the Seller Parties shall be responsible for all of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreement, and Buyer shall not and does not assume, and shall be deemed not to have assumed and shall not be obligated to pay, perform, discharge or in any way other manner be liable or responsible for, for any Liabilities of Sellers that are not Assumed Liabilities, whether existing on the Seller Parties Closing Date or arising thereafter, including Liabilities relating to or arising out of any of the following (collectively, the “Excluded Liabilities”). Without limiting the generality of the foregoing, Buyer shall not assume the following:):
(a) any Liability all costs and expenses incurred or to pay any Taxes of the Seller Parties or any of their Affiliates, regardless of whether arising be incurred by Sellers in connection with this Agreement and the consummation of the transactions contemplated hereby or otherwiseTransactions;
(b) all Liabilities (i) related to any Liability current or former employee (including the Employees), candidate for employment, officer, director, consultant, or contractor of the any Seller Parties or of any Subsidiary of any Seller or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Affiliates for performance Subsidiaries or any ERISA Affiliate or under this Agreement or with respect to which any Seller or any Subsidiary of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the Ancillary AgreementsBusiness; provided that any Liability relating to any employee or individual independent contractor of any Seller or any of its Affiliates who becomes employed or engaged by Buyer or any of its Affiliates on or after the Closing Date shall be an Assumed Liability to the extent such Liability relates to such employment or engagement or the termination thereof by Buyer or any of its Affiliates at or after the Closing;
(c) except as provided under Section 2.2(d), all Liabilities arising out of, relating to or with respect to any Liability under any Assigned Contract and all Employees, and contractors of Sellers or any Transferring Real Property Lease of their Subsidiaries or Affiliates arising out of factsat any time before Closing, circumstances or occurrences existing prior to the Closing Date or including any Liabilities relating to any breach, violation or failure accrued by unpaid benefits to perform that occurred prior to the Closing Date (other than Liabilities employees in respect excess of accounts payable or other accruals, for which Section 1.4(g) shall instead apply)$268,000;
(d) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any Real Property Lease that similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is not a Transferring Real Property Leaseliable pursuant to Section 2.2;
(e) all Liabilities to any Liability broker, finder or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission relating to the transactions contemplated by this Agreement for which any Debt of the Seller Parties or their its Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing Date)are responsible;
(f) all Liabilities, or corrective or remedial obligations with respect to Properties or operation of the Business (including any Liability for related offsite disposal locations) which arise under or relate to any accounts payable or other accruals related Environmental Laws (including without limitation any relating to exposure to Hazardous Materials) except to the Business arising prior to extent the Closing Datefacts or conditions underlying such Liability or obligation are caused after Closing;
(g) any Liability all Liabilities arising out of of, concerning, in connection with, or relating to the Seller Parties’ or their Affiliates’ obligations under or agreements with any Payment Programs Real Property (including pursuant other than the Leased Real Property) to any Provider Agreements);
(h) any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from the operation of extent such Liabilities solely relate to the Business period prior to the Closing Date or, for the avoidance or have arisen as a result of doubt, from the operation of the Excluded Business at any point in time;
(i) any Liability arising out of or relating to or any Payment Program or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business actions taken solely prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;Closing; and
(ja) any Liability relating to or arising from a Security Incident occurring prior to the Closing Date;
(k) any Liability relating to or arising from the Excluded Assets or the Excluded Business;
(l) any Liability arising under any employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;
(m) any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or prior to the Closing Date and relating to the Business, the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;
(o) any Liability of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability Liabilities arising out of, related toconcerning, or in connection with, any litigation brought or relating to that certain Deferred Prosecution Agreement entered into by any stockholder the Company with the United States Department of Seller Parent or derivatively Justice, Criminal Division, Fraud Section and the United States Attorney’s Office for the Southern District of Indiana that was filed with the United States District Court, Southern District of Indiana on April 25, 2019; provided that in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition event of any Action occurring prior the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed Liabilityconflict between Section 2.2 and this Section 2.3, Section 2.3 will control.
Appears in 1 contract
Samples: Asset Purchase Agreement
Excluded Liabilities. Notwithstanding anything Neither Purchaser nor any of its Affiliates or representatives shall assume or have any responsibility for, or shall be deemed to the contrary contained herein, have assumed or have any responsibility for any Liabilities of Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities, the Seller Parties shall be responsible for all of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreement, and Buyer shall not assume, or in any way be liable or responsible for, any Liabilities of the Seller Parties (the “"Excluded Liabilities”"). Without limiting the generality of the foregoing, Buyer the Excluded Liabilities shall include, but not assume be limited to, the following:
(a) any Liability to pay claim by (i) any Taxes then-current or former holder or alleged then-current or former holder of the any Equity Interests of Seller Parties (including any predecessors), arising out of, resulting from or any of their Affiliates, regardless of whether arising in connection with (A) the consummation Transactions or this Agreement, including the allocation and distribution of the transactions contemplated hereby Purchase Price to the Securityholders, or (B) such Person's status or alleged status as a holder of Equity Interests of Seller (including any predecessors) at any time at or prior to the Closing, whether for breach of fiduciary duty or otherwise, or (ii) any Person that holds any promise or other commitment for Equity Interests of Seller;
(b) any Liability of the Seller Parties or their Affiliates for performance under this Agreement or any of the Ancillary AgreementsExcluded Contract;
(c) any Liability under any Assigned Contract or any Transferring Real Property Lease arising out of facts, circumstances or occurrences existing prior to the Closing Date or relating to any breach, violation or failure to perform that occurred prior to the Closing Date (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead apply)Excluded Asset;
(d) any Liability under any Real Property Lease that is not a Transferring Real Property Leasethe negotiation and preparation of this Agreement and consummation and performance of the Transactions, including legal and accounting fees, brokerage commissions, finder's fees or similar fees or commissions, and income liability for Taxes so arising;
(ei) any Liability relating to any Debt Taxes arising from ownership or operation of the Seller Parties or their Affiliates Purchased Assets during a Pre-Closing Tax Period, (ii) any Taxes other thanthan Transfer Taxes that may arise as a result of the consummation of the transfer contemplated by this Agreement, for including as a result of the elimination provisions of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing Date)Section 9.11; and (iii) Transfer Taxes;
(f) any Liability for any accounts payable Liabilities retained by, or other accruals related to the Business arising prior to the Closing Dateallocated to, Seller under Section 5.1;
(g) any Liability arising out of the Seller Parties’ or their Affiliates’ obligations under or agreements with any Payment Programs (including pursuant to any Provider Agreements)Debt;
(h) any Liability for laboratory testing performance Liabilities of Seller arising under or results, in connection with any laboratory Seller Benefit Plan providing benefits to any present or medical malpractice claims or any violation or non-compliance former employee of any Health Care Law arising from the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in timeSeller;
(i) any Liability arising out Liabilities of Seller for any present or relating to former employees, officers, directors, retirees, independent contractors or consultants of Seller, including, without limitation, any Payment Program or any other payor (including Medicare or Medicaid), making Liabilities associated with any claims for wages or any offsetsother benefits, withholding funds from Buyerbonuses, accrued vacation, workers' compensation, severance, retention, termination or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate other payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(j) any Liability relating Liabilities to indemnify, reimburse or arising from a Security Incident occurring prior advance amounts to the Closing Date;any present or former officer, director, employee or agent of Seller (including with respect to any breach of fiduciary obligations by same); and
(k) any Liability Liabilities relating to any bulk sales, bulk transfer or arising from the Excluded Assets or the Excluded Business;
(l) similar Legal Requirements of any Liability arising under any employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;
(m) any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or prior jurisdiction applicable to the Closing Date and relating to the Business, the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;
(o) any Liability of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed LiabilityTransactions.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything to the contrary contained herein, other than except for the Assumed Liabilities, the Seller Parties shall be responsible for all of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreement, and Buyer shall not assumeassume or be obligated to pay, perform or in any way be liable or responsible for, otherwise discharge any Liabilities of the Seller Parties (the “Excluded Liabilities”). Without limiting the generality or any member of the foregoingSeller Group, Buyer shall whether or not assume incurred or accrued, whether asserted before, on or after the Closing Date, including the following:
(a) any Liability to pay any Taxes of the Seller Parties all Liabilities relating to, resulting from, or any of their Affiliates, regardless of whether arising in connection with the consummation of the transactions contemplated hereby or otherwise;
(b) any Liability of the Seller Parties or their Affiliates for performance under this Agreement or any of the Ancillary Agreements;
(c) any Liability under any Assigned Contract or any Transferring Real Property Lease arising out of facts, circumstances or occurrences existing prior to the Closing Date or relating to any breach, violation or failure to perform that occurred prior to the Closing Date (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead apply);
(d) any Liability under any Real Property Lease that is not a Transferring Real Property Lease;
(e) any Liability relating to any Debt of the Seller Parties or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing Date);
(f) any Liability for any accounts payable or other accruals related to the Business arising prior to the Closing Date;
(g) any Liability arising out of the Seller Parties’ or their Affiliates’ obligations under or agreements with any Payment Programs (including pursuant to any Provider Agreements);
(h) any Liability for laboratory testing performance or resultsBusiness, any laboratory or medical malpractice claims or Compound, any violation or non-compliance of Product, any Health Care Law arising from the operation of the Business prior to the Closing Date orPurchased Asset (including, for the avoidance of doubt, from any Assigned Contract) or the operation ownership, sale or lease of any Purchased Asset, in each case, in respect of the Excluded Business at any point in time;
(i) any Liability period prior to the Closing, including those arising out of or relating after Closing and related to or any Payment Program or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business period prior to the Closing Date or(including, for the avoidance of doubt, Liabilities relating to, resulting from or arising out of or in connection with product liability or recalls resulting from the operation Manufacture or Commercialization of the Excluded Business at any point in timeCompounds or Products prior to Closing);
(jb) any Liability relating to or arising from a Security Incident occurring prior to the Closing Dateall Employee Liabilities;
(kc) all Liabilities of the Seller to Seachaid or any of its Related Parties relating to, resulting from, or arising out of or in connection with the sale and purchase of certain patents, among other rights and assets from Seachaid pursuant to the Seachaid APA;
(d) all Liabilities for Taxes (i) relating to any Purchased Asset or any Assumed Liability for any taxable period (or portion thereof) ending before the Closing, (ii) of the Seller or member of the Seller Group of any kind or description (including any Liability for Taxes of the Seller (or any member of the Seller Group) that becomes a Liability of a Buyer under any common law doctrine of de facto merger or transferee or successor liability or otherwise by operation of Contract or Law) or (iii) the Seller’s share of Conveyance Taxes pursuant to Section 7.4 (any such Taxes, “Excluded Taxes”); provided that Excluded Taxes shall not include (A) any Liability Taxes allocated to Buyer under Section 7.1, or (B) the Buyer’s share of Conveyance Taxes pursuant to Section 7.4;
(e) all Liabilities relating to to, resulting from, or arising from out of or in connection with a failure to comply with any applicable bulk sale or bulk transfer Laws with respect to the sale and purchase of the Purchased Assets pursuant to this Agreement;
(f) all Liabilities relating to, resulting from, or arising out of or in connection with the Excluded Assets or the Excluded Business;
(lg) any Liability arising under any employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;
(m) any Liability all Liabilities relating to, resulting from, or arising from out of or in connection with Business Employees the legal, accounting, consulting, investment banking, financial advisory, brokerage and other third-party fees, commissions or former employees expenses incurred by or on behalf of the Business during all time periods prior to and through Seller or any member of the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties Group in connection with the transactions contemplated by this AgreementTransactions;
(nh) all Liabilities relating to, resulting from, or arising out of or in connection with any Liability Indebtedness of the Seller Group;
(i) all Liabilities of the Seller or any member of the Seller Group relating to, resulting from, or arising under Environmental Laws out of or in connection with respect to Hazardous Substances arising from facts, circumstances this Agreement or conditions, existing, initiated or occurring on or any Ancillary Document; and
(j) trade payables of the Business accrued prior to the Closing Date and relating to the Business, the Purchased Assets or any real property currently or formerly owned, operated, used or leased Closing. All such Liabilities not being assumed by the Seller Parties or their Affiliates;
(o) any Liability Buyer in this Agreement, including the foregoing, are referred to herein as the “Excluded Liabilities”, which Excluded Liabilities shall remain the responsibility and obligation of the Seller Parties or their Affiliates arising from one or relating to violation more of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) any other Liability members of the Seller Parties Group from and after the Closing. From and after the Closing, the Seller shall, or their Affiliates that is not specifically included as an Assumed Liabilityshall cause its applicable Seller Group member to, discharge and satisfy, and pay in full if and when due, all Excluded Liabilities.
Appears in 1 contract
Samples: Asset Purchase Agreement (Cidara Therapeutics, Inc.)
Excluded Liabilities. Notwithstanding anything to the contrary contained herein, other than Except for the Assumed Liabilities, the Seller Parties shall be responsible for all of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreement, and Buyer Purchaser shall not assume, and Hotel Owners shall retain all Liabilities to the extent based on or relating to events, facts, circumstances or conditions occurring or existing in any way be liable connection with, or responsible forarising out of, any Liabilities the operation of the Seller Parties Properties prior to Closing or the ownership, possession, use or sale of the Properties prior to Closing (except to the extent of any credit for any the same given against the Purchase Price as provided herein) (collectively, the “Excluded Liabilities”). Without limiting the generality of the foregoing, Buyer the following shall not assume the followingconstitute Excluded Liabilities notwithstanding any other provision of this Agreement:
(a) any Liability all Liabilities relating to pay any Taxes of the Seller Parties or any of their Affiliates, regardless of whether arising in connection with the consummation of the transactions contemplated hereby or otherwiseExcluded Property;
(b) any Liability all Liabilities of Facilitator (and its Affiliates) arising or incurred in connection with the Seller Parties or their Affiliates for negotiation, preparation, investigation and performance of this Agreement (except to the extent assumed under this Agreement Agreement), the Merger Agreement, the other instruments and agreements to be delivered or any entered into in connection herewith or therewith, and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of the Ancillary Agreementscounsel, accountants, consultants, advisers and others;
(c) any Liability under any Assigned Contract all Liabilities relating to complaints, causes of action, litigation or any Transferring Real Property Lease similar matters instituted against Facilitator or the Hotel Owners or related to the Properties, as applicable, relating to or arising out of factsany actions, omissions, circumstances or occurrences existing conditions or events occurring at or prior to the Closing Date or relating to any breach, violation or failure to perform that occurred prior with respect to the Closing Date (other than Liabilities Merger Agreement, except, in respect of accounts payable or other accrualsall cases, for which Section 1.4(g) shall instead apply)as may have been caused by Purchaser;
(d) any Liability under any Real Property Lease that is not a Transferring Real Property Lease;Indebtedness of the Hotel Owners; and
(e) any Liability relating to any Debt all Liabilities arising out of the Seller Parties or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing Date);
(fi) any Liability for any accounts payable or other accruals related Taxes with respect to the Business arising Properties for periods prior to the Closing Date;
(g) any Liability arising out of Cut-Off Time except to the Seller Parties’ or their Affiliates’ obligations under or agreements with any Payment Programs (including pursuant to any Provider Agreements);
(h) any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance extent of any Health Care Law arising from the operation of the Business prior to the Closing Date or, credit for the avoidance of doubt, from same given against the operation of the Excluded Business at any point in time;
(i) any Liability arising out of or relating to or any Payment Program or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from BuyerPurchase Price as provided herein, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or (ii) Taxes of Facilitator for any other reason relating to any action or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(j) any Liability relating to or arising from a Security Incident occurring prior to the Closing Date;
(k) any Liability relating to or arising from the Excluded Assets or the Excluded Business;
(l) any Liability arising under any employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;
(m) any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or prior to the Closing Date and relating to the Business, the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;
(o) any Liability of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed LiabilityTax period.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Pebblebrook Hotel Trust)
Excluded Liabilities. Notwithstanding anything Except as and to the contrary contained hereinlimited extent specifically set forth in Section 2.03, BofI is not assuming any Liabilities of HRB Bank. HRB Bank is, and following the Closing HRB Bank will continue to be, responsible for all Liabilities of HRB Bank other than the Assumed LiabilitiesLiabilities (collectively, the Seller Parties shall be responsible for all of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreement, and Buyer shall not assume, or in any way be liable or responsible for, any Liabilities of the Seller Parties (the “Excluded Liabilities”). Without limiting the generality of the foregoing, Buyer shall not assume the Excluded Liabilities include the following:
(a) any Liability to pay any Taxes arising out of the Seller Parties or any of their Affiliates, regardless of whether arising in connection with the consummation business of the transactions contemplated hereby or otherwise;
(b) any Liability of the Seller Parties or their Affiliates for performance under this Agreement HRB Bank or any transactions or series of the Ancillary Agreements;
(c) transactions, any Liability under any Assigned Contract facts or series of facts existing, or any Transferring Real Property Lease arising out events or series of facts, circumstances or occurrences existing prior events to the Closing Date extent they occurred on or relating to any breach, violation or failure to perform that occurred prior to the Closing Date (other than the Liabilities in expressly assumed by BofI pursuant to Section 2.03);
(b) any Liability with respect of accounts payable to employment or consulting agreements, pension, profit-sharing, welfare or benefit plans, or amounts owing for commissions or compensation, termination, severance or other accrualspayments to present or former employees, officers, managers or members of HRB Bank and/or to the spouse, dependents, and beneficiaries of such individuals, regardless of whether any such person is employed by HRB Bank or BofI following the Closing;
(c) any Liability of HRB Bank for which Section 1.4(g) shall instead apply)any Taxes of any kind or nature, or any interest or penalties thereon, including any of HRB Bank's Tax obligations arising out of the transactions contemplated hereunder;
(d) any Liability under any Real Property Lease that is not a Transferring Real Property Leaseall FHLB Advances (if any) and Federal Reserve Borrowings (if any);
(e) any Liability under or relating to any Debt of the Seller Parties or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing Date)Retained Contracts;
(f) any Liability arising from or relating to the Excluded Assets;
(g) any Liability for any accounts payable commissions or other accruals related payments due to the Business arising brokers on any Brokered Deposits incurred or accrued prior to the Closing Date;
(g) any Liability arising out of the Seller Parties’ or their Affiliates’ obligations under or agreements with any Payment Programs (including pursuant to any Provider Agreements);
(h) any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law Liabilities arising from the operation of the Business prior or related to the Closing Date orPending Litigation, for the avoidance of doubt, which are expressly retained by HRB Bank and expressly excluded from the operation of the Excluded Business at any point in time;Assumed Liabilities to be assumed by BofI; and
(i) any Liability arising out fee payable by HRB Bank pursuant to its engagement letter with either of Goldxxx, Xxchx. & Co. or relating to or any Payment Program First Annapolis Consulting, Inc. or any other payor (including Medicare broker, investment bank, consultant or Medicaid)other advisor engaged by HRB Bank, making any claims Block Financial or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for Affiliate thereof and any other reason relating to costs, expenses or other Liabilities incurred by HRB Bank, Block Financial or any action or inaction of the Seller Parties or their Affiliates Affiliate thereof in connection with the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(j) any Liability relating to or arising from a Security Incident occurring prior to the Closing Date;
(k) any Liability relating to or arising from the Excluded Assets or the Excluded Business;
(l) any Liability arising under any employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;
(m) any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or prior to the Closing Date and relating to the Business, the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;
(o) any Liability of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed LiabilityDivestiture Transactions.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything to PURCHASER SHALL NOT ASSUME OR BECOME LIABLE FOR ANY OBLIGATIONS, COMMITMENTS, OR LIABILITIES OF SELLER, WHETHER KNOWN OR UNKNOWN, ABSOLUTE, CONTINGENT, OR OTHERWISE, AND WHETHER OR NOT RELATED TO THE PURCHASED ASSETS, EXCEPT FOR THE ASSUMED LIABILITIES (the contrary contained herein, other than the Assumed Liabilities, the obligations and liabilities of Seller Parties shall be responsible for all of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreement, and Buyer shall not assume, or in any way be liable or responsible for, any Liabilities of the Seller Parties (Purchaser are hereinafter referred to as the “Excluded Liabilities”). Without limiting the generality The Excluded Liabilities include all obligations and Liabilities of the foregoingSeller which are not Assumed Liabilities, Buyer shall not assume including without limitation, the following:
(a) Any Liability or obligation of Seller arising out of any Liability Employee Benefit Plan maintained by Seller or to pay which Seller has made any Taxes of the Seller Parties or any of their Affiliates, regardless of whether arising in connection with the consummation of the transactions contemplated hereby or otherwisecontribution;
(b) Trade accounts payable, bank debt, and any other Liability of the Seller Parties or their Affiliates for performance under this Agreement or any of the Ancillary Agreementsthat is not an Assumed Liability;
(c) any Liability under any Assigned Contract Any losses, costs, expenses, damages, claims, demands, and judgments of every kind and nature (including the defenses thereof and reasonable attorneys’ and other professional fees) related to, arising out of, or in connection with Seller’s failure to comply with the Bulk Transfer Act or any Transferring Real Property Lease arising out of factssimilar statute as enacted in any jurisdiction, circumstances domestic or occurrences existing prior to the Closing Date or relating to any breach, violation or failure to perform that occurred prior to the Closing Date (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead apply)foreign;
(d) Any Liability or obligation arising out of any Liability under breach by Seller of any Real Property Lease that is not a Transferring Real Property Lease;
(e) any Liability relating to any Debt of the Seller Parties or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing Date);
(f) any Liability for any accounts payable or other accruals related to the Business Assumed Contract arising prior to the Closing Date;
(ge) Any Liability of Seller with respect to any Liability arising claim or cause of action, made or asserted within eighteen (18) months of the Closing Date, to the extent arising:
(i) out of or in connection with the operations of the Seller’s business prior to the Effective Time;
(ii) in respect of any product sold or licensed, or any service provided, by Seller, prior to the Effective Time, including without limitation, any liability or obligation to the extent arising prior to the Effective Time (a) pursuant to any express or implied representation, warranty, agreement, or guarantee made by Seller Parties’ or their Affiliates’ obligations under alleged to have been made by Seller, or agreements (b) imposed or asserted to be imposed by operation of law, in connection with any Payment Programs (service performed or product designed, manufactured, sold, licensed, or leased by or on behalf of Seller prior to the Effective Time, including without limitation, any claim related to any product delivered in connection with the performance of such service and any claims seeking to recover for consequential damage, lost revenue, or income and, including pursuant to any Provider Agreementsdoctrine of product liability;
(iii) with respect to a claim that the Intellectual Property Assets infringe the intellectual property rights of any third party (to the extent such claim does not relate to a modification or enhancement thereto or use thereof made by Purchaser, if such claim would not have existed but for such modification or enhancement or use);
(hiv) any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from the operation of the Business prior to the Closing Date orEffective Time, for the avoidance of doubtunder common law or any federal, from the operation of the Excluded Business at any point in timestate, or local law, rule, or regulation relating to (a) consumer protection or privacy, (b) environmental protection or clean-up, (c) taxation, (d) intellectual property, or (e) employee health and safety;
(if) any Liability arising out Any Liabilities or obligations of or relating to or any Payment Program or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(j) any Liability relating to or arising from a Security Incident occurring prior to the Closing Date;
(k) any Liability relating to or arising from the Excluded Assets or the Excluded Business;
(l) any Liability arising under any employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;
(m) any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or prior to the Closing Date and extent relating to the Business, the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;
(o) any Liability of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior the Closing DateExcluded Assets; or
(rg) any other Any Liability or obligation, arising prior to or as a result of the Seller Parties Closing, to any employee, agent, or their Affiliates that is independent contractor of Seller, whether or not specifically included as an Assumed Liabilityemployed by Purchaser at or after the Closing.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything the provisions of Section 1.4, any Ancillary Agreement or any other provision hereof or any Schedule or Exhibit hereto or thereto and regardless of any disclosure to the contrary contained herein, other than the Assumed LiabilitiesBuyer, the Seller Parties Buyer shall not assume and be responsible for all of the Seller Parties’ respective following Liabilities not expressly assumed by Buyer under this Agreement(collectively, and Buyer shall not assume, or in any way be liable or responsible for, any Liabilities of the Seller Parties (the “Excluded Liabilities”). Without limiting the generality of the foregoing, Buyer shall not assume the following:):
(a) all Liabilities arising out of or related to the Excluded Assets, including all Liabilities arising under or related to any Liability to pay any Taxes of the Seller Parties or any of their Affiliates, regardless of whether arising in connection with the consummation of the transactions contemplated hereby or otherwiseEnvironmental Law;
(b) any Liability all Liabilities resulting from all Litigation (i) pending as of the Seller Parties Closing to the extent resulting from the conduct or their Affiliates for performance under this Agreement or any ownership of the Ancillary AgreementsAcquired Operations, the Acquired Assets or the Acquired Stock prior to the Closing, including, without limitation, (x) the pending Litigation listed on Schedule 3.8 and (y) any pending Litigation in which IPSO LSG NV (“IPSO Belgium”) and any Seller or Acquired Company is a named party, or (ii) arising out of or relating to any occurrence or event (actual or alleged) transpiring or existing prior to the Closing, including all incurred but not reported claims and/or occurrences;
(c) any Liability under any Assigned Contract or any Transferring Real Property Lease all Liabilities arising out of facts, circumstances or occurrences existing prior to the Closing Date from or relating to any breach, violation or failure to perform that occurred prior to the Closing Date IPH Product Line (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead applyexcept as provided by the IPH Supply Agreement);
(d) any Liability under any Real Property Lease that is not a Transferring Real Property Leaseall Liabilities arising from or relating to Xxxxxx to the extent such Liabilities relate to businesses or operations other than the Acquired Operations;
(e) any Liability relating all Liabilities with respect to any Debt of employees employed in the Seller Parties or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing Date)IPH Product Line;
(f) any Liability for any accounts payable or other accruals related to the Business arising prior to the Closing Dateall Liabilities expressly excluded in Article VII;
(g) any Liability arising out all Liabilities for Income Taxes of, or in respect of, the Acquired Operations, the Acquired Assets, Sellers or Sellers’ Affiliates (recognizing that, by operation of law, Liabilities for Income Taxes of Xxxxxxx Distribution and Global Fox are Liabilities of such Persons but are subject to the Seller PartiesSellers’ or their Affiliates’ indemnification obligations under or agreements with any Payment Programs (including pursuant to any Provider AgreementsSection 9.1(a)(i) of this Agreement);
(h) any Liability for laboratory testing performance or resultsall Liabilities relating to the Pre-Closing Restructuring as defined in the Share Purchase Agreement, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from the operation dated as of the Business prior to date hereof among LSG and the Closing Date or, for Buyer (the avoidance of doubt, from the operation of the Excluded Business at any point in time“Share Purchase Agreement”);
(i) any Liability arising out of or all Liabilities relating to or any Payment Program or any other payor (including Medicare or Medicaid)the reorganization of WMC Holdings, making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business prior Inc. pursuant to the Closing Date orAgreement and Plan of Reorganization, for the avoidance dated as of doubtMarch 31, from the operation of the Excluded Business at any point in time2005, by and among XXX, XXXX Xxxxxxx, WMC Holdings, Inc. and LSG North America;
(j) any Liability relating to or arising from a Security Incident occurring prior to the Closing Date;all Indebtedness (other than Permitted Intercompany Indebtedness, as defined herein); and
(k) any Liability relating to or arising from the Excluded Assets or the Excluded Business;
(l) any Liability all Liabilities arising under any employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;
(m) any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or prior to the Closing Date and relating to the Business, the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;
(o) any Liability of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed LiabilityContract set forth on Schedule 1.3(l).
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything Except as set forth above, Buyer shall have no responsibility for any liabilities or obligations of Sellers of any nature whatsoever, whether similar or dissimilar to the contrary contained herein, other than the Assumed Liabilities, the Seller Parties shall be responsible for all of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreementwhether now existing or hereafter arising, and whether known or unknown to Buyer shall not assume, or in any way be liable or responsible for, any Liabilities of the Seller Parties (the “Excluded Liabilities”). Without limiting the generality of the foregoing, Buyer shall not assume the followingincluding without limitation:
(a) any Liability Liabilities or obligations of Sellers arising out of or relating to pay any Taxes (i) Sellers’ ownership of the Seller Parties or any of their AffiliatesPurchased Assets, regardless of whether arising in connection with (ii) the consummation operation of the transactions contemplated hereby Xxxx Wrap Business on or otherwiseprior to the Closing Date, (iii) the operation of the Xxxx Wrap Business with respect to the 2011 Christmas Season, or (iv) the Excluded Assets;
(b) any Liability Liabilities or obligations of the Seller Parties or their Affiliates for performance under this Agreement or any of the Ancillary Agreements;
(c) any Liability under any Assigned Contract or any Transferring Real Property Lease Sellers arising out of facts, circumstances or occurrences existing prior to the Closing Date or relating to any breach, violation or failure to perform that occurred prior to the Closing Date (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead apply);
(d) any Liability under any Real Property Lease that is not a Transferring Real Property Lease;
(e) any Liability relating to any Debt of the Seller Parties or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing Date);
(f) any Liability for any accounts payable or other accruals related to the operation of CSS or the Retained Xxxx Business arising on, prior to or after the Closing Date;
(gc) any Liability Liabilities or obligations of Sellers for foreign, federal, state, county, local or other governmental taxes of Sellers;
(d) Liabilities or obligations of Sellers that are covered by general liability, casualty, property, and worker’s compensation or other insurance carried by or for Sellers;
(e) Liabilities or obligations of Sellers arising out of the any litigation or administrative or arbitration proceeding to which any of Seller Parties’ is a party;
(f) Liabilities or their Affiliates’ obligations under of Sellers resulting from any violation by Sellers or agreements with any Payment Programs (including predecessor for which Sellers may be liable, of any applicable foreign, federal, state, county, local or other governmental laws, decrees, ordinances or regulations, or any permit, license, consent, certificate, approval or authorization issued pursuant to such laws, decrees, ordinances or regulations, including, without limitation, those applicable to discrimination in employment, retirement, labor relations, occupational safety, health, trade practices, environmental matters, competition, pricing and advertising;
(g) Liabilities or obligations of Sellers which were incurred by Sellers or which arise out of any Provider Agreements)event that occurred or state of facts that existed on or prior to Closing;
(h) Liabilities under any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance employee benefit plan of any Health Care Law arising from the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in timeXxxx;
(i) any Liability Liabilities of Sellers arising out of or relating to or any Payment Program or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;Worker Adjustment and Retraining Notification Act; and
(j) any Liability relating to or arising from a Security Incident occurring prior to the Closing Date;
(k) any Liability relating to or arising from the Excluded Assets or the Excluded Business;
(l) any Liability arising Sellers’ obligations under any employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;
(m) any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or prior to the Closing Date and relating to the Business, the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;
(o) any Liability of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed Liability.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything Under no circumstance shall Buyer assume or be obligated to pay, and none of the Assets shall be or become liable for or subject to, any of the Excluded Liabilities, including but not limited to the contrary contained hereinfollowing liabilities, other than the Assumed Liabilities, the Seller Parties which shall be responsible for all and remain liabilities of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreement, and Buyer shall not assume, or in any way be liable or responsible for, any Liabilities of the Seller Parties (the “Excluded Liabilities”). Without limiting the generality of the foregoing, Buyer shall not assume the followingSellers:
(a) any Liability to pay any Taxes of and all liabilities or obligations other than the Seller Parties or any of their Affiliates, regardless of whether arising in connection with the consummation of the transactions contemplated hereby or otherwiseAssumed Liabilities;
(b) liabilities or obligations associated with any Liability of the Seller Parties or their Affiliates for performance under this Agreement or any of the Ancillary AgreementsExcluded Assets;
(c) liabilities or obligations associated with any Liability under any Assigned Contract or any Transferring Real Property Lease arising out and all indebtedness of facts, circumstances or occurrences existing prior to Sellers for borrowed money not included in the Closing Date or relating to any breach, violation or failure to perform that occurred prior to the Closing Date (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead apply)Assumed Liabilities;
(d) any Liability liabilities or obligations arising under any Real Property Lease the Excluded Contracts or the Completed Contracts, including causes of action in connection with performance, surety or other bonds relating to such Excluded Contracts or Completed Contracts, and post-Closing obligations under the Assumed Contracts which relate to pre-Closing performance undertaken by Sellers, except to the extent, and only to the extent, that is not a Transferring Real Property LeaseBuyer has agreed to assume pre-petition and post-petition cure costs as part of the Assumed Liabilities;
(e) any Liability relating to any Debt of the Seller Parties liabilities or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on out of or following the Closing Date);
in connection with claims, litigation and proceedings (fwhether instituted prior to or after Closing) any Liability for any accounts payable acts, errors or other accruals related to the Business arising omissions which occurred, or arise from events that occurred, prior to the Closing Date;
(f) liabilities or obligations (i) to Sellers' employees or other service providers, including any obligations for severance, termination, salary or other benefits, whether oral or written, other than those specifically designated as Assumed Liabilities, (ii) with respect to the Seller Benefit Plans, and (iii) of Sellers to the Internal Revenue Service, Department of Labor, PBGC or any other Governmental Authority relating to Sellers' employees;
(g) any Liability penalties, fines, settlements, interest, costs and expenses arising out of the Seller Parties’ or their Affiliates’ obligations under incurred as a result of any actual or agreements with alleged violation by any Payment Programs (including pursuant to of Sellers of any Provider Agreements)Legal Requirement;
(h) any Liability for laboratory testing performance liabilities or resultsobligations under the WARN Act, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from the operation of the Business prior to the Closing Date orif any, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(i) any Liability arising out of or relating to or any Payment Program or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds resulting from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction layoffs of the Seller Parties or their Affiliates in connection with the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(j) any Liability relating to or arising from a Security Incident occurring prior to the Closing Date;
(k) any Liability relating to or arising from the Excluded Assets or the Excluded Business;
(l) any Liability arising under any employee compensation or employee benefit plan adopted employees by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;
(m) any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring Sellers on or prior to the Closing Date Date, in connection with or resulting from the consummation of the Transaction, sufficient in the aggregate to require notice under the WARN Act, except (i) to the extent Buyer has agreed to assume a portion of the WARN Act liability, if any, associated with Beneco and (ii) except for any WARN Act liabilities that may arise from any layoffs of Hired Employees by Buyer after the Closing;
(i) liabilities or obligations relating to professional liability, pending or threatened litigation or pending or future claims relating to asbestos;
(j) liabilities related to any debtor-in-possession financing under section 364(b), (c) or (d) of the Bankruptcy Code other than the Credit Agreement;
(k) all liabilities: (i) for administrative claims incurred in connection with the Bankruptcy Cases, other than pre-petition and post-petition cure costs related to Assumed Contracts; (ii) incurred in the negotiation and preparation of this Agreement; (iii) relating to the BusinessTransaction; (iv) relating to the Bankruptcy Cases, in each case to the Purchased Assets extent incurred by Sellers or any real property currently or formerly ownedof them and including those related to legal counsel, operatedaccounting, used or leased by the Seller Parties or their Affiliates;
brokerage and investment advisors fees and disbursements; and (ov) any Liability of the Seller Parties pending shareholder claims, litigation or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed Liabilityproceedings.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything to the contrary contained hereinin this Agreement and regardless of whether such liability is disclosed herein or on any schedule hereto, other than the Assumed Liabilities, Buyer will not assume or be liable for any obligation or liability of the Seller Parties shall be responsible for Company or Parent, whether arising prior to, at or after the Effective Time, all of which are hereby retained by the Seller Parties’ respective Liabilities not expressly assumed Company and will be paid, performed or discharged solely by Buyer under this Agreementthe Company and Parent (collectively, and Buyer shall not assume, or in any way be liable or responsible for, any Liabilities of the Seller Parties (the “Excluded Liabilities”). Without limiting the generality of the foregoingThe Excluded Liabilities include, Buyer shall not assume the following:
without limitation, any liabilities, damages, costs (a) any Liability to pay any Taxes of the Seller Parties including attorneys’ fees and consultants’ fees), fines, penalties or any of their Affiliates, regardless of whether other obligations arising in connection with the consummation ownership or operation of the transactions contemplated hereby or otherwise;
(b) Business, the Purchased Assets and/or any Liability business of the Seller Parties Company or their Affiliates for performance under this Agreement Parent on or any of the Ancillary Agreements;
(c) any Liability under any Assigned Contract or any Transferring Real Property Lease arising out of facts, circumstances or occurrences existing prior to the Closing Date Effective Time, including (i) the Accounts Payable, (ii) liabilities of the Company under the Transaction Documents, (iii) liabilities for or relating to arising from any breach, violation claims (whenever made) or failure to perform that occurred prior to the Closing Date (other than Liabilities proceedings in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead apply);
(d) any Liability under any Real Property Lease that is not a Transferring Real Property Lease;
(e) any Liability relating to any Debt of the Seller Parties or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing Date);
(f) any Liability for any accounts payable or other accruals related to the Business arising prior to the Closing Date;
(g) any Liability arising out of the Seller Parties’ or their Affiliates’ obligations under or agreements with any Payment Programs (including pursuant to any Provider Agreements);
(h) any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at or any point in time;
(i) any Liability liability or obligation arising out of or relating to any products manufactured, packaged, distributed or sold by the Company, and Liens imposed by Law (including, without limitation, the Perishable Agricultural Commodities Act); (iv) liabilities for any Payment Program Indebtedness or any other payor payment owed by the Company or secured by any of the Purchased Assets; (v) liabilities for any Taxes, including any assessments, claims or liabilities (including Medicare interest and/or penalties) for Taxes, in respect of, imposed upon or Medicaid), making any claims assessed against (1) the Business or any offsets, withholding funds from Buyerthe Purchased Assets, or requiring Buyer to refund any payments the sales, income, property or business of the Company, for services rendered taxable periods ending on or after before the Effective Time (and with respect to a Straddle Period, the portion of such Straddle Period ending on and including the Closing Date), due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or and (2) the Company for any other reason relating to taxable period; provided, however, that liabilities for Transfer Taxes and Taxes for a Straddle Period shall be apportioned as provided in Section 6.1(a), (vi) liabilities for any action claim, damage, fine or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
penalty (jincluding interest) any Liability relating to or arising from a Security Incident occurring prior to the Closing Date;
(k) any Liability relating to or arising from the Excluded Assets or the Excluded Business;
(l) any Liability arising under any employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;
(m) any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or events occurring on or prior to the Closing Date Effective Time for personal injury, property damage, violation of immigration laws or employee welfare and relating safety laws, employment discrimination or infringement or misappropriation of any Intellectual Property by the Company, (vii) any liability or obligation under any Assumed Contract which arises after the Effective Time but which arises out of or relates to any act or omission which occurred on or prior to the BusinessEffective Time, the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;
(oviii) any Liability of liability or obligation under any Contract that is not an Assumed Contract, (ix) any liability or obligation under the Seller Parties or their Affiliates arising from Plans or relating to violation payroll, vacation, sick leave, workers’ compensation, unemployment benefits, pension benefits, employee stock option or profit sharing plans, health care plans or benefits, or any other employee plans or benefits of any kind for the Company’s employees or former employees or both, (x) any liability or obligation under any employment, severance, retention or termination agreement with any employee of the Intellectual Property rights of any Person;
Company, (pxi) any Liability liability or obligation arising out ofof or relating to any employee grievance with respect to the employees of the Company, related towhether or not the affected employees are hired by Buyer, (xii) any liability or obligation to indemnify, reimburse or advance amounts to any officer, director, employee or agent of the Company, (xiii) any liability associated with any Excluded Assets, (xiii) any liability or obligation arising out of or resulting from the Company’s compliance or non-compliance with any Law, (xiv) all liabilities, damages, costs (including attorneys’ fees and consultants’ fees), fines, penalties or other obligations pursuant to any Environmental Law or relating to Hazardous Materials, and arising out of or relating to acts or omissions, or in connection withany condition existing, any litigation brought by any stockholder of Seller Parent on or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior before the Closing Date; or
, (rxv) any other Liability liability arising from the termination of any of the Seller Parties Company’s employees prior to or their Affiliates that is not specifically included on the Closing Date, including liability arising from the failure to give notice to employees of such termination as an Assumed Liabilityrequired by the Worker Adjustment Retraining and Notification Act (the “WARN Act”) (or any similar state law), and (xvi) any liability or obligation of the Company based upon the Company’s acts or omissions occurring after the Effective Time.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything Purchaser shall not assume or be obligated to the contrary contained hereinpay, other than the Assumed Liabilitiesperform or otherwise discharge any liabilities or obligations of Medtown South, the Seller Parties shall be responsible for all of the Seller Parties’ respective Liabilities direct or indirect, known or unknown, absolute or contingent, not expressly assumed by Buyer under this Agreement, Purchaser pursuant to the Instrument of Assumption (all such liabilities and Buyer shall obligations not assume, or in any way be liable or responsible for, any Liabilities of the Seller Parties (being assumed being herein called the “Excluded Liabilities”) and, notwithstanding anything to the contrary in Section 2.01(b)(iii). Without limiting the generality , none of the foregoing, Buyer following shall not assume the followingbe Assumed Liabilities for purposes of this Agreement:
(aA) any Liability to pay any Taxes payables, expenses or other liabilities or obligations of Medtown South not individually listed in Closing Date Working Capital and reflected in the Seller Parties or any of their Affiliates, regardless of whether arising in connection with the consummation of the transactions contemplated hereby or otherwiseAdjustment Amount;
(bB) any Liability liabilities or obligations in respect of Taxes for which the Selling Parties are liable pursuant to Section 7.01(b);
(C) any payables and other liabilities or obligations of Medtown South to any of Medtown South’s Affiliates;
(D) any liabilities or obligations in respect of any Excluded Assets;
(E) any liabilities in respect of lawsuits, claims, suits, proceedings or investigations relating to the period prior to the Closing (including any of the Seller Parties foregoing relating to the failure or their Affiliates for performance under the alleged failure by Medtown South to comply with applicable Laws or perform its obligations or otherwise comply with the terms of this Agreement or any Seller Agreement), including those matters set forth in Section 4.09(h) of the Ancillary AgreementsDisclosure Schedule;
(cF) all liabilities and obligations, including any Liability under any Assigned Contract claims, actions or any Transferring Real Property Lease arising out proceedings, regardless of factswhen made or asserted, circumstances relating to, resulting from or occurrences existing prior to the Closing Date or relating to any breach, violation or failure to perform that occurred prior to the Closing Date (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead apply);
(d) any Liability under any Real Property Lease that is not a Transferring Real Property Lease;
(e) any Liability relating to any Debt of the Seller Parties or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing Date);
(f) any Liability for any accounts payable or other accruals related to the Business arising prior to the Closing Date;
(g) any Liability arising out of the Seller Parties’ or their Affiliates’ obligations under or agreements with any Payment Programs (including pursuant to any Provider Agreements);
(h) any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from the operation of the Business prior to the Closing Date or, for the avoidance business of doubt, from the operation of the Excluded Business at any point in time;
(i) any Liability arising out of or relating to or any Payment Program or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(j) any Liability relating to or arising from a Security Incident occurring prior to the Closing Date;
(k) any Liability relating to or arising from the Excluded Assets or the Excluded Business;
(l) any Liability arising under any employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;
(m) any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring Medtown South on or prior to the Closing Date and relating (except to the Business, extent individually identified as a dollar amount in Closing Date Working Capital and reflected in the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their AffiliatesAdjustment Amount);
(oG) any Liability of the Seller Parties liability under or their Affiliates with respect to a Medtown South Benefit Plan or Medtown South Benefit Arrangement or arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder with the employment and pay practices of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior the Closing DateMedtown South; or
(rH) except to the extent individually identified as a dollar amount in Closing Date Working Capital and reflected in the Adjustment Amount, any other Liability liabilities or obligations relating to, in respect of, or that may become owed to, employees of the Seller Parties or their Affiliates that is not specifically included as an Assumed LiabilityMedtown South.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything any provision of the Transaction Documents to the contrary contained hereincontrary, other than the Buyer will not accept, acquire, assume or become liable to pay, perform or discharge, and the Assumed LiabilitiesLiabilities will not include, the Seller Parties shall be responsible for all of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreement, and Buyer shall not assume, or in any way be liable or responsible for, any Liabilities of the Seller Parties following liabilities (the “Excluded Liabilities”). Without limiting the generality of the foregoing, Buyer shall not assume the following:):
(ai) any Liability to pay any all Liabilities for Taxes of the Seller Parties or any of their AffiliatesSeller, regardless of whether arising other than as set forth in connection with the consummation of the transactions contemplated hereby or otherwiseSection 1.3(iv) above;
(bii) any Liability all Liabilities of the Seller Parties or their Affiliates for performance under this Agreement or any of the Ancillary AgreementsEnvironmental Laws;
(ciii) all Liabilities of Seller and the ERISA Affiliates arising under, or with respect to, the Employee Plans;
(iv) all Liabilities with respect to any Liability under any Assigned Contract current or any Transferring Real Property Lease former employee, director, member, manager, stockholder, partner, agent or independent contractor of Seller, other than as set forth in Section 1.3(ii) and (iv) above;
(v) all Liabilities arising out of, or relating to, any conduct or alleged conduct of factsany employee or independent contractor of Seller;
(vi) all Liabilities arising out of, circumstances or occurrences existing prior to relating to, any Proceeding pending as of the Closing Date or any Proceeding commenced after the Closing Date to the extent arising out of, or relating to to, any breachact or omission of Seller or any event, violation circumstance, condition, breach or failure to perform that occurred default occurring on or prior to the Closing Date (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead applythose relating to any Purchased Assets);
(dvii) all Liabilities arising out of, or resulting from, Seller’s compliance or noncompliance with any Liability under any Real Property Lease that is not a Transferring Real Property Lease;
(e) any Liability relating to any Debt of the Seller Parties Legal Requirement or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts Order occurring on or following the Closing Date);
(f) any Liability for any accounts payable or other accruals related to the Business arising prior to the Closing Date;
(gviii) all Liabilities of Seller to Seller’s stockholders or any Liability arising out Affiliate of the Seller Parties’ any of Seller’s stockholders, originating prior to Closing, or their Affiliates’ obligations under originating prior to or agreements with any Payment Programs (including pursuant after Closing due to any Provider Agreements)acts or omissions of Seller;
(hix) any Liability for laboratory testing performance all Liabilities relating to, or resultsresulting from, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from the operation of the Business prior Seller’s IP to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(i) any Liability extent arising out of or relating to or any Payment Program or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(j) any Liability relating to or arising from a Security Incident occurring prior to the Closing Date;
(kx) any Liability relating all Liabilities (the “First Bank Loan”) owed to or arising from First Bank in Nashville (“First Bank”), which Liabilities will be satisfied and released as part of the Excluded Assets or Closing of this Agreement, in accordance with the Excluded Business;provisions of Section 2.1(a) below; and
(lxi) any Liability arising under any employee compensation all Liabilities based upon Seller’s acts or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;
(m) any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or omissions occurring on or prior to after the Closing Date and (other than those relating to the Business, Buyer’s ownership of the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;
(o) any Liability of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed LiabilityAssets).
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything to the contrary contained herein, other than Except for the Assumed Liabilities, the Seller Parties Purchaser shall not assume and shall not be responsible for all to pay, perform or discharge any of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreementfollowing liabilities or obligations of Sellers or the Shareholder (collectively, and Buyer shall not assume, or in any way be liable or responsible for, any Liabilities of the Seller Parties (the “Excluded Liabilities”). Without limiting the generality of the foregoing, Buyer shall not assume the following:
(a) any Liability to pay any Taxes of the Seller Parties or any of their Affiliates, regardless of whether arising in connection with the consummation of the transactions contemplated hereby or otherwise;
(b) any Liability of the Seller Parties or their Affiliates for performance under this Agreement or any of the Ancillary Agreements;
(c) any Liability under any Assigned Contract or any Transferring Real Property Lease arising out of facts, circumstances or occurrences existing prior to the Closing Date or relating to any breach, violation or failure to perform that occurred prior to the Closing Date (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead apply);
(d) any Liability under any Real Property Lease that is not a Transferring Real Property Lease;
(e) any Liability relating to any Debt of the Seller Parties or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing Date);
(f) any Liability for any accounts payable or other accruals related to the Business arising prior to the Closing Date;
(g) any Liability arising out of the Seller Parties’ or their Affiliates’ obligations under or agreements with any Payment Programs (including pursuant to any Provider Agreements);
(h) any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
): (i) any Liability liabilities or obligations arising out of or relating to Sellers’ ownership or any Payment Program or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction operation of the Seller Parties or their Affiliates Business and the Purchased Assets prior to the Closing; (ii) all liabilities and trade accounts payable of Sellers to third parties in connection with the operation of Business incurred prior to the Business Closing; (iii) all liabilities and obligations arising under or relating to the Assumed Contracts arising prior to the Closing Date or, for or relating to pre-Closing periods or arising from breaches by the avoidance of doubt, from Sellers or the operation of the Excluded Business at any point in time;
Shareholder occurring prior to Closing; (jiv) any Liability liabilities or obligations relating to or arising from a Security Incident occurring prior to out of the Closing Date;
Excluded Assets; (kv) any Liability relating to liabilities or arising from the Excluded Assets or the Excluded Business;
obligations for (li) any Liability arising under any employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;
(m) any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or prior to the Closing Date and Taxes relating to the Business, the Purchased Assets or the Assumed Liabilities for any real property currently taxable period ending on or formerly ownedbefore the Closing Date or any portion of any Straddle Period ending on and including the Closing Date, operated, used or leased by the Seller Parties or their Affiliates;
(oii) any Liability other Taxes of Sellers or any stockholders or Affiliates of Sellers for any taxable period, or (iii) any liability for unpaid Taxes of a Seller or Shareholder as a transferee, successor, pursuant to Law, by contract or otherwise; (vi) any liabilities or obligations of Sellers or the Shareholder relating to or arising out of or under (1) any Benefit Plan or the employment, or termination of employment, of any employee, including employee benefits, compensation or other arrangements or (2) workers’ compensation claims of any employee relating to periods prior to the Closing; (vii) any Transaction Expenses; (viii) Indebtedness of the Seller Parties Sellers or their Affiliates arising from the Shareholder; (ix) any liabilities or relating to violation obligations of the Intellectual Property rights Sellers to any Related Person (including the Shareholder); (x) any liabilities or obligations (including Indebtedness) of the Shareholder; (xi) any amounts due under any corporate credit cards of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively the Sellers in the name of Seller Parent;
Xxxx Xxxxxx or Xxxxxx Xxxxxx or for which Xxxx Xxxxxx or Xxxxxx Xxxxxx have guaranteed the obligations of the Sellers; and (qxii) all Liabilities related to any Action or the defense, settlement or other disposition liabilities arising out of any Action occurring receivables of the Sellers that were assigned prior to the Closing Date; or
(rincluding any claims from (1) any other Liability manufacturer or supplier for the failure of Sellers to pay amounts due in respect of products supplied in respect of such assigned receivables or (2) any Person to whom such receivables were assigned). For the avoidance of doubt, Purchaser is not assuming and its Affiliates (including Xxxxxx Xxxxxx, Xxxx Xxxxxx and their family members) are not forgiving the following (which shall remain obligations of Shareholder): (i) any and all employment or consulting fees due and owing to Xxxx Xxxxxx and Xxxxxx Xxxxxx by Shareholder and its Affiliates; (ii) any and all insurance benefits and reimbursements due and owing to Xxxx Xxxxxx, Xxxxxx Xxxxxx and their respective family members by Shareholder and its Affiliates; and (iii) any commissions or fees that may become payable to Xxxxxx Xxxxxx by Shareholder and its Affiliates (including Smart Acquisition Group, LLC) in respect of the Seller Parties potential acquisition of Purely Optimal. The Shareholder acknowledges that Xxxxxx Xxxxxx is entitled to a commission (based on the Xxxxxx formula) upon consummation of the acquisition of Purely Optimal by the Shareholder or their Affiliates that is not specifically included as an Assumed Liabilityany of its Affiliates.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything to the contrary contained herein, other than (a) Any and all Liabilities of Rafaella that are not included in the Assumed Liabilities, the Seller Parties shall be responsible for all of the Seller Parties’ respective Liabilities whether or not expressly assumed by Buyer under disclosed in this AgreementAgreement or any Schedule or Exhibit hereto (collectively, and Buyer shall not assume, or in any way be liable or responsible for, any Liabilities of the Seller Parties (the “Excluded Liabilities”). Without limiting the generality of the foregoing, Buyer shall not assume be assumed by Corporation and shall remain the followingLiabilities of Rafaella, which include, without limitation:
(a) any Liability to pay any Taxes of the Seller Parties or any of their Affiliates, regardless of whether arising in connection with the consummation of the transactions contemplated hereby or otherwise;
(b) any Liability of the Seller Parties or their Affiliates for performance under this Agreement or any of the Ancillary Agreements;
(c) any Liability under any Assigned Contract or any Transferring Real Property Lease arising out of facts, circumstances or occurrences existing prior to the Closing Date or relating to any breach, violation or failure to perform that occurred prior to the Closing Date (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead apply);
(d) any Liability under any Real Property Lease that is not a Transferring Real Property Lease;
(e) any Liability relating to any Debt of the Seller Parties or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing Date);
(f) any Liability for any accounts payable or other accruals related to the Business arising prior to the Closing Date;
(g) any Liability arising out of the Seller Parties’ or their Affiliates’ obligations under or agreements with any Payment Programs (including pursuant to any Provider Agreements);
(h) any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(i) any Liability arising out of or relating (i) the conduct of Rafaella prior to or any Payment Program or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due or (ii) the employment by Rafaella of any employees prior to overpaymentsthe Closing Date, duplicate paymentsor (iii) the retention by Rafaella of any agents or contractors prior to the Closing Date, fraudexcept, incorrect billingin each case, retroactive denials or for to the extent included as a current liability on the Closing Balance Sheet;
(ii) any other reason relating to any action or inaction Liabilities arising out of the Seller Parties or their Affiliates in connection with the operation of the Business actions and events occurring prior to the Closing Date or, for the avoidance existence of doubt, from the operation which constitutes or causes a breach of the Excluded a representation or warranty of any of Rafaella and its Affiliates or of any Business at Contract to which any point in timeof Rafaella or its Affiliates is a party;
(jiii) any Liability that Rafaella owes to any stockholder, subsidiary or Affiliate thereof;
(iv) any Liability arising under or relating to the Excluded Assets;
(v) any Liability arising under or arising from relating directly or indirectly to any Environmental Laws and attributable to, or incurred as a Security Incident result of, any acts, omissions, or conditions occurring or in existence as of or prior to the Closing Date, including, but not limited to, liabilities for the release, handling, discharge, treatment, storage, disposal, or presence of any Hazardous Materials;
(vi) any Liability of Rafaella under any Multiemployer Plan, except, in each case, to the extent included as a current liability in the Closing Balance Sheet;
(vii) any Liability for claims under health insurance plans of Rafaella for employees with respect to medical services rendered or medical expenses incurred prior to the Closing, except, in each case, to the extent included as a current liability in the Closing Balance Sheet;
(viii) any Liability for or with respect to (i) income Taxes of Rafaella, (ii) Taxes of any other Person pursuant to an agreement or otherwise and (iii) Taxes relating to the Business or any of the Assets for any period ending on or prior to the Closing Date, excluding Taxes that are the responsibility of Corporation pursuant to this Agreement or the other Transaction Documents or are reflected as a Liability on the Closing Balance Sheet. For purposes of this clause (viii), all real and personal property Taxes levied with respect to the Business or any of the Assets for a Tax period that includes (but does not end on) the Closing Date shall be apportioned between the Corporation and Rafaella based upon the number of days of such period included in the pre-Closing Tax period (which period shall include the Closing Date) and the number of days of such Tax period after the Closing Date;
(k) any Liability relating to or arising from the Excluded Assets or the Excluded Business;
(lix) any Liability arising under or relating to the Xxxxxx Lease;
(x) any employee compensation Liability for any litigation, suit, action or employee benefit plan adopted by the Seller Parties proceeding to which Rafaella is a party or their Affiliates including to which any of the Seller Parent Benefit Plans;
(m) Assets is subject, that arises out of any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or occurrence prior to the Closing Date and relating to or is pending as of the Business, the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;Closing Date regardless of when reported; and
(oxi) any Liability (other than the Assumed Liabilities) arising out of the Seller Parties Business and/or operations of Rafaella prior to the Closing Date regardless of when reported.
(b) If any Liability is partly an Assumed Liability and partly an Excluded Liability, the apportionment of such Liability shall be determined pursuant to equitable principles. Nothing set forth in the foregoing sentence shall be deemed to affect, amend, modify, supplement or their Affiliates arising from or relating to violation otherwise change the definitions of Assumed Liabilities and Excluded Liabilities.
(c) Rafaella shall pay, perform and discharge all of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed LiabilityExcluded Liabilities.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything Except as specifically designated in this Agreement, Newco shall not assume and does not agree to the contrary contained herein, other than the Assumed Liabilities, the Seller Parties discharge any Liabilities of Alliance or PanOptic. Newco shall be responsible for all Liabilities incurred by Newco arising out of its use and operation of the Seller Parties’ respective Liabilities not PanOptic Assets and the Alliance Assets after the Closing. Except as expressly assumed by Buyer under set forth in this Agreement, all other Liabilities will remain the sole responsibility of and Buyer shall be retained, paid, performed and discharged, solely by PanOptic or Alliance, as the case may be, including, but not assume, or in any way be liable or responsible for, any Liabilities of the Seller Parties (the “Excluded Liabilities”). Without limiting the generality of the foregoing, Buyer shall not assume the followinglimited to:
(a) any Liability Liabilities arising out of or relating to pay any Taxes of products or services to the Seller Parties extent performed or any of their Affiliatessold, regardless of whether arising in connection with as the consummation of case may be, prior to the transactions contemplated hereby or otherwiseClosing;
(b) any Liability Liabilities under any Contract assumed by Newco that arise after the Closing to the extent they arise out of or relate to any breach that occurred prior to the Seller Parties or their Affiliates for performance under this Agreement or any of the Ancillary AgreementsClosing;
(c) any Liability under Liabilities for Taxes, including (A) any Assigned Contract Taxes arising as a result of Alliance’s and PanOptic’s operation of their respective businesses or any Transferring Real Property Lease arising out ownership of facts, circumstances or occurrences existing their respective Assets prior to the Closing Date Closing, (B) any Taxes that will arise as a result of the contribution of the PanOptic Assets or relating the Alliance Assets pursuant to this Agreement and (C) any breach, violation or failure to perform that occurred prior to the Closing Date (other than Liabilities in respect deferred Taxes of accounts payable or other accruals, for which Section 1.4(g) shall instead apply)any nature;
(d) any Liability Liabilities under any Real Property Lease that is Contract not a Transferring Real Property Leaseassumed by Newco, including any Liabilities arising out of or relating to PanOptic’s and Alliance’ respective credit facilities, loan agreements or arrangements, debt instruments or any security interest related thereto;
(e) any Liability environmental, health and safety liabilities arising out of or relating to any Debt the business and operations of PanOptic or Alliance prior to the Seller Parties or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing Date)Closing;
(f) any Liability Liabilities relating to any PanOptic or Alliance payroll, vacation, sick leave, workers’ compensation, unemployment benefits, pension benefits, employee stock option or profit-sharing plans, health care plans or benefits or any other employee plans or benefits of any kind for any accounts payable PanOptic or other accruals related to the Business Alliance’ employees or former employees, or both, arising prior to the Closing DateClosing;
(g) any Liability arising out Liabilities under any employment, severance, retention or termination agreement, or any penalties or damages or late fees, under-payment or non-payment of the Seller Parties’ wages or their Affiliates’ obligations under other compensation, with or agreements with any Payment Programs (including pursuant relating to any Provider Agreements)employee or former employee of PanOptic or Alliance incurred or arising prior to the Closing;
(h) any Liability for laboratory testing performance Liabilities arising out of or resultsrelating to any employee grievance related to the employee’s employment by PanOptic or Alliance, any laboratory whether or medical malpractice claims not the employee filing or any violation or non-compliance of any Health Care Law initiating such grievance is hired by Newco arising from the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in timeClosing;
(i) any Liability Liabilities arising out of PanOptic’s or Alliance’s commitment to indemnify, reimburse or advance amounts to any officer, director, member of a management committee, manager, member, employee or agent of PanOptic or Alliance arising prior to the Closing;
(j) any Liabilities arising out of PanOptic’s or Alliance’s commitment to distribute to any of their respective shareholders or otherwise apply all or any part of the consideration received hereunder;
(k) any Liabilities arising out of any Proceeding pending as of the Closing;
(l) any Liabilities arising out of any Proceeding commenced after the Closing to the extent arising out of or relating to any occurrence or any Payment Program or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business event happening prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(j) any Liability relating to or arising from a Security Incident occurring prior to the Closing Date;
(k) any Liability relating to or arising from the Excluded Assets or the Excluded Business;
(l) any Liability arising under any employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit PlansClosing;
(m) any Liability relating to, Liabilities arising out of or resulting from PanOptic’s or in connection Alliance’s compliance or noncompliance with Business Employees any legal requirement or former employees order of the Business during all time periods any Governmental Entity prior to and through the Closing, including ;
(n) any severance, change in control Liabilities of PanOptic or Alliance under this Agreement or any other payments triggered upon termination of employment with any Seller Parties document executed in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or prior to the Closing Date and relating to the Business, the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;hereby; and
(o) any Liability Liabilities of PanOptic or Alliance based upon any of Pan Optic’s or Alliance’ acts or omissions occurring prior to or after the Closing. Except as detailed herein, it is understood that neither PanOptic nor Alliance is assuming any Liabilities of the Seller Parties or their Affiliates arising from or relating other parties to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed Liabilitythis Agreement.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything to the contrary contained herein, other than Except for the Assumed Liabilities, the Seller Parties shall be responsible for all of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreement, and Buyer shall not assume, or in any way be liable or responsible for, any Liabilities of the Seller Parties (the “Excluded Liabilities”). Without limiting the generality of the foregoing, Buyer shall not assume and shall not be liable for any Liabilities of Sellers or Sole Shareholder whatsoever, including any of the following:
: (a) any Liability to pay any Taxes of the Seller Parties or any of their Affiliates, regardless of whether arising in connection with the consummation of the transactions contemplated hereby or otherwise;
indebtedness for borrowed money; (b) any pension Liabilities; (c) any deferred compensation; (d) any Liability for Taxes, including any Taxes arising as a result of Seller’s operation of the Business or ownership of the Purchased Assets prior to the Closing Date (inclusive of any applicable proration in respect of personal property Taxes); (e) any Liability of the Seller Parties or their Affiliates for performance under this Agreement Sellers to Sole Shareholder or any Affiliate of Sellers or Sole Shareholder; (f) any Liability arising out of or relating (i) to products of Sellers or services provided by Sellers or (ii) to Sellers’ operation of the Ancillary Agreements;
Business or ownership of the Purchased Assets prior to the Closing Date; (cg) any Liability under any Assigned Assumed Contract or any Transferring Real Property Lease arising out of facts, circumstances or occurrences existing prior to assumed by Buyer that arises after the Closing Date but that arises out of or relating relates to any breach, violation or failure to perform breach that occurred prior to the Closing Date Date; (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead apply);
(dh) any Liability under any Real Property Lease that Contract (which is not a Transferring Real Property Lease;
an Assumed Contract); (ei) any Liability relating to any Debt of the Seller Parties or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing Date);
(f) any Liability for any accounts payable or other accruals related to the Business arising presence of or use of Hazardous Substances to the extent arising, occurring or incurred prior to the Closing Date;
; (gj) Subject to Section 1.3.3, any Liability arising out of under any Employee Plan or relating to payroll, vacation, sick leave, workers’ compensation, unemployment benefits, health care plans or benefits to the Seller Parties’ extent any such Liability arises from or their Affiliates’ obligations under or agreements with any Payment Programs (including pursuant relates to any Provider Agreements);
(h) any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from the operation of the Business events that occurred prior to the Closing Date orDate; (k) any Liability under any employment, for the avoidance of doubtseverance, from the operation of the Excluded Business at retention or termination agreement with any point in time;
employee; (il) any Liability arising out of or relating to or any Payment Program or any other payor employee grievance; (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(jm) any Liability relating to indemnify, reimburse or advance amounts to any officer, director, employee or agent of Sellers; (n) any Liability to distribute to any of Sellers’ shareholders or other holders of equity interest in Seller or otherwise apply all or any part of the consideration received by Sellers hereunder; (o) any Liability arising out of any Action against Sellers or Sole Shareholder; (p) any Liability arising out of or resulting from a Security Incident occurring compliance or non-compliance by Sellers with any Law or Action by any Governmental Entity to the extent any such Liability arises from or relates to events that occurred prior to the Closing Date;
; (kq) the accounts payable of Sellers set forth on Schedule 1.4(q) hereto (which is current as of the date captioned on such schedule), together with any Liability relating additions thereto and subject to any reductions therefrom incurred or arising from paid by Sellers in operating the Excluded Assets Business in the ordinary course of business after the date thereof through the Closing Date (the “Accounts Payable”) and (r) and all fees and disbursements of Sellers, Sole Shareholder or the Excluded Business;
(l) any Liability arising under any employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;
(m) any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties their respective Affiliates in connection with the transactions contemplated by this Agreement;
, including all fees and disbursements of their respective counsel, financial advisors, accountants and other representatives (n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or prior to the Closing Date and relating to the Businesscollectively, the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;
(o) any Liability of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed Liability“Excluded Liabilities”).
Appears in 1 contract
Samples: Asset Purchase Agreement (Banyan Rail Services Inc.)
Excluded Liabilities. Notwithstanding anything to the contrary contained herein, other than Buyer is assuming only the Assumed LiabilitiesLiabilities from the Retained Entities and is not assuming any other Liability of any of the Retained Entities of whatever nature, the Seller Parties whether presently in existence or arising hereafter. All such other Liabilities shall be responsible for all of the Seller Parties’ respective Liabilities not expressly assumed retained by Buyer under this Agreement, and Buyer shall not assume, or in any way be liable or responsible for, any remain Liabilities of the Seller Parties Retained Entities (all such Liabilities not being assumed being herein referred to collectively as the “Excluded Liabilities”). Without limiting the generality of the foregoing, Buyer shall not assume including the following:
(a) any Liability to pay any Taxes of the Seller Parties or any of their Affiliates, regardless of whether arising in connection with the consummation of the transactions contemplated hereby or otherwise;
(b) any Liability of the Seller Parties or their Affiliates for performance under this Agreement or any of the Ancillary Agreements;
(c) any Liability under any Assigned Contract or any Transferring Real Property Lease arising out of facts, circumstances or occurrences existing prior all Liabilities to the Closing Date or relating to any breachextent based upon, violation or failure to perform that occurred prior to the Closing Date (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead apply);
(d) any Liability under any Real Property Lease that is not a Transferring Real Property Lease;
(e) any Liability relating to any Debt of the Seller Parties or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing Date);
(f) any Liability for any accounts payable or other accruals related to the Business arising prior to the Closing Date;
(g) any Liability arising out of the Seller Parties’ or their Affiliates’ obligations under or agreements with any Payment Programs (including pursuant to any Provider Agreements);
(h) any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(i) any Liability arising out of or relating to or any Payment Program or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(j) any Liability relating to or arising from a Security Incident occurring prior to the Closing Date;
(k) any Liability relating to or arising from the Excluded Assets operation or conduct of the Retained Businesses or the Excluded BusinessAssets;
(lb) any Liability arising under any employee compensation or employee benefit plan adopted all Liabilities retained by the Seller Parties or their Affiliates including any of the Seller Parent Benefit PlansRetained Entities pursuant to Article VII;
(mc) all outstanding Indebtedness of the Retained Entities;
(d) the Retained Fiduciary Accounts Payable;
(e) (i) all Liabilities in respect of Title IV of ERISA, including any Liability relating Liabilities with respect to any plan, policy, agreement or arrangement which is subject to Title IV of ERISA, or on account of any violation of COBRA and (ii) all Liabilities related to, arising from or in connection with Business Employees all Seller Employee Plans and any other plan, scheme, program, policy, practice, agreement, arrangement or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with contract which any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) or any Liability arising under Environmental Laws of their respective Affiliates sponsors or maintains or with respect to Hazardous Substances arising from factswhich any Seller or any of their respective Affiliates contributes, circumstances is a party or conditions, existing, initiated or occurring on or prior has any liability (other than any Assumed Employee Plan to the Closing Date and relating extent related to the Business, the Purchased Assets Transferred Employees (or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliatesparticipants in Assumed Employee Plans who are former employees of any Transferred Entity);
(of) any Liability of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability all Taxes arising out of, related to, relating to or in connection with, respect of the Transferred Assets or the Businesses for all Pre-Closing Tax Periods and any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller ParentTaxes for which Sapphire is responsible pursuant to Section 9.02(c) and Article VI;
(qg) all Liabilities related obligations of Sellers and their Affiliates to any Action broker, finder or agent for any investment banking or brokerage fees, finders’ fees or commission relating to the Transaction;
(h) any intercompany accounts payable between the Retained Businesses on the one hand and the Business on the other hand (other than intercompany accounts payable arising as a result of ordinary course commercial services (other than those with a maturity date longer than one year from the date of invoice));
(i) any all guarantees, letters of credit, letters of comfort, bonds (including customs, bid and performance bonds), sureties and other credit support or assurances to the extent provided in support of any obligation of the Retained Businesses or the defense, settlement or other disposition of any Action occurring prior the Closing DateRetained Entities; orand
(rj) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed Liabilityall Specified E&O Liabilities.
Appears in 1 contract
Samples: Security and Asset Purchase Agreement (Willis Towers Watson PLC)
Excluded Liabilities. Notwithstanding Section 2.3 or anything to the contrary contained herein, Purchaser will not assume or be liable for any Liabilities of the Sellers other than the Assumed Liabilities, the Seller Parties shall be responsible for all including any Liability arising out of, relating to or otherwise in respect of the Seller Parties’ respective ownership or use of the Transferred Assets or the operation of the Business at or prior to the Closing, including where the facts, events, circumstances or conditions underlying such Liability occurred or existed at or prior to the Closing irrespective of whether such Liability arises before or after the Closing (all such Liabilities not expressly being assumed by Buyer under this Agreement, and Buyer shall not assume, or in any way be liable or responsible for, any Liabilities of the Seller Parties (herein referred to as the “Excluded Liabilities”). The Sellers shall remain fully and solely responsible for all Excluded Liabilities. Without limiting the generality of the foregoing, Buyer the Excluded Liabilities shall not assume include the following:
(a) any Liability to pay any Taxes all (i) Indebtedness of the Seller Parties Sellers or any of their Affiliates, regardless of whether arising in connection with the consummation (ii) notes and accounts payable of the transactions contemplated hereby Sellers and their Affiliates; and (iii) intercompany indebtedness of the Sellers or otherwiseany of their Subsidiaries owed to any Affiliate of such Person;
(b) any Liability all Liabilities of the Seller Parties or their Affiliates for performance under this Agreement Sellers or any of their Subsidiaries relating to or arising under any (i) Excluded Asset, including any Excluded Contract, or (ii) the Ancillary AgreementsOther Business or any other business of the Sellers or any of their Subsidiaries other than the Business;
(c) any Liability under any Assigned Contract or any Transferring Real Property Lease arising out of facts, circumstances or occurrences existing prior to the Closing Date or relating to any breach, violation or failure to perform that occurred prior to the Closing Date (other than all Seller Taxes and all Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead apply);
(d) any Liability under any Real Property Lease that is not a Transferring Real Property Lease;
(e) any Liability relating to any Debt of the Seller Parties or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing Date);
(f) any Liability for any accounts payable or other accruals related to the Business arising prior to the Closing Date;
(g) any Liability arising out of the Seller Partiesresulting from Sellers’ or their Affiliates’ obligations under or agreements with any Payment Programs (including pursuant to any Provider Agreements);
(h) any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance with the provisions of any Health Care Law arising from the operation bulk transfer Laws or similar Laws of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(i) any Liability arising out of or relating to or any Payment Program or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(j) any Liability relating to or arising from a Security Incident occurring prior to the Closing Date;
(k) any Liability relating to or arising from the Excluded Assets or the Excluded Business;
(l) any Liability arising under any employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;
(m) any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties jurisdiction in connection with the transactions contemplated by this Agreement;
(nd) all Liabilities of the Sellers under this Agreement;
(e) any transaction expenses of the Sellers or any of their Subsidiaries, including the fees and costs of legal and financial advisors to the Sellers or any of their Subsidiaries in connection with the Transactions and the cost of any retention bonuses implemented by the Sellers or any of their Subsidiaries;
(f) all Liabilities of the Sellers or any of their Subsidiaries arising by reason of any violation or alleged violation of any Law;
(g) all Liabilities of the Sellers or any of their Subsidiaries arising out of or related to any breach or alleged breach by the Sellers or any of their Subsidiaries of any Contract, regardless of when any such Liability is asserted, other than the Determined Cure Costs;
(h) all Liabilities arising under Environmental Laws out of or relating to any Action with respect to Hazardous Substances the Business relating to any period at or prior to the Closing;
(i) all Liabilities of the Sellers or any of their Subsidiaries arising out of, relating to or resulting from facts(i) the employment or engagement or termination of employment or engagement of any current or former employees, circumstances workers or conditionsindividual service providers, existingcontractors or consultants of the Sellers or their Subsidiaries (other than Continuing Employees or Continuing Contractors), initiated whenever incurred, including Liabilities incurred for earned but unused paid time off benefits as of the Closing or occurring any severance or termination Liabilities (other than severance or termination Liabilities for Continuing Employees or Continuing Contractors exclusively arising due to the execution of employment transfer as part of the Transactions or after the Closing Date), and (ii) the employment or engagement or termination of employment or engagement of any Continuing Employee or Continuing Contractor arising on or prior to the Closing Date (unless otherwise agreed under Section 7.4 for severance pay arising due to the execution of employment transfer as part of the Transactions);
(j) all Liabilities of the Sellers or any of their Subsidiaries arising out of, relating to or resulting from any Seller Benefit Plan, whenever incurred, and any Liabilities arising out of or relating to the Business, the Purchased Assets Sellers or any real property currently or formerly owned, operated, used or leased by the Seller Parties or of their Affiliates;
(o) Subsidiaries being an ERISA Affiliate with any Liability of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any other Person;
(pk) any Liability actual or alleged infringement, misappropriation, dilution or other violation of the rights of any other Person arising out ofof the use of or other activities related to any of the Seller IP on or prior to the Closing Date, or at any time arising from or related to Excluded Intellectual Property;
(l) Liabilities of the Sellers or any of their Subsidiaries for any claims made for injury to Persons or damage to property, whether made in product liability, tort, breach of warranty or otherwise, to the extent arising out of or resulting from any act or omission on or prior to the Closing Date of the Sellers or any of their Subsidiaries or their agents, representatives or employees, or any product manufactured or sold by the Sellers or any of their Affiliates on or prior to the Closing Date;
(m) Liabilities of the Sellers or any of their Subsidiaries arising under, in relation to, or in connection withpursuant to, any litigation brought by Environmental Law where the facts, events, or conditions underlying such Liability occurred or existed on or prior to the Closing Date, irrespective of whether such liability (i) attaches to the Sellers or any stockholder of Seller Parent their Subsidiaries, or derivatively Purchaser, in the name of Seller Parent;
first instance, or (qii) all Liabilities related to any Action arises prior to, on or the defense, settlement or other disposition of any Action occurring prior after the Closing Date; orand
(rn) any all other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed LiabilityLiabilities listed on Schedule 2.4(n).
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything to At the contrary contained herein, other than the Assumed LiabilitiesClosing, the Seller Parties Selling Group or its Affiliates shall retain, and shall be responsible for all of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreementpaying, performing and discharging when due, and the Buyer or its Buying Affiliates shall not assumeassume or have any responsibility for the following (collectively, or in any way be liable or responsible for, any Liabilities of the Seller Parties (the “Excluded Liabilities”). Without limiting the generality of the foregoing, Buyer shall not assume the following:):
(a) any Liability to pay any Taxes all Liabilities of the Seller Parties Selling Group or any of its Affiliates to the extent relating to any employment arrangement entered into with any of their Affiliatesemployees prior to Closing, regardless of whether arising in connection with the consummation of the transactions contemplated hereby payment obligation thereunder occurs before or otherwiseafter Closing;
(b) any Liability all Liabilities of the Seller Parties or their Affiliates for performance under this Agreement Selling Group or any of its Affiliates to the Ancillary Agreementsextent relating to any Plan or any employee benefit plan, policy or arrangement maintained by a member of the Selling Group or any of its Affiliates prior to Closing, whether any payment or benefit obligation thereunder occurs before or after Closing, relating to, or accrued as a result of employment by a member of the Selling Group prior to Closing, and any vesting or payment of cash or equity awards granted to Business Employees under any Plan prior to Closing, provided that such obligation is in respect of employment with the Selling Group or any of its Affiliates prior to the Closing;
(c) all Liabilities of the Selling Group or any Liability of its Affiliates to the extent relating primarily to any Leased Real Property other than Acquired Leased Real Property;
(d) all Liabilities of the Selling Group or any of its Affiliates to the extent relating primarily to the Selling Group’s other businesses or the Excluded Assets;
(e) all Indebtedness of the Selling Group other than Accounts Payable and Accrued Expenses, in each case, included in the Assumed Liabilities;
(f) all intercompany payables and loans between the Selling Group and any of its Affiliates, or between any Affiliate of the Selling Group and any other Affiliate of the Selling Group;
(g) any Liabilities of the Selling Group under this Agreement or the Transaction Documents (excluding, for the purposes of this clause (g), the Liabilities assumed by the Buyer under the Local Market Agreements);
(h) any Liabilities of the Selling Group in respect of all Taxes (other than as set forth in Section 3.8 and Section 7.1);
(i) any Liabilities of the Selling Group under any Assigned Contract Excluded Contracts;
(j) all Liabilities of the Selling Group or any Transferring Real Property Lease of its Affiliates, to the extent arising out of facts, circumstances or occurrences existing prior to the Closing Date or events relating to any breachproduct liability claims, violation general liability claims, or failure automobile liability claims occurring prior to perform that occurred Closing, including those claims occurring prior to Closing but reported after Closing even if any payment obligation thereunder occurs after Closing;
(k) all Liabilities of the Selling Group or any of its Affiliates, to the extent arising out of events relating to any workers’ compensation claims occurring prior to Closing, including those claims occurring prior to Closing but reported after Closing even if any payment or benefit obligation thereunder occurs after Closing;
(l) any Liabilities to the extent arising out of or based upon the Selling Group’s ownership and operation of the Business and the Acquired Assets prior to the Closing Date (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead apply);
(d) any Liability under any Real Property Lease that is not a Transferring Real Property Lease;
(e) any Liability Accounts Payable and Accrued Expenses relating to any Debt the Acquired Assets and the Business existing as of the Seller Parties or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing Date);
, including (fi) any Liability for any accounts payable Liabilities resulting from infringement, misappropriation or other accruals related to the Business arising prior to the Closing Date;
(g) any Liability violations arising out of or based upon the Seller Parties’ or their Affiliates’ obligations under or agreements with any Payment Programs (including pursuant to any Provider Agreements);
(h) any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from the Selling Group’s ownership and operation of the Business prior to and the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(i) any Liability arising out of or relating to or any Payment Program or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(j) any Liability relating to or arising from a Security Incident occurring prior to the Closing Date;
(k) any Liability relating to or arising from the Excluded Acquired Assets or the Excluded Business;
(l) any Liability arising under any employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;
(m) any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or prior to the Closing Date and (ii) those Liabilities under the Assumed Purchase Orders or the Assumed Contracts that arise as a result of a breach of any Assumed Purchase Order or Assumed Contract, as the case may be, by the Selling Group prior to the Closing, in each case as agreed in writing by a member of the Selling Group or determined by a Governmental Authority pursuant to a non-appealable Order; and
(m) all Liabilities for Taxes allocated to the Seller under Section 7.1(a) and all Transfer Taxes allocated to the Seller pursuant to Section 7.1(b), and (c) all Liabilities for Taxes relating to the Business, the Purchased Acquired Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;
(o) any Liability of the Seller Parties or their Affiliates arising from or relating and attributable to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior the a Pre-Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed LiabilityTax Period.
Appears in 1 contract
Samples: Asset Purchase Agreement (Anixter International Inc)
Excluded Liabilities. Notwithstanding anything to the contrary contained herein, other Other than the Assumed Liabilities, the Seller Parties Sellers shall be responsible for all of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreementretain, and Buyer the Purchaser shall not assume, or in any way be liable or responsible forassume from the Sellers, any Liabilities of the Seller Parties Sellers of any kind or nature whatsoever, whether or not related to the Business (collectively, the “"Excluded Liabilities”"). Without limiting the generality of the foregoing, Buyer and notwithstanding anything else in this Agreement, the Sellers shall retain, and the Purchaser shall not assume from the following:Sellers, all of the following Liabilities (which, for the avoidance of doubt, shall be Excluded Liabilities):
(a) any Liability Liabilities under or in relation to pay any Taxes of the Seller Parties or any of their Affiliates, regardless of whether arising in connection with the consummation of the transactions contemplated hereby or otherwiseAssumed Contracts that are not Assumed Liabilities;
(b) any Liability of and all Liabilities associated with the Seller Parties Purchased Assets (including any obligations, debts or their Affiliates for performance under this Agreement Liabilities relating to any customer or the Business) arising in or relating to any of ti me prior to the Ancillary AgreementsClosing;
(c) any Liability under any Assigned Contract Labilities of the Sellers relating to or any Transferring Real Property Lease arising out of facts, circumstances or occurrences existing prior to the Closing Date or relating to any breach, violation or failure to perform that occurred prior to the Closing Date (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead apply)Excluded Assets;
(d) any Liability under any Real Property Lease that is not a Transferring Real Property LeaseLiabilities arising out of or relating to Sellers' actions or omissions prior to the Closing;
(e) any Liability and all obligations, debts or Liabilities of the Sellers, of any kind or nature, whether present, past or future, known or unknown, contingent or otherwise relating to any Debt Employee or Consultant of the Seller Parties Sellers, including any amounts for bonus, incentive commission or their Affiliates (other than, for the elimination pay in lieu of doubtovertime, any trade payables amounts owed by the Sellers in respect of each Employee's 401(k) plans or other equivalents thereof or under any child-support plans, or any severance or termination obligations related thereto paid or assumed by the Sellers, including any and all Liabilities or obligations of relating to or arising under Assigned Contracts on out of (x) the employment, or following termination of employment, of any employee, or (y) workers' compensation claims of any employee (the Closing Date"Employee Liabilities");
(f) any Liability (A) liability for any accounts payable Taxes of Sellers or other accruals related Sellers' members of any kind or nature whatsoever (with respect to the Purchased Assets, the Business arising prior to the Closing Date;or otherwise), including
1., EGAL_I 14091583, I3
(g) any Liability arising out Indebtedness of the Seller Parties’ or their Affiliates’ obligations under or agreements with any Payment Programs (including pursuant to any Provider Agreements)Sellers;
(h) any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(i) any Liability arising out of or relating to or any Payment Program or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(j) any Liability relating to or arising from a Security Incident occurring prior to the Closing Date;
(k) any Liability relating to or arising from the Excluded Assets or the Excluded Business;
(l) any Liability arising under any employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;
(m) any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or prior to the Closing Date and relating to the Business, the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;
(o) any Liability of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action violation of Laws or any action, suit or claim of any nature pending, pursued or threatened against the Sellers (whether in relation to the Business or otherwise);
(1) all Liabilities of the Sellers under or in connection with the Organizational Documents of the Sellers and any Contracts relating to the issuance of equity or similar interests or rights in the Seller; and any and all Liabilities incurred by Sellers in connection with this Agreement or the defenseAncillary Documents, settlement except as expressly set forth otherwise herein, including all third- party legal, accounting, financial advisory, consulting or other disposition of any Action occurring prior fees and expenses incurred in connection with the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed LiabilityTransactions.
Appears in 1 contract
Samples: Asset Purchase Agreement
Excluded Liabilities. Notwithstanding anything The Parties agree that any Liabilities arising out of or attributable to the contrary contained hereinownership of the Contributed Interests, the ownership, use, operation, construction, development, completion or expansion of the Contributed Assets or the operation of the Businesses or other than activities occurring in connection with and attributable to the ownership of the Contributed Interests, the ownership, use, operation, construction, development, US-DOCS\70615498.10 completion or expansion of the Contributed Assets or the operation of the Businesses prior to the Effective Time that are not expressly identified as Assumed Liabilities in Section 2.4 are not part of the Assumed Liabilities, and neither the Seller Parties Partnership Group nor any member thereof has assumed, and shall be responsible for all not assume or become obligated with respect to, any Liability first incurred, accrued or arising out of or attributable to the ownership of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this AgreementContributed Interests, the ownership, use, operation, construction, development, completion or expansion of the Contributed Assets or the operation of the Businesses or other activities occurring in connection with and Buyer shall not assumeattributable to the ownership of the Contributed Interests, the ownership, use, operation, construction, development, completion or in any way be liable expansion of the Contributed Assets or responsible forthe operation of the Businesses prior to the Effective Time, including any Liabilities of the Seller P66 Parties or their Affiliates existing immediately prior to the Effective Time (other than Liabilities that are expressly identified as Assumed Liabilities in Section 2.4), whether or not described specifically in this Section 2.5 (collectively, the “Excluded Liabilities”). Without limiting , all of which shall remain the generality of sole responsibility of, and be discharged and performed as and when due by, the foregoing, Buyer shall not assume the following:
(a) any Liability to pay any Taxes of the Seller Parties or any of their Affiliates, regardless of whether arising in connection with the consummation of the transactions contemplated hereby or otherwise;
(b) any Liability of the Seller P66 Parties or their Affiliates for performance under this Agreement or any of the Ancillary Agreements;
(c) any Liability under any Assigned Contract or any Transferring Real Property Lease arising out of facts, circumstances or occurrences existing prior to the Closing Date or relating to any breach, violation or failure to perform that occurred prior to the Closing Date (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead apply);
(d) any Liability under any Real Property Lease that is not a Transferring Real Property Lease;
(e) any Liability relating to any Debt of the Seller Parties or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing Date);
(f) any Liability for any accounts payable or other accruals related to the Business arising prior to the Closing Date;
(g) any Liability arising out of the Seller Parties’ or their Affiliates’ obligations under or agreements with any Payment Programs (including pursuant to any Provider Agreements);
(h) any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(i) any Liability arising out of or relating to or any Payment Program or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or and after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of Effective Time. The term “Excluded Liabilities” shall also include the Seller Parties or their Affiliates in connection with the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(j) any Liability relating to or arising from a Security Incident occurring prior to the Closing Date;
(k) any Liability relating to or arising from the Excluded Assets or the Excluded Business;
(l) any Liability arising under any employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;
(m) any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or prior to the Closing Date and relating to the Business, the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;
(o) any Liability of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed LiabilityConstruction Costs.
Appears in 1 contract
Samples: Contribution, Conveyance and Assumption Agreement (Phillips 66 Partners Lp)
Excluded Liabilities. Notwithstanding anything any provision in this Agreement or any other writing to the contrary contained hereincontrary, other than Buyer is assuming only the Assumed Liabilities, the Seller Parties Liabilities and is not assuming and shall have no liability for any other liability or obligation of Sellers or any of their respective Affiliates (or any predecessor owner of all or part of their business and assets) of whatever nature whether presently in existence or arising or asserted hereafter. All such other liabilities and obligations shall be responsible for retained by and remain obligations and liabilities of Sellers or their respective Affiliates and Sellers shall duly and timely pay, perform and discharge all of such liabilities and obligations relating to the Seller Parties’ respective Liabilities Purchased Assets (all such liabilities and obligations not expressly being assumed by Buyer under this Agreement, and Buyer shall not assume, or in any way be liable or responsible for, any Liabilities of being herein referred to as the Seller Parties (the “"Excluded Liabilities”"). Without limiting the generality foregoing, none of the foregoing, Buyer following shall not assume be Assumed Liabilities for the followingpurposes of this Agreement:
(ai) any Liability to pay any Taxes of the Seller Parties obligation or any of their Affiliates, regardless of whether arising in connection with the consummation of the transactions contemplated hereby or otherwise;
(b) any Liability of the Seller Parties or their Affiliates liability for performance under this Agreement or any of the Ancillary Agreements;
(c) any Liability under any Assigned Contract or any Transferring Real Property Lease arising out of facts, circumstances or occurrences existing prior to the Closing Date or relating to any breach, violation or failure to perform that occurred prior to the Closing Date (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead apply);
(d) any Liability under any Real Property Lease that is not a Transferring Real Property Lease;
(e) any Liability relating to any Debt of the Seller Parties or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing Date);
(f) any Liability for any accounts payable or other accruals related to the Business arising prior to the Closing Date;
(g) any Liability arising out of the Seller Parties’ or their Affiliates’ obligations under or agreements with any Payment Programs (including pursuant to any Provider Agreements);
(h) any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law Tax arising from the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in timeDate;
(iii) any Liability obligation or liability of Sellers or any of their Affiliates arising out of or relating to the ownership or any Payment Program or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction operation of the Seller Parties Purchased Assets or their Affiliates in connection with the operation of the Business prior to the Closing Date or(including any predecessor operations), for the avoidance including any claims, obligations or litigation arising out of doubt, from the operation of the Excluded Business at any point in time;
(j) any Liability or relating to events or arising from a Security Incident conditions occurring prior to the Closing Date;
(kiii) any Liability relating liabilities or obligations under or with respect to or arising from any Employee Plans and Benefit Arrangements and liabilities incurred prior to September 1, 2002 for accrued payroll, accrued bonus and accrued vacation for the Excluded Assets or the Excluded BusinessTransferred Employees;
(liv) any Liability arising under any employee compensation liability or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plansobligation relating to an Excluded Asset;
(mv) any Liability relating to, arising from liabilities or in connection with Business Employees obligations for continued health care coverage for any employees or former employees of the Business during all time periods other qualified beneficiaries under Code Section 4980B ("COBRA") who have a qualifying COBRA event prior to and through the Closing, including Closing Date;
(vi) any severance, change in control liability or other payments triggered upon termination obligation of employment with any Seller Parties Sellers or either of their Affiliates arising or incurred in connection with the negotiation, preparation and execution of this Agreement and the transactions contemplated by this Agreementhereby, and related fees and expenses of counsel, accountants, brokers, finders and other experts;
(nvii) any Liability arising under Environmental Laws liability or with respect obligation of Sellers relating to Hazardous Substances arising from factsany current, circumstances former or conditionsretired employees, existing, initiated or occurring except for the liabilities and obligations relating to the Transferred Employees set forth on or Schedule 2.04;
(viii) all pending litigation set forth on Schedule 3.08 and any other pending litigation relating to the Business prior to the Closing Date and relating Date, or any claims, suits or actions arising on or after the Closing Date, but solely to the Businessextent that such litigation, claims, actions or suits relate to activities of either of the Purchased Assets Sellers or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliatesconduct of the Business prior to the Closing Date;
(oix) any Liability of the Seller Parties or their Affiliates arising from or liability relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior checks outstanding on the Closing Date; orand
(rx) all liabilities and obligations arising out of either Seller's failure to comply with any law, regulation, ordinance, order, writ, judgment, injunction, decree or other Liability requirement of any governmental body or court in connection with the Seller Parties or their Affiliates that is not specifically included as an Assumed LiabilityBusiness prior to the Closing Date.
Appears in 1 contract
Samples: Asset Purchase Agreement (Elbit LTD)
Excluded Liabilities. Notwithstanding anything to the contrary contained herein, other than Except for the Assumed Liabilities, the Seller Parties shall be responsible for all of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreement, and Buyer Purchaser shall not assume, or in any way be become liable for the payment or responsible forperformance of, any Liabilities of any nature whatsoever, whether accrued or unaccrued, including, without limitation, the Seller Parties following Liabilities (collectively, the “Excluded Liabilities”). Without limiting the generality ) which shall remain Liabilities of the foregoing, Buyer shall not assume the followingSellers:
(a) all Liabilities of Sellers relating to or otherwise arising, whether before, on or after the Closing, out of, or in connection with, any Liability to pay any Taxes of the Seller Parties or any of their Affiliates, regardless of whether arising in connection with the consummation of the transactions contemplated hereby or otherwiseExcluded Assets;
(b) any Liability all Liabilities of the Seller Parties or their Affiliates for performance under this Agreement or any Sellers in respect of the Ancillary AgreementsNon-Assumed Contracts;
(c) any Liability under any Assigned Contract or any Transferring Real Property Lease except for Liabilities expressly assumed pursuant to Section 2.3 (which shall be Assumed Liabilities), all litigation and related claims and Liabilities arising out of facts, circumstances or occurrences existing in connection with events occurring on or prior to the Closing Date or relating to any breachDate, violation or failure to perform that occurred prior to the Closing Date (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead apply)no matter when raised;
(d) any and all Liabilities relating to any environmental or safety matter (including any Liability or obligation under any Environmental Law), arising out of or relating to Sellers’ operation of the Business or Sellers’ leasing, ownership or operation of any Leased Real Property Lease that is not a Transferring Real Property Leaseon or prior to the Closing Date no matter when raised;
(e) any Liability except to the extent that Liabilities are assumed pursuant to Section 2.3 (which shall be Assumed Liabilities), all Liabilities of Sellers in respect of Indebtedness, whether or not relating to any Debt of the Seller Parties or their Affiliates (other thanBusiness, for the elimination of doubt, any trade payables or other obligations including all Liabilities arising under Assigned Contracts on or following the Closing DateFirst Lien Loan Documents (but excluding from this Section 2.4 (e), the DIP Loan);
(f) any Liability for any accounts payable or other accruals related except to the Business arising prior extent that Liabilities are assumed pursuant to Section 2.3 (which shall be Assumed Liabilities), any and all claims, demands, proceedings or causes of action subject to or covered by the Closing DateInsurance Policies;
(g) any and all Accrued Employee Obligations, and any and all Liabilities arising under or otherwise in respect of (i) the Excluded Plans, and (ii) any other severance, retention, employment, change in control, pension, incentive, retirement, equity or other compensation or benefit plan, program, policy, arrangement or agreement of or with any Seller or any of their respective Affiliates or ERISA Affiliates, in each case, with respect to any Employees; (iii) all accrued wages, compensation, payroll expenses (including payroll tax obligations), sick time, vacation time, and other paid time-off for Employees of Sellers, whether accruing prior to, on or after the Petition Date, and regardless of whether pursuant to a written agreement, policy manual or otherwise; (iv) any Liability arising out of any employment related matter occurring on or prior to the Closing; and (v) any Liability arising out of the Seller Parties’ or their Affiliates’ obligations under or agreements with any Payment Programs (including Purchaser not offering employment to all Employees of Sellers as of Closing pursuant to any Provider AgreementsSection 7.1 (the Liabilities and other obligations described in this clause (g), collectively, the “Accrued Employee Obligations”);
(h) any Liability and all Liabilities of Sellers for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in timeTaxes;
(i) any Liability arising out of or relating to or any Payment Program or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials any equityholders of Sellers in respect of management or for any other reason relating to any action fees or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in timeotherwise;
(j) any Liability relating to or arising from a Security Incident occurring prior to the Closing Dateall Liabilities set forth on Schedule 2.4(j);
(k) any Liability relating Liabilities of Sellers in, under or pursuant to or arising from Intercompany Obligations (except for the Excluded Assets or the Excluded Businessitems described in Section 2.3(h) and (i));
(l) any Liability arising and all Liabilities of Sellers under any employee compensation collective bargaining agreement or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plansagreement with any labor union;
(m) any Liability relating toall costs and expenses of professionals retained under Sections 327, arising from 328, 363 or in connection with Business Employees or former employees 1103 of the Business during Bankruptcy Code and all time periods prior to and through fees owed the ClosingUnited States Trustee under 28 U.S.C. § 1930 9(a) or otherwise, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection which along with the transactions contemplated by this Agreementcosts associated with the wind down of the Chapter 11 Case, to the extent not previously paid, shall be paid out of and capped at the Wind Down Amount;
(n) any Liability Liabilities arising under Environmental Laws from the operation of any successor liability Laws, including, without limitation, “bulk sales” statutes, to the extent that non-compliance therewith or the failure to obtain necessary clearances would subject the Purchaser or the Purchased Assets to the claims of any creditors of Sellers other than with respect to Hazardous Substances arising from factsthe Assumed Liabilities, circumstances or conditions, existing, initiated or occurring on or prior to the Closing Date and relating to the Business, would subject any of the Purchased Assets to any Encumbrances or any real property currently or formerly ownedother restrictions, operated, used or leased by other than Encumbrances arising in connection with the Seller Parties or their Affiliates;Assumed Liabilities; and
(o) any Liability and all Liabilities owed to or in respect of any Excluded Subsidiary. For the avoidance of doubt, none of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Excluded Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an shall be Assumed LiabilityLiabilities.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything in this Agreement to the contrary contained hereincontrary, other than the Assumed Liabilities, the Seller Parties shall be responsible for all of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreement, and Buyer shall not and does not assume, and shall be deemed not to have assumed and shall not be obligated to pay, perform, discharge or in any way other manner be liable or responsible for, for any Liabilities of Sellers that are not Assumed Liabilities, whether existing on the Seller Parties Closing Date or arising thereafter, including Liabilities relating to or arising out of any of the following (collectively, the “Excluded Liabilities”). Without limiting the generality of the foregoing, Buyer shall not assume the following:):
(a) any Liability all costs and expenses incurred or to pay any Taxes of the Seller Parties or any of their Affiliates, regardless of whether arising be incurred by Sellers in connection with this Agreement and the consummation of the transactions contemplated hereby or otherwiseTransactions;
(b) all Liabilities (i) related to any Liability current or former employee (including the Employees), candidate for employment, officer, director, consultant, or contractor of the any Seller Parties or of any Subsidiary or Affiliate of any Seller or (ii) arising under, in connection with or in any way relating to any Benefit Plan and any other compensation or benefit plans, programs, arrangements, or agreements of any kind (including all assets, trusts, insurance policies and administration service contracts related thereto) at any time maintained, sponsored, contributed to or required to be contributed to by any of Sellers, any of their Affiliates for performance Subsidiaries or Affiliates, or any ERISA Affiliate or under this Agreement or with respect to which any Seller or any Subsidiary or Affiliate of any Seller has or has had any Liability, including on account of an ERISA Affiliate or on account of Buyer or any of its Affiliates being deemed successor of the Ancillary AgreementsBusiness;
(c) all Liabilities arising out of, relating to or with respect to any Liability under any Assigned Contract and all Employees (including accrued vacation pay and severance and other payments payable to Employees in connection with termination of such employment), and contractors of Sellers or any Transferring Real Property Lease of their Subsidiaries or Affiliates arising out of facts, circumstances or occurrences existing prior to the Closing Date or relating to at any breach, violation or failure to perform that occurred prior to the Closing Date (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead apply)time before Closing;
(d) all Liabilities for any and all Taxes of Sellers (including any Liability of Sellers for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any Real Property Lease that similar provision of state, local or foreign Law), as a transferee or successor, by Contract or otherwise) except for Taxes for which Buyer is not a Transferring Real Property Leaseliable pursuant to Section 2.2;
(e) all Liabilities to any Liability broker, finder or agent or similar intermediary for any broker’s fee, finders’ fee or similar fee or commission relating to the transactions contemplated by this Agreement for which any Debt of the Seller Parties or their its Subsidiaries or Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing Date)are responsible;
(f) all Liabilities to the extent related to an Excluded Asset and all Liabilities arising at any Liability for time before Closing with respect to or relating to the ownership or operation of any accounts payable of the Acquired Assets or other accruals related Relating to the Business arising prior to (except for the Closing Date;Assumed Liabilities), including but not limited to, any environmental claim associated with the Acquired Assets, including any liability for any past, present or threatened non-compliance or violation of any Environmental Law; and
(g) any Liability arising out all Liabilities of the Seller Parties’ Sellers related to escrow accounts or their Affiliates’ obligations under or agreements other holdbacks, including lease and insurance payments, for all owner operators contracted with any Payment Programs (including pursuant to any Provider Agreements);Seller; and
(h) any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(ig) any Liability arising out Indebtedness of or relating to or any Payment Program or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(j) any Liability relating to or arising from a Security Incident occurring prior to the Closing Date;
(k) any Liability relating to or arising from the Excluded Assets or the Excluded Business;
(l) any Liability arising under any employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;
(m) any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or prior to the Closing Date and relating to the Business, the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;
(o) any Liability of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed LiabilitySellers.
Appears in 1 contract
Samples: Asset Purchase Agreement
Excluded Liabilities. The Parties acknowledge and agree that Purchaser shall not, and in no event will Purchaser assume or be deemed to have assumed or be required to pay, perform, or discharge any Liabilities other than the Assumed Liabilities and that Seller and Guarantor shall, jointly and severally, remain responsible for all such Liabilities. Notwithstanding anything to the contrary contained herein, other than the Assumed Liabilities, the Seller Parties shall be responsible for all of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under in this Agreement, and Buyer regardless of whether any of the following may be disclosed to Purchaser or any of their Representatives or otherwise or whether Purchaser or any of its Representatives may have knowledge of the same, neither Purchaser nor any of its Affiliates shall not assumeassume or be deemed to have assumed, or in any way be and Seller and Guarantor shall, jointly and severally, pay, perform and discharge when due and remain exclusively liable or responsible for, any and all Liabilities of Seller and its Affiliates other than the Seller Parties Liabilities expressly included in the definition of Assumed Liabilities (collectively, the “Excluded Liabilities”). Without limiting the generality of the foregoing, Buyer shall not assume the followingincluding without limitation:
(a) any Liability to pay any Taxes all Liabilities arising from Seller’s or its Affiliates’ ownership or use of the Seller Parties Acquired Assets as of or prior to the Closing or any of their Affiliatescircumstance, regardless of whether arising in connection with event or occurrence on or prior to the consummation of the transactions contemplated hereby or otherwiseClosing;
(b) any Liability of the Seller Parties or their Affiliates for performance under this Agreement or all Liabilities relating to any of the Ancillary AgreementsNon-Identified Service Providers;
(c) any Liability under any Assigned Contract or any Transferring Real Property Lease arising out of facts, circumstances or occurrences existing prior to the Closing Date or relating to any breach, violation or failure to perform that occurred prior to the Closing Date (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead apply)all Seller Tax Liabilities;
(d) any Liability under any Real Property Lease that is not a Transferring Real Property Leaseall Service Provider Retained Liabilities;
(e) any Liability all Liabilities arising out of, relating to or resulting from non-compliance with any Debt of the Law by Seller Parties or their its Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following prior to the Closing Date)Closing, including any Environmental Law, Business Permits and zoning Law, with respect to the Acquired Assets, the Rehovot Facility, or the Business;
(f) all Liabilities of Seller or its Affiliates with respect to any Liability for any accounts payable Identified Service Provider who does not accept Purchaser’s or other accruals related to the Business arising prior to the Closing Dateits Affiliates’ offer of employment or is not offered employment by Purchaser or its Affiliate;
(g) all Liabilities of Seller or its Affiliates to pay any Liability arising out of the Seller Parties’ fees or their Affiliates’ obligations under or agreements with any Payment Programs (including pursuant commissions to any Provider Agreements)broker, finder, legal counsel or agent with respect to this Agreement or the Transactions;
(h) any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law all Liabilities arising from or related to (i) the operation of grants provided to Seller by the Business prior to Innovation Authority under Program 8.16 or (ii) any Non-Transferrable Assets secured by the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;IIA Lien; and
(i) any Liability arising out of or relating to or any Payment Program or any other payor (including Medicare or Medicaidset forth on Schedule 2.3(i), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(j) any Liability relating to or arising from a Security Incident occurring prior to the Closing Date;
(k) any Liability relating to or arising from the Excluded Assets or the Excluded Business;
(l) any Liability arising under any employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;
(m) any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or prior to the Closing Date and relating to the Business, the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;
(o) any Liability of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed Liability.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything to the contrary contained herein, other than the Assumed Liabilities, the Seller Parties shall be responsible for all of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreement, and Buyer shall not assume, or in any way be liable or responsible for, any Liabilities of the Seller Parties (the “Excluded Liabilities”). Without limiting the generality of the foregoing, Buyer shall not assume or be obligated to pay, perform or otherwise discharge any liability or obligation of the Sellers, direct or indirect, known or unknown, absolute or contingent, whether or not relating to or arising from the Purchased Assets or any rights transferred by the Sellers to Buyer pursuant to the provisions hereof, (all such liabilities or obligations not being assumed being herein called the "Excluded Liabilities") including, but not limited to, the following:
(a) any Liability to pay any Taxes of the All TGH Indebtedness and Seller Parties or any of their Affiliates, regardless of whether arising in connection with the consummation of the transactions contemplated hereby or otherwiseIndebtedness;
(b) any Liability Any liabilities of the Sellers in respect of Taxes of the Seller Parties or their Affiliates for performance under this Agreement or any of the Ancillary Agreements;Parties; 7
(c) any Liability under any Assigned Contract or any Transferring Real Property Lease arising out of facts, circumstances or occurrences existing prior to the Closing Date or relating to any breach, violation or failure to perform that occurred prior to the Closing Date (other than Liabilities Any liabilities in respect of accounts payable Taxes applicable to the Purchased Assets for all periods or other accrualsactivities of the Sellers ending on or before the Closing Date, for which Section 1.4(g) shall instead apply)regardless of when assessed and including any interest or penalties thereon;
(d) Any intercompany payables and other liabilities or obligations of the Sellers to any Liability under of their Affiliates or any Real Property Lease that is not a Transferring Real Property Leaseof the Shareholders or their Affiliates except those set forth in Schedule 2.2;
(e) any Liability relating to any Debt of Any costs and expenses incurred by the Seller Parties or incident to the negotiation and preparation of this Agreement and their Affiliates (other than, for performance and compliance with the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing Date)agreements and conditions contained herein;
(f) Any liabilities or obligations in respect of any Liability for any accounts payable or other accruals related to the Business arising prior to the Closing DateExcluded Assets;
(g) any Liability All liabilities and obligations arising out of the Seller Parties’ or their Affiliates’ obligations under or agreements with any Payment Programs (including pursuant to any Provider Agreements);
(h) any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(i) any Liability arising out of or relating to or any Payment Program or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(j) any Liability relating to or arising from a Security Incident occurring prior to the Closing Date;
(k) any Liability relating to or arising from the Excluded Assets or the Excluded Business;
(l) any Liability arising under any employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;
(m) any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or prior to the Closing Date and relating to which are related to, associated with or arising out of (i) the Businessoccupancy, the Purchased Assets operation, use or control of any real property currently used by any of the Sellers on or formerly ownedprior to the Closing Date, operatedunless such constitute Leased Premises and the Real Property Leases are assigned as set forth in Section 4.19(c); or (ii) the operations or businesses of any of the Sellers on or prior to the Closing Date, used in each case incurred under or leased imposed by the Seller Parties or their Affiliatesany Environmental Laws;
(oh) any Liability of the Seller Parties or their Affiliates All liabilities and obligations arising from or relating to violation in connection with any tortious conduct or purported tortious conduct of the Intellectual Property rights Sellers or any representative of any Personthe Sellers;
(pi) All liabilities and obligations under any Liability arising out of, related to, or in connection withEmployee Benefit Plan, any litigation brought by Employment Agreement or any stockholder other plans or arrangements for the benefit of Seller Parent any current or derivatively in former employees of the name of Seller ParentSellers or any Affiliate thereof;
(qj) all Liabilities related Any other liabilities or obligations of the Sellers which arise or are asserted or incurred by reason of events, acts or transactions occurring, or the operation of their respective businesses, on or prior to the Closing Date that are not included in Section 2.2;
(k) any liability or obligation relating to any Action default under any of the Assumed Liabilities to the extent such default existed prior to, at, or as a result of, the defense, settlement or other disposition of any Action occurring prior the Closing DateClosing; or
(rl) any other Liability liability, including any obligation to defend or answer, any of the Seller Parties or their Affiliates that is not specifically included as an Assumed LiabilityLitigation listed on Schedule 4.13.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything any provision of the Transaction Documents to the contrary contained hereincontrary, other than the Buyer will not accept, acquire, assume or become liable to pay, perform or discharge, and the Assumed LiabilitiesLiabilities will not include, the Seller Parties shall be responsible for all of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreement, and Buyer shall not assume, or in any way be liable or responsible for, any Liabilities of the Seller Parties following liabilities (the “Excluded Liabilities”). Without limiting the generality of the foregoing, Buyer shall not assume the following:):
(ai) any Liability to pay any all Liabilities for Taxes of the Seller Parties or any of their AffiliatesSeller, regardless of whether arising other than as set forth in connection with the consummation of the transactions contemplated hereby or otherwiseSection 1.3(iv) above;
(bii) any Liability all Liabilities of the Seller Parties or their Affiliates for performance under this Agreement or any of the Ancillary AgreementsEnvironmental Laws;
(ciii) all Liabilities of Seller and the ERISA Affiliates arising under, or with respect to, the Employee Plans;
(iv) all Liabilities with respect to any Liability under any Assigned Contract current or any Transferring Real Property Lease former employee, director, member, manager, stockholder, partner, agent or independent contractor of Seller, other than as set forth in Section 1.3(iv) above;
(v) all Liabilities arising out of, or relating to, any conduct or alleged conduct of factsany employee or independent contractor of Seller;
(vi) all Liabilities arising out of, circumstances or occurrences existing prior to relating to, any Proceeding pending as of the Closing Date or any Proceeding commenced after the Closing Date to the extent arising out of, or relating to to, any breachact or omission of Seller or any event, violation circumstance, condition, breach or failure to perform that occurred default occurring on or prior to the Closing Date (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead applythose relating to any Purchased Assets);
(dvii) all Liabilities arising out of, or resulting from, Seller’s compliance or noncompliance with any Liability under any Real Property Lease that is not a Transferring Real Property Lease;
(e) any Liability relating to any Debt of the Seller Parties Legal Requirement or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts Order occurring on or following the Closing Date);
(f) any Liability for any accounts payable or other accruals related to the Business arising prior to the Closing Date;
(gviii) all Liabilities of Seller to Seller’s stockholders or any Liability arising out Affiliate of the Seller Parties’ any of Seller’s stockholders, originating prior to Closing, or their Affiliates’ obligations under originating prior to or agreements with any Payment Programs (including pursuant after Closing due to any Provider Agreements)acts or omissions of Seller;
(hix) any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(i) any Liability arising out of or relating to or any Payment Program or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(j) any Liability relating to or arising from a Security Incident occurring prior to the Closing Date;
(k) any Liability relating to or arising from the Excluded Assets or the Excluded Business;
(l) any Liability arising under any employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;
(m) any Liability all Liabilities relating to, or resulting from, Seller’s IP to the extent arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or prior to the Closing Date; and
(x) all Liabilities based upon Seller’s acts or omissions occurring after the Closing Date and (other than those relating to the Business, Buyer’s ownership of the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;
(o) any Liability of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed LiabilityAssets).
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything to the contrary contained hereinEach PMG Company shall retain, other than the Assumed Liabilities, the Seller Parties and shall be responsible for all of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreementpaying, performing and discharging when due, and the Buyer shall not assume, assume or in have any way be liable or responsible responsibility for, any Liabilities of any PMG Company as of the Seller Parties Closing other than the Assumed Liabilities (the “Excluded Liabilities”). Without limiting the generality of the foregoing, Buyer shall not assume the followingincluding, without limitation:
(ai) any Liability to pay any Taxes of the Seller Parties or any of their Affiliates, regardless of whether arising in connection with the consummation of the transactions contemplated hereby or otherwiseall Excluded Taxes;
(bii) any Liability of all Indebtedness, other than the Seller Parties or their Affiliates for performance under this Agreement or any of Assumed Indebtedness and the Ancillary AgreementsSpecified LCs;
(ciii) any Liability under any Assigned Contract all Liabilities relating to or any Transferring Real Property Lease arising out of facts, circumstances or occurrences existing prior to the Closing Date or Excluded Assets;
(iv) all Liabilities relating to or arising out of any breachwarranty obligations of any PMG Company, violation product liability claims or failure to perform that occurred prior to the Closing Date (other than Liabilities claims in respect of accounts payable products sold or other accruals, for which Section 1.4(g) shall instead apply);
(d) any Liability under any Real Property Lease that is not a Transferring Real Property Lease;
(e) any Liability relating to any Debt of services rendered by the Seller Parties or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing Date);
(f) any Liability for any accounts payable or other accruals related to the Business arising PMG Companies prior to the Closing Date;
(gv) any Liability arising out of the Seller Parties’ or their Affiliates’ obligations under or agreements with any Payment Programs (including all Liabilities pursuant to Environmental Laws arising from or related to any Provider Agreements)action, event, circumstance or condition related to any PMG Company or the Business, in each case occurring or existing on or prior to the Closing;
(hvi) any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(i) any Liability arising out of or relating to or any Payment Program or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(j) any Liability all liabilities relating to or arising from a Security Incident occurring out of any litigation or claim pending or threatened prior to the Closing Date;
(kvii) any Liability expenses arising from or related to entry into this Agreement or any Ancillary Agreement;
(viii) all liabilities relating to or arising out of any actions taken by the Buyer prior to the Closing with respect to the Excluded Contracts;
(ix) all liabilities relating to or arising from any actions taken by the any PMG Company or the Sellers after the Closing with respect to the Excluded Assets or the Excluded Business;Contracts; and
(lx) the Dubai Lease; and
(xi) all Liabilities relating to or arising out of any Liability arising under any employee compensation Plan or other employee benefit plan adopted by of any PMG Company or any ERISA Affiliate. Each PMG Company and the Seller Parties Sellers hereby acknowledge and agree that except for the Assumed Liabilities, the Buyer is not assuming or their Affiliates including becoming liable for any liabilities or obligations of any PMG Company, and that each PMG Company shall remain exclusively liable for all of the Seller Parent Benefit Plans;
(m) any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or prior to the Closing Date and relating to the Business, the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;
(o) any Liability of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed LiabilityExcluded Liabilities.
Appears in 1 contract
Samples: Asset Purchase Agreement (Global Eagle Entertainment Inc.)
Excluded Liabilities. Notwithstanding anything to the contrary contained herein, other than the Assumed Liabilities, the Seller Parties shall be responsible for all of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreement, and Buyer The Purchaser shall not assume, or in any way be liable or responsible for, assume any Liabilities of the Seller Parties Selling Group (or any of their respective Affiliates), whether relating to the Purchased Assets, the Business or otherwise (all such Liabilities, collectively, the “Excluded Liabilities”). Without limiting Excluded Liabilities shall include the generality of the foregoing, Buyer shall not assume the followingfollowing Liabilities:
(a) any Liability Liabilities to pay any Taxes of the Seller Parties or any of their Affiliates, regardless of whether arising in connection with the consummation of the transactions contemplated hereby or otherwiseextent directly relating to an Excluded Asset;
(b) any Liability Liabilities in respect of Taxes for which the Seller Parties or their Affiliates for performance under this Agreement or any of the Ancillary AgreementsSellers are responsible pursuant to Section 11.1;
(c) any Liability under any Assigned Contract Liabilities relating to the Purchased Assets resulting from, caused by or any Transferring Real Property Lease arising out of facts, circumstances any service rendered by the Sellers (or occurrences existing prior to any of their respective Affiliates) at any time before the Closing Date or relating to any breach, violation or failure to perform that occurred prior to the Closing Date (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead apply)Closing;
(d) any Liability under any Real Property Lease that is not a Transferring Real Property Leaselegal, investment banking and other advisory costs and expenses incurred or accrued by or on behalf of the Sellers or the Transferred Companies in connection with the Transactions contemplated by this Agreement;
(e) except Liabilities with respect to employees of the Transferred Companies (which, other than Change in Control Payments, are Assumed Liabilities as set forth in Section 2.4(e)), any Liability employee Liabilities (whether or not such Liabilities are accrued or payable at Closing, and whether or not such Liabilities are contingent in nature) relating to any Debt present and past employees of the Seller Parties Selling Group to the extent relating to (i) the termination of employment of any such employee prior to or their Affiliates (other than, for the elimination effective as of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing Date);
(f) as well as any Liability for severance or dismissal pay or otherwise in connection with any accounts payable unlawful termination of employment by Sellers, or for accrued vacation or sick time or for salary, overtime, commissions, bonuses or pension fund contributions); (ii) any Benefit Arrangement, whether or not arising prior to, at or after the Closing; (iii) any employee or other accruals related Person providing services relating to the Business arising prior to the Closing Date;
who is not a Transferred Employee; or (giv) any Liability arising out of the Seller Partiesworkers’ or their Affiliates’ obligations under or agreements with any Payment Programs (including pursuant to any Provider Agreements);
(h) any Liability for laboratory testing performance or results, any laboratory or medical malpractice compensation claims or any violation or non-compliance of any Health Care Law arising from the operation of the Business prior employee which relate to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(i) any Liability arising out of or relating to or any Payment Program or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(j) any Liability relating to or arising from a Security Incident events occurring prior to the Closing Date;
(f) any account payable of any Seller or the Transferred Companies outstanding as of the Closing to the extent of the amount not included in the Closing Balance Sheet or otherwise reflected on schedules provided pursuant to Section 2.4;
(g) any Liabilities related to claims by any current or former holder or alleged holder of shares of capital stock or other securities of or interests in the Seller Parent or any of the other Sellers (including any predecessors) arising out of resulting from or in connection with the Transactions or the Transaction Documents, including the approval procedures with respect thereto by the Seller Parent or any of the other Sellers, whether for breach of fiduciary duty or otherwise;
(h) any Liabilities based upon, arising out of, with respect to or by reason of the failure of the representation and warranties contained in the last sentence of Section 5.2 to be correct in any respect;
(i) any Liabilities for Transaction Expenses;
(j) any Liabilities arising out of or related to the failure of Concurrent HPS to receive the French Employee Waivers;
(k) any Liability relating Liabilities, including any Liabilities in respect of Taxes, to or the extent arising out of the Nippon Separation; provided that, for the avoidance of doubt, while Taxes arising from the Nippon Separation constitute Excluded Assets or the Excluded BusinessLiabilities, Purchaser remains responsible for filing any Straddle Period Tax Returns of Concurrent NC pursuant to Section 11.2;
(l) any Liability arising under any employee compensation Liabilities (whether or employee benefit plan adopted by the Seller Parties not such Liabilities are accrued or their Affiliates including any payable at Closing, and whether or not such Liabilities are contingent in nature) relating to present and past employees of the Seller Parent Benefit PlansSelling Group to the extent relating to any pension obligations under the Laws of Germany;
(m) any Liability relating to, arising from or in connection with Business Employees or former employees Liabilities of the Business during all time periods prior to Sellers (or their respective Affiliates) under this Agreement and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;Transaction Documents; and
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring Liabilities specifically set forth on or prior to the Closing Date and relating to the Business, the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;
(o) any Liability Section 2.5 of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed LiabilityDisclosure Schedule.
Appears in 1 contract
Samples: Asset and Share Purchase Agreement (Concurrent Computer Corp/De)
Excluded Liabilities. Notwithstanding anything to the contrary contained hereinin this Agreement, Buyer will not assume or in any way become liable for, and Seller shall retain, all of Seller's and its Affiliates' debts, liabilities and obligations of any nature whatsoever (other than the Assumed Liabilities), the Seller Parties shall be responsible for all of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreementwhether accrued, and Buyer shall not assumeabsolute or contingent, whether known or in any way be liable unknown, whether due or responsible forto become due, any Liabilities of the Seller Parties (the “Excluded Liabilities”). Without limiting the generality of the foregoingincluding, Buyer shall not assume without limitation, the following:
(a) any Liability the liabilities or obligations of Seller to pay any Taxes TIMCO respecting dividends, distributions in liquidation, redemptions of the Seller Parties or any of their Affiliates, regardless of whether arising in connection with the consummation of the transactions contemplated hereby stock or otherwise;
(b) liabilities or obligations of Seller arising out of any Liability of transactions occurring, or liabilities or obligations incurred, after the Seller Parties or their Affiliates for performance under this Agreement or any of the Ancillary AgreementsClosing Date;
(c) any Liability under any Assigned Contract liabilities or any Transferring Real Property Lease obligations of Seller for expenses, Taxes or fees incident to or arising out of factsthe negotiation, circumstances preparation, approval or occurrences existing prior to authorization of this Agreement or the Closing Date consummation of the transactions contemplated hereby, including, without limitation, all attorneys', accountants', brokers' or relating to any breach, violation finders' fees or failure to perform that occurred prior to the Closing Date (other than Liabilities in respect of accounts commissions payable or other accruals, for which Section 1.4(g) shall instead apply)by Seller;
(d) any Liability under any Real Property Lease that is not a Transferring Real Property Leaseliabilities or obligations of Seller under, or arising out of, this Agreement;
(e) any Liability relating to any Debt liabilities or obligations against which Seller is insured or otherwise indemnified or which would have been covered by insurance (or indemnification) but for a claim by the insurer (or the indemnitor) that the insured (or the indemnitee) had breached its obligations under the policy of insurance (or the Seller Parties contract of indemnity) or their Affiliates (other than, for had committed fraud in the elimination of doubt, any trade payables insurance application or other obligations arising under Assigned Contracts on or following in entering unto the Closing Date)indemnity agreement;
(f) any Liability liabilities or obligations of the Business to Seller or any Affiliates of Seller, except payables for any accounts payable products sold or other accruals related shipped to the Business arising prior to by an Affiliate of Seller after the Closing Date;
(g) any Liability arising out liabilities and obligations of the Seller Parties’ to indemnify its officers, directors, employees or their Affiliates’ obligations under or agreements with any Payment Programs (including pursuant to any Provider Agreements)agents;
(h) all Taxes imposed on Seller (including any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance Taxes of any Health Care Law arising from the operation other corporation) and any Taxes assessed against Seller by virtue of the Business prior to the Closing Date or, for the avoidance its status as a member of doubt, from the operation any consolidated group of the Excluded Business at any point in timewhich such other corporation was also a member;
(i) any Liability arising out of or relating to or any Payment Program or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their Affiliates in connection with the operation all liabilities and obligations of the Business for Warranty Claims with respect to products manufactured, repaired, overhauled, sold or delivered by Seller prior to the Closing Date or, Date; provided that Buyer has agreed to perform the work to remedy (but not assume any liability for the avoidance of doubt, from the operation consequential damages or any other matter related to) certain Warranty Claims and to credit Seller with a portion of the Excluded Business at any point cost of such work to the extent set forth in timeSection 8.3;
(j) any Liability all liabilities and obligations of Seller relating to any collective bargaining agreement by and between Seller and any certified collective bargaining unit;
(k) all liabilities and obligations arising under or arising from a Security Incident occurring imposed pursuant to Environmental Laws, whether or not attributable to actions or failures to act by Seller, with respect to the ownership of, operation of, or properties, including the Real Property, utilized in connection with, the Business at any time prior to the Closing Date;
(k) any Liability relating to or arising from the Excluded Assets or the Excluded Business;
(l) any Liability arising under any all liabilities and obligations for employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates including any benefits of the Seller Parent Benefit PlansBusiness;
(m) any Liability relating to, arising from All liabilities and obligations under Contracts and Leases not being assumed by Buyer and listed in Schedule 4.16(a) or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement4.12(b);
(n) any Liability all other liabilities or obligations of Seller arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or out of its conduct of the Business prior to the Closing Date Date, including, without limitation: Product Liabilities; liabilities or obligations related to the infringement by Seller of any intellectual property of another Person; liabilities or obligations to, or arising out of, any dealings between Seller and/or TIMCO and Xxxxxxxxx Industries, Inc., or any of its affiliates ("Xxxxxxxxx"); liabilities or obligations of Seller relating to any Environmental Laws; and any liabilities or obligations related to any lawsuit, cause of action, litigation or legal proceeding with respect to any losses, occurrences or events occurring prior to the BusinessClosing Date, whether commenced prior to or after the Purchased Assets Closing Date, except for those liabilities or any real property currently or formerly owned, operated, used or leased by obligations constituting a part of the Seller Parties or their AffiliatesAssumed Liabilities;
(o) any Liability without limiting the generality of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
foregoing subparagraphs (p) any Liability arising out ofa)-(m), related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed Liabilityliabilities listed on Schedule 2.7(n).
Appears in 1 contract
Samples: Asset Purchase Agreement (Timco Aviation Services Inc)
Excluded Liabilities. Notwithstanding anything to the contrary contained herein, other than Buyer is assuming only the Assumed Liabilities, Liabilities and is not assuming any other Liability of the Seller Parties Company or any Affiliate thereof (or any predecessor owner of all or part of the Company’s business or assets) of whatever nature whether currently in existence or arising or asserted hereafter. All such other Liabilities shall be responsible for all of the Seller Parties’ respective Liabilities not expressly assumed retained by Buyer under this Agreement, and Buyer shall not assume, or in any way be liable or responsible for, any remain Liabilities of the Seller Parties Company and Affiliates (all such Liabilities not being assumed are herein referred to as the “Excluded Liabilities”). Without limiting the generality foregoing, none of the foregoing, Buyer following shall not assume the followingbe Assumed Liabilities for purposes of this Agreement:
(ai) any Liability to pay any Taxes of the Seller Parties or any of their Affiliates, regardless of whether arising in connection with the consummation of the transactions contemplated hereby or otherwiseall Excluded Taxes;
(bii) any Liability of the Seller Parties or their Affiliates for performance under this Agreement or any of the Ancillary Agreementsall Indebtedness (other than as set forth in Section 2.2(a));
(ciii) any Liability under any Assigned Contract all claims, causes of action, litigation and other rights of third parties relating to or any Transferring Real Property Lease arising out of facts(A) the Assumed Contracts, circumstances including any warranty obligation of the Company, in respect of products sold or occurrences existing services rendered on or prior to the Closing Date or relating claims against the Company directly related to the transfer of the Purchased Assets as contemplated by this Agreement or (B) the Excluded Assets, including, without limitation, any breach, violation or failure to perform Contract that occurred is not an Assumed Contract;
(iv) all accounts payable and accrued expenses of the Company (whether prior to or following the Closing Date (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead applyClosing);
(dv) all Liabilities relating to or arising out of the Excluded Assets, including, without limitation, any Liability under any Real Property Lease Contract that is not a Transferring Real Property Leasean Assumed Contract and any automobiles leased by the Company or its Affiliates;
(evi) any Liability all Liabilities relating to any Debt or arising out of the Seller Parties Assumed Contracts, including any warranty obligation of the Company, solely in respect of products sold or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts services rendered on or following the Closing Date);
(f) any Liability for any accounts payable or other accruals related to the Business arising prior to the Closing Date;
(gvii) any Liability all Environmental Liabilities; and
(viii) all Liabilities relating to or arising out of the Seller Parties’ or their Affiliates’ obligations under or agreements with any Payment Programs (including pursuant to any Provider Agreements);
(h) any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from the operation Company’s employment of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(i) any Liability arising out of or relating to or any Payment Program or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(j) any Liability relating to or arising from a Security Incident occurring prior to the Closing Date;
(k) any Liability relating to or arising from the Excluded Assets or the Excluded Business;
(l) any Liability arising under any employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;
(m) any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the ClosingCompany, including any severancewages, change in control or commission, accrued vacation pay, performance and other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or prior to the Closing Date bonuses and relating to the Business, the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;
(o) any Liability of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed Liabilityownership interests.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything The Contacts Parties acknowledge and agree, on each of their behalf and that of their Affiliates, that pursuant to the contrary contained herein, other than the Assumed Liabilities, the Seller Parties shall be responsible for all terms and provisions of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreement, and Buyer shall Menicon will not assume, or in assume any way be liable or responsible for, any Liabilities Obligation of the Seller Parties (the “Excluded Liabilities”). Without limiting the generality of the foregoing, Buyer shall not assume the following:
(a) any Liability to pay any Taxes of the Seller Contacts Parties or any of their Affiliates, regardless of whether arising other than the Assumed Obligations. In furtherance and not in connection with the consummation limitation of the transactions contemplated hereby foregoing, neither Menicon nor any of its Affiliates shall assume, and shall not be deemed to have assumed, any debt, Claim, Obligation or otherwise;
other liability of the Contacts Parties or any of their Affiliates relating to (bi) any Liability liabilities of the Seller Contacts Parties or their Affiliates for performance under this Agreement or any in respect of Taxes incurred in reference to the Ancillary Agreements;
(c) any Liability under any Assigned Contract or any Transferring Real Property Lease arising out of facts, circumstances or occurrences existing Acquired Business prior to the Closing Date or relating to any breachin conjunction with the Closing, violation or failure to perform that occurred prior subject to the Closing Date provisions of Section 2(k) hereof; (other than Liabilities in respect of accounts payable ii) any brokers’ or finders’ fees, or other accruals, for which Section 1.4(g) shall instead apply);
(d) any Liability under any Real Property Lease that is not a Transferring Real Property Lease;
(e) any Liability relating to any Debt liability of the Seller Contacts Parties or and any of their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing Date);
(f) any Liability for any accounts payable or other accruals related to the Business arising prior to the Closing Date;
(g) any Liability arising out of the Seller Parties’ or their Affiliates’ obligations under or agreements with any Payment Programs costs and expenses (including pursuant to any Provider Agreements);
(hlegal fees and expenses) any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from incurred by the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(i) any Liability arising out of or relating to or any Payment Program or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Contacts Parties or and their Affiliates in connection with the operation this Agreement; (iii) any Obligations or liabilities, including medical, severance, pension plan or other benefits and compensation, for any employees of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(j) any Liability relating to or arising from a Security Incident occurring prior to the Closing Date;
(k) any Liability relating to or arising from the Excluded Assets or the Excluded Business;
(l) any Liability arising under any employee compensation or employee benefit plan adopted by the Seller Contacts Parties or their Affiliates including any of the Seller Parent Benefit Plans;
(m) any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time for periods prior to their actual employment by Menicon or an Affiliate thereof, as the case may be (except to the extent that such obligations are set forth in Schedule 5 to this Agreement); (iv) any Losses relating to any deficiency in or problem with any product sold by the Contacts Parties and through their Affiliates prior to Closing; (v) any employee layoff and plant closing cost or liability arising from actions taken by the Contacts Parties prior to Closing; and (vi) any liability Claims for injuries, including any severanceproperty damage, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with Losses involving the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect Acquired Business and which are solely attributable to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or events occurring on or prior to the Closing Date and relating to the Business, the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;
(o) any Liability of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed LiabilityClosing.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything any other provision of this Agreement, Buyer shall not assume or be bound by or be obligated or responsible for any duties, responsibilities, commitments, expenses, obligations or other Liabilities of Sellers or relating to the contrary contained hereinBusiness or the Transferred Assets (or which may be asserted against or imposed upon Buyer as a successor or transferee of Sellers, as an acquirer of the Transferred Assets or as a matter of Law) of any kind or nature, fixed or contingent, known or unknown, other than the Assumed LiabilitiesLiabilities (collectively, the Seller Parties shall be responsible for all of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreement, and Buyer shall not assume, or in any way be liable or responsible for, any Liabilities of the Seller Parties (the “Excluded Liabilities”). Without ) and, without limiting the generality of the foregoing, Buyer the Excluded Liabilities shall not assume include the following:
(ai) any Liability to pay for (A) any Taxes arising out of the Seller Parties ownership of the Transferred Assets or the operation of the Business attributable to any period prior to the Closing, including withholding, payroll, social security, workers compensation, unemployment, disability and other similar Taxes with respect to wages or other compensation of their Affiliatesan employee or other service provider, regardless of whether arising in connection with (B) any Taxes attributable to any Excluded Asset, (C) any sales, transfer, recording, deed, stamp and other similar taxes, including, without limitation, any real property transfer or excise taxes (if any), resulting from the consummation of the transactions Transaction contemplated hereby or otherwiseby this Agreement (“Transfer Taxes”) and (D) any other Taxes owed by Sellers;
(bii) any Liability of Sellers under any Contract or otherwise to the Seller Parties extent arising, accruing or their Affiliates for performance under this Agreement or any of relating to periods prior to the Ancillary AgreementsClosing;
(ciii) any Liability under of Sellers relating to and arising from Sellers’ operation of the Business or the Transferred Assets prior to the Closing, including, without limitation, accrued compensation, employee expenses and benefits of Employees;
(iv) any Assigned Contract or any Transferring Real Property Lease Liability of Sellers arising out of facts, circumstances or occurrences existing prior to the Closing Date resulting from their compliance or relating to noncompliance with any breach, violation Law or failure to perform that occurred prior to the Closing Date (other than Liabilities in respect of accounts payable breach or other accruals, for which Section 1.4(g) shall instead apply)default under any Contract;
(dv) any Liability under any Real Property Lease that is not a Transferring Real Property Lease;
(e) any Liability relating of Sellers arising out of or related to any Debt of the Seller Parties or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts Legal Proceeding against it and that was asserted on or following the Closing Date);
(f) prior to, or that relates to any Liability for any accounts payable or other accruals related to the Business arising time prior to to, the Closing Date;
(gvi) any Liability of Sellers arising out of the Seller Parties’ or their Affiliates’ obligations under or agreements in connection with any Payment Programs (including pursuant Employee Plans of, or maintained or required to any Provider Agreements)be maintained, by Sellers;
(hvii) any Liability for laboratory testing performance of Sellers to pay any fees or results, commission to any laboratory broker or medical malpractice claims finder in connection with the Transactions contemplated by this Agreement;
(viii) all Liabilities related to any current or any violation or non-compliance former employee of any Health Care Law arising from the operation of the Business prior to the Closing Date orSellers (other than, for the avoidance of doubt, from Liabilities of Buyer related to the operation of the Excluded Business at any point in time;
(i) any Liability Transferred Employees arising out of or relating to or any Payment Program or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the later of the Closing Date, due and the date such Transferred Employee becomes employed by Buyer);
(ix) any Liability to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason the extent relating to any action Excluded Asset or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;that is not an Assumed Liability; and
(jx) any Liability relating to or arising from a Security Incident occurring prior to the Closing Date;
(k) any Liability relating to or arising from the Excluded Assets or the Excluded Business;
(l) any Liability arising under any employee compensation or employee benefit plan adopted not expressly assumed by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;
(m) any Liability relating to, arising from or Buyer in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or prior to the Closing Date and relating to the Business, the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;
(o) any Liability of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed Liability.
Appears in 1 contract
Samples: Asset Purchase Agreement (Enjoy Technology, Inc./De)
Excluded Liabilities. Notwithstanding anything to the contrary contained herein, other than Except for the Assumed Liabilities, the Seller Parties shall be responsible for all of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreement, and Buyer Purchaser shall not assume, or in any way be become liable for the payment or responsible forperformance of, any Liabilities of any Seller of any nature whatsoever, whether accrued or unaccrued, including, without limitation, the Seller Parties following Liabilities (collectively, the “Excluded Liabilities”). Without limiting the generality ) which shall remain Liabilities of the foregoing, Buyer shall not assume the followingSellers:
(a) any Liability to pay any Taxes all Liabilities of the Seller Parties or any of their Affiliates, regardless of whether arising in connection with the consummation of the transactions contemplated hereby or otherwise;
(b) any Liability of the Seller Parties or their Affiliates for performance under this Agreement or any of the Ancillary Agreements;
(c) any Liability under any Assigned Contract or any Transferring Real Property Lease arising out of facts, circumstances or occurrences existing prior to the Closing Date or relating to any breach, violation or failure to perform that occurred prior to the Closing Date (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead apply);
(d) any Liability under any Real Property Lease that is not a Transferring Real Property Lease;
(e) any Liability relating to any Debt of the Seller Parties or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing Date);
(f) any Liability for any accounts payable or other accruals related to the Business arising prior to the Closing Date;
(g) any Liability arising out of the Seller Parties’ or their Affiliates’ obligations under or agreements with any Payment Programs (including pursuant to any Provider Agreements);
(h) any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(i) any Liability arising out of or Sellers relating to or any Payment Program or any other payor (including Medicare or Medicaid)otherwise arising, making any claims or any offsetswhether before, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpaymentsout of, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business prior to the Closing Date orwith, for the avoidance of doubt, from the operation any of the Excluded Business at any point in timeAssets;
(jb) any Liability relating to or arising from a Security Incident occurring prior to all Liabilities of the Closing DateSellers in respect of Non-Assumed Contracts;
(kc) any Liability relating except to the extent that Liabilities are assumed pursuant to Section 2.3(a) or Section 2.3(g) (which shall be Assumed Liabilities), litigation and related claims and Liabilities arising from the Excluded Assets or the Excluded Business;
(l) any Liability arising under any employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates including any out of the Seller Parent Benefit Plans;
(m) any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or events occurring on or prior to the Closing Date, no matter when raised;
(d) any and all Liabilities relating to any environmental, health or safety matter (including any Liability or obligation under any Environmental Law), arising out of or relating to any Seller’s operation of their respective businesses or their leasing, ownership or operation of real property on or prior to the Closing Date no matter when raised;
(e) except to the extent that Liabilities are assumed pursuant to Section 2.3(d), Section 2.3(e) and Section 2.3(g) (which shall all be Assumed Liabilities), all Liabilities of each Seller in respect of Indebtedness, whether or not relating to the Business, including all Liabilities arising under the First Lien Loan Documents and the Second Lien Loan Documents;
(f) except to the extent that Liabilities are assumed pursuant to Section 2.3(a), Section 2.3(c) and Section 2.3(g) (which shall all be Assumed Liabilities), any claims, demands, proceedings or causes of action subject to or covered by the Additional Excluded Insurance Policies;
(g) any and all Liabilities under the Excluded Plans and any Seller Plan not set forth in Section 5.17 of the Seller Disclosure Schedule;
(h) any and all Liabilities of any Seller for Taxes;
(i) any payments due to any equityholders of Sellers in respect of management or other fees other than compensation owed to equityholders who are Employees of any Seller in the Ordinary Course of Business;
(j) all Liabilities set forth on Section 2.4(j) of the Seller Disclosure Schedule;
(k) any Liabilities of any Seller in, under or pursuant to Intercompany Obligations, except as provided in Section 2.3(g);
(l) any and all Liabilities of any Seller under any collective bargaining agreement or any agreement with any labor union; and
(m) any Liabilities arising from the operation of any successor liability Laws, including, without limitation, “bulk sales” statutes, to the extent that non-compliance therewith or the failure to obtain necessary clearances would subject the Purchaser or the Purchased Assets or to the claims of any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;
(o) creditors of any Liability of the Seller Parties Sellers other than with respect to the Assumed Liabilities, or their Affiliates arising from or relating to violation would subject any of the Intellectual Property rights of Purchased Assets to any Person;
(p) any Liability Liens or other restrictions, other than Liens arising out of, related to, or in connection withwith the Assumed Liabilities. For the avoidance of doubt, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defenseexcept as expressly noted above, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) any other Liability none of the Seller Parties or their Affiliates that is not specifically Excluded Liabilities shall be included as an Assumed LiabilityLiabilities.
Appears in 1 contract
Samples: Asset Purchase Agreement (Medical Staffing Network Holdings Inc)
Excluded Liabilities. Notwithstanding anything any provision of the Sale Documents to the contrary contained hereincontrary, other than the Buyer will not accept, acquire, assume or become liable to pay, perform or discharge, and the Assumed LiabilitiesLiabilities will not include, the Seller Parties shall be responsible for all of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreement, and Buyer shall not assume, or in any way be liable or responsible for, any Liabilities of the Seller Parties following liabilities (the “"Excluded Liabilities”). Without limiting the generality of the foregoing, Buyer shall not assume the following:"):
(ai) any Liability liability to pay any Taxes the Xxxxxx Parties on account of loans advanced to the Seller Parties or any of their Affiliates, regardless of whether arising in connection with Sellers prior to the consummation of the transactions contemplated hereby or otherwiseClosing;
(bii) any Liability of the Seller Parties or their Affiliates for performance under this Agreement or any of the Ancillary Agreementsliabilities that do not constitute Assumed Liabilities;
(ciii) all Liabilities for Taxes of Sellers (other than as set forth in Section 1.3(iv)
(iv) all Liabilities of Sellers under Environmental Laws;
(v) all Liabilities of Sellers and the ERISA Affiliates arising under, or with respect to, the Employee Plans;
(vi) all Liabilities with respect to any Liability under current or former employee, director, member, manager, stockholder, partner, agent or independent contractor of Sellers;
(vii) all Liabilities arising out of, or relating to, any Assigned Contract conduct or alleged conduct of any employee or independent contractor of Sellers;
(viii) all Liabilities of Sellers to Sellers's stockholders or any Transferring Real Property Lease Affiliate of any of Sellers's stockholders;
(ix) all Liabilities arising out of, or relating to, any Proceeding pending as of facts, circumstances or occurrences existing prior to the Closing Date or any Proceeding commenced after the Closing Date to the extent arising out of, or relating to to, any breachact or omission of Sellers or any event, violation circumstance, condition, breach or failure to perform that occurred default occurring on or prior to the Closing Date (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead applythose relating to any Purchased Assets);
(dx) all Liabilities arising out of, or resulting from, Sellers's compliance or noncompliance with any Liability under any Real Property Lease that is not a Transferring Real Property Lease;
(e) any Liability relating to any Debt of the Seller Parties Legal Requirement or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts Order occurring on or following the Closing Date);
(f) any Liability for any accounts payable or other accruals related to the Business arising prior to the Closing Date;
(gxi) any Liability arising out of the Seller Parties’ all Liabilities relating to, or their Affiliates’ obligations under or agreements with any Payment Programs (including pursuant to any Provider Agreements);
(h) any Liability for laboratory testing performance or resultsresulting from, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from the operation of the Business prior Sellers IP to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(i) any Liability extent arising out of or relating to or any Payment Program or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(j) any Liability relating to or arising from a Security Incident occurring prior to the Closing Date;
(kxii) any Liability all Liabilities based upon Sellers's acts or omissions occurring after the Closing Date (other than those relating to or the Buyer's ownership of the Purchased Asset); and
(xiii) all Liabilities arising from the Excluded Assets failure to send any notices, make any filings or the Excluded Business;
obtain any Consents (lother than any Consents with respect to Contracts as set forth in Section 1.6) any Liability arising under any employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;
(m) any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or prior to the Closing Date and relating to the Business, the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;
(o) any Liability of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed Liability.
Appears in 1 contract
Samples: Asset Purchase Agreement (American Brewing Company, Inc.)
Excluded Liabilities. Notwithstanding anything to the contrary contained herein, other than the Assumed Liabilities, the Seller Parties shall be responsible for all provisions of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under Section 2.3 of this Agreement, and Buyer shall not assume, or in the Subsidiaries shall not retain, and Seller shall thereafter pay, perform and discharge when due any way be liable or responsible for, any Liabilities of the Seller Parties following liabilities or obligations of Seller, its Subsidiaries or their Affiliates or the Affiliated Group (collectively, the “"Excluded Liabilities”). Without limiting the generality of the foregoing, Buyer shall not assume the following:"):
(a) any Liability except to pay any the extent included in the prorations and adjustments under Section 2.12 and except as provided in Section 5.10, all debts, liabilities and obligations with respect to Taxes of Seller, the Seller Parties Subsidiaries or any consolidated, combined or unitary group of their Affiliates, regardless of whether arising in connection with the consummation of the transactions contemplated hereby or otherwisewhich Seller is a member (an "Affiliated Group");
(b) any Liability the liabilities and obligations of Seller or its Subsidiaries under the Shared Contracts to the extent such liabilities and obligations are to be retained by Seller Parties or their Affiliates for performance under this Agreement or any of the Ancillary Agreementspursuant to Section 5.5;
(c) all debts, liabilities and obligations owed to the Secured Lenders (including any Liability under any Assigned Contract prepayment fees) or any Transferring Real Property Lease arising out of facts, circumstances or occurrences existing prior to the Closing Date or relating to any breach, violation or failure to perform that occurred prior to the Closing Date (other indebtedness for borrowed money other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead applythe guarantees set forth on Schedule 3.12(a)(vii);
(d) any Liability under liability of Seller arising out of or relating to the execution, delivery or performance of this Agreement or any Real Property Lease that is not a Transferring Real Property Leaseof the Seller Ancillary Agreements;
(e) any Liability relating liability or obligation to the extent it relates to any Debt of the Seller Parties or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing Date);
(f) any Liability for any accounts payable or other accruals related to the Business arising prior to the Closing Date;
(g) any Liability arising out of the Seller Parties’ or their Affiliates’ obligations under or agreements with any Payment Programs (including pursuant to any Provider Agreements);
(h) any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(i) any Liability arising out of or relating to or any Payment Program or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(j) any Liability relating to or arising from a Security Incident occurring prior to the Closing Date;
(k) any Liability relating to or arising from the Excluded Assets Asset or the Excluded Business;
(lf) any Liability liability or obligation arising under out of or in any employee compensation or employee benefit plan adopted by way related to the Seller Parties or their Affiliates including any of Benefit Plans and the Seller Parent Benefit PlansSeverance Agreements;
(mg) any Liability relating toall liabilities and obligations with respect to the actions, arising from suits, proceedings or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;claims listed on Schedule 2.4(g); and
(nh) any Liability all liabilities and obligations arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or prior to the Closing Date Law and relating to the Business, the Purchased Assets any properties or any real property currently facilities formerly owned or formerly owned, operated, used or leased operated by the Seller Parties or their Affiliates;
(o) any Liability of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed LiabilitySubsidiaries.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything any other provision of this Agreement, none of Purchaser, the Companies, or any Subsidiary of the Companies is assuming or agreeing to pay or discharge (and the contrary contained hereinCompanies and their Subsidiaries shall not assume or agree to pay or discharge) (collectively, the “Excluded Liabilities”):
(i) any Liability of Sellers or any of their respective Affiliates other than the Assumed Liabilities, the Seller Parties shall be responsible for all of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreement, and Buyer shall not assume, or in any way be liable or responsible for, any Liabilities of the Seller Parties (the “Excluded Liabilities”). Without limiting the generality of the foregoing, Buyer shall not assume the following:
(a) any Liability to pay any Taxes of the Seller Parties or any of their Affiliates, regardless of whether arising in connection with the consummation of the transactions contemplated hereby or otherwise;
(bii) all Liabilities to the extent arising out of the Excluded Assets;
(iii) any Liability Indebtedness of the Seller Parties Business at Closing;
(iv) all Liabilities for which Sellers or their respective Affiliates for performance under are expressly made responsible pursuant to the terms of this Agreement or any of the Ancillary Agreements;
(cv) any Liability under any Assigned Contract or any Transferring Real Property Lease obligation arising out of facts, circumstances or occurrences existing prior to the Closing Date or relating to equity or equity-based awards of Sellers or any breachof their respective Affiliates to any Business Employee, violation Former Business Employee or failure to perform that occurred prior to the Closing Date (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead apply)Business Contractor;
(dvi) any Liability under any Real Property Lease that is with respect to Business Employees who become Continuing Employees and are not a Transferring Real Property LeaseExcluded Employees, fifty percent (50%) of Continuing Employee Expenses;
(evii) except for (x) fifty percent (50%) of Continuing Employee Expenses and (y) any Liability relating to any Debt of the Seller Parties or their Affiliates Purchaser Excluded Employees, (other than, for the elimination of doubt, any trade payables or other A) all Liabilities and obligations arising under Assigned Contracts on out of or following the Closing Date);
(f) any Liability for any accounts payable or other accruals related relating to the employment, engagement, or termination of employment or engagement of any Business arising Employee, Former Business Employee, Business Contractor or former Business Contractor who terminated employment or engagement with Seller or any of its Affiliates prior to the Closing Date;
(gunless such Business Employee resigns or claims constructive dismissal because of Purchaser’s failure to offer employment or continuation of employment on terms that comply with Section 6.08) any Liability or (B) all Liabilities and obligations arising out of or relating to the Seller Parties’ termination of employment or their Affiliates’ obligations under or agreements with any Payment Programs (including pursuant to any Provider Agreements);
(h) any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance engagement of any Health Care Law arising from the operation of the Delayed Transfer Employee or Business Contractor in a Delayed Transfer Jurisdiction who terminated employment or engagement prior to the Closing Date or(unless such Business Employee resigns or claims constructive dismissal because of Purchaser’s failure to offer employment or continuation of employment on terms that comply with Section 6.08), including, for both the avoidance preceding clauses (A) and (B), Liabilities associated with any claims for severance, compensation for unfair dismissal, termination, payments in lieu of doubtnotice (including corresponding Taxes) and other payments for social security including any shortfall of social security contributions thereof;
(viii) all Liabilities and obligations arising out of or relating to Employee Plans which are pension plans to the extent unfunded or underfunded or to the extent such Liabilities and obligations do not relate to Business Employees;
(x) all accrued or unpaid bonuses or accrued and unpaid commissions, from plus the operation employer portion of any related employment Taxes in respect of such obligations, for any Business Employee or Former Business Employee (y) for performance periods ending prior to the Closing and (z) on a pro-rated basis, for performance periods not yet ended as of the Excluded Business at any point Closing based on the portion of the performance period that has elapsed as of the Closing (with the actual performance level determined by Sellers in timegood faith using reasonable assumptions);
(i) any Liability arising out Taxes of or relating to the Sellers for any taxable period, (ii) any Taxes of the Companies or any Payment Program Subsidiaries of the Companies allocable to a Pre-Closing Tax Period taking into account the principles of Section 6.09(e), (iii) without duplication, any Taxes imposed on or required by applicable Law to be paid by the Sellers or the Companies or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction Subsidiaries of the Seller Parties Companies as the result of any restructuring or their Affiliates in connection with the operation transfer of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded or Business at any point in time;
(j) any Liability relating to or arising from a Security Incident occurring prior to the Closing Date;
(k) any Liability relating to or arising from the Excluded Assets or the Excluded Business;
(l) any Liability arising under any employee compensation Company Group member, which restructuring or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;
(m) any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring transfer occurs on or prior to the applicable Actual Closing Date and relating to the BusinessDate, the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;
(oiv) any Liability Taxes described in (or resulting from the circumstances described in) Section 3.17(j) of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
Disclosure Schedules, (pv) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related withholding Tax imposed under Code Section 1445 with respect to any Action or the defensepayment to any Seller under this Agreement, settlement or other disposition of any Action occurring prior the Closing Date; or
and (rvi) any Transfer Taxes other Liability of the Seller Parties or their Affiliates that than those for which Purchaser is not specifically included as an Assumed Liability.responsible pursuant to Section 6.09(a);
Appears in 1 contract
Samples: Contribution and Equity Purchase Agreement (McAfee Corp.)
Excluded Liabilities. Notwithstanding anything to the contrary contained herein, other than Except for the Assumed Liabilities, the Seller Parties shall be responsible for all of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreement, and Buyer SEARHC shall not assume, assume or become liable for or obligated in any way be with respect to, and the City shall retain and remain solely liable or responsible forfor any obligation to pay, any perform, and discharge, all Liabilities of the Seller Parties City, regardless of when asserted (collectively, the “Excluded Liabilities”). Without limiting the generality of the foregoing, Buyer shall not assume the followingincluding:
(a) any Liability to pay any Taxes Any Liabilities of the Seller Parties City or any the Hospital arising under (i) the Assumed Contracts (to the extent arising on or before the Effective Time) and (ii) the Excluded Contracts; for the avoidance of their Affiliatesdoubt, regardless of whether arising in connection all Liabilities associated with the consummation of the transactions contemplated hereby or otherwiseCerner System are Excluded Liabilities;
(b) any Liability Any Liabilities of the Seller Parties City or their Affiliates for performance under this Agreement the Hospital arising from or any of relating to the Ancillary AgreementsReal Property, other than the Real Property Leases;
(c) Any Liabilities of the City or the Hospital by reason of any Liability under failure to comply with the rules and regulations of any Assigned Contract or Government Reimbursement Program which is attributable to any Transferring Real Property Lease arising out period of facts, circumstances or occurrences existing time ending prior to the Closing Date or relating to any breach, violation or failure to perform that occurred prior to the Closing Date (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead apply)Effective Time;
(d) Any Liabilities of the City or the Hospital arising out of or relating to any Liability under any Real Property Lease that is not a Transferring Real Property Leaseviolation of applicable Law prior to the Effective Time;
(e) any Liability Liabilities of the City or the Hospital arising out of or relating to any Debt Employee Benefit Plan of any nature whatsoever maintained or contributed to by the Seller Parties City or the Hospital or each of their respective Affiliates for the benefit of its or their Affiliates employees (other than, for including under the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing DatePERS Plans);
(f) any Liability Liabilities of the City or the Hospital for any accounts payable present (i.e. on the Execution Date or the Closing Date) or former employees, retirees, independent contractors or consultants of the City or the Hospital, including any Liabilities associated with any claims for wages, compensation or other accruals related benefits, bonuses, commissions, paid time off, workers’ compensation, severance, retention, termination, damages, statutory penalties, attorneys’ fees and costs, or any other payments, to the Business extent arising out of or relating to the employment, retention or termination of employment or services of such Persons (including any Liabilities associated with the City’s or the Hospital’s use, or provision of, contract labor) or any other facts, circumstances or conditions existing on or prior to the Closing DateEffective Time;
(g) Liabilities for Taxes, including (i) any Liability Taxes arising out as a result of the Seller Parties’ operation of the Business or their Affiliates’ obligations under the ownership of the Acquired Assets or agreements with the Hospital prior to the Effective Time; (ii) any Payment Programs (including Taxes that may arise as a result of the transfer and conveyance of the Acquired Assets pursuant to this Agreement; and (iii) any Provider Agreements)deferred Taxes of any nature;
(h) Both (i) Agency Settlements, and (ii) Liabilities to Government Reimbursement Programs for overpayments and other financial obligations arising from adjustments or reductions in reimbursement attributable to events, transactions, circumstances or conditions occurring or existing prior to the Effective Time (“Settlement Payments”). For the avoidance of doubt, the Parties acknowledge that SEARHC does not assume any Liability for laboratory testing performance Liabilities associated with Settlement Payments or resultsAgency Settlements;
(i) Any accounts payable with respect to the Business or the Hospital, any laboratory whether or medical malpractice claims not reflected on the City’s or any violation the Hospital’s books, as of the Closing Date or non-compliance of any Health Care Law arising thereafter from the operation of the Business or the Hospital prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
Effective Time (i) any Liability arising out of or relating to or any Payment Program or any other payor (including Medicare or Medicaid“Accounts Payable”), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(j) With respect to any Liability retrospective settlement of any cost report for an amount less than such original cost report relating to or arising from a Security Incident occurring period ending prior to the Closing DateEffective Time, all obligations of the City or the Hospital now existing or which may hereafter exist with respect to any payment or reimbursement owed by the City or the Hospital to any Government Reimbursement Program or other payor which is attributable to any period of time ending on or prior to the Effective Time;
(k) any Liability relating to or arising from the Excluded Assets or the Excluded BusinessThe aggregate Excess PTO Liability;
(l) any Liability arising under any employee compensation The City’s or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;Hospital’s expenses relating to this Agreement; and
(m) any Liability relating to, arising from All professional liability claims or in connection with Business Employees other claims for acts or former employees omissions of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or prior to the Closing Date and relating to the BusinessCity, the Purchased Assets Hospital, its employees or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;
(o) any Liability of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed Liabilitycontractors.
Appears in 1 contract
Samples: Asset Purchase Agreement
Excluded Liabilities. Notwithstanding anything to the contrary contained herein, any other than the Assumed Liabilities, the Seller Parties shall be responsible for all provision of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreement, except for the Assumed Liabilities expressly specified in Section 1.5, Buyer and Buyer its Affiliates shall not assume, or in any way be liable for the payment, performance or responsible fordischarge of, any Liabilities of Seller or any of its Affiliates, whether liquidated or unliquidated, or known or unknown, or whether arising out of occurrences prior to, at or after the Seller Parties Effective Time (collectively, the “Excluded Liabilities”). Without limiting , including the generality of following Liabilities (and notwithstanding anything to the foregoingcontrary in Section 1.5, Buyer shall not assume the following:Assumed Liabilities in all events exclude):
(a) any Liability all Liabilities arising out of or related to pay any Taxes the ownership or operation of the Seller Parties Business at or any of their Affiliatesprior to the Effective Time, regardless of whether arising except to the extent included in connection with the consummation of Current Liabilities or the transactions contemplated hereby or otherwiseAssumed Liabilities;
(b) any Liability all Liabilities arising out of or related to the Seller Parties return or their Affiliates for performance under this Agreement claimed spoilage of Products manufactured prior to the Effective Time (whether physically returned, or any of the Ancillary Agreementswhether a credit, deduction or other accommodation is made);
(c) any Liability under any Assigned Contract or any Transferring Real Property Lease all Liabilities arising out of factsor related to Safety Notices of Products manufactured prior to the Effective Time;
(d) all Liabilities arising out of or related to any Default under any Transferred Contract occurring at or prior to the Effective Time;
(e) all Liabilities arising out of or related to Indebtedness for borrowed money of Seller or any of its Affiliates;
(f) all Liabilities arising out of or related to manufacturer’s coupons relating to Products and issued prior to the Effective Time;
(g) all Liabilities arising out of or related to trade and consumer promotions relating to Products arising from trade promotion activities or events occurring prior to the Effective Time (whether paid or payable in the form of cash or through a credit, circumstances deduction or occurrences other accommodation or in any other form);
(h) all Environmental Liabilities arising out of or related to the (i) ownership or operation of the Business or the Acquired Assets at or prior to the Effective Time, (ii) ownership or operation of the Facilities, (iii) the Release of Hazardous Substances or Handling of Hazardous Substances at, in, on, under or from the Facilities, (iv) any exposure to Hazardous Substances occurring prior to, on, or after the Closing Date, to the extent such Hazardous Substances were Released prior to the Closing Date, at, in, or from any Facility, (v) any violation of or noncompliance with Environmental Laws or Environmental Permits occurring or existing prior to the Closing Date or relating by the Seller, at any Facility, pertaining to any breachProduct, or otherwise in connection with the Business, including, in each case, any continuation of any such violation or failure to perform that occurred prior to the Closing Date (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead apply);
(d) any Liability under any Real Property Lease that is not a Transferring Real Property Lease;
(e) any Liability relating to any Debt of the Seller Parties or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing Date);
(f) any Liability for any accounts payable or other accruals related to the Business arising prior noncompliance subsequent to the Closing Date;
, or (gvi) any Liability arising out of the Seller Parties’ ownership or their Affiliates’ obligations under or agreements with any Payment Programs (including pursuant to any Provider Agreements);
(h) any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at Assets, in each case including those relating to (x) compliance with any point in timeEnvironmental Law, (y) the investigation, removal, cleanup or remediation of any Hazardous Substances whether on-site or off-site, or (z) any alleged personal injury or property damage involving any Hazardous Substance;
(i) any Liability arising out of or relating to or any Payment Program or any other payor (including Medicare or Medicaid)all Excluded Employee Liabilities, making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their Affiliates except as expressly provided in connection with the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in timeSection 6.16;
(j) any Liability relating to all Liabilities arising out of or arising from a Security Incident occurring prior related to the Closing DateExcluded Taxes;
(k) any Liability relating all Liabilities of Seller or its Affiliates to the extent arising out of or arising from related to the Excluded Assets or the Excluded BusinessAssets;
(l) any Liability all Liabilities arising under any employee compensation out of or employee benefit plan adopted by related to Transfer Taxes that are the responsibility of Seller Parties or their Affiliates including any of the Seller Parent Benefit Planspursuant to Section 8.6(b);
(m) all Liabilities arising out of or related to any Liability relating toinjury 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 or in connection with Business Employees from services performed by or former employees on behalf of Seller or its Affiliates or any other Person at or prior to the Effective Time;
(n) all Liabilities arising out of or related to any Proceedings against Seller or its Affiliates, which shall have been asserted prior to the Effective Time or to the extent the basis of which shall have arisen or shall relate to periods at or prior to the Effective Time;
(o) all Liabilities arising out of or related to any Lien or any Permitted Lien on any of the Business during Acquired Assets or any of the Excluded Assets existing as of the Effective Time, regardless of when such Liabilities come due;
(p) all time periods prior Liabilities of Seller or its Affiliates arising out of or related to and through the Closingany fees, including any severance, change in control expenses or other payments triggered upon termination of employment with to any agent, broker, investment banker or other firm or Person retained or employed by Seller Parties or its Affiliates in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or prior to the Closing Date and relating to the Business, the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;
(o) any Liability of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities of Seller or its Affiliates arising out of or related to any Action customer rebates or upcharges, except to the defense, settlement or other disposition of any Action occurring prior extent included in the Closing DateStatement; orand
(r) any all other Liability Liabilities of the Seller Parties or their and its Affiliates that is are not specifically included as an Assumed LiabilityLiabilities.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything to the contrary contained hereinNeither Buyer nor Buyer's Affiliates will assume, other than the nor will they become responsible for, any liability or obligation of Seller or Seller's Affiliates that is not specifically identified as an Assumed LiabilitiesLiability under Section 2.3, the Seller Parties shall be responsible for including any and all of the following (collectively, the "Excluded Liabilities"):
(a) all liabilities and obligations of Seller Parties’ respective Liabilities not expressly assumed by Buyer or Seller's Affiliates arising under this Agreement, and Buyer shall not assume, the Other Agreements or in any way be liable or responsible for, any Liabilities of the Seller Parties (the “Excluded Liabilities”). Without limiting the generality of the foregoing, Buyer shall not assume the following:
(a) any Liability to pay any Taxes of the Seller Parties or any of their Affiliates, regardless of whether arising in connection with from the consummation of the transactions contemplated hereby or otherwisethereby;
(b) any Liability all liabilities and obligations of Seller or Seller's Affiliates arising from or related exclusively to the Seller Parties Indian Business or their Affiliates for performance under this Agreement arising from or any of related exclusively to the Ancillary AgreementsAnimal Applications Business;
(c) all intercompany payable balances owing to Seller or Seller's Affiliates;
(d) all obligations related to employees of Seller, including obligations with respect to withholding Taxes of employees, termination and severance pay and all vacation and medical benefits;
(e) any Liability under any Assigned Contract and all liabilities, obligations, claims, causes of action or any Transferring Real Property Lease litigation involving the Product Line based upon, directly relating to or arising out of factsacts, circumstances omissions or occurrences existing events occurring prior to Closing, except to the extent specifically described in and expressly assumed by Buyer pursuant to Section 2.3 hereof;
(f) all product liability and warranty claims or any similar claim for injury to any person or property, regardless of when made or asserted, involving the Product Line arising exclusively out of acts, omissions or events occurring, or Products manufactured by Seller or Seller's Affiliates, prior to the Closing Date or relating that is imposed by operation of Law in connection with any Product manufactured by Seller or Seller's Affiliates prior to the Closing;
(g) any breach, violation Taxes payable with respect to the Product Line or failure to perform that occurred the Closing Assets for any period ending prior to the Closing Date (other than Liabilities in respect any Taxes that are the responsibility of accounts payable or other accruals, for which Section 1.4(g) shall instead apply);
(d) any Liability under any Real Property Lease that is not a Transferring Real Property Lease;
(e) any Liability relating to any Debt of the Seller Parties or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing Date);
(f) any Liability for any accounts payable or other accruals related to the Business arising prior to the Closing Date;
(g) any Liability arising out of the Seller Parties’ or their Affiliates’ obligations under or agreements with any Payment Programs (including Buyer pursuant to any Provider AgreementsSection 2.3(b));
(h) any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from the operation of the Business prior liabilities related exclusively to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in timeAssets;
(i) any Liability arising out of Seller's accounts payable, accrued expenses or relating to or any Payment Program or any other payor (including Medicare or Medicaid)current liabilities, making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business prior except to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in timeextent assumed by Buyer pursuant to Section 2.3 hereof;
(j) except to the extent expressly assumed by Buyer pursuant to Section 2.3(d) or Section 2.3(e) hereof, any Liability obligations and liabilities for refunds, advertising, coupons, free-standing inserts, adjustments, allowances, repairs, exchanges and returns relating exclusively to any Product to the extent such obligations and liabilities relate to offers issued or arising from a Security Incident occurring commitments made prior to the Closing Date;
(k) any Liability relating liabilities or obligations arising out of or in connection with any act, omission or circumstance comprising a breach of the Contracts occurring prior to or arising from the Excluded Assets or the Excluded BusinessClosing Date, regardless of when any such liability is asserted;
(l) any Liability liabilities or obligations (i) arising by reason of any violation or alleged violation of any Law or any other requirement of any Governmental Authority, including, without limitation, any failure to obtain any relevant governmental permit, license, consent or authorization, (ii) except as specifically provided in Section 2.3, arising by reason of any breach or alleged breach by Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree or (iii) relating to the environment or any hazardous, toxic or chemical substances, including, without limitation, those defined as "toxic" or "hazardous" under any employee compensation environmental law, with respect to the events, acts, omissions or employee benefit plan adopted by circumstances existing or occurring prior to the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;Closing Date; and
(m) any Liability relating toother liabilities, arising from regardless of when made or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closingasserted, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or prior to the Closing Date and relating to the Business, the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;
(o) any Liability of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively that are not included in the name of Seller Parent;
(q) all Assumed Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed Liabilityotherwise assumed by Buyer hereunder.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything Specifically, and without in any way limiting the generality of Section 2.3, the Assumed Liabilities shall not include, and in no event shall Buyer assume, agree to the contrary contained hereinpay, discharge or perform, and Seller shall continue to be responsible for, any and all liabilities and obligations of Seller other than the Assumed Liabilities, the Seller Parties shall be responsible for all of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreement, and Buyer shall not assume, or in any way be liable or responsible for, any Liabilities of the Seller Parties (the “Excluded Liabilities”). Without limiting the generality of the foregoing, Buyer shall not assume the followingincluding all Liabilities:
(a) any Liability to pay any Taxes relating to, resulting from, or arising out of the conduct of the Business prior to the Closing, including any obligation of Seller Parties for the payments of wages, benefits or earned vacation to employees;
(b) for any and all Indebtedness relating to the Business that exists on the Closing Date;
(c) relating to, resulting from, or arising out of their Affiliatesclaims based on violations of Legal Requirements prior to the Closing;
(d) arising from any Litigation relating to any act or omission occurring on or prior to the Closing;
(e) pertaining to any Excluded Asset;
(f) under or relating to any employee benefit plan (as defined in ERISA), regardless of whether arising in connection with the consummation including any liability to make any payment or payments to any Person thereunder as a result of the transactions contemplated hereby (including any employee severance or otherwise;
(b) any Liability of the Seller Parties similar liability), whether or their Affiliates for performance under this Agreement or any of the Ancillary Agreements;
(c) any Liability under any Assigned Contract or any Transferring Real Property Lease arising out of factsnot such liability arises prior to, circumstances or occurrences existing prior to the Closing Date or relating to any breach, violation or failure to perform that occurred prior to the Closing Date (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead apply);
(d) any Liability under any Real Property Lease that is not a Transferring Real Property Lease;
(e) any Liability relating to any Debt of the Seller Parties or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing Date);
(f) any Liability for any accounts payable or other accruals related to the Business arising prior to the Closing Date;
(g) arising or incurred in connection with the negotiation, preparation and execution hereof and the transactions contemplated hereby and any Liability arising out fees and expenses of the Seller Parties’ counsel, accountants, brokers, financial advisors or their Affiliates’ obligations under or agreements with any Payment Programs (including pursuant to any Provider Agreements)other experts of Seller;
(h) any Liability for laboratory testing performance or resultswith the exception of Taxes allocated to Buyer pursuant to Section 2.5(b) and Section 5.12, any laboratory and all liabilities for (i) Taxes of Seller, (ii) Taxes that relate to the Assets or medical malpractice claims the Assumed Liabilities for taxable periods (or any violation portions thereof) ending on or non-compliance of any Health Care Law arising from the operation of the Business prior to before the Closing Date orand (iii) payments under any Tax allocation, for the avoidance of doubt, from the operation of the Excluded Business at any point in timesharing or similar agreement (whether oral or written);
(i) any Liability arising out of or relating to or any Payment Program or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating interest and penalties related to any action or inaction payment obligations to third parties assumed by Buyer for which payment was delinquent at the date of the Seller Parties or their Affiliates in connection with the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;Closing; and
(j) any Liability relating to or arising from a Security Incident occurring prior to the Closing Date;
(k) any Liability relating to or arising from the Excluded Assets or the Excluded Business;
(l) any Liability arising under any employee compensation or employee benefit plan adopted by the that are Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;
(m) any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or prior to the Closing Date and relating to the Business, the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;
(o) any Liability of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed LiabilityLiabilities.
Appears in 1 contract
Samples: Asset Purchase Agreement (Shenandoah Telecommunications Co/Va/)
Excluded Liabilities. Notwithstanding anything to the contrary contained herein, other than the Assumed Liabilities, the Seller Parties shall be responsible for all of the Seller Parties’ respective Liabilities Purchaser will not expressly assumed by Buyer under this Agreement, and Buyer shall not assume, assume or in any way be liable or responsible for, for any Liabilities of the Seller Parties Company, except for Assumed Liabilities, which shall remain the obligations of the Company following the Closing (the “Excluded Liabilities”). Without limiting the generality The Company shall timely perform, satisfy and discharge in accordance with their respective terms all Excluded Liabilities, including without limitation each of the foregoing, Buyer shall not assume following Liabilities of the followingCompany:
(a) except to the extent expressly included as an Assumed Liability, any Liability to pay arising or resulting from events occurring after the Closing, including without limitation any Taxes of the Seller Parties or any of their Affiliates, regardless of whether Liability arising in connection with the consummation liquidation of the transactions contemplated hereby Company and/or any dividend or otherwiseother distribution by the Company to its stockholders;
(b) except to the extent expressly included as an Assumed Liability, any Liability of under or with respect to any Excluded Assets including, without limitation, all Liabilities under the Seller Parties or their Affiliates for performance under this Agreement or any of the Ancillary AgreementsSpecified Contracts and all Contracts that become Excluded Assets in accordance with Section 5.17;
(c) any Liability arising under any Assigned Contract or any Transferring Real Property Lease arising out of facts, circumstances or occurrences existing prior to the Closing Date or relating to any breach, violation or failure to perform that occurred prior to the Closing Date (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead apply)this Agreement;
(d) all Liabilities of the Company or any Liability under of its Subsidiaries for fees, expenses and costs of legal, accounting, financial or other advisors incurred in connection with or arising from this Agreement, the Asset Sale or any Real Property Lease that is not a Transferring Real Property Leaseof the other transactions contemplated hereby;
(e) any Liability relating to any Debt or obligation of the Seller Parties Company with respect to its employees, directors or their Affiliates consultants, including those arising out of the employment or retention of any employee or service provider, including without limitation any Liability arising out of any employment agreements, Benefit Plans and Severance Agreements (other thanincluding, for the elimination of doubtwithout limitation, any trade payables Liability with respect to Taxes required to be paid or withheld in connection with any grant, exercise or acceleration of any option, award or other obligations arising under Assigned Contracts on or following the Closing Datesuch right);
(f) any Liability for any accounts payable or other accruals related to the Business arising prior to the Closing Date;
(g) any Liability arising out of the Seller Parties’ or their Affiliates’ obligations under or agreements with any Payment Programs (including pursuant to any Provider Agreements);all Liabilities for Excluded Taxes; and
(h) any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from the operation all Liabilities listed on Section 1.04(h) of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(i) any Liability arising out of or relating to or any Payment Program or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(j) any Liability relating to or arising from a Security Incident occurring prior to the Closing Date;
(k) any Liability relating to or arising from the Excluded Assets or the Excluded Business;
(l) any Liability arising under any employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;
(m) any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or prior to the Closing Date and relating to the Business, the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;
(o) any Liability of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed LiabilityCompany Disclosure Schedules.
Appears in 1 contract
Samples: Asset Purchase Agreement (Renewable Energy Group, Inc.)
Excluded Liabilities. Notwithstanding anything Except for liabilities specifically referenced in Section 2.03, under no circumstance shall Buyer assume or be obligated to pay, and none of the contrary contained hereinAssets shall be or become liable for or subject to, other than the Assumed any Excluded Liabilities, including the Seller Parties following liabilities of Seller, which shall be responsible for all and remain liabilities of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this AgreementSeller, and Buyer shall not assume, or in any way be liable or responsible for, any Liabilities of the Seller Parties (the “Excluded Liabilities”). Without limiting the generality of the foregoing, Buyer shall not assume the followingas applicable:
(a) liabilities or obligations associated with any Liability to pay any Taxes of the Seller Parties or any of their Affiliates, regardless of whether arising in connection with the consummation of the transactions contemplated hereby or otherwiseExcluded Assets;
(b) any Liability and all indebtedness of Seller for borrowed money, and the Seller Parties liabilities or their Affiliates for performance under this Agreement obligations associated therewith or any of the Ancillary Agreementsarising thereunder;
(c) any Liability under any Assigned Contract liabilities or any Transferring Real Property Lease obligations arising out of factsor in connection with claims, circumstances or occurrences existing litigation and proceedings (whether instituted prior to the Closing Date or relating to any breach, violation after Closing) for acts or failure to perform omissions that occurred prior to the Closing Date (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead apply);
(d) any Liability under any Real Property Lease that is not a Transferring Real Property Lease;
(e) any Liability relating to any Debt of the Seller Parties or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing Date);
(f) any Liability for any accounts payable or other accruals related to the Business arising prior to the Closing Date;
(gd) any Liability arising out liabilities or obligations of the Seller Parties’ or their Affiliates’ obligations under or agreements with any Payment Programs (including pursuant i) to any Provider Agreementsof its employees (ii) with respect to any employee benefit plans of any type or nature whatsoever, (iii) to the Internal Revenue Service or any other Governmental Authority relating to any of Seller’s employees (whether or not triggered by the Transaction or the announcement thereof);
(he) any Liability for laboratory testing performance or resultspenalties, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from the operation of the Business prior to the Closing Date orfines, for the avoidance of doubtsettlements, from the operation of the Excluded Business at any point in time;
(i) any Liability interest, costs and expenses arising out of or relating to incurred as a result of any actual or alleged violation by Seller of any Payment Program or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business Legal Requirement at any point in timetime whatsoever;
(jf) any Liability relating to liabilities or obligations under the WARN Act, if any, arising out of or resulting from a Security Incident occurring layoffs or termination of employees by Seller prior to and including the date of the Closing Dateand/or the consummation of the Transaction;
(kg) liabilities for any Liability relating Tax related to Seller, the Business and/or the Assets prior to Closing, and liabilities for Taxes imposed on or assessed against Seller and arising from out of or related to the Excluded Assets or the Excluded Business;Transaction; and
(lh) any Liability arising under any employee compensation or employee benefit plan adopted by all liabilities for expenses of Seller for the Seller Parties or their Affiliates including any negotiation and preparation of the Seller Parent Benefit Plans;
(m) any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closingthis Agreement, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or prior to the Closing Date and relating to the Business, the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;
(o) any Liability of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities those related to any Action or the defenselegal counsel, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed Liabilityaccounting, brokerage and investment advisors fees and disbursements.
Appears in 1 contract
Samples: Asset Purchase Agreement (Worthington Industries Inc)
Excluded Liabilities. Notwithstanding anything herein to the contrary contained herein, other than the Assumed Liabilitiescontrary, the Seller Parties shall be responsible for all of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreement, and Buyer Buyers shall not assume, or shall not be deemed by anything contained in this Agreement to have assumed, and shall not be liable in any way be liable or responsible for, manner for any Liabilities of the Seller Parties (the “Excluded Liabilities”). Without limiting the generality of the foregoing, Buyer the Buyers shall not assume the following:
(a) any Liability to pay any Taxes of the Seller Parties or any of their Affiliatesassume, regardless of whether arising and shall not be deemed by anything contained in connection with the consummation of the transactions contemplated hereby or otherwise;
(b) any Liability of the Seller Parties or their Affiliates for performance under this Agreement or any of the Ancillary Agreements;
(c) any Liability under any Assigned Contract or any Transferring Real Property Lease arising out of facts, circumstances or occurrences existing prior to the Closing Date or relating to any breach, violation or failure to perform that occurred prior to the Closing Date (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead apply);
(d) any Liability under any Real Property Lease that is not a Transferring Real Property Lease;
(e) any Liability relating to any Debt of the Seller Parties or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing Date);
(f) any Liability for any accounts payable or other accruals related to the Business arising prior to the Closing Date;
(g) any Liability arising out of the Seller Parties’ or their Affiliates’ obligations under or agreements with any Payment Programs (including pursuant to any Provider Agreements);
(h) any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;have assumed:
(i) any Liability Liabilities of the Sellers or their Affiliates pursuant to this Agreement or in the Transaction Documents;
(ii) any Liabilities arising out of or relating to or any Payment Program or any other payor (including Medicare or Medicaid)the fees, making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction costs and expenses of the Seller Parties Sellers or their Affiliates in connection with incurred, or for which the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(j) any Liability relating to or arising from a Security Incident occurring prior to the Closing Date;
(k) any Liability relating to or arising from the Excluded Assets or the Excluded Business;
(l) any Liability arising under any employee compensation or employee benefit plan adopted by the Seller Parties Sellers or their Affiliates including any of the Seller Parent Benefit Plans;
(m) any Liability relating towill be liable, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this AgreementAgreement and the other Transaction Documents, including all professional, accounting and consulting fees (collectively, “Transaction Expenses”);
(niii) any Liabilities for any Indebtedness incurred by the Sellers or their Affiliates as of or prior to the Closing Date, including any late charges or prepayment penalties or charges relating thereto or Taxes resulting from cancellation thereof, or in connection with the transactions contemplated hereby or by the Transaction Documents (other than any Taxes that are the responsibility of the Buyers pursuant to Section 2.07 or Section 2.09 hereof), including attorneys’, accountants’ and consultants’ fees, finders’ fees, costs and expenses, regardless of when incurred;
(iv) any Liabilities arising out of or relating to any of the Excluded Subsidiaries or Branch Offices;
(v) except for amounts due to Ancile for work completed by Ancile under the Company’s or RWD Canada’s Contracts with SAP America, Inc. and SAP Canada Inc., any Liabilities arising out of or relating to teaming arrangements, fees or secondment obligations with Ancile;
(vi) any Liabilities (other than obligations to be performed after Closing under Assumed Contracts (but not including obligations in respect of any period prior to Closing or in respect of goods sold or services provided or to have been provided prior to Closing)) arising out of or under the instruments, documents and agreements executed in connection with the Ancile Transaction, including but not limited to offer letters issued in connection with the Ancile Transaction;
(vii) any Liabilities arising out of or relating to (a) any Tax of any Seller, including any Liability for any of such Taxes resulting from the transactions contemplated hereby or by the Transaction Documents (other than any Taxes that are the responsibility of the Buyers pursuant to Section 2.07 or Section 2.09 hereof) and (b) any Tax of any Person (other than the Sellers) to the extent imposed on a Seller solely as a result of (A) the Seller being included in a combined, consolidated or unitary Tax group under Treasury Regulation Section 1.1502-6 (or any similar provision of any applicable Law), (B) transferee liability, (C) successor liability, or (D) a contractual obligation;
(viii) any Liabilities arising under Environmental Laws out of or with respect relating to Hazardous Substances any Liability or demand (whether or not asserted) or threatened or pending Orders or Proceedings to the extent arising from facts, circumstances out of or conditions, existing, initiated or occurring relating to any period ending on or prior to the Closing Date and Date, including, without limitation, all Liabilities relating to or arising out of the BusinessProceedings set forth on Schedule 5.08(e), Schedule 5.15 and Schedule 5.18(b);
(ix) any Liabilities arising out of or relating to any work, Contract, joint venture or other undertaking of the Purchased Assets Sellers for any period ending on or prior to the Closing Date, including any real property currently warranty claims relating thereto;
(x) any Liabilities arising out of or formerly owned, operated, used relating to any breach or leased violation or non-compliance with the Environmental Laws by the Seller Parties Sellers to the extent the facts giving rise to such Liability occurred prior to the Closing;
(xi) any Liabilities arising out of or relating to any breach or violation or non-compliance with the Fair Labor Standards Act of 1938, as amended, or other applicable employment standards legislation, by the Sellers to the extent the facts giving rise to such Liability occurred prior to the Closing;
(xii) any Liabilities arising out of or relating to any breach or violation or non-compliance with the TUPE Regulations by the Sellers to the extent the facts giving rise to such Liability occurred prior to the Closing;
(xiii) any Liabilities (other than Taxes as contemplated in Section 2.07) arising out of or relating to any bulk transfer, bulk sales or similar Laws;
(xiv) any Liabilities arising out of or relating to any breach or violation of or noncompliance with any other Law by the Sellers to the extent the facts giving rise to such Liability occurred prior to the Closing;
(xv) any Liabilities of the Sellers to the direct or indirect equity holders of the Sellers or their other respective Affiliates;
(oxvi) any Liability Liabilities arising out of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any PersonExcluded Assets;
(pxvii) any Liability Liabilities arising out of, related to, of or in connection with, relating to any litigation brought by non-Business operations of the Sellers or any stockholder former operation of Seller Parent the Business that has been discontinued or derivatively in the name disposed of Seller Parentat or prior to Closing;
(qxviii) all subject to applicable UK law, including (for the avoidance of doubt) the TUPE Regulations, any Liabilities related attributable to any Action Business Personnel who are not Transferred Personnel;
(xix) except for payroll expenses accrued on the Closing Balance Sheet and unused, accrued paid time off balances for Transferred Employees, any Liabilities arising prior to or upon Closing with respect to the defenseemployment, settlement engagement, termination of employment or other disposition engagement, compensation, severance, retention or employer benefits of any Action occurring prior nature owed to any employees or consultants of any Seller (whether or not employed or engaged by any Buyer after Closing) that arise out of or relate to the Closing Date; oremployment or contracting arrangement (or termination of such relationship) between the Sellers and such individuals, including any obligations with respect to compensatory time off, wages, overtime and royalties (but excluding accrued commissions owed to Transferred Employees) owed to employees and consultants or under any Law covering equal employment opportunity, occupational health and safety, workers’ compensation or discrimination;
(rxx) any Liabilities prior to or upon Closing arising out of or relating to any Employee Benefit Plan or Foreign Plan or any successor liability under ERISA or otherwise in connection with Liabilities arising prior to or upon Closing under any Employee Benefit Plan, including, without limitation, any deferred compensation or profit sharing plan and any employer contributions thereto, but excluding items excepted under Section 2.03(b)(xix) above;
(xxi) any Liabilities under any Contract that is not an Assumed Contract;
(xxii) except as set forth in Section 2.03(a)(i) or 2.03(a)(iii), any Liabilities of RWD Canada or arising out of the business of RWD Canada; and
(xxiii) any other Liability Liabilities arising out of or relating to the operation of the Business or the ownership of the Acquired Assets prior to the Closing, including any obligations with respect to services or goods rendered to any Seller Parties or their Affiliates that is not specifically included as an Assumed Liabilityprior to Closing.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything Buyer shall not assume and shall not be responsible to pay, perform or discharge any liabilities or obligations of Seller not expressly assumed by Buyer pursuant to Section 4.03 (collectively, the contrary contained herein"Excluded Liabilities"), including all of the following Liabilities and obligations:
(a) any Liabilities or obligations of the Seller, other than the Assumed Liabilities, the Seller Parties shall be responsible for all of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreement, and Buyer shall not assume, or in any way be liable or responsible for, any Liabilities of the Seller Parties (the “Excluded Liabilities”). Without limiting the generality of the foregoing, Buyer shall not assume the following:
(a) any Liability to pay any Taxes of the Seller Parties or any of their Affiliates, regardless of whether arising in connection with the consummation of the transactions contemplated hereby or otherwise;
(b) any Liability Liabilities or obligations for (i) Taxes relating to the operation of the Business or ownership or use of the SpinCo Assets or Purchased Assets on or prior to the Effective Time and (ii) any other Taxes of Seller Parties or their Affiliates for performance under this Agreement or any stockholders or Affiliates of Seller (including Taxes allocated to Seller under Section 8.15 and Taxes arising out of or in connection with the Ancillary AgreementsInternal Reorganization, Distribution or Merger);
(c) except as specifically provided in Section 8.05, any Liability under any Assigned Contract Liabilities or any Transferring Real Property Lease obligations of Seller relating to or arising out of facts(i) the employment, circumstances or occurrences existing termination of employment, (A) of any Employee on or prior to the Closing Date Effective Time, or, (B) of any Employees who are not Transferred Employees, after the Closing, or relating (ii) workers' compensation claims or any other claims of any Employee which relate to any breach, violation or failure to perform that occurred events occurring prior to the Closing Date (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead apply)Effective Time;
(d) except as specifically provided in Section 8.05, any Liability under Liabilities or obligation of Seller or any Real Property Lease that is not a Transferring Real Property Leaseof its current or former Affiliates relating to or arising out of Benefit Plans or Seller's or any of its current or former Affiliates' employment of any employee or other service provider;
(e) any Liability relating to any Debt Liabilities or obligations of Seller arising or incurred in connection with the Seller Parties or their Affiliates (negotiation, preparation, investigation and performance of this Agreement, the other thanTransaction Documents and the transactions contemplated hereby and thereby, for the elimination including fees and expenses of doubtcounsel, any trade payables or other obligations arising under Assigned Contracts on or following the Closing Date)accountants, consultants, advisers and others;
(f) any Liability for any accounts payable Action or other accruals related threatened Action relating to the Business arising out of transactions or events occurring prior to the Closing Date;
(g) any Liability arising out for any Action or threatened Action brought by any stockholder of Seller, including in connection with this Agreement and the Seller Parties’ or their Affiliates’ obligations under or agreements with any Payment Programs (including pursuant to any Provider Agreements);transactions contemplated thereby; and
(h) any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(i) any Liability arising out of or Liabilities and obligations relating to or any Payment Program or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(j) any Liability relating to or arising from a Security Incident occurring prior to the Closing Date;
(k) any Liability relating to or arising from the Excluded Assets or the Excluded Business;
(l) any Liability arising under any employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;
(m) any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or prior to the Closing Date and relating to the Business, the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;
(o) any Liability of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed LiabilitySpecified Benefits.
Appears in 1 contract
Samples: Purchase and Assumption Agreement and Plan of Merger (Customers Bancorp, Inc.)
Excluded Liabilities. Notwithstanding anything the provisions of Section 2.03 or any other provision in this Agreement to the contrary contained hereincontrary, Newco shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities, the Seller Parties shall be responsible for all of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreement, and Buyer shall not assume, or in any way be liable or responsible for, any Liabilities of the Seller Parties (the “Excluded Liabilities”). Without limiting the generality Seller shall, and shall cause each of the foregoingits Affiliates to, Buyer pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. The Excluded Liabilities shall not assume include the following:
(a) any Liability to pay any Taxes Liabilities of the Seller Parties based upon, arising out of or any of their Affiliates, regardless of whether arising incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents or the transactions contemplated hereby or thereby, including, without limitation, fees and expenses of counsel, accountants, consultants, advisers and others;
(b) any Liabilities for (i) Taxes of Seller (or any stockholder or Affiliate of Seller), (ii) Taxes relating to the Business, the Contributed Assets or the Assumed Liabilities for any Pre-Closing Tax Period or (iii) Taxes that arise out of the consummation of the transactions contemplated hereby or otherwise;
(b) any Liability that are the responsibility of the Seller Parties or their Affiliates for performance under this Agreement or any of the Ancillary Agreementspursuant to Section 6.11;
(c) any Liability under any Assigned Contract Liabilities relating to or any Transferring Real Property Lease arising out of facts, circumstances or occurrences existing prior to the Closing Date or relating to any breach, violation or failure to perform that occurred prior to the Closing Date (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead apply)Excluded Assets;
(d) any Liability under Liabilities in respect of any Real Property Lease that is not a Transferring Real Property Lease;
(e) any Liability pending or threatened Action arising out of, relating to any Debt or otherwise in respect of the Seller Parties operation of the Business or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing Date);
(f) any Liability for any accounts payable or other accruals related Contributed Assets to the Business arising extent such Action relates to such operation prior to the Closing Date;
(ge) any Liability Liabilities of Seller arising out of the Seller Parties’ or their Affiliates’ obligations under or agreements with any Payment Programs (including pursuant to any Provider Agreements);
(h) any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(i) any Liability arising out of or relating to or any Payment Program or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their Affiliates in connection with the operation employment, or termination of the Business prior to the Closing Date or, for the avoidance employment of doubt, from the operation of the Excluded Business at any point in time;
(j) any Liability relating to or arising from a Security Incident occurring employee prior to the Closing Date;
(f) any Liabilities arising out of, in respect of or in connection with the failure by Seller or any of its Affiliates to comply with any Law or Governmental Order;
(g) any Liabilities based upon, arising out of or with respect to any employee’s employment (or the termination of such employment) with, or any independent contractor’s engagement (or the termination of such engagement) by Seller that incurred prior to the consummation of the Closing;
(h) any Liabilities of Seller based upon, arising out of or with respect to: (i) any Environmental Law that occurred prior to the consummation of the Closing; (ii) any fine, penalty or other cost assessed by a Governmental Authority in connection with the violation of a Permit that accrued or arose prior to the consummation of the Closing or that arose out of the ownership, operation or use of the Contributed Assets or the Business prior to the consummation of the Closing; and (iii) any environmental exposures, injuries or accidents (including property damage, natural resource damage or personal injuries that may have resulted therefrom) that accrued or arose prior to the consummation of the Closing: (A) involving Hazardous Materials prior to the consummation of the Closing; or (B) that arose out of the ownership, operation or use of the Contributed Assets or the Business prior to the consummation of the Closing;
(i) any Liabilities of Seller based upon, arising out of or with respect to any product shipped, or product liability claim arising out of any fact occurring, prior to the consummation of the Closing;
(j) any Liabilities based upon, arising under or with respect to the operation of the Business, or the operation or use of the Contributed Assets, in each case, prior to the consummation of the Closing (or which may be asserted against or imposed upon Buyer as a successor or transferee of Seller as an acquirer of the Contributed Assets or the Business or otherwise as a matter of law) and any other obligation or liability based upon, arising under or with respect to events or conditions occurring at or prior to the Closing;
(k) any Liability relating Liabilities based upon, arising under or with respect to or arising from product warranty reserves, extended warranties and other customary warranties related to the Excluded Assets or the Excluded Business;
(l) any Liability Liabilities based upon, arising under any employee compensation or employee benefit plan adopted by with respect to the Seller Parties Excluded Assets or their Affiliates including the ownership, operation or use of any of the businesses or assets of Seller Parent Benefit Plans;or any of its Affiliates, other than the Business, whether before, at or after the Closing; and
(m) any Liability relating toLiabilities based upon, arising from or in connection with Business Employees or former employees out of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from factsthe Contributed Assets or the Business or the ownership, circumstances jurisdiction or conditions, existing, initiated or occurring on or use thereof by any Person at any time prior to or as a result of the consummation of the Closing Date and relating to (or which may be asserted against or imposed upon Buyer as a successor or transferee of Seller or as an acquirer of the Business, the Purchased Contributed Assets or any real property currently the Business or formerly ownedotherwise as a matter of Law), operated, used or leased by other than the Seller Parties or their Affiliates;
(o) any Liability of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed LiabilityLiabilities.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything to the contrary contained hereinin this Agreement and regardless of whether such Liability is disclosed herein or on any schedule hereto, other than the Assumed Liabilities, the Seller Parties shall be responsible for all of the Seller Parties’ respective Liabilities Buyer will not expressly assumed by Buyer under this Agreement, and Buyer shall not assume, assume or in any way be liable or responsible for, for any Liabilities of any Seller or any of their respective Affiliates or any other Liabilities whatsoever related to the ownership or operation of the Business or the Purchased Assets by any Seller Parties or any of their respective Affiliates (such Liabilities, the “Excluded Liabilities”). Without limiting the generality of the foregoing, Buyer shall not assume the following“Excluded Liabilities” include the following Liabilities of any Seller or any Affiliate of any Seller:
(ai) all Liabilities in respect of (A) any Liability breach of any Contract of any Seller or any Affiliate of any Seller, (B) any violation of law, breach of warranty, tort or infringement of any such Contract, or (C) any related charge, complaint, action, suit, proceeding, hearing, investigation, claim or demand;
(ii) Liabilities for any claims (whenever made) or proceedings arising out of, relating to, resulting from or caused by any products or applications manufactured, serviced, distributed or sold by any Seller or any of its Affiliates to pay any customer (including any Target Customer) with respect to the Business (or any predecessor thereof) or any other business of any Seller or any of its Affiliates or otherwise with respect to the operation of the Business or any other business of any Seller or any of its Affiliates at any time, including any Transition Period Liability;
(iii) Liabilities with respect to all Taxes, including all Taxes of the Seller Parties Sellers or any of their AffiliatesAffiliates relating to their ownership or operation of the Business and/or the Purchased Assets, regardless all Transfer Taxes and all Taxes arising out of whether arising or relating to any of the transactions contemplated hereby;
(iv) Liabilities of Sellers or any of their Affiliates for costs and expenses incurred in connection with this Agreement and the consummation of the transactions contemplated hereby, including Liabilities for fees and/or expenses to a broker or finder in connection with the origin, negotiation or execution of this Agreement or the other Transaction Documents or the consummation of the transactions contemplated hereby based upon any alleged agreement, arrangement or otherwiseunderstanding between the claimant and such Seller or any of its Affiliates, on the one hand, or any of their agents or representatives, on the other hand;
(bv) any Liability Liabilities of the Seller Parties or their Affiliates for performance under this Agreement Sellers or any of their Affiliates under or pursuant to the Ancillary AgreementsTransaction Documents;
(cvi) any Liability under any Assigned Contract or any Transferring Real Property Lease Liabilities arising out of factsor relating to the Excluded Assets;
(vii) Liabilities (including any claim of any governmental agency, circumstances any trustee, any fiduciary, any plan administrator, any person dealing with any Plan, any employee or occurrences existing any beneficiary and without regard to whether such Liability arises prior to or after the Closing Date or relating results from an event, prior to or after the Closing Date) which relate to
(A) any program, plan, policy or arrangement (whether or not terminated), (w) which is or has been maintained, established, or offered by any Seller or any of their Affiliates, (x) to which any Seller or any of their Affiliates contributes or has contributed, (y) to which any Seller or any of their Affiliates has or has had any obligation to contribute, or (z) to which any Seller or any of their Affiliates has or has had any Liability or potential Liability, including with respect to any breach, violation or failure to perform that occurred prior to the Closing Date Plan; (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead apply);
(d) any Liability under any Real Property Lease that is not a Transferring Real Property Lease;
(eB) any Liability relating to any Debt such program, plan, policy, or Plan, which may result as a violation of law or (C) any Liability, including any potential or actual Liability, relating to any failure to comply with the Seller Parties requirements of law or their Affiliates any collective bargaining agreement (other than, for including the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing DateElk Grove Village CBA);
(fviii) Liabilities resulting from or relating to (A) any claims, indemnification claims, warranty claims, rebates, refunds, payments, actions, investigations or proceedings (whenever arising) relating to products or applications manufactured, merchandised, distributed, sold or delivered by or services rendered by any Seller or any of their Affiliates (or any predecessors), regardless of whether any such Liability for is disclosed herein or in any accounts payable schedule hereto, and (B) any other claims, actions or other accruals related to the Business arising prior to the Closing Dateproceedings of any nature pending or threatened against any Seller or any of their Affiliates (or any predecessors), regardless of whether any such Liability is disclosed herein or in any schedule hereto;
(gix) duties and Liabilities relating to any Liability arising out claims by current or former employees or independent contractors (including dependents, spouses and other beneficiaries thereof) of the any Seller Parties’ or any of their Affiliates (or any predecessors), including such duties and Liabilities for: (A) medical costs and expenses, and (B) costs, expenses and other Liabilities under any workers compensation laws, regulations, requirements or programs;
(x) duties, contributions and Liabilities relating to any claims for notice, pay in lieu of notice, severance pay, vacation pay, bonus, commissions, overtime pay, death, disability or other health or welfare (including any post-retirement benefits to any current or former employee) or fringe benefits, including any benefit offered or available under any Plan;
(xi) contributions, premiums, duties and Liabilities relating to any Seller or any of their Affiliates’ obligations under or agreements with any Payment Programs (including pursuant obligation to contribute to any Provider AgreementsPlan (regardless of when any such contribution is required to be made);
(hxii) any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from the operation of the Business prior duties and Liabilities to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(i) any Liability arising out of or relating to or any Payment Program or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(j) any Liability extent relating to or arising from a Security Incident occurring prior any underlying fact, event or condition at any past or present facility (including the Elk Grove Village Facility), property or operation of any Seller or any of their Affiliates (or any predecessors), including any such duty or other Liability arising under Environmental and Safety Requirements and any such duty or other Liability which at any time interferes with or prevents continued compliance with, or gives rise to any investigation Liability under, any Environmental and Safety Requirements, irrespective of whether such Liabilities attach to Buyer or Seller or any Affiliate of Seller in the Closing Datefirst instance;
(kxiii) Liabilities for any Indebtedness of any Seller or any of their Affiliates;
(xiv) any obligation of any Seller or any of their Affiliates to indemnify any Person by reason of the fact that such Person was a director, officer, employee or agent of such Seller or such Affiliate or was serving at the request of such Seller or such Affiliate as a partner, trustee, director, officer, employee or agent of another Person (whether such indemnification is for judgments, damages, penalties, fines, costs, amounts paid in settlement, losses, expenses or otherwise and whether such indemnification is pursuant to statute, charter document, bylaw, agreement or otherwise);
(xv) all accounts payable and accrued liabilities;
(xvi) any non-compliance by any Seller or any of their Affiliates with respect to any applicable sale of an enterprise or bulk sales legislation in connection with the sale, transfer and assignment of the Purchased Assets by such Seller or such Affiliate to Buyer contemplated hereby;
(xvii) Liabilities related to or arising from Sellers’ Other Businesses;
(xviii) Liabilities for violations of any Laws; and
(xix) Liabilities for the actions or omissions of any Seller. Notwithstanding anything to the contrary contained herein, “Excluded Liabilities” shall not include, to the extent not a Transition Period Liability, (A) any Liability to the extent relating to the shutdown, decommissioning or preparation for shut down of the Purchased Assets or (B) any Liability to the extent relating to or arising from the Excluded Assets or the Excluded Business;
(l) any Liability arising under any employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates including any Buyer’s operation of the Seller Parent Benefit Plans;
(m) any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or prior to the Closing Date and relating to the Business, the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;
(o) any Liability of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior after the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed Liability.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything to the contrary contained hereinin this Agreement, Buyer shall not assume and shall not be responsible to pay, perform or discharge and shall have no responsibility for any Liabilities of Seller, MMAC, the MMAC Subsidiaries, MEC or any of their respective Affiliates of any kind or nature whatsoever other than the Assumed LiabilitiesObligations (collectively, the Seller Parties shall be responsible for all of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreement, and Buyer shall not assume, or in any way be liable or responsible for, any Liabilities of the Seller Parties (the “Excluded Liabilities”). Without limiting the generality of the foregoing, Buyer the Excluded Liabilities shall include, but not be limited to, the following (other than the Obligations, which shall not assume the following:be Excluded Liabilities):
(a) any Liability to pay any Taxes Liabilities of the Seller Parties Company or any of their Affiliates, regardless of whether its Affiliates (including any Company Subsidiary) arising in connection with the consummation of the transactions contemplated hereby or otherwise;
(b) any Liability of the Seller Parties or their Affiliates for performance under this Agreement or any of the Ancillary Agreements;
(c) any Liability under any Assigned Contract or any Transferring Real Property Lease arising out of facts, circumstances or occurrences existing prior to the Closing Date or relating to any breach, violation or failure to perform that occurred prior to the Closing Date (other than Current Liabilities solely to the extent included in the calculation of the Closing IHS Working Capital as finally determined in accordance with Section 2.06);
(b) any Liabilities arising out of, in respect of, or in connection with, the Management Arrangements and Management Fee Rights prior to the Closing Date;
(c) (i) any Liabilities of accounts payable Seller, MMAC, MEC or any of their respective Affiliates (other accruals, than the Company or any of the Company Subsidiaries) for which Taxes or (ii) any Liabilities of the Company or any of the Company Subsidiaries for Taxes for any Pre-Closing Tax Period (other than Taxes allocated to Buyer under Section 1.4(g) shall instead apply5.13);
(d) any Liability under Liabilities relating to or arising out of the Excluded Assets, including, without limitation, any Real Property Lease and all Claims that is not a Transferring Real Property Leaseconstitute Excluded Assets;
(e) any Liability relating to any Debt of the Seller Parties or their Affiliates (other thanLiabilities which constitute intercompany payables, for the elimination of doubt, any trade payables debt or other obligations arising under Assigned Contracts on accounts owing from the Company or following the Closing Date)any Company Subsidiary to Seller, MMAC, MEC or any of their respective Affiliates;
(f) any Liability for Liabilities in respect of any accounts payable pending or other accruals related threatened Claims arising out of, relating to or otherwise in respect of the Company Business, the Transferred Assets or the Obligations to the Business extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing Date;
(g) any Liability arising out except as specifically provided in Section 5.01, all Liabilities of the Seller Parties’ or their Affiliates’ obligations under or agreements with any Payment Programs (including pursuant to any Provider Agreements);
(h) any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims MMAC or any violation or non-compliance of any Health Care Law arising from the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(i) any Liability arising out of or relating to or any Payment Program or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their its Affiliates in connection with the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(j) any Liability relating to or arising from a Security Incident out of (i) the employment, or termination of employment, of any Employee or former employee or other service provider prior to the Closing, (ii) Benefit Plans, or (iii) workers’ compensation Claims of any Employee or former employee or other service provider that relate to events occurring prior to the Closing Date;
(h) any Liabilities associated with debt, loans or credit facilities of MMAC, MEC, Seller or any of their respective Affiliates owing to financial institutions;
(i) any Liabilities arising out of, in respect of or in connection with the failure by MMAC, MEC, Seller or any of their respective Affiliates to comply with any Law or Governmental Order;
(j) any Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing Date or otherwise arising out of any actions or omissions of any of MMAC, MEC, Seller or any of their respective Affiliates;
(k) any Liability relating to Liabilities arising out of, in respect of, in connection with, or arising from associated with, the Excluded Assets sale of Gxxxxx Housing Partners, LLC’s assets including any and all Claims between, among or the Excluded Businessinvolving, MMA Capital TC Fund I, LLC, Jolt Realty Incorporated, LNR 2001 Fund III, LLC and Steadfast Companies;
(l) any Liability Liabilities arising under or relating to any employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;
(m) any Liability relating to, Claims arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;Agreement and the other Transaction Documents; and
(nm) any Liability Liabilities of MMAC, MEC, Seller or any of their respective Affiliates arising under Environmental Laws or incurred in connection with respect to Hazardous Substances arising from factsthe negotiation, circumstances or conditionspreparation, existing, initiated or occurring on or prior to the Closing Date investigation and relating to the Businessperformance of this Agreement, the Purchased Assets or any real property currently or formerly ownedother Transaction Documents and the transactions contemplated hereby and thereby, operatedincluding, used or leased by the Seller Parties or their Affiliates;
(o) any Liability without limitation, fees and expenses of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out ofcounsel, related toaccountants, or in connection withconsultants, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed Liabilityadvisers and others.
Appears in 1 contract
Samples: Master Transaction Agreement (Mma Capital Management, LLC)
Excluded Liabilities. Notwithstanding anything to the contrary contained herein, other than Except for the Assumed Liabilities, the Seller Parties shall be responsible for all of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreement, and Buyer SEARHC shall not assume, assume or become liable for or obligated in any way be with respect to, and the City shall retain and remain solely liable or responsible forfor any obligation to pay, any perform, and discharge, all Liabilities of the Seller Parties City, regardless of when asserted (collectively, the “Excluded Liabilities”). Without limiting the generality of the foregoing, Buyer shall not assume the followingincluding:
(a) any Liability to pay any Taxes Any Liabilities of the Seller Parties City or any the Hospital arising under (i) the Assumed Contracts (to the extent arising on or before the Effective Time) and (ii) the Excluded Contracts; for the avoidance of their Affiliatesdoubt, regardless of whether arising in connection all Liabilities associated with the consummation of the transactions contemplated hereby or otherwiseCerner System are Excluded Liabilities;
(b) any Liability Any Liabilities of the Seller Parties City or their Affiliates for performance under this Agreement the Hospital arising from or any of relating to the Ancillary AgreementsReal Property, other than the Real Property Leases;
(c) Any Liabilities of the City or the Hospital by reason of any Liability under failure to comply with the rules and regulations of any Assigned Contract or Government Reimbursement Program which is attributable to any Transferring Real Property Lease arising out period of facts, circumstances or occurrences existing time ending prior to the Closing Date or relating to any breach, violation or failure to perform that occurred prior to the Closing Date (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead apply)Effective Time;
(d) Any Liabilities of the City or the Hospital arising out of or relating to any Liability under any Real Property Lease that is not a Transferring Real Property Leaseviolation of applicable Law prior to the Effective Time;
(e) any Liability Liabilities of the City or the Hospital arising out of or relating to any Debt Employee Benefit Plan of any nature whatsoever maintained or contributed to by the Seller Parties City or the Hospital or each of their respective Affiliates for the benefit of its or their Affiliates employees (other than, for including under the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing DatePERS Plans);
(f) any Liability Liabilities of the City or the Hospital for any accounts payable present (i.e. on the Execution Date or other accruals related to the Business arising prior to the Closing Date;
(g) any Liability arising out or former employees, retirees, independent contractors or consultants of the Seller Parties’ City or their Affiliates’ obligations under or agreements the Hospital, including any Liabilities associated with any Payment Programs (including pursuant to any Provider Agreements);
(h) any Liability claims for laboratory testing performance wages, compensation or resultsother benefits, any laboratory or medical malpractice claims bonuses, commissions, paid time off, workers’ compensation, severance, retention, termination, damages, statutory penalties, attorneys’ fees and costs, or any violation or non-compliance of any Health Care Law arising from the operation of the Business prior other payments, to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(i) any Liability extent arising out of or relating to the employment, retention or termination of employment or services of such Persons (including any Payment Program Liabilities associated with the City’s or the Hospital’s use, or provision of, contract labor) or any other payor (including Medicare facts, circumstances or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered conditions existing on or after prior to the Closing DateEffective Time;
(g) Liabilities for Taxes, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for including (i) any other reason relating to any action or inaction Taxes arising as a result of the Seller Parties or their Affiliates in connection with the operation of the Business or the ownership of the Acquired Assets or the Hospital prior to the Closing Date orEffective Time; (ii) any Taxes that may arise as a result of the transfer and conveyance of the Acquired Assets pursuant to this Agreement; and (iii) any deferred Taxes of any nature;
(h) Both (i) Agency Settlements, and (ii) Liabilities to Government Reimbursement Programs for overpayments and other financial obligations arising from adjustments or reductions in reimbursement attributable to events, transactions, circumstances or conditions occurring or existing (whether known or unknown) prior to the Effective Time (“Settlement Payments”). For the avoidance of doubt, from the operation of the Excluded Business at Parties acknowledge that SEARHC does not assume any point in timeLiabilities associated with Settlement Payments or Agency Settlements;
(j) any Liability relating to or arising from a Security Incident occurring prior to the Closing Date;
(k) any Liability relating to or arising from the Excluded Assets or the Excluded Business;
(l) any Liability arising under any employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;
(m) any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or prior to the Closing Date and relating to the Business, the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;
(o) any Liability of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed Liability.
Appears in 1 contract
Samples: Asset Purchase Agreement
Excluded Liabilities. Notwithstanding anything to The Parties agree that, except for the contrary contained hereinAssumed Liabilities, Buyer shall not accept, assume, pay, perform, fulfill or discharge or otherwise have any Liability for, any Liabilities of Seller or any Affiliate of Seller (whether now existing or hereafter arising), and Seller and its Affiliates shall retain, and shall be solely responsible and liable for paying, performing, fulfilling and discharging when due, all Liabilities of Seller and its Affiliates other than the Assumed Liabilities, including the Seller Parties shall be responsible for all of the Seller Parties’ respective following Liabilities not expressly assumed by Buyer under this Agreement(collectively, and Buyer shall not assume, or in any way be liable or responsible for, any Liabilities of the Seller Parties (the “Excluded Liabilities”). Without limiting the generality of the foregoing, Buyer shall not assume the following:):
(a) any Liability to pay any Taxes the extent arising out of or related to the Seller Parties or any of their Affiliates, regardless of whether arising in connection with the consummation of the transactions contemplated hereby or otherwiseExcluded Assets;
(b) any Liability to the extent arising out of or related to the Seller Parties or their Affiliates for performance under this Agreement or any of the Ancillary AgreementsExcluded Print Business;
(c) any Liability under any Assigned Contract or any Transferring Real Property Lease arising out of facts, circumstances or occurrences existing prior to the Closing Date or relating to any breach, violation or failure to perform that occurred prior to the Closing Date (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead apply);
(d) any Liability under any Real Property Lease that is not a Transferring Real Property Lease;
(e) any Liability relating to any Debt of the Seller Parties or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing Date);
(f) any Liability for any accounts payable or other accruals related to the Business arising prior to the Closing Date;
(g) any Liability arising out of the Seller Parties’ or their Affiliates’ obligations under or agreements with any Payment Programs (including pursuant to any Provider Agreements);
(h) any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(i) any Liability arising out of or relating to any tort, breach, default or any Payment Program or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered violation by Seller on or after prior to the Closing DateEffective Time;
(d) all Liabilities under the Assumed Contracts, due in each case to overpaymentsthe extent such Liabilities arise prior to and ending at the Effective Time, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction including all accounts payable of the Seller Parties to the extent arising from, related to or their Affiliates in connection with the operation respect of the Business prior to and ending at the Effective Time (the “Pre-Closing Date orAccounts Payable”) (and subject to reconciliation in accordance with Section 3.3);
(e) any Proceeding to the extent relating to or arising out of the ownership or use of the Purchased Assets or the ownership or operation of the Business on or prior to the Effective Time;
(f) any Taxes of the Seller Parties, including any Transfer Taxes, and any Taxes imposed on or with respect to the Purchased Assets for a taxable period (or portion thereof) ending on or before the Effective Time;
(g) all Indebtedness of the Seller Parties (including, for the avoidance of doubt, from the operation of the Excluded Business at any point in timeAdvance Agreement);
(jh) any Liability all Liabilities relating to or arising from a Security Incident occurring prior to any Business Lease other than the Closing DateAssumed Business Leases;
(k) any Liability relating to or arising from the Excluded Assets or the Excluded Business;
(l) any Liability arising under any employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;
(m) any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or prior to the Closing Date and relating to the Business, the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;
(oi) any Liability of the Seller Parties or their Affiliates arising from or relating to violation of in connection with the Intellectual Property rights employment of any Person;
(p) any Liability arising out of, related to, current or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement former employee or other disposition service provider of Seller, including any Action occurring Transferred Business Employees, on or prior to the Closing Date; or
(r) Effective Time, including any other Liability of the Seller Parties constituting workers’ compensation claims of such personnel with respect to occurrences on or prior to the Effective Time, and any Liability of the Seller Parties in connection with the termination of employment of any current or former employee or other service provider of Seller, including any Transferred Business Employees;
(j) all Liabilities under or related to any Seller Benefit Plan, whether in respect of any current or former employee of Seller, including any Transferred Business Employees, or their Affiliates that is not specifically included as an Assumed Liabilitycovered dependents, or any other current or former employees of Seller, for benefits, claims or entitlements under any Seller Benefit Plans;
(k) all Liabilities under or related to any settlement agreement related to the Business or otherwise entered into by Seller prior to the Effective Time; and
(l) any Liabilities of Seller arising out of Seller’s negotiation and preparation of this Agreement and consummation and performance of the Transactions, including the Escrow Fees.
Appears in 1 contract
Samples: Asset Purchase Agreement (Arena Group Holdings, Inc.)
Excluded Liabilities. Notwithstanding anything the provisions of Section 2.03 or any other provision in this Agreement to the contrary contained hereincontrary, other than the Assumed Liabilities, the Seller Parties shall be responsible for all of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreement, and Buyer shall not assumeassume and shall not be responsible to pay, perform or in any way be liable or responsible for, any discharge the following Liabilities of the Seller Parties (the “Excluded Liabilities”), which Seller shall, or shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, Buyer the Excluded Liabilities shall include, but not assume be limited to, the following:
(a) any Liability to pay for (i) any Taxes of the Seller Parties (or any stockholder or Affiliate of their Affiliates, regardless of whether arising in connection with Seller); (ii) any Taxes relating to the consummation operation of the transactions contemplated hereby Business or otherwisethe ownership, possession or use of the Purchased Assets; or (iii) the transfer taxes that are allocable to Seller pursuant to Section 6.14; in each case, to the extent arising out of any Pre-Closing Tax Period;
(b) any Liability Liabilities relating to or arising out of the Seller Parties or their Affiliates for performance under this Agreement or any of the Ancillary AgreementsExcluded Assets;
(c) any Liability under Liabilities or obligations for indebtedness for borrowed money or guarantees thereof of any Assigned Contract or any Transferring Real Property Lease arising out Affiliate of facts, circumstances or occurrences existing prior to the Closing Date or relating to any breach, violation or failure to perform that occurred prior to the Closing Date (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead apply)Seller;
(d) any Liability under Liabilities in respect of any Real Property Lease that is not a Transferring Real Property Lease;
(e) any Liability Action arising out of, relating to any Debt or otherwise in respect of the Seller Parties operation of the Business or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts Purchased Assets to the extent such Action relates to such operation on or following the Closing Date);
(f) any Liability for any accounts payable or other accruals related to the Business arising prior to the Closing Date;
(e) any Liabilities of Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of Seller, including, without limitation, any Liabilities accruing or arising before Closing associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;
(f) any Liabilities arising out of any Contracts, including Business Intellectual Property Agreements, (i) which are not validly and effectively assigned to Buyer pursuant to this Agreement; (ii) which do not conform to the representations and warranties with respect thereto contained in this Agreement; or (iii) to the extent such Liabilities arise out of or relate to a breach by Seller of such Contracts prior to Closing; and
(g) any Liability Liabilities arising out of the Seller Parties’ or their Affiliates’ obligations under or agreements with any Payment Programs (including pursuant to any Provider Agreements);
(h) any Liability for laboratory testing performance or resultsof, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(i) any Liability arising out respect of or relating to or any Payment Program or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business failure by Seller to comply with any Law or Governmental Order prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(j) any Liability relating to or arising from a Security Incident occurring prior to the Closing Date;
(k) any Liability relating to or arising from the Excluded Assets or the Excluded Business;
(l) any Liability arising under any employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;
(m) any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or prior to the Closing Date and relating to the Business, the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;
(o) any Liability of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed Liability.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything in Section 2.4 to the contrary contained hereincontrary, other than the Assumed Liabilities, the Seller Parties shall retain and be responsible for the following Liabilities relating to the Facility Operations (all of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreementsuch Liabilities, and Buyer shall not assumecollectively, or in any way be liable or responsible for, any Liabilities of the Seller Parties (the “Excluded Liabilities”). Without limiting the generality of the foregoing, Buyer shall not assume the following:):
(a) any Liability all Liabilities to pay any Taxes of the Seller Parties or any of their Affiliates, regardless of whether arising in connection with the consummation of the transactions contemplated hereby or otherwise;
(b) any Liability of the Seller Parties or their Affiliates for performance under this Agreement or any of the Ancillary Agreements;
(c) any Liability under any Assigned Contract or any Transferring Real Property Lease extent arising out of factsof, circumstances or occurrences existing relating to, any Purchased Asset or the Facility Operations prior to the Closing Date or relating to any breach, violation or failure to perform that occurred prior to the Closing Date (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead apply);
(d) any Liability under any Real Property Lease that is not a Transferring Real Property Lease;
(e) any Liability relating to any Debt of the Seller Parties or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing Date);
(f) any Liability for any accounts payable or other accruals related to the Business arising prior to the Closing Date;
(g) any Liability arising out of the Seller Parties’ or their Affiliates’ obligations under or agreements with any Payment Programs (including pursuant to any Provider Agreements);
(h) any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from the operation of the Business prior to the Closing Date orincluding, for the avoidance of doubt, any Liabilities to the extent arising out of, or relating to, the Settlement Agreement or the claims or Actions described therein);
(b) all Accounts Payable of Seller other than the Assumed Accounts Payable;
(c) all Seller Transaction Expenses;
(d) all Intracompany Payables;
(e) any Indebtedness of Seller or any of its Affiliates that does not arise out of, or relate to, any Purchased Assets or the Facility Operations;
(f) all Liabilities to the extent arising out of, or relating to, the Excluded Assets;
(g) all Liabilities under the Benefit Plans (including any Contracts related thereto) and all assets held with respect to the Benefit Plans;
(h) all Liabilities for (i) Taxes arising from the operation of Purchased Assets or Facility Operations for any Pre-Closing Tax Period (as determined for any Straddle Period in accordance with Section 7.12(d)), except to the extent such Taxes were included in Indebtedness, (ii) Taxes relating to the Excluded Business at Assets and Excluded Liabilities for any point taxable period and (iii) Transfer Taxes in timeaccordance with Section 2.9;
(i) any Liability labor or employment-related Liabilities related to or arising from any period of time up to and including the Closing Date (specifically including all Liabilities under the WARN Act and any state law equivalent), including any Liabilities arising out of or relating related to the termination of employment of such Facility Employee or any Payment Program the termination of such Facility Contractor by Seller or any other payor (including Medicare or Medicaid)one of its Affiliates, making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating and all Liabilities with respect to any action Facility Employee or inaction Facility Contractor who does not accept an offer of the Seller Parties employment from Purchaser or their Affiliates in connection with the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;its Affiliates; and
(j) any Liability relating to other liabilities or arising from a Security Incident occurring prior to the Closing Date;
(k) any Liability relating to obligations of Seller or arising from the Excluded Assets or the Excluded Business;
(l) any Liability arising under any employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;
(m) its Affiliates that are not Assumed Liabilities, other than any Liability Environmental Liabilities arising out of, or relating to, arising from actions occurring or in connection with Business Employees or former employees of conditions existing at the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws Facility or with respect to Hazardous Substances arising from facts, circumstances the Purchased Assets or conditions, existing, initiated or occurring Facility Operations on or prior to the Closing Date and relating to the Business(regardless of when discovered or asserted), the Purchased Assets including any continuing effects of such actions or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;
(o) any Liability of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior conditions after the Closing Date; or
(r) any other Liability provided, that, after the Closing Date, Seller shall deliver the Recorded Environmental Covenant Notice to the Alabama Department of Environmental Management in accordance with the Seller Parties or their Affiliates that is not specifically included as an Assumed Liabilityterms thereof.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything to the contrary contained hereinExcept as expressly provided by Section 2.4 hereof, other than the Assumed Liabilities, the Seller Parties shall be responsible for all of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreement, and Buyer shall not assume, or in any way be liable or responsible for, any Liabilities of the Seller Parties (the “Excluded Liabilities”). Without limiting the generality of the foregoing, Buyer Purchaser shall not assume or be liable for any of the liabilities or obligations of Sellers or any of their Affiliates, of any kind or nature whether presently in existence or arising hereafter (the "Excluded Liabilities"), including without limitation the following:
(a) any Liability all liabilities and obligations to pay any Taxes the extent related to or arising out of assets not included in the Seller Parties or any of their Affiliates, regardless of whether arising in connection with the consummation of the transactions contemplated hereby or otherwiseTransferred Assets;
(b) any Liability all liabilities incurred in connection with, arising out of or related to the Seller Parties ownership or their Affiliates for performance under this Agreement or use of any of the Ancillary Agreements;
(c) any Liability under any Assigned Contract Transferred Assets or any Transferring Real Property Lease arising out of facts, circumstances or occurrences existing prior to the Closing Date or relating to any breach, violation or failure to perform that occurred prior to the Closing Date (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead apply);
(d) any Liability under any Real Property Lease that is not a Transferring Real Property Lease;
(e) any Liability relating to any Debt conduct of the Seller Parties or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing Date);
(f) any Liability for any accounts payable or other accruals related to the Business arising prior to the Closing Date;
(gc) any Liability arising out of the Seller Parties’ or their Affiliates’ all liabilities and obligations under or agreements with any Payment Programs (including pursuant to any Provider Agreements);
(h) any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(i) any Liability arising out of or relating to any Environmental Law that accrued or arose prior to the Closing Date to the extent related to any Payment Program real property owned, leased or operated by any Seller or included in the Assigned Leases;
(d) all liabilities for Taxes, except, with regard to Taxes attributable to the ownership of the Transferred Assets, to the extent they are attributable to the period after the Closing Date (and except as provided in Section 5.6);
(e) all liabilities for which any Seller has expressly assumed responsibility in this Agreement;
(f) all liabilities and obligations relating to current or former employees, agents, consultants or other payor (including Medicare independent contractors of Sellers, whether or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or not such persons are employed by Purchaser after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action services performed, benefits accrued or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(j) any Liability relating to or arising from a Security Incident occurring claims incurred prior to the Closing Date, in each case, including, but not limited to, compensation, bonus, incentives, deferred compensation, accrued salary, employee benefits, severance, vacation, sick leave, personal days, worker's compensation, and unemployment compensation or employee welfare and pension benefits;
(kg) all liabilities for any Liability relating claims and administrative expenses of whatsoever kind or nature, arising prior or subsequent to the commencement of the Bankruptcy Case, whether or arising from not asserted, including, but not limited to, liability in respect of the Excluded Assets fees and expenses of professionals retained in or related to the Excluded Business;
(l) any Liability arising Bankruptcy Case and all liability under any employee compensation or employee benefit plan adopted by pre- and post-petition financing agreement including, without limitation, the Seller Parties or their Affiliates aggregate principal amount of, and accrued but unpaid interest on, any outstanding borrowings thereunder, and any penalties, fees and expenses (including any of attorneys' fees and expenses) other than Assumed Administrative Expenses and the Seller Parent Benefit Plans;
(m) any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Cure Amount for an Assumed Agreement;
(nh) all liabilities and obligations arising out of any Liability arising under Environmental Laws lawsuit, action, proceeding, inquiry, claim, order or with respect to Hazardous Substances arising from facts, circumstances investigation by or conditions, existing, initiated before any court or governmental or other regulatory or administrative agency or commission for events occurring on or before the Closing Date or not related to the Transferred Assets or Assumed Liabilities.
(i) All liabilities of Sellers arising from the issuance or sale by Sellers of Wiz Bucks or the issuance or sale prior to more than 30 days before the Closing Date of gift certificates; and all return, rebate and layaway liabilities of Sellers arising from sales of inventory made more than 30 days (33 days in the case of returns) before to the Closing Date Date. All such Excluded Liabilities shall be retained by and relating to the Business, the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties remain obligations and liabilities of Sellers or their Affiliates;
(o) any Liability of , as the Seller Parties case may be. Sellers agree that the Sellers or their Affiliates arising from or relating Affiliates, as the case may be, incurring the liability will be responsible for (and Purchaser shall not be responsible for) all Excluded Liabilities. It is expressly understood and agreed that the parties intend that Purchaser shall not be considered to violation of the Intellectual Property rights be a successor to Sellers by reason of any Person;
(p) theory of law or equity and that Purchaser shall have no liability except as otherwise expressly provided in this Agreement for any Liability arising out of, related to, liability of Sellers or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed LiabilityAffiliates.
Appears in 1 contract
Samples: Asset Purchase Agreement (Cablevision Systems Corp)
Excluded Liabilities. Notwithstanding anything to the contrary contained hereinThe Parties agree that, other than except for the Assumed Liabilities, the Seller Parties shall Buyer will not assume or be responsible for all the payment or assumption of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreementany other liabilities or obligations of any kind of Seller, and Buyer shall not assume, or in any way be liable or responsible forParent, any Liabilities of other Seller Affiliate or the Seller Parties Business (collectively, the “"Excluded Liabilities”"). Without limiting the generality of the foregoing, Buyer shall not assume the followingincluding any and all liabilities and obligations relating to:
(a) any Liability to pay any Taxes all Benefit Plans of the Seller Parties Seller, Parent or any of their Affiliates, regardless of whether arising in connection with the consummation of the transactions contemplated hereby or otherwiseSeller Affiliate;
(b) any Liability current or former employees, directors, or officers of Seller, Parent, any other Seller Affiliate or the Seller Parties or their Affiliates for performance under this Agreement or any of the Ancillary AgreementsBusiness;
(c) any Liability under any Assigned Contract or any Transferring Real Property Lease arising out of facts, circumstances or occurrences existing prior to the Closing Date or relating to any breach, violation or failure to perform that occurred prior to the Closing Date (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead apply)Excluded Taxes;
(d) any Liability under Indebtedness of Seller, Parent or any Real Property Lease that is not a Transferring Real Property Leaseother Seller Affiliate;
(e) any Liability all Actions relating to any Debt of the Seller Parties or their Affiliates (other thaninvolving Seller, for the elimination of doubtParent, any trade payables other Seller Affiliate, the Products, the Acquired Assets or other obligations arising under Assigned Contracts the Business, existing on or following prior to the Closing Date), and all Actions with respect to Seller's, Parent's or any other Seller Affiliate's conduct of its business on or after the Closing Date;
(f) any Liability for liabilities or obligations of the Business, on the one hand, owed to Seller, Parent or any accounts payable or other accruals related to Seller Affiliate, on the Business arising prior to the Closing Dateother hand;
(g) any Liability liabilities arising out in connection with the negotiation, execution and delivery of this Agreement and the Seller Parties’ other agreements contemplated hereby (other than as set forth herein or their Affiliates’ obligations under or agreements with any Payment Programs (including pursuant to any Provider Agreementstherein);; and
(h) any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from the operation of the Business prior all liabilities with respect to the Closing Date orExcluded Assets. The Excluded Liabilities are, for and shall at all times remain, the avoidance liabilities of doubtSeller, from Parent and the operation Seller Affiliates. Seller and Parent hereby covenant to discharge in full in a timely manner all of the Excluded Business at any point in time;
(i) any Liability arising out of or relating to or any Payment Program or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(j) any Liability relating to or arising from a Security Incident occurring prior to the Closing Date;
(k) any Liability relating to or arising from the Excluded Assets or the Excluded Business;
(l) any Liability arising under any employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;
(m) any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or prior to the Closing Date and relating to the Business, the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;
(o) any Liability of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed LiabilityLiabilities.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything to the contrary contained herein, other than Except for the Assumed LiabilitiesLiabilities but without otherwise limiting the terms of Section 2.3, the Seller Parties shall Buyer will not assume or become liable for and will not be responsible for all of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreement, and Buyer shall not assume, obligated to pay or in any way be liable or responsible for, satisfy any Liabilities of Seller whatsoever, contingent or otherwise, including the Seller Parties following (the “Excluded Liabilities”). Without limiting the generality of the foregoing, Buyer shall not assume the following:):
(a) any Liability all Liabilities of Seller whether or not related to pay any Taxes of the Seller Parties or any of their Affiliates, regardless of whether arising in connection with the consummation of the transactions contemplated hereby or otherwisePurchased Assets;
(b) all accounts payable of Seller in respect of any Liability of services performed for or products purchased by Seller prior to the Seller Parties or their Affiliates for performance under this Agreement or any of the Ancillary AgreementsClosing Date;
(c) any Liability under any Assigned Contract all Liabilities of Seller for fees and expenses incurred or any Transferring Real Property Lease arising out of facts, circumstances or occurrences existing prior to in connection with this Agreement and the Closing Date or relating to any breach, violation or failure to perform that occurred prior to Ancillary Agreements and the Closing Date (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead apply)transactions contemplated hereby and thereby;
(d) except as provided for in Section 8.1, all Liabilities for Taxes of Seller for any Liability under taxable period (or portion thereof) prior to the Closing Date, including any Real Property Lease that is not Taxes arising as a Transferring Real Property Leaseresult of Seller’s operation of its business related to the Purchased Assets or Seller’s ownership of the Purchased Assets prior to the Closing Date;
(e) any Liability all Claims arising out of, relating to any Debt or otherwise in respect of: (i) the ownership of the Seller Parties Purchased Assets and the operation of Seller’s business related to the Purchased Assets to the extent any such Claim relates to such ownership or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following operation prior to the Closing Date); or (ii) any Excluded Asset;
(f) any Liability for any accounts payable all Liabilities that constitute product liabilities or other accruals recall liabilities arising from the Purchased Assets or operation of Seller’s business related to the Business arising Purchased Assets prior to the Closing Date;
(g) any Liability Liabilities arising out of or in connection with (i) any product or service warranties or guarantees given by Seller in connection with or (ii) Claims for injuries, property damage or losses that involve, in each case, any product sold, delivered or otherwise disposed of, or any service performed or delivered, by Seller prior to the Seller Parties’ Closing Date, or their Affiliates’ obligations under or agreements with any Payment Programs (including pursuant respect to any Provider Agreements)products that are Excluded Assets, at any time;
(h) any Liability for laboratory testing performance or resultsLiabilities of Seller arising from any breach, any laboratory or medical malpractice claims or any violation or non-compliance late performance by Seller of the terms and provisions of any Health Care Law arising from the operation Contract, including with respect to delayed delivery, shortages of the Business prior Products, and any fines and/or charges related to the Closing Date or, for the avoidance delivery of doubt, from the operation of the Excluded Business at any point in timeProducts;
(i) any Liability Liabilities arising out of from or relating to a breach or any Payment Program or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business violation prior to the Closing Date or, for by Seller of any Law applicable to the avoidance ownership or use of doubt, from the Purchased Assets by Seller or to the operation of Seller’s business related to the Excluded Business at any point in timePurchased Asset;
(j) any Liability brokers’ or finders’ fees or similar fees or expenses relating to this Agreement or arising from a Security Incident occurring prior to any of the Closing Datetransactions contemplated hereby;
(k) any Liability relating to or arising from the Excluded Assets or the Excluded Business;
(l) any Liability arising under any employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;
(m) any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or prior to the Closing Date and relating to the Business, the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;
(o) any Liability of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or Contracts entered into by Seller prior to the defenseClosing Date not specifically assumed by Buyer herein, settlement or other disposition including the Excluded Contracts;
(l) except as otherwise expressly provided in this Agreement, any Liabilities of any Action occurring prior Affiliates of Seller (whether or not similar to any of the Closing Datecategories of Liabilities of Seller described above); orand
(rm) any other Liability all liabilities otherwise excluded under the terms of the Seller Parties or their Affiliates that is not specifically included as an Assumed Liabilitythis Agreement.
Appears in 1 contract
Samples: Asset Purchase Agreement (Scott's Liquid Gold - Inc.)
Excluded Liabilities. Notwithstanding anything Buyer shall not assume or be obligated to the contrary contained hereinpay, other than the Assumed Liabilitiesperform or otherwise discharge any liability or obligation of any Seller, the Seller Parties shall be responsible for all of the Seller Parties’ respective Liabilities direct or indirect, known or unknown, absolute or contingent, not expressly assumed by Buyer under pursuant to the Instrument of Assumption (all such liabilities and obligations not being assumed being herein called the "Excluded Liabilities") and, notwithstanding anything to the contrary in SECTION 2.3, none of the following shall be Assumed Liabilities for purposes of this Agreement, and Buyer shall not assume, or in any way be liable or responsible for, any Liabilities of the Seller Parties (the “Excluded Liabilities”). Without limiting the generality of the foregoing, Buyer shall not assume the following:
(a) any Liability liabilities in respect of Taxes for which any Seller is liable pursuant to pay any Taxes of the Seller Parties or any of their Affiliates, regardless of whether arising in connection with the consummation of the transactions contemplated hereby or otherwiseSECTION 8.3;
(b) any Liability payables and other liabilities or obligations of the Divisions to any Seller Parties or their Affiliates for performance under this Agreement or any of the Ancillary Agreementstheir respective Affiliates;
(c) any Liability under costs and expenses incurred by any Assigned Contract Seller incident to its negotiation and preparation of this Agreement and its performance and compliance with the agreements and conditions contained herein;
(d) any liabilities or obligations in respect of any Transferring Real Excluded Assets;
(e) any liabilities in respect of the lawsuits, claims, suits, proceedings or investigations set forth in SCHEDULE 5.22;
(f) accrued liabilities of any kind, including accrued payroll, accrued expenses and accrued sales tax liabilities;
(g) any liabilities and obligations related to, or arising from (i) the occupancy, operation, use or control of any of the Business Property Lease arising out of facts, circumstances or occurrences existing prior to the Closing Date or relating to any breach, violation or failure to perform that occurred prior to the Closing Date (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(gii) shall instead apply);
(d) any Liability under any Real Property Lease that is not a Transferring Real Property Lease;
(e) any Liability relating to any Debt of the Seller Parties or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing Date);
(f) any Liability for any accounts payable or other accruals related to the Business arising prior to the Closing Date;
(g) any Liability arising out of the Seller Parties’ or their Affiliates’ obligations under or agreements with any Payment Programs (including pursuant to any Provider Agreements);
(h) any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from the operation of the Business prior to the Closing Date orDate, for in each case incurred or imposed by any Environmental Law, including liabilities and obligations related to, or arising from, any Release of any Contaminant on, at or from (A) the avoidance of doubtBusiness Property, from the operation of the Excluded Business at any point in time;
(i) any Liability arising out of including all facilities, improvements, structures and equipment thereon, surface water thereon or relating to adjacent thereto and soil or groundwater thereunder, or any Payment Program conditions whatsoever on, under or any other payor (including Medicare or Medicaid)in the vicinity of such real property, making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business each case prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
or (jB) any Liability relating real property or facility owned by a third Person to or arising from a Security Incident occurring which Contaminants generated by the Business were sent prior to the Closing Date;
(h) any product liability or claims for injury to person or property, regardless of when made or asserted, relating to products distributed or sold by either Division or services performed by any Seller prior to the Closing Date;
(i) obligations and liabilities relating to the Xxxxxx'x relationship;
(j) the systems contracts, agreements or commitments (other than those related exclusively or primarily to the Chicago Division);
(k) fees or commissions of any Liability relating to broker, finder, financial advisor or arising from the Excluded Assets or the Excluded Businessintermediary, including Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation;
(l) other than as set forth in SECTION 2.3(D) and (E), employee severance, stay bonuses and other employee obligations and liabilities to any Liability arising under any employee compensation current or employee benefit plan adopted by the Seller Parties or their Affiliates including any former employees of the Seller Parent Benefit PlansBusiness;
(m) current payables of any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreementkind;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or prior to the Closing Date obligations and liabilities relating to the Business, the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;Ogilvy relationship; and
(o) any Liability of the Seller Parties or their Affiliates arising from or obligations and liabilities relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively trucks used in the name of Seller Parent;
(q) all Liabilities related to Maryland Division, including any Action equipment located therein or the defense, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed Liabilityaffixed thereto.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything any other provision of this Agreement to the contrary contained hereincontrary, other than the Assumed Liabilities, the Seller Parties shall be responsible for all of the Seller Parties’ respective Liabilities Buyer is not expressly assumed by Buyer under this Agreementassuming or agreeing to pay or discharge, and Buyer shall not assume, or in any way be liable or responsible for, any Liabilities of the Seller Parties (the “Excluded Liabilities”). Without limiting the generality of the foregoing, Buyer shall not assume the following:
(a) any Liability to pay any Taxes of the Seller Parties Sellers or any of their Affiliates, regardless other than the Assumed Liabilities, and Sellers and their respective Affiliates shall be solely and exclusively liable for each of whether such Sellers’ and their respective Affiliates’ Liabilities, other than the Assumed Liabilities, including, but not limited to, the following Liabilities of Sellers (collectively, the “Excluded Liabilities”):
(i) all Liabilities not expressly described as an Assumed Liability in Section 2.02(e)(i), Section 2.02(e)(ii), Section 2.02(e)(iii), Section 2.02(e)(iv) and Section 2.02(e)(v), as applicable, including those Liabilities set forth on Schedule 2.02(f)(i);
(ii) all Liabilities arising out of or relating to (A) the records and reports prepared or received by any Seller or any of its Affiliates in connection with the sale of the Business or the Transactions or any Transaction Agreement, including all analyses relating to Buyer or any other third-party bidder so prepared or received, (B) subject to Section 2.02(a)(i)(C), all bids and expressions of interest received from any Person with respect to the Business or the equity of any one or more of such Sellers, and (C) the Transaction Agreements or the Transactions, whether incurred prior to, at or subsequent to the Closing Date;
(iii) all Liabilities arising out of or relating to any Sellers’ consideration, pursuit, or entry into, of any alternative transaction to the Transactions;
(iv) all Liabilities arising out of or relating to any non-disclosure or confidentiality, non-disparagement, non-compete or non-solicitation agreements with any Person;
(v) all Debt (including any Debt owed by a Seller under any intercompany loan arrangements or promissory notes or any Debt of a Seller which is guaranteed by any Affiliate) or any Liability of a Seller arising out of any off-balance sheet liability;
(vi) all Liabilities arising out of or relating to any Excluded Asset or the Retained Businesses, including in connection with the ownership and operation of the Excluded Assets and the conduct of the Retained Businesses, or of any other business or operations of Sellers or their respective Affiliates;
(vii) all Liabilities arising out of or relating to Taxes, other than those assumed by Buyer pursuant to Section 9.02 or Section 9.03;
(viii) all Liabilities arising out of or relating to (i) any Multiemployer Plan, including any claim for Withdrawal Liability, pre-Closing funding obligation, and penalties assessed by a Government Authority, (ii) any Other Plan, other than the Assumed Employee Plans, in the case of (i) and (ii), whether arising prior to, on or after the Closing Date, and (iii) any Assumed Employee Plans arising prior to the Closing Date, except that any Liability for benefit claims incurred by participants or beneficiaries with respect to an Assumed Employee Plan prior to the Closing Date is expressly assumed;
(ix) all Liabilities arising out of or relating to the work conditions, employment, engagement, compensation, benefits (except as otherwise expressly assumed), or termination thereof (including, for the avoidance of doubt, any such Liabilities that arise as a result of the consummation of the transactions contemplated hereby Transactions) associated with any (i) Seller Employee who becomes a Transferred Employee arising on or otherwiseprior to the Closing Date, and (ii) Seller Employee who is a service provider or who does not become a Transferred Employee for any reason or no reason, whether arising prior to, on or after, the Closing Date;
(bx) any Liability of the Seller Parties or their Affiliates for performance under this Agreement or any of the Ancillary Agreements;
(c) any Liability under any Assigned Contract or any Transferring Real Property Lease all Liabilities arising out of facts, circumstances or occurrences existing relating to indemnification and other obligations under Contracts (x) arising out of or relating to the period prior to the Closing Date or (y) relating to prior equity or asset purchases or sales of, or mergers with, any breachother Person, violation or failure to perform that occurred prior to the Closing Date (other than Liabilities including those set forth in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead applySchedule 2.02(f)(x);
(dxi) any Liability under any Real Property Lease that is not a Transferring Real Property Leaseall Liabilities arising out of or relating to guarantees in favor of sureties in respect of the Retained Businesses;
(exii) all Liabilities arising out of or relating to guarantees of or by Parent or any of its Affiliates of or for any obligations or Liabilities of any Seller or the Business;
(xiii) all Liabilities arising out of or relating to fees, charges, expenditures, expenses, costs and other payments incurred or otherwise payable by any of the Sellers or their respective Affiliates, or for which any of the Sellers or their respective Affiliates is liable, in connection with the administration of the Bankruptcy Cases or the negotiation, execution, and consummation of the Transactions or alternative transaction or any document relating thereto, including the fees and expenses of financial advisors, accountants, legal counsel, consultants, brokers, and other advisors with respect thereto, whether incurred, accrued, or payable on, prior to, or after the date of this Agreement or the Closing Date;
(xiv) all Liabilities arising out of or relating to (A) any Liability violation of Law or any Order, (B) Actions, and (C) facts, circumstances or events that existed or occurred before the Closing;
(xv) all Liabilities arising out of or relating to the Excluded Assets;
(xvi) all Liabilities arising out of or relating to any Debt violation of the Seller Parties or their Affiliates (other thanobligation under Environmental Law with respect to acts, for the elimination of doubt, any trade payables omissions or other obligations arising under Assigned Contracts conditions occurring on or following the Closing Date);
(f) any Liability for any accounts payable or other accruals related prior to the Business arising Closing, including any Releases of Hazardous Materials at, on, to, or from the Transferred Assets that occurred on or prior to the Closing Date;
(gxvii) any Liability all Liabilities arising out of or relating to pre-petition trade accounts payable, other than Cure Costs to the Seller Parties’ or their Affiliates’ obligations under or agreements with any Payment Programs (including extent expressly assumed by Buyer pursuant to any Provider AgreementsSection 2.02(e)(i)(C), Section 2.02(e)(ii), Section 2.02(e)(iii) and Section 2.02(e)(v)(B);
(hxviii) any Liability for laboratory testing performance all Liabilities under Sections 365 or results, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from the operation 502(g) of the Business prior Bankruptcy Code relating to any Seller’s rejection of a Contract or Lease in the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in timeBankruptcy Cases;
(ixix) any Liability all Liabilities arising out of or relating to or incurred by either any Payment Program of the Sellers’ respective directors, officers, managers, stockholders or any other payor equity holders, members, partners, agents or employees (including Medicare acting in such capacities);
(xx) all Liabilities arising out of or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action and all accounts payable owed by any Seller to any other Seller or inaction any Affiliate of a Seller (including accounts payable arising under any intercompany loan arrangements or promissory notes and vendor trade payables);
(xxi) all Liabilities arising out of or relating to any Lien (except Permitted Liens) (including with respect to the Seller Parties Business and/or the Transferred Assets, to the extent arising out of or their Affiliates in connection with relating to the existence, use or operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(j) any Liability relating to or arising from a Security Incident occurring prior to the Closing Date;
(k) any Liability relating to or arising from the Excluded Assets or the Excluded Business;
(l) any Liability arising under any employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;
(m) any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring Transferred Assets on or prior to the Closing Date and relating to the Business, the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their AffiliatesClosing);
(oxxii) any Liability all Liabilities arising out of the Seller Parties or their Affiliates arising from or relating to violation obligations to indemnify, reimburse or advance amounts, or any Liabilities arising out of the Intellectual Property rights or relating to claims for indemnification of any Personpresent or former officer, director, employee, partner, member, Representative or agent of any of any Seller (or any of its Affiliates) (including with respect to any breach of fiduciary obligations by same), whether arising under organizational documents or Contract;
(pxxiii) all Liabilities arising out of or relating to any Lease of any Seller other than Liabilities to the extent first arising on or after Closing under the Transferred Leases;
(xxiv) all Liabilities arising out of, relating to or with respect to the Collective Bargaining Agreements or other Contracts with Unions;
(xxv) all pension Liabilities;
(xxvi) all employee Liabilities;
(xxvii) any Liability Liabilities arising out of, related to, to or in connection with, with respect to the employment or termination of or the compensation and benefits provided to any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parentemployee;
(qxxviii) all Transaction Expenses; and
(xxix) all other Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) any kind, whether known or unknown, contingent, matured, or otherwise, whether currently existing or hereinafter created, other than an Assumed Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed Liabilitysuch Seller.
Appears in 1 contract
Samples: Asset Purchase Agreement (Williams Industrial Services Group Inc.)
Excluded Liabilities. Notwithstanding anything any provision in this Agreement or any other writing to the contrary contained herein(including in particular Section 2.3), other than except for the Assumed Liabilities, the Seller Parties shall be responsible for all of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreement, and Buyer shall not assume, or in any way assume and shall not be liable or responsible forto pay, perform or otherwise discharge any Liabilities Liability of the Seller Parties or any of its Affiliates (collectively, the “Excluded Liabilities”), all of which Excluded Liabilities shall be retained by and remain Liabilities of Seller and/or its Affiliates. Without limiting the generality of the foregoing, Buyer the Excluded Liabilities shall not assume include the following:
(a) any Liability to pay any Taxes of the Seller Parties or any of their Affiliates, regardless of whether arising in connection with the consummation of the transactions contemplated hereby or otherwise;
(b) any Liability of the Seller Parties or their Affiliates for performance under this Agreement or any of the Ancillary Agreements;
(c) any Liability under any Assigned Contract or any Transferring Real Property Lease arising out of facts, circumstances or occurrences existing prior to the Closing Date or relating to any breach, violation or failure to perform that occurred prior to the Closing Date (other than all Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead apply);
(d) any Liability under any Real Property Lease that is not a Transferring Real Property Lease;
(e) any Liability relating to any Debt of the Seller Parties or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing Date);
(f) any Liability for any accounts payable or other accruals related to the Business arising prior to the Closing Date;
(g) any Liability arising out of the Seller Parties’ or their Affiliates’ obligations under or agreements with any Payment Programs (including pursuant to any Provider Agreements);
(h) any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(i) any Liability arising out of or relating to any Excluded Asset;
(b) all Liabilities arising out of or relating to the ownership, operation or conduct by Seller of any business other than the Business (including the Existing Employee Benefits Business);
(c) all Liabilities of Seller, Parent and their Affiliates under this Agreement and the other Transaction Documents;
(d) all Liabilities of Seller for Accounts Payable that are not included in the calculation of Closing Net Working Capital;
(e) all Indebtedness of Seller or any Payment Program of its Affiliates;
(f) all Liabilities arising out of or relating to employee benefits or employee benefit or compensation plans, programs, agreements or arrangements maintained or contributed to (or formerly maintained or contributed to) by Seller or any of its current or former ERISA Affiliates, including without limitation (i) all Liabilities arising under the Employee Benefit Plans, (ii) all Liabilities with respect to compensation, commissions, vacation, sick pay or paid time off and other payor (including Medicare employee benefits of any nature owed to any current or Medicaid)former employees, making any claims agents or any offsets, withholding funds from Buyer, independent contractors of Seller that are payable with respect to services performed by such individuals prior to or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due and (iii) all other Liabilities for which Seller is expressly responsible pursuant to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating Section 7.7;
(g) all severance and related obligations (including the obligation to any action or inaction provide “continuation coverage” as provided by Part 6 of Title I of ERISA and Section 4980B of the Seller Parties or their Affiliates Code) arising in connection with the operation termination of any Business Employee whose employment is terminated prior to or on the Closing Date and all other Liabilities for any severance pay or benefits pursuant to any Employee Benefit Plan or applicable Law for any Business Employees (and their covered dependents) who do not become Transferred Employees;
(h) all Liabilities arising out of or relating to any claims by any current or former employees, agents or independent contractors of Seller with respect to any personal injuries, including workers’ compensation or disability, arising on or prior to the Closing Date orDate, regardless of when any such claim is made or asserted, and sustained in connection with the employment or retention of such Person by Seller;
(i) all Excluded Taxes and all other Taxes and amounts for the avoidance of doubt, from the operation of the Excluded Business at any point in timewhich Seller is expressly responsible pursuant to Section 7.8;
(j) all Liabilities of Seller or any Liability of its Affiliates arising out of or relating to the Assigned Contracts to the extent such Liabilities, but for a breach or arising from a Security Incident occurring default by Seller or any of its Affiliates, would have been paid, performed or otherwise discharged in accordance with their terms prior to or on the Closing Date;
(k) any Liability all Liabilities arising out of or relating to or arising from the Excluded Assets or the Excluded BusinessContracts;
(l) any Liability all Liabilities arising under or imposed by any employee compensation Environmental Laws to the extent arising out of or employee benefit plan adopted by relating to the operation or conduct of the Business or any other activity of Seller Parties or their Affiliates including any of its Affiliates prior to or on the Seller Parent Benefit PlansClosing Date;
(m) all Liabilities arising out of or relating to any Liability Action of a third party or Governmental Authority (i) pending on the Closing Date (including any Actions required to be set forth in Section 4.12 of the Disclosure Schedule) or (ii) initiated after the Closing Date arising out of or relating to, arising from to the ownership or in connection with Business Employees or former employees operation of the Business during all time periods prior to and through or on the Closing, Closing Date (including any severanceclaims in the nature of an “errors and omissions” claim arising out of or relating to events or conditions occurring prior to or on the Closing Date, change in control regardless of when any such claim is made or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreementasserted);
(n) any Liability arising under Environmental Laws obligation of Seller or with respect any of its Affiliates to Hazardous Substances arising from factsindemnify any Person by reason of the fact that such Person is or was a director, circumstances officer, employee or conditionsagent of Seller or is or was serving at the request of Seller as a partner, existingtrustee, initiated director, officer, employee or occurring on or prior agent of another entity (whether such indemnification is pursuant to the Closing Date and relating to the Businessany applicable Law, the Purchased Assets Organizational Documents or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;otherwise); and
(o) any Liability of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or Liabilities set forth in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed LiabilitySchedule 2.4(o).
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything any provision of the Transaction Documents to the contrary contained hereincontrary, other than the Buyer will not accept, acquire, assume or become liable to pay, perform or discharge, and the Assumed LiabilitiesLiabilities will not include, the Seller Parties shall be responsible for all of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreement, and Buyer shall not assume, or in any way be liable or responsible for, any Liabilities of the Seller Parties following liabilities (the “Excluded Liabilities”). Without limiting the generality of the foregoing, Buyer shall not assume the following:):
(ai) any Liability to pay any all Liabilities for Taxes of the Seller Parties or any of their Affiliates, regardless of whether arising in connection with the consummation of the transactions contemplated hereby or otherwise(other than as set forth in);
(bii) any Liability all Liabilities of the Seller Parties or their Affiliates for performance under this Agreement or any of the Ancillary AgreementsEnvironmental Laws;
(ciii) all Liabilities of Seller and the ERISA Affiliates arising under, or with respect to, the Employee Plans;
(iv) all Liabilities with respect to any Liability under current or former employee, director, member, manager, equity holder, partner, agent or independent contractor of Seller, and all Liabilities related to any Assigned Contract actions or lawsuits brought by Seller’s equity holders;
(v) all Liabilities arising out of, or relating to, any conduct or alleged conduct of any employee or independent contractor of Seller;
(vi) all Liabilities of Seller to Seller’s members or any Transferring Real Property Lease Affiliate of any of Seller’s members;
(vii) all Liabilities arising out of, or relating to, any Proceeding pending as of facts, circumstances or occurrences existing prior to the Closing Date or relating to any breach, violation or failure to perform that occurred prior to Proceeding commenced after the Closing Date (other than Liabilities in respect of accounts payable to the extent arising out of, or other accruals, for which Section 1.4(g) shall instead apply);
(d) any Liability under any Real Property Lease that is not a Transferring Real Property Lease;
(e) any Liability relating to any Debt of the Seller Parties or their Affiliates (other than, for the elimination of doubtto, any trade payables act or other obligations arising under Assigned Contracts omission of Seller or any event, circumstance, condition, breach or default occurring on or following the Closing Date);
(f) any Liability for any accounts payable or other accruals related to the Business arising prior to the Closing Date;
(gviii) any Liability all Liabilities arising out of the Seller Parties’ of, or their Affiliates’ obligations under resulting from, Seller’s compliance or agreements noncompliance with any Payment Programs (including pursuant to any Provider Agreements);
(h) any Liability for laboratory testing performance Legal Requirement or results, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(i) any Liability arising out of or relating to or any Payment Program or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered Order occurring on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(j) any Liability relating to or arising from a Security Incident occurring prior to the Closing Date;
(kix) any Liability all Liabilities relating to, or resulting from, Seller IP to the extent arising on or prior to the Closing Date;
(x) all Liabilities based upon Seller’s acts or omissions occurring after the Closing Date (other than those relating to or the Buyer’s ownership of the Purchased Assets);
(xi) all Liabilities arising out of the claims and assertions made in that certain demand letter to the Seller from The Bxxxxxx Law Firm dated March 21, 2017 (the “Demand Letter”), as well as any further actions related thereto; and
(xii) all Liabilities arising from the Excluded Assets failure to send any notices, make any filings or the Excluded Business;
obtain any Consents (lother than any Consents with respect to Contracts as set forth in Section 1.3) any Liability arising under any employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;
(m) any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or prior to the Closing Date and relating to the Business, the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;
(o) any Liability of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed Liability.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything contained herein to the contrary contained hereincontrary, other than the Assumed Liabilities, the Seller Parties shall be responsible for all of the Seller Parties’ respective Liabilities not except as expressly assumed by Buyer under this Agreement, and Buyer shall not assume, or set forth in any way be liable or responsible for, any Liabilities of the Seller Parties (the “Excluded Liabilities”). Without limiting the generality of the foregoingSection 1.4 hereof, Buyer shall not assume or in any way become liable for any of the followingdebts, liabilities or obligations of any nature whatsoever of any Seller or any predecessor thereof, whether presently existing or arising hereafter, whether accrued, absolute or contingent, whether known or unknown, whether disclosed on the Schedules hereto or otherwise or undisclosed, whether due or to become due and whether related to the Acquired Assets or otherwise, and regardless of when or by whom incurred, including, without limitation:
(a) any Liability liabilities of Sellers incurred or arising or relating to pay actions, conditions or events occurring prior to the Petition Date;
(b) any Taxes liabilities of Sellers incurred outside the ordinary course of business of Sellers;
(c) any liabilities of Sellers which relate to the Chapter 11 Case or any professional fees or expenses (including, without limitation, consultants , attorneys , accountants and other agents fees and expenses associated therewith);
(d) any liabilities of Sellers which are not specifically listed on Schedule 1-D, Schedule 1-E or Schedule 1- F;
(e) any liabilities of Sellers of the Seller Parties kinds specified in subsection (a), subsection (b) and subsection (c) of Section 1.4 to the extent the aggregate of such liabilities exceeds the Maximum Assumed Payables;
(f) any liabilities of Sellers for expenses, Taxes or fees incident to or arising out of the negotiation, preparation, approval or authorization of this Agreement or the consummation (or preparation for the consummation) of the transactions contemplated hereby (including, without limitation, all attorneys and accountants fees, brokerage fees and sales, use and transfer taxes);
(g) any liabilities of Sellers for indebtedness for borrowed money, indebtedness secured by Liens on its assets or guarantees of any of their Affiliatesthe foregoing;
(h) any liabilities of Sellers for Taxes for any period;
(i) any liabilities or obligations for Taxes arising from or with respect to the Acquired Assets which is incurred in, regardless of whether arising attributable to, or assessed in any period or portion thereof prior to or in connection with the Closing (including property taxes and sales, occupation, use or transfer taxes that may be incurred in connection with the consummation of the transactions contemplated hereby or otherwisehereby);
(bj) any Liability liabilities of the Seller Parties Sellers (i) arising by reason of any violation or their Affiliates for performance under this Agreement alleged violation of any federal, state, local or foreign law or any requirement of the Ancillary Agreements;
any Government Authority, (cii) any Liability arising under any Assigned Contract or any Transferring Real Property Lease arising out of facts, circumstances or occurrences existing prior to the Closing Date or relating to any breachEnvironmental, violation Health and Safety Laws, or failure to perform that occurred prior to the Closing Date (other than Liabilities in respect iii) arising by reason of accounts payable any breach or other accrualsalleged breach by any Seller of any agreement, for which Section 1.4(g) shall instead applycontract, lease, license, commitment, instrument, judgment, order or decree (regardless of when any such liability or obligation is asserted or liquidated);
(dk) any Liability under any Real Property Lease that is not a Transferring Real Property Lease;
(e) any Liability liabilities of Sellers arising by reason of or relating to any Debt legal action or proceeding arising out of or in connection with the Seller Parties Acquired Assets or their Affiliates any conduct of Sellers or Sellers officers, directors, employees, consultants, agents, advisors, shareholders or lenders, as of or prior to the Closing, relating to the Acquired Assets (other thanincluding, for the elimination of doubtwithout limitation, any trade payables liabilities or other obligations for any claims (whenever made) or proceedings arising under Assigned Contracts out of, relating to, resulting from or caused by any products manufactured, serviced, distributed or sold by Sellers at any time on or following prior to the Closing Date);
(fl) any Liability liabilities of Sellers which Buyer may or could become liable for any accounts payable or other accruals related to the Business arising prior to the Closing Date;
(g) any Liability arising out of the Seller Parties’ or their Affiliates’ obligations under or agreements with any Payment Programs (including pursuant to any Provider Agreements);
(h) any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(i) any Liability arising out as a result of or relating to or any Payment Program or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business prior failure by Buyer or Sellers to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at comply with any point in time;
(j) any Liability relating to applicable bulk sales or arising from a Security Incident occurring prior to the Closing Date;
(k) any Liability relating to or arising from the Excluded Assets or the Excluded Business;
(l) any Liability arising under any employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Planstransfers laws;
(m) any Liability liabilities of Sellers, whether known or unknown, and whether accrued, absolute, contingent or otherwise, relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination dismissal and/or WARN pay with respect to any employee of employment with any Seller Parties in connection with the transactions contemplated by this AgreementSeller;
(n) except as may be expressly set forth in Schedule 1-E, any Liability arising under Environmental Laws liabilities of Sellers for salaries, bonuses (including, without limitation, retention bonuses) or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or prior to the Closing Date and relating to the Business, the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliatesother compensation;
(o) any Liability of Sellers liabilities or obligations for workers compensation claims, health care claims or similar claims, subject to the Seller Parties or their Affiliates arising from or relating to violation penultimate sentence of the Intellectual Property rights of any Person;Section 1.6; and
(p) any Liability liability or obligation of any Seller, whether known or unknown, and whether accrued, absolute, contingent or otherwise, and not expressly assumed by Buyer under Section 1.4 (including, without limitation, any liabilities or obligations arising out of, related to, of transactions entered into at or in connection withprior to the Closing, any litigation brought by any stockholder of Seller Parent action or derivatively in the name of Seller Parent;
(q) all Liabilities related inaction at or prior to any Action or the defense, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) or any other Liability state of facts existing at or prior to the Closing, regardless of when asserted). All of the foregoing are collectively referred to herein as the "Excluded Liabilities." Each Seller Parties or their Affiliates hereby acknowledges that it is not specifically included as an Assumed Liabilityretaining its Excluded Liabilities.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything to the contrary contained herein, other than the Assumed Liabilities, the Purchaser and Seller Parties shall be responsible for all of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreement, and Buyer agree that -------------------- Purchaser shall not assumeassume any liabilities (contingent or otherwise), debts, contracts, commitments or in other obligations of Seller of any way be liable or responsible for, any Liabilities of the Seller Parties (the “Excluded Liabilities”)nature whatsoever except as assumed hereunder. Without limiting the generality limitation of the foregoing, Buyer Purchaser shall not assume and shall not be liable for, any liability, commitment or expense of Seller as a result of or arising from any of the following:following (the "Excluded Liabilities"): ----------------------
(a) any Liability to pay any obligation for Taxes arising from the use or ownership of the Seller Parties Assets, or any of their Affiliates, regardless of whether arising in connection with the consummation operation of the transactions contemplated hereby Business, for any periods up to and including the Closing Date or otherwisearising out of the sale by Seller of the Assets pursuant hereto;
(b) any Liability out-of-pocket expenses of Seller incurred in connection with the sale of the Seller Parties or their Affiliates for performance under this Agreement or any of the Ancillary AgreementsAssets pursuant hereto;
(c) any Liability under any Assigned Contract liabilities or any Transferring Real Property Lease arising out obligations of facts, circumstances or occurrences existing prior Seller relating to the Closing Date or relating to any breach, violation or failure to perform that occurred prior to the Closing Date (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead apply)Retained Assets;
(d) any Liability under any Real Property Lease that is not a Transferring Real Property Lease;
(e) any Liability obligations or liabilities of Seller relating to any Debt the conduct of the Seller Parties Business or their Affiliates the ownership of the Assets (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing Date);
(f) any Liability for including any accounts payable or other accruals related to the Business Business) arising on or prior to the Closing Date;
(g) any Liability arising out of the Seller Parties’ or their Affiliates’ obligations under or agreements with any Payment Programs (including pursuant to any Provider Agreements);
(h) any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(i) any Liability arising out of or relating to or any Payment Program or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(j) any Liability relating to or arising from a Security Incident occurring prior to the Closing Date;
(k) any Liability relating to or arising from the Excluded Assets or the Excluded Business;
(l) any Liability arising under any employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;
(m) any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances liabilities arising from factsany violation of any applicable law, circumstances rule or conditions, existing, initiated regulation or occurring from any property damage or personal injury arising on or prior to the Closing Date and relating to the Business(including, the Purchased Assets or without limitation, any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;
(o) any Liability of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or liabilities in connection with, or arising out of or resulting from (i) any litigation brought by any stockholder of Seller Parent Business Employee arising on or derivatively in the name of Seller Parent;
(q) all Liabilities related prior to any Action or the defense, settlement or other disposition of any Action occurring prior the Closing Date, (ii) any Employee Benefit Plans or (iii) withdrawal liability under any Multiemployer Plans of Seller); orand
(re) any liabilities relating to the failure to comply with the bulk sales law and any other Liability of similar law in any applicable jurisdiction in respect to the Seller Parties or their Affiliates that is not specifically included as an Assumed Liabilitytransactions contemplated by this Agreement.
Appears in 1 contract
Samples: Acquisition Agreement (Interep National Radio Sales Inc)
Excluded Liabilities. Notwithstanding anything The Buyer expressly does not, and shall not, assume or be deemed to the contrary contained hereinassume, other than the Assumed Liabilitiesany liabilities, the Seller Parties shall be responsible for all obligations or commitments of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreementor any of its Affiliates of any nature whatsoever, and Buyer shall not assumewhether known or unknown, contingent or in any way be liable or responsible forotherwise (collectively, any Liabilities of the Seller Parties (the “Excluded Liabilities”)) that are not expressly set forth in clause (a) of this Section 2.2. Without limiting the generality of the foregoing, the Buyer shall not assume or be liable for, and the followingAssumed Liabilities shall in no event include, any liability, obligation or responsibility of the Seller or any of its Affiliates arising out of or relating to:
(ai) (A) any Liability to pay any Taxes liability of the Seller Parties or any of their Affiliates, regardless of whether arising in connection its Affiliates (1) with the consummation of the transactions contemplated hereby respect to any Income Tax or otherwise;
(b2) any Liability of the Seller Parties Tax with respect to assets that are not Purchased Assets or their Affiliates for performance under this Agreement or any of the Ancillary Agreements;
(cB) any Liability under any Assigned Contract or any Transferring Real Property Lease arising out of facts, circumstances or occurrences existing prior to the Closing Date or relating to any breach, violation or failure to perform that occurred prior to the Closing Date (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead apply);
(d) any Liability under any Real Property Lease that is not a Transferring Real Property Lease;
(e) any Liability relating to any Debt of the Seller Parties or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing Date);
(f) any Liability liability for any accounts payable or other accruals related Tax with respect to the Business arising or the Purchased Assets relating to periods (or portions thereof) ending on or prior to the Closing Date;
(gii) any Liability arising out of the Seller Parties’ or their Affiliates’ liabilities related to obligations under or agreements with any Payment Programs Employee Benefit Plan (including whether pursuant to any Provider Agreementsthe terms of such Employee Benefit Plan or ERISA), including, but not limited to, the Seller’s Defined Benefit Plan and the Seller’s Defined Contribution Plan;
(hiii) any Liability for laboratory testing performance liabilities and obligations relating to the employment, compensation, employee benefits or results, any laboratory or medical malpractice claims or any violation or non-compliance termination of employment of any Health Care Law of the (i) Business Employees and Union Employees who do not become Transferred Employees and (ii) Employees;
(iv) any liabilities or obligations relating to or arising from the acquisition, ownership or use of any Excluded Asset;
(v) the liabilities and obligations to make the continuation bonus payments pursuant to the agreements listed on Schedule 8.2(c)(ii).
(vi) any liabilities or obligations to any Person with respect to any Action relating to or arising from the ownership of the Purchased Assets or the operation of the Business prior to the Closing Date oror on the Closing, for the avoidance of doubtwhether or not such Action is pending, from the operation of the Excluded Business at any point in time;
(i) any Liability arising out of threatened or relating to or any Payment Program or any other payor (including Medicare or Medicaid)asserted before, making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing DateClosing, due except to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials the extent set forth in Sections 2.2(a)(i) or for any other reason relating 2.2(a)(vii); or
(vii) all liabilities and obligations to any action third parties arising out services provided or inaction of the Seller Parties products sold or their Affiliates in connection with the operation of repaired by the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(j) any Liability relating to or arising from a Security Incident occurring prior to the Closing Date;
(k) any Liability relating to or arising from the Excluded Assets or the Excluded Business;
(l) any Liability arising under any employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;
(m) any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or prior to the Closing Date and relating to the Business, the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;
(o) any Liability of the Seller Parties or their Affiliates arising from or relating to violation products that are included in Inventory and are sold by Buyer within 60 days of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed Liability.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything to Except as specifically set forth in Section 2.3 and elsewhere in the contrary contained hereinTransaction Documents, other than the Assumed Liabilities, the Seller Parties shall be responsible for all of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreement, and Buyer shall not assume, assume or in any way be liable or responsible for, any Liabilities and Seller shall remain responsible for, the following debts, claims, commitments, liabilities and obligations of Seller and the Seller Parties Business (the “"Excluded Liabilities”). Without limiting the generality of the foregoing, Buyer shall not assume the following:"):
(a) any Liability to pay any Taxes of the Seller Parties or any of their Affiliatesall Tax liabilities, regardless of whether arising in connection with the consummation of the transactions contemplated hereby or otherwise;
(b) any Liability of the Seller Parties or their Affiliates for performance under this Agreement or any of the Ancillary Agreements;
(c) any Liability under any Assigned Contract or any Transferring Real Property Lease arising out of factsincluding penalties and interest, circumstances or occurrences existing prior to the Closing Date or relating to any breach, violation or failure to perform that occurred prior to the Closing Date (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead apply);
(d) any Liability under any Real Property Lease that is not a Transferring Real Property Lease;
(e) any Liability relating to any Debt of the Seller Parties or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing Date);
(f) any Liability for any accounts payable or other accruals related to the Business arising periods prior to the Closing Date;
(gb) any Liability arising out of all indebtedness for borrowed money relating to the Seller Parties’ or their Affiliates’ obligations under or agreements with any Payment Programs (including pursuant to any Provider Agreements);
(h) any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from the operation conduct of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(i) any Liability arising out of or relating to or any Payment Program or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(j) any Liability relating to or arising from a Security Incident occurring all periods prior to the Closing Date;
(kc) Liabilities arising out of or relating to the Excluded Assets;
(d) any Liability Environmental Liabilities relating to or arising out of (1) the acts or omissions of Seller, (2) the acts or omissions of any person prior to the Closing Date related to Seller, the Business or the Transferred Assets, or (3) the use, handling, storage, treatment or disposal of any Hazardous Materials related to Seller, the Business or the Transferred Assets prior to the Closing Date;
(e) Inter-company receivables and payables arising between or among the Business and the balance of AAPC's business from the Excluded Assets conduct of the Business prior to the Closing Date;
(f) Liabilities and obligations under any Benefit Plans;
(g) all trade payables and obligations incurred prior to the Filing Date;
(h) all amounts owing to employees of Seller under the Key Employee Retention Program, as approved and described by the Bankruptcy Court Order in Orders dated June 11, 2001 and June 12, 2002 ;
(i) the Liabilities, if any, listed on Schedule 2.4(i);
(j) any Liabilities relating to pending or threatened litigation, warranty claims (other than those included in the Excluded BusinessAssumed Liabilities), or bankruptcy and any Liability of Seller for costs and expenses incurred in connection with the Contemplated Transactions, including, without limitation, any broker's or finder's commission, fee or similar compensation;
(k) any actual or alleged violation by Seller or any of its Affiliates of any Applicable Law;
(l) any Liability infringement or alleged infringement of the rights of any Person arising under any employee compensation or employee benefit plan adopted by out of the Seller Parties or their Affiliates including use of any of the Seller Parent Benefit PlansTransferred Intellectual Property in connection with the Business prior to the Effective Time;
(m) any Liability workers compensation claims relating to, arising from or in connection with Business Employees or former employees of to the Business during all time periods for any period prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this AgreementEffective Time;
(n) any Liability arising under Environmental Laws Liabilities or obligations with respect to Hazardous Substances arising from facts, circumstances any outstanding checks written or conditions, existing, initiated issued by Seller or occurring on or any of its Affiliates prior to the Closing Date and relating to the Business, the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;Date; and
(o) any Liability except for items specifically included in the Assumed Liabilities, all Liabilities of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights or arising out of any Person;
(p) any Liability arising out ofact, related to, event or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action omission occurring prior to the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed LiabilityEffective Time.
Appears in 1 contract
Samples: Asset Purchase Agreement (American Architectural Products Corp)
Excluded Liabilities. Notwithstanding anything any provision in this Agreement or any other writing to the contrary contained hereincontrary, other than Buyer is assuming only the Assumed Liabilities, the Seller Parties Liabilities and is not assuming and shall have no liability for any other liability or obligation of Sellers or any of their respective Affiliates (or any predecessor owner of all or part of their business and assets) of whatever nature whether presently in existence or arising or asserted hereafter. All such other liabilities and obligations shall be responsible for retained by and remain obligations and liabilities of Sellers or their respective Affiliates and Sellers shall duly and timely pay, perform and discharge all of such liabilities and obligations relating to the Seller Parties’ respective Liabilities Purchased Assets (all such liabilities and obligations not expressly being assumed by Buyer under this Agreement, and Buyer shall not assume, or in any way be liable or responsible for, any Liabilities of being herein referred to as the Seller Parties (the “Excluded Liabilities”"EXCLUDED LIABILITIES"). Without limiting the generality foregoing, none of the foregoing, Buyer following shall not assume be Assumed Liabilities for the followingpurposes of this Agreement:
(ai) any Liability to pay any Taxes of the Seller Parties obligation or any of their Affiliates, regardless of whether arising in connection with the consummation of the transactions contemplated hereby or otherwise;
(b) any Liability of the Seller Parties or their Affiliates liability for performance under this Agreement or any of the Ancillary Agreements;
(c) any Liability under any Assigned Contract or any Transferring Real Property Lease arising out of facts, circumstances or occurrences existing prior to the Closing Date or relating to any breach, violation or failure to perform that occurred prior to the Closing Date (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead apply);
(d) any Liability under any Real Property Lease that is not a Transferring Real Property Lease;
(e) any Liability relating to any Debt of the Seller Parties or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing Date);
(f) any Liability for any accounts payable or other accruals related to the Business arising prior to the Closing Date;
(g) any Liability arising out of the Seller Parties’ or their Affiliates’ obligations under or agreements with any Payment Programs (including pursuant to any Provider Agreements);
(h) any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law Tax arising from the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in timeDate;
(iii) any Liability obligation or liability of Sellers or any of their Affiliates arising out of or relating to the ownership or any Payment Program or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction operation of the Seller Parties Purchased Assets or their Affiliates in connection with the operation of the Business prior to the Closing Date or(including any predecessor operations), for the avoidance including any claims, obligations or litigation arising out of doubt, from the operation of the Excluded Business at any point in time;
(j) any Liability or relating to events or arising from a Security Incident conditions occurring prior to the Closing Date;
(kiii) any Liability relating liabilities or obligations under or with respect to or arising from any Employee Plans and Benefit Arrangements and liabilities incurred prior to September 1, 2002 for accrued payroll, accrued bonus and accrued vacation for the Excluded Assets or the Excluded BusinessTransferred Employees;
(liv) any Liability arising under any employee compensation liability or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plansobligation relating to an Excluded Asset;
(mv) any Liability relating to, arising from liabilities or in connection with Business Employees obligations for continued health care coverage for any employees or former employees of the Business during all time periods other qualified beneficiaries under Code Section 4980B ("COBRA") who have a qualifying COBRA event prior to and through the Closing, including Closing Date;
(vi) any severance, change in control liability or other payments triggered upon termination obligation of employment with any Seller Parties Sellers or either of their Affiliates arising or incurred in connection with the negotiation, preparation and execution of this Agreement and the transactions contemplated by this Agreementhereby, and related fees and expenses of counsel, accountants, brokers, finders and other experts;
(nvii) any Liability arising under Environmental Laws liability or with respect obligation of Sellers relating to Hazardous Substances arising from factsany current, circumstances former or conditionsretired employees, existing, initiated or occurring except for the liabilities and obligations relating to the Transferred Employees set forth on or SCHEDULE 2.04;
(viii) all pending litigation set forth on SCHEDULE 3.08 and any other pending litigation relating to the Business prior to the Closing Date and relating Date, or any claims, suits or actions arising on or after the Closing Date, but solely to the Businessextent that such litigation, claims, actions or suits relate to activities of either of the Purchased Assets Sellers or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliatesconduct of the Business prior to the Closing Date;
(oix) any Liability of the Seller Parties or their Affiliates arising from or liability relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior checks outstanding on the Closing Date; orand
(rx) all liabilities and obligations arising out of either Seller's failure to comply with any law, regulation, ordinance, order, writ, judgment, injunction, decree or other Liability requirement of any governmental body or court in connection with the Seller Parties or their Affiliates that is not specifically included as an Assumed LiabilityBusiness prior to the Closing Date.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything to the contrary contained herein, other than the Assumed Liabilities, the Seller Parties shall be responsible for all of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreement, and Buyer The Purchaser shall not assume, or in any way be liable or responsible forand the term “Assumed Liabilities” shall not include, any Liabilities of the Excluded Liabilities. The members of the Seller Group shall retain, and the Seller shall, as provided in Article VIII, indemnify and hold the Purchaser Indemnified Parties (harmless from, the Excluded Liabilities. The “Excluded Liabilities”). Without limiting the generality ” shall consist of the foregoing, Buyer shall not assume the following:
(ai) all Liabilities to the extent related to the Excluded Assets, including all Liabilities to the extent (A) relating to any Liability to pay business of any Taxes member of the Seller Parties Group other than the Business or (B) not relating to the Business or the Transferred Assets;
(ii) all Liabilities to the extent any member of the Seller Group is expressly liable pursuant to the terms of this Agreement or the transactions contemplated hereby;
(iii) all notes payable and Indebtedness of any member of the Seller Group, other than the Transferred Entities and other than any Transferring Indebtedness or amounts included in Current Liabilities;
(iv) all costs and expenses incurred by the Seller or any Selling Entity in connection with this Agreement or the transactions contemplated and/or related to the solicitation of any other potential buyers of the Business, the Transferred Entities and/or the Transferred Assets or the consideration of strategic alternatives with respect thereto (to the extent not included in the calculation of Transaction Expenses);
(v) all Liabilities arising from or relating to any Action brought against the Seller, any of its Affiliates or any of their Affiliates, regardless of whether arising in connection with the consummation of the transactions contemplated hereby respective directors or otherwise;
(b) any Liability of the Seller Parties or their Affiliates for performance under this Agreement or any of the Ancillary Agreements;
(c) any Liability under any Assigned Contract or any Transferring Real Property Lease arising out of facts, circumstances or occurrences existing prior to the Closing Date or relating to any breach, violation or failure to perform that occurred prior to the Closing Date (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead apply);
(d) any Liability under any Real Property Lease that is not a Transferring Real Property Lease;
(e) any Liability relating to any Debt of the Seller Parties or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing Date);
(f) any Liability for any accounts payable or other accruals related to the Business arising prior to the Closing Date;
(g) any Liability arising out of the Seller Parties’ or their Affiliates’ obligations under or agreements with any Payment Programs (including pursuant to any Provider Agreements);
(h) any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(i) any Liability arising out of or relating to or any Payment Program or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(j) any Liability officers relating to or arising from a Security Incident occurring prior to the Closing Date;
(k) any Liability relating to or arising from the Excluded Assets this Agreement or the Excluded transactions contemplated hereby by any of the Seller’s shareholders, advisors or representatives or any other prospective purchasers of the Business;
(l) any Liability arising under any employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;
(m) any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or prior to the Closing Date and relating to the Business, the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;
(o) any Liability of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(qvi) all Liabilities related to any Action confidentiality agreements entered into by the Seller or any of its Affiliates, in connection with the defense, settlement or other disposition sale of any Action occurring prior the Closing Date; orBusiness;
(rvii) (A) all Liabilities incurred under or with respect to any Business Benefit Plan that is not an Assumed Benefit Plan and (B) any other Liability employment and employee Liabilities other than the Assumed Employee Liabilities;
(viii) Retained Asset Taxes; and
(ix) all Liabilities to the extent arising out of or resulting from the Reorganization; provided, however, that any Liabilities of the Seller Parties or their Affiliates that is Transferred Entities (other than the Liabilities described in Section 1.4(b)(i)(A)) shall not specifically included as an Assumed Liabilityconstitute Excluded Liabilities.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Pitney Bowes Inc /De/)
Excluded Liabilities. Notwithstanding anything Under no circumstance shall Buyer assume or be obligated to pay, and none of the Assets shall be or become liable for or subject to, any of the Excluded Liabilities, including but not limited to the contrary contained hereinfollowing liabilities, other than the Assumed Liabilities, the Seller Parties which shall be responsible for all and remain liabilities of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreement, and Buyer shall not assume, or in any way be liable or responsible for, any Liabilities of the Seller Parties (the “Excluded Liabilities”). Without limiting the generality of the foregoing, Buyer shall not assume the followingSellers:
(a) any Liability to pay any Taxes of and all liabilities or obligations other than the Seller Parties or any of their Affiliates, regardless of whether arising in connection with the consummation of the transactions contemplated hereby or otherwiseAssumed Liabilities;
(b) liabilities or obligations associated with any Liability of the Seller Parties or their Affiliates for performance under this Agreement or any of the Ancillary AgreementsExcluded Assets;
(c) liabilities or obligations associated with any Liability under any Assigned Contract or any Transferring Real Property Lease arising out and all indebtedness of facts, circumstances or occurrences existing prior to Sellers for borrowed money not included in the Closing Date or relating to any breach, violation or failure to perform that occurred prior to the Closing Date (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead apply)Assumed Liabilities;
(d) any Liability liabilities or obligations arising under any Real Property Lease the Excluded Contracts or the Completed Contracts, including causes of action in connection with performance, surety or other bonds relating to such Excluded Contracts or Completed Contracts, and post-Closing obligations under the Assumed Contracts which relate to pre-Closing performance undertaken by Sellers, except to the extent, and only to the extent, that is not a Transferring Real Property LeaseBuyer has agreed to assume pre-petition and post-petition cure costs as part of the Assumed Liabilities;
(e) any Liability relating to any Debt of the Seller Parties liabilities or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on out of or following the Closing Date);
in connection with claims, litigation and proceedings (fwhether instituted prior to or after Closing) any Liability for any accounts payable acts, errors or other accruals related to the Business arising omissions which occurred, or arise from events that occurred, prior to the Closing Date;
(f) liabilities or obligations (i) to Sellers' employees or other service providers, including any obligations for severance, termination, salary or other benefits, whether oral or written, other than those specifically designated as Assumed Liabilities, (ii) with respect to the Seller Benefit Plans, and (iii) of Sellers to the Internal Revenue Service, Department of Labor, PBGC or any other Governmental Authority relating to Sellers' employees;
(g) any Liability penalties, fines, settlements, interest, costs and expenses arising out of the Seller Parties’ or their Affiliates’ obligations under incurred as a result of any actual or agreements with alleged violation by any Payment Programs (including pursuant to of Sellers of any Provider Agreements)Legal Requirement;
(h) any Liability for laboratory testing performance liabilities or resultsobligations under the WARN Act, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from the operation of the Business prior to the Closing Date orif any, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(i) any Liability arising out of or relating to or any Payment Program or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds resulting from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction layoffs of the Seller Parties or their Affiliates in connection with the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(j) any Liability relating to or arising from a Security Incident occurring prior to the Closing Date;
(k) any Liability relating to or arising from the Excluded Assets or the Excluded Business;
(l) any Liability arising under any employee compensation or employee benefit plan adopted employees by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;
(m) any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring Sellers on or prior to the Closing Date Date, in connection with or 15 resulting from the consummation of the Transaction, sufficient in the aggregate to require notice under the WARN Act, except (i) to the extent Buyer has agreed to assume a portion of the WARN Act liability, if any, associated with Beneco and (ii) except for any WARN Act liabilities that may arise from any layoffs of Hired Employees by Buyer after the Closing;
(i) liabilities or obligations relating to professional liability, pending or threatened litigation or pending or future claims relating to asbestos;
(j) liabilities related to any debtor-in-possession financing under section 364(b), (c) or (d) of the Bankruptcy Code other than the Credit Agreement;
(k) all liabilities: (i) for administrative claims incurred in connection with the Bankruptcy Cases, other than pre-petition and post-petition cure costs related to Assumed Contracts; (ii) incurred in the negotiation and preparation of this Agreement; (iii) relating to the BusinessTransaction; (iv) relating to the Bankruptcy Cases, in each case to the Purchased Assets extent incurred by Sellers or any real property currently or formerly ownedof them and including those related to legal counsel, operatedaccounting, used or leased by the Seller Parties or their Affiliates;
brokerage and investment advisors fees and disbursements; and (ov) any Liability of the Seller Parties pending shareholder claims, litigation or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed Liabilityproceedings.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything any provision in this Agreement to the contrary contained hereincontrary, neither Buyer nor any Affiliate of Buyer shall assume and neither Buyer nor any Affiliate of Buyer shall be obligated to assume or be obliged to pay, perform or otherwise discharge any Liability of Seller, and Seller shall be solely and exclusively liable with respect to all Liabilities of Seller, other than the Assumed Liabilities, the Seller Parties shall be responsible for all of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreement, and Buyer shall not assume, or in any way be liable or responsible for, any Liabilities of the Seller Parties (collectively the “Excluded Liabilities”). Without limiting For the generality avoidance of doubt, the foregoing, Buyer shall not assume Excluded Liabilities include the following:
(a) any Liability to pay any Taxes of the Seller Parties or any of their Affiliatesits directors, regardless of whether officers, stockholders, bondholders, lenders or agents (acting in such capacities), arising in connection with the consummation of out of, or relating to, this Agreement or the transactions contemplated hereby by this Agreement, whether incurred prior to, at or otherwisesubsequent to the Closing Date, including, without limitation, (i) any third-party debt incurred or owed by Seller or any Affiliate of Seller, (ii) any intercompany debt incurred or owed by Seller or any Affiliate of Seller, (iii) all finder’s or broker’s fees and expenses and (iv) any and all fees and expenses of any Representatives of Seller;
(b) any Liability of the Seller Parties relating to (i) events or their Affiliates for performance under this Agreement conditions occurring or any of the Ancillary Agreements;
(c) any Liability under any Assigned Contract existing in connection with, or any Transferring Real Property Lease arising out of factsof, circumstances the Business as operated prior to the Closing Date, or occurrences existing (ii) the ownership, possession, use, operation or sale or other disposition prior to the Closing Date of any Purchased Assets (or relating to any breachother assets, violation properties, rights or failure to perform that occurred interests associated, at any time prior to the Closing Date Date, with the Business), including any accrued Liability (other than Liabilities including accrued expenses) attributable to benefits received in respect of accounts payable the periods (or other accruals, for which Section 1.4(gportions thereof) shall instead apply);
(d) any Liability under any Real Property Lease that is not a Transferring Real Property Lease;
(e) any Liability relating to any Debt of the Seller Parties or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing Date);
(f) any Liability for any accounts payable or other accruals related to the Business arising prior to the Closing Date;
(gc) any Liability arising out of the to any Person at any time employed or otherwise retained by Seller Parties’ or their Affiliates’ obligations predecessors-in-interest at any time or to any such Person’s spouse, children, other dependents or beneficiaries, with respect to incidents, events, exposures or circumstances occurring at any time during the period or periods of any such Person’s employment by Seller or its predecessors-in-interest, including, without limitation, all Liabilities arising (i) under the Benefit Plans, (ii) under any employment, wage and hour restriction, equal opportunity, discrimination, plant closing or immigration and naturalization laws, (iii) under any collective bargaining laws, agreements or arrangements or (iv) in connection with any Payment Programs (including pursuant to workers’ compensation or any Provider Agreements)other employee health, accident, disability or safety claims;
(hd) any Liability for laboratory testing performance of Seller relating to the Purchased Assets based on events or results, any laboratory conditions occurring or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from the operation of the Business existing prior to the Closing Date orand connected with, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(i) any Liability arising out of or relating to: (i) Hazardous Substances or Environmental Laws, (ii) claims relating to employee health and safety, including claims for injury, sickness, disease or death of any Payment Program Person or (iii) compliance with any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason Legal Requirement relating to any action or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(j) any Liability relating to or arising from a Security Incident occurring foregoing prior to the Closing Date;
(e) any Liability of Seller (i) under any Benefit Plan, or (ii) relating to any employee or independent contractor of Seller in respect of any period, including without limitation, any Liabilities relating to payments, fees, wages, bonuses, commissions, accrued vacation and severance;
(f) any Liability of Seller for Taxes;
(g) any Liability incurred by Seller or their respective directors, officers, stockholders, agents or employees (acting in such capacities) after the Closing Date;
(h) any Liability of Seller to any Person on account of any Action or Proceeding, including any Proceeding set forth on Schedule 5.9 of the Seller Disclosure Schedule;
(i) any Liability of Seller relating to or arising out of the ownership or operation of an Excluded Asset;
(j) all of the Cure Costs;
(k) any Liability relating of Seller arising prior to or arising from the Excluded Assets or Closing Date under any Contract (other than the Excluded BusinessAssumed Liabilities);
(l) any Liability of Seller relating to or arising under any employee compensation or employee benefit plan adopted by Real Property Lease, including the Seller Parties or their Affiliates including any of the Seller Parent Benefit PlansReal Property Lease for Seller’s premises located in Union City, California;
(m) any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;Transfer Tax; and
(n) any Liability of Seller or Telogy International under any of the Telogy International Transaction Documents, including any Liability pursuant to, arising under Environmental Laws out of or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or prior to the Closing Date and relating to the Business, sale of assets pursuant to the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;
(o) any Liability of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed LiabilityTelogy International Transaction Documents.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything to the contrary contained hereinprovisions of Section 2.3, other than the Assumed Liabilities, the Seller Parties Liabilities shall be responsible for all of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreementinclude, and Buyer Purchaser shall not assume, nor shall it agree to pay, perform or in any way be liable or responsible fordischarge, any and the Seller shall retain all Liabilities of the Seller Parties or any of its Affiliates other than Assumed Liabilities (the “Excluded Liabilities”). Without limiting the generality , which Excluded Liabilities shall include each of the foregoing, Buyer shall not assume the following:
(a) any Liability to pay any Taxes all Indebtedness of the Seller Parties or any of their Affiliates, regardless of whether arising in connection with the consummation of the transactions contemplated hereby or otherwiseSeller;
(b) all Liabilities for Taxes levied and imposed upon, or in connection with, the Transferred Assets and Cystinosis Business allocable to any Liability Pre-Closing Tax Periods or to the portion of any Straddle Period ending on the Seller Parties or their Affiliates for performance under this Agreement or any of the Ancillary AgreementsClosing Date pursuant to Section 6.3;
(c) any Liability under any Assigned Contract or any Transferring Real Property Lease arising out of facts, circumstances or occurrences existing prior to the Closing Date or relating all Liabilities related to any breach, violation or failure to perform that occurred prior to the Closing Date (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead apply)Excluded Asset;
(d) all Taxes arising from or attributable to any Liability under any Real Property Lease that is not a Transferring Real Property Lease;Excluded Asset; ACTIVE/123404471.12
(e) any Liability relating to any Debt of the Seller Parties or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing Date);
(f) any Liability for any accounts payable or other accruals related to the Business arising prior to the Closing Date;
(g) any Liability arising out of the Seller Parties’ or their Affiliates’ obligations under or agreements with any Payment Programs (including pursuant to any Provider Agreements);
(h) any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(i) any Liability arising out of or relating to or any Payment Program or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(j) any Liability relating to or arising from a Security Incident occurring prior to the Closing Date;
(k) any Liability relating to or arising from the Excluded Assets or the Excluded Business;
(l) any Liability arising under any employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;
(m) any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or prior to the Closing Date and relating to the Business, the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;
(o) any Liability of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability Liabilities arising out of, related to, or in connection withwith the Seller’s or any other Person’s use, ownership or operation of the Cystinosis Business or the Transferred Assets prior to the Closing, including any litigation brought by Liability for claims or other Legal Proceedings of, or Xxxxx imposed on the Transferred Assets or any stockholder other assets of Purchaser by, creditors of the Seller Parent or derivatively its Affiliates or any other Person arising out of, related to, or in connection with the name Seller’s or any other Person’s use, ownership or operation of Seller Parentthe Cystinosis Business or the Transferred Assets prior to the Closing, whether arising prior to, at or after the Closing;
(qf) all any Liability for claims or other Legal Proceedings of, or Xxxxx imposed on the Transferred Assets or any other assets of Purchaser by, creditors of the Seller or its Affiliates or any other Person arising as a result of the Contemplated Transactions, whether arising prior to, at or after the Closing;
(g) any Liabilities arising out of, in respect of or in connection with the failure by the Seller or any of its Affiliates to comply, in any respect, with its certificate of incorporation, bylaws or other governing documents, in each case as amended or restated, or any Legal Requirement or Order, including in connection with or on or prior to the Closing, or any Legal Requirement related thereto;
(h) any Liabilities related to any Action or infringement of third-party intellectual property rights prior to the defense, settlement or other disposition of any Action occurring prior the Closing Date; orClosing;
(ri) any other Liability Liabilities for any current or former officer, retiree, employee, independent contractor, consultant, agent, director or manager of the Seller Parties or their any its Subsidiaries, including any Liabilities arising from or relating to the employment or engagement by the Seller or any of its Subsidiaries of any such persons, or the termination of employment or service of any such persons or any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments;
(j) any Liabilities under (i) any Contracts that are not Transferred Contracts, (ii) Transferred Contracts to the extent arising prior to the applicable Closing Date or (iii) any Contracts (A) which are not validly and effectively assigned to Purchaser pursuant to this Agreement, or (B) to the extent such Liabilities arise out of or relate to a breach by the Seller of such Contracts prior to the Closing;
(k) any Liabilities of the Seller or its Affiliates that is not specifically included as an Assumed Liabilityarising or incurred in connection with the performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby;
(l) any Liabilities related to matters set forth on Schedule 4; and
(m) any Transaction Expenses.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything Anything contained herein to the -------------------- contrary contained hereinnotwithstanding, neither Buyer nor any Affiliate of Buyer will assume or undertake to pay, perform or discharge and none thereof will be liable for, and Sellers will remain liable for and pay, perform and discharge when due, all Liabilities of Sellers and their Subsidiaries other than the Assumed LiabilitiesLiabilities (collectively, the Seller Parties shall be responsible for all of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreement, and Buyer shall not assume, or in any way be liable or responsible for, any Liabilities of the Seller Parties (the “"Excluded Liabilities”"). Without limiting , including the generality of the foregoing, Buyer shall not assume the followingfollowing such Liabilities:
(a) all Liabilities based upon, arising out of, relating to or otherwise in connection with the Excluded Contracts;
(b) the Shutdown Liabilities;
(c) all Liabilities arising from or relating to the employment or termination of employment of any Liability person with respect to pay the Business, including any Liabilities arising from or relating to the Benefit Plans, any employment or consulting agreements and any other employee compensation or benefit plans or arrangements, except as set forth in Section 9.8(a); --------------
(d) all Liabilities based upon, arising out of, relating to or otherwise in connection with any actual or threatened or future Action with respect to any events, actions, occurrences, omissions, circumstances or conditions occurring or existing on or prior to the Closing Date, related to the Business or the Transferred Assets, including those Actions listed on Schedule -------- 6.12
(a) other than (i) Actions based on Buyer's failure to pay, perform or ------- discharge any Assumed Liabilities and (ii) any Actions arising from any claims under the Loral Contract required to be assumed by Buyer pursuant to the High Power Agreement;
(e) all Liabilities based upon, arising out of, relating to or otherwise in connection with Primestar Debt;
(f) all Liabilities for and relating to the guarantee of any indebtedness or obligation of any Person;
(g) all Liabilities related to Former Businesses;
(h) all Liabilities for Transfer Taxes of the Seller Parties or any of their Affiliatesand income, regardless of whether sales, use and other Taxes arising in connection with the consummation of the transactions contemplated hereby or otherwise;
(b) any Liability of the Seller Parties or their Affiliates for performance under this Agreement or any of the Ancillary Agreements;
(c) any Liability under any Assigned Contract or any Transferring Real Property Lease arising out of facts, circumstances or occurrences existing prior to the Closing Date or relating to any breach, violation or failure to perform that occurred prior to the Closing Date (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead apply);
(d) any Liability under any Real Property Lease that is not a Transferring Real Property Lease;
(e) any Liability relating to any Debt of the Seller Parties or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts on or following the Closing Date);
(f) any Liability for any accounts payable or other accruals related to the Business arising prior to the Closing Date;
(g) any Liability arising out of the Seller Parties’ or their Affiliates’ obligations under or agreements with any Payment Programs (including pursuant to any Provider Agreements);
(h) any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in timehereby;
(i) all Liabilities for any Liability arising out Taxes of Sellers and all Liabilities for Taxes that relate to the Transferred Assets or relating the Assumed Liabilities for periods (or portions thereof) up to or any Payment Program or any other payor (and including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;; and
(j) Liabilities for which the Sellers or any Liability relating to or arising from a Security Incident occurring prior to the Closing Date;
(k) any Liability relating to or arising from the Excluded Assets or the Excluded Business;
(l) any Liability arising under any employee compensation or employee benefit plan adopted by the Seller Parties or of their Affiliates including any of the Seller Parent Benefit Plans;
(m) any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior are made responsible pursuant to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or prior to the Closing Date and relating to the Business, the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;
(o) any Liability of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed Liability.
Appears in 1 contract
Samples: Asset Purchase Agreement (Tci Satellite Entertainment Inc)
Excluded Liabilities. Notwithstanding the foregoing or anything to the contrary contained set forth herein, Buyer shall not assume or become responsible for, and the Seller Entities shall remain solely liable for, any and all Liabilities or obligations of any Seller Entity (whether known or unknown, whether absolute or contingent, whether liquidated or unliquidated, whether accrued or unaccrued, whether due to become due, and whether claims with respect thereto are asserted before or after the Closing) other than the Assumed LiabilitiesLiabilities (collectively, the Seller Parties shall be responsible for all of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreement, and Buyer shall not assume, or in any way be liable or responsible for, any Liabilities of the Seller Parties (the “Excluded Liabilities”). Without limiting the generality of the foregoing, Buyer shall not assume the followingincluding:
(a) all Liabilities that are not Assumed Liabilities;
(b) all Liabilities whenever arising to the extent relating to any Liability to pay any Taxes of the Excluded Assets;
(c) all Liabilities of any Seller Parties Entity or any Affiliate thereof or any of their Affiliatesrespective Representatives arising out of any alleged or actual acts or omissions, regardless breach, failure to comply with, violation or other deficiency in respect of whether any Regulatory Requirement, Fiduciary Requirement, Tax Matters or any Action related thereto or instituted thereunder by any Person arising out of, attributable to, relating to or resulting from the conduct by any Seller Entity of any business activity or the ownership, operation or conduct of the Acquired Business or the Purchased Assets prior to the Closing of any Seller Entity;
(d) all Liabilities of any Seller Entity whenever arising under Contracts which are not Assumed Contracts including the Contract set forth in Section 2.4(d) of the Disclosure Schedules;
(e) all Liabilities of any Seller Entity arising out of any Action pending or threatened on or prior to the Closing Date;
(f) all Liabilities with respect to Excluded Taxes;
(g) except as provided in Section 2.3(a) and subject to Section 5.10, all Liabilities of any Seller Entity to pay salaries, severance, termination pay, redundancy pay, pay in lieu of notice, accrued vacation time, personal time and sick leave payable, bonuses or other payments or reimbursements to any current or former employee, independent contractor, partner or director of any Seller Entity whose employment is terminated (or treated as terminated) in connection with the consummation of the transactions contemplated hereby by the Agreement and all Liabilities resulting from the termination of employment of any current or otherwise;
(b) former employee, independent contractor, partner or director of any Liability of the Seller Parties or their Affiliates for performance under this Agreement or any of the Ancillary Agreements;
(c) any Liability under any Assigned Contract or any Transferring Real Property Lease arising out of facts, circumstances or occurrences existing prior to the Closing Date or relating to any breach, violation or failure to perform that occurred prior to the Closing Date (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead apply);
(d) any Liability under any Real Property Lease that is not a Transferring Real Property Lease;
(e) any Liability relating to any Debt of the Seller Parties or their Affiliates (other than, for the elimination of doubt, any trade payables or other obligations arising under Assigned Contracts Entity on or following the Closing Date);
(f) any Liability for any accounts payable or other accruals related to the Business arising prior to the Closing Date;
(g) any Liability arising out of the Seller Parties’ or their Affiliates’ obligations under or agreements with any Payment Programs (including pursuant to any Provider Agreements);
(h) any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in timeall Excepted Balance Sheet Liabilities;
(i) any Liability arising out of or relating to or any Payment Program or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction of the Seller Parties or their Affiliates in connection with the operation of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in time;
(j) any Liability relating to or arising from a Security Incident occurring prior to the Closing Date;
(k) any Liability relating to or arising from the Excluded Assets or the Excluded Business;
(l) any Liability arising under any employee compensation or employee benefit plan adopted by the Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;
(m) any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or prior to the Closing Date and relating to the Business, the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;
(o) any Liability of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed Liability.
Appears in 1 contract
Excluded Liabilities. Notwithstanding anything the provisions of Section 1.3 or any other provision in this Agreement to the contrary contained hereincontrary, Purchaser shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of Seller Group or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities, the Seller Parties shall be responsible for all of the Seller Parties’ respective Liabilities not expressly assumed by Buyer under this Agreement, and Buyer shall not assume, or in any way be liable or responsible for, any Liabilities of the Seller Parties (the “Excluded Liabilities”). Without limiting the generality of the foregoing, Buyer shall not assume the Excluded Liabilities include the following:
(a) any Liability Liabilities in respect of any pending or threatened Action relating to pay Seller Group or its Affiliates, including any Taxes Action arising out of, relating to or otherwise in respect of the Seller Parties operation of the ECM Business or the Purchased Assets, including those arising out of or relating to the Horizon CID or any of their Affiliates, regardless of whether arising Covered DOJ Action (each as defined in connection with the consummation of the transactions contemplated hereby or otherwiseMcKesson Agreement);
(b) any Liability for Taxes of the or imposed on any member of Seller Parties or their Affiliates for performance under this Agreement Group or any of Affiliate thereof for any Taxable Period, whether or not relating to or arising from the Ancillary AgreementsECM Business, other than Taxes that are Assumed Liabilities, if any;
(c) except for the Assumed Software Expenses, all trade accounts payable, accrued expenses, current liabilities and Indebtedness of Seller Group, including any Liability under any Assigned Contract intercompany payables owing to or among Seller Group or any Transferring Real Property Lease arising out of facts, circumstances or occurrences existing prior to the Closing Date or relating to any breach, violation or failure to perform that occurred prior to the Closing Date (other than Liabilities in respect of accounts payable or other accruals, for which Section 1.4(g) shall instead apply)its Affiliates;
(d) except for the Assumed Retention Bonuses, any Liability Liabilities arising under or in connection with any Real Property Lease that is Seller Employee Plan or any employee benefit plan of McKesson Corporation or its Subsidiaries providing benefits to any present or former employee of Seller Group (including any ECM Employee, whether or not a Transferring Real Property LeaseTransferred Employee);
(e) except for the Assumed Retention Bonuses, any Liability relating Liabilities with respect to any Debt present or former employees, officers, directors, retirees, independent contractors or consultants of the Seller Parties Group or their any of its Affiliates (other thanincluding any ECM Employee, whether or not an Offered Employee), including any Liabilities associated with any claims for the elimination of doubt, any trade payables wages or other obligations benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments, in each case, arising under Assigned Contracts on in connection with such Persons’ service with McKesson Corporation or following the Closing Date)its Subsidiaries or Seller Group or any of its Affiliates;
(f) all Liabilities of the Seller Group to the extent related to any Excluded Assets, including any Liability for under any accounts payable or other accruals related Contract that is not an Assumed Liability pursuant to the Business arising prior to the Closing DateSection 1.3(a);
(g) any Liability arising out of Liabilities to the Seller Parties’ extent relating to hosting services, including Liabilities under any service level agreements (SLAs) with respect to such services or their Affiliates’ obligations under or agreements with any Payment Programs (including pursuant to any Provider Agreements)ransomware claims;
(h) except for Credits taken into account in the calculation of Net Working Capital for purposes of Sections 1.5 and 1.6, any Liabilities to provide Company Offerings for credit, including (i) any Liability related to credit-pooling arrangements and (ii) any Liability for laboratory testing performance or results, any laboratory or medical malpractice claims or any violation or non-compliance of any Health Care Law arising from the operation Customer Negative Credit Balances existing as of the Business prior to the Closing Date or, for the avoidance of doubt, from the operation of the Excluded Business at any point in timeDate;
(i) any Liability arising out of or relating to or any Payment Program or any other payor (including Medicare or Medicaid), making any claims or any offsets, withholding funds from Buyer, or requiring Buyer to refund any payments for services rendered on or after the Closing Date, due to overpayments, duplicate payments, fraud, incorrect billing, retroactive denials or for any other reason relating to any action or inaction conduct of the Seller Parties or their Affiliates in connection with the operation of the ECM Business prior to the Closing Date orClosing, for including any recall, warranty, guaranty, defect or similar claims with respect to any Company Offering to the avoidance of doubt, from the operation of the Excluded Business at any point in timeextent not an Assumed Liability;
(j) any Liability relating Liabilities arising out of, in respect of or in connection with the failure by Seller Group or any of its Affiliates or predecessors to comply with any Law or arising from a Security Incident occurring prior to the Closing Date;Order; and
(k) any Liability relating to or arising from the Excluded Assets or the Excluded Business;
(l) any Liability arising under any employee compensation or employee benefit plan adopted by the all Seller Parties or their Affiliates including any of the Seller Parent Benefit Plans;
(m) any Liability relating to, arising from or in connection with Business Employees or former employees of the Business during all time periods prior to and through the Closing, including any severance, change in control or other payments triggered upon termination of employment with any Seller Parties in connection with the transactions contemplated by this Agreement;
(n) any Liability arising under Environmental Laws or with respect to Hazardous Substances arising from facts, circumstances or conditions, existing, initiated or occurring on or prior to the Closing Date and relating to the Business, the Purchased Assets or any real property currently or formerly owned, operated, used or leased by the Seller Parties or their Affiliates;
(o) any Liability of the Seller Parties or their Affiliates arising from or relating to violation of the Intellectual Property rights of any Person;
(p) any Liability arising out of, related to, or in connection with, any litigation brought by any stockholder of Seller Parent or derivatively in the name of Seller Parent;
(q) all Liabilities related to any Action or the defense, settlement or other disposition of any Action occurring prior the Closing Date; or
(r) any other Liability of the Seller Parties or their Affiliates that is not specifically included as an Assumed LiabilityTransaction Expenses.
Appears in 1 contract
Samples: Asset Purchase Agreement (Allscripts Healthcare Solutions, Inc.)
