Liabilities and Excluded Liabilities. (a) Upon the terms and subject to the conditions of this Agreement, at the Closing, Buyer shall assume, become responsible for, pay, perform and otherwise discharge, in accordance with their respective terms, all Liabilities related to the Transferred Assets other than the Excluded Liabilities, including the following Liabilities (collectively, the “Assumed Liabilities”): (i) all Liabilities with respect to the Transferred Assets arising due to facts or conditions first in existence after the Closing Date; (ii) all Liabilities for Taxes relating to the Transferred Assets for all taxable periods (or portions thereof) beginning on or after the Closing Date; (iii) all Liabilities arising from any infringement claim or Proceeding brought by any Third Party, including any Governmental Entity, related to the Transferred Assets and related to events occurring on or after the Closing Date; (iv) all Liabilities arising from any Governmental Entity action or notification filed by a Governmental Entity related to the Transferred Assets and arising on or after the Closing Date; and (v) all Liabilities relating to amounts required to be paid by or obligations of Buyer hereunder. (b) Buyer’s obligations under this Section 2.3 shall not be subject to offset or reduction by reason of any actual or alleged breach of any representation, warranty or covenant by Seller or any of its Affiliates contained in this Agreement or any Ancillary Agreement. (c) Buyer will not assume or be responsible or liable for any Liabilities of Seller or its Affiliates other than the Assumed Liabilities (collectively, the “Excluded Liabilities”), including Liabilities arising out of: (i) the Excluded Assets; (ii) all Liabilities arising prior to the Closing Date, including any such Liabilities arising from pharmaceutical products that have been sold prior to the Closing Date; or (iii) Buyer being deemed to be a continuation of or a successor to Seller or its Affiliates as a result of the consummation of the Transactions, except with respect to any Assumed Liabilities.
Appears in 1 contract
Samples: Asset Purchase Agreement (Insys Therapeutics, Inc.)
Liabilities and Excluded Liabilities. (a) Upon the terms and subject to the conditions of this Agreement, at the Closing, Buyer shall assume, become responsible for, pay, perform and otherwise discharge, in accordance with their respective terms, all Liabilities related to the Transferred Assets other than the Excluded Liabilities, including the following Liabilities (collectively, the “Assumed Liabilities”):
(i) all Liabilities arising from the Research, Development, registration, manufacture, making, formulating, having made, use or Commercialization of the Products or the Product Technology by or on behalf of Buyer or otherwise in connection with respect to the Transferred Assets arising due to facts Territory that first come into existence on or conditions first in existence after the Closing Date;
(ii) all necessary registration, maintenance, renewal and other relevant filing fees that first come into existence on or after the Closing Date that are required to maintain the Product Technology and the Assigned Intellectual Property and the Assigned Marks in full force and effect in the Territory;
(iii) all Liabilities for Taxes relating to the Transferred Assets for all taxable periods (or portions thereof) beginning on or after the Closing Date;
(iiiiv) in accordance with ARTICLE III, all Liabilities for Transfer Taxes in connection with this Agreement;
(v) all Liabilities arising from any infringement claim or Proceeding brought by any Third Partythird party, including any Governmental Entity, related to the Territory and arising from events first occurring on or after the Closing Date relating to the Transferred Assets and Assets;
(vi) all Liabilities arising from any invalidity claim or Proceeding brought or asserted against the Product Technology by any third party, including any Governmental Entity, related to the Territory and arising from events first occurring on or after the Closing Date;
(ivvii) all Liabilities relating to the Transferred Assets arising from any Governmental Entity action or notification filed by a Governmental Entity related to the Transferred Assets and arising events first occurring on or after the Closing Date; and;
(vviii) all Product Liabilities related to actions taken or events first occurring in the Territory on or after the Closing Date related to the Transferred Assets;
(ix) all Liabilities relating to amounts required to be paid by or obligations of Buyer hereunder;
(x) the “Buyer Favored Right to Reference”, as defined in, and granted pursuant to, the BTcP Pharma APA; and
(xi) all Liabilities arising from the enforcement of rights relating to the Product Technology transferred hereunder that first come into existence on or after the Closing Date.
(b) Buyer’s obligations under this Section 2.3 shall not be subject to offset or reduction by reason of any actual or alleged breach of any representation, warranty or covenant by Seller or any of its Affiliates contained in this Agreement or any Ancillary Agreement.
(c) Buyer will not assume or be responsible or liable for any Liabilities of Seller or its Affiliates other than the Assumed Liabilities (collectively, the “Excluded Liabilities”), including Liabilities arising out of:
(i) the Excluded Assets;
(ii) all the Research, Development, registration, manufacture, making, formulating, having made, use or Commercialization of the Products or the Product Technology by Seller or its Affiliates, including, but not limited to, any fines, judgments, settlements or other liabilities owed by Seller or its Affiliates to the Department of Justice or other governmental authorities based on such activities, and including any Liabilities arising from Products that have been produced, manufactured, sold or otherwise Commercialized prior to the Closing Date, including any such Liabilities arising from pharmaceutical products that have been sold prior to the Closing Date; or;
(iii) the Inventory; and
(iv) Buyer being deemed to be a continuation of or a successor to Seller or its Affiliates as a result of the consummation of the Transactions, except with respect to any Assumed LiabilitiesLiabilities or as otherwise set forth herein.
Appears in 1 contract
Samples: Asset Purchase Agreement (Insys Therapeutics, Inc.)
Liabilities and Excluded Liabilities. (a) Upon the terms and subject to the conditions of this Agreement, at the Closing, Buyer shall assume, become responsible for, pay, perform and otherwise discharge, in accordance with their respective terms, all Liabilities related to the Transferred Assets other than the Excluded Liabilities, including the following Liabilities (collectively, the “Assumed Liabilities”):
(i) all Liabilities of Seller or any of its Affiliates under the Purchased Contracts become due on or after the Closing Date;
(ii) all Liabilities arising from the Research, Development, registration, manufacture, making, formulating, having made, use or Commercialization of the Products or the Product Technology that first come into existence on or after the Closing Date;
(iii) all Liabilities constituting, or arising in connection with, accounts payable existing as of the Closing (including, for the avoidance of doubt, invoiced accounts payable and accrued but uninvoiced accounts payable) that (y) relate to the Transferred Assets and/or Purchased Contracts; or (z) are Cure Costs. As of July 31, 2019, Seller has received invoices in respect of post-petition accounts payable in respect of the Products and which remain unpaid as of the date hereof that are estimated to be approximately $42,000.
(iv) all Liabilities with respect to the Transferred Assets or the Transferred Employees arising due to facts or conditions first in existence after the Closing;
(v) all necessary registration, maintenance, renewal and other relevant filing fees that are required to maintain the Product Technology in full force and effect that first come into existence on or after the Closing Date;
(iivi) all Liabilities for Taxes relating to the Transferred Assets for all taxable periods (or portions thereof) beginning on or after the Closing Date;
(iiivii) in accordance with ARTICLE III, all Liabilities for Transfer Taxes in connection with this Agreement;
(viii) all Liabilities arising from any infringement claim or Proceeding brought by any Third Partythird party, including any Governmental Entity, related to the Transferred Assets and related to events first occurring on or after the Closing Date;
(ivix) all Liabilities arising from any invalidity claim or Proceeding brought or asserted against the Product Technology by any third party, including any Governmental Entity related to events first occurring on or after the Closing Date;
(x) all Liabilities arising from any Governmental Entity action or notification filed by a Governmental Entity related to the Transferred Assets and arising events first occurring on or after the Closing Date; and;
(vxi) all Product Liabilities related to events first occurring on or after the Closing Date;
(xii) all Liabilities relating to amounts required to be paid by or obligations of Buyer hereunder, including all amounts, if any, that are required to be paid by Buyer pursuant to Section 2.4;
(xiii) all Liabilities relating to Transferred Employees to the extent attributable to any period or portion of any period following the Closing; and
(xiv) all Liabilities arising from the enforcement of rights relating to the Product Technology that first come into existence on or after the Closing Date.
(b) Buyer’s obligations under this Section 2.3 shall not be subject to offset or reduction by reason of any actual or alleged breach of any representation, warranty or covenant by Seller or any of its Affiliates contained in this Agreement or any Ancillary Agreement.[intentionally omitted]
(c) Buyer will not assume or be responsible or liable for any Liabilities of Seller or its Affiliates other than the Assumed Liabilities (collectively, the “Excluded Liabilities”), including Liabilities arising out of:
(i) the Excluded Assets;
(ii) all Liabilities arising the Research, Development, registration, manufacture, making, formulating, having made, use or Commercialization of the Products or the Product Technology prior to the Closing Date, including, but not limited to, any fines, judgments, settlements or other liabilities owed to the Department of Justice or other governmental authorities based on such activities prior to the Closing Date, and including any such Liabilities (including Product Liabilities) arising from pharmaceutical products Products that have been sold prior to the Closing Date; orand
(iii) Buyer being deemed to be a continuation of or a successor to Seller or its Affiliates as a result of the consummation of the Transactions, except with respect to any Assumed LiabilitiesLiabilities or as otherwise set forth herein.
Appears in 1 contract
Samples: Asset Purchase Agreement (Insys Therapeutics, Inc.)
Liabilities and Excluded Liabilities. (a) Upon the terms and subject to the conditions of this Agreement, at the Closing, Buyer shall assume, become responsible for, pay, perform and otherwise discharge, in accordance with their respective terms, all Liabilities related to the Transferred Assets other than the Excluded Liabilities, including the following Liabilities (collectively, the “Assumed Liabilities”):
(i) all Liabilities with respect of Seller or any of its Affiliates under the Purchased Contracts that are actually assigned to Buyer related to the Transferred Assets arising that become due to facts on or conditions first in existence after the Closing Date;
(ii) all Liabilities arising from the Research, Development, registration, manufacture, making, formulating, having made, use or Commercialization of the Products or the Product Technology that first accrue on or after the Closing Date;
(iii) all Liabilities constituting, or arising in connection with, accounts payable existing as of the Closing Date that (y) exclusively relate to the Transferred Assets; or (z) are Cure Costs. As of July 31, 2019, Seller has received invoices in respect of post-petition accounts payable and which remain unpaid as of the date hereof of approximately $118,500. Seller estimates that pre-petition Cure Costs are approximately $545,461;
(iv) all Liabilities with respect to the Transferred Assets that first accrue on or after the Closing;
(v) all necessary registration, maintenance, renewal and other relevant filing fees that are required to maintain the Product Technology and the Equipment in full force and effect from and after the Closing Date;
(vi) all Liabilities for Taxes relating to the Transferred Assets for all taxable periods (or portions thereof) beginning on or after the Closing Date;
(iiivii) in accordance with ARTICLE III, all Liabilities for Transfer Taxes in connection with this Agreement;
(viii) all Liabilities arising from any infringement claim or Proceeding to the extent brought against the Product Technology by any Third Partythird party, including any Governmental Entity, related to the Transferred Assets Entity and related to events occurring on or after the Closing DateDate relating to the Transferred Assets;
(ivix) all Liabilities arising from any invalidity claim or Proceeding to the extent brought or asserted against the Product Technology by any third party, including any Governmental Entity and related to events occurring on or after the Closing Date related to the Transferred Assets;
(x) all Liabilities arising from any Governmental Entity action or notification filed by a Governmental Entity arising out of the Products and related to the Transferred Assets and arising events occurring on or after the Closing Date; andDate related to the Transferred Assets;
(vxi) all Product Liabilities related to events occurring on or after the Closing Date related to the Transferred Assets;
(xii) all Liabilities relating to amounts required to be paid by or obligations of Buyer hereunder, including all amounts, if any, that are required to be paid by Buyer pursuant to Section 2.4; and
(xiii) all Liabilities arising from the enforcement of rights relating to the Product Technology on or after the Closing Date.
(b) Buyer’s obligations under this Section 2.3 shall not be subject to offset or reduction by reason of any actual or alleged breach of any representation, warranty or covenant by Seller or any of its Affiliates contained in this Agreement or any Ancillary Agreement.
(c) Buyer will not assume or be responsible or liable for any Liabilities of Seller or its Affiliates other than the Assumed Liabilities (collectively, the “Excluded Liabilities”), including Liabilities arising out of:
(i) the Excluded Assets;
(ii) all Liabilities arising the Research, Development, registration, manufacture, making, formulating, having made, use or Commercialization of the Products or the Product Technology prior to the Closing Date, including including, but not limited to, any fines, judgments, settlements or other liabilities owed to the Department of Justice or other governmental authorities based on such Liabilities arising from pharmaceutical products that have been sold activities prior to the Closing Date; orand
(iii) Buyer being deemed to be a continuation of or a successor to Seller or its Affiliates as a result of the consummation of the Transactions, except with respect to any Assumed LiabilitiesLiabilities or as otherwise set forth herein.
Appears in 1 contract
Samples: Asset Purchase Agreement (Insys Therapeutics, Inc.)
Liabilities and Excluded Liabilities. (a) Upon the terms and subject to the conditions of this Agreement, at the Closing, Buyer shall assume, become responsible for, pay, perform and otherwise discharge, in accordance with their respective terms, all Liabilities related to the Transferred Assets other than the Excluded Liabilities, including the following Liabilities (collectively, the “Assumed Liabilities”):
(i) all Liabilities of Seller or any of its Affiliates under the Purchased Contracts that become due on or after the Closing Date, including the Renaissance Payable;
(ii) all Liabilities arising from the Research, Development, registration, manufacture, making, formulating, having made, use or Commercialization of the Products or the Product Technology on or after the Closing Date;
(iii) all Liabilities constituting, or arising in connection with, accounts payable existing as of the Closing (including, for the avoidance of doubt, invoiced accounts payable and accrued but uninvoiced accounts payable), that (y) relate to the Transferred Assets and/or Purchased Contracts; or (z) are Cure Costs. As of August 14, 2019, Seller has received invoices in respect of post-petition accounts payable in respect of the Products and which remain unpaid as of the date hereof that are estimated to be approximately $106,314, which estimated amount shall be updated by Seller in writing to Buyer no later than two (2) Business Days prior to the Closing Date;
(iv) all Liabilities with respect to the Transferred Assets or the Transferred Employees arising due to facts or conditions first in existence after the Closing DateClosing;
(iiv) all necessary registration, maintenance, renewal and other relevant filing fees that are required to maintain the Product Technology in full force and effect after the Closing;
(vi) all Liabilities for Taxes relating to the Transferred Assets for all taxable periods (or portions thereof) beginning on or after the Closing Date;
(iiivii) in accordance with ARTICLE III, all Liabilities for Transfer Taxes in connection with this Agreement;
(viii) all Liabilities arising from any infringement claim or Proceeding brought by any Third Partythird party, including any Governmental Entity, related to the Transferred Assets and related to events occurring on or after the Closing Date;
(ivix) all Liabilities arising from any invalidity claim or Proceeding brought or asserted against the Product Technology by any third party, related to events occurring on or after the Closing Date;
(x) all Liabilities arising from any Governmental Entity action or notification filed by a Governmental Entity related to the Transferred Assets and arising events occurring on or after the Closing Date; and;
(vxi) all Product Liabilities related to events occurring on or after the Closing Date;
(xii) all Liabilities relating to amounts required to be paid by or obligations of Buyer hereunder, including all amounts, if any, that are required to be paid by Buyer pursuant to Section 2.4;
(xiii) all Liabilities relating to Transferred Employees to the extent attributable to any period or portion of any period following the Closing; and
(xiv) all Liabilities arising from the enforcement of rights relating to the Product Technology on or after the Closing Date.
(b) Buyer’s obligations under this Section 2.3 shall not be subject to offset or reduction by reason of any actual or alleged breach of any representation, warranty or covenant by Seller or any of its Affiliates contained in this Agreement or any Ancillary Agreement.
(c) Buyer will not assume or be responsible or liable for any Liabilities of Seller or its Affiliates other than the Assumed Liabilities (collectively, the “Excluded Liabilities”), including Liabilities arising out of:
(i) the Excluded Assets;
(ii) all Liabilities arising the Research, Development, registration, manufacture, making, formulating, having made, use or Commercialization of the Products or the Product Technology prior to the Closing Date, including, but not limited to, any fines, judgments, settlements or other liabilities owed to the Department of Justice or other Governmental Entity based on such activities prior to the Closing Date, and including any such Liabilities arising from pharmaceutical products Products that have been sold prior to the Closing Date; orand
(iii) Buyer being deemed to be a continuation of or a successor to Seller or its Affiliates as a result of the consummation of the Transactions, except with respect to any Assumed LiabilitiesLiabilities or as otherwise set forth herein.
Appears in 1 contract
Samples: Asset Purchase Agreement (Insys Therapeutics, Inc.)
