4Retained Liabilities. All Liabilities of Seller, other than the Assumed Liabilities, shall be retained by Seller (the “Retained Liabilities”) and Purchaser shall have no obligation of any kind with respect to the Retained Liabilities. For the avoidance of doubt, “Retained Liabilities” shall include, but not be limited to the following: (a) Any obligation or liability of Seller arising under any Assigned Contract to the extent attributable to the time period prior to Closing including, but not limited to, (i) with respect to client Contracts, any Claims against Seller by any client asserting any counterclaim, refund claim, indemnity claim, breach of warranty claim, tort, negligence or other claim to the extent such claims relate to services performed or products provided prior to Closing or otherwise related to the period of time prior to Closing; and (ii) with respect to Contracts with vendors or other parties providing services or products to Seller, any claims against Seller by any such contracting party asserting any amount due, indemnity claim, tort, negligence or other claim of any kind to the extent such claims relate to services performed or products provided prior to Closing or otherwise related to the period of time prior to Closing; (b) Any obligation or liability of Seller arising before or after Closing with respect to any Contract that is not specifically referenced in Schedule 2.1(b)(viii); (c) All obligations and Liabilities of Seller with respect to Taxes of any kind, whether relating to or attributable to the Business, to the Seller or otherwise arising out of the transactions consummated pursuant to this Agreement, including the Equity Issuance and including, without limitation, the obligation of Seller to withhold and remit all Taxes of any kind that have been (or were required to have been) withheld from, assessed upon, or collected from employees, contractors or clients, but excluding any Taxes that are Purchaser’s obligation pursuant to Section 2.3 or Section 2.6; (d) Any obligations or Liabilities of the Business or Seller relating to Laws, regulations, Permits or other Governmental Authorizations relating to the time period prior to the Closing including, without limitation, any fees, penalties, fines or other Governmental Charges; (e) Any obligations or Liabilities of Seller to any employees (in all cases relating to the time period prior to the Closing) including obligations for salaries, compensation, benefits, sick pay, vacation pay, (including, but not limited to, any liability or penalties associated with any violation of any Laws regarding payment of vacation or paid time off upon termination or employment), bonuses, deferred compensation of any kind, severance or termination pay or remuneration of any kind any obligation or liability relating to the termination of any such employee including any termination relating to the consummation of the transactions set forth herein; (f) Any obligation or liabilities of Seller under any Employee Plan; (g) Any obligations or liabilities of Seller under any indebtedness, including, without limitation, convertible debt; (h) Any obligations or liabilities of Seller for transaction expenses, including, without limitation, any professional fees, including legal, accounting, and tax advisor fees, relating to the Transactions; (i) Any obligations or liabilities relating to or arising out of the Excluded Assets; and (j) Any other indebtedness of any kind (including, without limitation, any accounts payable, any PPP Loans or deferred revenue).
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4Retained Liabilities. All Other than as specifically listed in Section 2.3 above, Buyer shall not assume or otherwise be responsible for any Liabilities whatsoever of Sellerany Seller Party, other than whether or not arising from or related to the Assumed LiabilitiesRFG Business or the Purchased Assets, shall be retained by Seller regardless of their nature (the “Retained Liabilities”) and Purchaser shall have no obligation ). Without limiting the generality of any kind with respect to the foregoing, the Retained Liabilities. For the avoidance of doubt, “Retained Liabilities” Liabilities shall include, but not be limited to, and under no circumstances shall Buyer be deemed to the followingassume any Liability of any Seller Party arising out of or relating to:
(a) Any obligation or liability of Seller arising under any Assigned Contract to the extent attributable to the time period prior to Closing including, but not limited to, (i) with respect to client Contracts, any Claims against Seller by any client asserting any counterclaim, refund claim, indemnity claim, breach of warranty claim, tort, negligence or other claim to the extent such claims relate to services performed or products provided prior to Closing or otherwise related to the period of time prior to Closing; and (ii) with respect to Contracts with vendors or other parties providing services or products to Seller, any claims against Seller by any such contracting party asserting any amount due, indemnity claim, tort, negligence or other claim of any kind to the extent such claims relate to services performed or products provided prior to Closing or otherwise related to the period of time prior to Closing;
(b) Any obligation or liability of Seller arising before or after Closing with respect to any Contract that is not specifically referenced in Schedule 2.1(b)(viii);
(c) All obligations and Liabilities of a Seller with respect to Taxes of any kind, whether relating to or attributable to the Business, to the Party for which a Seller or otherwise arising out of the transactions consummated Party is expressly made responsible pursuant to this Agreement, including the Equity Issuance other Transaction Documents and including, without limitation, the obligation of Seller to withhold and remit all Taxes of any kind that have been (or were required to have been) withheld from, assessed upon, or collected from employees, contractors or clients, but excluding any Taxes that are Purchaser’s obligation pursuant to Section 2.3 or Section 2.6;
(d) Any obligations or Liabilities of the Business or Seller relating to Laws, regulations, Permits or other Governmental Authorizations relating to the time period prior to the Closing including, without limitation, any fees, penalties, fines or other Governmental Charges;
(e) Any obligations or Liabilities of Seller to any employees (in all cases relating to the time period prior to the Closing) including obligations for salaries, compensation, benefits, sick pay, vacation pay, (including, but not limited to, any liability or penalties associated with any violation of any Laws regarding payment of vacation or paid time off upon termination or employment), bonuses, deferred compensation of any kind, severance or termination pay or remuneration of any kind any obligation or liability relating to the termination of any such employee including any termination relating to the consummation of the transactions set forth herein;
(f) Any obligation or liabilities of Seller under any Employee Plan;
(g) Any obligations or liabilities of Seller under any indebtednessTransactions, including, without limitation, convertible debtSeller Transaction Expenses;
(hb) Any obligations or liabilities any Liability for (i) Taxes of a Seller for transaction expenses, including, without limitation, any professional fees, including legal, accounting, and tax advisor fees, Party relating to the TransactionsRFG Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period; (ii) any sales or use tax liability of any of the Seller Parties that shall have accrued on or before the Closing Date; or (iii) other Taxes of Seller 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 Law;
(ic) Any obligations or liabilities any Liabilities relating to or arising out of the Excluded Assets; and;
(jd) Any other indebtedness any Liabilities in respect of any kind Proceeding arising out of, relating to or otherwise in respect of the operation of the RFG Business or the Purchased Assets to the extent such Proceeding relates to such operation prior to the Closing Date (the “Retained Litigation Liabilities”), including, but not limited to, those matters set forth in Schedule 2.4(d);
(e) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or Guarantee made by Seller, or by reason of any recall, design defects or similar claims which arises out of or is based upon any products sold or any service performed by a Seller Party prior to the Closing Date, but not limited to, those matters set forth in Schedule 2.4(e);
(f) any Liabilities of the Seller Parties arising under or in connection with any RFG Employee Plan providing benefits to any present or former RFG Employee of a Seller Party for any period of time before the Closing Date (for the avoidance of doubt and notwithstanding anything in this Agreement to the contrary, Buyer will not assume any RFG Employee Plan);
(g) any Liabilities of a Seller Party for any present or former RFG Employees, agents or Independent Contractors of such Seller Party, including, without limitation, any Liabilities associated with any claims for wages or other benefits, workers’ compensation, severance, retention, termination or other payments for any period of time before the Closing Date;
(h) any Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing;
(i) any trade accounts payablepayable of a Seller Party solely to the extent (i) not accounted for on the Final Closing Balance Sheet or the Final Closing Statement or otherwise included in the definition of Assumed Liabilities pursuant to Section 2.3; (ii) which constitute intercompany payables owing to Affiliates of Seller; or (iii) which constitute debt, loans or credit facilities to financial institutions;
(j) any PPP Loans Liabilities to the extent such Liabilities arise out of or deferred revenuerelate to a breach by a Seller Party of any and all Contracts, including Assigned Contracts, prior to Closing (unless included in Final Closing Working Capital);
(k) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, RFG Employee or agent of a Seller Party or any of its Affiliates (including with respect to any breach of fiduciary obligations by same), provided, however, that the foregoing shall not be deemed to limit any indemnification of same by Buyer pursuant to Section 7.2 hereof;
(l) any Seller Indebtedness;
(m) the Accrued Amounts;
(n) 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 order from a Governmental Authority prior to the Closing; and
(o) any Liabilities arising out of, in respect of or in connection with that certain RPC Use Agreement, dated September 22, 2023, by and between Tosca Services, LLC and RFG, as governed by that certain RPC Terms and Conditions of Use, undated, solely to the extent arising prior to the Closing Date.
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4Retained Liabilities. All Other than as specifically listed in Section 2.3 above, Buyer shall not assume or otherwise be responsible for any Liabilities whatsoever of Sellerany Seller Party, other than whether or not arising from or related to the Assumed LiabilitiesRFG Business or the Purchased Assets, shall be retained by Seller regardless of their nature (the “Retained Liabilities”) and Purchaser shall have no obligation ). Without limiting the generality of any kind with respect to the foregoing, the Retained Liabilities. For the avoidance of doubt, “Retained Liabilities” Liabilities shall include, but not be limited to, and under no circumstances shall Buyer be deemed to the followingassume any Liability of any Seller Party arising out of or relating to:
(a) Any obligation or liability of Seller arising under any Assigned Contract to the extent attributable to the time period prior to Closing including, but not limited to, (i) with respect to client Contracts, any Claims against Seller by any client asserting any counterclaim, refund claim, indemnity claim, breach of warranty claim, tort, negligence or other claim to the extent such claims relate to services performed or products provided prior to Closing or otherwise related to the period of time prior to Closing; and (ii) with respect to Contracts with vendors or other parties providing services or products to Seller, any claims against Seller by any such contracting party asserting any amount due, indemnity claim, tort, negligence or other claim of any kind to the extent such claims relate to services performed or products provided prior to Closing or otherwise related to the period of time prior to Closing;
(b) Any obligation or liability of Seller arising before or after Closing with respect to any Contract that is not specifically referenced in Schedule 2.1(b)(viii);
(c) All obligations and Liabilities of a Seller with respect to Taxes of any kind, whether relating to or attributable to the Business, to the Party for which a Seller or otherwise arising out of the transactions consummated Party is expressly made responsible pursuant to this Agreement, including the Equity Issuance other Transaction Documents and including, without limitation, the obligation of Seller to withhold and remit all Taxes of any kind that have been (or were required to have been) withheld from, assessed upon, or collected from employees, contractors or clients, but excluding any Taxes that are Purchaser’s obligation pursuant to Section 2.3 or Section 2.6;
(d) Any obligations or Liabilities of the Business or Seller relating to Laws, regulations, Permits or other Governmental Authorizations relating to the time period prior to the Closing including, without limitation, any fees, penalties, fines or other Governmental Charges;
(e) Any obligations or Liabilities of Seller to any employees (in all cases relating to the time period prior to the Closing) including obligations for salaries, compensation, benefits, sick pay, vacation pay, (including, but not limited to, any liability or penalties associated with any violation of any Laws regarding payment of vacation or paid time off upon termination or employment), bonuses, deferred compensation of any kind, severance or termination pay or remuneration of any kind any obligation or liability relating to the termination of any such employee including any termination relating to the consummation of the transactions set forth herein;
(f) Any obligation or liabilities of Seller under any Employee Plan;
(g) Any obligations or liabilities of Seller under any indebtednessTransactions, including, without limitation, convertible debtSeller Transaction Expenses;
(hb) Any obligations or liabilities any Liability for (i) Taxes of a Seller for transaction expenses, including, without limitation, any professional fees, including legal, accounting, and tax advisor fees, Party relating to the TransactionsRFG Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period; (ii) any sales or use tax liability of any of the Seller Parties that shall have accrued on or before the Closing Date; or (iii) other Taxes of Seller 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 Law;
(ic) Any obligations or liabilities any Liabilities relating to or arising out of the Excluded Assets; and;
(jd) Any other indebtedness any Liabilities in respect of any kind Proceeding arising out of, relating to or otherwise in respect of the operation of the RFG Business or the Purchased Assets to the extent such Proceeding relates to such operation prior to the Closing Date (the “Retained Litigation Liabilities”), including, but not limited to, those matters set forth in Schedule 2.4(d);
(e) any product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation, warranty, agreement or Guarantee made by Seller, or by reason of any recall, design defects or similar claims which arises out of or is based upon any products sold or any service performed by a Seller Party prior to the Closing Date, but not limited to, those matters set forth in Schedule 2.4(e);
(f) any Liabilities of the Seller Parties arising under or in connection with any RFG Employee Plan providing benefits to any present or former RFG Employee of a Seller Party for any period of time before the Closing Date (for the avoidance of doubt and notwithstanding anything in this Agreement to the contrary, Buyer will not assume any RFG Employee Plan);
(g) any Liabilities of a Seller Party for any present or former RFG Employees, agents or Independent Contractors of such Seller Party, including, without limitation, any Liabilities associated with any claims for wages or other benefits, workers’ compensation, severance, retention, termination or other payments for any period of time before the Closing Date;
(h) any Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions existing on or prior to the Closing;
(i) any trade accounts payablepayable of a Seller Party solely to the extent (i) not accounted for on the Final Closing Balance Sheet or the Final Closing Statement or otherwise included in the definition of Assumed Liabilities pursuant to Section 2.3; (ii) which constitute intercompany payables owing to Affiliates of Seller; or (iii) which constitute debt, loans or credit facilities to financial institutions;
(j) any PPP Loans Liabilities to the extent such Liabilities arise out of or deferred revenuerelate to a breach by a Seller Party of any and all Contracts, including Assigned Contracts, prior to Closing (unless included in Final Closing Working Capital);
(k) any Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, RFG Employee or agent of a Seller Party or any of its Affiliates (including with respect to any breach of fiduciary obligations by same), provided, however, that the foregoing shall not be deemed to limit any indemnification of same by Buyer pursuant to Section 7.2 hereof;
(l) any Seller Indebtedness;
(m) the Accrued Amounts;
(n) 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 order from a Governmental Authority prior to the Closing; and
(o) any Liabilities arising out of, in respect of or in connection with that certain RPC Use Agreement, dated September 22, 2023, by and between Tosca Services, LLC and RFG, as governed by that certain RPC Terms and Conditions of Use, undated, solely to the extent arising prior to the Closing Date.
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