Assignment and Assumption of Liabilities. inSilicon hereby assumes and agrees as of the Separation Date faithfully to pay, perform and fulfill all obligations under the following in accordance with their respective terms (the "SEMICONDUCTOR INTELLECTUAL PROPERTY LIABILITIES"): (a) all Liabilities reflected as "Liabilities" or obligations of inSilicon in the inSilicon Balance Sheet, subject to any discharge of such Liabilities after the date of the inSilicon Balance Sheet. (b) all Liabilities of Phoenix or its subsidiaries that arise after the date of the inSilicon Balance Sheet that would be reflected in the consolidated balance sheet of inSilicon as of the Separation Date if such consolidated balance sheet was prepared using the same principles and accounting policies under which the inSilicon Balance Sheet was prepared; (c) all Liabilities that are related primarily to the Business at the Separation Date but are not reflected in the inSilicon Balance Sheet due to mistake or unintentional omission; PROVIDED, HOWEVER, that no such Liability shall be a Semiconductor Intellectual Property Liability unless Phoenix, on or before the first anniversary of the IPO Date, has given inSilicon notice that such Liability is a Semiconductor Intellectual Property Liability; (d) except as may be explicitly provided in an Ancillary Agreement, all Liabilities whether arising before, on or after the Separation Date, primarily related to, arising out of or resulting from: (i) the operation of the Business, as conducted at any time prior to, on or after the Separation Date (including any Liability relating to, arising out of or resulting from any act or failure to act by any director, officer, employee, agent or representative (whether or not such act or failure to act is or was within such Person's authority)); (ii) the operation of any business conducted directly or indirectly by inSilicon at any time after the Separation Date (including any Liability relating to, arising out of or resulting from any act or failure to act by any director, officer, employee, agent or representative (whether or not such act or failure to act is or was within such Person's authority)); (iii) the Semiconductor Intellectual Property Assets; or (iv) the acquisition of Sand Microelectronics, Inc., including, but not limited to those related to, arising out of or resulting from the Agreement and Plan of Reorganization dated as of September 17, 1998 by and among Phoenix Technologies Ltd., Phoenix SubCorp., Sand Microelectronics Inc. and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇, the agreements referred to therein and the retention bonus program established in connection therewith.
Appears in 2 contracts
Sources: Contribution Agreement (Phoenix Technologies LTD), Contribution Agreement (Insilicon Corp)
Assignment and Assumption of Liabilities. inSilicon hereby assumes and agrees Effective as of the Separation Date faithfully to payRights Closing Effective Time, perform Service Provider hereby assigns and fulfill SHO hereby assumes and/or retains, all obligations under of the following liabilities, obligations and agreements with respect to the SHO Employees, whether arising before or after the Rights Closing Effective Time, except as expressly otherwise provided in accordance with their respective terms Section 3.4 (the "SEMICONDUCTOR INTELLECTUAL PROPERTY LIABILITIES"for purposes of this Agreement “Assumed Liabilities”):
(a) all Liabilities reflected as "Liabilities" or obligations of inSilicon in the inSilicon Balance Sheet, subject to any discharge of such Liabilities after the date of the inSilicon Balance Sheet.existing collective bargaining agreements;
(b) all Liabilities of Phoenix or its subsidiaries that arise after the date of the inSilicon Balance Sheet that would be reflected following obligations of Service Provider with respect to the SHO Employees: (i) accrued but unpaid salaries, wages, overtime, bonuses/incentives, including without limitation the incentive programs referred to in Section 3.3(e) below and the consolidated balance sheet related payroll taxes; (ii) liabilities for accrued but unpaid vacation, illness and other approved leaves of inSilicon as absence; and (iii) liabilities for insurance and pension contributions to multi-employer plans, if any, pursuant to the terms of the Separation Date if such consolidated balance sheet was prepared using the same principles and accounting policies under which the inSilicon Balance Sheet was preparedany applicable collective bargaining agreement;
(c) all Liabilities that are related primarily liabilities and requirements under COBRA with respect to all SHO Employees and their respective Plan Payees who, immediately prior to the Business at Rights Closing Effective Time, were participating in, or entitled to present or future benefits under the Separation Date but are not reflected in the inSilicon Balance Sheet due to mistake or unintentional omission; PROVIDED, HOWEVER, that no such Liability SHLD Welfare Plans (which shall be deemed to be a Semiconductor Intellectual Property Liability unless PhoenixSHO Welfare Plan during the Benefits Transition Period), pursuant to COBRA or who have a COBRA qualifying event (as defined in Section 4980B of the Code) on or before after the first anniversary of the IPO Date, has given inSilicon notice that such Liability is a Semiconductor Intellectual Property LiabilityRights Closing Effective Time;
(d) except as may be explicitly provided in an Ancillary Agreement, all Liabilities whether arising before, on or after the Separation Date, primarily related to, liabilities arising out of or resulting from:relating to all SHO Employment Agreements;
(e) all liabilities arising out of or relating to claims made by or with respect to SHO Employees under any SHLD Severance Plan;
(f) all accruals and outstanding liabilities arising out of or relating to (i) fiscal year 2012 under the SHLD AIP and (ii) the 2010, 2011 and, if applicable as of the Rights Closing Effective Time, the 2012 fiscal year accruals and liabilities under SHLD LTIP, to the extent attributable to Transferred Employees, in accordance with Section 3.5;
(g) all liabilities arising out of or relating to any SHO Cash Retention Award or Other Cash Retention Award, in accordance with Section 3.6;
(h) all other Liabilities with respect to the employment, service, termination of employment or termination of service of any SHO Employees, their respective Plan Payees, and other service providers (including any individual who is, or was, an independent contractor, temporary employee, temporary service worker, consultant, freelancer, agency employee, leased employee, on-call worker, incidental worker, or nonpayroll worker of any member of SHO or in any other employment, non-employment, or retainer arrangement, or relationship with any member of SHO), in each case to the extent arising in connection with or as a result of employment with or the performance of services for the SHO Business from and after the Rights Closing Effective Time, and
(i) the operation all other SHO Employee Liabilities, except as excluded under Section 3.4(b), (c) and (d). Effective as of the BusinessRights Closing Effective Time, as conducted at SHO shall be solely responsible for all the SHO Assumed Liabilities, and SHMC and its Affiliates shall not have any time prior toobligation for SHO Employee Liabilities. SHMC will provide copies of all SHO Employment Agreements and other assumed documents to SHO. SHMC shall use reasonable efforts to transfer or cause to be transferred to SHO documentation related to such SHO Employment Agreements, on or after including offer letters, agreements and other instruments reasonably required for the Separation Date (including any Liability relating to, arising out maintenance and administration of or resulting from any act or failure to act by any director, officer, employee, agent or representative (whether or not such act or failure to act is or was within such Person's authority));
(ii) the operation of any business conducted directly or indirectly by inSilicon at any time after the Separation Date (including any Liability relating to, arising out of or resulting from any act or failure to act by any director, officer, employee, agent or representative (whether or not such act or failure to act is or was within such Person's authority));
(iii) the Semiconductor Intellectual Property Assets; or
(iv) the acquisition of Sand Microelectronics, Inc., including, but not limited to those related to, arising out of or resulting from the Agreement and Plan of Reorganization dated as of September 17, 1998 by and among Phoenix Technologies Ltd., Phoenix SubCorp., Sand Microelectronics Inc. and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇, the agreements referred to therein and the retention bonus program established in connection therewith.SHO Employment Agreements
Appears in 2 contracts
Sources: Employee Transition and Administrative Services Agreement (Sears Hometown & Outlet Stores, Inc.), Employee Transition and Administrative Services Agreement (Sears Hometown & Outlet Stores, Inc.)
Assignment and Assumption of Liabilities. inSilicon hereby assumes and agrees as of the Separation Date faithfully to pay, perform and fulfill all obligations under the following in accordance with their respective terms (the "SEMICONDUCTOR INTELLECTUAL PROPERTY LIABILITIES"):
(a) all Liabilities reflected as "Liabilities" Subject to the terms and conditions set forth in this Agreement, Purchaser shall only assume from Sellers and thereafter be responsible for the payment, performance or discharge of the following liabilities and obligations of inSilicon in Sellers (all such liabilities and obligations herein called the inSilicon Balance Sheet, subject to any discharge of such Liabilities after the date of the inSilicon Balance Sheet.
(b) all Liabilities of Phoenix or its subsidiaries that arise after the date of the inSilicon Balance Sheet that would be reflected in the consolidated balance sheet of inSilicon as of the Separation Date if such consolidated balance sheet was prepared using the same principles and accounting policies under which the inSilicon Balance Sheet was prepared;
(c) all Liabilities that are related primarily to the Business at the Separation Date but are not reflected in the inSilicon Balance Sheet due to mistake or unintentional omission; PROVIDED, HOWEVER, that no such Liability shall be a Semiconductor Intellectual Property Liability unless Phoenix, on or before the first anniversary of the IPO Date, has given inSilicon notice that such Liability is a Semiconductor Intellectual Property Liability;
(d) except as may be explicitly provided in an Ancillary Agreement, all Liabilities whether arising before, on or after the Separation Date, primarily related to, arising out of or resulting from:“Assumed Obligations”):
(i) obligations under the operation of Assumed Executory Contracts first arising on the Business, as conducted at any time prior to, on or after the Separation Closing Date (including but excluding liabilities for breaches of any Liability relating to, arising out of such contracts or resulting from any act or failure commitments occurring prior to act by any director, officer, employee, agent or representative (whether or not such act or failure to act is or was within such Person's authority)the Closing Date);
(ii) up to an aggregate amount of $3,000,000 of the operation of any business conducted directly or indirectly by inSilicon at any time after the Separation Date (including any Liability relating topost-petition trade accounts payables, arising out of or resulting from any act or failure to act by any director, officer, employee, agent or representative (whether or not such act or failure to act is or was within such Person's authority))expressly set forth on Schedule 2.2(a) attached hereto;
(iii) any obligations associated with the Semiconductor Intellectual Property AssetsAssumed Plans; orprovided that claims incurred but not reported under any self-insured medical plan that is an Assumed Plan shall not exceed $800,000;
(iv) up to an aggregate amount of $2,700,000 of obligations with respect to any unpaid base wages (including overtime), base salary and commissions (including associated employee withholding and employer Taxes) for any Rehired Employee attributable to services provided to Sellers during the acquisition of Sand Microelectronics, Inc., including, but not limited to those related to, arising out of or resulting from the Agreement and Plan of Reorganization dated most recent payroll schedule as of September 17the Closing Date, 1998 by and among Phoenix Technologies Ltd., Phoenix SubCorp., Sand Microelectronics Inc. and deferred compensation under the deferred compensation plans listed on Schedule 2.2(a)(iv) attributable to any Person (other than ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇) who is a current or former employee of the Sellers, ▇▇▇▇▇ ▇▇▇▇▇ unused vacation, and ▇▇▇▇ ▇▇▇▇▇unused sick leave attributable to any Rehired Employee, in each case earned and accrued in the ordinary course of business and set forth on Schedule 2.2(a)(iv); provided, however, that (i) the $2,700,000 set forth in this Section 2.2(a)(iv) shall first be used to pay such base salary and commissions (including associated employee withholding and employer Taxes) incurred or accrued, unused vacation, and unused sick leave attributable to any Rehired Employee and after such obligations are paid, the agreements referred residual amount of such $2,700,000, if any, shall be used to therein provide deferred compensation (which value, for the avoidance of doubt, shall be the net present value of those deferred compensation liabilities as determined in accordance with GAAP) to any Person who is a current or former employee of the Sellers, (ii) instead of assuming the deferred compensation plans listed on Schedule 2.2(a)(iv) with respect to the deferred compensation obligation set forth above, Purchaser may, in its sole discretion, elect to establish a new deferred compensation plan as of or after the Closing, to provide substantially similar deferred compensation benefits (as determined by Purchaser) in aggregate amount not to exceed the amount determined in accordance with clause (i) above, to any applicable Person who is a current or former employee of the Sellers who is a participant under Sellers’ deferred compensation plan set forth in Schedule 2.2(a)(iv), and (iii) any such Person who is a current or former employee of the Sellers who is a participant in Sellers’ deferred compensation plan who does not sign a release acceptable to Purchaser relinquishing Sellers from all liabilities under Sellers’ deferred compensation plans shall not be eligible to participate in or receive benefits under Purchase’s new deferred compensation plan;
(v) transfer, sales, conveyancing, recording and similar Taxes and charges, whether applicable to Sellers or Purchaser, relating to the sale of the Acquired Assets and the retention bonus program established assumption of the Assumed Obligations, if any; and
(vi) to the extent set forth in connection therewithSection 2.6, any cure obligations (pursuant to section 365 of the Bankruptcy Code) with respect to any Assumed Executory Contract.
(b) Notwithstanding anything in this Agreement to the contrary, Sellers hereby acknowledge and agree that Purchaser is not assuming from Sellers, or is in any way responsible for, the Unassumed Liabilities and that to the extent any items set forth in the categories above exceed the dollar limitations in such categories, Sellers shall pay such items.
(c) Section 2.2(a) shall not limit any claims or defenses Purchaser may have against any party other than Sellers. The transactions contemplated by this Agreement shall in no way expand the rights or remedies of any Third Party against Purchaser or Sellers as compared to the rights and remedies which such Third Party would have had against Sellers absent the Chapter 11 Cases had Purchaser not assumed such Assumed Obligations.
Appears in 1 contract
Assignment and Assumption of Liabilities. inSilicon hereby assumes (a) Subject to the terms and agrees as conditions set forth in this Agreement, U.S. Purchaser shall only assume from the Sellers and thereafter be responsible for the payment, performance or discharge of the Separation Date faithfully to pay, perform following liabilities and fulfill all obligations under the following in accordance with of Sellers or any of their respective terms predecessors in interest (all such liabilities and obligations assumed by U.S. Purchaser pursuant to this Section 2.3(a) shall be referred to herein as the "SEMICONDUCTOR INTELLECTUAL PROPERTY LIABILITIES"“Assumed Obligations”):
(ai) all Liabilities reflected as "Liabilities" or obligations of inSilicon Chesapeake Printing and Packaging Company related to the Facility in Lexington, North Carolina and Chesapeake Pharmaceutical Packaging Company Inc. related to the Facilities in Hicksville, New York and Raleigh, North Carolina, in each case, reflected under the account titles set forth on Schedule 2.3(a)(i) (the “Accrued OCB Expenses”), which such account titles are under the headings “accounts payable” and “accrued expenses” on the face of the balance sheet dated as of September 28, 2008 included in the inSilicon Balance SheetLatest 10-Q and all accounts payable, subject accrued expenses and other obligations of Chesapeake Printing and Packaging Company related to any discharge of such Liabilities the Facility in Lexington, North Carolina and Chesapeake Pharmaceutical Packaging Company Inc. related to the Facilities in Hicksville, New York and Raleigh, North Carolina, in each case, incurred after the date of the inSilicon Balance SheetLatest 10-Q in the Ordinary Course of Business which would have been included in the Accrued OCB Expenses had such obligations occurred prior to September 28, 2008, applying an accounting methodology consistent with the methodology used in the Latest 10-Q, in each case, to the extent such obligations are outstanding as of Closing;
(ii) all executory obligations of Sellers under the Assumed Executory Contracts;
(iii) all obligations of Sellers under the Retention Agreements;
(iv) all General Severance Obligations of the Company;
(v) the sponsorship of the Assumed Employee Benefit Plans, but for the avoidance of doubt, excluding any Liabilities related to such Employee Benefit Plans arising from the breach of any representation or warranty or covenant hereunder;
(vi) all intercompany obligations of any Seller to any of the Foreign Subsidiaries; and
(vii) all obligations of Sellers under the Credit Facility as restructured as of Closing to constitute the Debt Financing.
(b) all Liabilities Section 2.3(a) shall not limit any claims or defenses Purchasers may have against any party other than Sellers. The transactions contemplated by this Agreement shall in no way expand the rights or remedies of Phoenix any Third Party against Purchasers or its subsidiaries that arise after the date of the inSilicon Balance Sheet that would be reflected in the consolidated balance sheet of inSilicon Sellers as of the Separation Date if such consolidated balance sheet was prepared using the same principles and accounting policies under which the inSilicon Balance Sheet was prepared;
(c) all Liabilities that are related primarily compared to the Business at rights and remedies which such Third Party would have had against Sellers absent the Separation Date but are Chapter 11 Cases had Purchasers not reflected in the inSilicon Balance Sheet due to mistake or unintentional omission; PROVIDED, HOWEVER, that no assumed such Liability shall be a Semiconductor Intellectual Property Liability unless Phoenix, on or before the first anniversary of the IPO Date, has given inSilicon notice that such Liability is a Semiconductor Intellectual Property Liability;
(d) except as may be explicitly provided in an Ancillary Agreement, all Liabilities whether arising before, on or after the Separation Date, primarily related to, arising out of or resulting from:
(i) the operation of the Business, as conducted at any time prior to, on or after the Separation Date (including any Liability relating to, arising out of or resulting from any act or failure to act by any director, officer, employee, agent or representative (whether or not such act or failure to act is or was within such Person's authority));
(ii) the operation of any business conducted directly or indirectly by inSilicon at any time after the Separation Date (including any Liability relating to, arising out of or resulting from any act or failure to act by any director, officer, employee, agent or representative (whether or not such act or failure to act is or was within such Person's authority));
(iii) the Semiconductor Intellectual Property Assets; or
(iv) the acquisition of Sand Microelectronics, Inc., including, but not limited to those related to, arising out of or resulting from the Agreement and Plan of Reorganization dated as of September 17, 1998 by and among Phoenix Technologies Ltd., Phoenix SubCorpAssumed Obligations., Sand Microelectronics Inc. and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇, the agreements referred to therein and the retention bonus program established in connection therewith.
Appears in 1 contract
Assignment and Assumption of Liabilities. inSilicon hereby assumes and agrees Effective as of the Separation Date faithfully to payConversion Date, perform Service Provider hereby assigns and fulfill SHO hereby assumes, all obligations under of the following obligations and agreements with respect to the Service Employees, whether arising before or after the Conversion Date, except as expressly otherwise provided in accordance with their respective terms Section 4.5 (the "SEMICONDUCTOR INTELLECTUAL PROPERTY LIABILITIES"for purposes of this Agreement “Assumed Liabilities”):
(a) all Liabilities reflected as "Liabilities" or obligations of inSilicon in the inSilicon Balance Sheet, subject to any discharge of such Liabilities after the date of the inSilicon Balance Sheet.existing collective bargaining agreements;
(b) all Liabilities of Phoenix or its subsidiaries that arise after the date of the inSilicon Balance Sheet that would be reflected following obligations of Service Provider with respect to the Service Employees (except to the extent such obligation arises from SRC’s breach of its obligations under this Agreement): (i) accrued but unpaid salaries, wages, overtime, bonuses/incentives, including without limitation the Service Employee AIP and Service Employee LTIP and the related payroll taxes; (ii) liabilities for accrued but unpaid vacation, illness and other approved leaves; and (iii) liabilities for insurance and pension contributions to multi-employer plans pursuant to the terms of any applicable collective bargaining agreement, and (iv) the COBRA liabilities described in the consolidated balance sheet of inSilicon as of the Separation Date if such consolidated balance sheet was prepared using the same principles and accounting policies under which the inSilicon Balance Sheet was preparedSection 4.5(b);
(c) all Liabilities that are related primarily liabilities arising out of or relating to all SHO Employment Agreements, except to the Business at the Separation Date but are not reflected in the inSilicon Balance Sheet due to mistake or unintentional omission; PROVIDED, HOWEVER, that no extent such Liability shall be a Semiconductor Intellectual Property Liability unless Phoenix, on or before the first anniversary liabilities arise from SRC’s breach of the IPO Date, has given inSilicon notice that such Liability is a Semiconductor Intellectual Property Liabilityits responsibilities under this Agreement;
(d) except as may be explicitly provided in an Ancillary Agreement, all Liabilities whether arising before, on or after the Separation Date, primarily related to, liabilities arising out of or resulting from:relating to any SHLD Severance Plan, as described in subsection 3.4(e)(i);
(ie) the operation of the Business, as conducted at any time prior to, on or after the Separation Date (including any Liability relating to, all outstanding liabilities arising out of or resulting from relating to any act Service Employee Incentive Plan or failure to act by any director, officer, employee, agent or representative (whether or not such act or failure to act is or was within such Person's authority))Service Employee LTIP;
(iif) the operation of any business conducted directly or indirectly by inSilicon at any time after the Separation Date (including any Liability relating to, all liabilities arising out of or resulting relating to any Cash Retention Award or Other Cash Retention Award, except to the extent such liabilities is arise from any act or failure to act by any director, officer, employee, agent or representative (whether or not such act or failure to act is or was within such Person's authority))SRC’s breach of its responsibilities under this Agreement;
(iiig) all other Liabilities with respect to the Semiconductor Intellectual Property Assets; oremployment, service, termination of employment or termination of service of any Service Employees, their respective Plan Payees, and other service providers (including any individual who is, or was, an independent contractor, temporary employee, temporary service worker, consultant, freelancer, agency employee, leased employee, on-call worker, incidental worker, or nonpayroll worker of any member of SHO or in any other employment, non-employment, or retainer arrangement, or relationship with any member of SHO), in each case to the extent arising in connection with or as a result of employment with or the performance of services for the SHO Business from and after the Conversion Date, and
(ivh) all other SHO Employee Liabilities. Pursuant to such assignment and assumption agreements, SHO shall be solely responsible for all the acquisition of Sand MicroelectronicsAssumed Liabilities, Inc., including, but and SRC shall not limited to those related to, arising out of or resulting from the Agreement and Plan of Reorganization dated as of September 17, 1998 by and among Phoenix Technologies Ltd., Phoenix SubCorpretain any Assumed Liabilities., Sand Microelectronics Inc. and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇, the agreements referred to therein and the retention bonus program established in connection therewith.
Appears in 1 contract
Sources: Employee Transition and Administrative Services Agreement (Sears Hometown & Outlet Stores, Inc.)
Assignment and Assumption of Liabilities. inSilicon hereby assumes (a) Subject to the terms and agrees as conditions set forth in this Agreement, Buyer shall assume from Seller and thereafter be responsible for the payment, performance or discharge of the Separation Date faithfully to pay, perform following liabilities and fulfill obligations of Seller (all such liabilities and obligations under the following in accordance with their respective terms (herein called the "SEMICONDUCTOR INTELLECTUAL PROPERTY LIABILITIESAssumed Liabilities"):
(ai) all Liabilities reflected as "Liabilities" or obligations of inSilicon in under the inSilicon Balance SheetAssumed Executory Contracts, subject to any discharge of such Liabilities arising after the date of the inSilicon Balance Sheet.
(b) all Liabilities of Phoenix or its subsidiaries that arise after the date of the inSilicon Balance Sheet that would be reflected in the consolidated balance sheet of inSilicon as of the Separation Date if such consolidated balance sheet was prepared using the same principles and accounting policies under which the inSilicon Balance Sheet was prepared;
(c) all Liabilities that are related primarily to the Business at the Separation Date but are not reflected in the inSilicon Balance Sheet due to mistake or unintentional omission; PROVIDED, HOWEVER, that no such Liability shall be a Semiconductor Intellectual Property Liability unless Phoenix, on or before the first anniversary of the IPO Date, has given inSilicon notice that such Liability is a Semiconductor Intellectual Property Liability;
(d) except as may be explicitly provided in an Ancillary Agreement, all Liabilities whether arising before, on or after the Separation Date, primarily related to, arising out of or resulting from:
(i) the operation of the Business, as conducted at any time prior to, on or after the Separation Date (including any Liability relating to, arising out of or resulting from any act or failure to act by any director, officer, employee, agent or representative (whether or not such act or failure to act is or was within such Person's authority))Closing;
(ii) the operation post-petition trade payables or other liabilities incurred in the Ordinary Course of Business on or prior to February 7, 2003 as set forth on Schedule 2.2(a)(ii) (Post Petition Trade Payables) attached hereto, and such other post-petition trade payables and other liabilities incurred in the Ordinary Course of Business after February 7, 2003 as reflected on the Closing Balance Sheet, but in all cases expressly excluding any business conducted directly or indirectly by inSilicon at any time after liabilities related to professional fees in connection with the Separation Date (Chapter 11 Case and expressly including any Liability relating to, arising out of or resulting from any act or failure to act by any director, officer, employee, agent or representative (whether or not such act or failure to act is or was within such Person's authority))all Outstanding Checks;
(iii) the Semiconductor Intellectual Property Assets; orobligations to provide services or merchandise in respect to Customer Deposits;
(iv) the acquisition of Sand MicroelectronicsAssumed Plans and, Inc., including, but to the extent not limited paid or contributed to those related to, arising out of or resulting from the Agreement and Plan of Reorganization dated Assumed Plans as of September 17the Closing Date, 1998 any benefit payment or contribution obligations under the Assumed Plans arising before the Closing Date (the recording of which shall be reflected on the Closing Balance Sheet);
(v) to the extent reflected on the Closing Balance Sheet, any obligations with respect to any unused vacation, sick leave, bonuses or commissions earned and accrued (to the extent not paid) as of the Closing Date with respect to the Transferred Employees
(vi) any severance obligations to the extent reflected on Schedule 2.8 attached hereto which have not been paid by Seller as of the Closing (the "Severance Obligations");
(vii) COBRA Obligations;
(viii) to the extent reflected on the Closing Balance Sheet, any obligations with respect to Transferred Employees' wages and among Phoenix Technologies Ltd.salary earned and accrued (to the extent not paid) as of the Closing Date;
(ix) Purchase Orders and obligations of Seller to purchase goods, Phoenix SubCorp., Sand Microelectronics Inc. in each case incurred in the Ordinary Course of Business and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇, existing on the agreements referred to therein and the retention bonus program established in connection therewith.Closing Date; and
Appears in 1 contract
Assignment and Assumption of Liabilities. inSilicon hereby assumes (a) Subject to the terms and agrees as of the Separation Date faithfully to conditions set forth in this Agreement, Purchaser shall assume from Sellers and thereafter pay, perform and fulfill all obligations under the following or discharge in accordance with their respective terms terms, and shall indemnify and hold Sellers harmless from, the following liabilities and obligations of Sellers (all such liabilities and obligations herein called the "SEMICONDUCTOR INTELLECTUAL PROPERTY LIABILITIESAssumed Obligations"):
): (ai) all Liabilities reflected as "Liabilities" or obligations of inSilicon under the Assumed Facility Leases first arising after the Closing; (ii) obligations under the Assumed Equipment Leases first arising after the Closing; (iii) obligations under the Assumed Contracts first arising after the Closing, (iv) any cure obligations (up to but in no case exceeding $4,500,000 in the inSilicon Balance Sheet, subject aggregate) set forth on Schedule 4.17 with respect to the Assumed Executory Contracts; (v) obligations with respect to any discharge unused vacation or sick leave earned and accrued (to the extent not paid) by all Persons employed by any of such Liabilities after the date of the inSilicon Balance Sheet.
(b) all Liabilities of Phoenix or its subsidiaries that arise after the date of the inSilicon Balance Sheet that would be reflected in the consolidated balance sheet of inSilicon Sellers as of the Separation Date if such consolidated balance sheet was prepared using the same principles Closing Date; (vi) any obligation with respect to wages and accounting policies under which the inSilicon Balance Sheet was prepared;
salary and commissions earned and accrued (c) all Liabilities that are related primarily to the Business at extent not paid) by all Persons employed by any of Sellers as of the Separation Date Closing Date; (vii) obligations under the Retention Plan; (viii) obligations with respect to payroll taxes; (ix) obligations with respect to capitalized leases; (x) obligations with respect to customer deposits; (xi) obligations with respect to deferred franchising fees; (xii) obligations with respect to health insurance claims incurred but are not reflected reported (to the extent not paid) by all Persons employed by any of Sellers as of the Closing Date; (xiii) obligations with respect to any underfunding in connection with the advertising fund contemplated under Sellers' franchise agreements in an amount not to exceed $500,000 in the inSilicon Balance Sheet aggregate; (xiv) obligations with respect to the funding of all of Sellers' July 2002 rent obligations due to mistake or unintentional omissionon account of non-residential real property leases and equipment leases; PROVIDEDand (xv) obligations, HOWEVER, that no such Liability shall be a Semiconductor Intellectual Property Liability unless Phoenix, on or before the first anniversary of the IPO Date, has given inSilicon notice that such Liability is a Semiconductor Intellectual Property Liability;
(d) except as may be explicitly provided in an Ancillary Agreementamount not to exceed $1,100,000 in the aggregate, all Liabilities whether arising before, on or after with respect to payables coming due in the Separation Date, primarily related to, arising out ordinary course of or resulting from:
(i) business in July 2002 which were not paid by Sellers by borrowing under the operation of the Business, as conducted at any time prior to, on or after the Separation Date (including any Liability relating to, arising out of or resulting from any act or failure to act by any director, officer, employee, agent or representative (whether or not such act or failure to act is or was within such Person's authority));
(ii) the operation of any business conducted directly or indirectly by inSilicon at any time after the Separation Date (including any Liability relating to, arising out of or resulting from any act or failure to act by any director, officer, employee, agent or representative (whether or not such act or failure to act is or was within such Person's authority));
(iii) the Semiconductor Intellectual Property Assets; or
(iv) the acquisition of Sand Microelectronics, Inc.Senior Facility, including, but not limited to those related to, arising out those set forth on Schedule 2.2.
(b) The transactions contemplated by this Agreement shall in no way expand the rights or remedies of any Third Party against Purchaser or resulting from Sellers as compared to the Agreement rights and Plan of Reorganization dated as of September 17remedies which such Third Party would have had against Sellers absent the Chapter 11 Cases, 1998 by and among Phoenix Technologies Ltd., Phoenix SubCorphad Purchaser not assumed such Assumed Obligations., Sand Microelectronics Inc. and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇, the agreements referred to therein and the retention bonus program established in connection therewith.
Appears in 1 contract
Sources: Asset Purchase Agreement (Childtime Learning Centers Inc)
Assignment and Assumption of Liabilities. inSilicon hereby assumes (a) Subject to the terms and agrees conditions set forth in this Agreement, including Section 2.3 hereto, U.S. Purchaser shall assume from Sellers and thereafter be responsible for the payment, performance or discharge of only the following liabilities and obligations of Sellers or any of their respective predecessors in interest (all such liabilities and obligations assumed pursuant to this Section 2.3(a) shall be referred to herein as of the Separation Date faithfully "Assumed Obligations"):
(i) to paythe extent set forth next to any Assumed Executory Contract on Schedule 2.3(a)(i), perform and fulfill any Cure Amount with respect to such Assumed Executory Contract;
(ii) all obligations under the following in accordance with their respective terms (Assumed Executory Contracts arising after the "SEMICONDUCTOR INTELLECTUAL PROPERTY LIABILITIES"):Closing Date;
(aiii) all obligations and Liabilities arising under the Assumed Employee Benefit Plans after the Closing, and, to the extent reflected as "Liabilities" or on the Closing Net Asset Value Statement, all obligations of inSilicon and Liabilities arising under the Assumed Employee Benefit Plans prior to the Closing;
(iv) to the extent reflected on the Closing Net Asset Value Statement, all unpaid post-petition trade payables incurred in the inSilicon Balance SheetOrdinary Course of Business and all other post-petition Liabilities incurred in the Ordinary Course of Business (including the fees and expenses of ordinary course professionals);
(v) to the extent reflected on the Closing Net Asset Value Statement, subject all obligations with respect to any discharge of such Liabilities after unused vacation earned and accrued with respect to the date Rehired Employees as of the inSilicon Balance SheetClosing Date, all obligations due to Sellers' employees as of the Closing with respect to wages, bonuses, commissions, payroll, salaries, employee benefits, retention or stay bonus arrangements, unused vacation, sick leave, other compensation, workers' compensation and severance (not including, for avoidance of doubt, obligations and Liabilities with respect to the Pension Plans);
(vi) to the extent reflected on the Closing Net Asset Value Statement, all warranty Claims of Sellers' customers with respect to sales of products or services prior to the Closing Date; and
(vii) to the extent reflected on the Closing Net Asset Value Statement, all unpaid real property Taxes with respect to the Acquired Owned Real Property in an amount that does not exceed $2,500,000.
(b) all Liabilities Section 2.3(a) shall not limit any Claims or defenses Purchasers may have against any party other than Sellers. The transactions contemplated by this Agreement shall in no way expand the rights or remedies of Phoenix any Third Party against Purchasers or its subsidiaries that arise after the date of the inSilicon Balance Sheet that would be reflected in the consolidated balance sheet of inSilicon Sellers as of the Separation Date if such consolidated balance sheet was prepared using the same principles and accounting policies under which the inSilicon Balance Sheet was prepared;
(c) all Liabilities that are related primarily compared to the Business at rights and remedies which such Third Party would have had against Sellers absent the Separation Date but are Chapter 11 Cases had Purchasers not reflected in the inSilicon Balance Sheet due to mistake or unintentional omission; PROVIDED, HOWEVER, that no assumed such Liability shall be a Semiconductor Intellectual Property Liability unless Phoenix, on or before the first anniversary of the IPO Date, has given inSilicon notice that such Liability is a Semiconductor Intellectual Property Liability;
(d) except as may be explicitly provided in an Ancillary Agreement, all Liabilities whether arising before, on or after the Separation Date, primarily related to, arising out of or resulting from:
(i) the operation of the Business, as conducted at any time prior to, on or after the Separation Date (including any Liability relating to, arising out of or resulting from any act or failure to act by any director, officer, employee, agent or representative (whether or not such act or failure to act is or was within such Person's authority));
(ii) the operation of any business conducted directly or indirectly by inSilicon at any time after the Separation Date (including any Liability relating to, arising out of or resulting from any act or failure to act by any director, officer, employee, agent or representative (whether or not such act or failure to act is or was within such Person's authority));
(iii) the Semiconductor Intellectual Property Assets; or
(iv) the acquisition of Sand Microelectronics, Inc., including, but not limited to those related to, arising out of or resulting from the Agreement and Plan of Reorganization dated as of September 17, 1998 by and among Phoenix Technologies Ltd., Phoenix SubCorpAssumed Obligations., Sand Microelectronics Inc. and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇, the agreements referred to therein and the retention bonus program established in connection therewith.
Appears in 1 contract
Sources: Asset Purchase Agreement