Excluded Liabilities Sample Clauses
POPULAR SAMPLE Copied 132 times
Excluded Liabilities. Notwithstanding anything to the contrary contained in this Agreement or any of the Other Acquisition Documents, Seller acknowledges that Seller shall retain and satisfy, and Purchaser shall not assume or otherwise be responsible or liable for, any Liabilities or obligations of Seller other than the Assumed Liabilities, whether or not relating to the Acquired Assets (collectively, the “Excluded Liabilities”). For the avoidance of doubt, Excluded Liabilities shall include the following:
(a) those Liabilities which are allocated to Seller with respect to the Channel Liabilities, as defined and set forth in Section 9.08 hereof;
(b) any Liability arising under or relating to the Transferred Contracts arising prior to the Closing Date, including any obligation for monies due but not yet payable (including, but not limited to, royalties or milestones, as applicable) as of the Closing Date under any Transferred Contract;
(c) any Liabilities resulting from (1) any breach or violation of any Transferred Contract by Seller occurring prior to the Closing or (2) any act or omission of Seller prior to the Closing that would have constituted a breach or violation upon notice or passage of time under any Transferred Contract;
(d) 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 guaranty made by Seller, or by reason of the improper performance or malfunctioning of an Acquired Asset, improper design or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any Product manufactured or sold prior to the Closing Date, or any service performed by Seller prior to the Closing Date;
(e) any recall, design defect or similar claims of any Product sold or any service performed by Seller prior the Closing Date;
(f) any Liability resulting from or arising out of the conduct of business by Seller or any Affiliate of Seller or the ownership of the Excluded Assets, whether before, on or after the Closing;
(g) all Liabilities for rebates or chargebacks with respect to the Product dispensed prior to the Closing Date;
(h) any Liability of Seller for expenses or fees incident to or arising out of the negotiation, preparation, approval or authorization of this Agreement, the Other Acquisition Documents or the consummation (or preparation for the consummation) of the transactions contemplated hereby and thereby (including a...
Excluded Liabilities. Any Liability of Seller or its Affiliates, to the extent it is not an Assumed Liability, is an Excluded Liability (collectively, the “Excluded Liabilities”), and Buyer will not assume and will not be obligated to pay, perform or discharge any such Liabilities. Without limiting the generality of the foregoing, the following are Excluded Liabilities and Buyer will not assume and will not be obligated to pay, perform or discharge such Liabilities of Seller or its Affiliates:
(a) all Indebtedness;
(b) all Liabilities for Taxes that relate to the Purchased Assets, the Business or the Assumed Liabilities for Taxable periods (or portions thereof) ending on or before the Closing Date, for payments under any Tax allocation, sharing or similar agreement that relate to the Purchased Assets, the Business or the Assumed Liabilities, imposed under any bulk transfer Law of any jurisdiction, under any de facto merger Law, successor liability Law or any other Law or as a result of the application of Section 6901 of the Code or any similar Law, in each case with respect to the Purchased Assets, the Business or the Assumed Liabilities, for Taxes of Seller or any of its Affiliates and for Seller’s or any Affiliate’s share of any Transfer Taxes pursuant to Section 10.1;
(c) all Liabilities described in Section 2.4(c) of the Seller Disclosure Schedule;
(d) all Liabilities relating to or arising under any Excluded Asset;
(e) all Liabilities relating to the operation of the Business and the ownership of the Purchased Assets on or before the Closing Date, including all liabilities arising out of goods sold or services rendered by the Business on or prior to the Closing Date, including under contractual warranty agreements to service the Business Products delivered on or prior to the Closing Date;
(f) all Liabilities relating to the employment or termination of employment of any of the Business Employees with or by Seller, including all obligations and Liabilities relating to compensation, benefits (including under any pension or defined benefits plan), severance, change-in-control payments, bonus payments, unpaid vacation and paid time off, and Liabilities arising under OSHA or the Workers Adjustment and Retraining Notification Act of 1988, as amended, 29 U.S.C. §§ 2101, et seq., and similar Laws (collectively, the “WARN Act”), except (i) as agreed for services relating to Business Employees after the Closing pursuant to the Employee Services Agreement, (ii) to the extent provided...
Excluded Liabilities. Except for the Assumed Lap-Band Liabilities, ReShape shall not assume, and shall have no liability for, any Liabilities of Apollo or any Apollo Affiliate of any kind, character or description, it being understood that ReShape is expressly disclaiming any express or implied assumption of any Liabilities other than the Assumed Lap-Band Liabilities including, without limitation all Liabilities arising out of, resulting from or relating to (collectively, the “Excluded Apollo Liabilities”):
(a) any and all Claims, regardless of when such Claim was first commenced or made, that arose out of, relates to or results from the development, nonclinical and clinical testing, commercialization, manufacture, storage, packaging, import, marketing, labeling, pricing, distribution, sale or use of the Apollo Lap-Band Product or any of the Apollo Lap-Band Assets, in each case, prior to the Closing, including all such Claims relating to warranty obligations, marketing programs, patient incentive programs and alleged intellectual property infringement;
(b) any and all products liability Claims that arose out of, relates to or results from any Apollo Lap-Band Product sold prior to the Closing (including Claims alleging defects in such Apollo Lap-Band Product and Claims involving the death of or injury to any individual relating to such Apollo Lap-Band Product);
(c) any recalls (including after the Closing) mandated by any Governmental Body with respect to any Apollo Lap-Band Products manufactured or sold prior to the Closing;
(d) any and all Claims for Apollo Lap-Band Products manufactured prior to the Closing, including but not limited to product liability and infringement of Intellectual Property whether or not sold prior to the Closing;
(e) any of the Excluded Apollo Assets;
(f) Taxes (other than Transfer Taxes, which shall be governed solely by Section 2.8) (i) in respect of or imposed upon Apollo or any of its Affiliates for any taxable period, or (ii) imposed with respect to the Apollo Lap-Band Assets or the Apollo Lap-Band Business for any taxable period (or portion thereof) ending on or prior to the Closing Date;
(g) any Contract, other than an Apollo Lap-Band Business Contract and subject to the limitations set forth in Section 1.3, to which Apollo or any of its Affiliates is a party or by which any of its properties or assets are otherwise bound;
(h) any current or former employee or contractor of Apollo, or any of its Affiliates;
(i) all Apollo Accounts Payable, inclu...
Excluded Liabilities. Purchaser shall not assume and shall not be responsible to pay, perform or discharge any of the following Liabilities or obligations of Seller (collectively, the “Excluded Liabilities”): (i) Liabilities relating to or arising out of the ownership or leasing of the Purchased Property prior to the Closing Date; (ii) any liability arising out of any Action pending as of the Closing Date; (iii) Liabilities for Taxes relating to or arising out of the Focus Factor Business accruing prior to the Closing Date (including, without limitation, accrued sales taxes); (iv) liabilities for Taxes of the Seller, whether or not relating to or arising out of the Focus Factor business and whether or not incurred prior to the Closing date, including, without limitation, any Taxes payable by the Seller resulting from payments made pursuant to this Agreement; (v) any deferred Taxes of any nature; (vi) one-half of the Transfer Taxes, if applicable; (vii) any liability of Seller having to do with a business other than the Focus Factor Business; (viii) any liability with respect to any Employee or former employee of Seller, or any consultant retained by Seller; (ix) any liability to any Governmental entity arising out of or resulting from Seller’s compliance or noncompliance with any law, regulation, order, injunction, judgment, decree, ruling, assessment or award (an “Order”) of any Government entity (i.e., the liability is imposed by the Government entity); (x) any liability of Seller under this Agreement or any other document executed in connection with the transactions contemplated by this Agreement; and (xi) any liability of Seller based on Seller’s actions or omissions occurring after the Closing Date.
Excluded Liabilities. Buyer is assuming only the Assumed Liabilities from Seller and the Retained Subsidiaries and is not assuming any other Liability of Seller or any of the Retained Subsidiaries of whatever nature, whether presently in existence or arising hereafter. All such other Liabilities shall be retained by and remain Liabilities of Seller or the Retained Subsidiaries, as applicable (all such Liabilities not being assumed being herein referred to as the “Excluded Liabilities”), including the following (which shall be Excluded Liabilities):
(a) all Liabilities to the extent arising out of or relating to the operation or conduct by Seller or any of its Subsidiaries of any Retained Business;
(b) all Liabilities to the extent arising out of or relating to any Excluded Asset;
(c) all Liabilities and commitments in respect of Taxes, other than those Liabilities and commitments for which Buyer is responsible pursuant to Section 8.02;
(d) all Liabilities and commitments relating to (i) current or former employees of Seller, any of the Purchased Subsidiaries or any of the Retained Subsidiaries other than, in each case, Business Employees, (ii) current or former Business Employees (A) that are expressly retained by Seller pursuant to Article 9 or Section 2.05(d) of the Disclosure Schedule or (B) for which a specific prepaid asset (e.g., an insurance policy), if any, is not sold, conveyed, transferred, assigned or delivered to Buyer, subject to the terms and conditions of the applicable Employee Plan or International Plan (in the case of a Liability or commitment relating to an Employee Plan or International Plan); (iii) Business Employees who, as of the Closing Date, are on a leave of absence resulting from a reduction in force or a “bridging” of age and/or service credit for purposes of an Employee Plan; (iv) compensation deferred by Business Employees prior to the Closing Date; (v) in respect of former Business Employees, the Seller Supplemental Pension Plan and (vi) stock option and other equity-based compensation plans of Seller;
(e) all Indebtedness (other than the Transferred Indebtedness) including all Liabilities arising out of or relating to any guarantee or consignment arrangements involving Seller and Engineered Materials Solutions, Inc., other than the Replacement Guarantee;
(f) all obligations to any broker, finder or agent for any investment banking or brokerage fees, finders fees or commission relating to the transactions contemplated by this Agreement and any oth...
Excluded Liabilities. (a) Buyer shall not assume, or take the Purchased Assets subject to, any liability or obligation of any kind or nature (whether known or unknown, asserted or unasserted, absolute or contingent, accrued or unaccrued, liquidated or unliquidated, or due or to become due) (a “Liability”) (such Liabilities, the “Excluded Liabilities”). Excluded Liabilities include, without limitation, the following: (i) trade and accrued Liabilities; (ii) bank debt, other secured debt, including capital lease obligations, and debts to limited liability company members and related parties; (iii) taxes, including payroll taxes, sales taxes, withholding and all other taxes relating to the period during which Seller owned and operated the Purchased Assets; (iv) claims against, and Liabilities of, Seller arising out of any actions or inactions of Seller (or any predecessor of Seller) relating to the period during which Seller owned and operated the Purchased Assets; (v) Liabilities to Seller’s current employees, including compensation, severance and benefits through the Closing Date or otherwise triggered by the Closing; (vi) any Liabilities arising under the Leases through the Closing Date; (vii) any Liabilities arising under the Transferred Contracts through the Closing Date; (viii) any Liabilities pertaining to Seller’s former officers, directors, members, managers, owners, employees, and agents; and (viii) any and all other Liabilities whatsoever of Seller.
(b) Seller will be solely liable for, and will pay, discharge, and perform when due, all Liabilities of Seller arising from or relating to the ownership of the Purchased Assets through the Closing Date.
Excluded Liabilities. Except for the Assumed Liabilities specifically set forth in Section 2.7 above, Buyer is not assuming, and the Assumed Liabilities expressly exclude, any debt, liability, duty or obligation, whether known or unknown, fixed or contingent, of Seller including, without limitation, any liabilities or obligations related to the Products which are outstanding or unpaid as of the date hereof or connected in any way with any retirement, medical, life, disability or other Employee Plan of Seller or any Benefits Liabilities of Seller (the "Excluded Liabilities"); it being expressly understood that the foregoing does not preclude Buyer from assuming responsibility for Employee Plan Liabilities or other Benefits Liabilities pursuant to separate written agreements between Buyer and Seller. Without limiting the foregoing, all liabilities, including any liabilities for Taxes, arising from or related to: (i) Seller's operations, whenever arising or incurred, or Seller's ownership of the Products and Acquired Assets through the Closing Date; (ii) Seller's termination of any Contracts which are not Transferred Contracts; (iii) any of Seller's employees hired by Buyer that accrues or arises as of or prior to the Closing Date, or any of Seller's other agents, consultants, independent contractors, employees or former employees, whenever arising, in each case including workers' compensation, severance, salary, bonuses or under any Employee Plan, whether or not any such employees shall accept employment with Buyer in connection with the transactions contemplated hereby; (iv) the Products and arising prior to the Closing Date; or (v) any implied or explicit warranty obligations of Seller with respect to the Products entered into prior to the Closing Date, shall be Excluded Liabilities and shall remain the responsibility of Seller, except as otherwise specifically included within the Assumed Liabilities.
Excluded Liabilities. Notwithstanding anything contained herein to the contrary, Buyer shall not assume, or cause to be assumed, or be deemed to have assumed or caused to have assumed or be liable or responsible for any liabilities or obligations (whether known or unknown, fixed, absolute, matured, unmatured, accrued or contingent, now existing or arising after the date hereof) of Seller or any of its Affiliates (other than the liabilities expressly assumed in this Agreement) including, but not limited to, the following obligations and liabilities of Seller and its Affiliates (such obligations and liabilities not assumed hereunder, the “Excluded Liabilities”):
(i) any liabilities or obligations relating to any current or former employee or independent contractor of Seller or any of its Affiliates (whether or not such employee is hired by Buyer following the Closing) and labor matters relating to any such current or former employee or independent contractor including any liabilities or obligations arising out of or relating to any employee-related matter, employee-related payment obligation, collective bargaining contract, labor negotiation, severance cost, pension plan, profit sharing plan, deferred compensation plan, accrued holiday benefit, accrued bonus, salary, bonus plan, phantom stock award, stock option or purchase plan, employment contract, consulting contract, any Employee Benefit Plan or any entitlements arising as a result of or in connection with the consummation of the Purchase;
(ii) any Taxes, interest, and penalties (i) attributable to the purchased Assets or the Business with respect to any Pre-Closing Period or (ii) imposed on Seller or any of its Affiliates;
(iii) any liabilities or obligations related to the Excluded Assets;
(iv) any liabilities or obligations arising out of or relating to indebtedness of Seller or any of its Affiliates;
(v) any liabilities or obligations arising out of or relating to any contract which is not an Assigned Contract;
(vi) other than in connection with the operation of the Business after the Closing Date, any liabilities or obligations arising out of operations prior to the Closing Date, and /or relating to any real property owned, leased, occupied or controlled by Seller;
(vii) any Seller Transaction Expenses; and
(viii) any liabilities or obligations arising from product liability claims for which the injury or loss giving rise thereto (not just the delivery of the notice of such claims) occurs prior to the Closing Date, inclu...
Excluded Liabilities. Notwithstanding any provision in this Agreement or any other writing to the contrary, Buyer is assuming only the Assumed Liabilities and is not assuming any other liability or obligation of any Seller of whatever nature (fixed or contingent, known or unknown), whether presently in existence or arising hereafter. All such other liabilities and obligations shall be retained by and remain obligations and liabilities of the Sellers (all such liabilities and obligations not being assumed being herein referred to as the “Excluded Liabilities”). For the avoidance of doubt (but without overriding the Assumed Liabilities in Section 1.03), Excluded Liabilities include the following:
(i) any liability or obligation resulting from or arising out of the conduct of the supermarket business of the Sellers (including the operation of pharmacy counters in supermarkets), any other business of the Sellers other than the Standalone Drug Business, or any Excluded Asset;
(ii) all amounts allocated to Sellers under Section 1.08 and all Apportioned Obligations and Transfer Taxes allocated to Sellers pursuant to Section 8.02;
(iii) all accounts payable arising prior to Closing with respect to the Standalone Drug Business or the Purchased Assets;
(iv) (A) any liability or obligation for Taxes with respect to the Standalone Drug Business or the Purchased Assets related to a Pre-Closing Tax Period, and (B) any liability or obligation for Taxes of any Seller, or any member of any consolidated, affiliated, combined or unitary group of which any Seller is or has been a member, for Taxes (if any) attributable to the transactions, occurring on or prior to the Closing Date, pursuant to this Agreement, the Merger Agreement or the Purchase and Separation Agreement (including the Reorganization as defined therein); provided that Transfer Taxes incurred in connection with the transfer of the Purchased Assets pursuant to this Agreement and Apportioned Obligations shall be allocated and paid in the manner set forth in Section 8.02 hereof;
(v) all liabilities and obligations relating to or arising with respect to (A) any Employee, that arise, exist, accrue or are attributable to the period as of or prior to Closing, other than any liability or obligation expressly assumed by Buyer pursuant to Article 9, or (B) any employee of any Seller or any of its Affiliates who is not an Employee; and
(vi) all other liabilities and obligations (other than any Assumed Liabilities) of any kind, fixed or conting...
Excluded Liabilities. Notwithstanding anything to the contrary contained herein, Seller shall retain and not assign and Buyer shall not assume any debts, obligations or Liabilities of Seller not expressly assumed pursuant to Section 2.1(c) hereof (the “Excluded Liabilities”). The Excluded Liabilities shall include all Liabilities and obligations of Seller not specifically assumed pursuant to Section 2.1(c), regardless of any disclosure to Buyer, including the following:
(i) Revolving line of credit issued by Heartland Bank and Trust;
(ii) Heartland Bank and Trust Short term capital note;
(iii) Any and all Heartland Bank and Trust Current Liabilities and long term Liabilities;
(iv) Any and all Officer Loans payable to D▇▇▇▇ ▇▇▇▇▇▇, J▇▇▇▇ ▇▇▇▇▇▇ and D▇▇▇▇▇▇ ▇▇▇▇▇;
(v) all Liabilities of Seller to any employee or contractor of Seller (which shall include compensation, severance payments, accrued vacation, profit-sharing, 401(k) and similar contributions and any bonus and/or incentive payments);
(vi) all obligations or Liabilities (including Liabilities under ERISA or COBRA), in respect of any employee pension or benefit plan or program except to the extent that as such obligations and liabilities reflected in the Assumed Contracts or Assumed Obligations;
(vii) all obligations or Liabilities in respect of any employees, consultants, agents, contractors or advisors pursuant to any oral or written consulting, employment, agency, independent contractor, change in control, severance or similar agreement or arrangement, accrued sick leave or paid-time off obligations, except as such obligations and Liabilities (i) are reflected in the Assumed Contracts and relate to periods following the Closing Date, or (ii) are included in the Assumed Obligations; All Excluded Liabilities shall be the responsibility of Seller, and Seller and the Seller Members agree to jointly and severally indemnify and hold Buyer harmless against any Excluded Liabilities, debts, obligations, claims or damages therefrom, costs and expenses relating thereto.