Common use of Excluded Liabilities Clause in Contracts

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, including any unpaid accounts payable related to any Apollo Lap-Band Inventory; and (j) all Liabilities set forth on Schedule 1.4.

Excluded Liabilities. Except for The Purchaser shall not assume or agree to pay, satisfy, perform or otherwise discharge any claims, liabilities, indebtedness, obligations or expenses other than the Assumed Lap-Band Liabilities (the “Excluded Liabilities”). Without limiting the generality of the foregoing, ReShape shall the Purchaser does not assumeassume or agree to pay, satisfy, perform or otherwise discharge any of the following claims, liabilities, indebtedness, obligations or expenses and the Purchaser shall have no liability for, any Liabilities of Apollo for 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 obligation in respect of, resulting from or relating to (collectively, the “Excluded Apollo Liabilities”):: (a) any the Sellers’ professional fees and all Claimsexpenses for its advisers, regardless of when such Claim was first commenced or madeincluding without limitation, that arose out of, relates advisers retained pursuant to or results from the development, nonclinical and clinical testing, commercialization, manufacture, storage, packaging, import, marketing, labeling, pricing, distribution, sale or use an order of the Apollo Lap-Band Product or any of the Apollo Lap-Band Assets, in each case, prior Bankruptcy Court except to the Closing, including all such Claims relating to warranty obligations, marketing programs, patient incentive programs and alleged intellectual property infringementextent otherwise provided for in this Agreement; (b) any and all products liability Claims that arose out ofobligations, relates to liabilities 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 amounts payable to any individual relating to such Apollo Lap-Band Product)security holder of any Seller; (c) general unsecured claims or 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 Closingother liability not expressly assumed under this Agreement; (d) all liabilities of the Sellers for Taxes relating or attributable to taxable periods ending on or before the Closing Date (“Pre-Closing Periods”) and, with respect to any period that begins on or before and all Claims for Apollo Lap-Band Products manufactured prior that ends after the Closing Date (a “Straddle Period”), the portion of such Straddle Period deemed to end on and include the Closing, including but not limited to product liability and infringement of Intellectual Property whether or not sold prior to the ClosingClosing Date; (e) any environmental liabilities of Sellers, including without limitation, any liabilities involving: (i) any violation of or alleged violation, or non-compliance with, Environmental Laws or permits, licenses or authorizations issued pursuant to applicable Environmental Laws prior to the Closing Date, with respect to the ownership, lease, maintenance, construction, modification or operation of the Excluded Apollo Acquired Assets, except where, as a result of the transfer of a permit to Purchaser, Purchaser is obligated to assume such liabilities as a condition of said transfer as a matter of applicable Environmental Law; (ii) loss of life, injury to persons or property, natural resource damages, or investigation or remediation obligations, arising from the discharge or release of Hazardous Substances prior to the Closing Date, at or migrating or emitted or discharged from the Acquired Assets or from the properties at which the Acquired Assets are located; provided, that this exclusion shall not apply to any investigation or remediation that may be required after the Closing Date in connection with the sale of the assets owned by Lafayette Energy Partners, L.P. if the current transaction triggers an obligation to comply with ISRA; (iii) loss of life, injury to persons or property, natural resource damages, or investigation or remediation obligations, arising from the storage, transportation, treatment, disposal, discharge recycling or release, at any off-site location, or arising from the arrangement for such activities, prior to the Closing Date, of Hazardous Substances generated in connection with the ownership or operation of the Acquired Assets; (iv) without limiting the foregoing, any liabilities arising from the allegation by the State of Illinois asserting that Upper Rock Energy Partners LLC violated applicable Environmental Law by installing a generating unit at the Upper Rock County Landfill without a permit; and (v) without limiting the foregoing, any fines, penalties or other costs that may be imposed due to any failure (whether by Sellers or predecessor owners or operators) to comply with ISRA with respect to prior transactions involving the assets currently owned by Lafayette Energy Partners, L.P.; (f) Taxes (other than Transfer Taxes, which shall be governed solely by any liability relating to any 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 Date29 tax credit indemnification obligations; (g) any Contract, other than an Apollo Lap-Band Business Contract and subject liability relating 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;Excluded Asset; and (h) any current liability listed or former employee or contractor of Apollo, or any of its Affiliates; (i) all Apollo Accounts Payable, including any unpaid accounts payable related to any Apollo Lap-Band Inventory; and (j) all Liabilities set forth described on Schedule 1.41.5.

Excluded Liabilities. Except Notwithstanding any other provision of this Agreement, except for the Assumed Lap-Band LiabilitiesIncluded Liabilities described in Sections 1.5(c), ReShape 1.5(e), 1.5(f) and 1.5(m) to the extent expressly assumed by Buyer, Buyer and its Affiliates shall not assume, and shall have no liability foror in any way be liable for the payment, performance or discharge of, any Liabilities of Apollo Seller 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 its Affiliates (collectively, the “Excluded Apollo Liabilities”):), including the following Liabilities: (a) any all Liabilities, obligations and all Claims, regardless of when such Claim was first commenced or made, that arose commitments arising 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 ownership or any operation of the Apollo Lap-Band Assets, in each case, Business prior to the Closing, including all such Claims relating to warranty obligations, marketing programs, patient incentive programs and alleged intellectual property infringementEffective Time; (b) any all Liabilities, obligations and all products liability Claims that arose out of, relates commitments relating to the return or results from any Apollo Lap-Band Product sold claimed spoilage of Products manufactured prior to the Effective Time and returned within thirty (30) days after the Closing Date (including Claims alleging defects in such Apollo Lap-Band Product and Claims involving the death of whether physically returned, or injury to any individual relating to such Apollo Lap-Band Productwhether a credit, deduction or other accommodation is made); (c) any recalls (including after the Closing) mandated by Liabilities for any Governmental Body with respect to Default under any Apollo Lap-Band Products manufactured Transferred Contract or sold Included Shared Contract occurring prior to the ClosingEffective Time; (d) any and all Claims Liabilities for Apollo Lap-Band Products manufactured prior to the Closing, including but not limited to product liability and infringement indebtedness for borrowed money 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, Seller or any of its Affiliates; (e) all Liabilities, obligations, and commitments for manufacturer’s coupons relating to Products issued prior to the Effective Time and received by the clearing house for reimbursement within one hundred twenty (120) days after the Closing Date; (f) all Liabilities, obligations and commitments for trade and consumer promotions relating to Products (i) that commenced and concluded prior to the Closing Date or (ii) that commenced prior to but concluded after the Closing Date; provided, that the amount of Liabilities, obligations and commitments retained by Seller pursuant to clause (ii) in respect of any trade or consumer promotion shall be equal to the total amount of Liabilities, obligations and commitments related to such trade or consumer promotion multiplied by a fraction, the numerator of which is equal to the number of calendar days such trade or consumer promotion was available prior to the Closing Date, and the denominator of which is equal to the total number of calendar days such trade or consumer promotion was available; (g) all Liabilities, obligations and commitments for advertising for the Business for advertising airing or appearing in periods prior to the Effective Time; (h) all Liabilities under any Environmental Law, to the extent arising out of the (i) ownership or operation of the Business, the Included Assets or the Excluded Assets or the Transferred Facilities or the Shared Facilities prior to the Effective Time or out of the release or disposal of Hazardous Substances at, in, on, under or from the Transferred Facilities or the Shared Facilities, to the extent such release or disposal first existed, occurred or arose prior to the Effective Time, or (ii) ownership or operation of the Excluded Assets from and after the Effective Time, in each case including, without limitation, those relating to (y) any non-compliance with any Environmental Law or (z) the investigation, removal, cleanup or remediation of any Hazardous Substances at, on, in, under or from any Transferred Facility, any Shared Facility, any offsite disposal location or any other property (and in each case other than such Liabilities deemed to be Included Liabilities pursuant to Section 8.2(e)); (i) all Apollo Accounts Payableemployment and employee benefits-related liabilities, including obligations, commitments, claims and other Losses relating to employees of Seller or any unpaid accounts payable related to any Apollo Lap-Band Inventory; andof its Affiliates other than the Covered Employee Liabilities; (j) all Liabilities, obligations and commitments of Seller or its Affiliates to the extent relating to or arising out of Excluded Assets; (k) all Liabilities, obligations and commitments with respect to Excluded Taxes; (l) Transfer Taxes that are the responsibility of Seller pursuant to Section 7.6(b). (m) all Liabilities set forth arising from any injury to or death of any Person or damage to or destruction of any property, whether based on Schedule 1.4negligence, breach of warranty, strict liability, enterprise liability or any other legal or equitable theory, to the extent arising from defects in products manufactured or from services performed in connection with the Business by or on behalf of Seller or its Affiliates prior to the Effective Time; (n) all Liabilities of Seller or its Affiliates or related to the Business arising out of or relating to any Proceedings against Seller or its Affiliates and which shall have been asserted prior to the Effective Time or to the extent the basis of which shall have arisen or shall relate to periods prior to the Effective Time (in each case other than such Liabilities deemed to be Included Liabilities pursuant to Section 8.2(e)); (o) the Excluded Current Liabilities and all Liabilities with respect to all Liens and Permitted Liens on the Included Assets (other than Permitted Liens described in clause (iii) and (v) of the definition thereof and lease obligations, Seller Licenses-In and Seller Licenses-Out to the extent expressly assumed by Buyer hereunder) and the Excluded Assets existing as of immediately prior to the Effective Time, regardless of when such Liabilities come due; and (p) all Liabilities of Seller or its Affiliates for any fees, expenses or other payments to any agent, broker, investment banker or other firm or Person retained or employed by Seller or its Affiliates in connection with the transactions contemplated by this Agreement.

Excluded Liabilities. Except Notwithstanding anything herein to the contrary, Buyer will not assume and will not be obligated to assume or be obliged to pay, perform or otherwise discharge or in any other way be liable or responsible for the Assumed Lap-Band Liabilities, ReShape shall not assume, and shall have no liability for, any Liabilities Liability whatsoever of Apollo Seller or any Apollo Affiliate of any kindits Subsidiaries, character whether existing on the Closing Date or descriptionarising thereafter, it being understood that ReShape is expressly disclaiming any express or implied assumption of any Liabilities other than the Assumed Lap-Band Liabilities including(such Liabilities, without limitation all Liabilities arising out of, resulting from or relating to (collectively, the “Excluded Apollo Liabilities”): ). Without limiting the foregoing, Buyer shall not be obligated to assume, and does not assume, and hereby disclaims all the Excluded Liabilities, which for the avoidance of doubt, include (a) any and all ClaimsLiabilities arising, regardless of when such Claim was first commenced whether prior to, at 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 after the Closing, under (i) any Multiemployer Plan (including any associated Withdrawal Liability), (ii) all such Claims relating to warranty obligationsSeller Benefit Plans (including any Pension Plan and any OPEB) other than any Assumed Plan Liabilities or (iii) any Collective Bargaining Agreement that has expired or been rejected by Buyer, 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 Liabilities 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 on Seller or any of its Affiliates for Subsidiaries (or any taxable period, Affiliate thereof) or (ii) imposed with respect related or attributable to the Apollo Lap-Band Assets or the Apollo Lap-Band Business for any taxable Pre-Closing Tax Period, (other than real estate and personal property Taxes included in Acquired Prepayments or Taxes included in the Current Liabilities), (c) all Liabilities relating to the Assets or the Business arising from or relating to any Environmental, Health and Safety Laws or the presence or Release of, or exposure to, any Hazardous Substance at, on, under or migrating from any Assets, to the extent arising or attributable to any period (or portion thereof) ending on or prior to the Closing Date; including any Proceedings or Orders in respect of the foregoing (g) and including without limitation all fines, penalties or other obligations arising from or relating to any Contractviolation or alleged violation of Environmental, other than an Apollo Lap-Band Business Contract Health and subject Safety Laws first occurring or arising prior 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 ApolloClosing), or otherwise relating to any properties at any time owned, leased or operated in respect of its Affiliates; the Business that are not included within the definition of Assets, (id) all Apollo Accounts Payable, including any unpaid accounts payable related to any Apollo Lap-Band Inventory; and Cure Costs and (je) all Liabilities set forth on Schedule 1.4relating to the Excluded Assets, including Customer Deductions.

Excluded Liabilities. Except for Notwithstanding anything contained herein to the Assumed Lap-Band Liabilitiescontrary, ReShape Buyer shall not assume, and shall or cause to be assumed, or be deemed to have no liability for, assumed or be liable or responsible for any Liabilities that are not Assumed Liabilities, including (for the avoidance of Apollo doubt) the following Liabilities of Seller 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 its Affiliates (collectively, the “Excluded Apollo Liabilities”): (a) any and all Claims, regardless Liabilities arising out 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 Excluded 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 Liabilities to the extent arising out of, relates to relating 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) otherwise in respect of, Indebtedness 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, Seller or any of its Affiliates; (c) Liabilities (i) all Apollo Accounts Payableunder any Benefit Plan or (ii) with respect to any employee, former employee or independent contractor of Seller or its Affiliates that are not Continuing Employee Liabilities; (d) Liabilities arising out of or relating to this Agreement or any Transaction Agreement for which Seller or its Affiliates has responsibility pursuant to the terms of this Agreement; (e) Liabilities arising out of or relating to any Contract which is not a Purchased Contract; (f) intercompany accounts payable; (g) Liabilities (including Liabilities under Environmental Law) arising out of or relating to any real property owned, leased, occupied or controlled by Seller and/or its Affiliates which is not a Purchased Asset; (h) any Actions pertaining to or affecting Seller, its Affiliates, the Business, or the Purchased Assets other than the Actions set forth on Schedule 1.3(a)(vi); (i) Transfer Taxes to the extent designated the responsibility of Seller pursuant to Section 7.5; (j) Liabilities arising under Environmental Law or with respect to Hazardous Substances, in each case to the extent arising out of, or with respect to, facts, circumstances or conditions occurring prior to the Closing with respect to the Purchased Assets or the operation of the Business prior to the Closing (including, for the avoidance of doubt, the disposal or arrangement for disposal prior to the Closing of Hazardous Substances at any location, whether or not owned or operated by the Business); (k) Product Liability Obligations arising out of, relating to or otherwise in respect of any products (including any unpaid accounts payable related part or component) designed, manufactured, assembled, sold or distributed by the Business prior to the Closing or any services performed by the Business prior to the Closing; (l) Liabilities relating to the past, present or future business, operations, properties or facilities of the Seller or any of its Affiliates other than the Business (it being understood that any Liabilities relating to any Apollo Lap-Band Inventoryproperties or facilities formerly, but no longer (as of the Closing Date), owned, leased or operated by the Business are Excluded Liabilities); and (jm) all Liabilities set forth on Schedule 1.4for any Tax or Taxes with respect to the Purchased Assets and the Business that are Seller’s responsibility under Section 7.2.

Excluded Liabilities. Except for Notwithstanding any provision herein to the Assumed Lap-Band Liabilitiescontrary, ReShape except as expressly set forth in Section 2.3, Purchaser shall not assume, and shall have no liability succeed to, be liable for, be subject to, or be obligated for, nor shall the Purchased Assets be subject to, any other Liability of Seller or any of its Affiliates (the “Excluded Liabilities”) including the following Liabilities of Apollo Seller arising out of, relating to or otherwise in respect of the Business on or before the Closing Date: (a) all Liabilities with respect to all services provided and products sold by Seller before the Closing; (b) all environmental Liabilities of Seller or the Business for a violation or breach by Seller or any Apollo Affiliate of its Affiliates under any kindEnvironmental Law or Environmental Permit related to Seller’s conduct of the Business prior to Closing, character or descriptionexcept to the extent exacerbated by the conduct of Purchaser in its operation of the Business following the Closing; (c) all Liabilities related to any Employee not set forth on Schedule 8.1, it being understood that ReShape is expressly disclaiming including Liabilities for any express or implied assumption of failure-to-hire claims by any Liabilities other than the Assumed Lap-Band Liabilities including, without limitation such Employee; (d) all Liabilities arising out of, resulting from or relating to or with respect to (collectivelyi) the employment or performance of services, or termination of employment or services by Seller of any Employee or Former Employee before the “Excluded Apollo Liabilities”): Closing Date, including any Liabilities for accrued compensation, unused vacation and other paid leave; (aii) workers’ compensation, unemployment, health or disability claims, or any similar claims, by any Employee or Former Employee that relate to the period before the Closing Date; and (iii) any and all ClaimsPlan or any group insurance plans of Seller; provided, regardless of when such Claim was first commenced or madehowever, that arose out of, relates to Purchaser shall be responsible for and assume Liabilities (x) for failure-to-hire claims against Purchaser by any Employee set forth on Schedule 8.1 who is not offered employment by Purchaser or results from Purchaser’s designee; (y) for unused vacation leave the development, nonclinical and clinical testing, commercialization, manufacture, storage, packaging, import, marketing, labeling, pricing, distribution, sale or use Transferred Employees have accrued as 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 subject to warranty obligations, marketing programs, patient incentive programs Section 10.2(a)(vi); and alleged intellectual property infringement; (bz) any under WARN and all products liability Claims that arose out of, relates similar Laws requiring notice to employees of layoffs arising because Purchaser or results from any Apollo Lap-Band Product sold prior Purchaser’s designee fails to offer 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 ClosingEmployees set forth on Schedule 8.1 employment, including but not limited to product liability and infringement of Intellectual Property whether in the event such failure results in a “mass layoff” or not sold prior to the Closing“plant closing” (as defined by WARN); (e) any of all Liabilities arising out of, under or in connection with the Excluded Apollo Contracts or the Excluded Assets; (f) Taxes all Liabilities arising out of, under or in connection with any Transaction Expenses of Seller; (other than Transfer Taxes, which shall be governed solely by Section 2.8g) all Liabilities for (i) in respect Taxes of or imposed upon Apollo Seller or any of its Affiliates for any taxable periodperiod (other than those allocable to Purchaser pursuant to Section 11), or and (ii) imposed with respect Taxes that relate to the Apollo Lap-Band Business, the Purchased Assets or the Apollo Lap-Band Assumed Liabilities allocable to Seller pursuant to Section 11.2; and (h) all Liabilities in respect of the operation of the Business for by Seller or any taxable period (other act or portion thereof) ending on omission by Seller, its Affiliates, the Employees or the Former Employees, in each case, to the extent occurring 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, including any unpaid accounts payable related to any Apollo Lap-Band Inventory; and (j) all Liabilities set forth on Schedule 1.4.

Excluded Liabilities. Except for Notwithstanding anything to the Assumed Lap-Band Liabilitiescontrary set forth in Section 2.2(a), 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 includingLiabilities, without limitation all Liabilities arising out ofneither Purchaser nor any of its Subsidiaries will assume or be bound by any Liability, resulting from duty or relating to obligation of any of the HSBC Sellers, Assignor or any of their respective Affiliates (collectively, the “Excluded Apollo Liabilities”), including, by way of example only, the following Liabilities of the HSBC Sellers and their respective Affiliates (and, if applicable, Assignor): (a1) any and all ClaimsLiability, regardless duty or obligation 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 AssetsHSBC Sellers or their respective Affiliates of any nature whatsoever, in each casewhether accrued, prior absolute, primary or secondary, contingent or otherwise, direct or indirect, asserted or unasserted, known or unknown, that is primarily related to the Closing, including all such Claims relating to warranty obligations, marketing programs, patient incentive programs and alleged intellectual property infringementRetained Business; (b2) any and all products liability Claims that arose out ofLiability, relates duty or obligation of any of the HSBC Sellers, Assignor or their respective Affiliates of any nature whatsoever, whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, to the extent relating to or results arising from or in connection with any Apollo Lap-Band Product sold Excluded Asset; (3) the Excluded Deposits; (4) any compensation or benefit Liabilities to Business Employees or Affiliated Employees with respect to services provided to HSBC or its Affiliates prior to the Closing Date (including Claims alleging defects in such Apollo Lap-Band Product including, without limitation, all liabilities for accrued but unused paid time off) and Claims involving any Liabilities under 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 ClosingEmployee Plans, 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 incurred prior to the Closing Date, whether or not such claims are submitted for payment or reimbursement on or before the Closing Date, except to the extent otherwise provided under Section 9.1; (g5) any Contract, other than an Apollo Lap-Band Business Contract and subject to the limitations set forth in Section 1.3, to which Apollo Controlled Group Liability arising under any Employee Plan or any of its Affiliates is a party employee benefit plan sponsored, maintained or contributed to or by which any of its properties or assets are otherwise bound; (h) any current or former employee or contractor ERISA Affiliate of Apollo, the HSBC Sellers or any of its Affiliates; (i) all Apollo Accounts Payable, including any unpaid accounts payable related to any Apollo Lap-Band Inventorytheir respective Subsidiaries; and (j6) all any liability for Excluded Taxes (whether or not relating to the Transferred Business). Notwithstanding anything in Section 13.9 to the contrary, in no event shall ARTICLE XIII limit the retention by, as applicable, the HSBC Sellers or Assignor of Excluded Liabilities set forth on Schedule 1.4as between Purchaser and Assignor and/or the HSBC Sellers; provided that, in accordance with Section 13.12, nothing herein shall provide Purchaser with any right or claim against the HSBC Sellers, including for indemnification.

Excluded Liabilities. Except for the Assumed Lap-Band Liabilities, ReShape Seller shall retain and be solely responsible for any and all liabilities, costs and obligations of Seller of any kind or nature, whether known, unknown, contingent or otherwise (the “Excluded Liabilities”), and Seller shall not assumetransfer to Buyer, and Buyer shall have no liability not assume or be liable for, any Liabilities such obligation, cost or liability of Apollo or any Apollo Affiliate of any kindSeller, 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, including without limitation all Liabilities arising out of, resulting from or relating to (collectively, the “Excluded Apollo Liabilities”):limitation: (a) any and all Claims, regardless liability of when such Claim was first commenced Seller incurred in connection with 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 as a result of the Apollo Lap-Band Product or any negotiation and execution of this Agreement and the Apollo Lap-Band Assetstransactions provided for herein, in each caseincluding brokerage, prior accounting and counsel fees, transfer and other taxes, and expenses pertaining to the Closing, including all such Claims relating to warranty obligations, marketing programs, patient incentive programs and alleged intellectual property infringementcessation of Seller’s business activities; (b) any and all products debt, liability Claims that arose out of, relates to or results from any Apollo Lap-Band Product sold obligation of Seller arising prior to Closing out of 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)Purchased Assets; (c) any recalls debt, liability or obligation under the Assigned Contract that (including i) arises prior to the Closing or (ii) arises after the Closing) mandated Closing but arises out of or results from a breach by any Governmental Body with respect to any Apollo Lap-Band Products manufactured or sold Seller that occurred prior to or upon the Closing; (d) any of Seller’s obligations, costs or liabilities to Seller’s current or former employees, including without limitation any salaries, wages, bonuses, accrued unused paid time off, severance, expense reimbursements, benefits, pension, retirement, or profit-sharing plan or trust, unemployment benefits and all Claims workers’ compensation obligations; (e) any liability for Apollo LapTaxes of Seller or any person other than Seller under Treasury Reg. Section 1.1502-Band Products manufactured prior 6 (or any similar provision of state, local or foreign law), as a transferee or successor, by contract or otherwise, whether relating to periods before or after the ClosingClosing Date; and (f) any obligations of Seller under any law or regulation, including but not limited to product liability antitrust, civil rights, health, safety, labor, discrimination, information privacy 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, including any unpaid accounts payable related to any Apollo Lap-Band Inventory; and (j) all Liabilities set forth on Schedule 1.4environmental laws.

Excluded Liabilities. Except for the Assumed Lap-Band Liabilities, ReShape the Buyer Entities shall not assume and under no circumstances shall the Buyer Entities be obligated to pay or assume, and none of the assets of the Buyer Entities shall have no liability forbe or become liable for or subject to any liability, any Liabilities indebtedness, commitment, or obligation of Apollo the Seller Entities, whether known or any Apollo Affiliate of any kindunknown, character fixed or descriptioncontingent, it being understood that ReShape is expressly disclaiming any express recorded or implied assumption of any Liabilities other than the Assumed Lap-Band Liabilities includingunrecorded, without limitation all Liabilities currently existing or hereafter arising out of, resulting from or relating to otherwise (collectively, the “Excluded Apollo Liabilities”):), including, without limitation, the following Excluded Liabilities: (a) any and all Claimsdebt, regardless of when such Claim was first commenced obligation, expense or made, liability 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 infringementis not an Assumed Liability; (b) any and all products claims or potential claims for medical malpractice or general liability Claims that arose out of, relates relating to acts or results from any Apollo Lap-Band Product sold omissions asserted to have occurred 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)Effective Time; (c) any recalls those claims and obligations (including after the Closingif any) mandated by any Governmental Body with respect to any Apollo Lap-Band Products manufactured or sold prior to the Closingspecified in Schedule 1.4 hereto; (d) any liabilities or obligations associated with or arising out of any of the Excluded Assets; (e) liabilities and all Claims for Apollo Lap-Band Products manufactured obligations of the Seller Entities in respect of periods prior to the ClosingEffective Time arising under the terms of the Medicare, Medicaid, CHAMPUS/TRICARE, Blue Cross, or other third-party payor programs, as well as under the Coronavirus Aid, Relief, and Economic Security Act (Pub. L. 116-136), as amended (the “CARES Act”), including, without limitation, in respect of any cost report, any audit under the Medicare RAC program or any noncompliance with applicable law or contractual obligations related to the billing or collection of services, CARES Act funding and any liability arising pursuant to the Medicare, Medicaid, CHAMPUS/TRICARE, Blue Cross, or any other third-party payor programs as a result of the consummation of any of the transactions contemplated under this Agreement; (f) federal, state or local tax liabilities or obligations of the Seller Entities in respect of periods prior to the Effective Time or resulting from the consummation of the transactions contemplated herein including, without limitation, any income tax, any franchise tax, any tax recapture, any sales and/or use tax, and any FICA, FUTA, workers’ compensation, and any and all other taxes or amounts due and payable as a result of the exercise by the employees at the Facilities of such employees’ right to vacation, sick leave, and holiday benefits accrued while in the employ of the Seller Entities (provided, however, that this clause (f) shall not apply to any and all taxes payable with respect to any employee benefits constituting Assumed Liabilities under Section 1.3(c) hereof); (g) liability for any and all claims by or on behalf of the Seller Entities’ employees relating to periods prior to the Effective Time including, without limitation, liability for any compensation-related payments, pension, profit sharing, deferred compensation, equity or equity-related compensation, incentive compensation, fringe benefit, tuition reimbursement, severance, termination pay, change in control or retention payments, bonuses or any other employee benefit plan of whatever kind or nature or any employee health and welfare benefit plans, liability for any EEOC claim, ADA claim, FMLA claim, wage and hour claim, unemployment compensation claim, or workers’ compensation claim, and any liabilities or obligations to former employees of the Seller Entities under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (provided, however, that this clause (g) shall not apply to any and all employee benefits constituting Assumed Liabilities under Section 1.3(c) hereof); (h) any obligation or liability accruing, arising out of, or relating to any federal, state or local investigations of, or claims or actions against, the Seller Entities or any of their Affiliates or any of their employees, medical staff, agents, vendors or representatives with respect to acts or omissions prior to the Effective Time; (i) any civil or criminal obligation or liability accruing, arising out of, or relating to any acts or omissions of the Seller Entities, their Affiliates or, to the extent related to their services to the Seller Entities, their directors, officers, employees and agents claimed to violate any constitutional provision, statute, ordinance or other law, rule, regulation or order of any governmental entity; (j) liabilities or obligations arising out of any breach by the Seller Entities prior to the Effective Time of any Contract; (k) liabilities or obligations arising as a result of any breach by the Seller Entities at any time of any contract or commitment that is not expressly assumed by the Buyer Entities in this Agreement; (l) any debt, obligation, expense, or liability of the Seller Entities arising out of or incurred solely as a result of any transaction of the Seller Entities occurring after the Effective Time; (m) any liability of the Seller Entities relating to violations of law, including but not limited to product liability and infringement violations of Intellectual Property whether federal or not sold prior to state laws regulating fraud such as the Closing; federal Anti-Kickback Law (e42 U.S.C. § 1320(a)-7(b) any of the Excluded Apollo Assets; (f) Taxes (other than Transfer Taxes, which shall be governed solely by Section 2.8et seq.) (ithe “Anti-Kickback Law”), the Ethics in Patient Referrals Act (42 U.S.C. § 1395mm et seq.) in respect of or imposed upon Apollo or any of its Affiliates for any taxable period(the “▇▇▇▇▇ Law”), or and the False Claims Act (ii31 U.S.C. § 3729 et seq.) 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, including any unpaid accounts payable related to any Apollo Lap-Band Inventory“False Claims Act”); and (jn) all Liabilities set forth on liabilities and obligations relating to any oral agreements, oral contracts or oral understandings with any referral sources including, but not limited to, physicians, unless reduced to writing, identified in Schedule 1.41.1(g) hereto, and expressly assumed as part of the Contracts.

Excluded Liabilities. Except for the Assumed Lap-Band Liabilities, ReShape the Buyer Entities shall not assume and under no circumstances shall the Buyer Entities be obligated to pay or assume, and none of the assets of the Buyer Entities shall have no liability forbe or become liable for or subject to any liability, any Liabilities indebtedness, commitment, or obligation of Apollo the Seller Entities, whether known or any Apollo Affiliate of any kindunknown, character fixed or descriptioncontingent, it being understood that ReShape is expressly disclaiming any express recorded or implied assumption of any Liabilities other than the Assumed Lap-Band Liabilities includingunrecorded, without limitation all Liabilities currently existing or hereafter arising out of, resulting from or relating to otherwise (collectively, the “Excluded Apollo Liabilities”):), including, without limitation, the following Excluded Liabilities: (a) any liabilities of Seller, the Seller Entities, or their Affiliates arising or incurred in connection with the negotiation, preparation, investigation and all Claimsperformance of this Agreement, regardless the ancillary documents hereto and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of when such Claim was first commenced or madecounsel, that arose out ofaccountants, relates to or results from the developmentconsultants, nonclinical advisers 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 infringementothers; (b) any and all products debt, obligation, expense or 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)is not an Assumed Liability; (c) any recalls (including after the Closing) mandated by any Governmental Body with respect claims or potential claims for medical malpractice or general liability relating to any Apollo Lap-Band Products manufactured acts or sold omissions asserted to have occurred prior to the ClosingEffective Time; (d) those claims and obligations (if any) specified in Schedule 1.4 hereto; (e) any liabilities or obligations associated with or arising out of any of the Excluded Assets; (f) liabilities and obligations of the Seller Entities or their Affiliates in respect of periods prior to the Effective Time arising under the terms of the Medicare, Medicaid, CHAMPUS/TRICARE, Blue Cross, or other third party payor programs, including without limitation, any amounts associated with (i) RAC Audits, PI audits, or third party payor audits, whether routine or not, and whether discovered by external or internal audit; (ii) failure to comply with third-party payor program rules, regulations, and requirements; (iii) reimbursement obligations related to cost reports; (iv) liabilities relating to surveys by accreditation organizations or governmental authorities which occurred prior to the Effective Time; and (v) any liability arising pursuant to the Medicare, Medicaid, CHAMPUS/TRICARE, Blue Cross, or any other third party payor programs as a result of the consummation of any of the transactions contemplated under this Agreement (provided that, for the avoidance of doubt, any liabilities arising under Medicare prior to the Effective Time shall be assumed by the Buyer Entities for purposes of demonstrating acceptance of assignment of the Medicare Provider Agreements in connection with the Medicare Change of Ownership (CHOW) process, but any such liabilities shall nevertheless be considered “Excluded Liabilities” for purposes of indemnification of Buyer by Seller pursuant to Section 11.2 of this Agreement); (g) liabilities and obligations of the Seller Entities or any of their Affiliates arising out of a breach of protected health information under HIPAA occurring prior to the Effective Time; (h) federal, state or local tax liabilities or obligations (i) of the Seller Entities or otherwise associated with the Assets in respect of periods prior to the Effective Time or (ii) resulting from the consummation of the transactions contemplated herein including, without limitation, any income tax, any franchise tax, any tax recapture, any sales and/or use tax, and any FICA, FUTA, workers’ compensation, and any and all Claims other taxes or amounts due and payable as a result of the exercise by the employees at the Facilities of such employees’ right to Paid Time Off (PTO), Extended Illness Benefits (EIB) or any other vacation, sick leave, and holiday benefits accrued while in the employ of the Seller Entities (provided, however, that this clause (h) shall not apply to any and all taxes payable with respect to any employee benefits constituting Assumed Liabilities under Section 1.3(c) hereof); (i) liability for Apollo Lap-Band Products manufactured any and all claims by or on behalf of the Seller Entities’ current or former employees, regardless of when earned, accrued or payable, relating in whole or in part to periods prior to the ClosingEffective Time or the termination of employees by the Seller Entities pursuant to Section 10.10(a), including, without limitation, liability for any compensation-related payments, pension, profit sharing, deferred compensation, equity or equity-related compensation, incentive compensation, fringe benefit, tuition reimbursement, severance, termination pay, EIB, change in control or retention payments, bonuses or any other employee benefit plan of whatever kind or nature or any employee health and welfare benefit plans, liability for any EEOC claim, ADA claim, FMLA claim, wage and hour claim, unemployment compensation claim, or workers’ compensation claim, and any liabilities or obligations to all M&A Qualified Beneficiaries (as defined by Treas. Reg. § 54.4980B-9) under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, and any regulations promulgated thereunder (provided, however, that this clause (i) shall not apply to any and all employee benefits constituting Assumed Liabilities under Section 1.3(c) hereof); (j) any obligation or liability accruing, arising out of, or relating to any federal, state or local investigations of, or claims or actions against, the Seller Entities or any of their Affiliates or any of their employees, medical staff, agents, vendors or representatives with respect to acts or omissions prior to the Effective Time; (k) any civil or criminal obligation or liability accruing, arising out of, or relating to any acts or omissions of the Seller Entities, their Affiliates or, to the extent related to their services to the Seller Entities, their directors, officers, employees and agents claimed to violate any constitutional provision, statute, ordinance or other law, rule, regulation or order of any governmental entity; (l) liabilities or obligations arising out of any breach by the Seller Entities prior to the Effective Time of any Contract; (m) liabilities or obligations arising as a result of any breach by the Seller Entities at any time of any contract or commitment that is not expressly assumed by the Buyer Entities in this Agreement; (n) any debt, obligation, expense, or liability of the Seller Entities arising out of or incurred solely as a result of any transaction of the Seller Entities occurring after the Effective Time; (o) any liability relating to a violation by Seller, any Seller Entity, or any of their Affiliates of federal or state laws regulating fraud, including but not limited to product liability and infringement of Intellectual Property whether or not sold prior to the Closing; federal Anti-Kickback Law (e42 U.S.C. § 1320(a)-7(b) any of the Excluded Apollo Assets; (f) Taxes (other than Transfer Taxes, which shall be governed solely by Section 2.8et seq.) (ithe “Anti-Kickback Law”), the Ethics in Patient Referrals Act (42 U.S.C. § 1395mm et seq.) in respect of or imposed upon Apollo or any of its Affiliates for any taxable period(the “▇▇▇▇▇ Law”), or the False Claims Act (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, including any unpaid accounts payable related to any Apollo Lap-Band Inventory; and (j) all Liabilities set forth on Schedule 1.4.31

Excluded Liabilities. Except for Notwithstanding anything to the Assumed Lap-Band Liabilitiescontrary contained in this Agreement, ReShape shall Buyer does not assumeassume and will not be obligated to pay, and shall have no liability forperform, or otherwise discharge any Liabilities of Apollo the following liabilities or any Apollo Affiliate obligations of any kind, character Seller 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 its Affiliates (collectively, the “Excluded Apollo Liabilities”): (a) any and all Claims, regardless liabilities or obligations 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 Seller to the Closing, including all such Claims relating extent related to warranty obligations, marketing programs, patient incentive programs and alleged intellectual property infringementany Excluded Assets; (b) any and all products liability Claims that arose out of, relates to liabilities 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) obligations in respect of or imposed upon Apollo Taxes of Seller or any Tax Affiliate of its Affiliates for any taxable periodSeller, or (ii) imposed with respect to the Apollo Lapany liability of Seller for unpaid Taxes of any Person under Treasury Regulation section 1.1502-Band Assets or the Apollo Lap-Band Business for any taxable period 6 (or portion similar provision of state, local, or foreign law) as a transferee or successor, by Contract or otherwise, including without limitation, any Taxes relating to, pertaining to or arising from the Purchased Assets for periods (or portions thereof) ending on or prior to the Closing Date, except for Taxes for which Buyer is liable pursuant to Section 3.5 or Section 7.7; (c) subject to Article VIII, any liabilities or obligations in respect of any employees of Seller or its Affiliates, including any obligations of Seller for benefits, bonuses, wages, employment Taxes, or severance pay and any liability or obligations arising under any Seller Plan; (d) any liabilities or obligations relating to the disposal, storage, transportation, discharge, Release, recycling, or the arrangement for such activities, by Seller, of Hazardous Materials at any Off-Site Location, provided that for purposes of this Section 2.4(d), “Off-Site Location” does not include any location to, at, or through which Hazardous Materials originally disposed of at, discharged from, emitted from or Released at the Purchased Assets have migrated, including, but not limited to, surface waters that have received waste water discharges from the Purchased Assets (it being understood that the foregoing proviso shall not in any way diminish Seller’s liabilities and obligations under this Agreement with respect to manufactured gas plant sites); (e) liabilities or obligations relating to any properties (other than Purchased Assets) formerly owned or operated by the Seller or its Affiliates or predecessors prior to the Closing; (f) any liabilities or obligations reflected on the Final Balance Sheet, other than Actual Assumed Balance Sheet Obligations and liabilities that are fully reflected as reductions to Net Transmission Plant Investment; (g) liabilities or obligations relating to any Contractmanufactured gas plant sites at, other than an Apollo Lap-Band Business Contract and subject affecting or related 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 boundPurchased Assets; (h) except for the Assumed Environmental Liabilities, liabilities or obligations arising from any current or former employee or contractor Claim (including any workers compensation Claim) related to the Purchased Assets of Apollo, or any of its Affiliateswhich Seller has received written notice from a third party prior to the Closing; (i) any liabilities or obligations of Seller arising under or in connection with this Agreement, any certificate or other document delivered in connection herewith, and any of the transactions contemplated hereby and thereby; (j) subject to Section 7.18, all Apollo Accounts Payablepre-closing liabilities and obligations of Seller, including of whatever nature, to the extent such liabilities are covered by a third party insurance policy maintained by Seller and then only to the extent actual proceeds are received by Seller from such third party insurer in respect of such liabilities or obligations; (k) all liabilities and obligations of Seller or in respect of the Purchased Assets existing on or after the Closing Date under any unpaid accounts payable State Regulatory Orders issued prior to the Closing, other than the liabilities or obligations (i) under the State Regulatory Orders applicable to the Purchased Assets set forth on Schedule 2.3(e), (ii) imposed on Buyer or the Purchased Assets in connection with any Required Regulatory Approval, or (iii) that relate to customary transmission facility siting or siting certification matters within the jurisdiction of the Governmental Entity issuing such State Regulatory Order; (l) the liabilities or obligations set forth on Schedule 2.4(l); (m) liabilities and obligations under Purchased Agreements for the provision of any Ancillary Services or that would otherwise cause Buyer to be considered a customer of electricity transmission service or electricity market participant under FERC rules or regulations; (n) liabilities and obligations under Purchased Agreements to the extent not primarily related to any Apollo Lap-Band Inventorythe Purchased Assets or Transmission; and (jo) all Liabilities set forth on Schedule 1.4liabilities and obligations under the Settlement Agreement dated October 31, 2002 between Interstate Power Light and Electric and Southern Minnesota Municipal Power Agency.

Excluded Liabilities. Except for Notwithstanding any provision in this Agreement to the contrary, Purchaser is assuming only the Assumed Lap-Band Liabilities, ReShape shall Liabilities and is not assumeassuming, and shall not be deemed to have no liability forassumed, any other Liabilities of Apollo Sellers of whatever nature (whether arising prior to, at the time of, or subsequent to Closing), whether absolute, accrued, contingent or otherwise, whether due or to become due and whether or not assets, and whether or not known or unknown or currently existing or hereafter arising or matured or unmatured, direct or indirect, and the Sellers shall be solely and exclusively liable for any Apollo Affiliate and all such Liabilities, including those relating to, arising out of or in connection with the operation of the Business or the Purchased Assets (including the use and ownership thereof) at any kindtime prior to the Closing Date, 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 and including, without limitation all limitation, those Liabilities arising out of, resulting from or relating to set forth below (collectively, the “Excluded Apollo Liabilities”): (a) any and all ClaimsLiabilities of the Sellers relating to or otherwise arising, regardless of when such Claim was first commenced whether before, on or madeafter the Closing, that arose out of, relates to or results from the developmentin connection with, 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 Excluded 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 Liabilities for Indebtedness with respect to or results from borrowed money and 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)intercompany Indebtedness; (c) any recalls (including after the Closing) mandated by any Governmental Body with respect all guarantees of third party obligations and reimbursement obligations to any Apollo Lap-Band Products manufactured guarantors of Sellers’ obligations or sold prior to the Closingunder letters of credit; (d) any and all Claims (i) Liabilities of the Sellers for Apollo Lap-Band Products manufactured prior any Taxes (including any Taxes owed by Sellers and arising in connection with the consummation of the transactions contemplated by this Agreement), (ii) any Taxes imposed on any Person that are the responsibility of the Sellers pursuant to Section 11.1, (iii) Taxes attributable to the Closing, including but not limited to product liability Purchased Assets or the operation of the Business for any Pre-Closing Tax Period and infringement of Intellectual Property whether (iv) any Taxes arising from or not sold prior to the Closingin connection with an Excluded Asset; (e) any and all Liabilities of the Excluded Apollo AssetsSellers in respect of Contracts that are not Assigned Contracts; (f) Taxes except for any employment Contract that is an Assumed Contract, all Liabilities with respect to compensation, severance or benefits of any nature owed to any current or former employee, officer, director, member, partner or independent contractor of Sellers or any ERISA Affiliate (other than Transfer Taxesor any beneficiary or dependent of any such individual), which shall be governed solely whether or not employed by Section 2.8) (i) in respect of or imposed upon Apollo Purchaser or any of its Affiliates for after the Closing, that (A) arises out of or relates to the employment, service provider or other relationship between Sellers or ERISA Affiliate and any taxable periodsuch individual, including the termination of such relationship, (B) arises out of or relates to any Benefit Plan or (iiC) imposed with respect arises out of or relates to the Apollo Lap-Band Assets events or the Apollo Lap-Band Business for any taxable period (or portion thereof) ending conditions occurring on or prior to before the Closing Date; (g) any Contract, other than an Apollo Lap-Band Business Contract and subject to draft or checks outstanding at 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 boundClosing; (h) all Liabilities under any current futures contracts, options on futures, swap agreements or former employee or contractor of Apollo, or any of its Affiliatesforward sale agreements; (i) all Apollo Accounts PayableLiabilities for fees, costs and expenses that have been incurred or that are incurred or owed by Seller in connection with this Agreement or the administration of the Bankruptcy Case (including all fees and expenses of professionals engaged by Sellers) and administrative expenses and priority claims accrued through the Closing Date and specified post-closing administrative wind-down expenses of the bankrupt estates pursuant to the Bankruptcy Code (which such amounts shall be paid by the Sellers from the proceeds collected in connection with the Excluded Assets) and all costs and expenses incurred in connection with (i) the negotiation, execution and consummation of the transactions contemplated under this Agreement and each of the other documents delivered in connection herewith, (ii) the preparation and submission of any filing or notice required to be made or given in connection with any of the transactions contemplated by this Agreement, and the obtaining of any consent required to be obtained in connection with any of such transactions; (iii) the negotiation, execution and consummation of the DIP Financings, and (iv) the consummation of the transactions contemplated by this Agreement, including any unpaid accounts retention bonuses, “success” fees, change of control payments and any other payment obligations of Sellers payable related to any Apollo Lap-Band Inventory; andas a result of the consummation of the transactions contemplated by this Agreement and the documents delivered in connection herewith; (j) all Liabilities set forth related to the WARN Act, to the extent applicable, with respect to Employees, and for any action resulting from Employees’ separation of employment prior to or on Schedule 1.4the Closing Date; (k) all Liabilities of Sellers to their equity holders respecting dividends, distributions in liquidation, redemptions of interests, option payments or otherwise, and any liability of Sellers pursuant to any Affiliate Agreement; (l) all Liabilities arising out of or relating to any business or property formerly owned or operated by Sellers, any Affiliate or predecessor thereof, but not presently owned and operated by the Sellers; (m) all Liabilities relating to claims, actions, suits, arbitrations, litigation matters, proceedings or investigations (in each case whether involving private parties, Authorities, or otherwise) involving, against, or affecting any Purchased Asset, the Business, Sellers, or any assets or properties of Sellers, whether commenced, filed, initiated, or threatened before or after the Closing and whether relating to facts, events, or circumstances arising or occurring before or after the Closing; (n) all obligations of the Sellers arising and to be performed prior to the Closing Date arising from or related to the Business or the Purchased Assets; (o) all Environmental Liabilities and Obligations to the full extent allowed by applicable law; (p) all Liabilities of Sellers or their predecessors arising out of any contract, agreement, Permit, franchise or claim that is not transferred to Purchaser as part of the Purchased Assets or, is not transferred to Purchaser because of any failure to obtain any third-party or governmental consent required for such transfer; (q) with respect to all periods prior to the Closing Date, Sellers shall remain liable and responsible for compliance with, as well as any liability which may arise or exist under the Workers Adjustment and Retraining Notification Act, P.L. 100-379, with respect to the termination of any employee of any Seller prior to the Closing Date; and (r) any Liabilities arising under Section 8.17(b).

Excluded Liabilities. Except for Notwithstanding any provision in this Agreement or any other writing to the contrary, Buyer is assuming only the Assumed Lap-Band Liabilities, ReShape shall Liabilities and is not assume, and shall have no assuming any other liability for, any Liabilities or obligation of Apollo Seller (or any Apollo Affiliate predecessor owner of any kind, character all or description, it part of its business and assets) of whatever nature whether presently in existence or arising hereafter. All such other liabilities and obligations shall be retained by and remain obligations and liabilities of Seller (all such liabilities and obligations not 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 assumed being herein referred to (collectively, as the “Excluded Apollo Liabilities”):), and Seller will pay all such Excluded Liabilities as they become due. Notwithstanding anything to the contrary in this Section 2.04, none of the following shall be Assumed Liabilities for the purposes of this Agreement: (a) any and all Claims, regardless of when such Claim was first commenced Any liability or made, that arose out of, relates obligation for Tax arising from or with respect to the Purchased Assets or results from the development, nonclinical and clinical testing, commercialization, manufacture, storage, packaging, import, marketing, labeling, pricing, distribution, sale or use operations of the Apollo Lap-Band Product Business which is incurred in or any of the Apollo Lap-Band Assets, in each case, prior attributable to the Closing, including all such Claims relating to warranty obligations, marketing programs, patient incentive programs and alleged intellectual property infringementPre-Closing Tax Period; (b) any and all products Any 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 obligation for any taxable period, accounts payable 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 other accruals arising on or prior to the Closing Date; (gc) Any liability or obligation under the Contracts that arises after the Closing Date but that arises out of or relates to any Contractdefault, other than an Apollo Lap-Band Business Contract and subject breach, violation or failure to perform or comply with the limitations set forth in Section 1.3, to which Apollo terms thereof that occurred on or any of its Affiliates is a party or by which any of its properties or assets are otherwise boundbefore the Closing Date; (hd) Any liability or obligation under any current Contract listed on Schedule 2.04(c) (the “Excluded Contracts”) whether arising before or former employee or contractor of Apollo, or any of its Affiliatesafter the Closing Date; (ie) all Apollo Accounts PayableAny liability or obligation, including any unpaid accounts payable warranty obligations, arising out of or related to any Apollo Lap-Band Inventoryproducts or services, manufactured, distributed or sold in connection with the Business (including by any predecessor of Seller) on or prior to the Closing Date; (f) Any liability or obligation relating to employees of, or independent contractors or consultants to, the Business for all periods ending on or prior to the Closing Date, including, without limitation, workers’ compensation claims, disability and occupational diseases in each case without regard to whether such injuries, claims, conditions, events and occurrences are known or otherwise manifest on or prior to the Closing Date and any bonuses (including, without limitation, a pro rata portion of any bonus paid by Buyer to any Transferred Employee in respect of any period, a portion of which includes the period on or prior to the Closing Date), vacation pay, or severance or retention obligations to such employees, whether or not accrued on Seller’s books and records; and (jg) all Liabilities set forth on Schedule 1.4Any liability or obligation relating to an Excluded Asset.

Excluded Liabilities. Except for The parties acknowledge that the transactions contemplated by this Agreement involve a purchase and sale of assets, and that Buyer is not a legal successor of Seller and is assuming only the Assumed Lap-Band LiabilitiesLiabilities and not any other Liabilities of the Seller or 4 any of its Affiliates of any nature whatsoever, ReShape shall not assumewhether known or unknown, absolute or contingent, and whether presently existing or hereafter arising. All such other liabilities and obligations shall have no liability forbe retained by and remain liabilities and obligations of the Seller and/or its Affiliates, as applicable (all such liabilities and obligations not expressly assumed by Buyer hereunder being herein referred to as the “Excluded Liabilities”). The Excluded Liabilities include: (a) any Liabilities of Apollo the Seller for costs and expenses incurred (or to be incurred) for services performed by its legal, financial, accounting and investment banking advisors in connection with the transactions contemplated by this Agreement, including, without limitation, any Apollo Affiliate broker’s fees of Seller’s broker; (b) any Liabilities of the Seller relating to its performance under this Agreement and the Transaction Documents and the transactions contemplated hereby and thereby; (c) any Liabilities of the Seller for Intercompany Accounts; (d) any Liabilities of the Seller for asset retirement obligations related to railcars; (e) except as expressly set forth in this Agreement, all Indebtedness, Contracts and Liabilities of any kind, character or descriptiondescription (whether known or unknown, it being understood that ReShape is expressly disclaiming any express accrued, absolute, contingent or implied assumption of any Liabilities other than the Assumed Lap-Band Liabilities including, without limitation all Liabilities otherwise) relating to or 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 ownership or any operation of the Apollo Lap-Band Assets, in each case, prior to Purchased Assets or 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 conduct of 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 Business 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 all Liabilities of or imposed upon Apollo Seller or any of its Affiliates for under the Assumed Contracts to the extent required to be paid or performed prior to Closing; (g) all Liabilities arising out of or relating to or associated with the Excluded Assets; (h) all Liabilities with respect to (i) Taxes of Seller (or any taxable periodstockholder member, or Affiliate of Seller); (ii) imposed with respect Taxes relating to the Apollo Lap-Band Business, the Assets or the Apollo Lap-Band Business Assumed Liabilities for any taxable Tax period (or portion thereof) ending on or before the Closing Date; (iii) Taxes that arise out of the consummation of the transactions contemplated hereby which constitute obligations of, and are payable by, the Seller, whether such Taxes arise by Law or as agreed to by the parties hereto under Section 8.4(a) or other provisions of this Agreement; or (iv) all Taxes attributable to any Tax period (or portion thereof) ending on or before the Closing Date of any Person imposed on Buyer as a transferee or successor, by contract or pursuant to any Law (including, but not limited to, Treasury Regulations Section 1.1502-6 or comparable federal, state, local or foreign Law) with respect to Liabilities or relationships existing on or prior to the Closing Date or by agreements entered into or transactions entered into on or prior to the Closing Date; (gi) any Contract, other than an Apollo Lap-Band Business Contract all Liabilities of Seller 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 boundwith respect to Employees as provided in Exhibit C; (hj) any current All Liabilities of the Seller and its Affiliates related to the Green Shift License Agreement to the extent such Liabilities arose from the operation of the Ethanol Plant or former employee or contractor of Apollo, or any of its Affiliatesthe Business prior to the Closing Date; (ik) all Apollo Accounts Payable, including any unpaid accounts payable All Liabilities of Seller and their respective Affiliates related to any Apollo LapSyngenta/ADM Actions; (l) All Liabilities associated with the matters described in that certain Consent Agreement and Final Order, Green Plains Inc., respondent, Environmental Protection Agency, complainant, EPA Docket Number EPCRA-06-Band Inventory2021-0500; and (jm) all All Liabilities set forth on Schedule 1.4accruing, arising out of or related to the ownership, possession, use, operation or condition of the Purchased Assets, the Ethanol Plant or the Business before the Closing, including Liabilities for personal injury or death or damage to property of any Third Party attributable to or arising out of the ownership or operation of the Purchased Assets, the Ethanol Plant or the Business before the Closing and any liabilities and obligations, including any products liability for defective or off-spec Inventories sold to Third Parties prior to the Closing Date.

Excluded Liabilities. Except for the Assumed Lap-Band LiabilitiesLiabilities specifically set forth in Section 2.2 above, ReShape Buyer shall not assumeassume or otherwise become responsible for, and shall have no liability forthe Assumed Liabilities expressly exclude, any debt, liability, duty or obligation, whether known or unknown, fixed or contingent, of Seller including any Benefits Liabilities and liabilities or obligations related to the Acquired Assets or the Business which are outstanding or unpaid as 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 date hereof (collectively, the “Excluded Apollo Liabilities”): ). Without limiting the foregoing, the term “Excluded Liabilities” shall include all liabilities, including any liabilities for Taxes, arising from or related to: (ai) 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 relating to the Business or otherwise; (iii) any and all Claims, regardless Designated Employee hired by Buyer that accrues or arises as 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 Date (other than Accrued Vacation Pay and the obligations of Parent pursuant to Parent’s written offers of employment referenced in Section 5.9), or any of Seller’s other agents, consultants, independent contractors, employees or former employees, whenever arising, in each case including Claims alleging defects in such Apollo Lap-Band Product and Claims involving the death WARN Act, change of control, workers’ compensation, severance, salary, bonuses, COBRA benefits or injury to other benefits or payments due under 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 ClosingEmployee Plan, including but not limited to product liability and infringement of Intellectual Property whether or not sold prior to any such employees shall accept employment with Buyer in connection with the Closing; transactions contemplated hereby; (eiv) any of the Excluded Apollo Assets; Benefits Liabilities; (fv) Taxes (other than Transfer Taxes, which shall be governed solely by Section 2.8) (i) in respect of any litigation matter 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 threat thereof arising on or prior to the Closing Date; (g) any Contract, other than an Apollo Lap-Band Business Contract Date involving Seller 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 customer, lessor, shareholder, officer, employee, consultant, director or contractor affiliate thereof, including ▇▇▇▇▇▇ ▇. ▇▇▇▇-L Company, Inc., Civ. No. 00-S-1181, D. Colo., and all claims, disputes and causes of Apolloaction among Seller and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇ Enterprises, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, (vi) any indemnification obligation of Seller to any affiliate or third party (other than indemnification obligations set forth in the Transferred Contracts), (vii) any real estate lease or equipment lease, including the Lease Agreements, other than as contemplated under the Real Property Subleases, (viii) Seller’s Retained Environmental Liabilities, (ix) any guaranty or insurance policy of its Affiliates; (i) all Apollo Accounts Payableany type, including any unpaid accounts payable life or health insurance or key man insurance policies on ▇▇▇▇▇▇ ▇▇▇▇▇ or any other Person, (x) any sales, use and other transfer taxes, including any taxes arising from the transactions contemplated hereby (except as otherwise provided in Section 2.8 hereof), (xi) any and all fees and expenses incurred by Seller in connection with this Agreement and the transactions contemplated hereby, (xii) any Tax liabilities incurred by Seller prior to the Closing, (xiii) the Asvan Payment (as defined in Section 5.27 hereof), or (xiv) the shareholder derivative action (Case No. 00-CV-6001) filed, purportedly on behalf of the Seller, in ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ against ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ and the Seller, the appeal filed by the derivative plaintiff with the Colorado Court of Appeals with respect to same (Case No. 02-CA-1901) or any related to any Apollo Lap-Band Inventory; and (j) all Liabilities set forth on Schedule 1.4proceeding.

Excluded Liabilities. Except for the Assumed Lap-Band Liabilitiesas otherwise set forth in this Agreement, ReShape Buyer shall not assume, and shall be deemed not to have no assumed under any theory of successor liability foror otherwise, any Liabilities except for the Assumed Liabilities, and Sellers shall be solely and exclusively liable with respect to all 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 Sellers other than the Assumed Lap-Band Liabilities (collectively, the "Excluded Liabilities"), including, without limitation all but not limited to, those Liabilities set forth below: (a) any Liabilities which arise, whether before, on, or after the Closing Date, out of, or in connection with, the Excluded Assets; (b) except for Liabilities assumed under Sections 2.3(d), (e), or (f), any Liabilities arising out of, resulting from or relating to (collectivelyin connection with, the “Excluded Apollo Liabilities”): (a) any ownership 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 operation of the Apollo Lap-Band Product Acquired Assets or any of the Apollo Lap-Band Assets, in each case, prior Business 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 extent that arose out of, relates to the event 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 occurrence of or injury to any individual relating facts giving rise 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 Liabilities occurs prior to the Closing; (c) any Liabilities arising out of or in connection with any amounts owed by Sellers to their lenders or to their vendors of goods and services delivered or furnished to Sellers prior to Closing, except as otherwise provided in this Agreement; (d) except for Liabilities assumed under Sections 2.3(d), (e) or (f), any and all Claims Liabilities for Apollo Lap-Band Products manufactured Sellers' employees arising from Sellers' operation of the Business prior to the ClosingClosing Date including pension, including health insurance claims, workers' compensation claims or liabilities, profit sharing or any other Benefit Plans, severance benefits, earned but not limited to product liability unpaid salary, accrued but unpaid vacation days, accrued but unpaid medical and infringement of Intellectual Property whether dental expenses, and other accrued welfare benefits, compensation, or not sold prior to the Closingretiree medical and other benefits and obligations; (e) any Liabilities for Taxes of Sellers, including, but not limited to, all Taxes attributable to, incurred in connection with or arising out of the Excluded Apollo Assets; (f) collection of accounts receivable and the operation of the Business including those Taxes (other than Transfer Taxes, which shall be governed solely by Section 2.8) (i) in respect of are not due or imposed upon Apollo or assessed until after the Closing Date but which are attributable to 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 before the Closing; (f) Liabilities related to the Closing Datetermination of employment of employees of Sellers by Sellers, including, but not limited to, any Liabilities arising under the WARN Act as a consequence of the transactions contemplated by this Agreement or prior thereto; (g) any Contract, other than an Apollo Lap-Band Business Contract and subject to the limitations set forth except as otherwise provided in Section 1.38.2 hereof, any brokers' or finders' fees or other liability of Sellers for costs and expenses (including fees and expenses relating to which Apollo or any of its Affiliates is a party or by which any of its properties or assets are otherwise boundprofessional advisors incurred in connection with this Agreement); (h) Liabilities for any current or former employee or contractor violations of ApolloLaws, or any of its Affiliates;including Environmental Laws by Sellers; and (i) all Apollo Accounts Payable, including any unpaid accounts payable related to any Apollo Lap-Band Inventory; and (j) all Liabilities set forth Cure Amounts other than those specifically noted on Schedule 1.4.2.1(g), 2.1(g)-1, 2.1(g)-2, and 2.1

Excluded Liabilities. Except for Seller acknowledges that the Assumed Lap-Band Liabilities, ReShape Obligations shall not assumeinclude the following liabilities, obligations and shall have no liability for, any Liabilities commitments 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 Seller (collectively, the “Excluded Apollo Liabilities”): (a) any liabilities or obligations of Seller and all Claims, regardless of when such Claim was first commenced or made, that arose out of, relates its Affiliates related to or results from the development, nonclinical and clinical testing, commercialization, manufacture, storage, packaging, import, marketing, labeling, pricing, distribution, sale or use arising out of the Apollo Lap-Band Product Excluded Assets 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 infringementRetained Business; (b) any and all products liability Claims that arose out of, relates to liabilities or results from any Apollo Lapobligations in respect of Pre-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)Taxes; (c) except as otherwise expressly provided in Section 7.10(c), Section 7.10(d), Section 7.11(d) or Section 7.11(e), any recalls (including after the Closing) mandated by any Governmental Body with respect liabilities under or relating to any Apollo Lap-Band Products manufactured or sold prior to the ClosingBenefit Plan; (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 Closingintercompany payables; (e) any of liabilities or obligations arising from or related to the Excluded Apollo AssetsOther Indemnified Matters, except to the extent contemplated by the common interest agreement to be entered into by Buyer and Seller as contemplated by Schedule 7.13(b); (f) Taxes (any liabilities or obligations of Seller arising under or in connection with this Agreement, the Ancillary Agreements, any certificate or other than Transfer Taxesdocument delivered in connection in herewith, which shall be governed solely by Section 2.8) (i) in respect of or imposed upon Apollo or and 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 Datetransactions contemplated hereby and thereby; (g) any Contractliabilities or obligations of Seller and its Affiliates in respect of indebtedness for borrowed money or any other notes payable, other than an Apollo Lapincluding any Tax-Band Business Contract and subject Exempt Bonds, except for liabilities included in Working Capital; (h) except to the limitations set forth extent otherwise specifically provided herein, all transaction expenses incurred in Section 1.3connection with this Agreement by Seller, to which Apollo including costs incurred in connection with the process of selling the Business or the negotiation, preparation or execution of this Agreement or the Ancillary Agreements or the performance or consummation of the transactions contemplated hereby or thereby, including all fees and expenses of counsel, advisors, consultants, investment bankers, accountants, auditors and any other experts; and (i) any liabilities or obligations of Seller or any of its Affiliates is a party or by which incurred prior to the Effective Time with respect to any of its properties or assets are otherwise bound; (h) any current present or former employee employees, officers, directors, retirees, independent contractors or contractor consultants of Apollo, or any of its Affiliates; the Business (i) all Apollo Accounts Payableincluding the Business Employees), including any unpaid accounts payable related beneficiaries or dependents of such individuals, for any claims for wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments or benefits, except liabilities and obligations as are specifically included in the Working Capital or for which Buyer is expressly responsible pursuant to any Apollo Lap-Band Inventory; and (j) all Liabilities set forth on Schedule 1.4Section 7.10(c).

Excluded Liabilities. Except for the Assumed Lap-Band Liabilities, ReShape Enghouse US shall not assumeassume and shall not be responsible to pay, perform or discharge any of, and Sellers shall have no liability fortimely perform, satisfy and discharge in accordance with their respective terms, any Liabilities and all liabilities or obligations of Apollo Sellers (collectively, the "Excluded Liabilities"), including the following liabilities: (i) any liabilities relating to or arising out of the Excluded Assets; (ii) any Apollo Affiliate liability for Taxes of a Seller; (iii) 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 liabilities arising out of, resulting from under or relating in connection with Contracts that are not Assumed Contracts and, with respect to Assumed Contracts, any liabilities in respect of a breach by or default of a Seller accruing under such Assumed Contracts with respect to any period on or before the Closing (collectively, the “"Excluded Apollo Contract Liabilities”):"); (aiv) any and all Claims, regardless liabilities in respect of when such Claim was first commenced or made, that arose any claim arising out of, relates relating to or results from otherwise in respect of (A) the development, nonclinical and clinical testing, commercialization, manufacture, storage, packaging, import, marketing, labeling, pricing, distribution, sale or use operation of the Apollo Lap-Band Product or any of the Apollo Lap-Band Assets, in each case, Mediasite Business prior to the Closing, including all such Claims relating to warranty obligations, marketing programs, patient incentive programs and alleged intellectual property infringementor (B) any Excluded Asset; (bv) any and all products liability Claims that arose out of, relates to or results from any Apollo Lap-Band Product sold prior liabilities of a Seller relating to the Closing (including Claims alleging defects in such Apollo Lap-Band Product and Claims involving conduct or operation of any business of a Seller other than the death of or injury to any individual relating to such Apollo Lap-Band Product)Mediasite Business; (cvi) any recalls (including after the Closing) mandated by any Governmental Body with respect liabilities relating to any Apollo Lap-Band Products manufactured or sold prior to the ClosingIntercompany Payables; (dvii) any liabilities of a Seller arising or incurred in connection with the negotiation, preparation, investigation and all Claims for Apollo Lap-Band Products manufactured prior to performance of this Agreement, the ClosingRelated Documents and the transactions contemplated hereby and thereby, including but not limited to product liability including, without limitation, fees and infringement expenses of Intellectual Property whether or not sold prior to the Closingcounsel, accountants, consultants, advisers and others; (eviii) 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 liabilities relating 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 PayableMediasite Mosaic Matters, including any unpaid accounts payable related to any Apollo Lap-Band Inventorycosts and expenses of the defense thereof; and (jix) all Liabilities set forth on Schedule 1.4any liabilities relating to Leased Real Property.

Excluded Liabilities. Except for Notwithstanding any provision in this Agreement to the contrary, the Purchaser is assuming only the Assumed Lap-Band Liabilities, ReShape shall Liabilities and is not assumeassuming, and shall not be deemed to have no liability forassumed, any Liabilities of Apollo any Seller of whatever nature (whether arising prior to, at the time of, or subsequent to Closing) and the Sellers shall be solely and exclusively liable for any Apollo Affiliate of any kindand all such Liabilities, character or descriptionincluding those relating to, 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 ofof or in connection with the operation of the Business or the Purchased Assets (including the use and ownership thereof) at any time prior to the Closing Date, resulting from or relating to and those Liabilities set forth below (collectively, the “Excluded Apollo Liabilities”): (a) any and all ClaimsLiabilities of the Sellers relating to or otherwise arising, regardless of when such Claim was first commenced whether before, on or madeafter the Closing, that arose out of, relates to or results from the developmentin connection with, 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 Excluded 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 Liabilities of the Sellers in respect of Contracts that arose out of, relates to or results from any Apollo Lapare Non-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)Assigned Contracts; (c) any recalls (including after the Closing) mandated by Liabilities under any Governmental Body Assigned Contract that relate to a breach of or default under, or any non-compliance with Laws with respect to 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 such Assigned Contract that occurred on or prior to the Closing Date; (d) any Liabilities for wages, bonuses, retention bonuses or payments, employee benefits, accrued vacation, or other accrued or vested paid time off, assessments, severance or other employment compensation for any employees, or employer Taxes, including without limitation, any arising from the vesting of any equity grants upon the closing of the transactions contemplated hereby other than Assumed PTO, or unpaid amounts to any consultants of the Sellers accrued or arising prior to the Closing; (e) all warranty and return obligations, including, without limitation, all Liabilities and obligations to repair or replace, or to refund the sales price (or any other related expenses) for Inventory sold prior to the Closing Date; (f) any and all Liabilities for Taxes attributable to the operation of the Business on or prior to the Closing Date and any and all Liabilities (whether direct or as a result of successor liability, transferee liability, joint and several liability or contractual liability) for Taxes that are unrelated to the Purchased Assets; (g) any Contract, other than an Apollo Lap-Band Business Contract costs and subject expenses incurred by the Sellers incident to the limitations set forth in Section 1.3negotiation and preparation of this Agreement and the transactions contemplated hereby and any Liability of the Sellers to pay any fees or commissions to any broker, finder or agent with respect to which Apollo or any of its Affiliates is a party or by which any of its properties or assets are otherwise boundthe transactions contemplated hereby; (h) any current and all Liabilities of the Sellers in respect of the WARN Act or former employee under any similar provision of any federal, state, provincial, regional, foreign or contractor of Apollo, local Law that might arise or any of its Affiliates; (i) all Apollo Accounts Payable, including any unpaid accounts payable related have arisen on or prior to any Apollo Lap-Band Inventorythe Closing Date; and (ji) all Liabilities set forth on Schedule 1.41.4(i).

Excluded Liabilities. Except Notwithstanding anything to the contrary in Section 2.3 or this Agreement, but subject to, for the Assumed Lap-Band avoidance of doubt, any covenant or agreement contained in this Agreement (other than Section 2.3) or in any Ancillary Agreement where Purchaser or any of its Affiliates has expressly agreed to assume, satisfy, discharge, perform when due, bear or otherwise be liable for any Liabilities, ReShape from and after the Closing, Seller and its Affiliates shall not assumeretain and remain responsible for and satisfy, discharge and perform when due, and Purchaser shall have no liability for, any obligation with respect to all of the following 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 ClaimsLiabilities for Taxes, regardless of when such Claim was first commenced or madeother than Assumed Liabilities (collectively, that arose out ofthe “Excluded Tax Liabilities”); (b) except as otherwise provided in Section 5.7, relates all Liabilities to the extent relating to or results from the development, nonclinical and clinical testing, commercialization, manufacture, storage, packaging, import, marketing, labeling, pricing, distribution, sale or use arising out of the Apollo Lap-Band Product Indebtedness of Seller or any of its Affiliates; (c) except to the Apollo Lap-Band Assetsextent otherwise specifically provided in this Agreement, all fees, costs and expenses incurred or payable by Seller, Burgundy or any of their Affiliates in connection with the transactions contemplated by this Agreement and the Ancillary Agreements and the consummation or performance thereof or otherwise in connection with Seller’s, Burgundy’s or any of their respective Affiliates’ solicitation, discussion or negotiation of strategic alternatives involving the Program Business prior to the date hereof, in each case, prior to that are unpaid as of 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 professionals (including Claims alleging defects investment bankers, attorneys, accountants, brokers and other consultants and advisors) retained by Seller, Burgundy or any of their respective Affiliates that performed services in such Apollo Lap-Band Product connection with the negotiation of this Agreement and Claims involving the death Ancillary Agreement and execution of or injury to any individual relating to such Apollo Lap-Band Product); (c) any recalls (including after this Agreement, the Closing) mandated by any Governmental Body with respect to any Apollo Lap-Band Products manufactured or sold prior to Ancillary Agreements and the consummation of the transactions contemplated hereby and thereby, in each case, that are unpaid as of the Closing; (d) all Liabilities to the extent relating to or arising out of (i) any Business Employee who is not a Transferred Employee at any time prior to, on or after the Closing Date (or, as the case may be, in the case that the French Put Option Exercise, for any French Employee on or after the date of the French Deferred Closing or, in the case that the Dutch Consultation Procedures are not completed as provided in Section 2.12(b), for any Dutch Employee who is not a Transferred Employee on or after the date of the Dutch Deferred Closing), and all Claims for Apollo Lap-Band Products manufactured (ii) any Transferred Employee at any time prior to the Closing, including but not limited including, all Liabilities to product liability and infringement of Intellectual Property whether the extent relating to or not sold attributable to such employee’s work or employment prior to the Closing or any claim relating to or attributable to facts that occurred prior to the Closing; (e) except as otherwise provided in Section 2.3(f), all Liabilities relating to or arising out of any of the Excluded Apollo AssetsBenefit Plan; (f) Taxes (other than Transfer Taxes, which shall be governed solely by Section 2.8) (i) all Liabilities in respect of any Action, whether or imposed upon Apollo not presently threatened, asserted or any of its Affiliates for any taxable periodpending, or (ii) imposed with respect to the Apollo Lap-Band Assets extent relating to or arising out of the conduct of the Program Business or the Apollo Lap-Band Business for operation of the Transferred Assets prior to the Closing, including, without limitation, all Liabilities to the extent Purchaser is required to pay or bear any taxable period (cost to a Transferred Employee attributable to such employee’s work or portion thereof) ending on or employment prior to the Closing Dateor any claim based on facts that occurred prior to the Closing; (g) any Contract, other than an Apollo Lap-Band Business Contract and subject all Liabilities listed on Schedule 2.4(g) 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 boundthis Agreement; (h) all Liabilities arising out of or related to any current or former employee or contractor of Apollo, noncompliance by Seller or any of its Affiliates, employees or agents with any applicable Law; (i) all Apollo Accounts PayableLiabilities for product liability, including product defect, personal injury or any unpaid accounts payable related tort arising out of the manufacture, marketing or sale of the Product or any Variant thereof prior to any Apollo Lap-Band Inventory; andthe Closing; (j) all Liabilities in respect of Environmental Laws or Hazardous Substances to the extent relating to or arising out of the conduct of the Program Business or the operation of the Transferred Assets prior to the Closing; (k) all Liabilities in respect of any Product returns to the extent they arise from the sale of the Product prior to the Closing, which will be handled as set forth on in Schedule 1.42.4(k); and (l) all other Liabilities that are not the subject of clause (a) through (k) of this Section 2.4 to the extent relating to or arising out of the Transferred Assets, the Product or any Variant thereof or the Program Business, other than the Assumed Liabilities.

Excluded Liabilities. Except for the Assumed Lap-Band Liabilities, ReShape Neither Buyer nor any of its Affiliates shall not assume, and nor shall have no liability they be or become responsible for, any Liabilities of Apollo the Business 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 Sellers 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”):). Without limiting the generality of the foregoing, the following shall constitute the Excluded Liabilities notwithstanding any other provision of this Agreement: (a) any and all Claims, regardless of when such Claim was first commenced or made, that arose out of, relates Liabilities relating to or results from the development, nonclinical and clinical testing, commercialization, manufacture, storage, packaging, import, marketing, labeling, pricing, distribution, sale or use conduct of the Apollo Lap-Band Product or any of the Apollo Lap-Band Assets, in each case, Business prior to the Closing, including all such Claims relating to warranty obligations, marketing programs, patient incentive programs and alleged intellectual property infringementexcept as specifically provided in Section 2.3(b); (b) all Liabilities to make royalty, milestone or deferred payments or any and all products liability Claims that arose out of, relates other contingent payments to third parties in connection with or results arising from any Apollo Lap-Band Product the Products sold prior to the Closing (including Claims alleging defects in such Apollo Lap-Band Product and Claims involving the death Date or otherwise arising out 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 conduct of the Business prior to the Closing; (dc) all Liabilities involving any and all Claims for Apollo Lap-Band Products manufactured prior product recalls, adverse events or similar events related 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 Business with respect to the Apollo Lap-Band Assets or the Apollo Lap-Band Business for any taxable period (or portion thereof) ending on or Products sold prior to the Closing Date; (d) all Liabilities for (i) Transfer Taxes of Seller Parent as described in Section 8.1 and (ii) Taxes (other than Transfer Taxes) attributable to the Acquired Assets or the operations or the income of the Business for any Pre-Closing Tax Period; (e) all Liabilities with respect to returns of Products sold prior to the Closing, including all Liabilities for any credits, rebates, refunds or other amounts payable in respect of any such returned Product; (f) all Liabilities of Sellers arising under this Agreement and the Ancillary Agreements or from the consummation of the Transactions; (g) any Contract, other than an Apollo Lap-Band Business Contract and subject all Liabilities arising out of or relating 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 boundRetained Business; (h) except as provided in Section 2.3(j), all Liabilities arising under any current or former employee or contractor of Apolloagreements, or other than any of its AffiliatesBusiness Contracts, to conduct clinical studies; (i) all Apollo Accounts PayableLiabilities under any Business Contracts, including IP Contracts, to the extent such Liabilities arise out of or relate to a breach or default thereunder by any unpaid accounts payable related Seller prior to any Apollo Lap-Band Inventory; andthe Closing; (j) all Liabilities set forth on Schedule 1.4related to any current or former employees or applicants of any Seller (including any severance or other amounts payable to such employees in connection with the consummation of the Transactions), except for Liabilities arising following the Closing in connection with Buyer’s employment of Transferred Employees; and (k) all Liabilities related to any Business Benefit Plan.

Excluded Liabilities. Except for Notwithstanding anything to the Assumed Lap-Band Liabilitiescontrary set forth in Section 2.2(a), 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, neither Purchaser nor any of its Subsidiaries will assume or be bound by any Liability, duty or obligation of any of the Seller Entities or any of their respective Affiliates, and the Seller Entities and their respective Affiliates shall retain all Liabilities, duties and obligations other than the Assumed Liabilities including, without limitation all Liabilities arising out of, resulting from or relating to (collectively, the “Excluded Apollo Liabilities”):), including, by way of example only, the following Liabilities of the Seller Entities and their respective Affiliates: (a1) any and all ClaimsLiability, regardless duty or obligation 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 AssetsSeller Entities or their respective Affiliates of any nature whatsoever, in each casewhether accrued, prior absolute, primary or secondary, contingent or otherwise, direct or indirect, asserted or unasserted, known or unknown, that is primarily related to the Closing, including all such Claims relating to warranty obligations, marketing programs, patient incentive programs and alleged intellectual property infringementRetained Business; (b2) any and all products liability Claims that arose out ofLiability, relates duty or obligation of any of the Seller Entities or their respective Affiliates of any nature whatsoever, whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, to the extent relating to or results arising from or in connection with any Apollo Lap-Band Product sold Excluded Asset; (3) the Excluded Deposits; (4) the One HSBC Center Lease; (5) any compensation or benefit Liabilities to Business Employees or Affiliated Employees with respect to services provided to Seller or its Affiliates prior to the Closing Date (including Claims alleging defects in such Apollo Lap-Band Product including, without limitation, all liabilities for accrued but unused paid time off) and Claims involving any Liabilities under 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 ClosingEmployee Plans, 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 incurred prior to the Closing Date, whether or not such claims are submitted for payment or reimbursement on or before the Closing Date, except to the extent otherwise provided under Section 9.1; (g6) any Contract, other than an Apollo Lap-Band Business Contract and subject to the limitations set forth in Section 1.3, to which Apollo Controlled Group Liability arising under any Employee Plan or any of its Affiliates is a party employee benefit plan sponsored, maintained or contributed to or by which any of its properties or assets are otherwise bound; (h) any current or former employee or contractor ERISA Affiliate of Apollo, the Seller Entities or any of its Affiliates; (i) all Apollo Accounts Payable, including any unpaid accounts payable related to any Apollo Lap-Band Inventorytheir respective Subsidiaries; and (j7) all any liability for Excluded Taxes (whether or not relating to the Transferred Business). Notwithstanding anything in Section 13.9 to the contrary, in no event shall Article XIII limit the retention by the Seller Entities of Excluded Liabilities set forth on Schedule 1.4as between Purchaser and the Seller Entities.

Excluded Liabilities. Except for the Assumed Lap-Band Liabilities, ReShape Purchaser shall not assumebe liable or obligated for any of Sellers’ past, present or future liabilities and nothing in this Agreement shall be construed in any manner to constitute an assumption by Purchaser of any such liability of Sellers. Sellers shall retain and pay and perform when due all of their liabilities, secured or unsecured, whether known or unknown, asserted or unasserted, absolute, accrued, contingent or otherwise, and shall have no liability for, any Liabilities of Apollo whether due to 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 become due (collectively, the “Excluded Apollo Liabilities”):). Other than as specifically set forth in Section 2.5, the Excluded Liabilities shall include the following liabilities: (a) any of Sellers’ obligations and all Claimsliabilities, regardless of when such Claim was first commenced to the extent accrued 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, arising prior to the ClosingClosing including, including without limitation, all such Claims relating to warranty obligations, marketing programs, patient incentive programs and alleged intellectual property infringementAccounts Payable; (b) any of Sellers’ liabilities and all products liability Claims that arose out of, relates to obligations under any Environmental Law or results from any Apollo Lap-Band Product sold prior related to the Closing (including Claims alleging defects use, transportation, handling, discharge or release of any Hazardous Material, except for the liabilities and obligations of Purchaser to the extent expressly set forth in such Apollo Lap-Band Product and Claims involving the death of or injury to any individual relating to such Apollo Lap-Band Product)Section 8.1 hereof; (c) any recalls (including after the Closing) mandated by any Governmental Body with respect of Sellers’ obligations and liabilities under or related to any Apollo Lap-Band Products manufactured Employee Benefit Plan or sold prior related to the Closingor in favor of any employee, former employee, retiree or job applicant of any Seller; (d) any of Sellers’ obligations and all Claims for Apollo Lap-Band Products manufactured prior liabilities arising out of or relating to the Closing, including but not limited any Action to product liability and infringement which any Seller is a party pending as of Intellectual Property whether or not sold prior to the Closing; (e) except as otherwise set forth herein or in any of the Ancillary Agreements, any of Sellers’ obligations and liabilities under any contract, agreement, obligation or commitment of any Seller not included in the Purchased Assets, or otherwise in respect of any Excluded Apollo Assets;Asset. (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 Sellers’ obligations and liabilities under this Agreement and 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 DateAncillary Agreements; (g) any Contractof Sellers’ obligations and liabilities in respect of the Excluded Contracts, other than an Apollo Lap-Band Business Contract Permitted Liens (except with respect to matters falling within the description set forth in Clauses (c) (A), (B) and (C) (subject to proration as described in Section 6.13(f)) and (d) (subject to proration as described in Section 6.13(f)) of the limitations definition of Permitted Liens set forth in Section 1.31.1 of this Agreement), to which Apollo the borrowing of money or issuance of any note, bond, indenture, loan, credit agreement or other evidence of its Affiliates is a party indebtedness, whether or by which any of its properties or assets are otherwise boundnot disclosed in this Agreement; (h) any current or former employee or contractor of Apolloexcept as otherwise set forth herein, or including, without limitation, as set forth in Sections 2.7 and 6.4 hereof, any of its Affiliates;Sellers’ liabilities and obligations resulting from the acts or omissions of Sellers following the Closing Date; and (i) any of Sellers’ obligations and liabilities in respect of (i) returns, recalls, retrofits and warranty and adjustment claims (other than any Action) and relating to any products manufactured, sold or distributed by Sellers prior to the Closing Date that constitute Farm Tires, Licensed Products or other products in categories similar thereto or manufactured using any of the Purchased Assets or any rights granted under the Technology Agreement, (ii) all Apollo Accounts Payable, including any unpaid accounts payable Actions related to any Apollo Lap-Band Inventory; and such products, and (jiii) all Liabilities set forth on Schedule 1.4Actions (each an “Excluded Design Defect Claim”) constituting or including claims for injuries or damages, but only to the extent of such damages, caused by a design defect in any Farm Tire if and to the extent that: (A) such claims allege that such design defect in such Farm Tire proximately caused such damages or injuries, (B) Farm Tires of the same size and type as such Farm Tire are in commercial production, but have been in commercial production for less than 24 months, as of the Closing Date, (C) such Farm Tire was manufactured by Purchaser at Freeport within 18 months after the Closing Date, and (D) with respect to, and measured using data available as of the expiration of, the 18 month period following the Closing Date, Farm Tires of the same size and type as such Farm Tire have an adjustment rate of 2% or more of units sold.

Excluded Liabilities. Except for Buyer will not assume or have any responsibility with respect to any Liability of Sellers (or any predecessor or Affiliate of Sellers) of any nature whatsoever not expressly included within the definition of 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”):limitation: (a) Taxes (i) imposed on any and all ClaimsSeller for any period (including, regardless for the avoidance of when such Claim was first commenced doubt, Transfer Taxes), or made, that arose (ii) arising out of, relates to of 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 related to the Closing, including Business or the Purchased Assets for all such Claims relating to warranty obligations, marketing programs, patient incentive programs and alleged intellectual property infringement; Tax periods (bor portions thereof) 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 ending prior to the Closing; (b) any costs or expenses incurred in connection with, or related to, the administration of the Bankruptcy Cases, including, without limitation, any accrued professional fees and expenses of attorneys, accountants, financial advisors and other professional advisors related to the Bankruptcy Cases, in each case, except as expressly set forth in Section 3.1(b); (c) Liabilities to the extent arising out of or related to the Excluded Assets; (d) Liabilities under any and all Claims for Apollo Lap-Band Products manufactured prior to the Closinginsurance policy issued by American International Group Inc., including but not limited to product liability and infringement The Hartford Insurance Group Inc. or any of Intellectual Property whether or not sold prior to the Closingtheir respective Affiliates; (e) any Liabilities of Sellers under this Agreement or the Excluded Apollo AssetsSeller Documents; (f) Taxes all Liabilities which may become due or owing under the Purchased Contracts (i) with respect to the period prior to the Closing (other than Transfer Taxes, which shall be governed solely by Section 2.8the Cure Amounts) (i) in respect of or imposed upon Apollo or any of its Affiliates for any taxable period, or (ii) imposed with respect after the Closing but which arise out of or relate to any breach that occurred prior to the Apollo Lap-Band Assets Closing (other than the Cure Amounts); (g) all Indebtedness owed by any Seller or any predecessor of any Seller except as expressly contemplated by the Apollo Lap-Band Business for Restructured First Lien Credit Agreement and the Restructured Second Lien Credit Agreement; (h) any taxable period Employee Obligations to any Employee arising out of such Employee’s employment by Sellers; (i) any Liabilities arising under or portion thereofotherwise relating to Sellers’ Store General Manager Bonus Program; (j) ending any Employee Claim of any Employee arising out of such Employee’s employment by Sellers; (k) any WARN Act Liabilities arising on or prior to the Closing Date; (gl) any ContractClaim arising prior to Closing and not expressly assumed pursuant to this Agreement; (m) any Liability to any stockholder or other equity holder of any Seller or any predecessor of any Seller; (n) any Liability arising out of or related to any Legal Proceeding commenced or threatened against any Seller or any predecessor of any Seller; (o) any Liability for infringement or misappropriation of any intellectual property arising out of or related to any conduct of any Seller or operation of the Business on or before the Closing; (p) any Liability, other than an Apollo Lap-Band Business Contract and subject whether administrative, civil or criminal in nature, relating to any Liquor License or the sale or service of alcohol beverages thereunder, where the circumstances upon which such Liability is predicated occurred prior to the limitations Closing unless expressly assumed by Buyer; (q) except for the costs pursuant to the Designation Rights Budget to the extent set forth in Section 1.32.7(c), to which Apollo any Liability of any Seller based upon any Seller’s acts or any of its Affiliates is a party omissions occurring before or after the Closing unless expressly assumed by which any of its properties or assets are otherwise boundBuyer; (hr) any current or former employee or contractor of Apollo, or any of its Affiliates; Liability under that certain (i) all Apollo Accounts PayableExclusive License Agreement between Champ's Restaurants, including any unpaid accounts payable related to any Apollo Lap-Band InventoryInc. and Champp's Entertainment, Inc. and (ii) Master Agreement between Champ's Restaurants, Inc. and Champp's Entertainment, Inc.; and (js) all other Liabilities set forth and obligations for which Buyer does not expressly assume any liability, including without limitation any Liabilities listed on Schedule 1.45.9 (collectively, the “Excluded Liabilities”).

Excluded Liabilities. Except for The Assumed Liabilities do not include, and the Assumed Lap-Band Liabilities, ReShape Purchaser shall not assume, assume and shall have no liability fornot be responsible to pay, perform, satisfy or discharge, any Liabilities that are not Assumed Liabilities, including the following 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 the Seller and its Subsidiaries other than the Assumed Lap-Band Liabilities including, without limitation all Liabilities arising out of, resulting from or relating to Transferred Entities (collectively, the “Excluded Apollo Liabilities”): (ai) 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 Liabilities of the Apollo Lap-Band Product or any Seller and its Subsidiaries (other than Liabilities of the Apollo Lap-Band AssetsTransferred Entities) for Taxes, other than the Assumed Taxes or Taxes reflected or accounted for in each caseClosing Net Working Capital, prior including, for the avoidance of doubt, all Taxes arising out of or in respect of the consummation of the transactions contemplated by this Agreement to the Closingextent the amount of such Taxes, including all such Claims relating to warranty obligationstogether with the Employee Costs Amount and the amount of the other Transaction Expenses, marketing programs, patient incentive programs and alleged intellectual property infringementexceeds the Cap; (ii) all Indebtedness (other than, to the extent primarily related to the Business or the Purchased Assets, Indebtedness of the types specified in clauses (b) any and all products liability Claims that arose out of, relates to or results from any Apollo Lap-Band Product sold prior to (d) of the Closing (including Claims alleging defects in such Apollo Lap-Band Product and Claims involving the death definition of or injury to any individual relating to such Apollo Lap-Band ProductIndebtedness); (ciii) any recalls all Excluded HR Liabilities (including after without prejudice to the Closing) mandated by any Governmental Body Purchaser’s obligations under this Agreement with respect to any Apollo Lap-Band Products manufactured or sold prior to payment of the ClosingEmployee Costs Amount); (div) any all Liabilities in respect of the Employee Costs Amount and all Claims for Apollo Lap-Band Products manufactured prior the Transaction Expenses to the Closing, including but not limited to product liability and infringement extent the aggregate amount of Intellectual Property whether or not sold prior to such Liabilities exceeds the ClosingCap; (ev) any of the Excluded Apollo AssetsSeller’s and its Subsidiaries’ obligations under this Agreement and the Ancillary Agreements; (fvi) Taxes all Liabilities arising from or relating to any Action brought by or on behalf of any stockholder of the Seller or the SEC, as the case may be, against the Seller with respect to books and records demands, any disclosures to or filings with the SEC made by the Seller (other than Transfer Taxes, which shall be governed solely Liabilities arising out of any information supplied by Section 2.8) (i) in respect of or imposed upon Apollo the Purchaser or any of its Affiliates (including for this purpose any taxable periodVintage Person), any breach or (ii) imposed with respect to alleged breach of fiduciary duties by the Apollo Lap-Band Assets board of directors of the Seller, Rule 10b-5 promulgated under the Exchange Act or the Apollo Lap-Band Business for any taxable period (other similar securities laws or portion thereof) ending on or prior to the Closing Date;stockholder Action; and (gvii) all Liabilities arising under or pursuant to any Transferred Contract, other than an Apollo Lap-Band Business the Assumed 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, including any unpaid accounts payable related to any Apollo Lap-Band Inventory; and (j) all Liabilities set forth on Schedule 1.4Liabilities.

Excluded Liabilities. Except for the Assumed Lap-Band Liabilities, ReShape The Seller 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 retain all 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”):), including: (a) any and all Claims, regardless of when such Claim was first commenced or made, that arose out of, relates Liabilities related to or results from the development, nonclinical and clinical testing, commercialization, manufacture, storage, packaging, import, marketing, labeling, pricing, distribution, sale or use operation of the Apollo Lap-Band Product or any of the Apollo Lap-Band Assets, in each case, Business prior to the Closing, including all such Claims relating to warranty obligations, marketing programs, patient incentive programs and alleged intellectual property infringement; (b) any all Liabilities related to the Transferred Assets and all products liability Claims that arose out of, relates the Business to or results from any Apollo Lap-Band Product sold the extent relating to periods 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)Closing; (c) any recalls (including after all accounts payable, trade payables and notes payable related to the Closing) mandated by any Governmental Body with respect to any Apollo Lap-Band Products manufactured or sold operation of the Business prior to the Closing; (d) any and all Claims for Apollo Lap-Band Products manufactured Liabilities arising under, with respect to or contained in the Transferred Contracts arising prior to the ClosingClosing and any Liabilities arising out of any breaches, including but not limited to product liability and infringement defaults or violations of Intellectual Property whether or not sold any Transferred Contract prior to the Closing; (e) all Liabilities resulting from, arising out of or related to any employee benefit plan 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 Seller or any of its Affiliates for any taxable periodwhether such Liabilities arose or arise prior to, 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 after the Closing Date; (f) all Liabilities to or in respect of any employees or former employees of the Seller or its Affiliates whether arising before or after the Closing; (g) any ContractLiabilities resulting from, other than an Apollo Lap-Band Business Contract and subject arising out of or related to any Legal Proceeding commenced or brought prior to the limitations set forth in Section 1.3, Closing or commenced or brought after the Closing to which Apollo the extent relating to the conduct of the Seller (or any its Affiliates) or the operation of its Affiliates is a party or the Business by which any of its properties or assets are otherwise boundSeller prior to the Closing; (h) any current and all warranty and similar Liabilities arising prior to, on or former employee after the Closing and whether expressed or contractor of Apolloimplied, or related to any of its AffiliatesBusiness Products sold prior to the Closing; (i) all Apollo Accounts Payabletransfer, assumption or assignment fees payable by the Seller or any of its Affiliates under any Transferred Contracts for assigning or transferring such Transferred Contracts to the Purchaser; (j) any termination fee payable by the Seller or any of its Affiliates under any Contract as a result of the transactions contemplated by this Agreement or any other Transaction Document, including any unpaid accounts payable related Contract not transferable to the Purchaser pursuant to the terms of such Contract or assignable only upon the consent of the respective third party to such Contract and such third party does not consent to the assignment to the Purchaser of such Contract pursuant to this Agreement; (k) (i) all Liabilities for Taxes of Seller (including any Apollo LapLiabilities as a result of the operation of Law, as a transferee or successor, by contract, or otherwise) and (ii) Taxes that arise from or relate to the conduct of the Business, including ownership of the Transferred Assets, for any Pre-Band InventoryClosing Tax Period; and (jl) all Liabilities set forth on Schedule 1.4pertaining to Seller’s ownership or use of any Excluded Asset.

Excluded Liabilities. Except for Notwithstanding the Assumed Lap-Band Liabilitiesprovisions of Section 2.03 or any other provision in this Agreement to the contrary, ReShape Buyer shall not assume, assume and shall have no liability fornot be responsible to pay, perform, or discharge any Liabilities of Apollo or any Apollo Affiliate Seller of any kind, character kind or description, it being understood that ReShape is expressly disclaiming any express or implied assumption of any Liabilities nature whatsoever 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”):). Seller shall pay and satisfy in due course all Excluded Liabilities that Seller is obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include the following: (a) any and all Claims, regardless of when such Claim was first commenced or made, that arose out of, relates obligations related to or results from the development, nonclinical and clinical testing, commercialization, manufacture, storage, packaging, import, marketing, labeling, pricing, distribution, sale or use accounts payable as 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 infringementClosing Date; (b) any Liabilities of Seller arising or incurred in connection with the negotiation, preparation, investigation, and all products liability Claims that arose out ofperformance of this Agreement, relates to or results from any Apollo Lap-Band Product sold prior to the Closing (Ancillary Documents, and the transactions contemplated hereby and thereby, including Claims alleging defects in such Apollo Lap-Band Product fees and Claims involving the death expenses of or injury to any individual relating to such Apollo Lap-Band Product)Seller’s counsel, accountants, consultants, and advisers; (c) any recalls Liability for (i) Taxes of Seller or Taxes relating to the Business, the Purchased Assets, or the Assumed Liabilities for any Pre-Closing Tax Period, or (ii) other Taxes of Seller of any kind or description (including after the Closing) mandated any Liability for 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 any Governmental Body with respect to any Apollo Lap-Band Products manufactured operation of contract or sold prior to the ClosingLaw); (d) any and all Claims for Apollo Lap-Band Products manufactured prior Liabilities to the Closingextent relating to or arising out of the Excluded Assets, including but not limited to product liability Environmental Claims and infringement of Intellectual Property whether or not sold prior Liabilities under Environmental Laws to the Closingextent related to the Excluded Assets; (e) any of Liabilities (whether arising before or after the Excluded Apollo Assets; (f) Taxes (other than Transfer Taxes, which shall be governed solely by Section 2.8) (iClosing) in respect of any pending or imposed upon Apollo or any of its Affiliates for any taxable periodthreatened Action arising out of, relating to, or (ii) imposed with otherwise in respect of the ownership or operation of the Business or the Purchased Assets to the Apollo Lap-Band Assets extent such Action relates to such ownership or the Apollo Lap-Band Business for any taxable period (or portion thereof) ending operation on or prior to the Closing Date; (f) any Liabilities of Seller, whether arising before or after the Closing, under or in connection with the issues raised, considered, decided, or appealed from (x) RCA Order No. U-16-094(9)/U-17-008(13) and Order No. U-16-094(10)/U-17-008(14), (y) Case No. 3AN-14-06125CI, and (z) Docket No. U-18-102(1), but in each such case only to the extent that (i) such Liabilities relate to ownership or operation of the Business or the Purchased Assets on or prior to the Closing Date and (ii) any related Loss is not recoverable in rates by Buyer; (g) any Contract, other than an Apollo Lap-Band Business Contract and subject Liability of Seller or similar claim against Seller for injury prior to the limitations set forth in Section 1.3Closing to a Person or property, to which Apollo or any of its Affiliates is a party or by which any of its properties or assets are otherwise boundincluding workers’ compensation claims; (h) any current Liabilities of Seller arising, whether before or after the Closing, under or in connection with any Benefit Plan providing benefits to any present or former employee or contractor of Apollo, or any of its AffiliatesSeller in connection with employment with Seller other than Accrued Leave; (i) all Apollo Accounts Payableany Liabilities relating to any payroll or other compensation obligations incurred and required to be paid prior to the Closing, the failure by Seller to hire any individual, the employment or services (or termination by Seller of the employment or services) of any individual, including Retention Agreements, wages, COBRA coverage, compensation, bonuses, benefits, accrued vacation, severance, retention, termination payments, affirmative action, personal injury, discrimination, harassment, retaliation, wrongful discharge, unfair labor practices, or constructive termination by Seller of any individual, or any similar or related claim or cause of action attributable to any actions or inactions by Seller, in each case prior to the Closing Date, with respect to the Transferred Employees, independent contractors, applicants, and any other individuals who are determined by a court or by a Governmental Authority to have been applicants or employees of Seller; (j) any Liabilities related to the Business which constitute intercompany payables or intergovernmental charges owing to Seller; (k) any Liabilities of the Business relating to or arising from unfulfilled commitments, quotations, purchase orders, customer orders, or work orders that (i) do not constitute part of the Purchased Assets or (ii) are not validly and effectively assigned to Buyer pursuant to this Agreement; (l) any Liabilities to indemnify, reimburse, or advance amounts to any present or former official, manager, employee, or agent of Seller for or in connection with any event or circumstance occurring while such individual was an official, manager, employee, or agent of Seller; (m) any Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) that are not validly and effectively assigned to Buyer pursuant to this Agreement or (ii) to the extent such Liabilities arise out of or relate to a breach by Seller of such Contracts prior to the Closing; (n) any Liabilities associated with debt, revenue bonds, commercial paper, loans, or credit facilities of Seller or the Business; (o) any Liabilities, other than Assumed Environmental Liabilities, arising out of, in respect of, or in connection with the failure by Seller to comply with any Law or Governmental Order; (p) fines or penalties owing to any Governmental Authority for events to the extent occurring or arising prior to the Closing Date; (q) any Liability of Seller arising from the violation, breach, or default by Seller, prior to the Closing, of any Assumed Liability or Intellectual Property Assets included in the Purchased Assets; (r) any Liability arising under any collective bargaining agreement of Seller, including any unpaid accounts payable related and all obligations incurred under the IBEW Collective Bargaining Agreement prior to the Closing Date, including pension/retirement obligations under the Alaska Electrical Pension Fund regarding accruals earned prior to Closing; (s) any Apollo Lap-Band InventoryLiability of Seller or ML&P for payments in lieu of taxes, including pursuant to AMC 26.10.025; (t) any other Liability of Seller accruing or arising and required to be performed prior to the Closing; (u) any Environmental Claims and Liabilities under Environmental Laws, and Losses arising from environmental conditions at the Purchased Assets, as of the Closing Date other than the Assumed Environmental Liabilities; and (jv) all any other Liabilities set forth on Schedule 1.4.not expressly assumed by Buyer pursuant to Section

Excluded Liabilities. Except for Notwithstanding anything to the Assumed Lap-Band Liabilitiescontrary in this Agreement, ReShape Buyer shall not assumeassume or be obligated to pay, and shall have no liability for, any Liabilities perform or otherwise discharge the following liabilities or obligations 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 Seller (collectively, the “"Excluded Apollo Liabilities”"): (a) any and all Claims, regardless liabilities or obligations of when such Claim was first commenced Seller in respect of any Excluded Assets or made, other assets of Seller 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 are not 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 ofliabilities or obligations with respect to Taxes attributable to Seller's ownership, relates to or results from any Apollo Lap-Band Product sold prior to use of the Assets or operation of the Business for taxable periods, or portions thereof, ending before the Closing (including Claims alleging defects in such Apollo Lap-Band Product and Claims involving the death of Date, except for Taxes for which Buyer is liable pursuant to Section 3.4 or injury to any individual relating to such Apollo Lap-Band Product)6.10(a) hereof; (c) any recalls (including after liabilities or obligations of Seller accruing under any of the Closing) mandated by any Governmental Body with respect to any Apollo Lap-Band Products manufactured or sold Assigned Agreements prior to the ClosingClosing Date or any liability, other than an Assumed Liability, underlying a Permitted Encumbrance, in each case to the extent not included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3; (d) any and all Claims asserted or unasserted liabilities or obligations to third parties (including employees) for Apollo Lap-Band Products manufactured injuries or damages, whether arising from tortious conduct or otherwise, or similar causes of action relating to the Assets or the Business arising during or attributable to the period prior to the ClosingClosing Date, including but not limited other than such that relate to product liability and infringement of Intellectual Property whether liabilities or not sold prior to the Closingobligations assumed by Buyer; (e) any fines, penalties and associated costs for defending related enforcement actions, resulting from any violation or alleged violation 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 Environmental Laws with respect to the Apollo Lap-Band ownership of the Assets or the Apollo Lap-Band operation of the Business for any taxable period (or portion thereof) ending on or occurring prior to the Closing Date; (f) any payment obligations of Seller pursuant to the Assigned Agreements for goods delivered or services rendered prior to the Closing Date, including, but not limited to, rental payments pursuant to the Real Property Leases, in each case to the extent not included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3; (g) any Contractliabilities, other than an Apollo Lapresponsibilities and obligations of Seller arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation was known or unknown, contingent or accrued, which relates to (i) any bodily injury, loss of life, property damage or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business at any Off-Band Business Contract and subject Site Location, or arising from the arrangement for such activities, prior to the limitations set forth Closing Date; or (ii) any Remediation of any Environmental Condition or Regulated Substance at any Off-Site Location, arising from the storage, transportation, treatment, disposal, discharge, recycling or Release of Regulated Substances generated in Section 1.3connection with the ownership of the Assets or the operation of the Business at such Off-Site Location, or arising from the arrangement for such activities, prior to the Closing Date; provided, that for purposes of this paragraph, "Off-Site Location" does not include any location to which Apollo Regulated Substances disposed of or Released at the site of any of its Affiliates is a party or by which any of its properties or assets are otherwise boundAsset may have migrated; (h) any current liability to third parties (including employees) for personal injury or former employee loss of life, to the extent caused (or contractor allegedly caused) by Environmental Conditions or the Release of ApolloRegulated Substances at, on, in, under, or any of its Affiliatesadjacent to, or migrating from, the Assets prior to the Closing; (i) all Apollo Accounts Payablesubject to Section 6.12, any liabilities or obligations of Seller, any Seller Subsidiary or any ERISA Affiliate of Seller relating to any Benefit Plan including but not limited to any such liability (i) relating to benefits payable under any Benefit Plan; (ii) relating to the Pension Benefit Guaranty Corporation under Title IV of ERISA; (iii) relating to a multi-employer plan; (iv) with respect to non-compliance with the notice and benefit continuation requirements of COBRA; (v) with respect to any noncompliance with ERISA or any other applicable laws; or (vi) with respect to any suit, proceeding or claim which is brought against Seller, Buyer, any Benefit Plan, or any fiduciary or former fiduciary of any such Benefit Plan; (j) subject to Section 6.12, any liabilities or obligations arising from facts or circumstances prior to the Closing Date relating to the employment or termination of employment, including discrimination, wrongful discharge, unfair labor practices, or constructive termination by Seller of any unpaid accounts payable related individual, attributable to any Apollo Lap-Band Inventoryactions or inactions by Seller prior to the Closing Date other than actions or inactions taken at the written direction of Buyer (it being understood and agreed that Buyer shall have no liability for action taken by Seller pursuant to Section 6.12 except as expressly provided therein); (k) subject to Section 6.12, any obligations of Seller for wages, overtime, employment taxes, severance pay, transition payments in respect of compensation or similar benefits accruing or arising prior to the Closing under any term or provision of any contract, plan, instrument or agreement relating to any of the employees of Seller; (l) all obligations of Seller with respect to the Revenue Bonds and any other indebtedness for money borrowed by Seller (including items due to Seller's Affiliates) other than payment obligations arising on or after the Closing Date under any equipment lease of the kind listed in Schedule 4.11(a) or under any line extension contracts or similar construction arrangements, it being understood and agreed that such leases, contracts and similar arrangements do not create indebtedness for money borrowed; and (jm) all Liabilities set forth on Schedule 1.4obligations and liabilities included in Seller's "other current and accrued liabilities" account; and (n) any liability of Seller arising out of a breach by Seller or any of its Affiliates of any of their respective obligations under this Agreement or the Ancillary Agreements.

Excluded Liabilities. Except for the Assumed Lap-Band Liabilities, ReShape shall Buyer does not hereby assume, and shall have no liability not at any time hereafter (including on or after the Effective Time) become liable for, any of the Liabilities of Apollo Seller or any Apollo of its Affiliates or any ERISA Affiliate of any kind, character or description, it being understood that ReShape is expressly disclaiming any express or implied assumption of any Liabilities the foregoing other than the Assumed Lap-Band Liabilities including(the "Excluded Liabilities"). The Excluded Liabilities shall include, without limitation all Liabilities arising out of, resulting from or relating to (collectivelylimitation, the “Excluded Apollo following Liabilities”):: (a) any and all Claims, regardless Liability 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 any of the Apollo Lap-Band Product Seller or any of its Affiliates or any ERISA Affiliate of any of the Apollo Lap-Band Assetsforegoing whether currently in existence or arising hereafter that is not attributable to, in each caseor that does not arise out of the conduct of, prior to the Closing, including all such Claims relating to warranty obligations, marketing programs, patient incentive programs and alleged intellectual property infringementBusiness; (b) any and all products liability Claims that arose out of, relates to Liability whether presently in existence 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 arising hereafter relating to such Apollo Lap-Band Product)an Excluded Asset; (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 ClosingSeller Environmental Liability; (d) any and all Claims for Apollo Lap-Band Products manufactured prior Liability whether currently in existence or arising hereafter relating to fees, commissions or expenses owed to any broker, finder, investment banker, attorney or other intermediary or advisor employed by Seller or any of its Affiliates or their respective ERISA Affiliates in connection with the Closing, including but not limited to product liability and infringement of Intellectual Property whether transactions contemplated hereby or not sold prior to the Closingotherwise; (e) any Liability the existence of the Excluded Apollo Assetswhich constitutes a breach of any representation or warranty hereunder; (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 Seller Contingent Liabilities except Liabilities that Buyer has expressly agreed to assume pursuant 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 Dateterms of this Agreement; (g) any ContractLiability related to indebtedness of Seller for borrowed money or capitalized leases, or the guarantee by Seller of the indebtedness of any other than an Apollo Lap-Band Business Contract and subject to the limitations Person, except as 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 boundon Schedule 2.4(g); (h) any current or former employee or contractor Liability of Apollo, or any of its AffiliatesSeller arising under this Agreement; (i) all Apollo Accounts Payable, including any unpaid accounts payable related to any Apollo Lap-Band Inventory; and (j) all Liabilities set forth on Schedule 1.4.Excluded Product Warranty Claims;

Excluded Liabilities. Except for the Assumed Lap-Band LiabilitiesNotwithstanding any other provision of this Agreement, ReShape shall not neither Buyer nor Meritage will assume, and shall have no acquire or be responsible for any liabilities, obligations or expenses, whether fixed or contingent, known or unknown, matured or unmatured, executory or non-executory, to the extent such liability foror obligations arise out of acts, any Liabilities of Apollo omissions or any Apollo Affiliate of any kindoccurrences on or prior to the Closing Date, character or descriptioneven if they do not become known until after such date, 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 or consisting of (collectively, the “Excluded Apollo Liabilities”"EXCLUDED LIABILITIES"): (1) liabilities and obligations not reflected on the Final Closing Balance Sheet; (2) except as reflected on the Final Closing Balance Sheet, all liabilities and obligations relating to the Sterling Oaks, Colonial Pointe, Indigo Lakes, Rookery Pointe and Laurel Lakes subdivisions, other than Construction Claims arising out of Housing Units closed in these subdivisions after the Closing; (3) liabilities, obligations and expenses (including Taxes) of Seller under this Agreement or with respect to or arising out of the consummation of the transactions contemplated by this Agreement; (a) any and all Claims, regardless Taxes (including deferred Tax liabilities) applicable to Colonial or the Colonial Business arising out of when such Claim was first commenced or made, that arose out of, relates relating 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, periods prior to the ClosingClosing Date or as a result of the transactions contemplated by this Agreement, 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 ofliabilities or obligations or expenses of the Colonial related to pending or threatened litigation against Colonial, relates the Colonial Business, the Acquired Assets or the Owned Real Property (including, without limitation, the matters listed in Section 4.20 of the Seller's Disclosure Schedule), (c) any liabilities, obligations or expenses arising from or relating to or results from consisting of any Apollo Lap-Band Product sold lien, encumbrance or claim affecting the title to the Acquired Assets or the Owned Real Property, other than Permitted Liens, (d) any liabilities, obligations or expenses under any contracts arising out of or relating to periods prior to the Closing Date, unless the obligation is reflected on the Final Closing Balance Sheet in accordance with GAAP, (including Claims alleging defects in such Apollo Lap-Band Product and Claims involving the death of e) any liabilities, obligations or injury expenses relating to any individual environmental matter or condition, (f) any liabilities or obligations relating to such Apollo Lap-Band Productperformance or surety bonds relating to land development activities on the Optioned Real Property and (g) any liability or obligation to or in respect of any employees or former employees of Colonial, including without limitation: (i) any employment agreement, whether or not written, between Colonial and any person (excluding the bonuses between Colonial and ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇ in an amount not to exceed $130,000 in the aggregate), (ii) under any employee plan at any time maintained, contributed to or required to be contributed to by or with respect to Colonial or under which Colonial may incur liability, or any contributions, benefits or liabilities therefor, or any liability with respect to Colonial's withdrawal or partial withdrawal from or termination of any employee plan or (iii) with respect to any claim of an unfair labor practice, or any claim under any state unemployment compensation or worker's compensation law or regulation or under any federal or state employment discrimination law or regulation, except as to (d), (e) , (f) and (g), the extent set forth on the Final Closing Balance Sheet; (5) any Construction Claim that is not an Assumed Construction Claim ("UNASSUMED CONSTRUCTION CLAIMS"); (c6) any recalls (including after the Closing) mandated by any Governmental Body with respect to any Apollo Lap-Band Products manufactured or sold prior debt related to the ClosingOptioned Real Property in an amount equal to the cost of such projects (the "RETAINED DEBT"); (d7) any and all Claims for Apollo Lap-Band Products manufactured prior remaining costs or expenses necessary to the Closing, including but not limited to product liability and infringement of Intellectual Property whether or not sold prior to the Closing; (e) complete 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 Housing Unit closed prior to the Closing Date; (g) any Contract, other than an Apollo Lap-Band Business Contract and subject to 8) checks outstanding on 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 boundClosing Date; (h9) any current or former employee or contractor of Apollo, or any of its Affiliates; (i) all Apollo Accounts Payable, including any unpaid accounts payable related other costs to any Apollo Lap-Band Inventorycomplete reflected on the Closing Balance Sheet as an excluded item; and (j10) any obligation or liability in excess of $102,000 (which $102,000 amount Buyer will be responsible for in connection with the closing of homes in the Renaissance project) relating to that certain promissory note in favor of the Renaissance Community Association in the original principal amount of $117,000. Anything contained in this Agreement to the contrary notwithstanding, Buyer will not assume the Excluded Liabilities, which Excluded Liabilities will at and after the Closing remain the exclusive responsibility of Seller. Seller will discharge all Excluded Liabilities set forth on Schedule 1.4in accordance with their terms (subject to Seller's right to contest obligations believed in good faith not to be then due) and Applicable Law.

Excluded Liabilities. Except for Other than the Assumed Lap-Band Liabilities, ReShape Buyer shall not assume, and shall have no liability for, assume or become liable for any Liabilities of Apollo Seller (whether or not arising out of the ownership and operation of the Purchased Assets or the Business) or the Liabilities of any Affiliate of Seller arising from or related to the Purchased Assets or Business. All Liabilities of Seller and any Affiliate of Seller, including those arising from or related to the Purchased Assets or Business, that are not expressly assumed by Buyer as Assumed Liabilities shall be retained by Seller or any Apollo Affiliate of any kindSeller, character or descriptionas applicable, it being understood that ReShape is expressly disclaiming any express or implied assumption and are referred to herein as “Excluded Liabilities.” Without limiting the generality of any Liabilities other than the Assumed Lap-Band Liabilities including, without limitation all Liabilities arising out of, resulting from or relating to (collectivelypreceding two sentences, the “Excluded Apollo Liabilities”):Liabilities include the following: (ai) any and all Claims, regardless of when such Claim was first commenced or made, that arose out of, relates Any expenses Seller incurred related to or results from the development, nonclinical and clinical testing, commercialization, manufacture, storage, packaging, import, marketing, labeling, pricing, distribution, sale or use consummation of the Apollo Lap-Band Product or any of the Apollo Lap-Band Assets, transactions contemplated in each case, prior to the Closing, including all such Claims relating to warranty obligations, marketing programs, patient incentive programs and alleged intellectual property infringementthis Agreement; (bii) any and all products liability Claims that arose out of, relates Liabilities relating to or results from arising out of the Excluded Assets; (iii) any Apollo Lap-Band Product sold Liabilities (including all related fines, penalties, fees and associated interest or charges imposed by any Governmental Authority, including MSHA) arising out of or in respect of the failure by the Seller or any Affiliate of the Seller to comply on or prior to the Closing Date with any Environmental Permit, Mining Permit, applicable Law, including any Environmental Law, or Order by any Governmental Authority, including without limitation any such Liabilities arising as a result of any Person’s failure on or prior to the Closing Date to comply with the terms of any Environmental Permit, Mining Permit, bonds related thereto or any Laws, including Environmental Laws, as applicable to the Seller’s (including Claims alleging defects or its Affiliate’s) operation of the Business, but in such Apollo Lap-Band Product all cases excluding ordinary course reclamation bond Liabilities and Claims involving other reclamation Liabilities arising under the death Mining Permits at the end of the life of the Shoal Creek Mine or injury to any individual relating to such Apollo Lap-Band Product)portion thereof; (civ) 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 ClosingIndebtedness; (dv) any Liabilities for intercompany obligations between the Seller and all Claims for Apollo Lap-Band Products manufactured prior to any Affiliate of the Closing, including but not limited to product liability and infringement of Intellectual Property whether or not sold prior to the ClosingSeller; (evi) any of Liability under the Excluded Apollo Assets; (f) Taxes (DCS Contracts, Assumed Contracts, Leases or other than Transfer Taxes, which shall be governed solely by Section 2.8) (i) Contracts included in respect the Purchased Assets arising out of or imposed upon Apollo relating to breaches 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 defaults thereunder occurring on or prior to the Closing Date; (gvii) any Contract, Liability related to any accounts payable as of the Closing Date; (viii) any Liability with respect to any coal or other than an Apollo Lap-Band Business Contract and subject to goods shipped or sold or any service provided by the limitations set forth in Section 1.3, to which Apollo Seller or any of its Affiliates is a party prior to Closing, including any such Liability or obligation (A) pursuant to any express or implied representation, warranty, agreement, coal specification undertaking or guarantee made by which any Seller, or any Affiliate of its properties the Seller, or assets are otherwise boundalleged to have been made by the Seller or any Affiliate of the Seller, (B) imposed or asserted to be imposed by operation of Law or (C) pursuant to any doctrine of product liability; (hix) any current Liability with respect to any Proceeding including those set forth in the Disclosure Schedules, to the extent arising out of or former relating to the operation of the Business, including the Seller’s ownership and use of the Purchased Assets, prior to the Closing; (x) any Liability related to or arising with respect to (A) any current, former, or inactive employee or contractor service provider of ApolloSeller or any Affiliate of Seller who does not become a Re-Hired Employee, and (B) except as set forth in Sections 5.07(h), (i) and (j), any current, former, or inactive employee or service provider of Seller who becomes a Re-Hired Employee, but with respect to this clause (B), only with respect to Liabilities that arise or arise from events that occurred on or prior to the Closing Date; (xi) any Liability arising from, based upon, or with respect to any Plan sponsored by or contributed to by Seller or any ERISA Affiliate of Seller, or any Law related to such Plans; including but not limited to: (A) any Liability arising under COBRA, HIPAA and other similar Laws, including all Liabilities of a fiduciary for breach of fiduciary duty or any other failure to act or comply in connection with the administration of a Plan; (B) any Liability for or related to contributions owed to any Plan; (C) any Liability due as a result of a complete, partial or mass withdrawal from a Plan by Seller or any ERISA Affiliate, (D) any Liability for post-employment benefits with respect to any current, former or inactive employee of Seller that is eligible as of the Closing Date for such post-employment benefits from Seller on the Closing Date; and (E) any Liability for post-employment benefits with respect to any current, former or inactive employee of Seller except as such benefits may be required pursuant to the Modified CBA or specifically set forth in Section 5.07; (xii) any Liability arising from, based upon, or with respect to the Coal Act, including, but not limited to Seller’s and Seller’s Related Persons’ Liabilities under the Coal Act (A) arising under or with respect to the UMWA Combined Benefit Fund, UMWA 1992 Benefit Plan, or any Plan maintained under Section 9711 of the Coal Act; or (B) based upon Seller’s or its Related Persons’ status as a “signatory operator,” “last signatory operator,” “assigned operator,” “related person,” “successor,” “successor in interest,” or similar status under the Coal Act; (xiii) Any Liability arising under the ▇▇▇▇▇▇▇▇ CBA (but not including, for the avoidance of doubt, any Liability under the Modified CBA to the extent arising out of or relating to the operation of the Business following the Closing); (xiv) any Liability of Seller or any of its Affiliates; (i) all Apollo Accounts Payablerespective Affiliates for any Taxes arising out of, including attributable to or in respect of the Purchased Assets or Business for any unpaid accounts payable related to any Apollo LapPre-Band InventoryClosing Tax Period; and (jxv) all Liabilities set forth any Liability for advance or minimum royalties, production royalties, overriding royalties, net profits interests, production payments, wheelage or haulage royalties or payments, and any other payments out of or measured by production (“Royalties”), or other similar obligations for any period on Schedule 1.4or prior to the Closing Date with respect to the Purchased Assets or Business, except that Buyer shall be solely liable for payment of those royalties related to Coal Inventory included in the Purchased Assets and the sale of coal by Buyer occurring following the Closing.

Excluded Liabilities. Except for Notwithstanding any other provision of this Agreement to the Assumed Lap-Band Liabilitiescontrary, ReShape the Buyer is not assuming and the Seller shall not assumeretain, and shall have no liability forpay, any Liabilities perform or otherwise satisfy, all 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 the Seller 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”):), including the following: (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 infringementSeller Taxes; (b) any and all products liability Claims or obligation arising in respect of or relating to Business Employees with respect to conditions or events that arose out of, relates to or results from any Apollo Lap-Band Product sold occurred prior to the Closing (including Claims alleging defects in such Apollo Lap-Band Product Closing, and Claims involving all liabilities and obligations arising at any time under the death of or injury to Employee Plans, the A. H. Belo Pension Plan II and any individual relating to such Apollo Lap-Band Product)other pension plan; (c) any recalls (including after indebtedness for borrowed money or guarantees thereof outstanding as of the Closing) mandated by any Governmental Body Closing Date, other than current accounts payable or accrued expenses of the Seller with respect to the Business incurred or accrued in the ordinary course of business; (d) any Apollo Lap-Band Products manufactured liability or sold obligation relating to an Excluded Asset; (e) other than the Assumed Liabilities, all obligations, liabilities and commitments, presently existing or contingent, of the Seller arising out of the ownership or operation of the Business or the ownership, use, possession or condition of the Transferred Assets and the Publications prior to the Closing; (df) except as otherwise expressly provided herein, any costs and expenses incurred by the Seller incident to its negotiation and preparation of this Agreement and its performance and compliance with the agreements and conditions contained herein; (g) any and all Claims for Apollo Lap-Band Products manufactured obligations, liabilities and commitments of the Seller arising out of or related to conditions or events that occurred prior to the ClosingClosing and that arise under Environmental Laws, including but not limited to product liability such obligations, liabilities and infringement commitments of Intellectual Property whether or not sold prior the Seller related to the Closing; (e) any ownership or operation 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 Contractor the ownership, other than an Apollo Lap-Band Business Contract and subject to use, possession or condition of 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 boundTransferred Assets; (h) any current and all obligations, liability and commitments of the Seller arising out of or former employee or contractor of Apollo, or related to any of its AffiliatesHydraulic Lift Remedial Actions; (i) all Apollo Accounts Payableany debts and other obligations of the Seller for borrowed money, including any unpaid accounts payable related to any Apollo Lap-Band Inventorythe extent not included in the Assumed Liabilities; and (j) all Liabilities set forth on Schedule 1.4debts and other obligations of the Seller to its Affiliates.

Excluded Liabilities. Except for the Assumed Lap-Band Liabilities, ReShape shall not assume, and shall have no liability for, any All Liabilities of Apollo Seller or any Apollo Affiliate of any kindits Subsidiaries, character whether or descriptionnot arising out of the Acquired Assets or the Cable Modem Business, it being understood that ReShape is expressly disclaiming any express or implied assumption of any Liabilities other than the Assumed Lap-Band Liabilities Liabilities, will remain and be the obligations and liabilities solely of Seller and will be "Excluded Liabilities", including, without limitation all Liabilities arising out of, resulting from or relating to (collectivelylimitation, the “Excluded Apollo Liabilities”):following: (a) any and all Claims, regardless Liabilities of when such Claim was first commenced Seller or made, that arose any of its Subsidiaries to the extent not arising out of, relates relating to or results from the development, nonclinical and clinical testing, commercialization, manufacture, storage, packaging, import, marketing, labeling, pricing, distribution, sale or use otherwise in respect of the Apollo Lap-Band Product Acquired Assets or any of the Apollo Lap-Band Assets, in each case, prior to Cable Modem Business (or the Closing, including all such Claims relating to warranty obligations, marketing programs, patient incentive programs and alleged intellectual property infringementoperations thereof); (b) any and all products liability Claims that arose Liability of Seller or any of its Subsidiaries (i) for or arising out ofof any indebtedness of Seller or any of its Subsidiaries for borrowed money, relates to (ii) for any credit, loan or results from any Apollo Lap-Band Product sold prior other agreements arising out of or relating to the Closing Acquired Assets and pursuant to which Seller or any of its Subsidiaries has created, incurred, assumed or guaranteed indebtedness for borrowed money or under which any Lien securing such indebtedness has been or may be imposed on any Acquired Asset or (including Claims alleging defects in such Apollo Lap-Band Product and Claims involving the death of or injury iii) with respect to any individual relating to such Apollo Lap-Band Product)financial obligation underlying any Permitted Lien existing as of the Closing Date; (c) all Liabilities arising out of the leasing or operation of (i) the CMB Sites before the Closing Date and (ii) any recalls (property or facility other than the CMB Sites at any time, including after without limitation any Liabilities relating to personal injury, property damage, the Closing) mandated by environment, on-site or off-site waste disposal or any Governmental Body contractual indemnification provided in connection with respect to any Apollo Lap-Band Products manufactured such property or sold prior to the Closingfacility; (d) any Liability of Seller or any of its Subsidiaries under contracts, agreements, commitments and all Claims for Apollo Lap-Band Products manufactured other legally binding arrangements, whether written or oral to which Seller or any of its Subsidiaries is a party or is bound, other than (1) Liability under the Assumed Contracts to the extent such Contracts are validly assigned to Holdco and do not relate to acts or omissions of Seller occurring prior to the ClosingClosing Date or which are to be paid, including but not limited to product liability and infringement of Intellectual Property whether performed or not sold satisfied prior to the ClosingClosing Date and (2) Assumed Current Liabilities to the extent that such Liabilities relate to Assumed Contracts that are validly assigned to Holdco; (e) any Liability 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 Seller or any of its Affiliates Subsidiaries in respect of Taxes (including real or personal property Taxes) 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) all periods ending on or prior to the Closing Date (except as otherwise provided in Section 8.15 hereof); (f) any Liability with respect to (i) any employment agreement or understanding with any employee of Seller, whether written or oral (except with respect to the Hired Employee Costs), (ii) any agreement, plan or policy relating to Seller's employees or employment matters, including, without limitation, any stock option or other incentive plan, Benefit Plan, consulting, severance, change of control or similar agreement and (iii) any Employee Claims to the extent relating to events occurring prior to the Closing Date;; and (g) any Contractclaim, other than an Apollo Lap-Band Business Contract and subject action, suit, proceeding, arbitration, investigation or hearing, any tolling, settlement or license agreement with respect 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 Apollothe foregoing, or any other activity or procedure, or any notice of its Affiliates; (i) all Apollo Accounts Payableany of the foregoing which could result in any judgment, writ, order, injunction, award or decree of any court, judge, justice or magistrate, including any unpaid accounts payable bankruptcy court or judge or the arbitrator in any binding arbitration, and any order of or by any Governmental Authority arising out of or relating to the Acquired Assets and commenced, or related to any Apollo Lap-Band Inventory; and (j) all Liabilities set forth an event occurring, on Schedule 1.4or prior to the Closing Date.

Excluded Liabilities. Except for Notwithstanding any other provision in this Agreement to the contrary, the Purchaser shall not assume and shall not be responsible to pay, perform or discharge any Liabilities of the Sellers or any of their Affiliates of any kind or nature whatsoever, whether presently in existence or arising hereafter, other than the Assumed Lap-Band Liabilities (the “Excluded Liabilities, ReShape ”). The Sellers shall not assumebe solely responsible for all Excluded Liabilities and shall, and shall have no liability forcause each of their Affiliates to, any pay and satisfy in due course all Excluded Liabilities. Without limiting the generality of the foregoing, the Excluded Liabilities shall include the following: (i) Cash in the Reserve Account in the approximate amount of $2,160,834; (ii) all Liabilities of Apollo the Sellers arising or any Apollo Affiliate incurred in connection with the negotiation, preparation, investigation and performance of this Agreement, the other Transaction Documents and the transactions contemplated hereby and thereby; (iii) all Liabilities for Indemnified Taxes; (iv) all Liabilities in respect of any kindpending or threatened Action; (v) all product Liabilities or similar claims for injury to a Person or property with respect to products sold or manufactured by any Seller or its Affiliates or contractors prior to the First Closing, character including any such Liability or description, it being understood that ReShape claim which arises out of or is expressly disclaiming based upon any express or implied assumption representation, warranty, agreement or guaranty, any theory of strict liability, by reason of the improper performance or malfunctioning of a product, improper design or manufacture, failure to adequately warn of hazards, other product defects or any other theory; (vi) all Liabilities of any Liabilities other than Seller arising under or in connection with any Employee Benefit Plan providing benefits to any present or former employee of the Sellers and, except for the Assumed Lap-Band Payroll Amount and as expressly set forth in Section 4.10, any other Liabilities includingof the Sellers for any present or former employees, without limitation officers, directors, independent contractors or consultants, including any Liabilities associated with any claims for wages, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments, including all Liabilities under the Workers Adjustment and Retraining Notification Act (the “WARN Act”) or similar state Laws; (vii) all Environmental Claims and all other Liabilities under Environmental Laws arising out of or relating to any actions or omissions of the Sellers or any facts, circumstances or conditions existing on or prior to the First Closing; (viii) all Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of any Seller (including with respect to any breach of fiduciary obligations by same); (ix) all Liabilities under the Excluded Contracts or any other Contracts, (A) which are not validly and effectively assigned to the Purchaser pursuant to this Agreement; (B) which do not conform to the representations and warranties with respect thereto contained in this Agreement; or (C) to the extent such Liabilities arise out of or relate to a breach by any Seller of (i) such Contracts prior to the First Closing or (ii) the Management Services Agreement; (x) all Indebtedness of any Seller and/or the Business and all Liabilities associated therewith; (xi) 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 in connection with the failure by any Seller or any of its Affiliates for to comply with any taxable period, Law or Order; (iixii) imposed with respect to all Liabilities of the Apollo Lap-Band Assets Sellers arising from the operation or conduct of the Business or the Apollo Lap-Band Business for any taxable period (or portion thereof) ending on or Assets prior to the First Closing Datethat are not within the items expressly assumed by the Purchaser pursuant to Section 1.1(c); (gxiii) all Liabilities of any Contract, Seller to the extent arising out of the operation or conduct by such Seller of any activities or business 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, including any unpaid accounts payable related to any Apollo Lap-Band InventoryBusiness; and (jxiv) except as expressly assumed pursuant to Section 1.1(c), all Liabilities set forth matters described on Schedule 1.4the Disclosure Schedule.

Excluded Liabilities. Except for Notwithstanding any other provision of this Agreement to the Assumed Lap-Band Liabilitiescontrary, ReShape the Buyer is not assuming and the Seller shall not assumepay, and shall have no liability forperform or otherwise satisfy, any Liabilities of Apollo all liabilities, obligations 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 commitments other than the Assumed Lap-Band Liabilities including, without limitation all Liabilities arising out of, resulting from or relating to specifically listed in Section 2.3 (collectively, the “Excluded Apollo Liabilities”):) (in the case of liabilities, obligations or commitments of EMS Brazil, solely for purposes of Article VIII), including the following: (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 liabilities for Taxes of the Apollo Lap-Band Product or any of the Apollo Lap-Band Assets, in each case, prior Seller except those allocated to the Closing, including all such Claims relating Buyer pursuant to warranty obligations, marketing programs, patient incentive programs and alleged intellectual property infringementSection 2.3(d); (b) any and all products liability Claims that arose out ofis not assumed by the Buyer pursuant to Section 5.6, relates to or results from including 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 liability with respect to any Apollo Lap-Band Products manufactured retention plans implemented by the Seller or sold by EMS Brazil prior to the Closing; (c) any indebtedness for borrowed money or guarantees thereof of the Seller or EMS Brazil outstanding as of the Closing Date; (d) any and all Claims for Apollo Lap-Band Products manufactured prior liability or obligation relating to the Closing, including but not limited to product liability and infringement of Intellectual Property whether or not sold prior to the Closingan Excluded Asset; (e) any Losses to the extent arising out of or resulting from any actual, material breach by the Seller or EMS Brazil under any Contract prior to the Closing (other than any right of return or warranty obligation of the Excluded Apollo AssetsSeller or EMS Brazil associated with the Products, which shall be assumed by the Buyer to the extent provided in Section 2.3(f)); (f) Taxes (any liability, obligation or commitment of the Seller or EMS Brazil, whether express or implied, liquidated, absolute, accrued, contingent or otherwise, or known or unknown, arising primarily out of the operation or conduct by the Seller or EMS Brazil of any business other than Transfer Taxes, which shall be governed solely by Section 2.8the Business; (g) any Losses to the extent arising out of or resulting from (i) in respect any Action pending or threatened against the Seller or EMS Brazil as of the Closing Date, (ii) any actual, material violation by the Seller or imposed upon Apollo or EMS Brazil of any of its Affiliates for any taxable periodApplicable Law prior to the Closing, or (iiiii) imposed with respect any action, omission or event prior to the Apollo Lap-Band Assets Closing relating to any of the matters described on Schedule 3.7 (for the avoidance of doubt, any rights of return and warranty obligations relating to such matters shall be Excluded Liabilities notwithstanding Section 2.3(f) or any other provision hereof); (h) any liability of the Apollo Lap-Band Business for Seller or EMS Brazil pursuant to any taxable period (Environmental Law arising from or portion thereof) ending relating to any action, event, circumstance or condition occurring or existing on or prior to the Closing Date; (gi) any Contractliability, other than an Apollo Lap-Band Business Contract and subject obligation or commitment of the Seller or EMS Brazil 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 their respective Affiliates; (i) all Apollo Accounts Payable, including any unpaid accounts payable related to any Apollo Lap-Band Inventory; and (j) all Liabilities set forth on Schedule 1.4liabilities for the Taxes of EMS Brazil (or any predecessor thereof) for any taxable period ending prior to the Closing Date except those allocated to the Buyer pursuant to Section 2.3(d).

Excluded Liabilities. Except for Notwithstanding any provision in this Agreement to the contrary, Buyer shall not assume and shall not be obligated to assume or be obliged to pay, perform or otherwise discharge, and Sellers shall be solely and exclusively liable with respect to, any Liability of any Seller or Retained Subsidiary that is not an Assumed Lap-Band Liability (such 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”):), including without limitation the following specific Liabilities to the extent they do not otherwise constitute Assumed Liabilities: (a) any and all ClaimsLiabilities of Sellers under any Contract of Sellers that is not an Assigned Agreement whether accruing prior to, regardless of when such Claim was first commenced at, or made, that arose out of, relates to or results from after 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, Closing Date (except as set forth in each case, prior to the Closing, including all such Claims relating to warranty obligations, marketing programs, patient incentive programs and alleged intellectual property infringementSection 7.5); (b) any and all products liability Claims that arose out of, relates to Liabilities for any indebtedness 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 obligations for borrowed money of or injury to any individual relating to such Apollo Lap-Band Product)Sellers; (c) any recalls all (including after the Closingi) mandated by any Governmental Body store or customer credits, sales promotions, rebates, coupons, gift cards and certificates or (ii) returns of goods or merchandise, customer prepayments and overpayments, customer refunds, credits, reimbursements and related adjustments with respect to any Apollo Lap-Band Products manufactured goods or sold merchandise, in each case that arise from the operation of the Business prior to the Closing, or, in the case of the Acquired Stores or Business Properties (other than the Closing Date Acquired Stores and Closing Date Business Properties), prior to the date the applicable Real Property Lease is assumed and assigned to Buyer pursuant to the Designation Rights Agreement; (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 ClosingSellers’ Taxes; (e) any and all Liabilities to the extent arising out of related to the Excluded Apollo Assets; (f) Taxes any and all Liabilities arising from or related to the operation or condition of the Acquired Assets or the Assumed Liabilities prior to the Closing (other than Transfer Taxesexcept as set forth in Section 7.8) or facts, which shall be governed solely by Section 2.8) (i) in respect of actions, omissions, circumstances or imposed upon Apollo conditions existing, occurring or any of its Affiliates for any taxable period, or (ii) imposed accruing with respect to the Apollo Lap-Band Acquired Assets or the Apollo Lap-Band Business for Assumed Liabilities prior to the Closing (except as set forth in Section 7.8); (g) any taxable period and all Liabilities relating to any environmental, health or safety matter (including any Liability or portion thereof) ending obligation under any applicable Laws concerning environmental, health or safety matters, whether known or unknown), arising out of or relating to the Sellers’ conduct, action or omission or its leasing, ownership or operation of real property on or prior to the Closing Date; Date (g) any Contract, other than an Apollo Lap-Band Business Contract and subject to the limitations except as set forth in Section 1.37.8), to which Apollo or any of its Affiliates is a party or no matter when raised, other than as required by which any of its properties or assets are otherwise boundLaw; (h) any current and all Liabilities relating to complaints, causes of action, litigation or former employee or contractor of Apollo, similar matters instituted against Sellers or any of its Affiliates;their Subsidiaries relating to or arising out of any actions, omissions, circumstances or conditions or events occurring prior to the Closing Date (except as set forth in Section 7.5 or Section 7.8); and (i) all Apollo Accounts Payable, including any unpaid accounts payable related to any Apollo Lap-Band Inventory; and (j) all Liability not expressly included among the Assumed Liabilities set forth on Schedule 1.4and specifically so assumed.

Excluded Liabilities. Except for Notwithstanding anything to the Assumed Lap-Band Liabilitiescontrary in this Agreement, ReShape Buyer shall not assumeassume or be obligated to pay, and shall have no liability for, any Liabilities perform or otherwise discharge the following liabilities or obligations 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 Seller (collectively, the “"Excluded Apollo Liabilities”"): (a) any and all Claims, regardless liabilities or obligations of when such Claim was first commenced Seller in respect of any Excluded Assets or made, other assets of Seller 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 are not 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 ofliabilities or obligations with respect to Taxes attributable to Seller's ownership, relates to or results from any Apollo Lap-Band Product sold prior to use of the Assets or operation of the Business for taxable periods, or portions thereof, ending before the Closing (including Claims alleging defects in such Apollo Lap-Band Product and Claims involving the death of Date, except for Taxes for which Buyer is liable pursuant to Section 3.4 or injury to any individual relating to such Apollo Lap-Band Product)6.10(a) hereof; (c) any recalls (including after liabilities or obligations of Seller accruing under any of the Closing) mandated by any Governmental Body with respect to any Apollo Lap-Band Products manufactured or sold Assigned Agreements prior to the ClosingClosing Date or any liability, other than an Assumed Liability, underlying a Permitted Encumbrance, in each case to the extent not included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3; (d) any and all Claims asserted or unasserted liabilities or obligations to third parties (including employees) for Apollo Lap-Band Products manufactured injuries or damages, whether arising from tortious conduct or otherwise, or similar causes of action relating to the Assets or the Business arising during or attributable to the period prior to the ClosingClosing Date, including but not limited other than such that relate to product liability and infringement of Intellectual Property whether liabilities or not sold prior to the Closingobligations assumed by Buyer; (e) any fines, penalties and associated costs for defending related enforcement actions, resulting from any violation or alleged violation 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 Environmental Laws with respect to the Apollo Lap-Band ownership of the Assets or the Apollo Lap-Band operation of the Business for any taxable period (or portion thereof) ending on or occurring prior to the Closing Date; (f) any payment obligations of Seller pursuant to the Assigned Agreements for goods delivered or services rendered prior to the Closing Date, including, but not limited to, rental payments pursuant to the Real Property Leases, in each case to the extent not included among the items causing an adjustment to the Base Purchase Price contemplated in Section 3.3; (g) any Contractliabilities, other than an Apollo Lapresponsibilities and obligations of Seller arising under Environmental Laws or relating to Environmental Conditions or Regulated Substances (including common law liabilities relating to Environmental Conditions and Regulated Substances), whether such liability, responsibility or obligation was known or unknown, contingent or accrued, which relates to (i) any bodily injury, loss of life, property damage or natural resource damage arising from the storage, transportation, treatment, disposal, discharge, recycling or Release of Regulated Substances generated in connection with the ownership of the Assets or the operation of the Business at any Off-Band Business Contract and subject Site Location, or arising from the arrangement for such activities, prior to the limitations set forth Closing Date; or (ii) any Remediation of any Environmental Condition or Regulated Substance at any Off-Site Location, arising from the storage, transportation, treatment, disposal, discharge, recycling or Release of Regulated Substances generated in Section 1.3connection with the ownership of the Assets or the operation of the Business at such Off-Site Location, or arising from the arrangement for such activities, prior to the Closing Date; provided, that for purposes of this paragraph, "Off-Site Location" does not include any location to which Apollo Regulated Substances disposed of or Released at the site of any of its Affiliates is a party or by which any of its properties or assets are otherwise boundAsset may have migrated; (h) any current liability to third parties (including employees) for personal injury or former employee loss of life, to the extent caused (or contractor allegedly caused) by Environmental Conditions or the Release of ApolloRegulated Substances at, on, in, under, or any of its Affiliatesadjacent to, or migrating from, the Assets prior to the Closing; (i) all Apollo Accounts Payablesubject to Section 6.12, any liabilities or obligations of Seller, any Seller Subsidiary or any ERISA Affiliate of Seller relating to any Benefit Plan including but not limited to any such liability (i) relating to benefits payable under any Benefit Plan; (ii) relating to the Pension Benefit Guaranty Corporation under Title IV of ERISA; (iii) relating to a multi-employer plan; (iv) with respect to non-compliance with the notice and benefit continuation requirements of COBRA; (v) with respect to any noncompliance with ERISA or any other applicable laws; or (vi) with respect to any suit, proceeding or claim which is brought against Seller, Buyer, any Benefit Plan, or any fiduciary or former fiduciary of any such Benefit Plan; (j) subject to Section 6.12, any liabilities or obligations arising from facts or circumstances prior to the Closing Date relating to the employment or termination of employment, including discrimination, wrongful discharge, unfair labor practices, or constructive termination by Seller of any unpaid accounts payable related individual, attributable to any Apollo Lap-Band Inventoryactions or inactions by Seller prior to the Closing Date other than actions or inactions taken at the written direction of Buyer (it being understood and agreed that Buyer shall have no liability for action taken by Seller pursuant to Section 6.12 except as expressly provided therein); (k) subject to Section 6.12, any obligations of Seller for wages, overtime, employment taxes, severance pay, transition payments in respect of compensation or similar benefits accruing or arising prior to the Closing under any term or provision of any contract, plan, instrument or agreement relating to any of the employees of Seller; (l) all obligations of Seller with respect to the Revenue Bonds and any other indebtedness for money borrowed by Seller (including items due to Seller's Affiliates) other than payment obligations arising on or after the Closing Date under any equipment lease of the kind listed in Schedule 4.11(a) or under any line extension contracts or similar construction arrangements, it being understood and agreed that such leases, contracts and similar arrangements do not create indebtedness for money borrowed; and (jm) all Liabilities set forth on Schedule 1.4any liability of Seller arising out of a breach by Seller or any of its Affiliates of any of their respective obligations under this Agreement or the Ancillary Agreements.

Excluded Liabilities. Except for Notwithstanding anything contained herein to the Assumed Lap-Band Liabilitiescontrary, ReShape except as otherwise provided in Section 6.10 or Article VIII, Purchaser shall not assume, and shall or cause to be assumed, or be deemed to have no liability for, assumed or caused to have assumed or be liable or responsible for any of the following 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 Seller and/or its Subsidiaries (other than any such Liabilities of the Assumed Lap-Band Liabilities including, without limitation all Liabilities arising out of, resulting from or relating to Conveyed Entities) (collectively, the “Excluded Apollo Liabilities”): (a) any all Liabilities relating to employees of Seller and its Subsidiaries, including but not limited to all ClaimsLiabilities arising under the Employee Benefit Plans, 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, arising prior to the Closing, including all such Claims relating Closing Date and any Liabilities expressly retained by Seller pursuant to warranty obligations, marketing programs, patient incentive programs and alleged intellectual property infringementSection 6.8; (b) any and all products liability Claims that arose Liabilities arising out of, relates to or results from any Apollo Lap-Band Product sold prior to of 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)Excluded Assets; (c) any recalls (including after the Closing) mandated by any Governmental Body with respect Liabilities arising out of or relating to any Apollo Lap-Band Products manufactured or sold prior this Agreement for which Seller has responsibility pursuant to the Closingterms of this Agreement; (d) any and all Claims for Apollo Lap-Band Products manufactured prior Liabilities arising out of or relating to the Closing, including but any Contract which is not limited to product liability and infringement of Intellectual Property whether or not sold prior to the Closingan Assumed Contract; (e) any Liabilities, including any Liabilities under any Environmental Law, arising out of the Excluded Apollo Assetsor relating to any real property at any time owned, leased, occupied or controlled by Seller or any of its Subsidiaries which is not Owned Real Property or subject to a Real Property Lease; (f) Taxes (other than Transfer Taxes, any Liabilities under any Environmental Law arising out of or relating to facts or circumstances which shall be governed solely by Section 2.8) existed or occurred in connection with the Terminal Operations prior to the Closing (i) in respect of at any real property other than (x) Owned Real Property, (y) real property subject to a Real Property Lease or imposed upon Apollo (z) real property adjacent to Owned Real Property or any of its Affiliates for any taxable periodreal property subject to a Real Property Lease where Hazardous Materials are or are alleged to have migrated from Owned Real Property or real property subject to a Real Property Lease, or (ii) imposed with respect to at any real property listed on the Apollo Lap-Band Assets or the Apollo Lap-Band Business for any taxable period (or portion thereof) ending on or prior to NPL as of the Closing Date(including, but not limited to, all units of the Diamond Alkali Superfund Site in or near Newark, New Jersey and the Gowanus Canal Superfund Site in Brooklyn, New York), regardless of whether such real property is or is adjacent to any Owned Real Property or real property subject to a Real Property Lease; (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 boundORVR Upgrade Liabilities; (h) any current or former employee or contractor of Apollo, or any of its AffiliatesPre-Closing Asbestos Liabilities; (i) all Apollo Accounts Payable, including any unpaid accounts payable related Liabilities arising out of the ownership or operation of the Terminal Operations prior to any Apollo Lap-Band Inventorythe Closing with respect to the matters set forth in Section 4.7 of the Seller Disclosure Letter; and (j) all Liabilities set forth on Schedule 1.4arising out of MTBE Litigation and Claims.

Excluded Liabilities. Except for Without limiting the Assumed Lap-Band Liabilities, ReShape shall not assume, and shall have no liability for, any Liabilities generality of Apollo or any Apollo Affiliate of any kind, character or descriptionSection 1.5, it being understood that ReShape is expressly disclaiming any express or implied assumption agreed that the Sellers will retain all of any Liabilities the Obligations (other than the Assumed Lap-Band Liabilities Liabilities) (the “Excluded Liabilities”), including, without limitation all Liabilities arising out of, resulting from or relating to (collectively, the “Excluded Apollo Liabilities”):limitation: (a) all demands, claims, suits, actions, litigation, investigations, arbitrations, administrative hearings or other proceedings of any and all Claimsnature, regardless of when the forum in which such Claim was first commenced or made, that arose out of, relates matters arise (“Proceedings”) to or results from which the development, nonclinical and clinical testing, commercialization, manufacture, storage, packaging, import, marketing, labeling, pricing, distribution, sale or use of the Apollo Lap-Band Product Sellers or any of the Apollo Lap-Band Assetsthem are a party, in each case, prior to the Closing, including all such Claims or relating to warranty obligations, marketing programs, patient incentive programs and alleged intellectual property infringementany Assets arising out of events or circumstances occurring on or before the Closing Date; (b) any and all products liability Claims that arose Obligations principally arising out of, relates to of or results from any Apollo Lap-Band Product sold prior relating to the Closing (including Claims alleging defects in such Apollo Lap-Band Product and Claims involving the death of or injury to Excluded Assets including, without limitation, any individual relating to such Apollo Lap-Band Product)intercompany obligations; (c) Except as otherwise provided in Section 5.12, any recalls (including after Obligation arising out of or in connection with the Closing) mandated preparation of this Agreement and the consummation and performance of the transactions contemplated by this Agreement, including, but not limited to, any Governmental Body liability to which any of the parties may become subject as a result of the fact that the transactions contemplated by this Agreement are being effected, at the request of Sellers and approved by the Buyers, without compliance with respect to the provisions of any Apollo Lap-Band Products manufactured bulk sales act or sold prior to the Closingany similar statute as enacted in any jurisdiction; (d) any and all Claims for Apollo Lap-Band Products manufactured prior Obligations retained pursuant to the Closing, including but not limited to product liability and infringement of Intellectual Property whether or not sold prior to the ClosingSection 5.6 hereof; (e) any all liabilities for Taxes of the Excluded Apollo Assets; (f) Taxes (other than Transfer Taxes, which shall be governed solely by Section 2.8) (i) in respect of Sellers or imposed upon Apollo or any of its Affiliates IHI 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) periods ending on or prior to the Closing Date; (f) except to the extent set forth on the face of the Final Closing Statement, any Obligations of the Sellers or Parthenon Ltd. under or in connection with any golden parachute payment or continuation or discontinuation of employment payment or other increase or change in amount or terms of any compensation under any employment or independent contractor agreement] that arises, occurs or is triggered or gives any person the right to assert, either automatically or upon notice, by reason of, upon, or in connection with the execution, delivery or performance of this Agreement or the consummation of the transactions contemplated hereby; (g) any ContractObligation of the Sellers owing to any member, director, officer, employee, shareholder (of the Sellers or its affiliates), subsidiary or affiliate of the Sellers, except for, but only to the extent of, the amount of accrued salary and benefits to employees (other than an Apollo Lap-Band Business Contract officers and subject to the limitations directors) 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 boundon the Final Closing Statement; (h) any current liability or former employee Obligation of Sellers under any indemnification or contractor similar contractual provision of Apolloor in any Contracts, Leases, Leased Real Property and Permits, arising out of breaches or any defaults by or claims against the Sellers (or for which the Sellers are liable pursuant to the terms thereof) arising or occurring on or before the Closing Date and regardless of its Affiliates;when asserted, including, without limitation, of CRC Press under Section 11.3 of an asset purchase agreement dated January 8, 1997, relating to the acquisition of the assets of St. Lucie Press (U.K.) Ltd.; and (i) all Apollo Accounts Payable, including any unpaid accounts payable related Obligations relating to any Apollo Lap-Band Inventoryenvironmental matters or conditions or Environmental Laws arising on or before the Closing Date including without limitation any release of Hazardous Materials after the Closing Date for events of circumstances giving rise to such release occurring on or before the Closing Date; and (j) all Liabilities set forth on Schedule 1.4any other Obligations and liabilities for which the Sellers have expressly assumed or retained responsibility pursuant to this Agreement.

Excluded Liabilities. (a) Except for as set forth in Section 1.4 above, (i) the Assumed Lap-Band Liabilities, ReShape Purchaser shall not assume, and shall have no assume any other liability for, any Liabilities or obligation of Apollo or any Apollo Affiliate of any kind, character or description, it being understood the Seller whatsoever (all such liabilities that ReShape is expressly disclaiming any express or implied assumption of any Liabilities other than the are not Assumed Lap-Band Liabilities including, without limitation all Liabilities arising out of, resulting from or relating to (collectivelyLiabilities, the “Excluded Apollo Liabilities”):), and (ii) the Seller shall retain responsibility for all liabilities and obligations arising from the Seller’s operations (including operations of the Business) prior to the Closing, whether or not accrued and whether or not disclosed, including the Excluded Liabilities. (ab) Specifically, and without in any way limiting the generality of Section 1.5(a) (but subject to Section 1.4 in all respects), the Excluded Liabilities shall include any liabilities or obligations that are not Assumed Liabilities, including the following liabilities and all Claimsobligations: (i) relating to, regardless of when such Claim was first commenced resulting from, or made, that arose arising 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 operation of the Apollo Lap-Band Assets, in each case, Business prior to the Closing, including the Seller’s obligation to comply with 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 applicable Laws (including Claims alleging defects in such Apollo Lap-Band Product without limitation, ADA, FLSA (or related state wage and Claims involving the death hour laws), ILSA, Environmental Laws and any administrative or civil fines or penalties for violations of Environmental Laws, or injury to remediation or response costs for contamination) and 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 litigation, governmental proceeding or sold investigation arising as a result of events occurring or facts and circumstances arising or existing prior to the Closing; (dii) any and all Claims for Apollo Lap-Band Products manufactured prior to relating to, resulting from, or arising out of the Closingacquisition, including but not limited to product liability and infringement operation, occupancy, use, or control of Intellectual the Real Property whether or not sold prior to the Closing; (eiii) relating to, resulting from, or arising out of the Release by the Seller of any Hazardous Material prior to the Closing including, for clarity, any such Release by the Seller that occurred prior to Closing but is discovered after Closing, in each case with respect to the operation of the Business, the Real Property, or any other third-party real property where wastes generated in connection with the Business were disposed of prior to the Closing; (iv) for a period ending on the two (2) year anniversary of the Closing Date, with respect to Sold Homes, including, without limitation, relating to, resulting from, or arising out of any product liability, warranty liability or similar claim for damage, loss, reimbursement, indemnity, repair, cost or expense (including with respect to Warranty Work), which arises out of or is based upon any express or implied representation, warranty, agreement or guaranty, or construction defect; (v) relating to, resulting from, or arising out of any liability or obligation (including accounts payable, except to the extent included in the calculation of the Business’ Final Book Value) owed to or by the Seller or any of their Affiliates prior to the Closing; (vi) for all Seller’s Taxes; (vii) for any Indebtedness; (viii) relating to, resulting from, or arising out of any liability or obligations (including accounts payable) owed to the Partners or any Affiliate of the Seller; (ix) relating to, resulting from, or arising out of (A) any business of the Seller other than the Business or (B) any Excluded Asset; (x) relating to, resulting from, or arising out of any liabilities owed by the Seller to any current or former employee, manager, director, trustee, independent contractor or other service provider of the Seller or the Business (including any beneficiaries or dependents thereof) arising or accruing prior to the Closing or that relate to the period prior to the Closing, including any sale, “stay-around”, retention, change of control, severance (including “double trigger” severance) or similar bonuses, amounts or compensation that will or may become payable as a result of the transactions contemplated hereby (whether prior to, on or following the Closing); (xi) relating to, resulting from, or arising out of any of the Excluded Apollo AssetsCompany Benefit Plans, whether or not such liability or obligation arises prior to, on or following the Closing; (fxii) Taxes of the Seller arising or incurred in connection with the negotiation, preparation and execution of this Agreement and the transactions contemplated hereby and any fees and expenses of counsel, accountants, brokers, financial advisors or other experts of the Seller; (xiii) relating to, resulting from or arising out of any claims by any holder or purported holder of equity securities in the Seller as a result of the transactions contemplated by this Agreement, other than Transfer Taxes, which shall be governed solely by Section 2.8) any claims (i) in respect relating to the Purchaser’s failure to pay any portion of or imposed upon Apollo the Final Purchase Price pursuant to this Agreement, (ii) against the Purchaser or any of its Affiliates for unrelated in any taxable period, way to the Seller or (iiiii) imposed with respect to against the Apollo Lap-Band Assets Purchaser arising under this Agreement or the Apollo Lap-Band Business for any taxable period (or portion thereof) ending on or prior to the Closing DateAncillary Agreement; (gxiv) 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, including any unpaid accounts payable related to any Apollo Lap-Band Inventorylisted on Schedule 1.5(b)(xiv); and (jxv) all Liabilities set forth on Schedule 1.4claims, actions, litigation and proceedings relating to, resulting from, or arising out of any Excluded Liability and all costs and expenses in connection therewith.

Excluded Liabilities. Except for the Assumed Lap-Band Liabilities, ReShape Purchaser shall not assume, and shall have no liability for, assume any Liabilities of Apollo Seller 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 its Affiliates other than the Assumed Lap-Band Liabilities includingor as provided in the Ancillary Agreements, without limitation and the Excluded Liabilities shall remain the sole obligation and responsibility of Seller. Without limiting the generality of the foregoing, Excluded Liabilities shall include each of the following: (a) all Liabilities arising out of, resulting from of or relating to (collectively, the “Excluded Apollo Liabilities”):Assets; (ab) all Liabilities under, arising out of or relating to the Purchased Assets (other than the Assumed Contracts) on or prior to the Initial Closing, or the use, ownership, operation, or lease of the Purchased Assets other than the Assumed Contracts on or prior to the Initial Closing; (c) all Liabilities arising as a result of activities conducted on or prior to the Initial Closing, or to be performed on or prior to the Initial Closing, under the Assumed Contracts, other than as specified in Section 2.10; (d) all Liabilities arising as a result of activities conducted after the Initial Closing, or to be performed after the Initial Closing, under any Assumed Contract when it remains a Deferred Asset, other than as specified in Section 2.2(c); (e) all Liabilities arising under the Shared Contracts, other than Shared Contract Liabilities allocated to Purchaser under Section 2.11 or and Replacement Contract or as provided in any Ancillary Agreement; (f) except to the extent of Purchaser's Liabilities under the Sublease Agreement, all Liabilities arising as a result of activities conducted on or prior to the Lease Assignment Closing, or to be performed on or prior to the Lease Assignment Closing, under the Facility Lease, other than as specified in Section 2.10 or the Sublease Agreement; (g) all Liabilities of Seller and its Affiliates for Taxes (including any Taxes allocated to Seller pursuant to Section 2.8(b) but excluding Taxes allocated to Purchaser under Section 2.8(b) and Purchaser's share of Transfer Taxes pursuant to Section 2.8(a)), and all ClaimsLiabilities for Taxes relating to the Purchased Assets, regardless of when Facility or Transferred Workers that are attributable to taxable periods or portions thereof ending on or before the Initial Closing Date; and (h) all Liabilities and obligations (including all Litigation relating to such Claim was first commenced Liabilities or made, that arose out of, relates obligations) relating to or results stemming from the developmentactual or alleged infringement, nonclinical and clinical testingmisappropriation, commercializationdilution, manufacture, storage, packaging, import, marketing, labeling, pricing, distribution, sale or other violation of any Person's Intellectual Property arising out of the use of the Apollo Lap-Band Product Purchased Assets or any of the Apollo Lap-Band AssetsFacility, attributable, in each case, to the period 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 Initial Closing (including Claims alleging defects in such Apollo Lap-Band Product and Claims involving the death regardless of or injury to any individual relating to such Apollo Lap-Band Productwhen raised); (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, including any unpaid accounts payable related to any Apollo Lap-Band Inventory; and (j) all Liabilities set forth on Schedule 1.4.

Excluded Liabilities. Except for the Assumed Lap-Band Liabilities, ReShape the Purchaser shall not assume, and shall have no liability for, assume or be bound by any Liabilities of Apollo or any Apollo Affiliate the Sellers of any kindkind or nature, character known, unknown, accrued, absolute, fixed, contingent, or descriptionotherwise, it being understood that ReShape is expressly disclaiming any express whether or implied assumption of any Liabilities other than the Assumed Lap-Band Liabilities including, without limitation all Liabilities not existing or hereafter arising out of, resulting from or relating to whatsoever (collectively, the “Excluded Apollo Liabilities”):), including the following: (a) any and all Claims, regardless Liabilities of when such Claim was first commenced or made, that arose out of, relates to or results the Sellers excluded from the development, nonclinical and clinical testing, commercialization, manufacture, storage, packaging, import, marketing, labeling, pricing, distribution, sale or use definition 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 infringementAssumed Liabilities; (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)Accounts Payable; (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) imposed on, collected by or withheld with respect to, or in any way related to the Hospital Business for any periods (or portions thereof) prior to the Effective Time; (d) the Debt and all Liabilities of the Sellers in respect of any other indebtedness for borrowed money; (e) all Liabilities of the Sellers arising in connection with or relating to any of Seller’s existing, former or prospective employees, the employment of such Persons by the Sellers, employee benefit plans or programs (including the Plans), employment contracts, retention agreement bonuses, sales commissions related to contracts or agreements entered into by any Seller or Principal (whether or not accrued as of the date hereof or as of the Closing Date and whether or not such sales commissions shall accrue due to the Purchaser’s operation of the Hospital Business after the Effective Time), employee insurance policies (other than obligations arising after the Effective Time with respect to those insurance contracts and policies expressly included in the Assigned Contracts), severance or other termination obligations, or other employment related matters, including any compensation or benefits matters and the Employment Agreements, including those Liabilities set forth on Schedule 2.4(e) hereto, which shall be governed solely by Section 2.8) consist of amounts owed to any individual pursuant to a written agreement and as a result of the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby for (i) in respect of severance, retention or imposed upon Apollo termination pay or any of its Affiliates for any taxable period, other similar payments or bonuses or (ii) imposed with respect any increases in compensation due to such individual or forgiveness of debt owed by such individual; (f) all Liabilities of the Sellers arising under all Assigned Contracts (and any other contract or agreement to which Seller is a party), including Liabilities to perform thereunder or relating to non-compliance therewith and breach or violation thereof, in each case to the Apollo Lap-Band Assets extent such Liability relates to the period prior to the Effective Time (whether or not such action was brought or instituted prior to the Apollo Lap-Band Effective Time); (g) all Liabilities arising in respect of amounts due to customers or Government Reimbursement Programs in connection with overpayments or other claims made by customers of the Hospital Business or Government Reimbursement Programs relating to periods prior to the Effective Time and Liabilities solely associated with any third party (including Government Reimbursement Programs) audits or recoupments or denials by any third party payors (including Government Reimbursement Programs) for any taxable period (or portion thereof) ending on or periods prior to the Closing Date; (gh) any Contractall Liabilities of the Sellers pertaining to their respective current and former members, other than an Apollo Lap-Band Business Contract and subject to partners or shareholders, as the limitations set forth case may be, including in Section 1.3, to which Apollo or respect of the redemption of their equity interests in 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 Affiliatesthe Sellers; (i) any Encumbrances on the Purchased Assets to the extent incurred prior to the Effective Time, other than the Permitted Encumbrances and obligations imposed by Assigned Contracts that arise following the Effective Time; (j) except as provided in Section 2.3, all Apollo Accounts PayableLiabilities of the Sellers arising from the transactions contemplated by this Agreement, other than the Transfer Taxes; (k) all current Liabilities of the Sellers, including interest bearing current Liabilities, accrued payroll and paid time off; (l) all Liabilities arising in respect of the Excluded Assets; (m) any unpaid accounts payable other Liability, claim, Action, complaint, debt, suit, cause of action, investigation, or proceeding of any kind whatsoever (including with respect to professional liability and malpractice claims, commercial claims, wage and hour compliance and other employment related claims, and non-compliance with applicable Laws), against or relating to any Apollo Lap-Band InventorySeller, any Principal, the Hospital Business, or the Purchased Assets, whether asserted, instituted, or commenced prior to or after the Closing Date, by any third party for damages suffered by such third party by proximate reason of or directly resulting from the use, ownership or lease of the Purchased Assets or the Leased Real Property or operation of the Hospital Business prior to the Effective Time, or with respect to any continuing business activities of any Seller after the Effective Time; and (jn) all Liabilities set forth on Schedule 1.4in connection with the Healthcare Requirements, including from breaches thereof, or non-compliance therewith, in each case related to the period prior to the Effective Time.

Excluded Liabilities. Except for the Assumed Lap-Band Liabilities, ReShape Purchaser shall not assumeassume any liabilities, and shall have no liability for, any Liabilities obligations or commitments of Apollo the Seller relating to or any Apollo Affiliate arising out of any kind, character the operation of the Business or description, it being understood that ReShape is expressly disclaiming any express or implied assumption the ownership of any Liabilities the Assets prior to the Closing Date other than the Assumed Lap-Band Liabilities includingLiabilities. Notwithstanding anything to the contrary in this Agreement, without limitation all Liabilities arising out ofPurchaser shall not assume or in any way become liable for any of the debts, resulting from liabilities, or obligations of any nature whatsoever (other than the Assumed Liabilities) relating to (collectivelythe Seller, the Business or the Assets, whether accrued, absolute, contingent or otherwise, whether known or unknown, whether due or to become due, whether related to the Business or the Assets and whether disclosed on the Schedules attached hereto, and regardless of when or by whom asserted(collectively referred to herein as the “Excluded Apollo Liabilities”): (a,) any and, for the avoidance of doubt 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 not in limitation of the Apollo Lap-Band Product or foregoing, Purchaser shall not assume any of the Apollo Lap-Band Assetsliabilities, obligations or commitments of Seller that are described below (which shall also be Excluded Liabilities): 1. Any of the Seller’s Liabilities or obligations under this Agreement, the Schedules attached hereto and any other agreements entered into by the Seller in each caseconnection with the transactions contemplated by this Agreement; 2. any of the Seller’s liabilities or obligations for expenses, prior fees or taxes incident to or arising out of the Closingnegotiation, preparation, approval or authorization of this Agreement or the consummation (or preparation for the consummation) of the transactions contemplated hereby (including all such Claims relating to warranty obligationsattorneys, marketing programs, patient incentive programs accountants’ and alleged intellectual property infringementbrokerage fees); 3. any of the Seller’s liabilities or obligations with the Social Security Administration, the Federal Unemployment Insurance, the United States Department of Treasury, the Puerto Rico Department of Treasury (b) “Departamento de Hacienda”), the Puerto Rico State Insurance Fund (“Fondo del Seguro del Estado”), the Puerto Rico Department of Labor and Human Resources and any other state or federal agency, and all products liability Claims that arose out of, relates to municipality of the Commonwealth of Puerto Rico; 4. any of the Seller’s liabilities or results from obligations for any Apollo Lap-Band Product sold federal or Puerto Rico taxes for any period 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)Date; (c) 5. any recalls (including after the Closing) mandated by any Governmental Body liability or obligation under or with respect to any Apollo Lap-Band Products manufactured employment agreement, any employee benefit plan, any employee health, disability or sold other welfare plan, program, policy or arrangement presently or formerly maintained or contributed to by Seller or its parents or affiliates, or with respect to which the Seller, parent or affiliate has any liability; 6. any of the Seller’s liabilities or obligations for vacation pay, sick pay, holiday pay, salary, bonuses, pension and/or retirement benefits, or other payments or liabilities arising at or before the Closing Date of any kind to any employees or current or former employee of the Seller; 7. any liability or obligation relating to workers’ compensation claims which were filed or presented by the Seller’s employees at or before the Closing Date or which are filed or presented after the Closing Date but relate to claims and/or injuries first arising at or before the Closing Date; 8. any of the Seller’s liabilities or obligations (A) arising by reason of any violation or alleged violation of any law of any governmental entity or any requirement of any governmental entity, or (B) arising by reason of any breach or alleged breach by the Seller of any agreement, contract, lease, license, commitment, instrument, judgment, order or decree; 9. any of Seller’s liabilities or obligations relating to any legal action, proceeding or claim arising out of or in connection with Seller’s conduct of the Business at or before the Closing Date or any other conduct of the Seller, the Seller’s officers, directors, employees, consultants, agents or advisors at or prior to the ClosingClosing Date; (d) 10. any and all Claims for Apollo Lap-Band Products manufactured prior to the Closing, including but not limited to product liability and infringement liabilities or obligations in respect of Intellectual Property whether or not sold prior to the Closing; (e) any of the Excluded Apollo AssetsAssets (including under any contracts, leases, commitments or understandings related thereto); (f) Taxes (other than Transfer Taxes11. any liabilities for premiums that may be due and payable to insurance companies for insurance written before the Closing Date, which whether or not such premiums shall be governed solely have been received by Section 2.8) (i) Seller in respect of its capacity as general agent or imposed upon Apollo authorized representative; 12. any liability, obligation or commitment to return or refund to an insurance company, any of its Affiliates for any taxable period, unearned commission on policy cancellations 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 reductions in policy premiums collected on or prior to the Closing Date; (g) 13. any Contractliabilities, other than an Apollo Lap-Band Business Contract and subject obligations or commitments of Seller with respect to the limitations set forth in Section 1.3, any statutory or contractual severance payment that may be due or payable to which Apollo or any of its Affiliates is Seller’s employees on account of their termination of employment with Seller (whether or not employed by Purchaser) as a party result of or by which any in connection with or resulting from the sale 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 Payablethe Assets and other transactions contemplated in this Agreement, including any unpaid accounts payable related but not limited to any Apollo Lap-Band Inventoryliability that may be imposed or asserted against the Seller under Act No. 80 of May 30, 1976, as amended (the “Act 80 Severance Payments”; and (j) all Liabilities set forth on Schedule 1.414. any other liabilities or obligations of Sellers other than Assumed Liabilities.

Excluded Liabilities. Except for Notwithstanding any provision in this Agreement or any other writing to the contrary, Acquisition Subsidiary is assuming only the Assumed Lap-Band Liabilities, ReShape shall not assumeContract and the Third Party Software Agreements (as defined in the Intellectual Property Agreement), and shall have no is not assuming any other liability for, any Liabilities or obligation of Apollo Seller (or any Apollo Affiliate predecessor of Seller with respect to the Business) of whatever nature, whether presently in existence or arising hereafter. All such other liabilities and obligations shall be retained by and remain obligations and liabilities of Seller (all such liabilities and obligations not being assumed being herein referred to as the "EXCLUDED LIABILITIES"). Notwithstanding any kindprovision in this Agreement or any other writing to the contrary, character or description, it being understood that ReShape is expressly disclaiming any express or implied assumption of any Excluded 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”):include: (a) any and all Claimsliability or obligation of Seller, 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 member of any consolidated, affiliated, combined or unitary group of which Seller is or has been a member, for Taxes; provided that Transfer Taxes incurred in connection with the Apollo Lap-Band Assets, transactions contemplated by this Agreement and Apportioned Obligations shall be paid in each case, prior to the Closing, including all such Claims relating to warranty obligations, marketing programs, patient incentive programs and alleged intellectual property infringementmanner set forth in Section 8.03 hereof; (b) any and all products liability Claims that arose out ofor obligation relating to employees, relates to former employees, employee benefits or results from any Apollo Lap-Band Product sold compensation arrangements existing on or prior to the Closing Date, including, without limitation, any liability or obligation under any of employee benefit agreements, plans or other arrangements listed on Seller Disclosure Schedules 9.01(a) or (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 Productc); (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 ClosingEnvironmental Liability; (d) all obligations and liabilities arising from any and all Claims for Apollo Lap-Band Products manufactured prior action, suit, investigation, or proceeding relating to the ClosingPurchased Assets or the Intangible Assets that are pending on the Closing Date against Seller or any Purchased Asset before any court or arbitrator or any governmental body, including but not limited to product liability and infringement of Intellectual Property whether agency or not sold prior to the Closingofficial; (e) all liabilities and obligations relating to any of the Excluded Apollo Assets; (f) Taxes (other than Transfer Taxes, which shall be governed solely products manufactured or sold 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 Seller on or prior to the Closing Date; Date (g) excluding 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 products or assets are otherwise bound; (h) any current or former employee or contractor of Apolloincluded in the Purchased Assets), or any of its Affiliates; (i) all Apollo Accounts Payableincluding, including any unpaid accounts payable related to any Apollo Lap-Band Inventorywithout limitation warranty obligations and product liabilities; and (jf) all Liabilities set forth on Schedule 1.4any liability or obligation relating to an Excluded Asset. Nothing in this Section 2.04 shall be deemed to supersede or in any way invalidate Buyer's indemnification obligations under Section 11.02(b)(ii) of this Agreement or under Sections 4.4, 6.1 and 6.2 of the Intellectual Property Agreement.

Excluded Liabilities. Except Notwithstanding any provision in this Agreement to the contrary, Buyer is not assuming and is not responsible for the Assumed Lap-Band Liabilitiespaying, ReShape shall not assume, and shall have no liability for, performing or discharging any Liabilities Liability of Apollo Seller (or any Apollo Affiliate of any kind, character or description, it being understood that ReShape is expressly disclaiming any express or implied assumption Seller) of any Liabilities kind or nature whatsoever 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”):). Without limiting the generality of the foregoing, the Excluded Liabilities include, but are not limited to, the following: (i) all Liabilities arising under or with respect to Excluded Contracts or the Excluded Assets; (ii) all Liabilities to be paid or retained by Seller pursuant to the terms of this Agreement, including all Liabilities related to or arising from the Excluded Assets (including, without limitation, all Liabilities of, relating to or arising from the Employee Benefit Plans, except the Assumed 2022 Incentive Compensation Liabilities, Defined Bonus and Commission Plan Assumed Liabilities, and Earned and Unused Paid Leave Assumed Liabilities); (iii) all Liabilities for legal, accounting, audit and investment banking fees, brokerage commissions and any other like expense incurred by Seller in connection with the negotiation and preparation of this Agreement and the transactions contemplated hereby; (iv) all Environmental Liabilities resulting from the conduct, operation or ownership of the Business or the Acquired Assets prior to the Effective Time; (v) all Liabilities relating to the exposure or alleged exposure of any person to asbestos in any form in connection with or in any way relating to or resulting from the conduct, operation or ownership of the Business or the Acquired Assets prior to the Effective Time; (vi) all Liabilities relating to any Laws concerning wages, hours, classification of employees and independent contractors (including consultants), and the collection and payment of withholding and/or social security Taxes in any way relating to or resulting from the conduct, operation or ownership of the Business or the Acquired Assets prior to the Effective Time; (a) any and all ClaimsLiabilities with respect to a Product/Service recall made before the Effective Time and, 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 extent in such Apollo Lap-Band Product and Claims involving excess of the death of or injury to any individual Buyer Recall Cap, all Liabilities for a Recall after the Effective Time 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 Products/Services that were manufactured, produced, distributed, 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 DateEffective Time by the Business (the “Recall Excluded Liabilities”); (gviii) any ContractAll Taxes (a) of the Seller, other than an Apollo Lap-Band Business Contract and subject including Taxes allocated to the limitations set forth in Seller pursuant to Section 1.34.3(b) or Section 4.3(c) of this agreement, of (b) arising out of or relating to which Apollo the conduct, operation or any ownership of its Affiliates is a party the Business or by which any the Acquired Assets prior to the Effective Time (including, for the avoidance of its properties or assets are otherwise bound; (h) any current or former employee or contractor doubt, all Taxes arising pursuant to an Assumed Contract prior to the Effective Time). Seller shall pay, perform and discharge, as and when due, all of Apollo, or any of its Affiliates; (i) all Apollo Accounts Payable, including any unpaid accounts payable related to any Apollo Lap-Band Inventory; and (j) all Liabilities set forth on Schedule 1.4the Excluded Liabilities.

Excluded Liabilities. Except for the Assumed Lap-Band Liabilities, ReShape Buyer shall not assume and under no circumstances shall Buyer be obligated to pay or assume, and none of the assets of Buyer shall have no liability forbe or become liable for or subject to any liability, any Liabilities indebtedness, commitment, or obligation of Apollo Seller, whether known or any Apollo Affiliate of any kindunknown, character fixed or descriptioncontingent, it being understood that ReShape is expressly disclaiming any express recorded or implied assumption of any Liabilities other than the Assumed Lap-Band Liabilities includingunrecorded, without limitation all Liabilities currently existing or hereafter arising out of, resulting from or relating to otherwise (collectively, the “Excluded Apollo Liabilities”):), including the following Excluded Liabilities: (a) any and all Claimsdebt, regardless of when such Claim was first commenced obligation, expense or made, liability 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 infringementis not an Assumed Liability; (b) any and all products claims or potential claims for medical malpractice or general 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 events asserted to any Apollo Lap-Band Products manufactured or sold have occurred prior to the Closing; (c) those claims and obligations (if any) specified in Schedule 1.4 hereto; (d) any liabilities or obligations associated with or arising out of any of the Excluded Assets; (e) liabilities and all Claims for Apollo Lapobligations of Seller and its Affiliates arising under the terms of the Medicare, Medicaid, CHAMPUS/TRICARE, Blue Cross, or other third party payor programs (provided, however, that Buyer’s post-Band Products manufactured Closing performance under any payor Contracts assigned to it by Seller shall not be deemed to be Excluded Liabilities); (f) federal, state or local tax liabilities or obligations of Seller in respect of periods prior to the Closing or resulting from the consummation of the transactions contemplated herein including, without limitation, any income tax, any franchise tax, any tax recapture, any sales and/or use tax, any state and local recording fees and taxes which may arise upon the consummation of the transactions contemplated herein, and any FICA, FUTA, workers’ compensation, and any and all other taxes or amounts due and payable as a result of the exercise by any employee at the Hospital of such employee’s right to, paid time off, vacation, sick leave, and holiday benefits accrued while in the employ of Seller, with the exception of any taxes or amounts due and payable as a result of the exercise by a Hired Employee of any extended illness benefit after the Closing; (g) liability for any and all claims by or on behalf of Seller’s employees relating to periods prior to the Closing including, including but not limited without limitation, liability for any pension, profit sharing, deferred compensation, or any other employee health and welfare benefit plans, liability for any EEOC claim, ADA claim, FMLA claim, wage and hour claim, unemployment compensation claim, or workers’ compensation claim, and any liabilities or obligations to product former employees of Seller under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended; (h) any obligation or liability and infringement accruing, arising out of, or relating to any federal, state or local investigations of, or claims or actions against, Seller or any of Intellectual Property whether its Affiliates or not sold any of their employees, medical staff, agents, vendors or representatives with respect to acts or omissions prior to the Closing; (ei) any civil or criminal obligation or liability accruing, arising out of, or relating to any acts or omissions of Seller, its Affiliates or their directors, officers, employees and agents claimed to violate any constitutional provision, statute, ordinance or other law, rule, regulation, interpretation or order of any governmental entity; (j) liabilities or obligations arising as a result of any breach by Seller at any time of any contract or commitment that is not assumed by Buyer; (k) liabilities or obligations arising out of any breach of any Contract by Seller prior to the Closing; (l) any obligation or liability asserted under the federal ▇▇▇▇-▇▇▇▇▇▇ program or other restricted grant and loan programs with respect to the ownership or operation of the Excluded Apollo Hospital or the Purchased Assets; (fm) Taxes (other than Transfer Taxesany debt, which shall be governed solely by Section 2.8) (i) in respect obligation, expense, or liability of Seller arising out of or imposed upon Apollo incurred solely as a result of any transaction of Seller occurring after the Closing or any of its Affiliates for any taxable periodviolation by Seller of any law, regulation, or ordinance at any time (iiincluding, without limitation, those pertaining to fraud, environmental, healthcare regulatory and ERISA matters); (n) imposed all liabilities and obligations relating to any oral agreements, oral contracts or oral understandings with respect any referral sources including, but not limited to, physicians, unless reduced to writing and expressly assumed as part of the Apollo Lap-Band Assets or Contracts; (o) the Apollo Lap-Band Business for any taxable period (or portion thereof) ending on or prior to trade accounts payable of Seller as of the Closing Date; (gp) any Contractobligations and liabilities as of the Closing Date in respect of accrued paid time off benefits (with the exception of extended illness benefits exercised by Hired Employees after the Closing) of Seller’s employees at the Hospital, 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, including any unpaid accounts payable related to any Apollo Lap-Band Inventory; and (j) all Liabilities set forth on Schedule 1.4taxes.

Excluded Liabilities. Except for the Assumed Lap-Band Liabilities, ReShape Purchaser shall not assume, and shall have no liability be obligated to pay, perform or otherwise discharge or in any other manner be liable or responsible for, any Liabilities of Apollo or any Apollo Affiliate of any kindand Sellers shall retain, 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 includingLiabilities, without limitation all Liabilities arising out of, resulting from or relating to (collectively, the “Excluded Apollo Liabilities”): including (a) any Liabilities of any Seller or any Non-Debtor of any kind or nature whatsoever, whether absolute, accrued, contingent or otherwise, liquidated or unliquidated, due or to become due, known or unknown, currently existing or hereafter arising, matured or unmatured, direct or indirect, and all Claimshowever arising, regardless whether existing on the Closing Date or arising thereafter relating to or arising out of when (1) any Seller Plan, whenever such Claim was first commenced or made, Liabilities arise; (2) any Transferred Employees 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 or, in the case of Inactive Employees who subsequently become Transferred Employees, that arose on or prior 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; date that employee begins employment with Purchaser; and (h3) any current or former employee or contractor service provider of ApolloSellers or the Non-Debtors who are not Transferred Employees, whenever such Liabilities arise; (b) all Cure Costs other than the Assumed Cure Costs (the “Excluded Cure Costs”); (c) all fees, costs and expenses (including fees, costs and expenses of Advisors) incurred in connection with the negotiation of this Agreement and the other Transaction Agreements, the performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions; (d) all fees, costs and expenses (including fees, costs and expenses of Advisors) incurred in connection with the bankruptcy proceedings and the wind up and dissolution of Sellers or the Non-Debtors; and (e) any other Action against any Seller or Non-Debtor or Liabilities of any kind or nature whatsoever, whether absolute, accrued, contingent or otherwise, liquidated or unliquidated, due or to become due, known or unknown, currently existing or hereafter arising, matured or unmatured, direct or indirect, and however arising, whether existing on the Closing Date or arising thereafter as a result of any act, omission, condition or circumstances taking place prior to the Closing, or any of its Affiliates; (i) all Apollo Accounts Payable, including any unpaid accounts payable related arising with respect to any Apollo Lapreal property formerly owned, operated or leased by any Seller or any Non-Band Inventory; and Debtor (j) all Liabilities set forth on Schedule 1.4that are not Assumed Liabilities being referred to collectively herein as the “Excluded Liabilities”).

Excluded Liabilities. Except for the Assumed Lap-Band Liabilities, ReShape shall not assumeSpecifically, and shall have no liability forwithout in any way limiting the generality of Section 1.4, neither Buyer nor Buyer’s Affiliates assume or agree to pay, nor will they become responsible to discharge or satisfy, any liabilities or obligations of Seller or Seller’s Affiliates, except for those set out in Section 1.4(a). The Excluded 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(as defined above) shall include, without limitation all Liabilities arising out of, resulting from or relating to (collectively, the “Excluded Apollo Liabilities”):limitation: (a) any All liabilities and all Claimsobligations of Seller or Seller’s Affiliates arising under or in connection with this Agreement, 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 consummation 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 infringementtransactions contemplated hereby; (b) All liabilities and obligations of Seller or Seller’s Affiliates arising under any and all products liability Claims that arose out of, relates to contract or results from any Apollo Lap-Band Product sold prior to agreement other than 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)Assumed Contracts; (c) any recalls All liabilities and obligations (including after the Closingaccounts payable) mandated owed by any Governmental Body with respect Seller to any Apollo Lap-Band Products manufactured of its shareholders or sold any Affiliate of Seller; (d) All liabilities and obligations related to employees of Seller or Seller’s Affiliates; (e) All liabilities and obligations pertaining to any Excluded Assets; (f) All liabilities and obligations relating to, resulting from, or arising out of, (i) claims made against or involving Seller or any Seller Affiliate in pending or future suits, actions, investigations or other legal, governmental or administrative proceedings or (ii) claims made against or involving Seller or any Seller Affiliate based on violations of law, breach of contract, employment practices or environmental, health and safety matters or any other actual or alleged failure of Seller or any Seller Affiliate to perform any obligation in compliance with applicable Laws, in each case arising out of, or relating to, (x) events that shall have occurred, (y) services performed or goods sold, or (z) operations of Seller at the Facility, prior to the Closing; (dg) any All liabilities and all Claims for Apollo Lap-Band Products manufactured prior obligations relating 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 Taxes of the Seller with respect of or imposed upon Apollo or to any of its Affiliates for any taxable period, period or (ii) imposed with respect to the Apollo Lapany liability of Seller for unpaid Taxes of any Person (other than Seller) under Treasury Regulations Section 1.1502-Band Assets or the Apollo Lap-Band Business for any taxable period 6 (or portion thereof) ending on any similar provisions of state, local or prior to the Closing Date; (g) any Contractforeign law), other than an Apollo Lap-Band Business Contract and subject to the limitations set forth in Section 1.3as a transferee or successor, to which Apollo by contract or any of its Affiliates is a party or by which any of its properties or assets are otherwise boundotherwise; (h) Any indebtedness of Seller or any current Seller Affiliate, contingent or former employee or contractor otherwise, with respect to any borrowed money of Apollo, Seller or any of its Affiliates;, including any interest or penalties accrued thereon; and (i) Any other current liability or obligation (except Assumed Liabilities) of Seller or Seller’s Affiliates incurred in the ordinary course of business and existing at the Closing Date. Such Excluded Liabilities shall include all Apollo Accounts Payableclaims, including any unpaid accounts payable related actions, litigation and proceedings relating to any Apollo Lap-Band Inventory; and (j) or all Liabilities set forth on Schedule 1.4of the foregoing and all costs and expenses in connection therewith.

Excluded Liabilities. Except for the Assumed Lap-Band Liabilities, ReShape Buyer and Buyer Entities shall not assume and under no circumstances shall Buyer or Buyer Entities be obligated to pay or assume, and none of the assets of Buyer or Buyer Entities shall have no liability forbe or become liable for or subject to any liability, any Liabilities indebtedness, commitment, or obligation of Apollo Seller, Seller Entities or any Apollo Affiliate of any kindtheir respective Affiliates, character whether known or descriptionunknown, it being understood that ReShape is expressly disclaiming any express fixed or implied assumption of any Liabilities other than the Assumed Lap-Band Liabilities includingcontingent, without limitation all Liabilities recorded or unrecorded, currently existing or hereafter arising out of, resulting from or relating to otherwise (collectively, the “"EXCLUDED LIABILITIES"), including, without limitation, the following Excluded Apollo Liabilities”):: (a) any and all Claimsdebt, regardless of when such Claim was first commenced obligation, expense or made, liability 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 infringementis not an Assumed Liability; (b) any and all products claims or potential claims for medical malpractice or general 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 events asserted to any Apollo Lap-Band Products manufactured or sold have occurred prior to the Closing; (c) those claims and obligations (if any) specified in Schedule 1.4 hereto; (d) any liabilities or obligations associated with or arising out of any of the Excluded Assets; (e) liabilities and all Claims for Apollo Lap-Band Products manufactured obligations of Seller, Seller Entities or their respective Affiliates, regardless of when imposed, in respect of periods prior to the ClosingClosing Date arising under the terms of the Medicare, including but Medicaid, CHAMPUS/TRICARE, Blue Cross, or other third party payor programs (provided, however, that this clause (e) shall not limited apply to product any and all Assumed Liabilities under Section 1.3(a) hereof); (f) federal, state or local tax liabilities or obligations of Seller, Seller Entities or their respective Affiliates in respect of periods prior to the Closing including, without limitation, any income tax, any franchise tax, any tax recapture, any state and local recording fees and taxes (excluding those contemplated in Sections 12.28 and 12.29) which may arise upon the consummation of the transactions contemplated herein (exclusive of any financing transactions engaged in by Buyer or its Affiliates, which shall be the obligation of Buyer), and any FICA, FUTA, workers' compensation, and any and all other taxes or amounts due and payable as a result of the exercise by the employees at the Facilities of any such employee's right to vacation, sick leave, and holiday benefits accrued while in the employ of the Seller Entities (provided, however, that this clause (f) shall not apply to any and all taxes payable with respect to any employee benefits constituting Assumed Liabilities under Section 1.3(d) hereof); (g) liability for any and infringement all claims by or on behalf of Intellectual Property whether employees of Seller, Seller Entities or their respective Affiliates relating to periods prior to the Closing including, without limitation, liability for any pension, profit sharing, deferred compensation, or any other employee health and welfare benefit plans, liability for any EEOC claim, ADA claim, FMLA claim, wage and hour claim, unemployment compensation claim, or workers' compensation claim, and any liabilities or obligations to former employees of Seller, Seller Entities or their respective Affiliates under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (provided, however, that this clause (g) shall not sold apply to any and all employee benefits constituting Assumed Liabilities under Section 1.3(d) hereof); (h) any obligation or liability accruing, arising out of, or relating to any federal, state or local investigations of, or claims or actions against, Seller, Seller Entities or their respective Affiliates or any of their employees with respect to acts or omissions prior to the Closing; (ei) any civil or criminal obligation or liability accruing, arising out of, or relating to any acts or omissions of Seller, any of the Excluded Apollo AssetsSeller Entities, any of their respective Affiliates or their directors, officers, employees and agents claimed to violate any constitutional provision, statute, ordinance or other law, rule, regulation, interpretation or order of any governmental entity; (fj) Taxes (other than Transfer Taxesliabilities or obligations arising as a result of any breach by Seller, which shall be governed solely by Section 2.8) (i) in respect of or imposed upon Apollo or any of its the Seller Entities or their respective Affiliates for at any taxable periodtime of any contract or commitment that is not assumed by Buyer or Buyer Entities; (k) liabilities or obligations arising out of any breach by Seller, any of the Seller Entities or their respective Affiliates of any Contract, or (ii) imposed amounts due and payable, accruing or occurring prior to, or with respect to the Apollo Lapperiod before, the Closing; (l) any obligation or liability asserted under the federal ▇▇▇▇-Band Assets ▇▇▇▇▇▇ program or other restricted grant and loan programs with respect to the ownership or operation of the Facilities or the Apollo Lap-Band Business for any taxable period (or portion thereof) ending on or Assets 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, including any unpaid accounts payable related to any Apollo Lap-Band InventoryClosing; and (jm) all Liabilities set forth on Schedule 1.4any debt, obligation, expense, or liability of Seller, Seller Entities and their respective Affiliates arising out of or incurred solely as a result of any transaction of Seller, Seller Entities or their respective Affiliates occurring after the Closing, or for any violation by Seller, Seller Entities or their respective Affiliates of any law, regulation, or ordinance at any time (including, without limitation, those pertaining to fraud, environmental, healthcare regulatory and ERISA matters).

Excluded Liabilities. Except as expressly provided in Section 1.7(a), Seller shall retain and neither Purchasing Parties shall assume nor be liable for any liabilities and obligations of Seller and any other obligations relating to the Assumed Lap-Band Business (such liabilities retained by Seller are referred to as the "Excluded Liabilities"), ReShape shall not assumeincluding without limitation the following: (i) any liabilities or obligations of Seller, and shall have no liability forcontingent or otherwise, for any Liabilities indebtedness of Apollo Seller; (ii) the liabilities or any Apollo Affiliate obligations of Seller to its stockholders respecting dividends, distributions to its stockholders in liquidation, redemption of stock, or otherwise; (iii) liabilities or obligations of Seller arising out of any kindtransactions occurring, character or descriptionobligations incurred, it being understood that ReShape is expressly disclaiming after the Closing; (iv) any express obligations of Seller for expenses, public dues or implied assumption fees levied to Seller or deemed to be borne by Seller under relevant laws and regulations incident to or arising out of any Liabilities other than the Assumed Lap-Band Liabilities negotiation, preparation, approval or authorization of this Agreement or the consummation of the transactions contemplated hereby, including, without limitation limitation, all Liabilities stamp duties, attorneys and accountants fees and all brokers or finders fees or commissions payable by Seller; (v) any obligation of Seller under or 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 this Agreement or any of the Apollo Lap-Band Ancillary Agreements; (vi) any liabilities relating to claims by the insurer (or the indemnitor) that the insured (or the indemnitees) had breached it obligations under the policy of insurance (or the contract of indemnity) or had committed fraud in the insurance application; (vii) any liability or obligation of Seller to any Affiliate unless otherwise provided for in this Agreement; (viii) subject to the terms and conditions provided in this Agreement, any liabilities or obligations, the existence of which constitute a breach of the representations, warranties or covenants of Seller contained in this Agreement; (ix) subject to the terms and conditions provided in this Agreement, any obligations or liabilities of Seller to indemnify its officers, directors, employees or agents; (x) any liability or obligation in respect of the Excluded Assets; (xi) all Taxes imposed on Seller, in each caseincluding (i) any Tax of any other corporation which Tax is assessed against Seller by virtue of its status, prior to the ClosingClosing Date, as a member of any consolidated group of which such other corporation was also a member and (ii) any Taxes, including all such Claims relating value-added, gross receipts, excise, registration, stamp duty, transfer or other similar taxes or governmental fees, imposed in connection with or attributable to warranty obligationsthis Agreement, marketing programs, patient incentive programs and alleged intellectual property infringementor as a result of the consummation of the transaction under this Agreement; (bxii) subject to the terms and conditions provided in this Agreement, any and all products Environmental Liabilities; (xiii) except for the Assumed Liabilities, any obligation or liability Claims arising under any contract, instrument or agreement (1) that arose out ofis not transferred to Purchaser as part of the Purchased Assets, or (2) that is not transferred to Purchaser because of Seller's failure or inability to obtain any third party consent required for the transfer or assignment of such contract or agreement to Purchaser, or (3) that relates to any breach or results from default (or an event which might, with the passing of time or the giving of notice, or both, constitute a default) under any Apollo Lap-Band Product sold contract, instrument or agreement or to any services to be provided by Seller under any such contract, instrument or agreement arising out of or relating to periods on or prior to the Closing Date, or (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); (c4) any recalls (including after the Closing) mandated by any Governmental Body with respect to any Apollo Lap-Band Products manufactured or sold for which Seller received payment prior to the Closing; (dxiv) any existing or future liabilities to financial institutions, such as banks, installment financing companies 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 Closingleasing companies; (exv) any liability relating to the infringement or asserted infringement of the Excluded Apollo Assetsany intellectual property by Seller; (fxvi) Taxes any liability exclusively relating to the wafer fabrication business of Seller; and (xvii) any other than Transfer Taxes, which shall be governed solely by Section 2.8) (i) in respect liability or obligation of Seller or including any liability or obligation directly or indirectly arising out of or imposed upon Apollo or any of its Affiliates for any taxable period, or (ii) imposed with respect relating to the Apollo Lap-Band operation of the Business or ownership of the Purchased 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 whether contingent or otherwise, fixed or absolute, known or unknown, matured or unmatured, present, future or otherwise, irrespective of whether such liability or obligation is asserted before or after the limitations set forth in Section 1.3Closing, 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, including any unpaid accounts payable related to any Apollo Lap-Band Inventory; and (j) all Liabilities set forth on Schedule 1.4except for the Assumed Liabilities.

Excluded Liabilities. Except for Notwithstanding any other provision of this Agreement to the Assumed Lap-Band Liabilitiescontrary, ReShape the Buyer is not assuming and each Seller shall not assumepay, and shall have no liability for, any perform or otherwise satisfy when due all Liabilities of Apollo or any Apollo Affiliate of any kindsuch Seller, character or description, it being understood that ReShape is expressly disclaiming any express or implied assumption of any Liabilities other than the Assumed LapLiabilities (the “Excluded Liabilities”), including the following: (a) all Taxes to the extent arising out of, relating to or otherwise in respect of the Transferred Assets or the operation of the Business that are incurred in or attributable to any period, or any portion of any period, ending on or prior to the Closing Date (except as otherwise provided in this Agreement); (b) one-Band half of all Transfer Taxes; (c) all Liabilities includingto the extent arising out of, without limitation relating to or otherwise in respect of any current or former employee of any Seller who is not a Business Employee, including all Liabilities arising out of, resulting from relating to or otherwise in respect of any Former Business Employees; (d) all Liabilities retained by any Seller pursuant to Section 5.5, including all Liabilities arising in respect of 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 Employee Plan except to the Closing, including all extent such Claims relating Liabilities are assumed by the Buyer pursuant to warranty obligations, marketing programs, patient incentive programs and alleged intellectual property infringementSection 5.5; (be) any and all products liability Claims that arose out ofDebt of each Seller, relates to or results from any Apollo Lap-Band Product sold prior except for the Buyer’s indemnification obligations with respect to the Closing Seller Guarantees set forth in Section 5.8; (f) all Seller Transaction Expenses, including Claims alleging defects in such Apollo Lap-Band Product the fees and Claims involving the death costs of or injury legal and financial advisors to any individual relating Seller in connection with the transactions contemplated hereby and the cost of any retention bonuses implemented by any Seller; (g) all accounts payable of any Seller (other than any accounts payable pursuant to such Apollo Lapany open purchase order for any raw materials, work-Band Productin-progress, finished goods, ingredients, packaging materials, labels or other inventories to be delivered following the Closing that constitutes a Transferred Contract); (ch) all Liabilities to the extent arising out of, relating to or otherwise in respect of any recalls Contract that is not a Transferred Contract; (including after i) all refunds, allowances, customer deductions, and setoffs to the Closing) mandated extent attributable to Products sold by any Governmental Body with respect to any Apollo Lap-Band Products manufactured or sold the Business prior to the Closing; (dj) any and all Claims for Apollo Lap-Band Products manufactured prior Liabilities to the Closingextent arising out of, relating to or otherwise in respect of any real property owned or leased by any Seller that is not a Transferred Asset; (k) all Liabilities to the extent arising out of, relating to or otherwise in respect of any ceased or discontinued operations of any Seller, including but not limited any such operations formerly arising out of, relating to or otherwise in respect of the Business (including any such ceased or discontinued operations in the People’s Republic of China); (l) except for the Liabilities set forth in Section 2.3(c), all Liabilities with respect to product liability and infringement of Intellectual Property whether claims to the extent related to Products manufactured, marketed, packaged, sold or not sold distributed prior to the Closing; (em) all Liabilities to the extent arising out of, relating to or otherwise in respect of any criminal violations of any Law relating to the Excluded Apollo AssetsBusiness that occurred prior to the Closing; (fn) Taxes (other than Transfer Taxesall Liabilities to the extent arising out of, which shall be governed solely by Section 2.8) (i) relating to or otherwise in respect of any violations of antitrust, competition, anti-monopoly, anti-cartel, and unfair-competition Laws; export-control, trade and economic sanctions Laws (including the U.S. Commerce Department’s Export Administration Regulations and sanctions Laws maintained by the U.S. Treasury Department’s Office of Foreign Assets Control, as well as all applicable export-control and sanctions Laws maintained by other jurisdictions); Anti-Corruption Laws; anti-boycott, anti-terrorism or imposed upon Apollo arms-control Laws; or similar Laws by 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 Seller that occurred 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, including any unpaid accounts payable related to any Apollo Lap-Band InventoryClosing; and (jo) all Liabilities set forth on Schedule 1.4to the extent arising out of, relating to or otherwise in respect of the Retained Business or any Excluded Asset.

Excluded Liabilities. Except for the Assumed Lap-Band Liabilities, ReShape Buyer shall not assume, and shall have no liability for, assume or become liable for any Liabilities (1) of Apollo Parent 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 its Subsidiaries (other than the Assumed Lap-Band Companies) or Sellers or (2) of the Companies for indebtedness for borrowed money (including factoring arrangements) or leases required to be capitalized in accordance with historical accounting methods (collectively, the “Excluded Liabilities”). Excluded Liabilities includinginclude, without limitation but are not limited to any and all Liabilities arising out of, resulting from related to, or attributable to: (A) All Claims and Liabilities, including Asbestos Claims, arising out of any allegations of injury, illness, exposure to Hazardous Substances or workers compensation Claims for Seller Employees, former Seller Employees, contractors of any Seller, visitors to any Seller Site or any other people with respect to any Seller Site, based on conditions existing or exposure occurring exclusively on or prior to the Closing and including any pending litigation relating to (collectivelyAsbestos Claims; provided, the “Excluded Apollo Liabilities”): (a) any and all Claims, regardless of when such Claim was first commenced or madehowever, that arose out of, relates to responsibility for any Claims 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 AssetsLiabilities based, in each case, on conditions allegedly existing or exposure allegedly occurring in part on or prior to Closing and in part after Closing shall be allocated between Sellers and Buyer in relative proportion to the Closingnumber of months said conditions or exposure allegedly occurred on or prior to Closing (which shall be allocated to Sellers) and the number of months said conditions or exposure allegedly occurred after Closing (which shall be allocated to Buyer); furthermore, the procedure for the conduct of all Claims and Liabilities described in this paragraph, including all such Claims relating cooperation between Buyer and Sellers, shall be governed by the Joint Defense Agreement. (By way of clarification, any of the foregoing with respect to warranty obligationsa Company Employee, marketing programsformer Company Employee, patient incentive programs and alleged intellectual property infringement; (b) contractor of any and all products liability Claims that arose out ofCompany, 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 visitor to any individual relating to such Apollo Lap-Band Product); (c) Company Site or any recalls (including after the Closing) mandated by any Governmental Body other person with respect to any Apollo LapCompany Site shall be an Assumed Liability.) The determination of when conditions allegedly existed or exposure allegedly occurred for purposes of allocating liability under this paragraph shall be based on the allegations of the claimant’s complaint or, if no lawsuit has yet been filed, the allegations of claimant’s settlement brochure, in which case the liability allocation will be re-Band Products manufactured determined if and when a lawsuit is filed based on the allegations of the complaint. Absent allegations in the claimant’s complaint or sold settlement brochure as to when conditions allegedly existed or exposure allegedly occurred, Buyer and Sellers agree to use records relating to the claimant’s employment on the premises of the subject plant, or if no such records exist for the claimant, then until the seventh anniversary of the Closing Date, liability shall be allocated 0% to Buyer and 100% to Sellers until an exposure period can be determined through discovery, at which time liability will be reallocated between Buyer and Sellers according to exposure as described above. After the seventh anniversary of the Closing Date, liability shall be allocated 100% to Buyer and 0% to Sellers until an exposure period can be determined through discovery at which time liability will be reallocated according to exposure as described above. If an exposure period cannot be determined through discovery, then liability shall be allocated between Buyer and Sellers based on the year the claimant first gave notice of his or her claim to either Buyer or Sellers, with Sellers bearing 100% of the liability for claims for which notice is first received prior to the Closing;seventh anniversary of the Closing Date, and Buyer bearing 100% of the liability for claims for which notice is first received on or after the seventh anniversary of the Closing Date. (dB) Any pension liabilities (except as provided on Schedule 6(b)) and any and all Claims for Apollo Lap-Band Products manufactured prior inventorship remuneration according 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 German law “Arbeitnehmererfindergesetz” for any taxable periodSeller Employees and former Seller Employees, or (ii) imposed with respect who are entitled to the Apollo Lap-Band Assets or the Apollo Lap-Band Business for any taxable period (or portion thereof) ending receive such remunerations, arising on or prior to the Closing Date; (gC) Any and all Liabilities relating to (i) indebtedness for money borrowed and other indebtedness evidenced by notes, debentures, bonds or other similar instruments (which shall include intercompany indebtedness); (ii) all obligations of Sellers under Contracts that are not specifically an Assumed Liability; (iii) all obligations of Sellers for the reimbursement of any Contractobligor on any letter of credit, other than an Apollo Lap-Band banker’s acceptance or similar credit transaction; (iv) all obligations of Sellers under interest rate or currency swap transactions (valued at the termination value thereof); (v) all obligations of the type referred to in clauses (i) through (iv) of Sellers for the payment of which Sellers are responsible or liable, directly or indirectly, as obligor, guarantor, surety or otherwise, including guarantees of such obligations. (D) Any and all Liabilities of Sellers relating to any pending or threatened litigation or claim (i) affecting the Purchased Assets or Business Contract and subject from any matter or state of facts existing prior to the limitations Closing Date whether or not disclosed; (ii) in respect of any product liability or warranty claim whenever made relating to products sold or services provided by Sellers prior to the Closing Date; (iii) in respect of any liabilities or claims asserted by any person or entity, whenever asserted, arising out of the sale of products or services (whether under a theory of contract, tort or other liability) by Sellers prior to the Closing Date; or (iv) in respect of any Excluded Asset (by way of clarification, any of the foregoing with respect to a Company or Company Site shall be an Assumed Liability). (E) Any and all Liabilities related to the Excluded Assets; (F) Any and all Liabilities relating to Taxes of Sellers, but excluding Taxes for which Buyer is liable pursuant to Section 6(e)(v) (such non-excluded Taxes, “Seller Taxes”); (G) Any and all Liabilities, contingent or otherwise, arising from or relating to the employment or termination of employment of any person with respect to the Business, including but not limited to any such obligations or liabilities arising from or relating to the Employee Benefit Plans or compensation of Employees, except as 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 boundSchedule 6(b); (hH) any current or former employee or contractor Any and all Liabilities related to Accounts Payable (as defined in Exhibit A hereto) of Apollothe Business arising prior to the Closing Date (as defined in Exhibit A) in the amount of (a) €27,600,000 with respect to the German Seller relating to the Business conducted at the Facilities, or any of its Affiliatesand (b) US$34,500,000 with respect to U.S. Seller relating to the Business conducted at the Facilities (collectively, the “Excluded Accounts Payable”); (iI) Any and all Apollo Accounts PayableLiabilities related to the Excluded Environmental Liabilities; (J) Any and all Liabilities of Sellers (other than any Liability for Taxes, which shall be governed exclusively by Section 6(e)) in any way associated with or related to the ownership by Sellers prior to Closing of the Acquired Share Interests and the Ancillary Shares, specifically including any unpaid accounts payable related Liabilities of German Seller under the Purchase and Assignment Agreement dated as of August 26, 2006 between OXENO Olefinchemeie GmbH and German Seller granting an option to any Apollo Lap-Band InventoryGerman Seller to purchase the Degussa Interest and the Joint Venture Agreement dated as of November 22, 2002 between Degussa and German Seller with respect to Eoxo; and (jK) all the specified Liabilities set forth listed on Schedule 1.42(c)(ii).

Excluded Liabilities. Except Notwithstanding anything to the contrary in this Agreement, Buyer shall not assume or be obligated to pay, perform or otherwise assume or discharge any liabilities or obligations of Seller or any of its Affiliates, whether direct or indirect, accrued or unaccrued, known or unknown, or absolute or contingent relating in all cases to any period prior to the Closing Date, except for the Assumed Lap-Band Liabilities (all of such liabilities and obligations not so assumed being referred to herein as the "Excluded Liabilities"), ReShape and, without limiting the generality of the foregoing, the following obligations and liabilities relating to the conduct of the MOS 17 Operations or the Purchased Assets shall not assume, be assumed by Buyer 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”):be retained by Seller: (a) any and all ClaimsSeller's liabilities or obligations for Taxes arising from, regardless of when such Claim was first commenced in connection with or made, that arose out of, relates relating to or results from the development, nonclinical and clinical testing, commercialization, manufacture, storage, packaging, import, marketing, labeling, pricing, distribution, sale or use conduct of the Apollo Lap-Band Product MOS 17 Operations or any the use or ownership 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 Purchased Assets or the Apollo Lap-Band Business for any taxable period (or portion thereof) ending on or prior to the Closing Date; (b) employee benefits or compensation arrangements, or claims, credits, damages, liabilities or obligations arising from, incurred in connection with or relating to any individual's employment with Seller for periods ending prior to the Closing Date and severance and termination payments resulting from the transactions contemplated by this Agreement that become payable to each employee in connection with consummation of the transactions contemplated by this Agreement; (c) liabilities or obligations of Seller relating to Excluded Assets; (d) liabilities or obligations of Seller with respect to Contracts that are not Assigned Contracts; (e) liabilities or obligations of Seller arising under the Transaction Agreements; (f) liabilities or obligations of Seller or its Affiliates arising under the Consignment Agreement, the Master Foundry Agreement, the Long Term Services Agreement, the Equity Agreements, the IP Agreements, the Guaranty, the Financial Statements Letter Agreement or the Funding Letter Agreement; (g) liabilities or obligations arising from, incurred in connection with or relating to any Contract, other than an Apollo Lap-Band Business Contract and subject litigation or arbitration involving the Purchased Assets or the conduct of the MOS17 Operations by Seller prior to the limitations set forth Closing Date, including the litigation referenced in Section 1.3, to which Apollo or any 3.5 of its Affiliates is a party or by which any Seller's Schedule of its properties or assets are otherwise boundExceptions; (h) any current liabilities, obligations or former employee proceedings arising under or contractor of Apollo, or any of its Affiliates; (i) all Apollo Accounts Payable, including any unpaid accounts payable related incurred in connection with the Assigned Contracts prior to any Apollo Lap-Band Inventorythe Closing Date; and (j) all Liabilities set forth on Schedule 1.4.

Excluded Liabilities. Except Notwithstanding any other provision of this Agreement, except for the Assumed Lap-Band LiabilitiesLiabilities expressly specified in Section 2.2, ReShape Purchaser shall not assume, and shall have no liability or otherwise be responsible for, any Liabilities of Apollo any Seller, whether liquidated or any Apollo Affiliate unliquidated, or known or unknown, whether arising out of any kindoccurrences prior to, character at or descriptionafter the date hereof (the "Excluded Liabilities"), it being understood that ReShape is expressly disclaiming any express or implied assumption of any which Excluded Liabilities other than the Assumed Lap-Band Liabilities includinginclude, without limitation all Liabilities arising out of, resulting from or relating to (collectivelylimitation, the “Excluded Apollo Liabilities”):following: (a) except as otherwise expressly provided in Section 7.6, any and all Claims, regardless of when such Claim was first commenced or made, that arose out of, relates Liability to or results from the developmentin respect of any employees or former employees of any Seller including without limitation (i) any employment agreement, nonclinical whether or not written, between any Seller and clinical testingany person, commercialization(ii) any Liability under any Employee Benefit Plan at any time maintained, manufacturecontributed to or required to be contributed to by or with respect to any Seller or under which any Seller may incur Liability, storage, packaging, import, marketing, labeling, pricing, distribution, sale or use of the Apollo Lap-Band Product or any contributions, benefits or Liabilities therefor, or any Liability with respect to any Seller's withdrawal or partial withdrawal from or termination of the Apollo Lap-Band Assetsany Employee Benefit Plan, in each case(iii) any claim of an unfair labor practice, or any claim under any state unemployment compensation or worker's compensation law or regulation or under any federal or state employment discrimination law or regulation, which shall have been asserted on or prior to the ClosingClosing Date or is based on acts or omissions which occurred on or prior to the Closing Date and (iv) any liabilities or obligations under the Worker Adjustment and Retraining Notification Act of 1988, as amended, including all such Claims relating to warranty obligations, marketing programs, patient incentive programs the rules and alleged intellectual property infringementregulations promulgated thereunder; (b) any and all products liability Claims that arose out ofLiability of any Seller in respect of (i) any income tax or any interest, relates penalties or additions pertaining thereto, (ii) any other Tax relating to any period or results from any Apollo Lap-Band Product sold portion thereof prior to the Closing date of the Interim Balance Sheet and not reflected on the Interim Balance Sheet or (including Claims alleging defects in such Apollo Lap-Band Product and Claims involving the death of or injury iii) any other Tax relating to any individual relating to period or portion thereof from the date of the Interim Balance Sheet unless such Apollo Lap-Band Product)Tax is incurred (A) in the ordinary course of business consistent with past practice and (B) in compliance with the terms of this Agreement; (c) any recalls (including after the Closing) mandated by warranty claims and any Governmental Body with respect Liability arising from any injury to or death of any Apollo Lap-Band Products person or damage to or destruction of any property, whether based on negligence, breach of warranty, express or implied representation, strict liability, enterprise liability or any other legal or equitable theory arising from defects in products manufactured or sold prior to the Closing; (d) from services performed by or on behalf of 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 Seller or any of its Affiliates for any taxable period, other person 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 entity on or prior to the Closing Date; (d) any Liability of any Seller arising out of or related to any Action against any Seller or any Action which adversely affects the Assets and which shall have been asserted on or prior to the Closing Date or the basis of which shall have arisen on or prior to the Closing Date; (e) any Liability of any Seller resulting from entering into, performing its obligations pursuant to or consummating the transactions contemplated by, this Agreement (including without limitation any Liability of any Seller for fees or expenses incurred in connection with such transactions and any Liability of any Seller pursuant to Article XI hereof); (f) any Liability related to any Former Facility or any of the Discontinued Operations; (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;Financing Obligation (h) any current Environmental Liabilities for Pre-Closing Matters, whether or former employee or contractor of Apollo, or any of its Affiliatesnot disclosed in the Disclosure Schedule; (i) all Apollo Accounts Payableany Liability of any Seller for fees or expenses incurred in connection with the review by ▇▇▇▇ & ▇▇▇ of the financial statements of Sellers; (j) any Liability of any Seller not directly related or incurred with respect to the conduct of the Business; (k) except to the extent provided for herein, including any unpaid accounts indebtedness for borrowed money; (l) any amounts payable related to any Apollo Lap-Band InventoryAffiliate of any Seller; (m) any cash overdraft liability; and (jn) all Liabilities set forth on Schedule 1.4any liabilities accruing prior to the Closing Date.

Excluded Liabilities. Except as expressly set forth in Section 2(d) or 2(f), the Buyer shall not assume or be responsible at any time for any Liability of the Assumed Lap-Band Seller, including, but not limited to, any Liabilities, ReShape obligations, debts, or commitments of the Seller arising out of any action taken by the Seller prior to, or incurred prior to, the Closing, or incident to, arising out of or incurred with respect to, this Agreement and the transactions contemplated hereby, and the Seller expressly acknowledges and agrees that the Seller shall retain, and that the Buyer shall not assumeassume or otherwise be obligated to pay, perform, defend, or discharge (for example and not by way of limitation) (i) any Liability of the Seller for Taxes other than Taxes expressly set forth in Section 2(f); (ii) any Liability of the Seller in connection with any Employee Benefit Plan; (iii) any Liability of the Seller or prior owner(s) of the Premises under any Environmental, Health, and shall have no Safety Laws related to or arising from ownership, use of, or operations at, the Premises through the Closing; (iv) any product liability forpertaining to products sold, leased, rented, or manufactured prior to the Closing; (v) any obligations to the Seller’s present or previous employees and all Liabilities relating to the Seller’s employment practices; (vi) any Liability for workers’ compensation or other claims related to incidents, injuries, illnesses, or property damage that occur prior to the Closing; (vii) except as set forth in Section 7(e), any Liabilities Liability, obligations or fiduciary duties associated with the Seller’s 401(k) plan; (x) any Liability or obligation associated with the Consulting Agreement by and between the Seller and ▇▇▇▇ ▇▇▇▇▇▇▇ dated February 4, 2003, (ix) the Seller’s reserve account with the State of Apollo California Employment Development Department; and (x) any Liability or any Apollo Affiliate of any kindobligation associated with stock options outstanding under the Seller’s 1994 Incentive Stock Option Plan, 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 as amended (collectively, the “Excluded Apollo Liabilities”): (a) any ). The Seller further agrees to satisfy and discharge as the same shall become due 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 Liabilities of the Apollo Lap-Band Product or any of Seller not specifically assumed by 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, including any unpaid accounts payable related to any Apollo Lap-Band Inventory; and (j) all Liabilities set forth on Schedule 1.4Buyer hereunder.

Excluded Liabilities. Except for the Assumed Lap-Band Liabilities, ReShape shall The Parties acknowledge and agree that Apollomics will not assume, and shall have no liability for, assume any Liabilities of Apollo Nuance or any Apollo Affiliate of any kindits Affiliates other than Assumed Liabilities, character or description, it being understood and that ReShape is expressly disclaiming any express or implied assumption Nuance and its Affiliates will remain responsible for all the Liabilities of any Liabilities Nuance and its Affiliates other than the Assumed Lap-Band Liabilities including(such liabilities, without limitation “Excluded Liabilities”). The assumption by Apollomics of any Assumed Liability will not enlarge the rights of any Third Party with respect to any Assumed Liability, nor will it prevent Apollomics, with respect to any Person other than Nuance and its Affiliates, from contesting or disputing in good faith any Assumed Liability. No assumption by Apollomics of any Assumed Liability will relieve or be deemed to relieve Nuance from any contractual obligation or Liability under this Agreement or any Ancillary Agreement with respect to any representations, warranties, covenants and agreements contained herein or therein. Excluded Liabilities will also include, and Apollomics will not assume as an Assumed Liability, the following Liabilities: (a) except as set forth in Section 2.4 (Sales and Transfer Taxes), all Liabilities for Taxes (i) of Nuance or (ii) 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 in respect of the Apollo LapAcquired Assets or the Assumed Liabilities for any Pre-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 infringementClosing Tax Period; (b) any Liability of Nuance or any of its Affiliates under this Agreement, any Ancillary Agreement, and all products liability Claims that arose any other agreement entered into by Nuance or its Affiliates in connection with the transactions contemplated by this Agreement, and any Liability of Nuance or any of its Affiliates for expenses and fees arising out ofof the negotiation, relates to preparation, approval, or results from any Apollo Lap-Band Product sold prior to authorization of this Agreement or the Closing consummation (or preparation for the consummation) of the transactions contemplated hereby (including Claims alleging defects in such Apollo Lap-Band Product all attorneys’ and Claims involving the death of or injury to any individual relating to such Apollo Lap-Band Productaccountants’ fees and brokerage fees (if any)); (c) any recalls Liability, obligation, or commitment of Nuance or any of its Affiliates, including Liabilities for (including i) product liability, (ii) liability for adverse reactions, liability for recalls, liability for product and packaging complaints, whether direct or as a result of successor liability, (iii) death or personal injury, or (iv) infringement or misappropriation; in each case ((i) - (iv)), arising prior to, on, or after the Closing) mandated by any Governmental Body with respect to any Apollo Lap-Band Products manufactured or sold prior Closing Date to the Closing;extent arising from any Exploitation of the Products by or on behalf of Nuance or any of its Affiliates; and (d) any and all Claims for Apollo Lap-Band Products manufactured liability, obligation, or commitment arising prior to, on, or after the Closing Date by reason of any violation or alleged violation of any Applicable Law to the Closing, including but not limited to product liability and infringement extent arising out of Intellectual Property whether or not sold prior to the Closing; (e) any Exploitation of the Excluded Apollo Assets; (f) Taxes (other than Transfer Taxes, which shall be governed solely Products by Section 2.8) (i) in respect or on behalf 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, Nuance or any of its Affiliates; (i) all Apollo Accounts Payable, including any unpaid accounts payable related to any Apollo Lap-Band Inventory; and (j) all Liabilities set forth on Schedule 1.4.

Excluded Liabilities. Except for the Assumed Lap-Band Liabilities, ReShape Under no circumstance shall not assumePurchasers assume or be obligated to pay, and none of the Purchased Assets shall have no liability forbe or become liable for or subject to, any Liabilities of Apollo or any Apollo Affiliate and all liabilities of any kind, character or description, it being understood that ReShape is expressly disclaiming any express or implied assumption of any Liabilities Seller other than the Assumed Lap-Band Liabilities Liabilities, whether known or unknown, fixed or contingent, recorded or unrecorded, and whether arising prior to or after Closing (the "Excluded Liabilities"), which shall be, become and remain liabilities and obligations of Sellers (subject to Section 14.2(a)(iii)), including, without limitation all Liabilities arising out of, resulting from or relating to (collectively, the “Excluded Apollo Liabilities”):limitation: (a) any and other than those included in Section 3.1 and/or Net Working Capital, all Claims, regardless of when such Claim was first commenced or made, that arose out of, relates to or results from liabilities accrued on 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 infringementClosing Balance Sheets; (b) any and all products liability Claims that arose out ofliabilities or obligations of Sellers, relates to the Subsidiary or results from any Apollo Lap-Band Product sold the Joint Venture for Taxes in respect of periods ending on or prior to the Closing (including Claims alleging defects in such Apollo Lap-Band Product and Claims involving Date or resulting from the death consummation of or injury to any individual relating to such Apollo Lap-Band Product)the transactions contemplated herein; (c) liabilities or obligations associated with any recalls (including after Excluded Assets and liabilities and obligations of the Closing) mandated by any Governmental Body Joint Venture arising prior to Closing or with respect to any Apollo Lap-Band Products manufactured or sold periods prior to the ClosingClosing Date; (d) liabilities or obligations associated with any and all Claims indebtedness of Sellers or the Subsidiary for Apollo Lap-Band Products manufactured prior to borrowed money, except the Closingindebtedness, including but not limited to product liability and infringement of Intellectual Property whether or not sold prior to the Closingif any, expressly described on Schedule 3.1.6; (e) liabilities or obligations accruing under any Assumed Contracts prior to the Closing Date or resulting from any breach or default prior to the Closing Date of the Excluded Apollo Assetsany Assumed Contracts or of other Assumed Liabilities, and liabilities arising out of any improper assignment to Purchasers at Closing of any Assumed Contracts and liabilities arising under any Contracts not Assumed Contracts; (f) Taxes (other than Transfer Taxes, which shall be governed solely by Section 2.8) (i) in respect liabilities or obligations arising out of or imposed in connection with Third Party Claims, litigation or proceedings currently pending or which arise on or after the Closing Date arising out of or based upon Apollo acts or any omissions of Sellers or its Affiliates for any taxable period, or (ii) imposed with respect which occurred prior to the Apollo Lap-Band Assets or Closing Date, including litigation and final actions relating to peer review activities at the Apollo Lap-Band Business for any taxable period (or portion thereof) ending on or Baptist Hospitals prior to the Closing Date; (g) any Contract, liabilities or obligations under the ▇▇▇▇-▇▇▇▇▇▇ Act or other than an Apollo Lap-Band Business Contract and subject to the limitations set forth in Section 1.3, to which Apollo restricted grant or any of its Affiliates is a party or by which any of its properties or assets are otherwise boundloan programs; (h) any current except to the extent included in Net Working Capital on the Closing Balance Sheets or former employee assumed by Purchasers with a Purchase Price credit pursuant to Section 4.2, and except for obligations under the Contracts specified in Schedule 11.5 as being assumed by Purchasers, liabilities or contractor of Apolloobligations to Sellers' employees, Employee Benefit Plans, the Internal Revenue Service, PBGC or any other Governmental Authority, arising from or relating to periods prior to Closing (whether or not triggered by the transactions contemplated by this Agreement), including liabilities or obligations arising under any Employee Benefit Plan, severance, bonus or incentive pay program or arrangement, EEOC claim, unfair labor practice, and wage and hour practice, and liabilities or obligations arising under the Worker Adjustment and Retraining Act, 29 U.S.C. 2101-2109, as a result of its Affiliatesacts of any Seller prior to Closing (except as provided in Section 12.1.2); (i) Cost Report settlement payables relating to all Apollo Accounts PayableCost Report periods ending on or before the Closing Date; (j) liabilities and obligations associated with the ownership, including any unpaid accounts payable related operation, management, control or bankruptcy of the PHO, whether such liabilities or obligations arise prior to any Apollo Lap-Band Inventoryor after Closing; and (jk) all Liabilities set forth on Schedule 1.4penalties, fines, settlements, interest, costs and expenses arising out of or incurred as a result of any Third Party Claim alleging a violation by any Seller of any Legal Requirement.

Excluded Liabilities. Except for the Assumed Lap-Band Liabilities, ReShape the Purchaser shall not assume, assume and shall be deemed not to have no liability for, assumed any Liabilities of Apollo the Sellers or any Apollo Affiliate the Business of any kindwhatever nature, character whether presently in existence or descriptionarising hereafter, it being understood that ReShape is expressly disclaiming any express known or implied assumption of any Liabilities other than the Assumed Lapunknown, disputed or undisputed, contingent or non-Band Liabilities contingent, liquidated or unliquidated or otherwise, including, without limitation all limitation, any of the Liabilities arising out of, resulting from or relating to set forth below (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 Liabilities of the Apollo Lap-Band Product or any of the Apollo Lap-Band Assets, in each case, prior Sellers with respect to the Closing, including all such Claims relating to warranty obligations, marketing programs, patient incentive programs and alleged intellectual property infringementExcluded Assets; (b) except as set forth in Sections 8.8, 8.10 and 11.1, all Liabilities of the Sellers for Taxes, including (i) any and all products liability Claims that arose out of, relates to Taxes arising as a result of Sellers’ operation of the Business or results from any Apollo Lap-Band Product sold ownership of the Purchased Assets prior to the Closing Date, (including Claims alleging defects in such Apollo Lap-Band Product ii) any Taxes that will arise as a result of the consummation of the Transactions, and Claims involving the death (iii) any deferred Taxes of or injury to any individual relating to such Apollo Lap-Band Product)nature; (c) all Liabilities under any recalls (including Excluded Executory Agreement or under any Assumed Executory Agreement which arises 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 Closing Date 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 is based on or relates to a breach of such Assumed Executory Agreement occurring prior to the Closing Date; (d) all Cure Costs related to the Assumed Executory Contracts (including, without limitation, unpaid Lease obligations for the month in which the Petition Date occurs); (e) all Liabilities to distribute to any of Sellers’ stockholders or otherwise apply all or any part of the Purchase Price, including any Tax withholding obligations of the Sellers in connection therewith; (f) all Liabilities under any employment, severance, retention, termination or other arrangement or agreement of the Sellers with any Employees; (g) any Contractall Liabilities under that certain Modified Key Employee Incentive Plan approved by the Bankruptcy Court on May 17, 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 bound2010; (h) all Liabilities arising on or before the Closing Date with regard to the employment by the Sellers of any current or former employee or contractor of Apollo, or any of its AffiliatesTransferred Employees; (i) all Apollo Accounts Payable, including any unpaid accounts payable Liabilities related to any Apollo LapLegal Proceeding existing as of or occurring prior to the Closing Date or other events, conduct or conditions existing as of or occurring prior to the Closing Date that constitute a violation or non-Band Inventorycompliance with any Law, any judgment, decree or order of any Governmental Body, or any Permit; and (j) all Liabilities set forth on Schedule 1.4of the Sellers arising under or related to this Agreement.

Excluded Liabilities. Except for the Assumed Lap-Band Liabilitiesthose liabilities expressly assumed -------------------- by Buyer pursuant to Section 2.3, ReShape Buyer shall not assumeassume and shall not be liable for, and Seller and its direct or indirect subsidiaries shall have no liability forretain and remain solely liable for and obligated to discharge, any Liabilities all of Apollo or any Apollo Affiliate the debts, contracts, agreements, commitments, obligations and other liabilities of any kindnature whatsoever of Seller and its direct and indirect subsidiaries, character whether known or descriptionunknown, it being understood that ReShape is expressly disclaiming any express accrued or implied assumption of any Liabilities other than the Assumed Lap-Band Liabilities includingnot accrued, fixed or contingent, including without limitation all Liabilities arising out of, resulting from or relating to (collectivelylimitation, the “Excluded Apollo Liabilities”):following: (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 Any liability for breaches by Seller 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 its respective direct or results from any Apollo Lap-Band Product sold indirect subsidiaries on or prior to the Closing (including Claims alleging defects in such Apollo Lap-Band Product and Claims involving the death Date 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 Assumed Contract or any of its Affiliates liability for payments or amounts due under any taxable periodAssumed Contract or any other instrument, contract 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 purchase order on or prior to the Closing Date; (gb) Obligations or liabilities under any ContractAssumed Contract for which a Required Consent has not been obtained as of the Closing; (c) Any liability or obligation for or in respect of any of the Excluded Assets, other than an Apollo Lap-Band Business including, without limitation, any Contract not included in the Assumed Contracts and subject any costs associated therewith; (d) Subject to the limitations set forth in Section 1.36.16 hereof, any liability or obligation for Taxes attributable to which Apollo or imposed upon Seller or any of its Affiliates is a party direct or indirect subsidiaries, or attributable to or imposed upon the Purchased Assets for any period (or portion thereof) through the Closing Date, including, without limitation, any Taxes attributable to or arising from the transactions contemplated by which this Agreement; (e) Any liability or obligation for or in respect of any loan, other indebtedness for money borrowed, or account payable of Seller or any of its properties direct or assets are otherwise boundindirect subsidiaries, including, without limitation, the Promissory Note and any liabilities owed to Affiliates of Seller; (f) Any liability or obligation arising as a result of any legal or equitable action or judicial or administrative proceeding initiated at any time, to the extent relating to any action or omission on or prior to the Closing Date by or on behalf of Seller or any of its direct or indirect subsidiaries, including, without limitation, any liability for infringement of intellectual property rights, breach of product warranty, injury or death caused by products, or violations of federal or state securities or other laws; (g) Any liability or obligation for making payments of any kind (including as a result of the sale of Purchased Assets or as a result of the termination of employment by Seller of employees, or other claims arising out of the terms and conditions of employment with Seller, or for vacation or severance pay or otherwise) to employees of Seller or in respect of payroll taxes for employees of Seller; (h) any current Any liability of Seller incurred in connection with the making or former employee or contractor performance of Apollo, or any of its Affiliatesthis Agreement and the transactions contemplated hereby; (i) all Apollo Accounts Payable, including Any liability of Seller arising out of the violation of or failure to comply with any unpaid accounts payable related Environmental Regulations (as hereinafter defined) by Seller prior to the Closing Date applicable to any Apollo Lap-Band Inventoryaspect of the Business; and (j) all Liabilities set forth on Schedule 1.4Any costs or expenses of Seller incurred in connection with shutting down, deinstalling and removing equipment not purchased by Buyer.

Excluded Liabilities. Except for Notwithstanding any other provision of this Agreement to the Assumed Lap-Band Liabilitiescontrary, ReShape shall the Buyer is not assumeassuming, and the Seller shall have no liability forpay, any Liabilities of Apollo perform, discharge or any Apollo Affiliate of any kindotherwise satisfy, 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 following liabilities and obligations (collectively, the “Excluded Apollo Liabilities”): (a) any and all Claims, regardless of when such Claim was first commenced Taxes arising from or made, that arose out of, relates with respect to the Transferred Assets or results from the development, nonclinical and clinical testing, commercialization, manufacture, storage, packaging, import, marketing, labeling, pricing, distribution, sale or use operation of the Apollo Lap-Band Product Systems that are incurred in or attributable to any period, or any portion of the Apollo Lap-Band Assetsany period, in each case, ending on or prior to the Closing, including all such Claims relating to warranty obligations, marketing programs, patient incentive programs and alleged intellectual property infringementClosing Time (except as otherwise provided in this Agreement); (b) any and all products liability Claims that arose out of, relates specifically retained by the Seller pursuant to Section 5.4 arising in respect of or results from any Apollo Lap-Band Product sold prior relating to the Closing (System Employees or any Employee Plan, 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)all liabilities for Retention Bonuses, if any; (c) any recalls liability or obligation accruing under the Contracts or otherwise out of the conduct or operation of the Systems or ownership or use of the Transferred Assets prior to the Closing Time unless and to the extent (1) assumed under Section 2.3 or (2) such liability or obligation is offset by an asset or any post-Closing income related thereto; (d) any indebtedness of the Seller for borrowed money or guarantees thereof outstanding as of the Closing Time; (e) any liability or obligation relating to an Excluded Asset (including any liability under any Excluded Contract (except for liabilities for Launch Fees or other advance promotional payments under any Programming Agreement)) or any other Excluded Liability; (f) any liability or obligation (whether known or unknown) arising under any Environmental Laws or relating to any Hazardous Substances, except to the extent the facts, events or circumstances underlying such liability or obligation is first created by the Buyer’s operation of the Systems or the Transferred Assets from and after the ClosingClosing or are attributable to facts, events or circumstances created or first occurring after the Closing and, notwithstanding anything to the contrary in this Agreement, irrespective of whether such liability or obligation attaches to the Seller, any System, or Buyer or any of their respective Affiliates in the first instance; (g) mandated all liabilities and obligations (A) relating to or arising under any “employee benefit plan” (as defined in Section 3(3) of ERISA) or any other benefit plan, program or arrangement (including any Employee Plan) at any time maintained, sponsored or contributed to by the Seller or any Governmental Body ERISA Affiliate, or with respect to which Seller or any Apollo Lap-Band Products manufactured ERISA Affiliate has any current or sold potential liability or obligation, or (B) pertaining to the employment by, or termination from employment with, the Seller or any ERISA Affiliate, of any individual (including any Transferred Employee), including any liability or obligation relating to payroll, workers’ compensation or unemployment benefits, other than any such liability or obligation expressly and to the extent included in Assumed Liabilities; (h) any liability arising out of or relating to any employee grievance that arises out of or relates to any event or occurrence prior to the Closing, whether or not the affected System Employees are hired by the Buyer; (i) any liability or obligation owing (i) by any System to the Seller or its Affiliates or Related Persons or (ii) by the Seller to any of its Affiliates or Related Persons; (j) any liability to distribute to any stockholders of the Seller, or otherwise apply, all or any part of the consideration received hereunder; (k) any liability arising out of any legal proceeding pending as of the Closing; (l) any liability arising out of any legal proceeding commenced after the Closing and arising out of or relating to any occurrence or event happening prior to the Closing; (dm) any and all Claims for Apollo Lap-Band Products manufactured liability arising out of or resulting from (A) compliance or noncompliance by the Seller or any System (during periods prior to Closing) with any Law or (B) any tort or act of infringement committed by the Closing, including but not limited to product liability and infringement of Intellectual Property whether Seller or not sold any System (during periods prior to the Closing); (en) any liability of the Excluded Apollo AssetsSeller under this Agreement or any other document executed in connection with the Transaction; (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; (go) any Contract, other than an Apollo Lap-Band Business Contract and subject to liability of the limitations set forth in Section 1.3, to which Apollo Seller based upon acts or any omissions 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, including any unpaid accounts payable related to any Apollo Lap-Band Inventorythe Seller occurring after the Closing; and (jp) all Liabilities set forth on Schedule 1.4any liability for fees, costs and expenses incurred by the Seller or any System in connection with the transactions contemplated by this Agreement and the Ancillary Agreement.

Excluded Liabilities. Except Notwithstanding anything to the contrary contained in this Agreement and regardless of whether such liability is disclosed herein or on any schedule hereto, Purchaser will not assume or be liable for any liabilities or obligations of Seller or the Assumed Lap-Band LiabilitiesStockholder not expressly assumed by Purchaser pursuant to Section 2.1(c) above, ReShape shall not assumewhether accrued, absolute or contingent, whether known or unknown, whether disclosed or undisclosed, whether due or to become due and whether related to the Acquired Assets or otherwise, and shall have no liability for, any Liabilities regardless 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 when asserted (collectively, the “"Excluded Apollo Liabilities”):"), including, without limitation, the following liabilities and obligations of Seller or the Stockholder: (a) liabilities or obligations for any and all Claimscontracts, regardless of when such Claim was first commenced agreements, leases or madeother arrangements, that arose out ofaccounts payable, relates accrued liabilities or other short-term liabilities (other than liabilities under the Assumed Contracts 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 extent set forth in Section 2.1(c) hereof) 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 infringementundisclosed or contingent liabilities; (b) any and all products liability Claims that arose out of, relates to liabilities 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 obligations with respect to any Apollo Lap-Band Products manufactured or sold prior all Taxes, including all Taxes of Seller relating 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 ownership or not sold prior to the Closing; (e) any operation 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 Business and/or the Apollo Lap-Band Acquired Assets or the Apollo Lap-Band Business for any taxable period (or portion thereof) ending on or prior to the Closing Dateand all Taxes arising out of or relating to any of the transactions contemplated hereby; (gc) any Contract, other than an Apollo Lap-Band Business Contract liabilities or obligations of Seller or the Stockholder for costs and subject to expenses incurred in connection with this Agreement and the limitations set forth in Section 1.3, to which Apollo consummation of the transactions contemplated hereby (including liabilities or any of its Affiliates is a party or by which any of its properties or assets are otherwise boundobligations under this Agreement and the agreements contemplated hereunder); (hd) any current liabilities or former employee obligations arising out of or contractor of Apollo, or any of its Affiliatesrelating to the Excluded Assets; (i) all Apollo Accounts Payable, including any unpaid accounts payable related to any Apollo Lap-Band Inventory; and (j) all Liabilities set forth on Schedule 1.4.

Excluded Liabilities. Except for Notwithstanding anything in this Agreement to the Assumed Lap-Band Liabilitiescontrary, ReShape Purchaser shall not assume, and shall be deemed not to have no liability forassumed, any Liabilities relating to the Business of Apollo Sellers or any Apollo Affiliate of any kindSellers and Sellers and their Affiliates shall be solely and exclusively liable with respect to all such Liabilities, 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”):"), including without limitation, those Liabilities set forth as follows: (a) any and all Claims, regardless Liability of when such Claim was first commenced or made, that arose out of, relates any Seller relating primarily 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 infringementExcluded Asset; (b) all Liabilities under Indebtedness for borrowed money of Sellers (including any and all products liability Claims that arose out of, relates to Indebtedness or results accounts payable owing 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 Seller to any individual relating to Affiliate of such Apollo Lap-Band ProductSeller); (c) any recalls (including after all Tax Liabilities of Sellers, the Closing) mandated by any Governmental Body with respect to any Apollo Lap-Band Products manufactured or sold Purchased Joint Ventures and the Purchased Subsidiaries arising prior to or on the ClosingClosing Date, and any Tax Liabilities of Sellers, Purchased Joint Ventures or Purchased Subsidiaries arising from the transactions contemplated by this Agreement, other than the Tax Amount; (d) any and all Claims for Apollo Lap-Band Products manufactured prior Liabilities of Sellers relating primarily to the Closing, including but employees of Sellers that are not limited to product liability and infringement of Intellectual Property whether or not sold prior to the ClosingTransferred Employees ("Excluded Employees"); (e) except as set forth in Sections 2.3(f), 2.3(g) and 2.3(l), all Liabilities of Sellers arising out of, relating to or with respect to (1) the employment or performance of services, or termination of employment or services by any Seller of any employee, or independent contractor on or before the Excluded Apollo Assets;close of business on the Closing Date, (2) employment or labor Actions accruing either directly or indirectly against Seller that relate to the period on or before the close of business on the Closing Date, irrespective of whether such claims are made prior to or after the Closing and (3) all Liabilities (including, without limitation, all Liabilities to the PBGC, IRS or Department of Labor) with respect to any Benefit Plan that is not a Transferred Benefit Plan. (f) Taxes all Rejection Damages Claims; (other than Transfer Taxesg) any and all customer claims against Sellers, which shall be governed solely whether known or unknown, including product warranties and any Actions related to product liability claims relating to, resulting from, caused by Section 2.8) (i) in respect or arising out of ownership, operation or control of the Business, to the extent accruing, arising out of or imposed upon Apollo relating to events, occurrences, acts or any of its Affiliates for any taxable period, omissions occurring 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 existing prior to the Closing Date; (gh) any Contract, other than an Apollo Lap-Band Business Contract and subject to the limitations except as set forth in Section 1.32.3(h), all Environmental Liabilities relating to, resulting from, caused by or arising out of ownership, operation or control of the Business, to which Apollo the extent accruing, arising out of or any of its Affiliates is a party relating to events, occurrences, acts or by which any of its properties omissions occurring or assets are otherwise bound; (h) any current or former employee or contractor of Apollo, or any of its Affiliatesexisting prior to the Closing Date; (i) all Apollo Accounts PayableActions against each Seller, including any unpaid accounts payable related to of their respective assets, the Business and any Apollo Lap-Band Inventory; andof their past or present operations or activities; (j) all Indemnification Claims; and (k) those other Liabilities set forth on Schedule 1.4in Section 2.4(k) of the Seller Disclosure Schedule.

Excluded Liabilities. Except for Notwithstanding anything to the contrary set forth herein, the Assumed Lap-Band Liabilities, ReShape Liabilities shall not assumeinclude, and shall have no liability forneither Buyer nor its assignees will assume from any Seller, 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”): ) relating to, arising out of or resulting from: (a) any Excluded Asset, (b) Indebtedness of ARC or any of its Subsidiaries (including any Acquired Company), excluding Indebtedness incurred by Buyer or its Subsidiaries after the Closing and all Claimsexcluding Assumed Indebtedness, but including (x) any Liability for defaults or breaches of material covenants (including any defaults in respect of payment of principal or interest when due) occurring prior to the Closing in respect of Indebtedness and (y) Indebtedness related to the Aircraft, (c) any Equity Interest in ARC or its Subsidiaries (other than the Acquired Interests), including Liabilities with respect to dividends or other distributions, Liabilities with respect to any stockholders agreement, registration rights agreement, voting trust or other Contract relating to such Equity Interests, Liabilities with respect to any option, warrant, exchangeable security or other right to acquire Equity Interests, Liabilities of ARC or its Subsidiaries under applicable securities or corporate Laws, and Liabilities arising from the decision of the Board of Directors of ARC to approve this Agreement and the transactions contemplated hereby (including any Liability for breach of duty), (d) Excluded Taxes, (e) except as otherwise provided under Section 5.7, (i) any existing Seller Plan, (ii) any former Seller Plan which has been terminated or frozen (iii) ERISA Affiliate Liability, (iv) any collective bargaining agreement, to the extent relating to periods prior to the Closing (regardless of when such Claim was first commenced Liability accrues or madebecomes known), that arose out of, relates to (v) the employment or results from the development, nonclinical and clinical testing, commercialization, manufacture, storage, packaging, import, marketing, labeling, pricing, distribution, sale termination of employment of any current or use of the Apollo Lap-Band Product or any of the Apollo Lap-Band Assets, in each case, former Company Employee during periods prior to the Closing, including all such Claims relating to warranty obligations, marketing programs, patient incentive programs and alleged intellectual property infringement; (bvi) the employment practices of the Sellers or any and all products liability Claims that arose out of, relates to of their Affiliates or results from compliance with or violations of 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 Labor Laws prior to the Closing, including but not limited to product liability and infringement of Intellectual Property whether or not sold prior in each case to the Closing; extent relating to employment discrimination, (evii) any of the Excluded Apollo Assets; Severance Agreement by and among ARC, ARC Management Services and ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ dated February 18, 2004, and (viii) the Severance Agreement by and among ARC, ARC Management Services and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ dated February 18, 2004, (f) Taxes (other than Transfer Taxes, which shall be governed solely by Section 2.8) (i) in respect Liabilities of or imposed upon Apollo the Sellers under this Agreement or any of its Affiliates for any taxable periodother Transaction Document, 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 ContractLiability for which the Buyer Indemnified Parties are indemnified pursuant to Article IX, other than an Apollo Lap-Band Business Contract and subject to the limitations set forth in Section 1.3extent so indemnified, 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 the Retained Business or former employee or contractor of Apollo, or any of its Affiliates; (i) all Apollo Accounts Payableacts or omissions of ARC or its Subsidiaries (excluding the Acquired Companies) after the Effective Time. Prior to the Closing, including any unpaid accounts payable related to any Apollo Lap-Band Inventory; and ARC shall assume, pay, discharge and perform (jor, without limiting the obligations of the Sellers under Article IX, ARC’s designated Affiliate shall assume, pay, discharge and perform) all Excluded Liabilities set forth on Schedule 1.4of the Acquired Companies.

Excluded Liabilities. Except for the Assumed Lap-Band Liabilities, ReShape Buyers shall not assume and under no circumstances shall Buyers be obligated to pay or assume, and none of the assets of Buyers shall have no liability forbe or become liable for or subject to any liability, any Liabilities indebtedness, commitment, or obligation of Apollo Sellers or any Apollo Affiliate of any kindtheir Affiliates, character or descriptionwith respect to the Facilities, it being understood that ReShape is expressly disclaiming any express whether known or implied assumption of any Liabilities other than the Assumed Lap-Band Liabilities includingunknown, without limitation all Liabilities fixed or contingent, recorded or unrecorded, currently existing or hereafter arising out of, resulting from or relating to otherwise (collectively, the “Excluded Apollo Liabilities”):), including, without limitation, the following Excluded Liabilities: (a) any debt, obligation, expense or liability that is not an Assumed Liability (including but not limited to accounts payable, accrued salaries 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 infringementaccrued liabilities); (b) any liability or obligation arising out of or in connection with the Assets and/or ownership and all products liability Claims that arose out of, relates to or results from any Apollo Lap-Band Product sold operation of the Facilities prior to the Closing (Effective Time, including Claims alleging defects in such Apollo Lap-Band Product and Claims involving the death of without limitation claims or injury to any individual potential claims for medical malpractice or general liability relating to such Apollo Lap-Band Product)acts, events or omissions asserted to have existed or occurred prior to the Effective Time; (c) any recalls those claims and obligations (including after the Closingif any) mandated by any Governmental Body with respect to any Apollo Lap-Band Products manufactured or sold prior to the Closingspecified in Schedule 1.4 hereto; (d) all litigation, claims, actions, proceedings, liabilities and obligations relating to, in connection with or arising out of matters described or referred to (or required to be described or referred to) on Schedule 3.13; (e) any liabilities or obligations associated with or arising out of any of the Excluded Assets; (f) liabilities and obligations of Sellers or their Affiliates (with respect to the Facilities or Assets) in respect of periods prior to the Effective Time arising under the terms of the Medicare, Medicaid, CHAMPUS/TRICARE, BlueCross, or other third party payor programs, including, without limitation, in respect of third party payors pursuant to retrospective settlements (including, without limitation, pursuant to Medicare, Medicaid and CHAMPUS/TRICARE cost reports filed or to be filed by Sellers for periods prior to the Effective Time, RAC appeals, ACOs, CINs, CJR, and all liabilities and obligations for periods prior to the Effective Time related to all Medicaid payments and programs, including, but not limited to (i) settlements or adjustments to prior Medicaid payments resulting from the State’s audit or other recalculation of Medicaid payments for services rendered prior to the Effective Time, (ii) DSH, (iii) LIP, and (iv) DPP), and all appeals and appeal rights of Sellers relating to such settlements, any audit under the Medicare RAC program or any noncompliance with applicable law or contractual obligations related to the billing or collection of services, any ACOs, CINs, CJR, and any liability arising pursuant to the Medicare, Medicaid, CHAMPUS/TRICARE, Blue Cross, or any other third party payor programs as a result of the consummation of any of the transactions contemplated under this Agreement; (g) federal, state or local Tax liabilities or obligations of Sellers or their Affiliates in respect of periods prior to the Effective Time or resulting from the consummation of the transactions contemplated herein including, without limitation, (1) any income tax, any franchise tax, any tax recapture, any sales and/or use tax, and any FICA, FUTA, workers’ compensation, and (2) any and all Claims other taxes or amounts due and payable as a result of the exercise by the employees at the Facilities that are hired by ▇▇▇▇▇▇ following Closing of such employees’ right to vacation, sick leave, and holiday benefits accrued while in the employ of Sellers (provided, however, that this clause (g)(2) shall not apply to any and all such taxes payable with respect to any employee benefits constituting Assumed Liabilities); (h) liability for Apollo Lap-Band Products manufactured any and all claims by or on behalf of employees, independent contractors, directors, officers, managers or other persons of Sellers, their Affiliates (with respect to the Facilities or Assets) or the Facilities relating to periods prior to the ClosingEffective Time including, without limitation, liability for any compensation-related payments, pension, profit sharing, deferred compensation, equity or equity-related compensation, incentive compensation, fringe benefit, tuition reimbursement, severance, termination pay, change in control or retention payments, bonuses or any other employee benefit plan of whatever kind or nature or any employee health and welfare benefit plans, liability for any unemployment compensation claim, or workers’ compensation claim, and any liabilities or obligations to former employees of Sellers, their Affiliates (with respect to the Facilities) or the Facilities under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), (provided, however, that this clause (h) shall not apply to any and all employee accrued vacation and holiday benefits constituting Assumed Liabilities under Section 1.3(c) hereof); (i) any obligation or liability accruing, arising out of, or relating to any federal, state or local investigations of, or claims or actions against, Sellers or any of their Affiliates (with respect to the Facilities or Assets) or any of their employees, medical staff, agents, vendors or representatives with respect to acts, events, circumstances or omissions prior to the Effective Time; (j) any civil or criminal obligation or liability accruing, arising out of, or relating to any acts or omissions of Sellers, their Affiliates or, to the extent related to their services to Sellers or their Affiliates or to the Facilities, their directors, officers, employees and agents, claimed to violate or not comply with any constitutional provision, statute, ordinance or other law, rule, regulation or order, consent decree, continuing disclosure agreement, license, permit or other agreement of or with any Government Entity; (k) liabilities or obligations arising out of any breach, non-compliance or default by Sellers or their Affiliates under any Contract prior to the Effective Time; (l) liabilities or obligations arising (whether as a result of any breach, non-compliance or default by Sellers or their Affiliates, or otherwise) at any time under any contract or commitment that is not expressly assumed by Buyers in this Agreement; (m) any debt, obligation, expense, or liability of Sellers arising out of or incurred as a result of any transaction, act or omission of Sellers or their Affiliates (with respect to the Facilities) occurring after the Effective Time; (n) any liability or obligation of Sellers and their Affiliates (with respect to the Facilities or Assets) relating to any violation or non-compliance with federal, state, foreign or other laws, rules, regulations, orders or decrees regulating fraud, including but not limited to product liability those described on any disclosure schedule (including, for example, Schedule 3.8, Schedule 3.10, Schedule 3.14, Schedule 3.16) and infringement of Intellectual Property whether or not sold prior to the Closing; federal Anti-Kickback Law (e42 U.S.C. § 1320(a)-7(b) any of the Excluded Apollo Assets; (f) Taxes (other than Transfer Taxes, which shall be governed solely by Section 2.8et seq.) (ithe “Anti-Kickback Law”), the Ethics in Patient Referrals Act (42 U.S.C. § 1395nn et seq.) in respect of or imposed upon Apollo or any of its Affiliates for any taxable period(the “▇▇▇▇▇ Law”), or and the False Claims Act (ii31 U.S.C. § 3729 et seq.) 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, including any unpaid accounts payable related to any Apollo Lap-Band Inventory“False Claims Act”); and (jo) all Liabilities set forth liabilities and obligations relating to any oral agreements, oral contracts or oral understandings with any referral sources including, but not limited to, physicians, unless reduced to writing, identified on Schedule 1.41.1(g) hereto, and expressly assumed as part of the Contracts.

Excluded Liabilities. Except for Notwithstanding anything to the Assumed Lap-Band Liabilitiescontrary in this Agreement, ReShape Purchasers shall not assumeassume or in any way be responsible for, and Sellers shall have no liability forremain obligated to pay, any honor, perform and discharge, all of the 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 Sellers (other than the Assumed Lap-Band Liabilities including, without limitation all Liabilities arising out of, resulting from or relating to Liabilities) (collectively, the “Excluded Apollo Liabilities”): ), including, without limitation: (a) any and all ClaimsLiabilities arising out of or relating to each Seller’s ownership, regardless of when such Claim was first commenced use 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 operation of the Apollo Lap-Band Product or any of Business and the Apollo Lap-Band Purchased Assets, in each case, case prior to the Closing, including all such Claims relating to warranty obligations, marketing programs, patient incentive programs and alleged intellectual property infringement; arising by operation of law under any common law or statutory doctrine (other than the Assumed Liabilities); (b) any and all products liability Claims that arose out ofLiabilities based upon, relates to relating to, arising under or results from any Apollo Lap-Band Product sold prior with respect to the Closing (including Claims alleging defects in such Apollo Lap-Band Product and Claims involving Excluded Assets or the death ownership, operation or use of any businesses of Sellers or injury to any individual relating to such Apollo Lap-Band Product); of their Affiliates, other than the Business, whether before, at or after the Closing; (c) any recalls all payables and Indebtedness of Sellers (including after the Closing) mandated by any Governmental Body with respect to any Apollo Lap-Band Products manufactured or sold prior except to the Closing; extent taken into account in the calculation of the Post-Closing Adjustment Amount); (d) any and all Claims for Apollo Lap-Band Products manufactured Liabilities directly or indirectly arising out of or related to any breach of Contract by any Seller occurring or existing prior to the Closing, including but not limited to product liability and infringement of Intellectual Property whether or not sold prior to the Closing; Closing; (e) any Liabilities or obligations for (i) Taxes relating to the Business, the Purchased Assets or the Assumed Liabilities for any Pre-Closing Tax Period, (ii) Taxes relating to the Business, the Purchased Assets or the Assumed Liabilities for the portion of any Straddle Period ending on and including the Closing Date, (iii) any other Taxes of Sellers or any of their equity holders or Affiliates, including Taxes that arise as a result of the Excluded Apollo Assets; sale of the Business or the Purchased Assets pursuant to this Agreement, and (iv) any Successor Taxes; (f) Taxes (other than Transfer Taxesany Liabilities of Sellers based upon, which shall be governed solely by Section 2.8) relating to, or arising under or with respect to: (i) in respect of or imposed upon Apollo or any of its Affiliates for any taxable periodSeller Benefit Plan, or (ii) imposed with respect the employment or termination of employment or service: (x) of any employee of any Seller employed by Purchasers following the Closing which relate to the Apollo Lap-Band Assets or the Apollo Lap-Band Business for any taxable period (or portion thereof) ending events occurring on or prior to the Closing Date; and (gy) of any current or former employee, consultant, independent contractor, leased employee or other agent of any Seller who is not employed by Purchasers following the Closing, and (iii) workers’ compensation claims, unemployment insurance premiums or any claims arising under any federal, state or local tax withholding, employment, labor or discrimination Laws of (x) any Contract, other than an Apollo Lap-Band Business Contract and subject employee employed by Purchasers following the Closing which relate to events occurring on or prior 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; Closing and (hy) any current or former employee, consultant, independent contractor, leased employee or contractor other agent of Apolloany Seller who is not employed by Purchasers following the Closing which relate to events occurring at any time; (g) any Liability based upon, arising under or with respect to any Environmental Law, including any Liability of its Affiliates; Sellers in any way pertaining to or arising from the acts, omissions or strict liability of any predecessor of Sellers and any obligation or Liability for any Remedial Action arising out of or related to any condition or occurrence in existence prior to the Closing; (h) any Liability based upon, arising under or with respect to any matter disclosed or required to be disclosed in Schedule 5.16; and (i) all Apollo Accounts Payable, including any unpaid accounts payable related Liabilities of any Seller with respect to any Apollo Lap-Band Inventory; and (j) all Liabilities set forth on Schedule 1.4COVID-19 Assistance received by Seller.

Excluded Liabilities. Except for the Assumed Lap-Band Liabilities, ReShape Purchaser shall not assumeassume or be obligated to pay, and shall have no liability for, perform or otherwise discharge any Liabilities liabilities or obligations 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 Seller other than the Assumed Lap-Band Liabilities. All obligations and liabilities of Seller other than the Assumed Liabilities includingare referred to herein as the “Excluded Liabilities”, all of which Excluded Liabilities shall remain the sole responsibility of Seller. The Excluded Liabilities include, without limitation limitation, the following: (a) Any liabilities or obligations of Seller in respect of any Excluded Assets or other assets which are not Assets and Seller’s ownership, operation and conduct of any business in connection therewith or therefrom; (b) Except as otherwise specifically set forth in Section 2.3(a), all Liabilities liabilities or obligations arising out prior to the Closing Date under any of the agreements, contracts, undertakings and licenses assumed by Purchaser under this Agreement, including the Facilities Contracts and the Transferable Permits; (c) Any fines, penalties or costs (other than Taxes), including costs for environmental mitigation projects, imposed by a Governmental Authority with respect to the Assets resulting from (i) an investigation, proceeding, request for information or inspection before or by a Governmental Authority, but only relating to actions or omissions or conditions existing prior to the Closing Date (and only for the period prior to the Closing Date and not to the extent continuing past the Closing Date); or (ii) violations of applicable Law or illegal acts committed by Seller; (d) Seller’s share of the costs of removal of, resulting from or relating to conduct or perform Remediation of any Environmental Conditions or Hazardous Substances at the Landfill if the Facilities Owners are required to remove such Landfill or to conduct or perform Remediation of any Environmental Conditions or Hazardous Substances at the Landfill under Laws, the Facilities Lease or the § 323 Grants (collectively, the “Excluded Apollo LiabilitiesLandfill Obligations”): (a) any and all Claims), regardless of when such Claim was first commenced or madeexcept for the portion thereof, that arose out ofif any, 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, described 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 ProductSection 2.3(d); (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) All Pre-Closing Environmental Liabilities, excluding any of the Excluded Apollo AssetsPre-Closing Environmental Liabilities assumed by Purchaser in Sections 2.3(c), 2.3(d), 2.3(e) and 2.3(f); (f) Taxes (other than Transfer Taxes, which shall be governed solely by Section 2.8) (i) in respect Seller’s share 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 DateRetroactive Liability; (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 liability of Seller arising out of a breach by Seller of any of its Affiliates is a party obligations under this Agreement or by which any of its properties or assets are otherwise boundthe Ancillary Agreements; (h) Any obligation of Seller to indemnify any current or former employee or contractor Person who is a member of Apollo, or any of its Affiliatesthe Purchaser Group pursuant to Article 7; (i) all Apollo Accounts PayableAny liabilities or obligations in respect of Seller’s share of the items prorated in Section 3.6(a); (j) Taxes attributable to the ownership, operation or use of the Assets before the Closing Date (except for Taxes for which Purchaser is liable pursuant to Section 3.6, including Purchaser’s Income Taxes) and any unpaid accounts payable related to any Apollo Lap-Band InventoryTaxes for which Seller is liable under Section 6.3; and (jk) all Liabilities set forth on Schedule 1.4All other liabilities expressly allocated to Seller in this Agreement.

Excluded Liabilities. Except Neither Buyer nor any Buyer Designee shall assume or be obligated to pay, perform or otherwise assume or discharge any liabilities or obligations of Seller or any Affiliate of Seller, whether direct or indirect, known or unknown, absolute or contingent, except for the Assumed Lap-Band Liabilities, ReShape shall Liabilities (all of such liabilities and obligations not assume, and shall have no liability for, any Liabilities of Apollo or any Apollo Affiliate of any kind, character or description, it so assumed 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 referred to (collectively, herein as the “Excluded Apollo Liabilities”):) and Seller shall pay, perform and discharge all such Excluded Liabilities. For the avoidance of doubt, the parties agree that the Excluded Liabilities include, but are not limited to, any and all liabilities or obligations set forth or described in paragraphs (a) through (g) below, whether or not any such liability or obligation has a value for accounting purposes or is carried or reflected on or specifically referred to in Seller’s financial statements: (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 infringementExcluded Taxes; (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)Environmental Liabilities; (c) any recalls (including after the Closing) mandated by any Governmental Body with respect and all liabilities or obligations arising out of or related to any Apollo Lap-Band Products manufactured or sold prior to the ClosingExcluded Asset; (d) any and all Claims for Apollo Lap-Band Products manufactured prior liabilities or obligations relating to or in connection with (i) the Closingemployment and any termination of such employment by Seller of any employee or former employee of Seller on or before the Closing Date; and/or (ii) any employee’s or former employee’s or his/her dependents’ rights or obligations under any fringe benefit of employment with Seller, including but not limited to product liability and infringement any Benefit Plan of Intellectual Property whether Seller or not sold prior to the Closingan Affiliate of Seller; (e) any of the Excluded Apollo Assets; (f) Taxes (other than Transfer Taxes, which shall be governed solely by Section 2.8) (i) and all liabilities or obligations in respect of or imposed upon Apollo or any of its Affiliates for any taxable periodconnection with, or (ii) imposed with respect to the Apollo Lap-Band Assets relating to, any actions, suits, claims or the Apollo Lap-Band Business for any taxable period (proceedings against Seller which arise or portion thereof) ending accrue on or prior to before the Closing Date; (gf) any Contract, other than an Apollo Lap-Band Business Contract and subject benefit liabilities relating to or arising in connection with Section 4980B of the limitations set forth in Section 1.3, Code (COBRA) to which Apollo or any provide continuation of its Affiliates is a party or by which any of its properties or assets are otherwise bound; (h) any current health care coverage to employees or former employee employees of Seller or contractor of Apollo, their dependents arising from a qualifying event occurring on or any of its Affiliates; (i) all Apollo Accounts Payable, including any unpaid accounts payable related to any Apollo Lap-Band Inventorybefore the Closing Date; and (jg) all Liabilities set forth on Schedule 1.4any liabilities of the Benefit Plans.

Excluded Liabilities. Except for Notwithstanding anything to the Assumed Lap-Band Liabilitiescontrary in this Agreement, ReShape the Purchasers shall not assumeassume or in any way be responsible for, and the Sellers shall have no liability forremain obligated to pay, any honor, perform and discharge, all of the respective 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 the Sellers (other than the Assumed Lap-Band Liabilities including, without limitation all Liabilities arising out of, resulting from or relating to Liabilities) (collectively, the “Excluded Apollo Liabilities”):), including, without limitation: (a) any Liabilities arising out of or relating to any Seller’s ownership, use or operation of any Business 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 Purchased Assets, in each case, case prior to the Closing, including all such Claims relating to warranty obligations, marketing programs, patient incentive programs and alleged intellectual property infringementClosing arising by operation of law under any common law or statutory doctrine (other than the Assumed Liabilities); (b) any and all products liability Claims that arose out ofLiabilities based upon, relates to relating to, arising under or results from any Apollo Lap-Band Product sold prior with respect to the Closing (including Claims alleging defects in such Apollo Lap-Band Product and Claims involving Excluded Assets or the death ownership, operation or use of any businesses of any Seller or injury to any individual relating to such Apollo Lap-Band Product)of its Affiliates, other than the Businesses, whether before, at or after the Closing; (c) all payables and indebtedness of 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 ClosingSeller; (d) any and all Claims for Apollo Lap-Band Products manufactured prior Liabilities directly or indirectly arising out of or related to the Closing, including but not limited to product liability and infringement any breach of Intellectual Property whether Contract occurring or not sold existing prior to the Closing; (e) any liabilities or obligations for (i) Taxes relating to the Businesses, the Purchased Assets or the Assumed Liabilities for the Pre-Closing Tax Period, (ii) Taxes relating to the Businesses, the Purchased Assets or the Assumed Liabilities for the portion of any Straddle Period ending on and including the Excluded Apollo AssetsClosing Date and (iii) any other Taxes of any Seller or any of its equity holders or Affiliates relating to any Business; (f) Taxes (other than Transfer Taxesany Liabilities of any Seller based upon, which shall be governed solely by Section 2.8) relating to, or arising under or with respect to (i) in respect of or imposed upon Apollo or any of its Affiliates for any taxable periodSeller Benefit Plan, or (ii) imposed the employment or termination of employment of (x) any employee of any Seller employed by the Purchasers following the Closing with respect to the Apollo Lap-Band Assets or the Apollo Lap-Band Business for any taxable period (or portion thereof) ending periods on or prior to the Closing Dateand (y) any current or former employee, consultant, independent contractor, leased employee or other agent who is not employed by the Purchasers following the Closing at any time, and (iii) workers’ compensation claims, unemployment insurance premiums or any claims arising under any federal, state or local tax withholding, employment, labor or discrimination Laws of (x) any employee employed by the Purchasers following the Closing which relate to events occurring on or prior to the Closing and (y) any current or former employee, consultant, independent contractor, leased employee or other agent who is not employed by the Purchasers following the Closing which relate to events occurring at any time; (g) any ContractLiability based upon, other than an Apollo Lap-Band Business Contract and subject arising under or with respect to any Environmental Law, including any Liability of any Seller in any way pertaining to or arising from the limitations set forth in Section 1.3acts, to which Apollo omissions or strict liability of any predecessor of its Affiliates is a party or by which any of its properties or assets are otherwise boundSeller; (h) any current Liability based upon, arising under or former employee with respect to any matter disclosed or contractor of Apollo, or any of its Affiliates;required to be disclosed in Schedule 5.16 (Legal Proceedings); and (i) all Apollo Accounts Payableany Liability based upon, including any unpaid accounts payable related arising under or with respect to any Apollo Lap-Band Inventory; and (j) all Liabilities set forth on Schedule 1.4warranty given or sold by any Seller, regardless of whether any warranty claim has been made to date.

Excluded Liabilities. Except for Notwithstanding any other provision of this Agreement or any other writing to the Assumed Lap-Band Liabilities, ReShape shall not assumecontrary, and shall have regardless of any information disclosed to Mesa or any of its Affiliates or representatives, Mesa does not assume and has no liability for, responsibility 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 BGI (the “Excluded Liabilities”) other than the Assumed Lap-Band Liabilities including, without limitation all Liabilities arising out of, resulting from or relating to (collectivelyspecifically listed in Section 2.3. Without limiting the preceding sentence, the “following is a non-exhaustive list of Excluded Apollo Liabilities”):Liabilities that Mesa does not assume and that BGI will remain bound by and liable for, and will pay, perform and discharge when due: (a) any and all Claims, regardless of when such Claim was first commenced or made, that arose out of, relates Liabilities related to or results from the development, nonclinical and clinical testing, commercialization, manufacture, storage, packaging, import, marketing, labeling, pricing, distribution, sale or use employment 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 Hired Employees prior to the Closing; (b) all Liabilities arising out of or relating to any Excluded Asset; (c) all Liabilities under any contract that is not an Included Contract, including any Liability arising out of or relating to any BGI credit facilities or any security interest related thereto; (d) any and all Claims Liabilities arising out of or relating to institutional indebtedness incurred by BGI; (e) all Liabilities for Apollo Lap-Band Products manufactured Taxes arising as a result of the operation of the Business or ownership of the Purchased Assets prior to the Closing, including but not limited any Taxes that arise as a result of the sale of the Purchased Assets pursuant to product liability this Agreement and infringement any deferred Taxes of Intellectual Property whether any nature; (f) all Liabilities arising from or not sold under any Environmental Law or occupational safety and health Law arising out of or relating to the operation of the Business prior to the Closing or the leasing, ownership or operation of real property by BGI prior to the Closing; (eg) all Liabilities relating to any negotiations, agreements or other transactions, if any, by BGI with any third party that relate to the acquisition 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 BGI or any of its Affiliates for any taxable period, assets 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 termination of its Affiliates is a party related negotiations or by which any of its properties or assets are otherwise bound;arrangements; and (h) all professional, financial advisory, broker, finder or other fees of any current or former employee or contractor kind incurred by BGI in connection with the transaction described herein, so long as the diligence and other requests made by Mesa in connection therewith are of Apollo, or any of its Affiliates; (i) all Apollo Accounts Payable, including any unpaid accounts payable related to any Apollo Lap-Band Inventory; and (j) all Liabilities set forth on Schedule 1.4a reasonable and necessary nature.

Excluded Liabilities. Except for Without limiting the Assumed Lap-Band Liabilitiesgenerality of Section 1.3 hereof, ReShape the term Excluded Liabilities shall include the following liabilities and obligations, as the same shall exist as of the Closing Date, to the extent such liabilities or obligations are not assume, specifically included in the definition of Acquired Liabilities set forth in Section 1.3 above: (a) All liabilities and shall have no liability for, any Liabilities of Apollo or any Apollo Affiliate obligations incurred by Seller in connection with the conduct of any kind, character or description, it being understood that ReShape is expressly disclaiming any express or implied assumption of any Liabilities business other than the Assumed Lap-Band Liabilities including, without limitation all Liabilities Business; (b) All liabilities and obligations arising out of, resulting from from, or relating to (collectivelyany violation by Seller of any current or past statute, the “Excluded Apollo Liabilities”): (a) any and all Claims, regardless of when such Claim was first commenced ordinance 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)governmental regulation; (c) Any liabilities to or in respect of any recalls temporary or permanent employees or former employees of Seller for any period prior to the Closing Date (including after collectively, the Closing) mandated by "Employee Liabilities"), including, without limitation: any Governmental Body liability under or with respect to any Apollo Lap-Band Products manufactured employee benefit plans, programs or sold arrangements, whether or not written, at any time maintained, contributed to by Seller or under which Seller may incur liability, or any liability with respect to Seller's withdrawal or partial withdrawal from or termination of any such plan, program or arrangement; any medical claims under any health insurance plan or program maintained by Seller; any claim of an unfair labor practice and any claim for unpaid wages, salaries, benefits or severance pay or under any state unemployment compensation law or regulation or under any federal or state employment discrimination, retaliatory discharge or harassment laws or regulations, that shall have been asserted on or prior to the ClosingClosing Date, or to the extent the basis for any claim, liability, damages or penalty shall have arisen on or prior to the Closing Date, whether or not such liabilities are described, listed or referred to on any Schedule or Exhibit hereto(all of the foregoing, collectively, "Employee Claims"); provided, however, that the liabilities described in Section 1.3(c) shall not be Excluded Liabilities; (d) any All liabilities and obligations for all Claims for Apollo Lap-Band Products manufactured litigation and claims under the Occupational Safety and Health Act of 1970, as amended, to the extent they relate to the conduct of the Business prior to the Closing, including but not limited to product liability and infringement of Intellectual Property whether or not sold prior to the ClosingClosing Date; (e) Any liabilities in respect of injury to or death of any person or damage to or destruction of any property, whether based on negligence, breach of warranty, strict liability, enterprise liability or any other legal or equitable theory, arising on or prior to the Excluded Apollo AssetsClosing Date, whether or not such liabilities are described, listed or referred to on any Schedule or Exhibit hereto; (f) All liabilities and obligations of Seller for 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 relating to the Apollo Lap-Band sale of the Purchased Assets to Purchaser or the Apollo Lap-Band conduct of the Business for any taxable period (or portion thereof) ending on or the ownership of the Purchased Assets prior to the Closing Date; (g) any ContractAll liabilities and obligations of Seller directly or indirectly resulting from or arising out of Seller's entering into, performing its obligations pursuant to, or consummating the transactions contemplated by, this Agreement, including, without limitation, all legal and 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 professional fees incurred by which any of its properties or assets are otherwise boundSeller; (h) any current or former employee or contractor of Apollo, or any of its AffiliatesAll liabilities and obligations relating to the Excluded Assets;. (i) all Apollo Accounts PayableAll promissory notes, including any unpaid accounts payable related letters of credit, guaranties and other commitments of Seller; (j) All of Seller's liabilities relating to any Apollo Lap-Band InventoryExisting Environmental Claims and Environmental Conditions; (k) All product liability claims relating to products manufactured, assembled, distributed and sold prior to the Closing Date; and (jl) all Liabilities set forth on Schedule 1.4All lawsuits, claims, indemnities, mortgages, contingent liabilities and other obligations of Seller not expressly assumed by Purchaser pursuant to the express provisions of this Agreement.

Excluded Liabilities. Except for Notwithstanding anything to the Assumed Lap-Band Liabilitiescontrary in this Agreement, ReShape Purchaser shall not assumeassume or become responsible for any of Seller's duties, obligations or liabilities that are not assumed by Purchaser pursuant to the terms of this Agreement, the Bill ▇▇ Sale or the Real Estate Assignment(s), regardless of whether such obligation or liability is known or unknown, fixed or contingent, and regardless of whether such liability arises from contract, tort or otherwise (the "Excluded Liabilities"), and Seller shall have no liability remain fully and solely responsible for, any Liabilities and indemnify Purchaser from and against in accordance with Section 10.2 of Apollo or any Apollo Affiliate this Agreement, all debts, liabilities, contract obligations, expenses, obligations and claims of any kindnature whatsoever related to the Assets or the Hospital unless assumed by Purchaser under this Agreement, character in the Bill ▇▇ Sale or description, it being understood that ReShape is expressly disclaiming any express or implied assumption of any in the Real Estate Assignment(s). The Excluded Liabilities other than the Assumed Lap-Band Liabilities includingshall include, without limitation all Liabilities arising out of, resulting from or relating to (collectively, the “Excluded Apollo Liabilities”):limitation: (a) any and all Claims, regardless current liabilities of when such Claim was first commenced or made, that arose out of, relates Seller with respect to or results from the development, nonclinical and clinical testing, commercialization, manufacture, storage, packaging, import, marketing, labeling, pricing, distribution, sale or use operation of the Apollo Lap-Band Product Hospital on or any of the Apollo Lap-Band Assets, in each case, prior to the ClosingClosing Date (i) which are not included in Net Working Capital, including all such Claims relating as determined pursuant to warranty obligations, marketing programs, patient incentive programs Sections 1.2 and alleged intellectual property infringement1.4 and (ii) which are not otherwise specifically included in the Assumed Obligations; (b) all liabilities arising out of or relating to any and all products liability Claims that arose out ofact, relates to omission, event or results from occurrence connected with the use, ownership or operation of the Hospital or any Apollo Lap-Band Product sold of the Assets on or prior to the Closing Date (including Claims alleging defects including, without limitation, any liabilities arising from pre-Closing violations of Environmental Laws or release of Hazardous Substances), other than as specifically included in such Apollo Lap-Band Product and Claims involving the death of or injury to any individual relating to such Apollo Lap-Band Product)Assumed Obligations; (c) other than as specifically included in the Assumed Obligations, all liabilities arising out of or relating to any recalls act, omission, event or occurrence connected with Seller, or the operations or activities of Seller (including after the Closing) mandated by any Governmental Body with respect all liabilities arising out of or relating to any Apollo Lap-Band Products manufactured claim, proceeding or sold prior investigation, collectively, "Litigation") arising out of or relating to any such act, omission, event or occurrence including without limitation the ClosingLitigation set forth on Schedule 2.11); (d) any and all Claims for Apollo Lap-Band Products manufactured liabilities of Seller in connection with claims of professional malpractice to the extent arising out of or relating to acts, omissions, events or occurrences on or prior to the Closing, including but not limited to product liability and infringement of Intellectual Property whether or not sold prior to the ClosingClosing Date; (e) any subject to reimbursement by Purchaser to the extent contemplated by the Employee Leasing Agreement, all liabilities of Seller for its matching contributions for eligible beneficiaries' 401(k) plans, Section 125 plans and other Seller Plans and all administrative costs associated with such welfare benefit plans arising on or prior to the Excluded Apollo AssetsClosing Date; (f) Taxes (other than Transfer Taxes, which shall be governed solely by Section 2.8) (i) in respect all liabilities of or imposed upon Apollo or any of its Affiliates for any taxable period, or (ii) imposed Seller relating to the Seller's Cost Reports with respect to the Apollo Lap-Band Assets or the Apollo Lap-Band Business for any taxable period (or portion thereof) periods ending on or prior to the Closing Date; (g) all liabilities of Seller for violations of any Contractlaw, other than an Apollo Lap-Band Business Contract and subject regulation or rule to the limitations set forth in Section 1.3extent arising from acts or omissions on or prior to the Closing Date, including, without limitation, those pertaining to which Apollo Medicare and Medicaid fraud or any of its Affiliates is a party or by which any of its properties or assets are otherwise boundabuse; (h) all liabilities of Seller for commissions or fees owed to any current finder or former employee or contractor of Apollobroker in connection with the transactions contemplated hereunder, or for any other expenses incurred hereunder, except to the extent expressly provided in this Agreement to the contrary (including but not limited to Section 12.12 of its Affiliatesthis Agreement); (i) all Apollo Accounts Payableliabilities due to third party payors, including without limitation, private insurers, private pay parties, governmental payors, including Medicare, Medicaid, CHAMPUS, FEHBA, RRRB or other third party payors ("Third Party Payors"), including cost report reimbursements and settlements, repayments, fines or other liabilities or obligations, to the extent they relate to the periods ending on or prior to and including the Closing Date, and any unpaid accounts payable related liability arising pursuant to a Third Party Payor program as a result of the consummation of the transactions contemplated herein, including, without limitation, recapture of previously reimbursed expenses; (j) subject to Sections 1.8 and 12.12 of this Agreement, all federal, state, foreign or local tax liabilities or obligations of Seller or attributable to any Apollo Lap-Band Inventorycapital Asset, in respect of periods ending on or prior to Closing, including, without limitation, any income tax, any franchise tax, any tax recapture, any sales and/or use tax, any state and local recording fees and taxes which may arise upon the consummation of the transaction contemplated herein and any FICA, FUTA, workers' compensation and any and all other taxes or amounts due and payable as a result of the exercise by any of Seller's employees of such employees' right to vacation, sick leave and holiday benefits accrued while in the employ of Seller (to the extent not included in the Net Working Capital adjustment); (k) subject to reimbursement by Purchaser to the extent contemplated by the Employee Leasing Agreement, all liability for any and all claims by or on behalf of Seller to the extent such liability relates to the period ending on or prior to the Closing Date, including, without limitation, liability for any pension, profit sharing, deferred compensation or any other employee health and welfare benefit plans, liability for any EEOC claim, wage and hour claim, unemployment compensation claim or workers' compensation claim, and liability for all employee wages and benefits, including, without limitation, accrued vacation, sick leave and holiday pay and taxes or other liability related thereto in respect of Seller's employees (to the extent not included in the Net Working Capital adjustment); (l) all liabilities or obligations arising at any time under any contract or commitment that is not assumed by Buyer; (m) all liabilities or obligations arising out of Seller's breach of any Contract prior to Closing; and (jn) all Liabilities set forth on Schedule 1.4any obligation or liability asserted under the federal Hill-▇▇▇▇▇▇ ▇▇▇gram or other restricted grant and loan programs with respect to the ownership or operation of the Hospital.

Excluded Liabilities. Except for the Assumed Lap-Band Liabilities, ReShape Purchaser shall not assume, and shall have no liability for, assume or be bound by any Liabilities obligations or liabilities of Apollo or any Apollo Affiliate Seller of any kindkind or nature, character known, unknown, accrued, absolute, fixed, contingent, or descriptionotherwise, it being understood that ReShape is expressly disclaiming any express whether or implied assumption of any Liabilities other than not existing or hereafter arising whatsoever (the Assumed Lap-Band Liabilities “Excluded Liabilities”), including, without limitation all Liabilities arising out of, resulting from or relating to (collectivelylimitation, the “Excluded Apollo Liabilities”):following: (a) any and all Claims, regardless liabilities for Taxes arising out of when such Claim was first commenced or made, that arose out of, relates to or results resulting from the developmentsale, nonclinical conveyance, transfer, assignment and clinical testing, commercialization, manufacture, storage, packaging, import, marketing, labeling, pricing, distribution, sale or use delivery of the Apollo Lap-Band Product or any of the Apollo Lap-Band AssetsPurchased Assets provided for in this Agreement, in each caseincluding, prior to the Closingwithout limitation, including all such Claims relating to warranty obligations, marketing programs, patient incentive programs and alleged intellectual property infringementTransfer Taxes; (b) all Taxes imposed on, collected by or withheld with respect to, or in any and all products liability Claims that arose out of, relates way related to the Business or results from the Purchased Assets for any Apollo Lap-Band Product sold periods prior to and including 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)Date; (c) any recalls (including after the Closing) mandated all Taxes imposed on, collected by any Governmental Body or withheld with respect to, or in any way related to any Apollo Lap-Band Products manufactured Seller or sold prior to the ClosingMembers; (d) liabilities or obligations of Seller in respect of indebtedness for borrowed money or 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 Closingother notes payable; (e) liabilities and obligations of Seller in connection with or relating to any of the Excluded Apollo AssetsSeller’s existing or former employees and Employee Programs, including, without limitation, any “stay bonus,” severance or other termination obligations; (f) Taxes liabilities and obligations of Seller to third parties arising out of any breach by Seller on or prior to the Closing Date of any representation, warranty, or covenant of Seller under any Assigned Contract or other agreement; (other than Transfer Taxes, which shall be governed solely g) any Liens on the Purchased Assets; (h) any liabilities and obligations of Seller arising from the transactions contemplated by Section 2.8) this Agreement; (i) all liabilities and obligations arising in respect of the Excluded Assets; (j) any liabilities related to Hazardous Substances 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 other materials existing on or prior to the Closing Date; (g) , including, without limitation, any Contract, other than an Apollo Lap-Band Business Contract and subject all liabilities related to the limitations set forth in Section 1.3generation, to which Apollo or any of its Affiliates is a party or transportation, placement, storage, treatment, use and/or disposal by which any of its properties or assets are otherwise bound; (h) any current or former employee or contractor of ApolloSeller, or any predecessors of its AffiliatesSeller, of any Hazardous Substances or other materials on or prior to the Closing Date at facilities and/or real property that are or were at any time owned, leased or otherwise occupied by Seller or any predecessor of Seller. “Hazardous Substances” shall mean any and all pollutants, contaminants, radioactive substances, toxic substances, hazardous materials, hazardous substances, hazardous wastes, petroleum or any fraction or by-product thereof, asbestos and polychlorinated biphenyls (“PCBs”) as such terms are defined pursuant to or within the Environmental, Health and Safety Laws; (i) all Apollo Accounts Payable, including any unpaid accounts payable related to any Apollo Lap-Band Inventory; and (j) all Liabilities set forth on Schedule 1.4.

Excluded Liabilities. Except for the Assumed Lap-Band Liabilities, ReShape Purchaser shall not assume, assume and shall have no liability fornot be responsible to pay, perform, satisfy or discharge any Liabilities of Apollo Seller or any Apollo Affiliate of its Affiliates of any kindkind or nature whatsoever, character whether direct or descriptionindirect, it being understood that ReShape is expressly disclaiming any express known or implied assumption of any Liabilities other than the Assumed Lap-Band Liabilities includingunknown, without limitation all Liabilities arising out ofabsolute or contingent, resulting from or relating to the construction, ownership, operation or maintenance of the Project, the Project Assets or the Project Site prior to the Closing (collectively, the “Excluded Apollo Liabilities”): ). On and after the Closing, Seller shall, and shall cause each of its Affiliates to, retain, pay, perform, satisfy and discharge all Excluded Liabilities for which it or they are respectively obligated, including the following: all Liabilities arising from any violation of applicable Environmental Law (aA) 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 by Seller or any of the Apollo Lap-Band Assetsits Affiliates or (B) any other Person acting on behalf of Seller or any of its Affiliates, in each case, in connection with the construction, ownership, operation or maintenance of the Project or the Project Site prior to the Closing; all Liabilities relating to, resulting from or arising out of any Environmental Condition on, under, or near the Project Site to the extent existing prior to the Closing, including Liabilities related to Remediation, natural resource damages, bodily injury or property damage; all such Claims Liabilities relating to warranty obligationsto, marketing programsresulting from or arising out of the off-site transportation, patient incentive programs and alleged intellectual property infringement; (b) any and all products liability Claims that arose out ofdisposal, relates to recycling or results storage, or arrangement for same, of Hazardous Materials, from any Apollo Lap-Band Product sold prior to the Closing (including Claims alleging defects in such Apollo Lap-Band Product and Claims involving Project or 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 Project Site prior to the Closing, including but not limited Liabilities related to product liability and infringement of Intellectual Property whether Remediation, natural resource damages, bodily injury or not sold prior to the Closing; property damage; all Liabilities relating to, resulting from or arising out of: (eA) any employee benefit plan, employment agreement or other arrangement of Seller, any Affiliate of Seller or any of their respective ERISA Affiliates providing any type of compensation to any former or current employee of Seller, any Affiliate of Seller or any of their respective ERISA Affiliates, including any obligation or Liability for providing continuation coverage under and complying with Section 4980B of the Excluded Apollo Assets; Code, Sections 601 through 608 of ERISA, and any applicable state Law of similar intent with respect to any individual who either prior to, on or after the Closing Date was covered under any group health plan contributed to or maintained by Seller, any Affiliate of Seller, or any of their respective ERISA Affiliates, or who will otherwise be an “M&A Qualified Beneficiary” (f) Taxes (other than Transfer Taxesas such phrase is defined in Treasury Regulation Section 54.4980B-9, which shall be governed solely by Section 2.8) (iQ&A-4) in respect connection with the transactions contemplated by this Agreement; and (B) any current or former employee, independent contractor or consultant of Seller, any Affiliate of Seller or imposed upon Apollo or any of their respective ERISA Affiliates; all Liabilities of Seller and any of its Affiliates for any taxable periodrelating to, resulting from or (ii) imposed with respect arising out of the Project Contracts or Project Real Property Agreements relating to the Apollo Lap-Band period prior to Closing and not expressly assumed by Purchaser pursuant to Section II.1.2, and all Liabilities relating to, resulting from or arising out of Contracts relating to the Project, the Project Assets or the Apollo LapProject Site which are not Project Contracts or Project Real Property Agreements; all Liabilities of Seller and any of its Affiliates relating to, resulting from or arising out of the Project Permits (other than Purchaser Permits) relating to the period prior to Closing and not expressly assumed by Purchaser pursuant to Section II.1.2, and all Liabilities relating to, resulting from or arising out of Permits relating to the Project, the Project Assets or the Project Site which are not Project Permits; all Liabilities arising or accruing on, prior to or after the Closing relating to Construction Costs; all Liabilities to any Person for personal injury, property damage or tort relating to, resulting from or arising out of the siting, design, development, interconnection, construction, start-Band Business for any taxable period (up, testing, commissioning, ownership, use, operation or portion thereof) ending maintenance of the Project or the Project Assets on or prior to the Closing Date; Closing, whether or not such claim was made or asserted on or prior to the Closing; all Liabilities relating to, resulting from or arising out of litigation and threatened litigation in connection with the Project or the Project Assets (g) any Contract, other than an Apollo Lap-Band Business Contract and subject in connection with this Agreement) arising or accruing on or prior to the limitations set forth in Section 1.3Closing, regardless of when filed; all Pre-Closing Taxes and Seller Income Taxes with respect to which Apollo or any the transfer 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, including any unpaid accounts payable related the Project Assets pursuant to any Apollo Lap-Band Inventorythis Agreement; and (j) and all Liabilities set forth on Schedule 1.4in any way relating to, resulting from or arising out of any Excluded Assets.

Excluded Liabilities. Except for Notwithstanding any other provision of this Agreement to the Assumed Lap-Band Liabilitiescontrary, ReShape the Buyer is not assuming and the Seller shall not assumepay, and shall have no liability forperform or otherwise satisfy, 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 all 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”):), including the following: (a) any and all Claims, regardless of when such Claim was first commenced Liability for Taxes (or made, that arose out of, relates to the non-payment thereof) imposed on 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 with respect to the ClosingATOM Facility or the Transferred Assets that are incurred in, including or attributable to any Pre-Closing Tax Period except to the extent otherwise explicitly set forth in this Agreement and all such Claims relating Liabilities in respect of Taxes imposed on Seller (to warranty obligationsthe extent unrelated to the ATOM Facility or the Transferred Assets), marketing programs, patient incentive programs and alleged intellectual property infringementother than those expressly included in Assumed Liabilities; (b) any and all products liability Claims that arose out ofLiability pursuant to any Environmental Law arising from or relating to any action, relates to event, circumstance or results from any Apollo Lap-Band Product sold condition occurring or existing on or 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)Date; (c) any recalls Liability arising in respect of or relating to ATOM Facility Employees (including after to the extent arising out of an act, event, breach, default, condition, violation, or occurrence that occurred prior to Closing) mandated by or any Governmental Body with respect Employee Plan, except as specifically transferred to any Apollo Lap-Band Products manufactured or sold prior Buyer pursuant to the ClosingSection 5.5; (d) any and all Claims indebtedness for Apollo Lap-Band Products manufactured prior to borrowed money or guarantees thereof outstanding as of the Closing, including but not limited to product liability and infringement of Intellectual Property whether or not sold prior to the ClosingClosing Date; (e) any transaction expenses of the Excluded Apollo AssetsSeller, including, without limitation, any broker or finder’s fee; (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 Liability to third party suppliers for any taxable period, or (ii) imposed with respect materials and services delivered to the Apollo Lap-Band Assets or the Apollo Lap-Band Business for any taxable period (or portion thereof) ending on or Seller prior to the Closing Date; (g) any Contract, other than an Apollo Lap-Band Business Contract and subject to all Liabilities in respect of products manufactured or distributed by 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 boundATOM Facility before the Closing Date; (h) any current or former employee or contractor repayment of ApolloTax credits and/or Tax incentives repayable by Seller and, or any except as otherwise provided in Section 6.2 with respect to Transfer Taxes to be paid by Buyer, other amounts required to be paid to a Governmental Authority as a result of its Affiliatesthe sale of the Transferred Assets by the Seller; (i) all Apollo Accounts Payable, including any unpaid accounts payable Liabilities to the extent related to or arising out of incidents of personal injury or bodily harm or that could otherwise form the basis for any Apollo Lap-Band Inventoryworkers’ compensation claim, in each case occurring before the Closing; (j) any Liability under the WARN Act or any similar state or local Law that may result from an “Employment Loss,” as defined by 29 U.S.C. sect. 2101(a)(6), caused by any action of the Seller prior to the Closing or by the Buyer’s decision not to hire employees of Seller, other than as a result of the Buyer’s breach of its obligations under Section 5.5; (k) any Liability arising under unclaimed property or escheat laws, to the extent arising prior to the Closing Date; and (jl) all any Liability relating to an Excluded Asset. To the extent, if any, that any Liability might be partly an Assumed Liability and partly an Excluded Liability, the apportionment of such Liability shall be determined pursuant to equitable principles. For the avoidance of doubt, notwithstanding anything to the contrary in this Agreement, any Liabilities set forth on Schedule 1.4attributable to Seller shall remain with Seller, and Buyer shall not be responsible in any way for such Liabilities (other than, with respect to Buyer, the Assumed Liabilities).

Excluded Liabilities. Except for the Assumed Lap-Band LiabilitiesLiabilities as provided in Section 2.3, ReShape Purchaser shall not assumeassume or be obligated to pay, perform or otherwise discharge or be responsible or liable with respect to, and Seller shall have no liability forindemnify Purchaser Group in accordance with Section 7.1(a)(iv) with respect to, any Liabilities liabilities or obligations of Apollo Seller or otherwise relating to the Business or the Project or any Apollo Affiliate present or former owner or operator thereof, whether or not of, associated with, or arising from, any of any kindthe Purchased Assets, character and whether fixed, contingent or descriptionotherwise, it being understood that ReShape is expressly disclaiming any express known or implied assumption of any Liabilities other than unknown (collectively, the Assumed Lap-Band Liabilities including"Excluded Liabilities"), without limitation all Liabilities including the following: Any liabilities or obligations relating to, based in whole or in part on events or conditions occurring or existing in connection with, or 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 as operated on or prior to the Closing Date; (g) , or the design, construction, ownership, possession, use, or operation of any Contractof the Project, including the Purchased Assets, on or before the Closing Date, or sale or other than an Apollo Lap-Band Business Contract and subject disposition on or prior to the limitations set forth in Section 1.3, to which Apollo Closing Date of any capacity of or energy from the Project or any of its Affiliates the Purchased Assets (or any other assets, properties, rights or interests associated, at any time on or prior to the Closing Date, with the Business); Any liabilities or obligations of Seller to the extent relating to any Excluded Assets or other assets which are not Purchased Assets and the ownership, operation and conduct of any business in connection therewith or therefrom, including any amounts due from Seller under or arising from any Project Contracts other than the Purchased Project Contracts or from any Intercompany Arrangements; Any liabilities or obligations of Seller in respect of costs determined to be the responsibility of Seller under Section 3.4, any Taxes for which Seller is liable under Section 6.6 and Taxes attributable to the ownership, operation or use of any of the Project, including the Purchased Assets on or before the Closing Date (except for Taxes for which Purchaser is liable pursuant to Section 3.4 or Section 6.6 hereof); Any liabilities or obligations arising on or prior to the Closing Date from the breach by Seller of, default by Seller under or waiver or extension given by or to Seller with respect to the performance of any term, covenant or provision of any of the Purchased Project Contracts, that would have been, but for such breach, default, waiver or extension, paid, performed or otherwise discharged on or prior to the Closing Date or to the extent the same arise out of any such breach, default, waiver or extension; Any liabilities or obligations, including fines, penalties or costs imposed by a party Governmental Authority and the costs of any associated defense or response with respect to any of the Project, including the Purchased Assets resulting from an investigation, proceeding, request for information or inspection before or by which a Governmental Authority whether pending or commencing on, prior to or after the Closing Date, to the extent based on events or conditions occurring or existing in connection with, or arising out of, or otherwise relating to, the Business or the ownership, possession, use, operation, sale or other disposition on or prior to the Closing Date of any of its properties the Project, including the Purchased Assets (or assets are otherwise bound; any other assets, properties, rights or interests associated, at any time on or prior to the Closing Date, with the Business), or actions taken or omissions to act made on or prior to the Closing Date. Any liabilities or obligations of any of Seller Group or their respective directors, officers, members, shareholders or agents, arising out of, or relating to, this Agreement, any of the Ancillary Agreements or any of the transactions contemplated hereby or thereby, whether incurred prior to, on or after the Closing Date, including, without limitation, any and all finder's or broker's fees and expenses, and any and all fees and expenses of any attorneys, accountants or other professionals; Any liabilities or obligations relating to any current, former or future Project Employee or other Person (h) any current or former employee or contractor of Apollowhether employed by Seller, if any, or any Independent Contractor or any Predecessor-in-Interest) or to any spouse, children, other dependents or beneficiaries of its Affiliates; any such Person or any successor-in-interest to any such Person, with respect to incidents, events, exposures or circumstances occurring at any time before or after Closing, in each case whenever any claims arising therefrom or relating thereto mature or are asserted, including all such liabilities and obligations arising (i) all Apollo Accounts Payable, including any unpaid accounts payable under or related to any Apollo LapProject Employee Plan, (ii) under or arising from any claim by any such Project Employees for compensation, severance benefits, any other benefit claims under any Project Employee Plans or applicable Laws, vacation pay, continuation coverage, expenses or any similar type claims arising from employment prior to the Closing or as a result of the consummation of the Transactions, (iii) under any employment, wage and hour restriction, equal employment opportunity, affirmative action, discrimination, retaliation, tort, plant closing or immigration and naturalization Laws or any Law relating to employee benefits, employment discrimination, leave, accommodation, severance, labor relations, hiring or retention, safety, any employment contracts or agreements, wages and hours of employees or any other terms or conditions of employment or any other employment-Band Inventoryrelated matter or workplace issue, including COBRA, (iv) under any collective bargaining agreement, collective bargaining or labor relations Law, or agreement or arrangement with a labor organization or employee representative, (v) under any agreement concerning or relating to such Project Employees or other Persons performing work or services for the direct or indirect benefit of the Project, or (vi) in connection with any workers' compensation or any other employee health, accident, disability or safety claims; and but excluding, however, all such liabilities and obligations arising from the actions of Purchaser Group with respect to Project Employees contacted by Purchaser Group for hiring before Closing or arising after Closing with respect to Project Employees hired by Purchaser; Any liabilities or obligations relating to the Business or the Project, including the Purchased Assets (jor any other assets, properties, rights or interests associated, at any time on or prior to the Closing Date, with the Business or any of the Purchased Assets), to the extent based on events or conditions occurring or existing on or prior to the Closing Date and arising out of or relating to (i) any dispute arising out of or in connection with capacity of or energy provided or services rendered from the Project, including claims for refunds, personal injury or property damage, (ii) claims relating to employee health and safety, including claims for injury, sickness, disease or death of any Person, (iii) any lien described in clause (iii) of the definition of Permitted Encumbrances or any unpaid sums for which any such liens shall have arisen, (iv) claims by an Independent Contractor or other Person utilized or retained for services or work related to or in support of the Project, or (v) compliance with any Laws relating to any of the foregoing; Any liabilities or obligations to the extent based on, relating to or arising from events or conditions occurring or existing in connection with, or arising out of, any and all Liabilities set forth on Schedule 1.4assets, properties, rights and interests which are not being acquired by Purchaser hereunder, including relating to or arising from the Excluded Assets; Any liabilities or obligations incurred by any of Seller Group or any of their respective directors, officers, shareholders, members, agents or Independent Contractors after the Closing Date (but this paragraph shall not limit the liabilities or obligations for which Purchaser provides indemnification under Section 7.2); Any liabilities or obligations under any of the Purchased Project Contracts which would be included in the Purchased Assets but for the provisions of Section 2.5, except to the extent Purchaser is provided with the benefits thereunder as contemplated by such Section; and Any liability representing indebtedness for money borrowed (and any refinancing thereof).

Excluded Liabilities. Except for the Assumed Lap-Band Liabilities, ReShape Purchaser shall not assumebe liable or obligated for any of Sellers’ past, present or future liabilities and nothing in this Agreement shall be construed in any manner to constitute an assumption by Purchaser of any such liability of Sellers. Sellers shall retain and pay and perform when due all of their liabilities, secured or unsecured, whether known or unknown, asserted or unasserted, absolute, accrued, contingent or otherwise, and shall have no liability for, any Liabilities of Apollo whether due to 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 become due (collectively, the “Excluded Apollo Liabilities”): ). Other than as specifically set forth in Section 2.5, the Excluded Liabilities shall include the following liabilities: (a) any of Sellers’ obligations and all Claimsliabilities, regardless of when such Claim was first commenced to the extent accrued 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, arising prior to the ClosingClosing including, including without limitation, all such Claims relating to warranty obligations, marketing programs, patient incentive programs and alleged intellectual property infringement; Accounts Payable; (b) any of Sellers’ liabilities and all products liability Claims that arose out of, relates to obligations under any Environmental Law or results from any Apollo Lap-Band Product sold prior related to the Closing (including Claims alleging defects use, transportation, handling, discharge or release of any Hazardous Material, except for the liabilities and obligations of Purchaser to the extent expressly set forth in such Apollo Lap-Band Product and Claims involving the death of or injury to any individual relating to such Apollo Lap-Band Product); Section 8.1 hereof; (c) any recalls (including after the Closing) mandated by any Governmental Body with respect of Sellers’ obligations and liabilities under or related to any Apollo Lap-Band Products manufactured Employee Benefit Plan or sold prior related to the Closing; or in favor of any employee, former employee, retiree or job applicant of any Seller; (d) any of Sellers’ obligations and all Claims for Apollo Lap-Band Products manufactured prior liabilities arising out of or relating to any Action to which any Seller is a party pending as of the Closing, including but not limited to product liability and infringement of Intellectual Property whether or not sold prior to the Closing; ; (e) except as otherwise set forth herein or in any of the Ancillary Agreements, any of Sellers’ obligations and liabilities under any contract, agreement, obligation or commitment of any Seller not included in the Purchased Assets, or otherwise in respect of any Excluded Apollo Assets; Asset. (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 Sellers’ obligations and liabilities under this Agreement and 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; Ancillary Agreements; (g) any Contractof Sellers’ obligations and liabilities in respect of the Excluded Contracts, other than an Apollo Lap-Band Business Contract Permitted Liens (except with respect to matters falling within the description set forth in Clauses (c) (A), (B) and (C) (subject to proration as described in Section 6.13(f)) and (d) (subject to proration as described in Section 6.13(f)) of the limitations definition of Permitted Liens set forth in Section 1.31.1 of this Agreement), to which Apollo the borrowing of money or issuance of any note, bond, indenture, loan, credit agreement or other evidence of its Affiliates is a party indebtedness, whether 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, including any unpaid accounts payable related to any Apollo Lap-Band Inventorynot disclosed in this Agreement; and (j) all Liabilities set forth on Schedule 1.4.22

Excluded Liabilities. Except Notwithstanding anything in this Agreement to the contrary, any disclosure contained herein or made pursuant hereto, anything otherwise known to Buyers, Buyers do not assume and will not become responsible for any liability or obligation (whether known or unknown, whether or not accrued, absolute, contingent, unliquidated or otherwise, whether due or to become due and regardless of when asserted) of Seller or Shareholders except the Assumed Lap-Band Liabilities, ReShape shall not assume, and shall have no liability for, any Liabilities . Without limiting the generality 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 (collectivelyforegoing, the “Excluded Apollo Liabilities”):following are included among the liabilities of Seller and Shareholders which Buyers do not expressly or impliedly assume: (a) all liabilities of Seller and the Shareholders that exist or may arise under that certain Software License, Co-Branding and Distribution Agreement dated August 10, 2006 between Seller and THX, Ltd., a Delaware corporation, and any and all Claims, regardless of when such Claim was first commenced or made, that arose out of, relates to or results from amendments thereto (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“THX Agreement”); (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 Indebtedness of or injury to any individual relating to such Apollo Lap-Band Product)Seller; (c) any recalls (including after the Closing) mandated by any Governmental Body all liabilities of Seller and Shareholders with respect to any Apollo Lap-Band Products manufactured or sold prior expenses relating to the Closingtransactions contemplated by this Agreement; (d) all liabilities of Seller under any Environmental Law existing on the Closing Date, including without limitation all liabilities which are attributable to non-compliance with federal, state, and all Claims for Apollo Lap-Band Products manufactured prior local statutes or regulations governing water discharges, air emissions, and to the Closingdisposal, release, generation, treatment, transport, recycling or storage of any Hazardous Substance at or from any property or facility owned, leased, used or occupied at any time by Seller or any predecessor, including but not limited any predecessor in ownership, or arising out of or attributable to product liability and infringement of Intellectual Property whether or not sold prior to the Closing; (e) arrangements for any of the Excluded Apollo Assets; (f) Taxes (other than Transfer Taxes, which shall be governed solely foregoing by Section 2.8) (i) in respect of or imposed upon Apollo Seller or any predecessor, including any predecessor in ownership, and any environmental condition or violation of its Affiliates for any taxable period, or (ii) imposed Environmental Law with respect to the Apollo Lap-Band Assets or the Apollo Lap-Band Business for any taxable period (or portion thereof) ending Leased Real Property which existed on or prior to the Closing Date; (e) all liabilities of Seller with respect to all Taxes for all periods prior to the Closing Date; (f) all liabilities of Seller with respect to any pending, threatened or unasserted litigation, claim, demand, investigation or proceeding including, without limitation, liabilities relating to the Excluded Assets or to the Leased Real Property and liabilities relating to any Tax owed, alleged to be owed, or that may become owed to any Governmental Authority with respect to matters which occurred prior to the Closing Date; (g) any Contract, other than an Apollo Lap-Band Business Contract and subject all product liability or product warranty obligations of Seller with respect to sales made prior to the limitations set forth in Section 1.3, to Closing Date which Apollo or any of its Affiliates is a party or by which any of its properties or assets are otherwise boundnot reserved for on the Closing Balance Sheet; (h) any current obligation or former employee liability of Seller incurred in connection with the execution, delivery or contractor performance of Apollo, or any of its Affiliatesthis Agreement; (i) all Apollo Accounts Payable, including any unpaid accounts payable related liabilities of Seller which are attributable to any Apollo Lapnon-Band Inventory; andcompliance with applicable Laws; (j) all Liabilities set forth on Schedule 1.4liabilities associated with any Employee Benefit Plans; (k) any liabilities of the Shareholders; and (l) any liabilities of the Seller to the Shareholders.

Excluded Liabilities. Except for Notwithstanding any other provision of this Agreement or any other writing to the contrary, the Purchaser and its Designated Affiliates are assuming only the Assumed Lap-Band Liabilities, ReShape shall Liabilities and are not assume, and shall have no liability for, assuming any Liabilities other Liability of Apollo the Seller or any Apollo Selling Affiliate of any kindwhatever nature, character whether presently in existence or descriptionarising hereafter, it being understood that ReShape is expressly disclaiming any express or implied assumption of any Liabilities other than including the Assumed Lap-Band Liabilities including, without limitation all Liabilities arising out of, resulting from or relating to following (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 Liability for Taxes of the Apollo Lap-Band Product Seller or any Affiliate of the Apollo LapSeller arising or related to any pre-Band Assets, in each case, prior Closing period or attributable to the ClosingBusiness or the Purchased Assets for a Pre-Closing Period or otherwise allocated to a Pre-Closing Period pursuant to Section 9.1(c) (but specifically excluding (i) Taxes, including all such Claims relating if any, imposed on the Seller or any Affiliate or the Seller and arising out of the operation of the Business or with respect to warranty obligationsthe Purchased Assets after the Closing Date, marketing programs, patient incentive programs and alleged intellectual property infringement(ii) Taxes imposed on the Purchaser pursuant to Section 9.1); (b) any all trade accounts payable to third parties and all products liability Claims that arose out of, relates to or results other accrued expenses for the procurement of goods and services arising from any Apollo Lap-Band Product sold the conduct of the Business after the Petition Date and 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“Trade Accounts Payable”); (c) any recalls all trade accounts payable to third parties and other accrued expenses for the procurement of goods and services arising from the conduct of Seller Affiliates located in Europe or Asia (including other than the Acquired Company) after the Closing) mandated by any Governmental Body with respect to any Apollo Lap-Band Products manufactured or sold Petition Date and prior to the Closing;Closing that are attributable to the Business (the “European Trade Accounts Payable”) (d) all shared accounts payable to third parties for the procurement of goods and services arising from the conduct of both the Business and the Seller or any Affiliate of the Seller after the Petition Date 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 Closing (the Closing“Shared Accounts Payable”); (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 all accrued payroll and accrued benefits relating to the Apollo Lap-Band Assets or the Apollo Lap-Band Business for any taxable period (or portion thereof) ending employment of Transferred Employees on or prior to the Closing DateDate (the “Accrued Payroll and Benefits”); (f) any Liability arising in connection with any Seller Plan, other than those Liabilities assumed by the Purchaser and its Affiliates pursuant to Article 10; (g) any Contract, other than an Apollo Lap-Band Business Contract and subject Liability arising out of or related 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 boundExcluded Asset; (h) any current or former employee or contractor of Apolloall intercompany payables, loans and investments (i) between Seller or any of its Affiliates;Subsidiaries, on the one hand, and Seller or any of its Subsidiaries, on the other hand, or (ii) required to be settled in accordance with Section 5.19; and (i) all Apollo Accounts PayableEncumbrances of which the Purchased Assets are being sold free and clear under the Approval Order; (j) any Proceedings set forth in Schedule 2.4(j) or filed after the date hereof relating exclusively to pre-Closing activity of the Business (other than a Proceeding to the extent relating to Assumed Liabilities); (k) all Liabilities arising out of or relating to the off-site transportation, including handling, treatment, storage or disposal of any unpaid accounts payable Hazardous Material (other than migration of a Hazardous Material from any Owned Real Property) or the arrangement for the same by or on behalf of the Seller, its Affiliates or their respective predecessors in connection with the Purchased Assets or the operation of the Business at the Taft, Louisiana facility prior to Closing (the “Off-Site Liabilities”); (l) all Liabilities arising out of or relating to fines and penalties assessed for any violation occurring prior to Closing of any Environmental Law or Environmental Authorization by Seller or related to the Business or the Purchased Assets, other than any Apollo Lap-Band Inventorysuch Liabilities arising out of or relating to the ▇▇▇▇ Air Issue (the “Compliance Liabilities”); (m) all Liabilities arising out of or relating to fines and penalties arising out of or related to the ▇▇▇▇ Air Issue occurring prior to Closing (regardless of whether such fines or penalties were assessed prior to, on or after the Closing) (the “▇▇▇▇ Air Issue Fines and Penalties”); and (jn) all Liabilities set forth on Schedule 1.4relating to the employment of employees and former employees of the Business who are not Transferred Employees. For purposes of clarity, the Excluded Liabilities do not include any Liabilities of the Acquired Company, all of which will remain Liabilities of the Acquired Company before, or and after Closing.

Excluded Liabilities. Except for Notwithstanding any provision in this Agreement to the contrary, Purchaser is assuming only the Assumed Lap-Band Liabilities, ReShape shall Liabilities and is not assumeassuming, and shall not be deemed to have no liability forassumed, any other Liabilities of Apollo Seller of whatever nature (whether arising prior to, at the time of, or subsequent to Closing), whether absolute, accrued, contingent or otherwise, whether due or to become due and whether or not known or unknown or currently existing or hereafter arising or matured or unmatured, direct or indirect, and Seller shall be solely and exclusively liable for any Apollo Affiliate of any kindand all such Liabilities, character or descriptionincluding those Liabilities, it being understood that ReShape is expressly disclaiming any express or implied assumption of any Liabilities other than the Assumed Lap-Band Liabilities includingLiabilities, without limitation all Liabilities related to, arising out ofof or in connection with the operation of the Business or the Purchased Assets (including the use and ownership thereof) at any time prior to the Closing Date, resulting from or relating to and including those Liabilities set forth below (collectively, the “Excluded Apollo Liabilities”): (a) any and all Claims, regardless of when such Claim was first commenced or made, that arose Liabilities arising out of, relates related to or results from the development, nonclinical and clinical testing, commercialization, manufacture, storage, packaging, import, marketing, labeling, pricing, distribution, sale or use otherwise in respect of the Apollo Lap-Band Product Purchased Assets or any of the Apollo Lap-Band Assets, in each case, Business arising prior to the Closing, including all such Claims relating to warranty obligations, marketing programs, patient incentive programs and alleged intellectual property infringementClosing other than the Assumed Liabilities; (b) any and all products liability Claims that arose Liabilities of Seller related to or otherwise arising, whether before, on or after the Closing, out of, relates to or results from in connection with, any Apollo Lap-Band Product sold prior to of 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)Excluded Assets; (c) any recalls (including after the Closing) mandated by any Governmental Body and all Liabilities for Indebtedness with respect to borrowed money and any Apollo Lap-Band Products manufactured or sold prior to the Closingintercompany Indebtedness among Seller and any of its Subsidiaries; (d) all guarantees of third party obligations, all guarantees of obligations of any Affiliates of Seller, and all Claims for Apollo Lap-Band Products manufactured prior reimbursement obligations to the Closing, including but not limited to product liability and infringement guarantors of Intellectual Property whether Seller’s obligations or not sold prior to the Closingunder letters of credit; (e) any of the Excluded Apollo Assets; (f) Taxes (other than Transfer Taxes, which shall be governed solely by Section 2.8) and all Liabilities for (i) Taxes of Seller arising in respect or related to any taxable period, or portion thereof, ending on or before the Closing Date, (ii) any Taxes arising in connection with the consummation of the transactions contemplated by this Agreement, (iii) Taxes imposed on any Person that are the responsibility of Seller pursuant to Section 11.1(b), (iv) Taxes arising from or imposed upon Apollo attributable to the Purchased Assets or any the operation of its Affiliates the Business 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 before the Closing Date, and (v) Taxes arising from or in connection with an Excluded Asset and, other than as set forth in Section 1.3, any Taxes of Seller arising on or after the Closing Date; (f) any and all Liabilities of Seller resulting from any failure to comply with applicable “bulk sale”, “bulk transfer” or similar Law; (g) any Contractand all Liabilities of Seller in respect of Contracts that are not Assigned Contracts, other than an Apollo Lap-Band Business Contract and subject to including the limitations Contracts 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 boundon Schedule 1.4(g); (h) any current or former employee or contractor of Apolloall Cure Costs not included in, or any of its Affiliatesand in excess of, the Assumed AP under Section 1.3; (i) all Apollo Accounts PayableLiabilities (excluding those set forth on Schedule 1.3(b)) related to (i) any current or former employees, officers, directors, independent contractors or other service providers of Seller or any of its Affiliates (except for Liabilities pertaining to Transferred Employees and incurred after the Closing with respect to Transferred Employees solely in their capacity as employees of Purchaser or an Affiliate thereof), (ii) any Action brought by any Transferred Employee in connection with any act taken by Seller or any of its Affiliates at or prior to the Closing, (iii) the employment or termination of any Transferred Employee at or prior to the Closing or as a result of the transactions contemplated by this Agreement, (iv) any change in control, retention, success bonuses or similar obligations payable by Seller and its Affiliates to any Transferred Employee as a result of the transactions contemplated by this Agreement and (v) any Seller Plan; (j) drafts or checks outstanding at the Closing (except to the extent an Assumed Liability or related to an Assigned Contract); (k) all Liabilities under any futures contracts, options on futures, swap agreements or forward sale agreements; (l) all Liabilities for fees, costs and expenses that have been incurred or that are incurred or owed by Seller in connection with this Agreement or the administration of the Bankruptcy Cases (including all fees and expenses of professionals engaged by Seller) and administrative expenses and priority claims accrued through the Closing Date and post-closing administrative wind-down expenses of the bankrupt estates pursuant to the Bankruptcy Code (which such amounts shall be paid by Seller) and all costs and expenses incurred in connection with (i) the negotiation, execution and consummation of the transactions contemplated under this Agreement and each of the other documents delivered in connection herewith, (ii) the preparation and submission of any filing or notice required to be made or given in connection with any of the transactions contemplated by this Agreement, and the obtaining of any consent required to be obtained in connection with any of such transactions, (iii) the negotiation, execution and consummation of the DIP Financing Agreement and (iv) the consummation of the transactions contemplated by this Agreement, including any unpaid accounts retention bonuses, “success” fees, change of control payments and any other payment obligations of Seller payable as a result of the consummation of the transactions contemplated by this Agreement and the documents delivered in connection herewith; (m) any non-Ordinary Course of Business Liability of Seller arising in the Bankruptcy Cases; (n) all Liabilities related to the WARN Act, to the extent applicable, for any action resulting from Employees’ separation of employment prior to or on the Closing Date; (o) all Liabilities of Seller to its equity holders respecting dividends, distributions in liquidation, redemptions of interests, option payments or otherwise, and any liability of Seller pursuant to any Affiliate Agreement; (p) all Liabilities arising out of or related to any Apollo Lapbusiness or property formerly owned or operated by Seller, any Affiliate or predecessor thereof, but not presently owned and operated by Seller; (q) all Liabilities related to Claims, commercial disputes, actions, suits, arbitrations, litigation matters, proceedings or investigations (in each case whether involving private parties, authorities, or otherwise) involving, against, or affecting any Purchased Asset, the Business, Seller (other than those involving, against or affecting any Transferred Employees arising after the Closing) or assets or properties of Seller, whether commenced, filed, initiated, or threatened before or after the Closing and whether related to facts, events, or circumstances arising or occurring before or after the Closing, including the matters set forth on Schedule 1.4(q); (r) all obligations of Seller arising and to be performed prior to the Closing Date arising from or related to the Business or the Purchased Assets; (s) all Environmental Liabilities and Obligations; (t) all Liabilities of Seller or its predecessors arising out of any contract, agreement, Permit, franchise or claim that is not transferred to Purchaser as part of the Purchased Assets or, is not transferred to Purchaser because of any failure to obtain any third-Band Inventoryparty or governmental consent required for such transfer; (u) all Liabilities of Seller related to or arising under any corporate restructuring process, including (i) any advisor fees, including financial advisor fees, consultant fees, legal fees and accounting fees and (ii) any other commitment that is not directly related to servicing or supporting customer accounts; (v) all Liabilities and payment obligations related to or arising under any information technology assets owned or licensed to Seller, except to the extent assumed by Purchaser as Purchased Assets or Assumed Liabilities; and (jw) all any Liabilities set forth on Schedule 1.4of Seller related to the operations of or otherwise related to the business of Ciber-CMC Joint Venture Corporation.