EFFECTIVE AS OF THE
EFFECTIVE DATE, BUYER SHALL ASSUME AND BE OBLIGATED PURSUANT TO THIS AGREEMENT
TO PAY WHEN DUE, PERFORM OR DISCHARGE ANY AND ALL LIABILITIES OF SELLER (OTHER
THAN EXCLUDED LIABILITIES), TO THE EXTENT RELATING TO OR ARISING OUT OF THE
OPERATION OF THE BUSINESS OR THE OWNERSHIP OF THE PURCHASED ASSETS, WHETHER SUCH
LIABILITIES WERE OR ARE INCURRED OR ACCRUED PRIOR TO OR FOLLOWING THE EFFECTIVE
DATE (COLLECTIVELY, THE "ASSUMED LIABILITIES").
THE ASSUMED LIABILITIES
INCLUDE:
(I)
PRODUCT LIABILITY, ANY WARRANTY, SERVICE
OR UPGRADE OBLIGATIONS OR ANY OTHER LIABILITY WITH RESPECT TO THE INVENTORY AND
ANY AND ALL PRODUCTS MANUFACTURED, DISTRIBUTED, SHIPPED, CONSIGNED, SOLD OR
LICENSED IN THE CONDUCT OF THE BUSINESS OR ANY SERVICES RENDERED BY SELLER OR
ANY PURCHASED SUBSIDIARY IN CONNECTION WITH THE BUSINESS, WHETHER OCCURRING
PRIOR TO OR FOLLOWING THE EFFECTIVE DATE;
(II)
ALL TAXES INCURRED, ACCRUED OR DUE IN
CONNECTION WITH THE OPERATION OF THE BUSINESS AND OWNERSHIP OF THE PURCHASED
ASSETS, INCLUDING ALL TAXES INCURRED, ACCRUED OR DUE IN JURISDICTIONS NOT PART
OF THE UNITED STATES AND ALL TRANSFER TAXES, OTHER THAN TAXES IMPOSED ON THE
INCOME OF SELLER OR ANY PURCHASED SUBSIDIARY INCLUDED IN A CONSOLIDATED RETURN
FILED OR TO BE FILED BY SELLER;
(III)
ALL LIABILITIES IN CONNECTION WITH, ARISING
UNDER OR PURSUANT TO, THE PURCHASED IP RIGHTS, WHETHER OR NOT OCCURRING PRIOR TO
THE EFFECTIVE DATE, INCLUDING BUT NOT LIMITED TO, LIABILITIES WITH RESPECT TO
INTELLECTUAL PROPERTY INFRINGEMENT;
(IV)
ALL LIABILITIES OF SELLER ARISING OUT OF THE
TERMINATION OF EMPLOYMENT OF ANY TRANSFERRED EMPLOYEE, INCLUDING ANY AND ALL
CLAIMS MADE BY A TRANSFERRED
3
EMPLOYEE AGAINST SELLER ALLEGING WRONGFUL TERMINATION OR THAT SELLER FAILED TO
PROVIDE ANY ADVANCE NOTICE OF TERMINATION OF EMPLOYMENT REQUIRED UNDER
APPLICABLE LAW, INCLUDING, WITHOUT LIMITATION, UNDER THE FEDERAL WARN ACT OR THE
CALIFORNIA WARN ACT;
(V)
ALL TRADE PAYABLES AND ACCRUED LIABILITIES
OF THE BUSINESS;
(VI)
ANY AND ALL LIABILITIES, WHENEVER INCURRED,
UNDER THE PURCHASED CONTRACTS;
(VII)
ANY AND ALL LIABILITIES, WHENEVER INCURRED,
UNDER THE PURCHASED OUT-BOUND LICENSES; AND
(VIII)
ALL LIABILITIES OF THE PURCHASED SUBSIDIARIES.
(D)
EXCLUDED LIABILITIES.
BUYER IS NOT
ASSUMING, AND THE TERM "ASSUMED LIABILITIES" DOES NOT INCLUDE, ANY EXCLUDED
LIABILITIES.
FOR PURPOSES OF THIS AGREEMENT, THE TERM "EXCLUDED LIABILITIES"
SHALL MEAN ANY AND ALL LIABILITIES OF SELLER SOLELY RELATING TO OR SOLELY
ARISING OUT OF ANY OF THE FOLLOWING:
(I)
SELLER'S OPERATION OF BUSINESS
ACTIVITIES UNRELATED TO THE BUSINESS;
(II)
THE EXCLUDED ASSETS;
(III)
INCOME TAX LIABILITY OF ANY PURCHASED
SUBSIDIARY REPORTED OR REQUIRED TO BE REPORTED ON A CONSOLIDATED INCOME TAX
RETURN WITH SELLER;
(IV)
ALL LIABILITIES OF SELLER WITH RESPECT TO
ACCRUED WAGES, SALARIES, VACATION, HOLIDAY, SICK LEAVE AND OTHER BENEFITS OF THE
TRANSFERRED EMPLOYEES AS OF THE EFFECTIVE DATE, AND ALL LIABILITIES OF SELLER
WITH RESPECT TO BONUS (INCLUDING ANY BONUSES THAT ARISE OUT OF THE COMPLETION OF
THE TRANSACTIONS CONTEMPLATED HEREBY), COMMISSIONS AND SEVERANCE AMOUNTS, IF
ANY, DUE TO THE TRANSFERRED EMPLOYEES AS OF THE EFFECTIVE DATE;
(V)
PAYROLL TAXES IN RESPECT OF THE EMPLOYMENT