ALL LIABILITIES, TO THE EXTENT ARISING IN CONNECTION WITH THE
OWNERSHIP AND USE OF A PURCHASED ASSET AND/OR THE CONDUCT OF THE PURCHASED
BUSINESS AFTER THE CLOSING.
1.3
EXCLUDED LIABILITIES.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS
AGREEMENT AND REGARDLESS OF WHETHER OR NOT ANY OF THE FOLLOWING ARE REFLECTED IN
THE PURCHASED BUSINESS FINANCIAL STATEMENTS, EXCEPT FOR THE ASSUMED LIABILITIES,
BUYER SHALL NOT ASSUME, OR OTHERWISE BE RESPONSIBLE FOR, ANY LIABILITIES OF
SELLER OR ANY OF ITS AFFILIATES, IN EACH CASE, WHETHER LIQUIDATED OR
UNLIQUIDATED, OR KNOWN OR UNKNOWN, AND WHETHER ARISING OUT OF OCCURRENCES PRIOR
TO, AT OR AFTER THE CLOSING DATE (THE "EXCLUDED LIABILITIES"), WHICH EXCLUDED
LIABILITIES INCLUDE, WITHOUT LIMITATION, THE FOLLOWING:
(A)
ANY LIABILITY OF SELLER OR ANY OF ITS ERISA AFFILIATES TO OR IN
RESPECT OF ANY CURRENT OR FORMER EMPLOYEE, DIRECTOR, CONSULTANT OR OTHER SERVICE
PROVIDER OF SELLER OR ANY OF ITS ERISA AFFILIATES, OR ANY DEPENDENT OR
BENEFICIARY THEREOF, INCLUDING WITHOUT LIMITATION (I) ANY LIABILITY UNDER ANY
SELLER PLAN AND (II) ANY CLAIM OF AN UNFAIR LABOR PRACTICE, UNJUST OR WRONGFUL
DISMISSAL OR FOR TERMINATION PAY OR SEVERANCE PAY UNDER STATUTE OR COMMON LAW OR
ANY CLAIM MADE AGAINST SELLER UNDER ANY STATE OR LOCAL UNEMPLOYMENT
COMPENSATION, EMPLOYMENT INSURANCE OR WORKERS' COMPENSATION LAW OR UNDER ANY
EMPLOYMENT STATUTE;
3
(B)
ANY LIABILITY FOR TAXES FOR WHICH SELLER IS LIABLE, INCLUDING
WITHOUT LIMITATION (I) ANY INCOME TAXES OF SELLER, (II) ANY TAXES FOR WHICH
SELLER IS LIABLE PURSUANT TO SECTION 3.8 OR ARTICLE VIII (INCLUDING, BUT NOT
LIMITED TO, ANY SALES OR USE TAXES OF SELLER ALLOCABLE TO PRE-CLOSING TAX
PERIODS) OR PURSUANT TO ANY OTHER PROVISION OF THIS AGREEMENT, (III) TAXES WHICH
HAVE NOT BEEN EXPLICITLY ASSUMED BY BUYER PURSUANT TO THIS AGREEMENT, (IV) ANY
TAXES THAT WILL ARISE AS A RESULT OF THE SALE OF THE PURCHASED ASSETS PURSUANT
TO THIS AGREEMENT (EXCEPT AS OTHERWISE PROVIDED HEREIN) AND (V) ANY DEFERRED
TAXES OF ANY NATURE FOR WHICH SELLER IS LIABLE;
(C)
ANY LIABILITY OF SELLER ARISING FROM ANY INJURY TO OR DEATH OF ANY
PERSON OR DAMAGE TO OR DESTRUCTION OF ANY PROPERTY PRIOR TO THE CLOSING DATE,
WHETHER BASED ON NEGLIGENCE, BREACH OF WARRANTY, STRICT LIABILITY, ENTERPRISE
LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY ARISING FROM DEFECTS IN
SERVICES PERFORMED BY OR ON BEHALF OF, OR PRODUCTS DISTRIBUTED BY, SELLER;
(D)
ANY LIABILITY OF SELLER UNDER ANY TRANSFERRED CONTRACT THAT BUYER
HAS ACCEPTED AND ASSUMED, WHICH ARISES ON OR AFTER THE CLOSING DATE TO THE
EXTENT THAT SUCH LIABILITY RELATES TO ANY ACTION OR INACTION OF SELLER THAT
OCCURRED PRIOR TO THE CLOSING DATE;
(E)
ANY LIABILITY OF SELLER UNDER ANY TRANSFERRED CONTRACT THAT IS
REQUIRED TO BE LISTED ON, BUT IS NOT LISTED ON SCHEDULE 3.12(A) THAT BUYER DOES
NOT EXPRESSLY ELECT TO ASSUME;
(F)
ANY LIABILITY OF SELLER FOR ACCOUNTS PAYABLE (OTHER THAN THE
ASSUMED ACCOUNTS PAYABLE);
(G)
ANY LIABILITY OF SELLER (OTHER THAN AN ASSUMED ENVIRONMENTAL
LIABILITY) ARISING OUT OF OR RESULTING FROM ITS COMPLIANCE OR NONCOMPLIANCE