CIRCUMSTANCE OR CONDITION OCCURRING OR EXISTING ON OR PRIOR TO THE CLOSING THAT,
WITH NOTICE OR LAPSE OF TIME, WOULD (AND ONLY TO THE EXTENT THEY WOULD)
CONSTITUTE OR RESULT IN A BREACH BY THE SELLER ENTITIES, BUYER OR ANY OF THEIR
RESPECTIVE AFFILIATES OF ANY OF THE TRANSFERRED CONTRACTS (THE "CONTRACT
6
LIABILITIES"), AND (II) TRADE ACCOUNTS PAYABLE (EXCEPT FOR THOSE ARISING FROM
PURCHASES OF, OR OTHERWISE ARISING FROM OR RELATED TO PURCHASES OF, INVENTORY,
MATERIALS, COMPONENTS AND THE LIKE) AND ACCRUED EXPENSES OF THE SELLER ENTITIES
AS LISTED ON SCHEDULE 1.2(A)(II) AS AND TO THE EXTENT INCLUDED IN THE
DETERMINATION OF WORKING CAPITAL PURSUANT TO SECTION 2.3 HERETO ("ASSUMED
PAYABLES") (III) ANY CURRENT LIABILITY REFLECTED ON THE CLOSING STATEMENT OR
SIMILAR LIABILITIES INCURRED AFTER THE DATE OF THE CLOSING STATEMENT IN THE
ORDINARY COURSE OF BUSINESS, TO THE EXTENT (A) IT REMAINS AS A LIABILITY OF THE
BUSINESS ON THE CLOSING DATE AND IS NOT YET DUE AND PAYABLE ON SUCH DATE, AND
(B) THAT IT IS INCLUDED IN THE DETERMINATION OF WORKING CAPITAL PURSUANT TO
SECTION 2.3 HERETO; (IV) ALL CURRENT LIABILITIES ARISING AFTER THE CLOSING DATE
DIRECTLY RELATING TO WARRANTY AND PRODUCT LIABILITY CLAIMS, REBATE PROGRAMS AND
RETURNED PRODUCTS DIRECTLY RELATING TO THE BUSINESS (SUBJECT TO SECTION 1.2(B)
BELOW); (V) ALL LIABILITIES RELATING TO THE EACH OF THE TRANSFERRED SECOND
TERRITORY EMPLOYEES AFTER THEIR RESPECTIVE START DATES; AND (VI) ALL LIABILITIES
ARISING OUT OF OR DIRECTLY RELATING TO OWNERSHIP OR OPERATION OF THE BUSINESS OR
THE TRANSFERRED ASSETS AFTER THE CLOSING. NOTWITHSTANDING ANYTHING IN THIS
AGREEMENT TO THE CONTRARY, EXCEPT AS PROVIDED IN ANY ANCILLARY AGREEMENT, THE
ASSUMED LIABILITIES SHALL NOT INCLUDE, AND BUYER SHALL NOT ASSUME AND SHALL NOT
PAY OR BE LIABLE FOR (I) ANY LIABILITY UNDER ANY EXCLUDED CONTRACT OR ANY
CONTRACT OTHER THAN A TRANSFERRED CONTRACT OR AN ASSUMED ORDER; (II) ANY
LIABILITY WITH RESPECT TO TAXES OF THE SELLER ENTITIES OR TAXES ATTRIBUTABLE TO
THE EXCLUDED ASSETS OR EXCLUDED BUSINESS FOR ANY PERIOD; (III) ANY TAXES
ATTRIBUTABLE TO THE TRANSFERRED ASSETS AND THE BUSINESS ARISING FROM OR RELATING
TO ANY PERIOD (OR A PORTION OF ANY PERIOD) ENDING ON OR BEFORE THE CLOSING FOR
THE BUSINESS; AND ANY TAXES ARISING AS A RESULT OF, OR RELATING TO, THE
TRANSACTIONS CONTEMPLATED HEREBY EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN
SECTION 1.8 HEREOF; (IV) ANY LIABILITY TO ANY CURRENT OR FORMER EMPLOYEE OR
INDEPENDENT CONTRACTOR (TO THE EXTENT NOT A PARTY TO A TRANSFERRED CONTRACT) OF
THE SELLER ENTITIES OR ANY OF ITS AFFILIATES ARISING, IN RESPECT OF TRANSFERRED
EMPLOYEES, PRIOR TO THEIR RESPECTIVE START DATES (AS DEFINED BELOW) AND IN
RESPECT OF ALL OTHER FORMER AND CURRENT EMPLOYEES OR INDEPENDENT CONTRACTORS (TO
THE EXTENT NOT A PARTY TO A TRANSFERRED CONTRACT) OF THE SELLER ENTITIES OR
THEIR AFFILIATES, AT ANY TIME BEFORE THE CLOSING DATE; (V) ANY LIABILITY UNDER
ANY EMPLOYEE BENEFIT PLANS OR ARRANGEMENTS OR EMPLOYEE PLANS OF THE SELLER
ENTITIES OR ANY OF THEIR AFFILIATES; AND (VI) ANY LIABILITY TO