ARISING UNDER THE
ACQUIRED CONTRACTS THAT ACCRUE FROM, ARISE OUT OF OR RELATE TO THE PERIOD
FOLLOWING THE CLOSING DATE, EXCEPT LIABILITIES AND OBLIGATIONS THAT ARISE FROM
OR RELATE TO (A) DEFAULTS THEREUNDER OR BREACHES THEREOF BY SELLERS OR ANY OF
THEIR AFFILIATES ON OR PRIOR TO THE CLOSING OR (B) EVENTS OR CONDITIONS
OCCURRING PRIOR TO THE CLOSING, WHICH, AFTER NOTICE OR LAPSE OF TIME OR BOTH,
WOULD CONSTITUTE A DEFAULT OR BREACH BY SELLERS OR ANY OF THEIR AFFILIATES);
(III)
FIFTY PERCENT (50%) OF THE TRANSFER TAXES;
(IV)
THE PATIENT FOLLOW UP OBLIGATIONS WITH RESPECT TO THE CONTINUUM
PMA POST-APPROVAL STUDY; AND
(V)
ALL LIABILITIES AND OBLIGATIONS OF BUYERS UNDER THIS AGREEMENT.
(B)
NO OTHER LIABILITIES ASSUMED.
EXCEPT AS EXPRESSLY PROVIDED IN
THIS AGREEMENT AND OTHER THAN THE ASSUMED OBLIGATIONS, BUYERS SHALL NOT ASSUME
AND SHALL NOT BECOME LIABLE TO PAY, PERFORM OR DISCHARGE ANY LIABILITIES OR
OBLIGATIONS OF ANY KIND OR NATURE, WHETHER KNOWN OR UNKNOWN, CONTINGENT OR
OTHERWISE, ARISING AT ANY TIME (THE "EXCLUDED LIABILITIES"), AND SUCH EXCLUDED
LIABILITIES SHALL INCLUDE THE FOLLOWING:
(I)
ALL LIABILITIES AND OBLIGATIONS WITH RESPECT TO SELLERS' PLANS OR
WITH RESPECT TO SELLERS' OR THEIR AFFILIATES' EMPLOYMENT OF (X) CURRENT OR
FORMER EMPLOYEES, OFFICERS, OR DIRECTORS OF SELLERS OR THEIR AFFILIATES OR
(Y) OTHER PERSONS, INCLUDING LIABILITY FOR:
(A) DAMAGES (INCLUDING REASONABLE
OUT-OF-POCKET COSTS AND FEES INCURRED IN CONNECTION WITH ANY CLAIMS) OR
INTEREST; (B) TERMINATION OF EMPLOYMENT, UNEMPLOYMENT PAYMENTS, NOTICE PAYMENTS,
SEVERANCE (INCLUDING WITH RESPECT TO TRANSFERRED EMPLOYEES); (C) WAGES, SALARY,
COMMISSIONS, BONUSES, DEFERRED COMPENSATION, OVERTIME AND RTT TIME;
(D) RETENTION PAYMENTS, BENEFITS, VACATION PAYMENTS, OPTIONS, INCENTIVES,
PENSIONS, OTHER BENEFIT PLANS OR PERQUISITES OF ANY KIND; (E) SOCIAL SECURITY
PAYMENTS, PAYROLL WITHHOLDINGS AND TAXES, WORKERS' COMPENSATION; (F) EMPLOYMENT
AGREEMENTS, CONSULTING AGREEMENTS, NON-COMPETE AGREEMENTS, COLLECTIVE BARGAINING
AGREEMENTS; (G) CLAIMS BY GOVERNMENTAL ENTITIES (INCLUDING SOCIAL PLANS, PENSION
PLANS, INSURANCE PLANS, HEALTH
13
PLANS OR SIMILAR ORGANIZATIONS); (H) CLAIMS BY, OR IN RESPECT OF, ANY PERSONS
WHO ARE EMPLOYEES OF SELLERS OR THEIR AFFILIATES ON THE CLOSING DATE, OR ANY
FORMER EMPLOYEES OF SELLERS OR THEIR AFFILIATES (OTHER THAN A TRANSFERRED
EMPLOYEE) WHO ALLEGE THAT THEY HAVE BECOME EMPLOYEES OF BUYERS OR ANY OF THEIR
AFFILIATES AS A RESULT OF THE SALE OF THE BUSINESS PURSUANT TO ARTICLE L 122-12
OF THE FRENCH LABOR CODE OR OTHERWISE; IN EACH CASE, ARISING OUT OF THE CLOSING
OR OTHERWISE IN CONNECTION WITH OR RELATED TO THE TRANSACTIONS, THE OPERATIONS
OF SELLERS' OR THEIR AFFILIATES' OTHER BUSINESSES, OR THE OPERATION OF THE
BUSINESS ON OR PRIOR TO THE CLOSING DATE;
(II)
ALL LIABILITIES OR OBLIGATIONS WITH RESPECT TO ANY VIOLATIONS OF
ANY LAW ARISING OUT OF THE ACTIVITIES, SUBMISSIONS, STATEMENTS OR FILINGS MADE
BY ANY SELLER OR ITS AFFILIATES RELATED TO THE PMA APPLICATION AND SELLERS'
EFFORTS TO OBTAIN EITHER THE INITIAL FDA APPROVAL OR THE SECONDARY FDA APPROVAL,
IN EACH CASE, FOLLOWING THE CLOSING DATE AND ON OR PRIOR TO THE DATE THAT THE
PMA APPLICATION, INITIAL FDA APPROVAL AND/OR SECONDARY FDA APPROVAL IS