Netgear 2012 Annual Report Download - page 172

2.4 Liabilities Not Assumed
. Notwithstanding anything to the contrary in this Agreement, none of the Buyers nor any of
their Affiliates shall assume or otherwise be responsible for any Liabilities of Sellers or any of their respective Affiliates (including any
predecessor of Sellers or their respective Affiliates or any prior owner of all or part of their respective businesses and assets) of
whatever nature, whether presently in existence or arising hereafter, which are not Assumed Liabilities (collectively, the “
Excluded
Liabilities ”).
Sellers shall be responsible for the Excluded Liabilities. Without limiting the foregoing, Excluded Liabilities shall include
the following Liabilities, notwithstanding any disclosure on the Sellers Disclosure Schedule:
(a)
all Liabilities to the extent arising out of or relating to the operation or conduct by Sellers or any of their
Subsidiaries of any business other than the AirCard Business;
(b) all Liabilities to the extent arising out of or relating to any Excluded Assets;
(c)
(i) all Liabilities related to any current, former or prospective employees, directors or independent contractors of
Sellers and their Affiliates who are not Transferred Employees whether or not such Liabilities arise prior to, on or after the Closing
Date and (ii) all Liabilities to or in respect of any Transferred Employees arising on or prior to the Closing;
(d)
all Liabilities arising from any misclassification by Sellers or any of their Affiliates prior to the Closing of (i) any
Person or Employee as an independent contractor rather than as an employee, including liability for statutory employee deductions and
statutory employer liabilities and for any claims to compensation in lieu of notice of termination of services in excess of amounts
prescribed in such independent contractors written terms of engagement; (ii) any Employee leased from another employer; or (iii) any
Person or Employee currently or formerly classified as exempt from overtime wages;
(e) all Liabilities, including any Liability to gross-
up any Transferred Employee, solely relating to or arising out of
the payment by Sellers to any Offered Employees of any “excess parachute payments”
within the meaning of Section 280G of the Code
as a result of the Transactions;
(f) all Liabilities for Wages of Transferred Employees earned prior to the Closing;
(g) all Liabilities under or relating to the Employee Benefit Plans and/or Employee Non-
Competition Agreements,
including any pension or retirement plan, severance plan, retention plan, workers compensation, medical, life insurance, disability or
other welfare plan, expenses and benefits incurred or claimed in respect of any current or former employee, director or independent
contractor of Sellers or any of their Affiliates, and any claims by such current or former employees, directors or independent contractors
(and their covered dependents) of Sellers or any of their Affiliates for benefits or claims, whether or not such Liabilities arise prior to,
on or after the Closing Date;
(h)
all Liabilities arising from or associated with or in connection with any Employee who is an Automatic Transfer
Employee and not a Transferred Employee;
(i) all Indebtedness of Sellers or any of their Affiliates;
(j) all Liabilities to any broker, finder or agent for any investment banking or brokerage fees, finder’
s fees or
commission and any other fees and expenses payable by Sellers pursuant to Section 13.5 ;
(k)
(i) all Liabilities of Sellers or any of their Affiliates for Taxes, including any Taxes related to the AirCard
Business or the Acquired Assets attributable to any taxable period (or portion
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