Common use of Non-Transferable Assets Clause in Contracts

Non-Transferable Assets. (a) Except as set forth above with respect to Apollo Lap-Band Restricted Material Contracts, from and after the Closing, with respect to each Apollo Lap-Band Asset identified on Part 10.5 of the Apollo Disclosure Schedule, as the case may be, which is not assignable or transferable to ReShape at the Closing (each a “Non-Transferable Lap-Band Asset”), until the earlier to occur of (i) such time as such Non-Transferable Lap-Band Asset shall be properly and lawfully transferred or assigned to ReShape and (ii) such time as the material benefits intended to be transferred or assigned to ReShape have been procured by alternative means, (A) the Non-Transferable Lap-Band Assets shall be held by Apollo in trust exclusively for the benefit of ReShape, and (ii) Apollo and ReShape shall cooperate in any good faith, reasonable arrangement designed to provide or cause to be provided for ReShape the material benefits intended to be transferred or assigned to ReShape under each of the Non-Transferable Lap-Band Assets and, in furtherance thereof, to the extent permitted under the terms of each such Non-Transferable Lap-Band Asset and under applicable Law. Apollo shall use commercially reasonable efforts to provide or cause to be provided ReShape all of the benefits of Apollo under such Non-Transferable Lap-Band Assets in effect as of the Closing. Apollo and ReShape agree that any Apollo Lap-Band Equipment that is located in Costa Rica as of the Closing will be deemed to be Non-Transferable Lap-Band Assets until such time that ReShape has formed a subsidiary organized under the laws of Costa Rica that becomes qualified under Costa Rica’s Free Trade Zone Regime, as reasonably determined by ReShape, which ReShape will use commercially reasonable efforts to complete within 90 days after the Closing. (b) Except as set forth above with respect to ReShape IGB Restricted Material Contracts, from and after the Closing, with respect to each ReShape IGB Asset identified on Part 10.5 of the ReShape Disclosure Schedule, as the case may be, which is not assignable or transferable to Apollo at the Closing (each a “Non-Transferable ReShape IGB Asset”), until the earlier to occur of (i) such time as such Non-Transferable ReShape IGB Asset shall be properly and lawfully transferred or assigned to Apollo and (ii) such time as the material benefits intended to be transferred or assigned to Apollo have been procured by alternative means, (A) the Non-Transferable ReShape IGB Assets shall be held by ReShape in trust exclusively for the benefit of Apollo, and (ii) ReShape and Apollo shall cooperate in any good faith, reasonable arrangement designed to provide or cause to be provided for Apollo the material benefits intended to be transferred or assigned to Apollo under each of the Non-Transferable ReShape IGB Assets and, in furtherance thereof, to the extent permitted under the terms of each such Non-Transferable ReShape IGB Asset and under applicable Law. ReShape shall use commercially reasonable efforts to provide or cause to be provided Apollo all of the benefits of ReShape under such Non-Transferable ReShape IGB Assets in effect as of the Closing.