Common use of Restructuring; Separation Cooperation Clause in Contracts

Restructuring; Separation Cooperation. (a) Notwithstanding anything herein to the contrary, Seller shall, on or prior to the Closing Date, take the actions described on Schedule C (as may be amended in accordance with this Section 5.20). Schedule C may be amended by Seller without the consent of Purchaser: (i) to comply with applicable Laws; and/or (ii) to secure the consent or approval of a Governmental Authority necessary to consummate any of the transactions contemplated by this Agreement; and/or (iii) to add transfers of Cash and Cash Equivalents, Excluded Assets or Retained Liabilities from the Conveyed Companies to Seller or an Affiliate of Seller (other than a Conveyed Company) by dividend, distribution, sale, payment of intercompany advances or Indebtedness, or other transfer; provided, however, that any such amendment shall require the prior written consent of Purchaser if any such proposed amendment includes any steps or actions that would (A) cause Purchaser or any of its Affiliates to violate any Law or Contract, (B) cause any representation or warranty of Seller in Article III of this Agreement to become untrue or incorrect in any material respect, (C) other than in any de minimis respect, create or result in any increase in any Assumed Liabilities or any other Liabilities or obligations of Purchaser with respect to which Purchaser is not entitled to indemnification pursuant to this Agreement (including any incremental transfer Taxes required to be paid by Purchaser hereunder, other than any transfer Taxes reasonably likely to be recovered within two (2) years by Purchaser or its Affiliates under applicable Law without material cost or expense or restructuring or the implementation of further Tax planning techniques by Purchaser or any of its Affiliates), (D) create or give rise to any material loans or balances (x) between any Conveyed Company, on one hand, and another Conveyed Company, on the other hand, or (y) between any Conveyed Company, on one hand, and the Seller or any of its Affiliates (other than the Conveyed Companies), on the other hand, that would not be canceled or terminated without further liability or obligation on or before the Closing pursuant to this Agreement, (E) (x) reduce the paid in capital, statutory capital or other local Law equivalent with respect to any Conveyed Company below (A) the amount required by applicable Statutory Minimums with respect to such Conveyed Company or (B) an amount which would result in Purchaser or any of its Affiliates being required by applicable Law to contribute additional capital to such Conveyed Company, or (y) result in negative equity or negative retained earnings, distributable reserves or other local Law equivalent, (F) involve entering into any covenant or agreement with any Taxing Authority that would bind Purchaser or any Conveyed Company in any material respect with respect to any period (or portion thereof) beginning after the Closing Date, (G) other than in any de minimis respect, have any adverse Tax impact on Purchaser, any of its Subsidiaries or any Conveyed Company, or (H) other than in any de minimis respect, impose restrictions or limitations on Purchaser, any of its Subsidiaries or any Conveyed Company not otherwise contemplated by this Agreement (taking into account the transactions contemplated by this Agreement); provided that, in each case, no such consent shall be required to the extent (X) Purchaser is entitled to indemnification pursuant to Section 7.6 or Article VIII for Losses arising out of such proposed amendment and (Y) Seller acknowledges in writing such indemnity obligation with respect to the full amount of any Loss resulting therefrom. With respect to any amendments to Schedule C proposed by Seller that do not require Purchaser’s consent pursuant to this Section 5.20, Seller shall in good faith consult with Purchaser as to such proposed amendment. To the extent Purchaser has any concerns with any such amendment proposed by Seller, Purchaser shall provide to Seller any information available to Purchaser that is reasonably requested in writing by Seller to enable Seller to understand the impact of such amendment on Purchaser, its Subsidiaries or any Conveyed Company, and Seller shall consider in good faith suggestions by Purchaser. Without the prior written consent of Purchaser (which consent shall not be unreasonably conditioned, delayed or withheld), Seller shall not take any valuation positions in the Restructuring that would restrict Purchaser’s ability to negotiate the Allocation. Any executed documents, instruments or certificates (or forms thereof) that would be considered Purchased Assets or assets of a Conveyed Company, (X) shall be in form and substance reasonably acceptable to Purchaser (consistent with this Agreement), (Y) other than in any de minimis respect, shall not impose Liabilities, restrictions or limitations on Purchaser or the Conveyed Companies not contemplated by this Agreement (taking into account the transactions contemplated by this Agreement, including the assumption of the Assumed Liabilities by Purchaser) and (Z) shall be made available to Purchaser promptly following their completion. Prior to Closing Seller shall, and shall cause its Affiliates to, (i) take such actions necessary so that Codenoll Technology Corporation does not constitute a Conveyed Company and that none of its equity interests are held by any other Conveyed Company and (ii) use commercially reasonable efforts to liquidate and dissolve each of the entities set forth on Schedule 5.20(a), in each case, without any continuing Liability to the Conveyed Companies (or, after the Closing, Purchaser or its Affiliates). (b) Prior to the Closing, without in any way altering the defined terms “Purchased Assets” or “Excluded Assets,” Seller and Purchaser shall, and shall cause their respective Affiliates to, in consultation with the other party, use commercially reasonable efforts to identify the internal separation activities necessary for the Business to operate in a manner independent from Seller and its Affiliates (other than the Conveyed Companies) and for the businesses (other than the Business) of Seller and its Affiliates (other than the Conveyed Companies) to operate independently of the Business. Further, upon the reasonable request of the other party, Seller and Purchaser shall, and shall cause their respective Affiliates to, subject to applicable Law, provide reasonable cooperation to the other party in (x) effecting such separation activities such that the Business can operate in a manner independent from Seller and its Affiliates (other than the Conveyed Companies) at or promptly after the Closing and (y) taking such other actions to otherwise reduce the term of services required by Purchaser and its Affiliates (including the Conveyed Companies) (or, with respect to any services provided by Purchaser and its Affiliates (including the Conveyed Companies) to Seller or its Affiliates, required by Seller and its Affiliates) under the Transition Services Agreement, including, in the case of Seller, reasonable access to information for Purchaser to market insurance coverage for the Business to be effective as of Closing, using reasonable best efforts to assist with data extraction, data migration (including product catalog data, employee master payroll data and historical reporting data from the Health Reimbursement Plan and Health Reimbursement Arrangement, in the form of data extracts) and similar matters and reasonably cooperating with Purchaser in facilitating Purchaser’s efforts to migrate Transferred Employees to its payroll and benefits plans, systems and processes, which cooperation shall include providing Purchaser, subject to applicable Law, with reasonable access to information, books, records and personnel reasonably requested in connection with such efforts (including information relating to the Business Employees and Shared Service Employees or the benefits and compensation from time to time provided to the Business Employees and Shared Service Employees), including (A) providing reasonable access to the personnel of Seller and its Affiliates during normal business hours and on at least five Business Days’ notice to Seller, (B) facilitating meetings with, any Business Employee or Shared Service Employee during normal business hours and on at least five Business Days’ notice to Seller for purposes of making announcements concerning and preparing for the consummation of the transactions contemplated by this Agreement, (C) providing reasonable access to local information technology personnel to provide data or interface layouts for local requirements, (D) directing third party service providers to the Business to provide reasonably requested information, (E) otherwise providing reasonable cooperation to Purchaser and its Affiliates as may be reasonably requested by Purchaser to establish Benefit Plans for Transferred Employees (including such plans which mirror the terms of the existing Business Benefit Plans), including reasonably assisting Purchaser and its Affiliates to obtain timely access to current vendors or suppliers with respect to the Business Benefit Plans and (F) otherwise providing reasonable cooperation and assistance to Purchaser, its Affiliates and their respective representatives as may be necessary to allow Purchaser to comply with its obligations under Section 5.5. Until the Closing, Purchaser shall consult with Seller and obtain Seller’s consent before distributing any communications to any Business Employee or Shared Service Employee (including pursuant to the announcements described in the preceding clause (B)), whether relating to employee benefits, post-Closing terms of employment or otherwise. Seller shall provide Purchaser with advance copies of, and a reasonable opportunity to comment on (and shall consider in good faith all such comments), all material communications to any Business Employee or Shared Service Employee relating to post-Closing employee benefits and terms of employment. (c) Promptly after the date of this Agreement, the Parties shall establish a Steering Committee for the purposes of coordinating and communicating pertinent information regarding the activities contemplated or taken in accordance with or pursuant to this Agreement. The Parties shall reasonably determine the membership of the Steering Committee, provided that the Steering Committee shall include member representatives from Seller, the Business and the Purchaser. The Steering Committee shall meet on a regular basis, in person or by telephone conference at a schedule to be determined by the Steering Committee itself, but no less than twice per month. The Steering Committee shall not have decision making authority with respect to either Party and shall not bind any Party, or otherwise affect the rights, remedies or obligations of any Party hereunder.