Retained Names. (a) Except as otherwise provided in this Section 5.7, Buyer shall use commercially reasonable efforts to cease and discontinue all uses of the Retained Names immediately upon the Closing. (b) Notwithstanding the provisions of Section 5.7(a), Buyer is not required to (and may use the Retained Names as contemplated by this Section 5.7(b)): (i) remove, strike over, or otherwise obliterate all Retained Names from all assets and other materials owned or possessed by the Transferred FH Companies and their Closing Subsidiaries, including any vehicles, business cards, schedules, stationery, packaging materials, displays, signs, manuals, forms, websites, email, computer software and other materials and systems, until no later than 60 days following the Closing Date; (ii) file all such documents with Governmental Authorities and otherwise take such steps as are necessary to cause the Transferred FH Companies and their Closing Subsidiaries to change their corporate and assumed names, as applicable, to names that do not include Retained Names (including descriptions such as “formerly known as” preceding or modifying a Retained Name), until no later than 60 days following the Closing Date; (iii) complete the removal of any of the Retained Names from all acquired product, service and technical information, promotional aids, promotional materials, literature and other printed material of the FH Business until no later than 60 days following the Closing Date; (iv) with respect to FH Assets bearing any Retained Names, re-label such assets or remove such Retained Names from such assets until no later than six (6) months after the Closing Date; (v) cease using name plates and molds bearing any Retained Names until the date that is six (6) months after the Closing Date; (vi) cease using the Retained Names on inventories existing on the Closing Date (or made in accordance with Section 5.7(b)(v)) until eighteen (18) months after the Closing Date; and (vii) refrain from disclosing to its customers and potential customers that it is conducting the FH Business as a successor to the Seller from and after the Closing Date; provided, however, that, notwithstanding the above (including time periods listed in clauses (i) through (vii)), Buyer agrees (x) to use commercially reasonable efforts to complete the above actions as promptly as practicable following the Closing, (y) that after the Closing Date Buyer and its Affiliates will not expressly, or by implication, do business as or represent themselves as Seller or its Affiliates, and (z) that Buyer shall use its commercially reasonable efforts to cause third party users of any of the Retained Names, whose rights terminate upon the Closing pursuant to this Section 5.7, to cease use of the Retained Names, except as expressly authorized thereafter by Seller. Buyer and its Affiliates shall not apply to register or register any of the Trademarks forming a part of or associated with the Retained Names. (c) Any use of the Retained Names by the Transferred FH Companies and their Closing Subsidiaries permitted by this Section 5.7 shall be subject to the following conditions: (i) Use of the Retained Names shall be in the same form and manner, to the same extent (without an increase in the extent or type of uses of the Retained Names), and subject to the same standards of quality, of that in effect for the Retained Names as of the Closing Date; (ii) The Retained Names shall not be used in a manner that may reflect negatively on such name and marks or on Seller or any of its Affiliates; (iii) Any press release or similar public announcement or communication that references any of the Retained Names shall include a statement that Buyer or its Affiliates, as applicable, and Seller, are not Affiliates or otherwise related to each other; (iv) Buyer and its Affiliates shall, in connection with all written uses of the Retained Names in connection with the FH Business, including on any packaging materials, displays, signs, promotional materials, forms, and websites, include a clear statement that the associated products or services are manufactured by or otherwise emanate from the Transferred FH Companies and their Closing Subsidiaries and not from Seller; and (v) Effective upon the expiration or termination of their respective rights under this Section 5.7, Buyer and its Affiliates hereby assign to Seller their rights, if any, to any Trademarks forming a part of or associated with the Retained Names that they may retain. (d) At the request of Seller, Buyer shall and shall cause its Affiliates to provide to Seller reasonable and representative samples of products and materials used or created under or in connection with this Section 5.7, in their possession, custody, or under their control bearing any of the Retained Names and shall permit Seller to inspect their premises and shall otherwise cooperate with Seller to assist Seller in ensuring that the conditions of use of the Retained Names set forth under Section 5.7(c) are complied with. (e) Buyer and its Affiliates, other than the Transferred FH Companies and their Closing Subsidiaries, shall have no right to use any of the Retained Names. (f) Without limitation to any other remedies, if Buyer and its Affiliates fail to comply with the foregoing terms and conditions or otherwise fail to comply with any reasonable direction of Seller or any of its Affiliates in relation to the use of the Retained Names, Seller shall (i) be entitled to a temporary, preliminary or permanent injunction or other equitable relief in accordance with Section 10.7, and (ii) have the right to terminate all rights to use the Retained Names as described in this Section 5.7, effective immediately. Buyer and its Affiliates shall indemnify and hold harmless Seller and its Affiliates for any Losses arising from or relating to the use by Buyer or any of its Affiliates of the Retained Names pursuant to this Section 5.7.
Appears in 1 contract
Retained Names. (a) Except as otherwise provided in this Section 5.7, Buyer shall use commercially reasonable efforts to cease and discontinue all uses of the Retained Names immediately upon the Closing.. 36
(b) Notwithstanding the provisions of Section 5.7(a), Buyer is not required to (and may use the Retained Names as contemplated by this Section 5.7(b)):
): (i) remove, strike over, or otherwise obliterate all Retained Names from all assets and other materials owned or possessed by the Transferred FH Companies and their Closing Subsidiaries, including any vehicles, business cards, schedules, stationery, packaging materials, displays, signs, manuals, forms, websites, email, computer software and other materials and systems, until no later than 60 days following the Closing Date;
; (ii) file all such documents with Governmental Authorities and otherwise take such steps as are necessary to cause the Transferred FH Companies and their Closing Subsidiaries to change their corporate and assumed names, as applicable, to names that do not include Retained Names (including descriptions such as “formerly known as” preceding or modifying a Retained Name), until no later than 60 days following the Closing Date;
; (iii) complete the removal of any of the Retained Names from all acquired product, service and technical information, promotional aids, promotional materials, literature and other printed material of the FH Business until no later than 60 days following the Closing Date;
; (iv) with respect to FH Assets bearing any Retained Names, re-label such assets or remove such Retained Names from such assets until no later than six (6) months after the Closing Date;
; (v) cease using name plates and molds bearing any Retained Names until the date that is six (6) months after the Closing Date;
; (vi) cease using the Retained Names on inventories existing on the Closing Date (or made in accordance with Section 5.7(b)(v)) until eighteen (18) months after the Closing Date; and
and (vii) refrain from disclosing to its customers and potential customers that it is conducting the FH Business as a successor to the Seller from and after the Closing Date; provided, however, that, notwithstanding the above (including time periods listed in clauses (i) through (vii)), Buyer agrees (x) to use commercially reasonable efforts to complete the above actions as promptly as practicable following the Closing, (y) that after the Closing Date Buyer and its Affiliates will not expressly, or by implication, do business as or represent themselves as Seller or its Affiliates, and (z) that Buyer shall use its commercially reasonable efforts to cause third party users of any of the Retained Names, whose rights terminate upon the Closing pursuant to this Section 5.7, to cease use of the Retained Names, except as expressly authorized thereafter by Seller. Buyer and its Affiliates shall not apply to register or register any of the Trademarks forming a part of or associated with the Retained Names.
(c) Any use of the Retained Names by the Transferred FH Companies and their Closing Subsidiaries permitted by this Section 5.7 shall be subject to the following conditions:
: (i) Use of the Retained Names shall be in the same form and manner, to the same extent (without an increase in the extent or type of uses of the Retained Names), and subject to the same standards of quality, of that in effect for the Retained Names as of the Closing Date;
; (ii) The Retained Names shall not be used in a manner that may reflect negatively on such name and marks or on Seller or any of its Affiliates;
; (iii) Any press release or similar public announcement or communication that references any of the Retained Names shall include a statement that Buyer or its Affiliates, as applicable, and Seller, are not Affiliates or otherwise related to each other;
(iv) Buyer and its Affiliates shall, in connection with all written uses of the Retained Names in connection with the FH Business, including on any packaging materials, displays, signs, promotional materials, forms, and websites, include a clear statement that the associated products or services are manufactured by or otherwise emanate from the Transferred FH Companies and their Closing Subsidiaries and not from Seller; and
(v) Effective upon the expiration or termination of their respective rights under this Section 5.7, Buyer and its Affiliates hereby assign to Seller their rights, if any, to any Trademarks forming a part of or associated with the Retained Names that they may retain.
(d) At the request of Seller, Buyer shall and shall cause its Affiliates to provide to Seller reasonable and representative samples of products and materials used or created under or in connection with this Section 5.7, in their possession, custody, or under their control bearing any of the Retained Names and shall permit Seller to inspect their premises and shall otherwise cooperate with Seller to assist Seller in ensuring that the conditions of use of the Retained Names set forth under Section 5.7(c) are complied with.
(e) Buyer and its Affiliates, other than the Transferred FH Companies and their Closing Subsidiaries, shall have no right to use any of the Retained Names.
(f) Without limitation to any other remedies, if Buyer and its Affiliates fail to comply with the foregoing terms and conditions or otherwise fail to comply with any reasonable direction of Seller or any of its Affiliates in relation to the use of the Retained Names, Seller shall (i) be entitled to a temporary, preliminary or permanent injunction or other equitable relief in accordance with Section 10.7, and (ii) have the right to terminate all rights to use the Retained Names as described in this Section 5.7, effective immediately. Buyer and its Affiliates shall indemnify and hold harmless Seller and its Affiliates for any Losses arising from or relating to the use by Buyer or any of its Affiliates of the Retained Names pursuant to this Section 5.7.37
Appears in 1 contract
Sources: Purchase Agreement
Retained Names. (a) Except as otherwise provided in this Section 5.7, Buyer shall use commercially reasonable efforts to cease and discontinue all uses of the Retained Names immediately upon Following the Closing.
(b) Notwithstanding , Newco shall cause the provisions of Section 5.7(a)Transferred DPP Companies and their Subsidiaries to, Buyer is not required to (and may use the Retained Names as contemplated by this Section 5.7(b)):
(i) as soon as practicable, but in no event later than six (6) months following the Closing Date, change their names, including making any necessary legal filings with the appropriate Governmental Authority to effectuate such change, and cause their certificates of incorporation (or equivalent organizational documents), as applicable, to be amended to remove any reference to “DSM,” “DPP” or any other Retained Name and cease to hold themselves out as having any affiliation with Delta or any of its Affiliates, and (ii) no later than six (6) months following the Closing Date, cease to use or to authorize any third party to use any Retained Names, and remove, strike over, or otherwise obliterate all Retained Names from all assets Assets and other materials owned or possessed by the Transferred FH DPP Companies and their Closing Subsidiaries, including any vehicles, business cards, schedules, stationery, packaging materials, displays, signs, manuals, forms, websites, email, computer software and other materials and systemssystems (except to the extent such software code and other materials are not made readily available to or observable by third Persons); provided, until no later than 60 days following however, that after the Closing Date;
(ii) file all such documents with Governmental Authorities and otherwise take such steps as are necessary to cause 6-month period, the Transferred FH DPP Companies and their Closing Subsidiaries may continue to change report in textual sentences in a factually accurate and non-prominent manner on the DPP Business’ website, securities filings and other materials that the DPP Business was previously owned by Delta. Notwithstanding anything to the contrary, Newco, the Transferred DPP Companies and their corporate Subsidiaries shall not be deemed to have violated this Section 7.7, even after the 6-month period provided above by reason of: (i) their use of Equipment and assumed namesother similar articles used in the DPP Business as of the Closing, as applicable, to names notwithstanding that do not include Retained Names (including descriptions such as “formerly known as” preceding they may bear one or modifying a Retained Name), until no later than 60 days following the Closing Date;
(iii) complete the removal of any more of the Retained Names from all acquired product(provided that it is not reasonably practicable to remove or cover the Retained Name); (ii) the appearance of the Retained Names on any tools, service and technical informationdies, promotional aidsengineering/manufacturing drawings, promotional manuals, work sheets, operating procedures, other written or electronic data, materials or Assets (including computer source code) that are used for internal purposes only in connection with the DPP Business; (iii) the appearance of the Retained Names in or on any third party’s publications, marketing materials, literature and other printed material brochures, instruction sheets, Equipment or products that were distributed in the ordinary course of the FH Business until no later than 60 days following business or pursuant to a Contract prior to the Closing Date;
, and that generally are in the public domain, or any other similar uses by any such third party over which Newco and its Affiliates have no control; (iv) the sale by distributors unaffiliated with respect to FH Assets bearing Newco of inventory containing any Retained Names, re-label Name that is held by such assets or remove such Retained Names from such assets until no later than six (6) months after the Closing Date;
(v) cease using name plates and molds bearing any Retained Names until distributors as of the date that is six (6) months after the Closing Date;
; or (viv) cease using the Retained Names on inventories existing on the Closing Date (or made in accordance with Section 5.7(b)(v)) until eighteen (18) months after the Closing Date; and
(vii) refrain from disclosing to its customers and potential customers that it is conducting the FH Business as a successor to the Seller from and after the Closing Date; provideduse by Newco, however, that, notwithstanding the above (including time periods listed in clauses (i) through (vii)), Buyer agrees (x) to use commercially reasonable efforts to complete the above actions as promptly as practicable following the Closing, (y) that after the Closing Date Buyer and its Affiliates will not expressly, or by implication, do business as or represent themselves as Seller or its Affiliates, and (z) that Buyer shall use its commercially reasonable efforts to cause third party users of any of the Retained Names, whose rights terminate upon the Closing pursuant to this Section 5.7, to cease use of the Retained Names, except as expressly authorized thereafter by Seller. Buyer and its Affiliates shall not apply to register or register any of the Trademarks forming a part of or associated with the Retained Names.
(c) Any use of the Retained Names by the Transferred FH DPP Companies and their Closing Subsidiaries permitted by this Section 5.7 shall be subject of a Retained Name in a non-trademark manner in textual sentences that are factually accurate and non-prominent, including for purposes of conveying to customers or the general public that the DPP Business is no longer affiliated with Delta, or to reference historical details concerning or make historical reference to the following conditions:
(i) Use of the Retained Names shall be in the same form and manner, to the same extent (without an increase in the extent or type of uses of the Retained Names), and subject to the same standards of quality, of that in effect for the Retained Names as of the Closing Date;
(ii) The Retained Names shall not be used in a manner that may reflect negatively on such name and marks or on Seller or any of its Affiliates;
(iii) Any press release or similar public announcement or communication that references any of the Retained Names shall include a statement that Buyer or its Affiliates, as applicable, and Seller, are not Affiliates or otherwise related to each other;
(iv) Buyer and its Affiliates shall, in connection with all written uses of the Retained Names in connection with the FH DPP Business, including on any packaging materials, displays, signs, promotional materials, forms, and websites, include a clear statement that the associated products or services are manufactured by or otherwise emanate from the Transferred FH Companies and their Closing Subsidiaries and not from Seller; and
(v) Effective upon the expiration or termination of their respective rights under this Section 5.7, Buyer and its Affiliates hereby assign to Seller their rights, if any, to any Trademarks forming a part of or associated with the Retained Names that they may retain.
(d) At the request of Seller, Buyer shall and shall cause its Affiliates to provide to Seller reasonable and representative samples of products and materials used or created under or in connection with this Section 5.7, in their possession, custody, or under their control bearing any of the Retained Names and shall permit Seller to inspect their premises and shall otherwise cooperate with Seller to assist Seller in ensuring that the conditions of use of the Retained Names set forth under Section 5.7(c) are complied with.
(e) Buyer and its Affiliates, other than the Transferred FH Companies and their Closing Subsidiaries, shall have no right to use any of the Retained Names.
(f) Without limitation to any other remedies, if Buyer and its Affiliates fail to comply with the foregoing terms and conditions or otherwise fail to comply with any reasonable direction of Seller or any of its Affiliates in relation to the use of the Retained Names, Seller shall (i) be entitled to a temporary, preliminary or permanent injunction or other equitable relief in accordance with Section 10.7, and (ii) have the right to terminate all rights to use the Retained Names as described in this Section 5.7, effective immediately. Buyer and its Affiliates shall indemnify and hold harmless Seller and its Affiliates for any Losses arising from or relating to the use by Buyer or any of its Affiliates of the Retained Names pursuant to this Section 5.7.
Appears in 1 contract
Sources: Contribution Agreement (Patheon Inc)
Retained Names. (a) Except as otherwise provided in this Section 5.7Following the Closing, Buyer shall use commercially reasonable efforts to cease cause the Transferred DPC Companies and discontinue all uses of their Subsidiaries and the Retained Names immediately upon the Closing.
(b) Notwithstanding the provisions of Section 5.7(a)Joint Ventures to, Buyer is not required to (and may use the Retained Names as contemplated by this Section 5.7(b)):
(i) as soon as practicable, but in no event later than thirty (30) days following the Closing Date, change their names, including making any necessary legal filings with the appropriate Governmental Authority to effectuate such change, and cause their certificates of incorporation (or equivalent organizational documents), as applicable, to be amended to remove any reference to “DuPont” or any other Retained Name and cease to hold themselves out as having any affiliation with DuPont, Sellers or any of their respective Affiliates, and (ii) no later than twenty-four (24) months following the Closing Date, cease to use or to authorize any third party to use any Retained Names, and remove, strike over, or otherwise obliterate all Retained Names from all assets and other materials owned or possessed by the Transferred FH DPC Companies and their Closing SubsidiariesSubsidiaries or by the Joint Ventures, including any vehicles, business cards, schedules, stationery, packaging materials, displays, signs, manuals, forms, websites, email, computer software and other materials and systemssystems (except to the extent such software code and other materials are not made readily available to or observable by third Persons); provided, until no later than 60 days following however, that after the Closing Date;
twenty-four (ii24) file all such documents with Governmental Authorities and otherwise take such steps as are necessary to cause month period, the Transferred FH DPC Companies and their Closing Subsidiaries and the Joint Ventures may continue to change report in textual sentences in a factually accurate and non-prominent manner on the DPC Business’ website, securities filings and other materials that the DPC Business was acquired from DuPont. Notwithstanding anything to the contrary, Buyer, the Transferred DPC Companies and their corporate Subsidiaries and assumed namesthe Joint Ventures shall not be deemed to have violated this Section 5.7, even after the twenty-four (24) month period provided above by reason of: (i) their use of equipment and other similar articles used in the Business as applicableof the Closing, to names notwithstanding that do not include Retained Names (including descriptions such as “formerly known as” preceding they may bear one or modifying a Retained Name), until no later than 60 days following the Closing Date;
(iii) complete the removal of any more of the Retained Names from all acquired product(provided that it is not reasonably practicable to remove or cover the Retained Name); (ii) except as otherwise provided in Section 9.1 of the Intellectual Property Cross-License Agreement, service and technical informationthe appearance of the Retained Names on any tools, promotional aidsdies, promotional engineering/manufacturing drawings, manuals, work sheets, operating procedures, other written or electronic data , materials or assets (including computer source code) that are used for internal purposes only in connection with the Business; (iii) the appearance of the Retained Names in or on any third party’s publications, marketing materials, literature and other printed material brochures, instruction sheets, equipment or products that were distributed in the ordinary course of the FH Business until no later than 60 days following business or pursuant to a contract prior to the Closing Date;
, and that generally are in the public domain, or any other similar uses by any such third party over which Buyer and its Affiliates have no control; provided that Buyer provides any such third parties with written notice of its obligations and to the extent reasonably practicable requests such third parties to cease using the Retained Names to the extent reasonably practicable; (iv) the sale by distributors unaffiliated with respect to FH Assets bearing Buyer of inventory containing any Retained Names, reName that is held by such distributors as of the date that is twenty-label such assets or remove such Retained Names from such assets until no later than six four (624) months after the Closing Date;
Date or (v) cease using name plates the use by Buyer, the Transferred DPC Companies and molds bearing any their Subsidiaries and the Joint Ventures of a Retained Names until the date Name in a non-trademark manner in textual sentences that is six (6) months after factually accurate and non-prominent, including for purposes of conveying to customers or the Closing Date;
(vi) cease using general public that the Retained Names on inventories existing on the Closing Date (DPC Business is no longer affiliated with DuPont, and/or to reference historical details concerning or made in accordance with Section 5.7(b)(v)) until eighteen (18) months after the Closing Date; and
(vii) refrain from disclosing to its customers and potential customers that it is conducting the FH Business as a successor make historical reference to the Seller from and after the Closing Date; provided, however, that, notwithstanding the above (including time periods listed in clauses (i) through (vii)), Buyer agrees (x) to use commercially reasonable efforts to complete the above actions as promptly as practicable following the Closing, (y) that after the Closing Date Buyer and its Affiliates will not expressly, or by implication, do business as or represent themselves as Seller or its Affiliates, and (z) that Buyer shall use its commercially reasonable efforts to cause third party users of any of the Retained Names, whose rights terminate upon the Closing pursuant to this Section 5.7, to cease use of the Retained Names, except as expressly authorized thereafter by Seller. Buyer and its Affiliates shall not apply to register or register any of the Trademarks forming a part of or associated with the Retained NamesDPC Business.
(cb) Any use of the Retained Names by or authorized by the Transferred FH DPC Companies and their Closing Subsidiaries and the Joint Ventures permitted by this Section 5.7 shall be subject to the following conditions:
(i) Use of the Retained Names shall be in the same form and manner, to the same extent (without an increase in the extent or type of uses of, or use of any new co-brand with respect to, the Retained Names), and subject to the same standards of quality, of that as in effect for the Retained Names as of the Closing Date;
(ii) The Retained Names shall not be used in a manner that may reflect negatively on such name and marks or on Seller DuPont or any of its Affiliates;
(iii) Buyer and its Affiliates and the Joint Ventures shall not apply to register or register any Trademark formed in whole or in part from the Retained Names;
(iv) Any press release or similar public announcement or communication that references any of the Retained Names shall include a statement that Buyer Buyer, its Affiliates or its Affiliatesthe Joint Ventures, as applicable, and SellerDuPont, are not Affiliates or otherwise related to each other;
(ivv) Buyer and its Affiliates and the Joint Ventures shall, in connection with all written Trademark uses of the Retained Names in connection with the FH DPC Business, including on any packaging materials, displays, signs, promotional materials, forms, and websites, include a clear statement that the associated products or services are manufactured by or otherwise emanate from the Transferred FH DPC Companies and their Closing Subsidiaries and the Joint Ventures and not from SellerDuPont; and
(vvi) Effective upon Upon the expiration or termination of their respective rights under this Section 5.7, Buyer and its Affiliates and the Joint Ventures hereby assign to Seller DuPont their rights, if any, to any Trademarks forming a formed in whole or in part of or associated with from the Retained Names that they may retain.
(d) At the request of Seller, Buyer shall and shall cause its Affiliates to provide to Seller reasonable and representative samples of products and materials used or created under or in connection with this Section 5.7, in their possession, custody, or under their control bearing any of the Retained Names and shall permit Seller to inspect their premises and shall otherwise cooperate with Seller to assist Seller in ensuring that the conditions of use of the Retained Names set forth under Section 5.7(c) are complied with.
(ec) Buyer and its Affiliates, other than the Transferred FH DPC Companies and their Closing SubsidiariesSubsidiaries and the Joint Ventures, shall have no right to use any of the Retained Names.
(fd) Without limitation to any other remedies, if Buyer and its Affiliates or the Joint Ventures fail to comply with the foregoing terms and conditions or otherwise fail to comply with any reasonable direction of Seller DuPont or any of its Affiliates in relation to the use of the Retained NamesNames consistent herewith, Seller shall and (i) fail to cure such deficiency within five (5) Business Days after receipt of written notice thereof, DuPont shall be entitled to a temporary, preliminary or permanent injunction or other equitable relief in accordance with Section 10.79.7, and (ii) fail to cure such deficiency within thirty (30) days after receipt of written notice thereof, DuPont shall have the right to terminate all rights to use the Retained Names as described in this Section 5.7foregoing license, effective immediately. Buyer and its Affiliates shall indemnify and hold harmless Seller DuPont and its Affiliates for any Losses arising from or relating to the use by Buyer or any of its Affiliates or the Joint Ventures of the Retained Names pursuant to this Section 5.7, except for any uses to the extent covered by an indemnification obligation of DuPont to Buyer herein; and if any such Losses arise from a third party action, suit, proceeding claim, demand or assessment then Section 8.4(f) shall apply.
Appears in 1 contract