Shared Contracts. (a) The Parties intend that all Contracts that would be deemed Shared Contracts as of the Effective Time, or portions thereof, will have been separated or assigned to a member of the Holcim Group or the SpinCo Group, as applicable, prior to the Distribution. To the extent not completed prior to the Distribution, the Parties shall, following the Distribution, use their commercially reasonable efforts to separate any Shared Contracts into separate Contracts between the appropriate Third Party and either (i) SpinCo or a member of the SpinCo Group or (ii) Holcim or a member of the Holcim Group, including, but not limited to, by: (x) entering into new Contracts, (y) assigning (in whole or in part) existing Shared Contracts and (z) cooperating to obtain any Consents or Governmental Approvals to the extent required to effectuate the foregoing. (b) Notwithstanding anything in this Agreement to the contrary, in the event any Shared Contract is unable to be separated in accordance with Section 2.8(a), the Parties shall, and/or shall cause the applicable members of its Group party to such Shared Contract to, use commercially reasonable efforts to: (i) seek mutually acceptable alternative arrangements for purposes of allocating rights and Liabilities and obligations under such Shared Contract in accordance with the relative proportions of total benefit to be received over the remaining term of the Shared Contract as of the Effective Time (provided that such arrangements shall not result in a breach or violation of such Shared Contract) and (ii) enforce for the benefit of the other Party (or the applicable member of the other Party’s Group) any and all rights under such Shared Contract related to such other Party’s Business, with such other Party bearing the reasonable and documented out-of-pocket costs and expenses of such enforcement to the extent related to the rights being enforced for the benefit of such other Party, provided that Party (or relevant member of its Group) retaining any Shared Contract shall be indemnified for all Indemnifiable Losses or other Liabilities arising out of any actions (or omissions to act) of such retaining Party taken at the direction of the other Party (or relevant member of its Group) in connection with and relating to such Shared Contract, as the case may be (other than in the event of its gross negligence, fraud or willful misconduct). (c) Each of Holcim and SpinCo shall, and shall cause the members of their respective Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to their respective Business as an Asset owned by, and/or a Liability of, as applicable, such Party, or the members of such Party’s Group, as applicable, not later than the Distribution, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law or a good faith resolution of a Tax Contest).
Appears in 4 contracts
Sources: Separation and Distribution Agreement (Amrize LTD), Separation and Distribution Agreement (Amrize LTD), Separation and Distribution Agreement (Amrize LTD)
Shared Contracts. (a) The With respect to Shared Contractual Liabilities pursuant to, under or relating to a given Shared Contract, such Shared Contractual Liabilities shall be allocated, unless otherwise allocated pursuant to this Agreement or an Ancillary Agreement, between the Parties intend that all Contracts that would as follows:
(i) first, if a Liability is incurred exclusively in respect of a benefit received by one Party or its Group, the Party or Group receiving such benefit shall be deemed responsible for such Liability;
(ii) second, if a Liability cannot be exclusively allocated to one Party or its Group under clause (i) above, such Liability shall be allocated among both Parties and their respective Groups based on the relative proportions of total benefit received (over the term of the Shared Contracts Contract, measured as of the Effective Timedate of allocation) under the relevant Shared Contract. Notwithstanding the foregoing, each Party and its Group shall be responsible for any or all Liabilities arising out of or resulting from such Party’s or Group’s breach of the relevant Shared Contract.
(b) Except as otherwise expressly contemplated in this Agreement or an Ancillary Agreement, if Dover or any member of the Dover Group, on the one hand, or ▇▇▇▇▇▇▇ or any member of the ▇▇▇▇▇▇▇ Group, on the other hand, receives any benefit or payment under any Shared Contract which was intended for the other Party or its Group, Dover, on the one hand, or ▇▇▇▇▇▇▇, on the other hand, will use its respective commercially reasonable efforts, or will cause any member of its Group to use its commercially reasonable efforts, to deliver, transfer or otherwise afford such benefit or payment to the other Party.
(c) Notwithstanding anything to the contrary herein, the Parties have determined that it is advisable that certain Shared Contracts, or portions thereof, will have been be separated or assigned to a member of the Holcim Dover Group or the SpinCo ▇▇▇▇▇▇▇ Group, as applicable, prior to the Distribution. To the extent not completed prior to the Distribution, the The Parties shall, following the Distribution, shall use their commercially reasonable efforts to separate any the Shared Contracts which are identified on Schedule 2.9(c)(i) into separate Contracts between the appropriate Third Party and either (i) SpinCo ▇▇▇▇▇▇▇ or a member of the SpinCo ▇▇▇▇▇▇▇ Group or (ii) Holcim Dover or a member of the Holcim Dover Group, including, but not limited to, by: (x) entering into new Contracts, (y) assigning (in whole . Dover or in part) existing Shared Contracts and (z) cooperating to obtain any Consents or Governmental Approvals to a member of the extent required to effectuate the foregoing.
(b) Notwithstanding anything in this Agreement to the contrary, in the event any Shared Contract is unable to be separated in accordance with Section 2.8(a), the Parties shall, and/or shall cause the applicable members of its Dover Group party to such Shared Contract to, will use commercially reasonable efforts to: (i) seek mutually acceptable alternative arrangements for purposes of allocating to assign the rights and Liabilities and obligations obligations, but only to the extent relating to the ▇▇▇▇▇▇▇ Business, under such the Shared Contract in accordance with the relative proportions of total benefit Contracts which are identified on Schedule 2.9(c)(ii) to be received over the remaining term ▇▇▇▇▇▇▇ or a member of the Shared Contract as ▇▇▇▇▇▇▇ Group. The Parties agree to cooperate and provide reasonable assistance prior to the Effective Time and for a period of six (6) months following the Effective Time (provided that with no obligation on the part of either Party to pay any costs or fees with respect to such arrangements shall not result assistance) in a breach effecting the separation or violation assignment of such Shared Contract) and (ii) enforce for the benefit of the other Party (or the applicable member of the other Party’s Group) any and all rights under such Shared Contract related to such other Party’s Business, with such other Party bearing the reasonable and documented out-of-pocket costs and expenses of such enforcement to the extent related to the rights being enforced for the benefit of such other Party, provided that Party (or relevant member of its Group) retaining any Shared Contract shall be indemnified for all Indemnifiable Losses or other Liabilities arising out of any actions (or omissions to act) of such retaining Party taken at the direction of the other Party (or relevant member of its Group) in connection with and relating to such Shared Contract, Contracts as the case may be (other than in the event of its gross negligence, fraud or willful misconduct)described above.
(c) Each of Holcim and SpinCo shall, and shall cause the members of their respective Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to their respective Business as an Asset owned by, and/or a Liability of, as applicable, such Party, or the members of such Party’s Group, as applicable, not later than the Distribution, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law or a good faith resolution of a Tax Contest).
Appears in 4 contracts
Sources: Separation and Distribution Agreement (DOVER Corp), Separation and Distribution Agreement (Knowles Corp), Separation and Distribution Agreement (Knowles Corp)
Shared Contracts. (a) The With respect to Shared Contractual Liabilities pursuant to, under or relating to a given Shared Contract, such Shared Contractual Liabilities shall be allocated, unless otherwise allocated pursuant to this Agreement or an Ancillary Agreement, between the Parties intend that all Contracts that would as follows:
(i) first, if a Liability is incurred exclusively in respect of a benefit received by one Party or its Group, the Party or Group receiving such benefit shall be deemed responsible for such Liability;
(ii) second, if a Liability cannot be exclusively allocated to one Party or its Group under clause (i) above, such Liability shall be allocated among both Parties and their respective Groups based on the relative proportions of total benefit received (over the term of the Shared Contracts Contract, measured as of the Effective Timedate of allocation) under the relevant Shared Contract. Notwithstanding the foregoing, each Party and its Group shall be responsible for any or all Liabilities arising out of or resulting from such Party’s or Group’s breach of the relevant Shared Contract.
(b) Except as otherwise expressly contemplated in this Agreement or an Ancillary Agreement, if Dover or any member of the Dover Group, on the one hand, or Apergy or any member of the Apergy Group, on the other hand, receives any benefit or payment under any Shared Contract which was intended for the other Party or its Group, Dover, on the one hand, or Apergy, on the other hand, will use its respective commercially reasonable efforts, or will cause any member of its Group to use its commercially reasonable efforts, to deliver, transfer or otherwise afford such benefit or payment to the other Party.
(c) Notwithstanding anything to the contrary herein, the Parties have determined that it is advisable that certain Shared Contracts, or portions thereof, will have been be separated or assigned to a member of the Holcim Dover Group or the SpinCo Apergy Group, as applicable, prior to the Distribution. To the extent not completed prior to the Distribution, the The Parties shall, following the Distribution, shall use their commercially reasonable efforts to separate any the Shared Contracts which are identified on Schedule 2.9(c)(i) into separate Contracts between the appropriate Third Party and either (i) SpinCo Apergy or a member of the SpinCo Apergy Group or (ii) Holcim Dover or a member of the Holcim Dover Group, including, but not limited to, by: (x) entering into new Contracts, (y) assigning (in whole . Dover or in part) existing Shared Contracts and (z) cooperating to obtain any Consents or Governmental Approvals to a member of the extent required to effectuate the foregoing.
(b) Notwithstanding anything in this Agreement to the contrary, in the event any Shared Contract is unable to be separated in accordance with Section 2.8(a), the Parties shall, and/or shall cause the applicable members of its Dover Group party to such Shared Contract to, will use commercially reasonable efforts to: (i) seek mutually acceptable alternative arrangements for purposes of allocating to assign the rights and Liabilities and obligations obligations, but only to the extent relating to the Apergy Business, under such the Shared Contract in accordance with the relative proportions of total benefit Contracts which are identified on Schedule 2.9(c)(ii) to be received over the remaining term Apergy or a member of the Shared Contract as Apergy Group. The Parties agree to cooperate and provide reasonable assistance prior to the Effective Time and for a period of six months following the Effective Time (provided that with no obligation on the part of either Party to pay any costs or fees with respect to such arrangements shall not result assistance) in a breach effecting the separation or violation assignment of such Shared Contract) and (ii) enforce for the benefit of the other Party (or the applicable member of the other Party’s Group) any and all rights under such Shared Contract related to such other Party’s Business, with such other Party bearing the reasonable and documented out-of-pocket costs and expenses of such enforcement to the extent related to the rights being enforced for the benefit of such other Party, provided that Party (or relevant member of its Group) retaining any Shared Contract shall be indemnified for all Indemnifiable Losses or other Liabilities arising out of any actions (or omissions to act) of such retaining Party taken at the direction of the other Party (or relevant member of its Group) in connection with and relating to such Shared Contract, Contracts as the case may be (other than in the event of its gross negligence, fraud or willful misconduct)described above.
(c) Each of Holcim and SpinCo shall, and shall cause the members of their respective Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to their respective Business as an Asset owned by, and/or a Liability of, as applicable, such Party, or the members of such Party’s Group, as applicable, not later than the Distribution, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law or a good faith resolution of a Tax Contest).
Appears in 4 contracts
Sources: Separation and Distribution Agreement (DOVER Corp), Separation and Distribution Agreement (Apergy Corp), Separation and Distribution Agreement (Apergy Corp)
Shared Contracts. (a) The Parties intend Any Contract to be assigned, contributed, conveyed, transferred and delivered to VS in accordance with the Restructuring Plan or as contemplated pursuant to Section 2.03 that all Contracts does not exclusively relate to the VS Business (each, a “Shared Contract”) shall be assigned, contributed, conveyed, transferred and delivered only with respect to (and preserving the meaning of) those parts that would be deemed Shared Contracts as of relate to the Effective TimeVS Business, or portions thereof, will have been separated or assigned to a member of the Holcim Group or the SpinCo VS Group, as applicableif so assignable, conveyable or transferrable, or appropriately amended (including by entering into a new agreement) prior to to, on or after the Distribution. To the extent not completed prior to the DistributionDistribution Date, the Parties shall, following the Distribution, use their commercially reasonable efforts to separate any Shared Contracts into separate Contracts between the appropriate Third Party and either (i) SpinCo or so that a member of the SpinCo VS Group or (ii) Holcim or a member of the Holcim Group, including, but not limited to, by: (x) entering into new Contracts, (y) assigning (in whole or in part) existing Shared Contracts and (z) cooperating to obtain any Consents or Governmental Approvals shall be entitled to the extent required to effectuate the foregoing.
(b) Notwithstanding anything in this Agreement to the contrary, in the event any Shared Contract is unable to be separated in accordance with Section 2.8(a), the Parties shall, and/or shall cause the applicable members rights and benefit of its Group party to those parts of such Shared Contract to, use commercially reasonable efforts to: (i) seek mutually acceptable alternative arrangements for purposes of allocating rights and Liabilities and obligations under such Shared Contract in accordance with the relative proportions of total benefit to be received over the remaining term of the Shared Contract as of the Effective Time (provided that such arrangements shall not result in a breach or violation of such Shared Contract) and (ii) enforce for the benefit of the other Party (or the applicable member of the other Party’s Group) any and all rights under such Shared Contract related to such other Party’s Business, with such other Party bearing the reasonable and documented out-of-pocket costs and expenses of such enforcement relate to the extent VS Business and shall assume the related to the rights being enforced for the benefit of such other Party, provided that Party (or relevant member of its Group) retaining any Shared Contract shall be indemnified for all Indemnifiable Losses or other Liabilities arising out of any actions (or omissions to act) of such retaining Party taken at the direction of the other Party (or relevant member of its Group) in connection with and relating respect to such Shared Contract, as the case may be (other than in the event of its gross negligence, fraud or willful misconduct).
(c) Each of Holcim and SpinCo shall, and shall cause the members of their respective Group to, contemplated by Section 2.03; provided that (i) treat for all Tax purposes the portion of each in no event shall any Person be required to assign, contribute, convey, transfer or deliver (or so amend), either in whole or in part, any Shared Contract inuring to their respective Business as an Asset owned by, and/or a Liability of, as applicable, such Party, that is not assignable (or cannot be amended) by its terms without the members consent or approval of such Party’s Group, as applicable, not later than the Distribution, any other Person and (ii) neither report nor take if any Tax position (on a Tax Return Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be so amended, without such consent or approval, until such time that such consent or approval is obtained, L Brands will cooperate with VS to establish an agency type or other similar arrangement reasonably satisfactory to L Brands and VS intended to both (A) inconsistent provide a member of the VS Group, to the fullest extent practicable under such Shared Contract, the claims, rights and benefits of those parts that relate to the VS Business and (B) cause such member of the VS Group to bear the related Liabilities thereunder from and after the Distribution in accordance with this Agreement (including by means of any subcontracting, sublicensing or subleasing arrangement) and in furtherance of the foregoing, VS shall, or shall cause another member of the VS Group to, promptly pay, perform or discharge when due any such Liability arising after the Distribution Time, which shall constitute VS Liabilities for purposes of this Agreement. Nothing in this Section 2.05 shall require any member of the L Brands Group or the VS Group to incur any non-de minimis obligation or grant any non-de minimis concession in order to effect any transaction contemplated by this Section 2.05.
(b) For so long as any member of the L Brands Group is party to any Shared Contract and provides any member of the VS Group any claims, rights and benefits of any such Shared Contract pursuant to an arrangement described in Section 2.05(a), such member of the VS Group shall indemnify the L Brands Indemnitees against and shall hold each of them harmless from any and all Liabilities incurred or suffered by any of the L Brands Indemnitees arising out of or in connection with such treatment member of the L Brands Group’s post-Distribution direct or indirect ownership, management or operation of any such Shared Contract (unless required by applicable Law or a good faith resolution of a Tax Contestto the extent that such Liabilities relate to the VS Business).
Appears in 3 contracts
Sources: Separation and Distribution Agreement (Victoria's Secret & Co.), Separation and Distribution Agreement (Bath & Body Works, Inc.), Separation and Distribution Agreement (Victoria's Secret & Co.)
Shared Contracts. With effect from the Separation Date until the termination or expiry of the relevant Shared Contract, in respect of the Alcon Part or Novartis Part (as applicable) of each Shared Contract:
(a) The Parties intend that all Contracts that would be deemed subject to sub-paragraphs (b) and (c) below, the provisions of paragraph 1.6 (Third Party Consents Not Obtained Prior to Commencement of Separation) of this Schedule 2 (Transferring Contracts) shall apply mutatis mutandis as though (i) a Third Party Consent is required in respect of the transfer of the Alcon Part or Novartis Part, as applicable, of such Shared Contract and (ii) such Third Party Consent has not been obtained at the Separation Date;
(b) the application provisions of this Schedule 2 (Transferring Contracts) to the Shared Contracts as referred to in schedule 8 of the Effective Time, Manufacturing and Supply Agreement shall be subject to the terms of schedule 8 of the Manufacturing and Supply Agreement; and
(c) if the relevant member of the Alcon Group or portions thereof, will have been separated member of the Novartis Group (as applicable) wishes to enforce any of its rights under the Alcon Part or assigned Novartis Part (as applicable) (the Relevant Shared Contract Beneficiary) of any Shared Contract:
(i) it shall give written notice to the relevant member of the Novartis Group (if the Relevant Shared Contract Beneficiary is a member of the Holcim Group Alcon Group) or the SpinCo Group, as applicable, prior to relevant member of the Distribution. To Alcon Group (if the extent not completed prior to the Distribution, the Parties shall, following the Distribution, use their commercially reasonable efforts to separate any Relevant Shared Contracts into separate Contracts between the appropriate Third Party and either (i) SpinCo or Contract Beneficiary is a member of the SpinCo Group or Novartis Group) (iias applicable) Holcim or a member of the Holcim Group, including, but not limited to, by: (x) entering into new Contracts, (y) assigning (in whole or in part) existing Shared Contracts and (z) cooperating to obtain any Consents or Governmental Approvals to the extent required to effectuate the foregoing.
(b) Notwithstanding anything in this Agreement to the contrary, in the event any Shared Contract that is unable to be separated in accordance with Section 2.8(a), the Parties shall, and/or shall cause the applicable members of its Group party to such Shared Contract to(the Relevant Shared Contract Party) containing reasonably specific details of any claim that it wishes to make to enforce its rights under the Alcon Part or Novartis Part (as applicable) of any Shared Contract, use commercially reasonable efforts to: including such Information as is available to it to allow such Relevant Shared Contract Party (ias applicable) seek mutually acceptable alternative arrangements for purposes to assess the merits of allocating rights such claim and its amount; and
(ii) if:
(A) such Shared Contract primarily relates to the Alcon Business, Alcon (or any member of the Alcon Group) shall, subject to Novartis and each member of the Novartis Group being indemnified by Alcon against all Liabilities suffered or incurred by them to the extent arising out of or resulting from the conduct of any claim having been assumed by Alcon (or any member of the Alcon Group) under this sub-paragraph (A), be entitled (at its election and obligations sole expense) to take such action as it shall deem necessary to negotiate, make, assert, avoid, dispute, deny, defend, resist, appeal, compromise, contest, settle, discharge or otherwise deal with any such claim and to have the conduct of any related proceedings, negotiations or appeals; provided, that Alcon shall ensure that it and each member of the Alcon Group shall:
1. not advance any argument against the counterparty under such Shared Contract in accordance with or take any step that would reasonably be likely to have an adverse impact on Novartis, any of its Affiliates or the relative proportions Novartis Business;
2. take into account any reasonable requests of total benefit to be received over the remaining term of the Shared Contract as of the Effective Time (provided that such arrangements shall not result in a breach or violation of such Shared Contract) and (ii) enforce for the benefit of the other Party Novartis (or the applicable any member of the other Party’s Novartis Group) in respect of such claim; and
3. keep Novartis regularly informed in respect of such claim; or
(iii) such Shared Contract primarily relates to the Novartis Business, Novartis (or any member of the Novartis Group of its Affiliates) shall be entitled (at its election and all rights sole expense) to take such action as it shall deem necessary to negotiate, make, assert, avoid, dispute, deny, defend, resist, appeal, compromise, contest, settle, discharge or otherwise deal with any such claim and to have the conduct of any related proceedings, negotiations or appeals; provided, that Novartis shall ensure that it and each member of the Novartis Group shall:
(A) not advance any argument against the counterparty under such Shared Contract related or take any step that would reasonably be likely to such other Party’s have an adverse impact on the Alcon Business, with such other Party bearing the ;
(B) take into account any reasonable and documented out-of-pocket costs and expenses requests of such enforcement to the extent related to the rights being enforced for the benefit of such other Party, provided that Party Alcon (or relevant any member of its Group) retaining any Shared Contract shall be indemnified for all Indemnifiable Losses or other Liabilities arising out of any actions (or omissions to act) of such retaining Party taken at the direction of the other Party (or relevant member of its Alcon Group) in connection with and relating to respect of such Shared Contract, as the case may be (other than in the event of its gross negligence, fraud or willful misconduct).claim; and
(cC) Each of Holcim and SpinCo shall, and shall cause the members of their respective Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to their respective Business as an Asset owned by, and/or a Liability of, as applicable, such Party, or the members keep Alcon regularly informed in respect of such Party’s Group, as applicable, not later than the Distribution, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law or a good faith resolution of a Tax Contest)claim.
Appears in 3 contracts
Sources: Separation and Distribution Agreement (Alcon Inc), Separation and Distribution Agreement (Alcon Inc), Separation and Distribution Agreement (Alcon Inc)
Shared Contracts. (a) The With respect to Shared Contractual Liabilities pursuant to, under or relating to a given Shared Contract, such Shared Contractual Liabilities shall be allocated, unless otherwise allocated pursuant to this Agreement or an Ancillary Agreement, between the Parties intend that all Contracts that would as follows:
(i) first, if a Liability is incurred exclusively in respect of a benefit received by one Party or its Group, the Party or Group receiving such benefit shall be deemed responsible for such Liability;
(ii) second, if a Liability cannot be exclusively allocated to one Party or its Group under clause (i) above, such Liability shall be allocated among both Parties and their respective Groups based on the relative proportions of total benefit to be received over the remaining term of the Shared Contracts Contract, measured starting as of the Effective Time, or portions thereof, will have been separated or assigned to a member date of the Holcim Group or Distribution under the SpinCo Grouprelevant Shared Contract. Notwithstanding the foregoing, as applicable, prior to the Distribution. To the extent not completed prior to the Distribution, the Parties shall, following the Distribution, use their commercially reasonable efforts to separate any Shared Contracts into separate Contracts between the appropriate Third each Party and either (i) SpinCo its Group shall be responsible for any or a member all Liabilities arising out of or resulting from such Party’s or Group’s breach of the SpinCo relevant Shared Contract (including any breach committed by the other Party or its Group at the instruction of a Party or (ii) Holcim or a member of the Holcim its Group, including, but not limited to, by: (x) entering into new Contracts, (y) assigning (in whole or in part) existing Shared Contracts and (z) cooperating to obtain any Consents or Governmental Approvals to the extent required to effectuate the foregoing).
(b) Notwithstanding anything Except as otherwise expressly contemplated in this Agreement to or an Ancillary Agreement, if NCR or any member of the contraryNCR Group, in on the event one hand, or ATMCo or any member of the ATMCo Group, on the other hand, receives any benefit or payment under any Shared Contract is unable which was intended for the other Party or its Group, NCR, on the one hand, or ATMCo, on the other hand, as applicable, will use its respective commercially reasonable efforts, or will cause any member of its Group to be use its commercially reasonable efforts, to deliver, Transfer or otherwise afford such benefit or payment to the other Party, subject to Section 2.4(f). With respect to any Shared Contract that remains in existence following the Distribution and has not been separated in accordance with pursuant to Section 2.8(a2.8(d), the Parties shall use commercially reasonable efforts to seek mutually acceptable alternative arrangements for purposes of allocating rights and liabilities and obligations under such Shared Contract (provided that such arrangements shall not result in a breach or violation of such Shared Contract) (an “Acceptable Alternative Arrangement”). Such Acceptable Alternative Arrangements may include a subcontracting, sublicensing or subleasing arrangement under which NCR or ATMCo, as applicable, and their applicable Subsidiaries would, in compliance with Law, obtain the benefits under, and assume the Liabilities associated with, such Shared Contract solely to the extent related to their respective Business (or applicable portion thereof) and in accordance with the terms of this Agreement or any Ancillary Agreement.
(c) With respect to any Shared Contract, from and after the Distribution, each Party shall, and/or shall cause the applicable members of its Group party to such Shared Contract to, upon the request of the other Party, use its commercially reasonable efforts to: (i) seek mutually acceptable alternative arrangements for purposes of allocating rights and Liabilities and obligations under such Shared Contract in accordance with the relative proportions of total benefit to be received over the remaining term of the Shared Contract as of the Effective Time (provided that such arrangements shall not result in a breach or violation of such Shared Contract) and (ii) enforce for the benefit of the other Party (or the applicable member of the other Party’s Group) any and all rights under such Shared Contract related to such other Party’s Business, with business and such other Party bearing shall bear the reasonable and documented out-of-pocket costs and expenses of such enforcement to the extent related to the rights being enforced for the benefit of such other Party, provided that . The Party (or relevant member of its Group) retaining any Shared Contract shall (i) not be obligated, in connection with the foregoing in this Section 2.8(c), to expend any money unless the necessary funds are advanced, or agreed in advance to be reimbursed by the Party (or relevant member of its Group), other than reasonable attorneys’ fees and recording or similar fees, all of which shall be promptly reimbursed by the other Party (or relevant member of its Group); provided, however, that each Party shall bear its own expenses in connection with the separation of such Shared Contract or the establishment of any Acceptable Alternative Arrangement and (ii) be indemnified for all Indemnifiable Losses or other Liabilities arising out of any actions (or omissions to act) of such retaining Party taken at the direction of the other Party (or relevant member of its Group) in connection with and relating to such Shared Contract, as the case may be (other than in the event of its gross negligence, fraud or willful misconduct). From and after the Distribution, the Party whose Group holds a Shared Contract shall not (and shall cause the other members of its Group not to), without the consent of the other Party (such consent not to be unreasonably withheld, conditioned or delayed), and subject to Section 6.4, (w) waive any rights under such Shared Contract to the extent related to business of the other Party, (y) terminate (or consent to be terminated by the counterparty) such Shared Contract except in connection with (1) the expiration of such Shared Contract in accordance with its terms (it being understood, for the avoidance of doubt, that sending a notice of non-renewal to the counterparty to such Shared Contract in accordance with the terms of such Shared Contract is expressly permitted; provided, however, that notice of the non-renewal shall be provided to the other Party within five (5) Business Days of informing the counterparty that the Shared Contract will not be renewed) or (2) a partial termination of such Shared Contract that would not reasonably be expected to impact any rights or obligations under such Shared Contract related to the business of the other Party, or (z) amend, modify or supplement such Shared Contract in a manner material and adverse to the Group of the other Party. From and after the Distribution, if either Party (or any member of such Party’s Group) (the “Notice Recipient”) receives from a counterparty to a Shared Contract a formal notice of breach of such Shared Contract that could reasonably be expected to impact the other Party (or any member of such Party’s Group), the Notice Recipient shall provide written notice to the other Party as soon as reasonably practicable (and in no event later than five (5) Business Days following receipt of such notice) and the Parties shall consult with respect to the actions proposed to be taken regarding the alleged breach. If either Group (the “Notifying Party”) sends to a counterparty to a Shared Contract a formal notice of breach of such Shared Contract that could reasonably be expected to impact the other Group, the Notifying Party shall provide written notice to the other Party as soon as reasonably practicable (and in no event later than five (5) Business Days after sending such notice of breach to the counterparty), and the Parties shall consult with each other regarding such alleged breach. From and after the Distribution, neither Party shall (and shall cause the other members of its Group not to) breach any Shared Contract to the extent such breach would reasonably be expected to result in a loss of rights, or acceleration or increase of obligations, of any member of the other Party’s Group pursuant to (X) such Shared Contract, (Y) any partial assignment related to such Shared Contract or (Z) any other Contract with the counterparty to such Shared Contract (or any of its Affiliates) in existence at the time of the Distribution that contains cross-default or similar provisions related to such Shared Contract.
(cd) Notwithstanding anything to the contrary herein, the Parties have determined that it is advisable that certain Shared Contracts, or portions thereof, will be separated or assigned to a member of the NCR Group or the ATMCo Group, as applicable. The Parties shall, following the Distribution, use their commercially reasonable efforts to separate the Shared Contracts, including those identified on Schedule 2.8(d), into separate Contracts between the appropriate Third Party and either (i) ATMCo or a member of the ATMCo Group or (ii) NCR or a member of the NCR Group. Separation of Shared Contracts may be accomplished by any of entrance into new Contracts or through assignments (in whole or in part) consistent with the foregoing requirements.
(e) To the extent in order to separate a Shared Contract or take any other action required by this Section 2.8 it is necessary to obtain any Consents or Governmental Approvals the Parties shall, and shall cause the respective members of their Groups to, cooperate and use commercially reasonable efforts to seek to obtain such Consents or Governmental Approvals as promptly as practicable after the date hereof; provided that in no event shall any member of a Group have any Liability whatsoever to any member of the other Group for any failure to obtain any such Consent or Governmental Approval and neither Party nor any member of its Group shall be required to commence any litigation, contribute capital, pay or grant any consideration or concession in any form (including providing any letter of credit, guaranty (other than pursuant to Section 2.11) or other financial accommodation) to any Third Party in order to cause such Governmental Approval or other Consent to be obtained; provided, further, that each Party shall be required to bear any reasonable out-of-pocket expenses, outside attorneys’ fees and recording or similar Third-Party fees and the costs of salaries and benefits of its employees incurred in connection with its performance of its obligations under this Section 2.8(e).
(f) Each of Holcim NCR and SpinCo ATMCo shall, and shall cause the members of their respective Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to their respective Business as an Asset owned by, and/or a Liability of, as applicable, such Party, or the members of such Party’s Group, as applicable, not later than the Distribution, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law or a good faith resolution of a Tax Contest).
Appears in 3 contracts
Sources: Separation and Distribution Agreement (NCR Atleos Corp), Separation and Distribution Agreement (NCR Atleos, LLC), Separation and Distribution Agreement (NCR ATMCo, LLC)
Shared Contracts. (a) The Parties intend that all Contracts that would With respect to Shared Contractual Liabilities pursuant to, under or relating to a given Shared Contract, such Shared Contractual Liabilities shall, unless otherwise allocated pursuant to this Agreement or an Ancillary Agreement, be deemed allocated between Seller and Buyer (or the Company, as applicable) as follows:
(i) If a Liability or obligation is incurred exclusively in respect of the Rolling Mill Business or the Excluded Businesses, such Liability or obligation shall be allocated to Buyer (in respect of the Rolling Mill Business) or Seller (in respect of the Excluded Businesses);
(ii) If a Liability or obligation cannot be so allocated under clause (i) above, such Liability or obligation shall be allocated to Seller or Buyer, as the case may be, based on the relative proportions of total benefit received (over the term of the Shared Contracts Contract remaining as of the Effective TimeClosing Date, measured as of the date of the allocation) by the Rolling Mill Business or the Excluded Business under the relevant Shared Contract. Notwithstanding the foregoing, each of Seller and Buyer shall be responsible for any or all Liability or obligation arising from its (or its Subsidiary’s) breach of the relevant Shared Contract to which this Section 5.21 otherwise pertains; provided, however, that each of Seller and Buyer shall be entitled to indemnification from the other for the portion of any Liability or obligation arising from any breach of the relevant Shared Contract by the other party (or its Subsidiary), which indemnification shall be separate from and not subject to the limitations set forth in Section 9.7.
(b) If Seller or any Retained Subsidiaries, on the one hand, or portions thereofBuyer or any of its Subsidiaries, on the other hand, receives any benefit or payment which under any Shared Contract was intended for the other, Seller and Buyer will have been separated use their respective reasonable best efforts to, and to cause their respective Subsidiaries to, deliver such benefit or assigned to a member of the Holcim Group or the SpinCo Group, as applicable, prior payment to the Distribution. To the extent not completed prior other party.
(c) Notwithstanding anything to the Distributioncontrary herein, the Parties shall, following parties agree that the Distribution, use their commercially reasonable efforts to separate any Shared Contracts listed on Schedule Section 5.21(c)(i) shall not be deemed to be Rolling Mill Assets hereunder and are Excluded Assets (the “Excluded Shared Contracts”). Without limiting the foregoing, the parties have determined that it is advisable that certain Shared Contracts, which are identified on Schedule Section 5.21(c)(ii), be separated into separate Contracts between the appropriate Third Party and either the Excluded Businesses or the Rolling Mill Business. The parties agree to cooperate and use reasonable best efforts prior to the Closing (iwith no obligation on the part of either party to pay any costs or fees with respect to such assistance) SpinCo or a member to effect the separation of such Shared Contracts. If such Shared Contracts are not separated at Closing, the SpinCo Group or (ii) Holcim or a member parties agree to continue to provide each other with reasonable cooperation and assistance in effecting the separation of the Holcim Group, including, but not limited to, by: (x) entering into new Contracts, (y) assigning (in whole or in part) existing such Shared Contracts and (z) cooperating shall treat the same as Shared Contracts or take such reasonable steps as are necessary to obtain any Consents or Governmental Approvals to the extent required to effectuate the foregoing.
(b) Notwithstanding anything in this Agreement to the contrary, in the event any Shared Contract is unable to be separated in accordance with Section 2.8(a), the Parties shall, and/or shall cause the applicable members of its Group provide each party to such Shared Contract to, use commercially reasonable efforts to: (i) seek mutually acceptable alternative arrangements for purposes of allocating rights and Liabilities and obligations under such Shared Contract in accordance with the relative proportions of total benefit to be received over the remaining term of the Shared Contract as of the Effective Time (provided that such arrangements shall not result in a breach or violation of such Shared Contract) and (ii) enforce for the benefit of the other Party (or the applicable member of the other Party’s Group) any and all rights under such Shared Contract related to such other Party’s Business, with such other Party bearing the reasonable and documented out-of-pocket costs and expenses of such enforcement to the extent related to the rights being enforced for the benefit of such other Party, provided that Party (or relevant member of its Group) retaining any Shared Contract shall be indemnified for all Indemnifiable Losses or other Liabilities arising out of any actions (or omissions to act) of such retaining Party taken at the direction of the other Party (or relevant member of its Group) in connection with and relating to such Shared Contract, as the case may be (other than in the event of its gross negligence, fraud or willful misconduct)Contracts.
(c) Each of Holcim and SpinCo shall, and shall cause the members of their respective Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to their respective Business as an Asset owned by, and/or a Liability of, as applicable, such Party, or the members of such Party’s Group, as applicable, not later than the Distribution, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law or a good faith resolution of a Tax Contest).
Appears in 2 contracts
Sources: Purchase Agreement (Alcoa Corp), Purchase Agreement (Kaiser Aluminum Corp)
Shared Contracts. (a) The With respect to Shared Contractual Liabilities pursuant to, under or relating to a given Shared Contract, such Shared Contractual Liabilities shall be allocated, unless otherwise allocated pursuant to this Agreement or an Ancillary Agreement, between the Parties intend that all Contracts that would as follows:
(i) first, if a Liability is incurred exclusively in respect of a benefit received by one Party or its Group, the Party or Group receiving such benefit shall be deemed responsible for such Liability;
(ii) second, if a Liability cannot be exclusively allocated to one Party or its Group under clause (i) above, such Liability shall be allocated among both Parties and their respective Groups based on the relative proportions of total benefit received (over the remaining term of the Shared Contracts Contract, measured starting as of the Effective Timedate of allocation) under the relevant Shared Contract. Notwithstanding the foregoing, each Party and its Group shall be responsible for any or all Liabilities arising out of or resulting from such Party's or Group's breach of the relevant Shared Contract.
(b) Except as otherwise expressly contemplated in this Agreement or an Ancillary Agreement, if Trinity or any member of the Trinity Group, on the one hand, or Arcosa or any member of the Arcosa Group, on the other hand, receives any benefit or payment under any Shared Contract which was intended for the other Party or its Group, Trinity, on the one hand, or Arcosa, on the other hand, as applicable, will use its respective commercially reasonable efforts, or will cause any member of its Group to use its commercially reasonable efforts, to deliver, Transfer or otherwise afford such benefit or payment to the other Party.
(c) Notwithstanding anything to the contrary herein, the Parties have determined that it is advisable that certain Shared Contracts, or portions thereof, will have been be separated or assigned to a member of the Holcim Trinity Group or the SpinCo Arcosa Group, as applicable, prior to the Distribution. To the extent not completed prior to the Distribution, the The Parties shall, following the Distribution, shall use their commercially reasonable efforts to separate any the Shared Contracts which are identified on Schedule 2.8(c)(i) into separate Contracts between the appropriate Third Party and either (i) SpinCo Arcosa or a member of the SpinCo Arcosa Group or (ii) Holcim Trinity or a member of the Holcim Trinity Group, including, but not limited to, by: (x) entering into new Contracts, (y) assigning (in whole . Trinity or in part) existing Shared Contracts and (z) cooperating to obtain any Consents or Governmental Approvals to a member of the extent required to effectuate the foregoing.
(b) Notwithstanding anything in this Agreement to the contrary, in the event any Shared Contract is unable to be separated in accordance with Section 2.8(a), the Parties shall, and/or shall cause the applicable members of its Trinity Group party to such Shared Contract to, will use commercially reasonable efforts to: (i) seek mutually acceptable alternative arrangements for purposes of allocating to assign the rights and Liabilities and obligations obligations, but only to the extent relating to the Arcosa Business, under such the Shared Contract in accordance with the relative proportions of total benefit Contracts which are identified on Schedule 2.8(c)(ii) to be received over the remaining term Arcosa or a member of the Shared Contract as Arcosa Group. The Parties agree to cooperate and provide reasonable assistance prior to the Effective Time and for a period of six (6) months following the Effective Time (provided that with no obligation on the part of either Party to pay any costs or fees with respect to such arrangements shall not result assistance) in a breach effecting the separation or violation assignment of such Shared Contract) and (ii) enforce for the benefit of the other Party (or the applicable member of the other Party’s Group) any and all rights under such Shared Contract related to such other Party’s Business, with such other Party bearing the reasonable and documented out-of-pocket costs and expenses of such enforcement to the extent related to the rights being enforced for the benefit of such other Party, provided that Party (or relevant member of its Group) retaining any Shared Contract shall be indemnified for all Indemnifiable Losses or other Liabilities arising out of any actions (or omissions to act) of such retaining Party taken at the direction of the other Party (or relevant member of its Group) in connection with and relating to such Shared Contract, Contracts as the case may be (other than in the event of its gross negligence, fraud or willful misconduct)described above.
(cd) Each of Holcim Trinity and SpinCo Arcosa shall, and shall cause the members of their respective Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to their respective Business as an Asset owned by, and/or a Liability of, as applicable, such Party, or the members of such Party’s 's Group, as applicable, not later than the DistributionEffective Time, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law or a good faith resolution of a Tax Contest).
Appears in 2 contracts
Sources: Separation and Distribution Agreement (Trinity Industries Inc), Separation and Distribution Agreement (Arcosa, Inc.)
Shared Contracts. (a) The Parties intend that all Contracts that would With respect to Shared Contractual Liabilities relating to, arising out of or resulting from a given Shared Contract, such Shared Contractual Liabilities shall be deemed Shared Contracts as of the Effective Timeallocated, unless otherwise allocated pursuant to this Agreement or portions thereofany Ancillary Agreement, will have been separated or assigned to a member of the Holcim Group or the SpinCo Group, as applicable, prior to the Distribution. To the extent not completed prior to the Distribution, between the Parties shall, following the Distribution, use their commercially reasonable efforts to separate any Shared Contracts into separate Contracts between the appropriate Third Party and either as follows:
(i) SpinCo first, if a Liability is incurred exclusively in respect of a benefit received by one Party or a member of its Group, the SpinCo Party or Group or receiving such benefit shall be responsible for such Liability;
(ii) Holcim second, if a Liability cannot be exclusively allocated to one Party or a member its Group under clause (i) above, each Party or Group shall be responsible for fifty percent (50%) of such Liability. Notwithstanding the foregoing, each Party and its Group shall be responsible for any or all Liabilities arising out of or resulting from such Party’s or Group’s breach of the Holcim Group, including, but not limited to, by: (x) entering into new Contracts, (y) assigning (in whole or in part) existing relevant Shared Contracts and (z) cooperating to obtain any Consents or Governmental Approvals to the extent required to effectuate the foregoingContract.
(b) Notwithstanding anything Except as otherwise expressly contemplated in this Agreement to or an Ancillary Agreement, if Crane Holdings, Co. (and, after the contraryEffective Time, in Crane NXT, Co.) or any member of the event Crane NXT Group, on the one hand, or Crane Company or any member of the Crane Company Group, on the other hand, receives any benefit or payment under any Shared Contract is unable to be separated in accordance with Section 2.8(awhich was intended for the other Party or its Group, Crane Holdings, Co. (and, after the Effective Time, Crane NXT, Co.), on the Parties shallone hand, and/or shall or Crane Company, on the other hand, as applicable, will use its respective commercially reasonable efforts, or will cause the applicable members any member of its Group party to such Shared Contract to, use its commercially reasonable efforts to: (i) seek mutually acceptable alternative arrangements for purposes of allocating rights and Liabilities and obligations under efforts, to deliver, Transfer or otherwise afford such Shared Contract in accordance with the relative proportions of total benefit or payment to be received over the remaining term of the Shared Contract as of the Effective Time (provided that such arrangements shall not result in a breach or violation of such Shared Contract) and (ii) enforce for the benefit of the other Party (or the applicable member of the other Party’s Group) any and all rights under such Shared Contract related to such other Party’s Business, with such other Party bearing the reasonable and documented out-of-pocket costs and expenses of such enforcement to the extent related to the rights being enforced for the benefit of such other Party, provided that Party (or relevant member of its Group) retaining any Shared Contract shall be indemnified for all Indemnifiable Losses or other Liabilities arising out of any actions (or omissions to act) of such retaining Party taken at the direction of the other Party (or relevant member of its Group) in connection with and relating to such Shared Contract, as the case may be (other than in the event of its gross negligence, fraud or willful misconduct).
(c) Each of Holcim Crane Holdings, Co. (and, after the Effective Time, Crane NXT, Co.) and SpinCo Crane Company shall, and shall cause the members of their its respective Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to their its respective Business Businesses as an Asset owned by, and/or a Liability of, as applicable, such Party, or the members of such Party’s Group, as applicable, not later than the DistributionEffective Time, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law or a good faith resolution of a Tax Contest).
Appears in 2 contracts
Sources: Separation and Distribution Agreement (Crane NXT, Co.), Separation and Distribution Agreement (Crane Co)
Shared Contracts. (a) The Parties intend that all Contracts that would be deemed Shared Contracts as of the Effective Time, or portions thereof, will have been separated or assigned to a member of the Holcim Group or the SpinCo Group, as applicable, prior to the Distribution. To the extent not completed prior to the Distribution, the Parties shall, following the Distributionand shall cause their respective Group Members to, use their respective commercially reasonable efforts to separate any Shared Contracts into separate Contracts between work together (and, if necessary and desirable, to work with the appropriate Third Party and either (ito such Shared Contract) SpinCo or a member of the SpinCo Group or (ii) Holcim or a member of the Holcim Groupin an effort to divide, includingpartially assign, but not limited to, by: (x) entering into new Contracts, (y) assigning modify and/or replicate (in whole or in part) existing the respective rights and obligations under and in respect of any Shared Contracts Contract, such that (i) an EHP Group Member is the beneficiary of the rights and is responsible for the Liabilities related to that portion of such Shared Contract relating to the EHP Business (the “EHP Portion”), which rights shall be an EHP Asset and which obligations shall be an EHP Liability and (zii) cooperating an EPC Group Member is the beneficiary of the rights and is responsible for the Liabilities related to obtain such Shared Contract not relating to the EHP Business (the “EPC Portion”), which rights shall be an EPC Asset and which obligations shall be an EPC Liability; provided, however, that in no event shall either Party or its respective Subsidiaries be required to assign or amend any Shared Contract in its entirety or to assign a portion of any Shared Contract that is not assignable or cannot be amended by its terms (including any terms imposing Consents or Governmental Approvals conditions on an assignment where such Consents or conditions have not been obtained or fulfilled). If the Parties, or their respective Group Members, as applicable, are not able to enter into an arrangement to formally divide, partially assign, modify and/or replicate such Shared Contract prior to the extent required Effective Time as contemplated by the previous sentence, then the Parties shall, and shall cause their respective Group Members to, take such other reasonable and permissible actions (including by providing prompt notice to effectuate the foregoingother party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other party the ability to exercise any applicable rights under such Shared Contract) and cooperate in any lawful arrangement to provide that, following the Effective Time and until the earlier of two years after the Distribution Date and such time as the formal division, partial assignment, modification and/or replication of such Shared Contract as contemplated by the previous sentence is effected, (A) the Assets associated with that the EHP Portion of such Shared Contract shall be enjoyed by EHP or another EHP Group Member; (B) the Liabilities associated with the EHP Portion of such Shared Contract shall borne by EHP or another EHP Group Member; (C) the Assets associated with the EPC Portion of such Shared Contract shall be enjoyed by EPC or another EPC Group Member; and (D) the Liabilities associated with the EPC Portion of such Shared Contract shall be borne by EPC or another EPC Group Member.
(b) Notwithstanding anything in this Agreement to the contrary, in the event any Shared Contract is unable to be separated in accordance with Section 2.8(a), the Parties shall, and/or shall cause the applicable members of its Group party to such Shared Contract to, use commercially reasonable efforts to: (i) seek mutually acceptable alternative arrangements for purposes of allocating rights and Liabilities and obligations under such Shared Contract in accordance with the relative proportions of total benefit to be received over the remaining term of the Shared Contract as of the Effective Time (provided that such arrangements shall not result in a breach or violation of such Shared Contract) and (ii) enforce for the benefit of the other Party (or the applicable member of the other Party’s Group) any and all rights under such Shared Contract related to such other Party’s Business, with such other Party bearing the reasonable and documented out-of-pocket costs and expenses of such enforcement to the extent related to the rights being enforced for the benefit of such other Party, provided that Party (or relevant member of its Group) retaining any Shared Contract shall be indemnified for all Indemnifiable Losses or other Liabilities arising out of any actions (or omissions to act) of such retaining Party taken at the direction of the other Party (or relevant member of its Group) in connection with and relating to such Shared Contract, as the case may be (other than in the event of its gross negligence, fraud or willful misconduct).
(c) Each of Holcim EPC and SpinCo EHP shall, and shall cause the members of their respective its Group Members to, (i) treat for all relevant Tax purposes the portion of each Shared Contract inuring to their its respective Business businesses as an Asset Assets owned by, and/or a Liability Liabilities of, as applicable, such Partyparty, or the members of such Party’s Groupits subsidiaries, as applicable, not later than the DistributionEffective Time, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law or a good faith resolution of a Tax ContestLaw).
(c) Nothing in this Section 2.05 shall require any member of any Group to make any non-de minimis payment (except for payment obligations under the applicable Shared Contract, or to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis material for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.05.
Appears in 2 contracts
Sources: Separation and Distribution Agreement (Energizer Holdings Inc), Separation and Distribution Agreement (Energizer SpinCo, Inc.)
Shared Contracts. (a1) The With respect to Shared Contractual Liabilities pursuant to, under or relating to a given Shared Contract, such Shared Contractual Liabilities shall be allocated, unless otherwise allocated pursuant to this Agreement or an Ancillary Agreement, between the Parties intend that all Contracts that would as follows:
(i) first, if a Liability is incurred exclusively in respect of a benefit received by one Party or its Group, the Party or Group receiving such benefit shall be deemed responsible for such Liability;
(ii) second, if a Liability cannot be exclusively allocated to one Party or its Group under clause (i) above, such Liability shall be allocated among both Parties and their respective Groups based on the relative proportions of total benefit received (over the remaining term of the Shared Contracts Contract, measured starting as of the Effective Timedate of allocation) under the relevant Shared Contract. Notwithstanding the foregoing, each Party and its Group shall be responsible for any or all Liabilities arising out of or resulting from such Party’s or Group’s breach of the relevant Shared Contract.
(2) Except as otherwise expressly contemplated in this Agreement or an Ancillary Agreement, if AFC Gamma or any member of the AFC Gamma Group, on the one hand, or SUNS or any member of the SUNS Group, on the other hand, receives any benefit or payment under any Shared Contract which was intended for the other Party or its Group, AFC Gamma, on the one hand, or SUNS, on the other hand, as applicable, will use its respective commercially reasonable efforts, or will cause any member of its Group to use its commercially reasonable efforts, to deliver, Transfer or otherwise afford such benefit or payment to the other Party.
(3) Notwithstanding anything to the contrary herein, the Parties have determined that it is advisable that certain Shared Contracts, or portions thereof, will have been be separated or assigned to a member of the Holcim AFC Gamma Group or the SpinCo SUNS Group, as applicable, prior to the Distribution. To the extent not completed prior to the Distribution, the The Parties shall, following the Distribution, shall use their commercially reasonable efforts to separate any the Shared Contracts which are identified on Schedule 2.7(3) into separate Contracts between the appropriate Third Party and either (i) SpinCo SUNS or a member of the SpinCo SUNS Group or (ii) Holcim AFC Gamma or a member of the Holcim AFC Gamma Group, including, but not limited to, by: (x) entering into new Contracts, (y) assigning (in whole . AFC Gamma or in part) existing Shared Contracts and (z) cooperating to obtain any Consents or Governmental Approvals to a member of the extent required to effectuate the foregoing.
(b) Notwithstanding anything in this Agreement to the contrary, in the event any Shared Contract is unable to be separated in accordance with Section 2.8(a), the Parties shall, and/or shall cause the applicable members of its AFC Gamma Group party to such Shared Contract to, will use commercially reasonable efforts to: (i) seek mutually acceptable alternative arrangements for purposes of allocating to assign the rights and Liabilities and obligations obligations, but only to the extent relating to the SUNS Business, under such the Shared Contract in accordance with the relative proportions of total benefit Contracts which are identified on Schedule 2.7(3) to be received over the remaining term SUNS or a member of the Shared Contract as SUNS Group. The Parties agree to cooperate and provide reasonable assistance prior to the Effective Time and for a period of six (6) months following the Effective Time (provided that with no obligation on the part of either Party to pay any costs or fees with respect to such arrangements shall not result assistance) in a breach effecting the separation or violation assignment of such Shared Contract) and (ii) enforce for the benefit of the other Party (or the applicable member of the other Party’s Group) any and all rights under such Shared Contract related to such other Party’s Business, with such other Party bearing the reasonable and documented out-of-pocket costs and expenses of such enforcement to the extent related to the rights being enforced for the benefit of such other Party, provided that Party (or relevant member of its Group) retaining any Shared Contract shall be indemnified for all Indemnifiable Losses or other Liabilities arising out of any actions (or omissions to act) of such retaining Party taken at the direction of the other Party (or relevant member of its Group) in connection with and relating to such Shared Contract, Contracts as the case may be (other than in the event of its gross negligence, fraud or willful misconduct)described above.
(c4) Each of Holcim AFC Gamma and SpinCo SUNS shall, and shall cause the members of their respective Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to their respective Business as an Asset owned by, and/or a Liability of, as applicable, such Party, or the members of such Party’s Group, as applicable, not later than the DistributionEffective Time, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law or a good faith resolution of a Tax Contest).
Appears in 2 contracts
Sources: Separation and Distribution Agreement (Sunrise Realty Trust, Inc.), Separation and Distribution Agreement (Sunrise Realty Trust, Inc.)
Shared Contracts. (a) The Parties intend that all Subject to Section 2.10(d) and other than with respect to the provision of Services under the Transitional Services Agreement or Shared Contracts that would be deemed are sublicensed to the Company and other Persons in the Company Group pursuant to the Patent and Know-How License Agreement (Pfizer as Licensor) or the Trademark and Copyright License Agreement, from and after the Effective Date, Pfizer may, in its sole discretion, make available to the Company Group the benefits and rights under Shared Contracts as of the Effective Time, or portions thereof, will have been separated or assigned to a member of the Holcim Group or the SpinCo Group, as applicable, prior to the Distribution. To the extent not completed prior such benefits and rights have historically been and currently are provided to the Distribution, the Parties shall, following the Distribution, use their commercially reasonable efforts Animal Health Business. With respect to separate any Shared Contracts into separate Contracts between made available to the appropriate Third Party and either Company Group pursuant to this Section 2.10(a), (i) SpinCo no Person in the Company Group shall take any action, or refrain from taking any action, if (A) such action or inaction is reasonably likely to or does result in a member breach on the part of any Person in the SpinCo Pfizer Group under any Shared Contract and (B) such Person in the Company Group would otherwise be obligated to take or not take such action under the Shared Contract had such Person become severally liable under the Shared Contract at the Effective Date and (ii) Holcim each Person in the Company Group shall reasonably cooperate with Pfizer and, at Pfizer’s reasonable request, take such actions that are permissible and reasonably necessary or a member of the Holcim Group, including, but not limited to, by: (x) entering into new Contracts, (y) assigning (in whole or in part) existing desirable to ensure that Pfizer is able to perform its obligations constituting Shared Contracts and (z) cooperating to obtain any Consents or Governmental Approvals to the extent required to effectuate the foregoingContract Liabilities under such Shared Contract.
(b) Notwithstanding anything in this Agreement With respect to the contrary, in the event any Shared Contract is unable Liabilities pursuant to, under or relating to be separated in accordance with Section 2.8(a)a given Shared Contract, the Parties shall, and/or shall cause the applicable members of its Group party to such Shared Contract toLiabilities shall be allocated, use commercially reasonable efforts to: unless otherwise allocated pursuant to this Agreement or an Ancillary Agreement, between the parties as follows:
(i) seek mutually acceptable alternative arrangements first, if a Liability is incurred exclusively in respect of a benefit received by one party or its Group, the party or Group receiving such benefit shall be responsible for purposes of allocating rights such Liability and Liabilities (ii) second, if a Liability cannot be exclusively allocated to one party or its Group under clause (i) above, such Liability shall be allocated among both parties and obligations under such Shared Contract in accordance with their respective Groups based on the relative proportions of total benefit to be received (over the remaining term of the Shared Contract Contract, measured as of the Effective Time (provided that such arrangements shall not result in a breach or violation date of such allocation) under the relevant Shared Contract) . Notwithstanding the foregoing, each party and (ii) enforce for the benefit of the other Party (or the applicable member of the other Party’s Group) any and all rights under such Shared Contract related to such other Party’s Business, with such other Party bearing the reasonable and documented out-of-pocket costs and expenses of such enforcement to the extent related to the rights being enforced for the benefit of such other Party, provided that Party (or relevant member of its Group) retaining any Shared Contract Group shall be indemnified responsible for any or all Indemnifiable Losses or other Liabilities arising out of any actions (or omissions to act) of resulting from such retaining Party taken at the direction party’s or Group’s breach of the other Party (or relevant member of its Group) in connection with and relating to such Shared Contract, as the case may be (other than in the event of its gross negligence, fraud or willful misconduct).
(c) Each If Pfizer or any member of Holcim the Pfizer Group, on the one hand, or the Company or any member of the Company Group, on the other hand, receives any benefit or payment under any Shared Contract which was intended for the other party or its Group, Pfizer, on the one hand, or the Company, on the other hand, will use its respective commercially reasonable efforts, or will cause any member of its Group to use its commercially reasonable efforts, to deliver, transfer or otherwise afford such benefit or payment to the other party.
(d) It shall be the responsibility of the Company to obtain the agreement of the third party that is the counterparty to each Shared Contract to enter into a new Contract effective as of the Effective Date pursuant to which the Company and SpinCo shallits Affiliates will receive substantially the same benefits provided by the Shared Contract to the Animal Health Business prior to the Effective Date. Except as expressly provided under the Transitional Services Agreement, none of Pfizer or any other member of the Pfizer Group shall be obligated to make available to the Company Group the benefits and rights under any Shared Contracts. In no event shall cause Pfizer be liable to the members of their respective Group to, Company for (i) treat for all Tax purposes the portion of each Shared Contract inuring to their respective Business as an Asset owned by, and/or a Liability of, as applicable, such Party, or the members any Liabilities arising out of such Party’s Group, as applicable, not later than the Distribution, and new Contracts or (ii) neither report nor take Liabilities arising out of the failure of the Company to obtain any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law or a good faith resolution of a Tax Contest)replacement contract.
Appears in 2 contracts
Sources: Global Separation Agreement, Global Separation Agreement (Zoetis Inc.)
Shared Contracts. (a1) The With respect to Shared Contractual Liabilities pursuant to, under or relating to a given Shared Contract, such Shared Contractual Liabilities shall be allocated, unless otherwise allocated pursuant to this Agreement or an Ancillary Agreement, between the Parties intend that all Contracts that would as follows:
(i) first, if a Liability is incurred exclusively in respect of a benefit received by one Party or its Group, the Party or Group receiving such benefit shall be deemed responsible for such Liability;
(ii) second, if a Liability cannot be exclusively allocated to one Party or its Group under clause (i) above, such Liability shall be allocated among both Parties and their respective Groups based on the relative proportions of total benefit received (over the remaining term of the Shared Contracts Contract, measured starting as of the Effective Timedate of allocation) under the relevant Shared Contract. Notwithstanding the foregoing, each Party and its Group shall be responsible for any or all Liabilities arising out of or resulting from such Party’s or Group’s breach of the relevant Shared Contract.
(2) Except as otherwise expressly contemplated in this Agreement or an Ancillary Agreement, if SG Holdings or any member of the SG Holdings Group, on the one hand, or SG DevCo or any member of the SG DevCo Group, on the other hand, receives any benefit or payment under any Shared Contract which was intended for the other Party or its Group, SG Holdings, on the one hand, or SG DevCo, on the other hand, as applicable, will use its respective commercially reasonable efforts, or will cause any member of its Group to use its commercially reasonable efforts, to deliver, Transfer or otherwise afford such benefit or payment to the other Party.
(3) Notwithstanding anything to the contrary herein, the Parties have determined that it is advisable that certain Shared Contracts, or portions thereof, will have been be separated or assigned to a member of the Holcim SG Holdings Group or the SpinCo SG DevCo Group, as applicable, prior to the Distribution. To the extent not completed prior to the Distribution, the The Parties shall, following the Distribution, shall use their commercially reasonable efforts to separate any the Shared Contracts which are identified on Schedule 2.8(3)(i) into separate Contracts between the appropriate Third Party and either (i) SpinCo SG DevCo or a member of the SpinCo SG DevCo Group or (ii) Holcim SG Holdings or a member of the Holcim SG Holdings Group, including, but not limited to, by: (x) entering into new Contracts, (y) assigning (in whole . SG Holdings or in part) existing Shared Contracts and (z) cooperating to obtain any Consents or Governmental Approvals to a member of the extent required to effectuate the foregoing.
(b) Notwithstanding anything in this Agreement to the contrary, in the event any Shared Contract is unable to be separated in accordance with Section 2.8(a), the Parties shall, and/or shall cause the applicable members of its SG Holdings Group party to such Shared Contract to, will use commercially reasonable efforts to: (i) seek mutually acceptable alternative arrangements for purposes of allocating to assign the rights and Liabilities and obligations obligations, but only to the extent relating to the SG DevCo Business, under such the Shared Contract in accordance with the relative proportions of total benefit Contracts which are identified on Schedule 2.8(3)(ii) to be received over the remaining term SG DevCo or a member of the Shared Contract as SG DevCo Group. The Parties agree to cooperate and provide reasonable assistance prior to the Effective Time and for a period of six (6) months following the Effective Time (provided that with no obligation on the part of either Party to pay any costs or fees with respect to such arrangements shall not result assistance) in a breach effecting the separation or violation assignment of such Shared Contract) and (ii) enforce for the benefit of the other Party (or the applicable member of the other Party’s Group) any and all rights under such Shared Contract related to such other Party’s Business, with such other Party bearing the reasonable and documented out-of-pocket costs and expenses of such enforcement to the extent related to the rights being enforced for the benefit of such other Party, provided that Party (or relevant member of its Group) retaining any Shared Contract shall be indemnified for all Indemnifiable Losses or other Liabilities arising out of any actions (or omissions to act) of such retaining Party taken at the direction of the other Party (or relevant member of its Group) in connection with and relating to such Shared Contract, Contracts as the case may be (other than in the event of its gross negligence, fraud or willful misconduct)described above.
(c4) Each of Holcim SG Holdings and SpinCo SG DevCo shall, and shall cause the members of their respective Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to their respective Business as an Asset owned by, and/or a Liability of, as applicable, such Party, or the members of such Party’s Group, as applicable, not later than the DistributionEffective Time, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law or a good faith resolution of a Tax Contest).
Appears in 2 contracts
Sources: Separation and Distribution Agreement (Safe & Green Development Corp), Separation and Distribution Agreement (Safe & Green Development Corp)
Shared Contracts. Prior to or at the Closing, each Contract (aother than those Contracts included in the Excluded Assets) The Parties intend with third-party suppliers or service providers to which Seller or one of its Affiliates (other than the Company and the Subsidiaries), on the one hand, and the Company or any Company Subsidiary, on the other hand, is a party and pursuant to which services or supplies are provided to both (A) Seller or one of its Affiliates (other than the Company and the Company Subsidiaries) and (B) the Company or any Company Subsidiary (each, a “Shared Contract”) shall be assigned in part, or appropriately amended, so that all Contracts each party being provided supplies or services thereunder shall be entitled to the rights and benefits, and shall assume the related portion of any Liabilities, that would be deemed Shared Contracts as relate to its businesses, in each case in accordance with the allocation of benefits and burdens set forth in Section 6.13 of the Effective TimeSeller Disclosure Schedule (the “Shared Contract Allocation”); provided, however, that, in no event shall any assignment or portions thereofamendment be required with respect to any Shared Contract which is not assignable or cannot be amended by its terms (it being understood, will have been separated or assigned to a member of the Holcim Group or the SpinCo Grouphowever, as applicable, prior to the Distribution. To the extent not completed prior to the Distribution, the Parties shall, following the Distribution, that: (i) Seller and Purchaser shall use their respective commercially reasonable efforts to separate any Shared Contracts into separate Contracts between the appropriate Third Party and either (i) SpinCo take, or a member of the SpinCo Group or (ii) Holcim or a member of the Holcim Group, including, but not limited to, by: (x) entering into new Contracts, (y) assigning (in whole or in part) existing Shared Contracts and (z) cooperating to obtain any Consents or Governmental Approvals to the extent required to effectuate the foregoing.
(b) Notwithstanding anything in this Agreement to the contrary, in the event any Shared Contract is unable cause to be separated in accordance with Section 2.8(a)taken, the Parties shall, and/or shall cause the applicable members of its Group party to such Shared Contract to, all actions and use their respective commercially reasonable efforts to: (i) seek mutually acceptable alternative arrangements for purposes of allocating rights to do, or cause to have been done, and Liabilities assisted and obligations under such Shared Contract in accordance cooperated with the relative proportions other party in doing, all things reasonably necessary, proper or advisable to have obtained such assignment or amendment of total benefit to be received over the remaining term of the Shared Contract as of the Effective Time (provided that such arrangements shall not result in a breach or violation of any such Shared Contract) and (ii) enforce for the benefit of the other Party (or the applicable member of the other Party’s Group) any and all rights under such Shared Contract related to such other Party’s Business, with such other Party bearing the reasonable and documented out-of-pocket costs and expenses of such enforcement to the extent related to the rights being enforced for the benefit of such other Party, provided that Party (or relevant member of its Group) retaining any Shared Contract shall be indemnified for all Indemnifiable Losses or other Liabilities arising out of any actions (or omissions to act) of such retaining Party taken at the direction of the other Party (or relevant member of its Group) in connection with and relating to such Shared Contract, as the case may be (other than in the event of its gross negligence, fraud or willful misconduct).
(c) Each of Holcim and SpinCo shall, and shall cause the members of their respective Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to their respective Business as an Asset owned by, and/or a Liability of, as applicable, such Party, or the members of such Party’s Group, as applicable, not later than the Distribution, and (ii) neither report nor take following the Closing, with respect to any Tax position (Shared Contract which has not been so assigned or amended, Seller and Purchaser shall, if and to the extent consistent with contractual obligations and applicable legal and fiduciary obligations under applicable Law, use their respective reasonable best efforts to cooperate in a mutually agreeable arrangement under which Seller and its Affiliates, on a Tax Return or otherwise) inconsistent the one hand, and the Company and the Company Subsidiaries, on the other hand, would, in compliance with such treatment (unless required by applicable Law or a good faith resolution of a Tax Contest)Law, obtain the benefits and assume the obligations and bear the economic burdens set forth pursuant to the Shared Contract Allocation.
Appears in 2 contracts
Sources: Acquisition Agreement (Arris Group Inc), Acquisition Agreement (Arris Group Inc)
Shared Contracts. (a) The Parties intend that all Contracts that would be deemed Shared Contracts as of the Effective Time, or portions thereof, will have been separated or assigned to a member of the Holcim Group or the SpinCo Group, as applicable, prior Prior to the Distribution. To the extent not completed prior to the DistributionClosing, the Parties shall, following the Distribution, Seller and Purchaser shall use their commercially reasonable efforts to separate work together and with the other parties to the contracts listed on Section 5.15 of the Seller Letter, if any (the “Shared Contracts into separate Contracts between the appropriate Third Party and either Contracts”), in an effort to (i) SpinCo or a member of the SpinCo Group or (ii) Holcim or a member of the Holcim Groupdivide, including, but not limited to, by: (x) entering into new Contracts, (y) assigning modify and/or replicate (in whole or in part) existing the respective rights and obligations under the Shared Contracts and (zii) cooperating to obtain any Consents or Governmental Approvals to if possible, novate the extent required to effectuate the foregoing.
(b) Notwithstanding anything in this Agreement to the contrary, in the event any Shared Contract is unable to be separated in accordance with Section 2.8(a), the Parties shall, and/or shall cause the applicable members of its Group party to such Shared Contract to, use commercially reasonable efforts to: (i) seek mutually acceptable alternative arrangements for purposes of allocating respective rights and Liabilities and obligations under the Shared Contracts, such Shared Contract in accordance with that, effective as of the relative proportions Closing, (y) the Purchaser (or its designee) is the beneficiary of total benefit the rights and is responsible for the obligations related to be received over the remaining term that portion of the Shared Contract as that is related to the Business or any Transferred Entity (the “Business Portion”) (so that, subsequent to the Closing, the Seller or its affiliates shall have no rights or obligations with respect to the Business Portion of the Effective Time (provided that such arrangements shall not result in a breach or violation of such Shared Contract) and (iiz) enforce the Seller or its affiliates is the beneficiary of the rights and is responsible for the benefit of the other Party (or the applicable member of the other Party’s Group) any and all rights under such Shared Contract related to such other Party’s Business, with such other Party bearing the reasonable and documented out-of-pocket costs and expenses of such enforcement to the extent obligations related to the rights being enforced for Shared Contract other than the benefit of such other Party, provided that Party Business Portion (the “Non-Business Portion”) (and Purchaser (or relevant member its designees) shall have no rights or obligations with respect to the Non-Business Portion of the Shared Contract). If the applicable parties are not able to enter into an arrangement to formally divide, modify and/or replicate one or more Shared Contracts prior to the Closing as contemplated by the previous sentence, each of the parties shall use its Groupcommercially reasonable efforts and cooperate with the other (at its sole cost and expense) retaining any Shared Contract to obtain such an arrangement as quickly as practicable after the Closing; provided, however, that no party shall be indemnified for all Indemnifiable Losses required to pay or other Liabilities arising out of commit to pay any actions amount to (or omissions to actincur any obligation in favor of) of any Person from whom such retaining Party taken at the direction of the arrangement may be required (other Party (than nominal filing or relevant member of its Groupapplication fees) in connection with obtaining any such arrangement. Prior to the obtaining of any such arrangement, Seller shall not cause and relating shall use commercially reasonable efforts to not permit the Shared Contract to lapse, be violated, become subject to a Lien or otherwise be adversely affected (without Purchaser’s prior written consent) and shall cooperate with Purchaser (or its designee) in any reasonable and lawful arrangements to provide to Purchaser (or its designee) the benefits of use of the Business Portion of the Shared Contract for its term and, to the extent Purchaser (or its designee) receives such benefits, it will perform the obligations of the Seller or its affiliates under the Business Portion of the Shared Contract, as . The Purchaser and the case may be (other than Seller shall participate jointly in any negotiations with parties to the event of its gross negligence, fraud or willful misconduct)Shared Contracts.
(c) Each of Holcim and SpinCo shall, and shall cause the members of their respective Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to their respective Business as an Asset owned by, and/or a Liability of, as applicable, such Party, or the members of such Party’s Group, as applicable, not later than the Distribution, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law or a good faith resolution of a Tax Contest).
Appears in 2 contracts
Sources: Purchase Agreement (Spectrum Brands, Inc.), Purchase Agreement (Salton Inc)
Shared Contracts. (a) The With respect to Shared Contractual Liabilities pursuant to, under or relating to a given Shared Contract, such Shared Contractual Liabilities shall be allocated, unless otherwise allocated pursuant to this Agreement or an Ancillary Agreement, between the Parties intend that all Contracts that would as follows:
(i) first, if a Liability is incurred exclusively in respect of a benefit received by one Party or its Group, the Party or Group receiving such benefit shall be deemed responsible for such Liability;
(ii) second, if a Liability cannot be exclusively allocated to one Party or its Group under clause (i) above, such Liability shall be allocated among both Parties and their respective Groups based on the relative proportions of total benefit received (over the term of the Shared Contracts Contract, measured as of the Effective Timedate of allocation) under the relevant Shared Contract. Notwithstanding the foregoing, each Party shall be responsible for any or all Liabilities arising out of or resulting from such Party’s or Group’s breach of the relevant Shared Contract.
(b) Except as otherwise expressly contemplated in this Agreement or an Ancillary Agreement, if Infrastructurco or any member of the Infrastructurco Group, on the one hand, or Flowco or any member of the Flowco Group, on the other hand, receives any benefit or payment under any Shared Contract which was intended for the other Party or its Group, Infrastructurco, on the one hand, or Flowco, on the other hand, will use its respective commercially reasonable efforts, to deliver, transfer or otherwise afford such benefit or payment to the other Party in as efficient a manner as can be effected with commercially reasonable efforts.
(c) Notwithstanding anything to the contrary herein, the Parties have determined that it is advisable that certain Shared Contracts, or portions thereof, will have been be separated or assigned to a member of the Holcim Infrastructurco Group or the SpinCo Flowco Group, as applicable, prior to the Distribution. To the extent not completed prior to the Distribution, the The Parties shall, following the Distribution, shall use their commercially reasonable efforts to separate any the Shared Contracts which are identified on Schedule 2.9(c) into separate Contracts between the appropriate Third Party and either (i) SpinCo Flowco or a member of the SpinCo Flowco Group or (ii) Holcim Infrastructurco or a member of the Holcim Infrastructurco Group, including, but not limited to, by: (x) entering into new Contracts, (y) assigning (in whole or in part) existing Shared Contracts and (z) cooperating to obtain any Consents or Governmental Approvals to the extent required to effectuate the foregoing.
(bd) Notwithstanding anything in this Agreement The Parties agree to cooperate and provide reasonable assistance prior to the contrary, in the event any Shared Contract is unable to be separated in accordance with Section 2.8(a), the Parties shall, and/or shall cause the applicable members Effective Time and for a period of its Group party to such Shared Contract to, use commercially reasonable efforts to: twelve (i12) seek mutually acceptable alternative arrangements for purposes of allocating rights and Liabilities and obligations under such Shared Contract in accordance with the relative proportions of total benefit to be received over the remaining term of the Shared Contract as of months following the Effective Time (provided that with no obligation on the part of either Party to pay any costs or fees with respect to such arrangements shall not result assistance) in a breach or violation effecting the separation of such Shared Contract) and (ii) enforce for the benefit of the other Party (or the applicable member of the other Party’s Group) any and all rights under such Shared Contract related to such other Party’s Business, with such other Party bearing the reasonable and documented out-of-pocket costs and expenses of such enforcement to the extent related to the rights being enforced for the benefit of such other Party, provided that Party (or relevant member of its Group) retaining any Shared Contract shall be indemnified for all Indemnifiable Losses or other Liabilities arising out of any actions (or omissions to act) of such retaining Party taken at the direction of the other Party (or relevant member of its Group) in connection with and relating to such Shared Contract, Contracts as the case may be (other than in the event of its gross negligence, fraud or willful misconduct)described above.
(c) Each of Holcim and SpinCo shall, and shall cause the members of their respective Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to their respective Business as an Asset owned by, and/or a Liability of, as applicable, such Party, or the members of such Party’s Group, as applicable, not later than the Distribution, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law or a good faith resolution of a Tax Contest).
Appears in 2 contracts
Sources: Separation and Distribution Agreement (SPX Corp), Separation and Distribution Agreement (SPX FLOW, Inc.)
Shared Contracts. (a) The Parties intend that all Contracts that would be deemed Shared Contracts as of the Effective Time, or portions thereof, will have been separated or assigned to a member of the Holcim Group or the SpinCo Group, as applicable, prior to the Distribution. To the extent not completed prior to the Distribution, the Parties shall, following the Distribution, use their commercially reasonable efforts to separate any Shared Contracts into separate Contracts between the appropriate Third Party and either (i) SpinCo or a member of the SpinCo Group or (ii) Holcim or a member of the Holcim Group, including, but not limited to, by: (x) entering into new Contracts, (y) assigning (in whole or in part) existing Shared Contracts and (z) cooperating to obtain any Consents or Governmental Approvals to the extent required to effectuate the foregoing.
(b) Notwithstanding anything in this Agreement to the contrary, in the event with respect to Liabilities pursuant to, arising under or relating to any Shared Contract is unable to Contract, such Liabilities shall be separated in accordance with Section 2.8(a)allocated between the D▇▇▇ Parties, on the one hand, and the TreeHouse Parties shallon the other hand, and/or shall cause the applicable members of its Group party to such Shared Contract to, use commercially reasonable efforts to: as follows:
(i) seek mutually acceptable alternative arrangements first, if a Liability is incurred exclusively in respect of a benefit received by one Party, the Party receiving such benefit shall be responsible for purposes of allocating rights and Liabilities and obligations such Liability; and
(ii) second, if a Liability cannot be so allocated under clause (i), such Shared Contract in accordance with Liability shall be allocated between the Parties based on the relative proportions of total benefit to be received over under the remaining term of the Shared Contract as of the Effective Time (provided that such arrangements shall not result in a breach or violation of such relevant Shared Contract) and (ii) enforce . Notwithstanding the foregoing, each Party shall be responsible for the benefit of the other Party (or the applicable member of the other Party’s Group) any and all rights under such Shared Contract related to such other Party’s Business, with such other Party bearing the reasonable and documented out-of-pocket costs and expenses of such enforcement to the extent related to the rights being enforced for the benefit of such other Party, provided that Party (or relevant member of its Group) retaining any Shared Contract shall be indemnified for all Indemnifiable Losses or other Liabilities arising out of any actions (or omissions to act) of such retaining Party taken at the direction resulting from its breach of the other Party (or relevant member of its Group) in connection with and relating to such Shared Contract.
(b) If any of the D▇▇▇ Parties, as on the case may be (one hand, or any of the TreeHouse Parties, on the other than in hand, receive any benefit or payment under any Shared Contract that was intended for the event of its gross negligenceother Party, fraud the Party receiving such benefit or willful misconduct)payment will use commercially reasonable efforts to deliver, transfer or otherwise afford such benefit or payment to the other Party.
(c) Each of Holcim and SpinCo shall, and shall cause the members of their respective Group to, (i) treat for all Tax purposes the portion of each With respect to any Shared Contract inuring that is transferred to their respective Business TreeHouse pursuant to Section 2.1(h)(iv), TreeHouse shall exercise and exploit its rights under such Shared Contracts and take such other action as an Asset owned bymay be reasonably requested by D▇▇▇ and at D▇▇▇’▇ expense in order to place D▇▇▇ in the same position it would have been if such Contract had not been transferred as contemplated hereby on the Distribution Date.
(d) With respect to any Shared Contract that is not transferred to TreeHouse pursuant to Section 2.1(h)(iv) and is instead retained by D▇▇▇, and/or a Liability of, ▇▇▇▇ shall exercise and exploit its rights under such Shared Contracts and take such other action as applicable, may be reasonably requested by TreeHouse and at TreeHouse’s expense in order to place TreeHouse in the same position it would have been if such Party, or Contract had been transferred on the members of such Party’s Group, as applicable, not later than the Distribution, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law or a good faith resolution of a Tax Contest)Distribution Date.
Appears in 2 contracts
Sources: Distribution Agreement (TreeHouse Foods, Inc.), Distribution Agreement (Dean Foods Co/)
Shared Contracts. (a) The Parties intend that all Contracts that would be deemed Shared Contracts as of Some contracts, agreements and leases relating to the Effective Time, Townsquare Stations or portions thereof, will have been separated or assigned to a member of the Holcim Group or the SpinCo GroupCumulus Stations, as applicable, prior may be used in the operation of multiple stations or other business units (each, a “Shared Contract”). Schedule 1.3(a) sets forth all Shared Contracts relating to the Distribution. To the extent not completed prior Townsquare Stations that are material with respect to the Distributionapplicable market, and Schedule 1.3(b) sets forth all Shared Contracts relating to the Cumulus Stations that are material with respect to the applicable market. Except as provided by Schedule 1.2(c) or Schedule 1.2(d), as applicable, at the Closing, the Parties shallrights and obligations under Shared Contracts shall be equitably allocated among stations and such other business units in a manner reasonably determined by the parties in accordance with the following equitable allocation principles:
(i) any allocation expressly set forth in the Shared Contract shall control;
(ii) if none, following then any allocation previously made by the Distributionconveying party in the ordinary course of station operations shall control;
(iii) if none, then the quantifiable proportionate benefit to be received by the parties after Closing shall control; and
(iv) if not quantifiable, then reasonable accommodation shall control.
(b) With respect to each such Shared Contract, (i) the parties shall cooperate with each other and each contract counterparty in such allocation, (ii) only the allocated portion of each such Shared Contract is included in the contracts to be assigned and assumed under this Agreement (without need for further action), and (iii) the parties shall use their commercially reasonable efforts to separate any Shared Contracts into separate Contracts between the appropriate Third Party and either (i) SpinCo or a member of the SpinCo Group or (ii) Holcim or a member of the Holcim Group, including, but not limited to, by: (x) entering into new Contracts, (y) assigning (in whole or in part) existing Shared Contracts and (z) cooperating to obtain any Consents or Governmental Approvals to the extent required to effectuate the foregoing.
(b) Notwithstanding anything in this Agreement to the contrary, in the event any Shared Contract is unable to be separated in accordance with Section 2.8(a), the Parties shall, and/or ensure that such allocation shall cause the applicable members of its Group party to such Shared Contract to, use commercially reasonable efforts to: (i) seek mutually acceptable alternative arrangements for purposes of allocating rights and Liabilities and obligations under such Shared Contract in accordance with the relative proportions of total benefit to be received over the remaining term occur by termination of the Shared Contract and execution of new contracts between each contract counterparty and each of Townsquare and Cumulus (but only if such contract is on terms at least as of favorable than the Effective Time (provided that such arrangements existing contract), but shall not result in a breach or violation include the allocated portion of such Shared Contract) and (ii) enforce for the benefit contracts will not include any group discounts or similar benefits specific to a party or its affiliates. Completion of the other Party (or the applicable member documentation of the other Party’s Group) any and all rights under such allocation is not a condition to Closing; provided, however, that with respect to each such Shared Contract related which is not allocated at Closing pursuant to such other Party’s Businesssubsection (iii) of this Section 1.3(b), with such other Party bearing the reasonable and documented out-of-pocket costs and expenses of such enforcement parties shall cooperate to the extent related feasible in effecting a lawful and commercially reasonable arrangement under which acquiring party shall receive the allocable benefits thereunder from and after Closing, and to the rights being enforced for the benefit of such other Party, provided that Party (or relevant member of its Group) retaining any Shared Contract shall be indemnified for all Indemnifiable Losses or other Liabilities arising out of any actions (or omissions to act) of such retaining Party taken at the direction extent of the other Party (or relevant member of allocable benefits received, the acquiring party shall pay and perform the conveying party’s obligations arising thereunder from and after Closing in accordance with its Group) terms, until new documentation effecting the allocation described in connection with this Section 1.3 is executed and relating delivered. With respect to such each Shared Contract, as each party shall be responsible for all costs associated with the case may be (portion allocated to such party, and shall indemnify and hold harmless the other than in party for any losses associated with the event performance of its gross negligence, fraud or willful misconduct)such party for the portion allocated to such party.
(c) Each In the event that the terms of Holcim any Shared Contract prohibits the allocation contemplated by this Section 1.3, the parties shall use commercially reasonable efforts to provide the benefits and SpinCo shall, and shall cause the members obligations of their respective Group to, (i) treat for all Tax purposes the portion of each the Shared Contract inuring that would have been allocated to their respective Business as an Asset owned bya party hereunder but for any such prohibition.
(d) Notwithstanding the foregoing, and/or in no event shall a Liability of, as applicable, such PartyShared Contract relate to any employees of Townsquare or Cumulus, or the members of such Party’s Groupfollowing marks (or any other rights with respect thereto): the names “Townsquare”, as applicable, not later than the Distribution, “Cumulus” and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law or a good faith resolution of a Tax Contest)“Citadel”.
Appears in 2 contracts
Sources: Asset Purchase and Exchange Agreement (Townsquare Media, LLC), Asset Purchase and Exchange Agreement (Townsquare Media, LLC)
Shared Contracts. (a1) The Parties intend that all Contracts that would be deemed With respect to Shared Contracts as of the Effective TimeContractual Liabilities pursuant to, under or portions thereof, will have been separated or assigned relating to a member of the Holcim Group given Shared Contract, such Shared Contractual Liabilities shall be allocated, unless otherwise allocated pursuant to this Agreement or the SpinCo Groupan Ancillary Agreement, as applicable, prior to the Distribution. To the extent not completed prior to the Distribution, between the Parties shall, following the Distribution, use their commercially reasonable efforts to separate any Shared Contracts into separate Contracts between the appropriate Third Party and either as follows:
(i) SpinCo first, if a Liability is incurred exclusively in respect of a benefit received by one Party or a member of its Group, the SpinCo Party or Group or receiving such benefit shall be responsible for such Liability;
(ii) Holcim second, if a Liability cannot be exclusively allocated to one Party or a member of the Holcim Group, including, but not limited to, by: (x) entering into new Contracts, (y) assigning (in whole or in part) existing Shared Contracts and (z) cooperating to obtain any Consents or Governmental Approvals to the extent required to effectuate the foregoing.
(b) Notwithstanding anything in this Agreement to the contrary, in the event any Shared Contract is unable to be separated in accordance with Section 2.8(a), the Parties shall, and/or shall cause the applicable members of its Group party to such Shared Contract to, use commercially reasonable efforts to: under clause (i) seek mutually acceptable alternative arrangements for purposes of allocating rights above, such Liability shall be allocated among both Parties and Liabilities and obligations under such Shared Contract in accordance with their respective Groups based on the relative proportions of total benefit to be received (over the remaining term of the Shared Contract Contract, measured starting as of the Effective Time (provided that such arrangements shall not result in a breach or violation date of such allocation) under the relevant Shared Contract) . Notwithstanding the foregoing, each Party and (ii) enforce for the benefit of the other Party (or the applicable member of the other Party’s Group) any and all rights under such Shared Contract related to such other Party’s Business, with such other Party bearing the reasonable and documented out-of-pocket costs and expenses of such enforcement to the extent related to the rights being enforced for the benefit of such other Party, provided that Party (or relevant member of its Group) retaining any Shared Contract Group shall be indemnified responsible for any or all Indemnifiable Losses or other Liabilities arising out of or resulting from such Party’s or Group’s breach of the relevant Shared Contract.
(2) Except as otherwise expressly contemplated in this Agreement or an Ancillary Agreement, if SG Holdings or any actions (member of the SG Holdings Group, on the one hand, or omissions to act) SG DevCo or any member of such retaining Party taken at the direction of SG DevCo Group, on the other hand, receives any benefit or payment under any Shared Contract which was intended for the other Party (or relevant its Group, SG Holdings, on the one hand, or SG DevCo, on the other hand, as applicable, will use its respective commercially reasonable efforts, or will cause any member of its Group) in connection with and relating Group to use its commercially reasonable efforts, to deliver, Transfer or otherwise afford such Shared Contract, as benefit or payment to the case may be (other than in the event of its gross negligence, fraud or willful misconduct)Party.
(c3) Each of Holcim SG Holdings and SpinCo SG DevCo shall, and shall cause the members of their respective Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to their respective Business as an Asset owned by, and/or a Liability of, as applicable, such Party, or the members of such Party’s Group, as applicable, not later than the DistributionEffective Time, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law or a good faith resolution of a Tax Contest).
Appears in 2 contracts
Sources: Separation and Distribution Agreement (Safe & Green Holdings Corp.), Separation and Distribution Agreement (Safe & Green Development Corp)
Shared Contracts. (a) The Parties intend that all Contracts that would At Buyer’s written request, which may be deemed made at any time until the later of (i) three (3) months following the date hereof and (ii) three (3) months following the date on which the applicable Shared Contracts Contract is made available to Buyer, Seller or its applicable Affiliate shall split and partially assign to the Acquired Company, or have replicated for the benefit of the Acquired Company (which may include providing the benefits of such Shared Contract through the Transition Services Agreement), in each case, effective as of the Effective TimeClosing, each Shared Contract which may be split and assigned in part to the Acquired Company or portions thereof, will have been separated or assigned to a member replicated for the benefit of the Holcim Group or Acquired Company pursuant to its terms without the SpinCo Groupconsent of the counterparty thereto (each, as applicable, prior to the Distribution. an “Assignable Shared Contract”).
(b) To the extent that a Shared Contract does not completed prior to constitute an Assignable Shared Contract, at Buyer’s written request, which may be made at any time until the Distribution, the Parties shall, later of (i) three (3) months following the Distributiondate hereof and (ii) three (3) months following the date on which the applicable Shared Contract is made available to Buyer, Seller shall use their commercially reasonable efforts to separate any split and assign in part to the Acquired Company such Shared Contracts into separate Contracts between Contract or otherwise facilitate the appropriate Third Party and either replication of such Shared Contract for the benefit of the Acquired Company with such Shared Contract counterparty in each case, effective as of the Closing; provided, however, that (i) SpinCo or there will be no reduction in the Purchase Price as a member result of the SpinCo Group failure to split and assign in part or replicate for the benefit of the Acquired Company any such Shared Contract and (ii) Holcim assuming Seller’s compliance with this Section 6.16(b), Seller shall not have any liability or a member obligation whatsoever to Buyer (and Buyer will not be entitled to assert any claims) arising out of the Holcim Groupfailure to split and assign in part or replicate for the benefit of Acquired Company any such Shared Contract or as a result of the default, acceleration, termination or loss of right under such Shared Contract as a result thereof.
(c) Notwithstanding anything to the contrary, none of Seller or its Affiliates shall be required to incur any Liability, pay any money, or provide any other consideration in in connection with its obligations set forth in this Section 6.16. Buyer shall use its commercially reasonable efforts to assist and cooperate with Seller in furtherance of Seller’s efforts pursuant to this Section 6.16; provided, that if any money is paid, or consideration provided, by Seller or its Affiliates to a third party in connection with this Section 6.16, Buyer shall reimburse Seller within ten (10) Business Days of Seller’s notice to Buyer thereof. Except as otherwise provided herein, Buyer shall reimburse Seller for any money paid, or consideration provided, by Seller to any third party (excluding, for the avoidance of doubt, Seller’s Representatives) for all fees, including, but not limited to, by: (x) entering into new Contractsapplication fees, (y) administration fees, or processing fees, or any other charges applicable to splitting, assigning (in whole or in part) existing Shared Contracts and (z) cooperating to obtain any Consents or Governmental Approvals to the extent required to effectuate the foregoing.
(b) Notwithstanding anything in this Agreement to the contrary, in the event any Shared Contract is unable to be separated in accordance with Section 2.8(a), the Parties shall, and/or shall cause the applicable members of its Group party to such Shared Contract to, use commercially reasonable efforts to: (i) seek mutually acceptable alternative arrangements for purposes of allocating rights and Liabilities and obligations under such Shared Contract in accordance with the relative proportions of total benefit to be received over the remaining term of the Shared Contract as of the Effective Time (provided that such arrangements shall not result in replicating a breach or violation of such Shared Contract) and (ii) enforce , including, for the benefit avoidance of the other Party (or the applicable member of the other Party’s Group) any and doubt, all rights under such Shared Contract related to such other Party’s Business, with such other Party bearing the reasonable and documented out-of-pocket costs fees and expenses of such enforcement to the extent related to the rights being enforced for the benefit of such other Partythird party’s agents, provided that Party (or relevant member of its Group) retaining any Shared Contract shall be indemnified for all Indemnifiable Losses or other Liabilities arising out of any actions (or omissions to act) of such retaining Party taken at the direction of the other Party (or relevant member of its Group) in connection with and relating to such Shared Contractadvisors, as the case may be (other than in the event of its gross negligenceRepresentatives, fraud or willful misconduct).
(c) Each of Holcim and SpinCo shallcounsel, and shall cause the members accountants with respect thereto, within ten (10) Business Days of their respective Group to, (i) treat for all Tax purposes the portion Seller’s or its Affiliate’s payment of each Shared Contract inuring to their respective Business as an Asset owned by, and/or a Liability of, as applicable, such Party, money or the members provision of such Party’s Group, as applicable, not later than the Distribution, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law or a good faith resolution of a Tax Contest)other consideration.
Appears in 2 contracts
Sources: Securities Purchase Agreement (National Fuel Gas Co), Securities Purchase Agreement (Centerpoint Energy Resources Corp)
Shared Contracts. Except as otherwise agreed by Seller and Purchaser in writing or as otherwise provided in this Agreement or any of the Ancillary Agreements (a) The Parties intend that all including with respect to any Specified Shared Contracts that would relate to services to be deemed provided under the Transition Services Agreement or the Supply Agreement), until the expiration or termination date of any Specified Shared Contract or any other Shared Contract (other than those Excluded Contracts listed on Schedule 1.1(c) which are not also Specified Shared Contracts) (assuming, for these purposes, that the then-current term in effect as of the Effective Time, or portions thereof, will have been separated or assigned to a member of the Holcim Group or the SpinCo Group, as applicable, immediately prior to the Distribution. To the extent Closing is not completed prior to the Distributionrenewed or extended), the Parties shall, following the Distribution, shall (and shall cause their respective Affiliates to) use their commercially reasonable efforts to separate any Shared Contracts into separate Contracts between the appropriate Third Party and either (i) SpinCo obtain or a member of the SpinCo Group or (ii) Holcim or a member of the Holcim Group, including, but not limited to, by: (x) entering into new Contracts, (y) assigning (in whole or in part) existing Shared Contracts and (z) cooperating structure an arrangement for Purchaser to obtain any Consents or Governmental Approvals the claims, rights and benefits, and assume the corresponding liabilities and obligations thereunder (other than to the extent relating to or arising out of any breach or other violation of such Shared Contract prior to the Closing), of such portion of any such Shared Contract that relates to and is allocated to the Program Business, as reasonably determined by Seller and Purchaser; provided, however, that Purchaser shall be under no obligation to enter into any such arrangement with respect to, or obtain any claims, rights and benefits, or assume any corresponding liabilities and obligations under, any Shared Contract other than a Specified Shared Contract; provided, further, that Seller and its Affiliates shall not be required to effectuate the foregoing.
(b) Notwithstanding anything in this Agreement to the contrarytake any action that would, in the event good-faith judgment of Seller upon the advice of outside counsel, constitute a breach or other contravention of the rights of any Shared Contract is unable to be separated in accordance with Section 2.8(a), the Parties shall, and/or shall cause the applicable members of its Group other party to such Shared Contract or be ineffective under, or contravene, applicable Law. With respect to Shared Contractual Liabilities pursuant to, use commercially reasonable efforts tounder or relating to any Specified Shared Contract, such Shared Contractual Liabilities shall be allocated between Seller and Purchaser as follows: (i) seek mutually acceptable alternative arrangements for purposes if a liability is incurred solely in respect of allocating rights and Liabilities and obligations under either the Program Business or the other businesses of Seller or any of its Affiliates, such Shared Contract liability shall be allocated to Purchaser (in accordance with the relative proportions of total benefit to be received over the remaining term respect of the Shared Contract as Transferred Assets) or Seller (in respect of the Effective Time (provided that such arrangements shall not result in a breach other businesses of Seller or violation any of such Shared Contract) its Affiliates); and (ii) enforce for the benefit of the other Party if a liability cannot be so allocated under clause (or the applicable member of the other Party’s Group) any and all rights under i), such Shared Contract related to such other Party’s Business, with such other Party bearing the reasonable and documented out-of-pocket costs and expenses of such enforcement to the extent related to the rights being enforced for the benefit of such other Party, provided that Party (or relevant member of its Group) retaining any Shared Contract liability shall be indemnified for all Indemnifiable Losses allocated to Seller or other Liabilities arising out of any actions (or omissions to act) of such retaining Party taken at the direction of the other Party (or relevant member of its Group) in connection with and relating to such Shared ContractPurchaser, as the case may be (other than be, based on the relative proportion of total benefit received by Purchaser in respect of the event Program Business and Seller or any of its gross negligence, fraud or willful misconduct).
(c) Each Affiliates in respect of Holcim and SpinCo shall, and shall cause its other businesses under the members of their respective Group to, (i) treat for all Tax purposes the portion of each relevant Specified Shared Contract inuring to their respective Business as an Asset owned by, and/or a Liability ofContract, as applicablereasonably determined by Seller and Purchaser. Notwithstanding the foregoing, such Party, each of Seller and Purchaser shall be responsible for any or the members all liabilities arising from its (or its Affiliates’) direct or indirect breach of such Party’s Group, as applicable, not later than the Distribution, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law or a good faith resolution of a Tax Contest)Specified Shared Contract.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Amgen Inc), Asset Purchase Agreement (Celgene Corp /De/)
Shared Contracts. (a) The With respect to Shared Contractual Liabilities pursuant to, under or relating to a given Shared Contract, such Shared Contractual Liabilities shall be allocated, unless otherwise allocated pursuant to this Agreement or an Ancillary Agreement, between the Parties intend that all Contracts that would as follows:
(i) first, if a Liability is incurred exclusively in respect of a benefit received by one Party or its Group, the Party or Group receiving such benefit shall be deemed responsible for such Liability;
(ii) second, if a Liability cannot be exclusively allocated to one Party or its Group under clause (i) above, such Liability shall be allocated among both Parties and their respective Groups based on the relative proportions of total benefit received (over the remaining term of the Shared Contracts Contract, measured starting as of the Effective Timedate of allocation) under the relevant Shared Contract. Notwithstanding the foregoing, each Party and its Group shall be responsible for any or all Liabilities arising out of or resulting from such Party’s or Group’s breach of the relevant Shared Contract.
(b) Except as otherwise expressly contemplated in this Agreement or an Ancillary Agreement, if Trinity or any member of the Trinity Group, on the one hand, or Arcosa or any member of the Arcosa Group, on the other hand, receives any benefit or payment under any Shared Contract which was intended for the other Party or its Group, Trinity, on the one hand, or Arcosa, on the other hand, as applicable, will use its respective commercially reasonable efforts, or will cause any member of its Group to use its commercially reasonable efforts, to deliver, Transfer or otherwise afford such benefit or payment to the other Party.
(c) Notwithstanding anything to the contrary herein, the Parties have determined that it is advisable that certain Shared Contracts, or portions thereof, will have been be separated or assigned to a member of the Holcim Trinity Group or the SpinCo Arcosa Group, as applicable, prior to the Distribution. To the extent not completed prior to the Distribution, the The Parties shall, following the Distribution, shall use their commercially reasonable efforts to separate any the Shared Contracts which are identified on Schedule 2.8(c)(i) into separate Contracts between the appropriate Third Party and either (i) SpinCo Arcosa or a member of the SpinCo Arcosa Group or (ii) Holcim or a member of the Holcim Group, including, but not limited to, by: (x) entering into new Contracts, (y) assigning (in whole or in part) existing Shared Contracts and (z) cooperating to obtain any Consents or Governmental Approvals to the extent required to effectuate the foregoing.
(b) Notwithstanding anything in this Agreement to the contrary, in the event any Shared Contract is unable to be separated in accordance with Section 2.8(a), the Parties shall, and/or shall cause the applicable members of its Group party to such Shared Contract to, use commercially reasonable efforts to: (i) seek mutually acceptable alternative arrangements for purposes of allocating rights and Liabilities and obligations under such Shared Contract in accordance with the relative proportions of total benefit to be received over the remaining term of the Shared Contract as of the Effective Time (provided that such arrangements shall not result in a breach or violation of such Shared Contract) and (ii) enforce for the benefit of the other Party (or the applicable member of the other Party’s Group) any and all rights under such Shared Contract related to such other Party’s Business, with such other Party bearing the reasonable and documented out-of-pocket costs and expenses of such enforcement to the extent related to the rights being enforced for the benefit of such other Party, provided that Party (or relevant member of its Group) retaining any Shared Contract shall be indemnified for all Indemnifiable Losses or other Liabilities arising out of any actions (or omissions to act) of such retaining Party taken at the direction of the other Party (or relevant member of its Group) in connection with and relating to such Shared Contract, as the case may be (other than in the event of its gross negligence, fraud or willful misconduct).
(c) Each of Holcim and SpinCo shall, and shall cause the members of their respective Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to their respective Business as an Asset owned by, and/or a Liability of, as applicable, such Party, or the members of such Party’s Group, as applicable, not later than the Distribution, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law or a good faith resolution of a Tax Contest).or
Appears in 1 contract
Sources: Separation and Distribution Agreement (Arcosa, Inc.)
Shared Contracts. (a1) The With respect to Shared Contractual Liabilities pursuant to, under or relating to a given Shared Contract, such Shared Contractual Liabilities shall be allocated, unless otherwise allocated pursuant to this Agreement or an Ancillary Agreement, between the Parties intend that all Contracts that would as follows:
(i) first, if a Liability is incurred exclusively in respect of a benefit received by one Party or its Group, the Party or Group receiving such benefit shall be deemed responsible for such Liability;
(ii) second, if a Liability cannot be exclusively allocated to one Party or its Group under clause (i) above, such Liability shall be allocated among both Parties and their respective Groups based on the relative proportions of total benefit received (over the remaining term of the Shared Contracts Contract, measured starting as of the Effective Timedate of allocation) under the relevant Shared Contract. Notwithstanding the foregoing, each Party and its Group shall be responsible for any or all Liabilities arising out of or resulting from such Party’s or Group’s breach of the relevant Shared Contract.
(2) Except as otherwise expressly contemplated in this Agreement or an Ancillary Agreement, if Vinco or any member of the Vinco Group, on the one hand, or Cryptyde or any member of the Cryptyde Group, on the other hand, receives any benefit or payment under any Shared Contract which was intended for the other Party or its Group, Vinco, on the one hand, or Cryptyde, on the other hand, as applicable, will use its respective commercially reasonable efforts, or will cause any member of its Group to use its commercially reasonable efforts, to deliver, Transfer or otherwise afford such benefit or payment to the other Party.
(3) Notwithstanding anything to the contrary herein, the Parties have determined that it is advisable that certain Shared Contracts, or portions thereof, will have been be separated or assigned to a member of the Holcim Vinco Group or the SpinCo Cryptyde Group, as applicable, prior to the Distribution. To the extent not completed prior to the Distribution, the The Parties shall, following the Distribution, shall use their commercially reasonable efforts to separate any the Shared Contracts which are identified on Schedule 2.8(3)(i) into separate Contracts between the appropriate Third Party and either (i) SpinCo Cryptyde or a member of the SpinCo Cryptyde Group or (ii) Holcim Vinco or a member of the Holcim Vinco Group, including, but not limited to, by: (x) entering into new Contracts, (y) assigning (in whole . Vinco or in part) existing Shared Contracts and (z) cooperating to obtain any Consents or Governmental Approvals to a member of the extent required to effectuate the foregoing.
(b) Notwithstanding anything in this Agreement to the contrary, in the event any Shared Contract is unable to be separated in accordance with Section 2.8(a), the Parties shall, and/or shall cause the applicable members of its Vinco Group party to such Shared Contract to, will use commercially reasonable efforts to: (i) seek mutually acceptable alternative arrangements for purposes of allocating to assign the rights and Liabilities and obligations obligations, but only to the extent relating to the Cryptyde Business, under such the Shared Contract in accordance with the relative proportions of total benefit Contracts which are identified on Schedule 2.8(3)(ii) to be received over the remaining term Cryptyde or a member of the Shared Contract as Cryptyde Group. The Parties agree to cooperate and provide reasonable assistance prior to the Effective Time and for a period of six (6) months following the Effective Time (provided that with no obligation on the part of either Party to pay any costs or fees with respect to such arrangements shall not result assistance) in a breach effecting the separation or violation assignment of such Shared Contract) and (ii) enforce for the benefit of the other Party (or the applicable member of the other Party’s Group) any and all rights under such Shared Contract related to such other Party’s Business, with such other Party bearing the reasonable and documented out-of-pocket costs and expenses of such enforcement to the extent related to the rights being enforced for the benefit of such other Party, provided that Party (or relevant member of its Group) retaining any Shared Contract shall be indemnified for all Indemnifiable Losses or other Liabilities arising out of any actions (or omissions to act) of such retaining Party taken at the direction of the other Party (or relevant member of its Group) in connection with and relating to such Shared Contract, Contracts as the case may be (other than in the event of its gross negligence, fraud or willful misconduct)described above.
(c4) Each of Holcim Vinco and SpinCo Cryptyde shall, and shall cause the members of their respective Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to their respective Business as an Asset owned by, and/or a Liability of, as applicable, such Party, or the members of such Party’s Group, as applicable, not later than the DistributionEffective Time, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law or a good faith resolution of a Tax Contest).
Appears in 1 contract
Sources: Separation and Distribution Agreement (Cryptyde, Inc.)
Shared Contracts. (a) The Parties intend that all Contracts that would be deemed Prior to Closing, Truist and the Buyer Entities shall cooperate in good faith to determine a mutually acceptable plan for separating the Shared Contracts as of the Effective TimeContracts, or portions thereof, will have been separated or assigned including to a member of the Holcim Group or the SpinCo Group, as applicable, prior to the Distribution. To the extent not completed prior to the Distribution, the Parties shall, following the Distribution, use their commercially reasonable efforts to separate identify any Shared Contracts into separate Contracts between the appropriate Third Party and either (i) SpinCo or a member of the SpinCo Group or (ii) Holcim or a member of the Holcim Group, including, but not limited to, by: (x) entering into new Contracts, (y) assigning (in whole or in part) existing Shared Contracts and (z) cooperating that shall be separated prior to obtain any Consents or Governmental Approvals Closing to the extent required to effectuate Company Entities and Truist and its Affiliates (other than the foregoingCompany Entities).
(b) Notwithstanding anything Except as set forth in this Agreement Section 5.27(b) or otherwise agreed in writing between Truist and the Buyer Entities, Truist shall use reasonable best efforts and cooperate with the Buyer entities to ensure that (i) each Shared Contract shall be assigned, transferred and conveyed to a Company Entity, in each case, only with respect to (and preserving the meaning of) those parts of such Shared Contract that relate to any Company Entity, if so assignable, transferable or conveyable (including by “splitting” statements of work), (ii) a Company Entity enters into a replacement contract, purchase order or other agreement with the applicable counterparty (including by “cloning” any master services agreement), or (iii) a reasonable and lawful arrangement designed to provide the Company Entities with the rights and benefit of those parts of the Shared Contract that relate to such Company Entities, including all related assets, licenses, services, and financial commitments to the contraryextent primarily related to the Company Entities, and shall assume the burden of any liabilities to the extent related to the Company Entities; provided that (A) in the no event shall any Person be required to assign (or amend), either in its entirety or in part, any Shared Contract is unable if an attempted assignment or amendment, without the consent of, or other action by, any third party, would constitute a breach thereunder or in any way materially and adversely affect the rights of any Company Entity or Truist or any of their respective Affiliates thereunder, and (B) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be separated or amended, without such consent or action, Truist shall (1) enforce in a commercially reasonable manner, any rights of the Company Entities under the Shared Contracts against any other Persons, (2) not waive any rights under such Shared Contracts (to the extent related to the Company Entities), (3) subject to the terms and conditions of such underlying contract, not terminate (or consent to be separated in accordance with Section 2.8(a), terminated by the Parties shall, and/or shall cause the applicable members of its Group party to counterparty) such Shared Contract to, use commercially reasonable efforts to: except in connection with (ix) seek mutually acceptable alternative arrangements for purposes the expiration of allocating rights and Liabilities and obligations under such Shared Contract in accordance with the relative proportions of total benefit to be received over the remaining term of the Shared Contract as of the Effective Time its terms or (provided that such arrangements shall not result in y) a breach or violation partial termination of such Shared Contract) and (ii) enforce for the benefit of the other Party (or the applicable member of the other Party’s Group) Contract that would not impact any and all rights under such Shared Contract related to the Company Entities or cause any of the Company Entities to incur any liabilities, (4) not amend, modify or supplement such other Party’s BusinessShared Contract in a manner material and adverse to the Company Entities, with such taken as a whole, and (5) provide written notice (email being sufficient) to the applicable other Party bearing as soon as reasonably practicable after receipt of any notice of breach received from a counterparty to any Shared Contract that would reasonably be expected to impact the reasonable Company Entities. Notwithstanding the foregoing, the Buyer Entities may elect for any Shared Contract not to be so assigned, transferred or conveyed to, or replicated with respect to, the Company Entities (or otherwise be the subject to this Section 5.27(b)) and documented out-of-pocket costs and expenses of such enforcement to the extent related to the rights being enforced for the benefit of such other Party, provided that Party (or relevant member of Truist and its Group) retaining any Shared Contract shall be indemnified for all Indemnifiable Losses or other Liabilities arising out of any actions (or omissions to act) of such retaining Party taken at the direction of the other Party (or relevant member of its Group) in connection with and relating to such Shared Contract, as the case may be Affiliates (other than the Company Entities) have, in contemplation of this Agreement and prior to the event date hereof, assigned, transferred and conveyed to a Company Entity a Shared Contract or that part of a Shared Contract that relates to a Company Entity and such Shared Contract or portion thereof is not terminable at will, the Buyer Entities shall have the right to, prior to Closing, require that Truist and its gross negligenceAffiliates assign, fraud transfer and convey such Shared Contract or willful misconductportion thereof to Truist and its Affiliates (other than the Company Entities).
(c) Each of Holcim Any costs, fees and SpinCo shall, and shall cause expenses incurred by the members of their respective Group to, parties hereto pursuant to this Section 5.27 with respect to the Shared Contracts (i) treat for all Tax purposes set forth on Section 5.27(a) of the portion of each Shared Contract inuring to their respective Business as an Asset owned by, and/or a Liability of, as applicable, such Party, Company Disclosure Schedule or the members of such Party’s Group, as applicable, not later than the Distribution, and (ii) neither report nor take assigned, transferred and conveyed to the Company Entities following Closing shall, in each case, be borne solely by Truist. Any costs, fees and expenses incurred by the parties hereto pursuant to this Section 5.27 with respect to the Shared Contract other than those set forth on Section 5.27(a) of the Company Disclosure Schedule and that are assigned, transferred and conveyed to a Company Entity prior to Closing shall be borne 50% by the Buyer Entities and 50% by Truist.
(d) Without limiting the foregoing obligations, it is understood and agreed that the separation of the Shared Contracts shall not be a condition to any Tax position party’s obligation to consummate the Closing, and the failure (on in and of itself) to separate any Shared Contracts prior to Closing shall not be a Tax Return or otherwise) inconsistent with such treatment breach of any term of this Agreement (unless required by applicable Law or a good faith resolution including for purposes of a Tax Contestthe conditions to Closing).
Appears in 1 contract
Sources: Equity Interest Purchase Agreement (Truist Financial Corp)
Shared Contracts. (a) The Parties intend From the date hereof until the date that all Contracts that would be deemed Shared Contracts as of is 12 months following the Effective TimeClosing Date, or portions thereof, will have been separated or assigned to a member of the Holcim Group or the SpinCo Group, as applicable, prior to the Distribution. To the extent not completed prior to the Distribution, the Parties Seller and Purchaser shall, following the Distributionand shall cause their respective Affiliates to, use their commercially reasonable best efforts to separate work together (and, if necessary and desirable, to work with the third party to any Shared Contracts into separate Contracts between the appropriate Third Party and either (iContract) SpinCo to divide, partially assign, modify or a member of the SpinCo Group or (ii) Holcim or a member of the Holcim Group, including, but not limited to, by: (x) entering into new Contracts, (y) assigning replicate (in whole or in part) existing the respective rights and obligations under and in respect of any Shared Contracts Contract, such that, following the Closing, (i) Purchaser, an Affiliate of Purchaser or a Group Company is the beneficiary of the rights and (z) cooperating to obtain any Consents or Governmental Approvals is solely responsible for the obligations under such Shared Contract to the extent required such obligations are related to effectuate the Business (the “Purchaser Portion”), which rights shall be an asset of and which obligations shall be a liability of Purchaser, an Affiliate of Purchaser or a Group Company, and (ii) Seller or an Affiliate of Seller (other than a Group Company) is the beneficiary of the rights and is solely responsible for the obligations related to the Seller Business (the “Seller Portion”), which rights shall be an asset of and which obligations shall be a liability of Seller or an Affiliate of Seller (other than a Group Company). Nothing in this Agreement shall require the division, partial assignment, modification or replication of a Shared Contract unless and until any necessary Consents are obtained or made, as applicable. From and after the Closing, Purchaser shall indemnify and hold harmless Seller and its Affiliates from any Losses and liabilities incurred by Seller or its Affiliates arising from or relating to the Purchaser Portion of any Shared Contract and Seller shall indemnify and hold harmless Purchaser, the Group Companies and their respective Affiliates for any Losses and liabilities incurred by Purchaser, the Group Companies or any of their respective Affiliates arising out of or relating to the Seller Portion of any Shared Contract. If Seller and Purchaser or their respective Affiliates, as applicable, are not able to enter into an arrangement to divide, partially assign, modify or replicate (in whole or in part) the rights and obligations under and in respect of any such Shared Contract prior to the Closing, the Closing shall, subject to the satisfaction (or, to the extent permitted by applicable Law, the waiver by the parties entitled to the benefit thereof) of the conditions set forth in Article VI (other than those conditions which by their terms are to be satisfied at the Closing but subject to the satisfaction at the Closing or waiver of such conditions), nonetheless take place on the terms set forth herein and, thereafter and until the earlier of (x) the date that is twelve (12) months following the Closing and (y) the date on which the division, partial assignment, modification or replication of such Shared Contract as described in this Section 5.18 is effected, Seller and Purchaser shall, and shall cause their respective Affiliates to, cooperate in any commercially reasonable arrangement to provide that (1) Purchaser, an Affiliate of Purchaser or a Group Company shall receive the interest in the benefits and obligations of the Purchaser Portion under and in respect of such Shared Contract and (2) Seller or an Affiliate of Seller (other than a Group Company) shall receive the interest in the benefits and obligations of the Seller Portion under and in respect of such Shared Contract. This Section 5.18(a) shall not apply to any Seller Shared Customer Contract or Purchaser Shared Customer Contract, which are governed by Section 5.18(a) and Section 5.18(b), respectively, and Section 5.18(c).
(a) From the date hereof until the Closing, Seller and Purchaser shall, and shall cause their respective Affiliates to, use their reasonable best efforts to work together (and, if necessary and desirable, to work with the third party to any Seller Shared Customer Contract) to divide, partially assign, modify or replicate (in whole or in part) the respective rights and obligations under and in respect of any Seller Shared Customer Contract, such that, following the Closing, (i) Purchaser, an Affiliate of Purchaser or a Group Company is the beneficiary of the rights and is solely responsible for the obligations under such Seller Shared Customer Contract to the extent such obligations are related to the Purchaser Portion of such Seller Shared Customer Contract, which rights shall be an asset of and which obligations shall be a liability of Purchaser, an Affiliate of Purchaser or a Group Company, and (ii) Seller or an Affiliate of Seller (other than a Group Company) is the beneficiary of the rights and is solely responsible for the obligations related to the Seller Portion of such Seller Shared Customer Contract, which rights shall be an asset of and which obligations shall be a liability of Seller or an Affiliate of Seller (other than a Group Company). Nothing in this Agreement shall require the division, partial assignment, modification or replication of a Seller Shared Customer Contract unless and until any necessary Consents are obtained or made, as applicable. If Seller and Purchaser or their respective Affiliates, as applicable, are not able to enter into an arrangement to divide, partially assign, modify or replicate the rights and obligations under and in respect of any such Seller Shared Customer Contract prior to the Closing, the Closing shall, subject to the satisfaction (or, to the extent permitted by applicable Law, the waiver by the parties entitled to the benefit thereof) of the conditions set forth in Article VI (other than those conditions which by their terms are to be satisfied at the Closing but subject to the satisfaction at the Closing or waiver of such conditions), nonetheless take place on the terms set forth herein and, unless Purchaser and Seller otherwise agree, thereafter and until the earlier of (x) the date that is twelve (12) months following the Closing and (y) the date on which the subcontracting of the Purchaser Portion of such Seller Shared Customer Contract (the “Embedded Purchaser Portion”) to Purchaser, an Affiliate of Purchaser or a Group Company is effected, Seller and Purchaser shall, and shall cause their respective Affiliates to, (1) use their reasonable best efforts to obtain the Consent of, or make the Consent to, the third party to such Seller Shared Customer Contract to the subcontracting of the Embedded Purchaser Portion to Purchaser, an Affiliate of Purchaser or a Group Company and (2) cooperate in any commercially reasonable arrangement to provide that Purchaser, an Affiliate of Purchaser or a Group Company shall receive the interest in the benefits and obligations of the Embedded Purchaser Portion under and in respect of such Seller Shared Customer Contract. Notwithstanding the foregoing, if all required Consents to the subcontracting of the Embedded Purchaser Portion of any Seller Shared Customer Contract to Purchaser, an Affiliate of Purchaser or, after the Closing, a Group Company are obtained or made on or prior to the Closing Date, then Seller and Purchaser shall, and shall cause their respective applicable Affiliates to, enter into subcontracting arrangements on commercially reasonable terms mutually acceptable to Seller and Purchaser pursuant to which the Embedded Purchaser Portion of such Seller Shared Customer Contract shall be provided by Purchaser, an Affiliate of Purchaser or, after the Closing, a Group Company. Nothing in this Agreement shall require entering into a subcontracting arrangement with respect to the Embedded Purchaser Portion of a Seller Shared Customer Contract unless and until any necessary Consents are obtained or made, as applicable. From and after Closing, Purchaser shall indemnify and hold harmless Seller and its Affiliates from any Losses and liabilities incurred by Seller or its Affiliates arising from or relating to the Embedded Purchaser Portion of any Seller Shared Customer Contract and Seller shall indemnify and hold harmless Purchaser, the Group Companies and their respective Affiliates from any Losses and liabilities incurred by Purchaser, the Group Companies or any of their respective Affiliates arising out of or relating to such Seller Shared Customer Contracts other than the Embedded Purchaser Portions thereof.
(b) Notwithstanding anything in this Agreement to From the contrarydate hereof until the Closing, in the event any Shared Contract is unable to be separated in accordance with Section 2.8(a), the Parties Seller and Purchaser shall, and/or and shall cause the applicable members of its Group party to such Shared Contract their respective Affiliates to, use commercially their reasonable best efforts to: to work together (and, if necessary and desirable, to work with the third party to any Purchaser Shared Customer Contract) to divide, partially assign, modify or replicate (in whole or in part) the respective rights and obligations under and in respect of any Purchaser Shared Customer Contract, such that, following the Closing, (i) seek mutually acceptable alternative arrangements for purposes Seller or an Affiliate of allocating Seller (other than a Group Company) is the beneficiary of the rights and Liabilities and is solely responsible for the obligations under such Purchaser Shared Customer Contract in accordance with to the relative proportions of total benefit extent such obligations are related to be received over the remaining term of the Shared Contract as of the Effective Time (provided that such arrangements shall not result in a breach or violation Seller Portion of such Purchaser Shared Customer Contract) , which rights shall be an asset of and which obligations shall be a liability of Seller or an Affiliate of Seller (other than a Group Company), and (ii) enforce Purchaser, an Affiliate of Purchaser or a Group Company is the beneficiary of the rights and is solely responsible for the obligations related to the Purchaser Portion of such Purchaser Shared Customer Contract, which rights shall be an asset of and which obligations shall be a liability of Purchaser, an Affiliate of Purchaser or a Group Company. Nothing in this Agreement shall require the division, partial assignment, modification or replication of a Purchaser Shared Customer Contract unless and until any necessary Consents are obtained or made, as applicable. If Seller and Purchaser or their respective Affiliates, as applicable, are not able to enter into an arrangement to divide, partially assign, modify or replicate the rights and obligations under and in respect of any such Purchaser Shared Customer Contract prior to the Closing, the Closing shall, subject to the satisfaction (or, to the extent permitted by applicable Law, the waiver by the parties entitled to the benefit thereof) of the conditions set forth in Article VI (other Party than those conditions which by their terms are to be satisfied at the Closing but subject to the satisfaction at the Closing or waiver of such conditions), nonetheless take place on the terms set forth herein and, unless Purchaser and Seller otherwise agree, thereafter and until the earlier of (or x) the applicable member date that is twelve (12) months following the Closing and (y) the date on which the subcontracting of the Purchaser Portion of such Purchaser Shared Customer Contract (the “Embedded Seller Portion”) to Seller or an Affiliate of Seller (other Party’s Groupthan a Group Company) any is effected, Seller and all rights under such Shared Contract related Purchaser shall, and shall cause their respective Affiliates to, (1) use their reasonable best efforts to obtain the Consent of, or make the Consent to, the third party to such Purchaser Shared Customer Contract to the subcontracting of the Embedded Seller Portion to Seller or an Affiliate of Seller (other Party’s Businessthan a Group Company) and (2) cooperate in any commercially reasonable arrangement to provide that Seller or an Affiliate of Seller (other than a Group Company) shall receive the interest in the benefits and obligations of the Embedded Seller Portion under and in respect of such Purchaser Shared Customer Contract. Notwithstanding the foregoing, if all required Consents to the subcontracting of the Embedded Seller Portion of any Purchaser Shared Customer Contract to Seller or an Affiliate of Seller (other than a Group Company) are obtained or made on or prior to the Closing Date, then Seller and Purchaser shall, and shall cause their respective applicable Affiliates to, enter into subcontracting arrangements on commercially reasonable terms mutually acceptable to Seller and Purchaser pursuant to which the Embedded Seller Portion of such Purchaser Shared Customer Contract shall be provided by Seller or an Affiliate of Seller (other than a Group Company). Nothing in this Agreement shall require entering into a subcontracting arrangement with respect to the Embedded Seller Portion of a Purchaser Shared Customer Contract unless and until any necessary Consents are obtained or made, as applicable. From and after the Closing, Seller shall indemnify and hold harmless Purchaser, the Group Companies and their respective Affiliates for any Losses and liabilities incurred by Purchaser, the Group Companies or any of their respective Affiliates arising out of or relating to the Embedded Seller Portion of any Purchaser Shared Customer Contract and Purchaser shall indemnify and hold harmless Seller and its Affiliates from any Losses and liabilities incurred by Seller or its Affiliates arising out of or relating to such Purchaser Shared Customer Contracts other Party bearing than the Embedded Seller Portions thereof.
(c) Nothing in this Section 5.18 shall require either Seller or Purchaser nor any their respective Affiliates to contribute capital, pay or grant any consideration or concession in any form (including providing any letter of credit, guaranty or other financial accommodation) to any Person (other than reasonable and documented out-of-pocket costs expenses, attorneys’ fees and recording or similar fees, all of which shall be reimbursed as promptly as reasonably practicable by the party on whose behalf such expenses and fees are incurred). For avoidance of such enforcement to the extent related to the rights being enforced doubt, reasonable and documented out-of-pocket expenses, attorneys’ fees and recording or similar fees shall not include any purchase price, license fee or other payment or consideration for the benefit of such other Party, provided that Party (or relevant member of its Group) retaining any Shared Contract shall be indemnified for all Indemnifiable Losses or other Liabilities arising out procurement of any actions (or omissions asset secured to act) of such retaining Party taken at the direction of the other Party (or relevant member of its Group) in connection with and relating to such Shared Contract, as the case may be (other than replace an asset in the event course of its gross negligence, fraud Seller’s or willful misconductPurchaser’s obligations under Section 5.18(a) or Section 5.18(b).
(c) Each of Holcim and SpinCo shall, and shall cause the members of their respective Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to their respective Business as an Asset owned by, and/or a Liability of, as applicable, such Party, or the members of such Party’s Group, as applicable, not later than the Distribution, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law or a good faith resolution of a Tax Contest).
Appears in 1 contract
Shared Contracts. (a) The Parties intend that all Subject to Section 2.10(d) and other than with respect to the provision of Services under the Transitional Services Agreement or Shared Contracts that would be deemed are sublicensed to the Company and other Persons in the Company Group pursuant to the Patent and Know-How License Agreement (Pfizer as Licensor) or the Trademark and Copyright License Agreement, from and after the Effective Date, Pfizer may, in its sole discretion, make available to the Company Group the benefits and rights under Shared Contracts as of the Effective Time, or portions thereof, will have been separated or assigned to a member of the Holcim Group or the SpinCo Group, as applicable, prior to the Distribution. To the extent not completed prior such benefits and rights have historically been and currently are provided to the Distribution, the Parties shall, following the Distribution, use their commercially reasonable efforts Animal Health Business. With respect to separate any Shared Contracts into separate Contracts between made available to the appropriate Third Party and either Company Group pursuant to this Section 2.10(a), (i) SpinCo no Person in the Company Group shall take any action, or refrain from taking any action, if (A) such action or inaction is reasonably likely to or does result in a member breach on the part of any Person in the SpinCo Pfizer Group under any Shared Contract and (B) such Person in the Company Group would otherwise be obligated to take or not take such action under the Shared Contract had such Person become severally liable under the Shared Contract at the Effective Date and (ii) Holcim each Person in the Company Group shall reasonably cooperate with Pfizer and, at Pfizer's reasonable request, take such actions that are permissible and reasonably necessary or a member of the Holcim Group, including, but not limited to, by: (x) entering into new Contracts, (y) assigning (in whole or in part) existing desirable to ensure that Pfizer is able to perform its obligations constituting Shared Contracts and (z) cooperating to obtain any Consents or Governmental Approvals to the extent required to effectuate the foregoingContract Liabilities under such Shared Contract.
(b) Notwithstanding anything in this Agreement With respect to the contrary, in the event any Shared Contract is unable Liabilities pursuant to, under or relating to be separated in accordance with Section 2.8(a)a given Shared Contract, the Parties shall, and/or shall cause the applicable members of its Group party to such Shared Contract toLiabilities shall be allocated, use commercially reasonable efforts tounless otherwise allocated pursuant to this Agreement or an Ancillary Agreement, between the parties as follows: (i) seek mutually acceptable alternative arrangements first, if a Liability is incurred exclusively in respect of a benefit received by one party or its Group, the party or Group receiving such benefit shall be responsible for purposes of allocating rights such Liability and Liabilities (ii) second, if a Liability cannot be exclusively allocated to one party or its Group under clause (i) above, such Liability shall be allocated among both parties and obligations under such Shared Contract in accordance with their respective Groups based on the relative proportions of total benefit to be received (over the remaining term of the Shared Contract Contract, measured as of the Effective Time (provided that such arrangements shall not result in a breach or violation date of such allocation) under the relevant Shared Contract) . Notwithstanding the foregoing, each party and (ii) enforce for the benefit of the other Party (or the applicable member of the other Party’s Group) any and all rights under such Shared Contract related to such other Party’s Business, with such other Party bearing the reasonable and documented out-of-pocket costs and expenses of such enforcement to the extent related to the rights being enforced for the benefit of such other Party, provided that Party (or relevant member of its Group) retaining any Shared Contract Group shall be indemnified responsible for any or all Indemnifiable Losses or other Liabilities arising out of any actions (or omissions to act) of resulting from such retaining Party taken at the direction party's or Group's breach of the other Party (or relevant member of its Group) in connection with and relating to such Shared Contract, as the case may be (other than in the event of its gross negligence, fraud or willful misconduct).
(c) Each If Pfizer or any member of Holcim the Pfizer Group, on the one hand, or the Company or any member of the Company Group, on the other hand, receives any benefit or payment under any Shared Contract which was intended for the other party or its Group, Pfizer, on the one hand, or the Company, on the other hand, will use its respective commercially reasonable efforts, or will cause any member of its Group to use its commercially reasonable efforts, to deliver, transfer or otherwise afford such benefit or payment to the other party.
(d) It shall be the responsibility of the Company to obtain the agreement of the third party that is the counterparty to each Shared Contract to enter into a new Contract effective as of the Effective Date pursuant to which the Company and SpinCo shallits Affiliates will receive substantially the same benefits provided by the Shared Contract to the Animal Health Business prior to the Effective Date. Except as expressly provided under the Transitional Services Agreement, none of Pfizer or any other member of the Pfizer Group shall be obligated to make available to the Company Group the benefits and rights under any Shared Contracts. In no event shall cause Pfizer be liable to the members of their respective Group to, Company for (i) treat for all Tax purposes the portion of each Shared Contract inuring to their respective Business as an Asset owned by, and/or a Liability of, as applicable, such Party, or the members any Liabilities arising out of such Party’s Group, as applicable, not later than the Distribution, and new Contracts or (ii) neither report nor take Liabilities arising out of the failure of the Company to obtain any Tax position replacement contract.
(e) As promptly as practicable following the Effective Date, Pfizer shall calculate the aggregate balance of the cash, cash equivalents and short term investments of the Company Group (the "Company Cash Balance"), as of the close of business on a Tax Return the Effective Date after giving effect to the consummation of the transactions contemplated in this Agreement to occur on or otherwise) inconsistent with such treatment (unless required prior to the Effective Date, including the payment to Pfizer of the Contribution Payment. The calculation of Company Cash Balance shall be made by applicable Law or a Pfizer in good faith resolution of a Tax Contest)and in its reasonable discretion and shall be final and binding on the Company. If the Company Cash Balance on the Effective Date was less than $300 million, then Pfizer shall, as promptly as practicable, contribute or otherwise transfer to the Company an amount equal to such deficit. The Company shall give Pfizer and its representatives access at all reasonable times to the Company's properties, books, records, working papers and personnel to the extent requested to calculate the Company Cash Balance.
Appears in 1 contract
Shared Contracts. (a) The Parties intend that all Contracts that would be deemed Each of Seller and Buyer will, in cooperation with the other, use its commercially reasonable efforts both before and after the Closing to effect the assignment and assumption of the Shared Contract Rights and the Shared Contract Obligations to a Group Company or to Seller, as applicable and as agreed by Seller and Buyer, under the Shared Contracts pursuant to this Agreement and the Transition Services Agreement by, among other things, amending the Shared Contracts to separately assign and assume the Shared Contract Rights and the Shared Contract Obligations to a Group Company or Seller, as applicable and as agreed by Seller and Buyer, and, if necessary or deemed desirable by Seller and Buyer, to execute new contracts with respect thereto; provided, that if commercially reasonable efforts require the payment of any consideration (monetary or otherwise) to, or the concession or provision of any right to, or the amendment or modification in any manner adverse to any Group Company or Seller, of any Shared Contract with, any third party, Seller and Buyer shall cooperate in good faith and assign any additional liabilities or benefits as a result of such assignment and assumption based upon a proportionate amount of the Effective Time, Shared Contract Rights and Shared Contract Obligations of each party as agreed in good faith between Buyer and Seller pursuant to the applicable Shared Contract. Buyer and Seller shall cooperate to mitigate any losses to any Group Company or portions thereof, will have been separated or assigned to a member of the Holcim Group or the SpinCo GroupSeller, as applicable, prior as a result of each party’s obligations pursuant to the Distributionthis Section 7.4. To the extent not completed prior to the Distribution, the Parties shall, following the Distribution, use their commercially reasonable efforts to separate any Shared Contracts into separate Contracts between the appropriate Third Party and either (i) SpinCo or a member of the SpinCo Group or (ii) Holcim or a member of the Holcim Group, including, but not limited to, by: (x) entering into new Contracts, (y) assigning (in whole or in part) existing Shared Contracts and (z) cooperating to obtain any Consents or Governmental Approvals to the extent required to effectuate the foregoing.
(b) Notwithstanding anything in this Agreement to the contrary, in the event If any Shared Contract is unable Rights to be separated assumed by a Group Company are not assigned to a Group Company prior to or on the Closing Date, and unless the parties otherwise agree in accordance with Section 2.8(a)writing, the Parties shall, and/or shall cause the applicable members of its Group party to such Shared Contract to, use commercially reasonable efforts to: (i) seek mutually acceptable alternative arrangements for purposes of allocating rights and Liabilities and obligations under such Shared Contract in accordance with the relative proportions of total benefit to be received over during the remaining term of the Shared Contract as of the Effective Time (provided that such arrangements shall not result in a breach or violation of such applicable Shared Contract, not to exceed twelve (12) and (ii) enforce for months, the benefit of the other Party (or Parties shall use their respective commercially reasonable efforts to allow the applicable member Group Company, to the extent permitted by applicable Law and to the extent reasonably within the contractual or other ability or control of Seller or its Affiliates, as the other Party’s Group) any and all rights under case may be, to receive such Shared Contract related Rights, subject to such other PartyGroup Company’s Businesssatisfaction of all Shared Contract Obligations thereunder; provided, with such other Party bearing however, that the applicable Group Company shall reimburse Seller or its applicable Affiliate for any reasonable and documented out-of-pocket expenses (which shall not include, for the avoidance of doubt, any costs and expenses of associated with personnel) incurred in connection with any such enforcement arrangement to the extent related to such services and costs are not otherwise contemplated by the rights being enforced for the benefit of such other Party, provided that Party (or relevant member of its Group) retaining Transition Services Agreement. If any Shared Contract Rights to be assumed by Seller are not assigned to Seller prior to or on the Closing Date, and unless the parties otherwise agree in writing, during the remaining term of the applicable Shared Contract, not to exceed twelve (12) months, the Parties shall be indemnified for all Indemnifiable Losses use their respective commercially reasonable efforts to allow Seller, to the extent permitted by applicable Law and to the extent reasonably within the contractual or other Liabilities arising out ability or control of any actions (Group Company or omissions to act) of such retaining Party taken at the direction of the other Party (or relevant member of its Group) in connection with and relating to such Shared ContractAffiliates, as the case may be, to receive such Shared Contract Rights, subject to Seller’s satisfaction of all Shared Contract Obligations thereunder; provided, however, that Seller shall reimburse such Group Company or its applicable Affiliate for any reasonable and documented out-of-pocket expenses (which shall not include, for the avoidance of doubt, any costs associated with personnel) incurred in connection with any such arrangement to the extent such services and costs are not otherwise contemplated by the Transition Services Agreement. Notwithstanding the foregoing covenants of each Party contained in this Section 7.4, Buyer and Seller agree that the Shared Contracts set forth on Schedule 7.4 of the Company Disclosure Schedules shall be (other than in the event of its gross negligence, fraud or willful misconduct).
(c) Each of Holcim and SpinCo shall, transferred to a Group Company and shall cause the members of their respective Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to their respective Business as be an Asset owned by, and/or a Liability of, as applicable, such Party, or the members asset and liability of such Party’s Group, as applicable, not later than the Distribution, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law or a good faith resolution of a Tax Contest)Group Company.
Appears in 1 contract
Shared Contracts. (a) The With respect to Shared Contractual Liabilities pursuant to, under or relating to a given Shared Contract, such Shared Contractual Liabilities shall be allocated, unless otherwise allocated pursuant to this Agreement or an Ancillary Agreement, between the Parties intend that all Contracts that would as follows:
(i) first, if a Liability is incurred exclusively in respect of a benefit received by one Party or its Group, the Party or Group receiving such benefit shall be deemed responsible for such Liability;
(ii) second, if a Liability cannot be exclusively allocated to one Party or its Group under Section 2.07(a)(i) above, such Liability shall be allocated among both Parties and their respective Groups based on the relative proportions of total benefit received (over the remaining term of the Shared Contracts Contract, measured starting as of the Effective Timedate of allocation) under the relevant Shared Contract. Notwithstanding the foregoing, each Party and its Group shall be responsible for any or all Liabilities arising out of or resulting from such Party’s or Group’s breach of the relevant Shared Contract.
(b) Except as otherwise expressly contemplated in this Agreement or an Ancillary Agreement, if ParentCo or any member of the ParentCo Group, on the one hand, or SpinCo or any member of the SpinCo Group, on the other hand, receives any benefit or payment under any Shared Contract which was intended for the other Party or its Group, ParentCo, on the one hand, or SpinCo, on the other hand, as applicable, will use its respective commercially reasonable efforts, or will cause any member of its Group to use its commercially reasonable efforts, to deliver, Transfer or otherwise afford such benefit or payment to the other Party.
(c) Notwithstanding anything to the contrary herein, if the Parties have determined that it is advisable that certain Shared Contracts, or portions thereof, will have been be separated or assigned to a member of the Holcim ParentCo Group or the SpinCo Group, as applicable, prior to the Distribution. To the extent not completed prior to the Distribution, the Parties shall, following the Distribution, shall use their commercially reasonable efforts to separate any the Shared Contracts into separate Contracts between the appropriate Third Party and either (i) SpinCo or a member of the SpinCo Group or (ii) Holcim ParentCo or a member of the Holcim ParentCo Group, including, but not limited to, by: (x) entering into new Contracts, (y) assigning (in whole . ParentCo or in part) existing Shared Contracts and (z) cooperating to obtain any Consents or Governmental Approvals to a member of the extent required to effectuate the foregoing.
(b) Notwithstanding anything in this Agreement to the contrary, in the event any Shared Contract is unable to be separated in accordance with Section 2.8(a), the Parties shall, and/or shall cause the applicable members of its ParentCo Group party to such Shared Contract to, will use commercially reasonable efforts to: (i) seek mutually acceptable alternative arrangements for purposes of allocating to assign the rights and Liabilities and obligations obligations, but only to the extent relating to the SpinCo Business, under such Shared Contract in accordance with the relative proportions of total benefit Contracts to be received over the remaining term SpinCo or a member of the Shared Contract as SpinCo Group. The Parties agree to cooperate and provide reasonable assistance prior to the Effective Time and for a period of six (6) months following the Effective Time (provided that with no obligation on the part of either Party to pay any costs or fees with respect to such arrangements shall not result assistance) in a breach effecting the separation or violation assignment of such Shared Contract) and (ii) enforce for the benefit of the other Party (or the applicable member of the other Party’s Group) any and all rights under such Shared Contract related to such other Party’s Business, with such other Party bearing the reasonable and documented out-of-pocket costs and expenses of such enforcement to the extent related to the rights being enforced for the benefit of such other Party, provided that Party (or relevant member of its Group) retaining any Shared Contract shall be indemnified for all Indemnifiable Losses or other Liabilities arising out of any actions (or omissions to act) of such retaining Party taken at the direction of the other Party (or relevant member of its Group) in connection with and relating to such Shared Contract, Contracts as the case may be (other than in the event of its gross negligence, fraud or willful misconduct)described above.
(cd) Each of Holcim ParentCo and SpinCo shall, and shall cause the members of their respective Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to their respective Business as an Asset owned by, and/or a Liability of, as applicable, such Party, or the members of such Party’s Group, as applicable, not later than the DistributionEffective Time, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law or a good faith resolution of a Tax ContestLaw).
Appears in 1 contract
Sources: Separation and Distribution Agreement (Leoch Energy Inc)
Shared Contracts. (a) The Parties intend that all Subject to Section 2.10(d) and other than with respect to the provision of Services under the Transitional Services Agreement or Shared Contracts that would be deemed are sublicensed to the Company and other Persons in the Company Group pursuant to the Patent and Know-How License Agreement (Pfizer as Licensor) or the Trademark and Copyright License Agreement, from and after the Effective Date, Pfizer may, in its sole discretion, make available to the Company Group the benefits and rights under Shared Contracts as of the Effective Time, or portions thereof, will have been separated or assigned to a member of the Holcim Group or the SpinCo Group, as applicable, prior to the Distribution. To the extent not completed prior such benefits and rights have historically been and currently are provided to the Distribution, the Parties shall, following the Distribution, use their commercially reasonable efforts Animal Health Business. With respect to separate any Shared Contracts into separate Contracts between made available to the appropriate Third Party and either Company Group pursuant to this Section 2.10(a), (i) SpinCo no Person in the Company Group shall take any action, or refrain from taking any action, if (A) such action or inaction is reasonably likely to or does result in a member breach on the part of any Person in the SpinCo Pfizer Group under any Shared Contract and (B) such Person in the Company Group would otherwise be obligated to take or not take such action under the Shared Contract had such Person become severally liable under the Shared Contract at the Effective Date and (ii) Holcim each Person in the Company Group shall reasonably cooperate with Pfizer and, at Pfizer’s reasonable request, take such actions that are permissible and reasonably necessary or a member of the Holcim Group, including, but not limited to, by: (x) entering into new Contracts, (y) assigning (in whole or in part) existing desirable to ensure that Pfizer is able to perform its obligations constituting Shared Contracts and (z) cooperating to obtain any Consents or Governmental Approvals to the extent required to effectuate the foregoingContract Liabilities under such Shared Contract.
(b) Notwithstanding anything in this Agreement With respect to the contrary, in the event any Shared Contract is unable Liabilities pursuant to, under or relating to be separated in accordance with Section 2.8(a)a given Shared Contract, the Parties shall, and/or shall cause the applicable members of its Group party to such Shared Contract toLiabilities shall be allocated, use commercially reasonable efforts to: unless otherwise allocated pursuant to this Agreement or an Ancillary Agreement, between the parties as follows:
(i) seek mutually acceptable alternative arrangements first, if a Liability is incurred exclusively in respect of a benefit received by one party or its Group, the party or Group receiving such benefit shall be responsible for purposes of allocating rights such Liability and Liabilities (ii) second, if a Liability cannot be exclusively allocated to one party or its Group under clause (i) above, such Liability shall be allocated among both parties and obligations under such Shared Contract in accordance with their respective Groups based on the relative proportions of total benefit to be received (over the remaining term of the Shared Contract Contract, measured as of the Effective Time (provided that such arrangements shall not result in a breach or violation date of such allocation) under the relevant Shared Contract) . Notwithstanding the foregoing, each party and (ii) enforce for the benefit of the other Party (or the applicable member of the other Party’s Group) any and all rights under such Shared Contract related to such other Party’s Business, with such other Party bearing the reasonable and documented out-of-pocket costs and expenses of such enforcement to the extent related to the rights being enforced for the benefit of such other Party, provided that Party (or relevant member of its Group) retaining any Shared Contract Group shall be indemnified responsible for any or all Indemnifiable Losses or other Liabilities arising out of any actions (or omissions to act) of resulting from such retaining Party taken at the direction party’s or Group’s breach of the other Party (or relevant member of its Group) in connection with and relating to such Shared Contract, as the case may be (other than in the event of its gross negligence, fraud or willful misconduct).
(c) Each If Pfizer or any member of Holcim the Pfizer Group, on the one hand, or the Company or any member of the Company Group, on the other hand, receives any benefit or payment under any Shared Contract which was intended for the other party or its Group, Pfizer, on the one hand, or the Company, on the other hand, will use its respective commercially reasonable efforts, or will cause any member of its Group to use its commercially reasonable efforts, to deliver, transfer or otherwise afford such benefit or payment to the other party.
(d) It shall be the responsibility of the Company to obtain the agreement of the third party that is the counterparty to each Shared Contract to enter into a new Contract effective as of the Effective Date pursuant to which the Company and SpinCo shallits Affiliates will receive substantially the same benefits provided by the Shared Contract to the Animal Health Business prior to the Effective Date. Except as expressly provided under the Transitional Services Agreement, none of Pfizer or any other member of the Pfizer Group shall be obligated to make available to the Company Group the benefits and rights under any Shared Contracts. In no event shall cause Pfizer be liable to the members of their respective Group to, Company for (i) treat for all Tax purposes the portion of each Shared Contract inuring to their respective Business as an Asset owned by, and/or a Liability of, as applicable, such Party, or the members any Liabilities arising out of such Party’s Group, as applicable, not later than the Distribution, and new Contracts or (ii) neither report nor take Liabilities arising out of the failure of the Company to obtain any Tax position replacement contract.
(e) As promptly as practicable following the Effective Date, Pfizer shall calculate the aggregate balance of the cash, cash equivalents and short term investments of the Company Group (the “Company Cash Balance”), as of the close of business on a Tax Return the Effective Date after giving effect to the consummation of the transactions contemplated in this Agreement to occur on or otherwise) inconsistent with such treatment (unless required prior to the Effective Date, including the payment to Pfizer of the Contribution Payment. The calculation of Company Cash Balance shall be made by applicable Law or a Pfizer in good faith resolution of a Tax Contest)and in its reasonable discretion and shall be final and binding on the Company. If the Company Cash Balance on the Effective Date was less than $300 million, then Pfizer shall, as promptly as practicable, contribute or otherwise transfer to the Company an amount equal to such deficit. The Company shall give Pfizer and its representatives access at all reasonable times to the Company’s properties, books, records, working papers and personnel to the extent requested to calculate the Company Cash Balance.
Appears in 1 contract
Shared Contracts. (a) The Parties intend that all Contracts that would be deemed Shared Contracts as Section 6.19(a) of the Effective Time, or portions thereof, will have been separated or assigned to a member of the Holcim Group or the SpinCo Group, as applicable, prior to the Distribution. To the extent not completed prior to the Distribution, the Parties shall, following the Distribution, use their commercially reasonable efforts to separate any Shared Contracts into separate Contracts between the appropriate Third Party and either Seller Disclosure Letter sets forth each:
(i) SpinCo Contract between a third party, on the one hand, and Seller or any of its Affiliates (each, a member of “Seller Signatory”), on the SpinCo Group or other hand, to which the Company is not a party, but under which the Company derives benefits (each, a “Company Beneficiary”) (the “Class A Contracts”);
(ii) Holcim Contract between a third party, on the one hand, and the Company (each, a “Company Signatory”), on the other hand, to which the Seller or any of its Affiliates (excluding the Company) is not a member of the Holcim Group, includingparty, but not limited tounder which the Seller or any of its Affiliates (excluding the Company) derives benefits (each, by: a “Seller Beneficiary”) (the “Class B Contracts”); and
(iii) Any Contract among (x) entering into new Contractsa third party, (y) assigning the Seller or any of its Affiliates (in whole or in partexcluding the Company) existing Shared Contracts and (z) cooperating the Company (including any contracts pursuant to which the assets or equity of the Company secure any Indebtedness or other obligations of the Seller or any of its Affiliates) (the “Class C Contracts”) (collectively with the Class A Contracts, the Class B Contracts and the Class C Contracts, the “Shared Contracts”). For each such Shared Contract, Section 6.19(a) of the Seller Disclosure Letter also sets forth the action that shall be taken prior to the Closing so as to reflect the treatment of such contract at or following the Closing (the “Agreed Upon Action”). The Parties shall use their respective reasonable best efforts to cause to occur, on or prior to the Closing, the Agreed Upon Action with respect to each Shared Contract; provided that none of the Seller or any of its Affiliates nor the Buyer or any of its Affiliates shall be required to compensate any third party, commence or participate in litigation or offer or grant any financial accommodation to any third party to obtain any Consents consent or Governmental Approvals to the extent required to effectuate the foregoingapproval.
(b) Notwithstanding anything in this Agreement If, notwithstanding the efforts of the Parties pursuant to the contrary, in the event any Shared Contract is unable to be separated in accordance with Section 2.8(a6.19(a), the Parties shallare not capable of effecting the Agreed Upon Action with respect to any Shared Contracts, and/or then the Closing shall cause (subject to the applicable members satisfaction or waiver of its Group party the conditions set forth in ARTICLE VII), proceed without the Agreed Upon Action with respect to such Shared Contract toContract. In the event that the Closing so proceeds without such Agreed Upon Action, then following the Closing, the Parties shall use commercially their reasonable efforts to: best efforts, and cooperate with each other, to obtain promptly such authorizations, approvals, consents or waivers as may be necessary to effect such action; provided, however, that neither Seller nor Buyer (inor any of their respective Affiliates) seek shall be required to pay any consideration for any such authorization, approval, consent or waiver. Pending such action, the Parties shall cooperate with each other in any mutually acceptable alternative agreeable, reasonable and lawful arrangements for purposes of allocating rights and Liabilities and obligations under such Shared Contract in accordance designed to provide to the applicable party with the relative proportions of total benefit to be received over the remaining term of the Shared Contract as of the Effective Time (provided that such arrangements shall not result in a breach or violation benefits of such Shared Contract) and (ii) enforce for the benefit of the other Party (or the applicable member of the other Party’s Group) any and all rights under such Shared Contract related to such other Party’s Business, with such other Party bearing the reasonable and documented out-of-pocket costs and expenses of such enforcement to . To the extent related that the parties are unable to effect the rights being enforced for the benefit of such other Party, provided that Party (or relevant member of its Group) retaining Agreed Upon Action with respect to any Shared Contract Contracts following the Closing pursuant to this Section 6.19(b), then the Parties shall be indemnified for all Indemnifiable Losses or other Liabilities arising out of any actions cooperate reasonably (or omissions and cause their Affiliates to act) of such retaining Party taken at the direction of the other Party (or relevant member of its Groupreasonably cooperate) in connection with an effort to find and relating to such Shared Contract, as the case may be (other than in the event of its gross negligence, fraud or willful misconduct)enter into mutually agreeable alternative arrangements.
(c) Each Following the Closing, to the extent that any: (1) Class A Contract or Class C Contract is the subject of Holcim a claim against a Seller Signatory due to an act or omission by a Company Beneficiary following the Closing, the Company shall promptly reimburse and SpinCo shallindemnify, defend and hold harmless the Seller Signatory for any Damages relating to or arising out of such act or omission; (2) Class B Contract or Class C Contract is the subject of a claim against a Company Signatory due to an act or omission by a Seller Beneficiary, the Seller shall cause promptly reimburse and indemnify, defend and hold harmless the members Company Signatory for any Damages relating to or arising out of their respective Group to, such act or omission; or (i3) treat for all Tax purposes the portion of each Shared Contract inuring is omitted from Section 6.19(a)of the Seller Disclosure Letter, the Parties agree to their respective Business negotiate in good faith as an Asset owned byto the termination, and/or a Liability ofamendment, separation or other action to be taken, if any, with respect to such Shared Contract as the Parties may determine following the Closing, consistent with the terms of the Transition Shared Services Agreement (if applicable) relevant to such Contract; provided, such Partyhowever, or that with regard to the members foregoing clause (3) of such Party’s Group, as applicable, not later than the Distribution, and (iithis Section 6.19(c) neither report the Seller or any of its Affiliates nor take Buyer or any Tax position (on a Tax Return of its Affiliates shall be required to compensate any third party, commence or otherwiseparticipate in litigation or offer or grant any financial accommodation to any third party, to obtain any consent or approval. Any indemnification obligations under this Section 6.19(c) inconsistent with such treatment (unless required by applicable Law or a good faith resolution shall be made pursuant to and subject to the limitations of a Tax Contest)ARTICLE IX.
Appears in 1 contract
Sources: Interest Purchase Agreement (Full House Resorts Inc)
Shared Contracts. With respect to any contracts of Kellwood or its Affiliates that are used in the operation of the Vince Business or any contracts of Vince or its Affiliates that are used in the operation of the Kellwood Business (a“Shared Contracts”), at the Recipient’s (which Recipient may be Kellwood or Vince) The request, the Service Provider shall (and shall cause the applicable Affiliate to) use commercially reasonable efforts to assist the Recipient to obtain the agreement of any Third Party to such Shared Contract to the entering into of a new Contract with the Recipient pursuant to which the Recipient or its designated Affiliates will have access to the supplies or services covered by, and receive any other benefit conferred by, such Shared Contract with respect to the Vince Business or Kellwood Business, as applicable. To the extent the foregoing is not possible or practical or in the event that the Third Party does not agree to enter into a new Contract with the Recipient or one of its designated Affiliates, at the Recipient’s request, the Parties intend that shall, in each case to the extent permitted under the applicable Shared Contract, design an arrangement pursuant to which the Recipient or its designated Affiliates will receive substantially all Contracts that would of the material rights and benefits (and will assume and discharge their proportionate share of the obligations or be deemed invoiced for such amounts pursuant to Article III and as further described below) of such Shared Contracts as of may be received by the Effective Time, or portions thereof, will have been separated or assigned to a member of the Holcim Group Vince Business or the SpinCo GroupKellwood Business, as applicable, prior to the Distributiondate hereof. To Such an arrangement shall include the extent not completed prior obligation of the Service Provider or the applicable Affiliate to forward (where possible and practical) supplies or services, as the case may be, received from such Shared Contract with respect to the DistributionVince Business or Kellwood Business, the Parties shallas applicable, following the Distribution, use their commercially reasonable efforts to separate any Shared Contracts into separate Contracts between the appropriate Third Party and either (i) SpinCo or a member of the SpinCo Group or (ii) Holcim or a member of the Holcim Group, including, but not limited to, by: (x) entering into new Contracts, (y) assigning (in whole or in part) existing Shared Contracts and (z) cooperating to obtain any Consents or Governmental Approvals to the extent required to effectuate the foregoing.
(b) Notwithstanding anything in this Agreement to the contrary, in the event any Shared Contract is unable to be separated Recipient or its designated Affiliates in accordance with Section 2.8(a)reasonable instructions from the Recipient, until the Parties shall, and/or shall cause the applicable members term of its Group party to such Shared Contract to, use commercially reasonable efforts to: (i) seek mutually acceptable alternative arrangements for purposes of allocating rights and Liabilities and obligations under such Shared Contract terminates in accordance with its terms. The Recipient shall be invoiced by and reimburse the relative proportions of total benefit to be received over the remaining term of the Shared Contract as of the Effective Time (provided that such arrangements shall not result in a breach or violation of such Shared Contract) and (ii) enforce for the benefit of the other Party (Service Provider or the applicable member Affiliate for its proportionate share of the other Party’s Group) any and all rights under such Shared Contract related to such other Party’s Business, with such other Party bearing the reasonable and documented out-of-pocket and third party costs incurred with respect such Shared Contracts. For example, if a the total amount owed to a third party under a Shared Contract is $1,000 per month by the Service Provider and expenses the Recipient receives 20% of such enforcement to the extent related to the rights being enforced for the product, services or benefit of such other Party, provided that Party (or relevant member of its Group) retaining any Shared Contract the Recipient shall be indemnified for all Indemnifiable Losses or other Liabilities arising out of any actions (or omissions invoiced by and reimburse the Service Provider in an amount equal to act) of such retaining Party taken at the direction of the other Party (or relevant member of its Group) in connection with and relating to such Shared Contract, as the case may be (other than in the event of its gross negligence, fraud or willful misconduct)$200 per month.
(c) Each of Holcim and SpinCo shall, and shall cause the members of their respective Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to their respective Business as an Asset owned by, and/or a Liability of, as applicable, such Party, or the members of such Party’s Group, as applicable, not later than the Distribution, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law or a good faith resolution of a Tax Contest).
Appears in 1 contract
Shared Contracts. (ai) The Parties intend that all Contracts that would be deemed Shared Contracts as of the Effective Time, At or portions thereof, will have been separated or assigned to a member of the Holcim Group or the SpinCo Group, as applicable, prior to the Distribution. To Closing Date (unless waived or modified by the extent not completed FTC with respect to any Shared Contract), each of the Seller and the Purchaser shall, and shall cause their respective Affiliates to, cooperate to cause the Shared Contracts to be replaced with separate Contracts, as applicable (the “Replacement Contracts”), that provide that the Purchaser or its Affiliates receive contract rights and obligations under such Replacement Contracts that are substantially equivalent in the aggregate to those contract rights and obligations utilized by the Seller or its Affiliates under the Shared Contracts in the conduct of the Transferred Business prior to the DistributionClosing; provided that the Purchaser shall execute an assignment for any portion of a Shared Contract or establish, in the Parties shallPurchaser’s name, following the Distribution, use their commercially reasonable efforts to separate any Shared Contracts into separate Contracts a Replacement Contract between the appropriate Third Party Purchaser and either (i) SpinCo or a member the applicable counterparty for any such Shared Contract if the terms being offered by such counterparty are substantially equivalent in the aggregate to the current terms of the SpinCo Group or such Shared Contract.
(ii) Holcim or a member The Purchaser and the Seller shall cooperate and provide each other with reasonable assistance in effecting such separation of the Holcim Group, including, but Shared Contracts. If the Purchaser and the Seller are not limited to, by: (x) entering into new Contracts, (y) assigning (in whole or in part) existing Shared Contracts and (z) cooperating able to obtain any Consents or Governmental Approvals to effect the extent required to effectuate the foregoing.
(b) Notwithstanding anything in this Agreement to the contrary, in the event any separation of a Shared Contract is unable to be separated in accordance with Section 2.8(a)1.03(b)(i) prior to the Closing and the FTC waives or modifies the requirement to do so, the Parties shallthen, and/or shall cause the applicable members of its Group party to until any such Shared Contract tois separated, use commercially reasonable efforts to: to the extent permissible under applicable Law and under the terms of such Shared Contract, each of the Purchaser and the Seller shall (iA) seek mutually acceptable alternative arrangements for purposes of allocating rights assume and Liabilities perform the liabilities and obligations under such Shared Contract relating to its respective business or that of its Affiliates (and shall promptly reimburse the other party for any reasonable out-of-pocket expenses incurred by the other party or its Affiliates for liabilities and obligations under such Shared Contract not relating to the business of such other party or its Affiliates), allocated in accordance with the relative proportions of total benefit to be received over the remaining term of the Shared Contract as of the Effective Time this Section 1.03(b); (provided that such arrangements shall not result B) hold in a breach or violation of such Shared Contract) and (ii) enforce trust for the benefit of the other Party (party, and shall promptly forward to the other party, any monies or other benefits received pursuant to such Shared Contract relating to the applicable member respective businesses of the other Party’s Groupparty (or its Affiliates); and (C) use commercially reasonable efforts to institute alternative arrangements intended to put the parties in substantially the same economic position as if such Shared Contract were separated.
(iii) All liabilities and obligations relating to a given Shared Contract shall, unless otherwise allocated pursuant to this Agreement or a Replacement Contract, be deemed to be (A) Assumed Liabilities to the extent such liabilities and obligations relate to the Transferred Business and relate to and are required to be performed during periods from and after the Closing and (B) Retained Liabilities to the extent they do not relate to the Transferred Business or they relate to the ownership or operation of the Transferred Business prior to the Closing. Notwithstanding the foregoing, each party shall be solely responsible for any and all rights under such Shared Contract related to such other Party’s Business, with such other Party bearing the reasonable liabilities and documented out-of-pocket costs and expenses of such enforcement obligations to the extent related arising out of or relating to the rights being enforced for the benefit such party’s (or its Affiliates’) breach of any such other Party, Shared Contract; provided that Party (the Purchaser’s failure to comply with or relevant member satisfy any Assumed Liabilities shall not be deemed a breach of its Group) retaining any Shared Contract shall be indemnified for all Indemnifiable Losses by the Seller or other Liabilities arising out of any actions (or omissions to act) of such retaining Party taken at the direction of the other Party (or relevant member of its Group) in connection with and relating to such Shared Contract, as the case may be (other than in the event of its gross negligence, fraud or willful misconduct)Affiliates.
(c) Each of Holcim and SpinCo shall, and shall cause the members of their respective Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to their respective Business as an Asset owned by, and/or a Liability of, as applicable, such Party, or the members of such Party’s Group, as applicable, not later than the Distribution, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law or a good faith resolution of a Tax Contest).
Appears in 1 contract
Shared Contracts. (a) The Parties intend that all Subject to Section 2.03(d) and other than with respect to the provision of Services under the Transition Services Agreement or other Shared Contracts that would be deemed Shared Contracts as are addressed by any of the other Ancillary Agreements, from and after the Effective TimeDate, or portions thereof, will have been separated or assigned to a member of the Holcim Group or the SpinCo Group, as applicable, prior to the Distribution. To the extent not completed prior to the Distribution, the Parties shall, following the Distribution, AT&T shall use their commercially its reasonable efforts to separate make available to the Company Group until the Disposition Date the benefits and rights under Shared Contracts to the extent such benefits and rights have historically been and currently are provided to the Vrio Business. With respect to any Shared Contracts into separate Contracts between made available to the appropriate Third Party and either Company Group pursuant to this Section 2.03(a), (i) SpinCo no Person in the Company Group shall take any action, or refrain from taking any action, if (A) such action or inaction is reasonably likely to or does result in a member breach on the part of any Person in the SpinCo AT&T Group under any Shared Contract and (B) such Person in the Company Group would otherwise be obligated to take or not take such action under the Shared Contract had such Person become severally liable under the Shared Contract at the Effective Date and (ii) Holcim each Person in the Company Group shall reasonably cooperate with AT&T and, at AT&T’s reasonable request, take such actions that are permissible and reasonably necessary or a member of the Holcim Group, including, but not limited to, by: (x) entering into new Contracts, (y) assigning (in whole or in part) existing desirable to ensure that AT&T is able to perform its obligations constituting Shared Contracts and (z) cooperating to obtain any Consents or Governmental Approvals to the extent required to effectuate the foregoingContract Liabilities under such Shared Contract.
(b) Notwithstanding anything in this Agreement With respect to the contrary, in the event any Shared Contract is unable Liabilities pursuant to, under or relating to be separated in accordance with Section 2.8(a)a given Shared Contract, the Parties shall, and/or shall cause the applicable members of its Group party to such Shared Contract toLiabilities shall be allocated, use commercially reasonable efforts tounless otherwise allocated pursuant to this Agreement or an Ancillary Agreement, between the parties as follows: (i) seek mutually acceptable alternative arrangements first, if a Liability is incurred exclusively in respect of a benefit received by one party or its Group, the party or Group receiving such benefit shall be responsible for purposes of allocating rights such Liability and Liabilities (ii) second, if a Liability cannot be exclusively allocated to one party or its Group under clause (i) above, such Liability shall be allocated among both parties and obligations under such Shared Contract their respective Groups in accordance with the same manner as prior to the Effective Date or, in all other cases, based on the relative proportions of total benefit to be received (over the remaining term of the Shared Contract Contract, measured as of the Effective Time (provided that such arrangements shall not result in a breach or violation date of such allocation) under the relevant Shared Contract) . Notwithstanding the foregoing, each party and (ii) enforce for the benefit of the other Party (or the applicable member of the other Party’s Group) any and all rights under such Shared Contract related to such other Party’s Business, with such other Party bearing the reasonable and documented out-of-pocket costs and expenses of such enforcement to the extent related to the rights being enforced for the benefit of such other Party, provided that Party (or relevant member of its Group) retaining any Shared Contract Group shall be indemnified responsible for any or all Indemnifiable Losses or other Liabilities arising out of any actions (or omissions to act) of resulting from such retaining Party taken at the direction party’s or Group’s breach of the other Party (or relevant member of its Group) in connection with and relating to such Shared Contract, as the case may be (other than in the event of its gross negligence, fraud or willful misconduct).
(c) Each If AT&T or any member of Holcim the AT&T Group, on the one hand, or the Company or any member of the Company Group, on the other hand, receives any benefit or payment under any Shared Contract which was intended for the other party or its Group, AT&T, on the one hand, or the Company, on the other hand, will use its respective reasonable best efforts, or will cause any member of its Group to use its reasonable best efforts, to deliver, transfer or otherwise afford such benefit or payment to the other party.
(d) As of the Effective Date, it shall be the responsibility of the Company to use its reasonable best efforts to obtain the agreement of the third party that is the counterparty to each Shared Contract to enter into a new Contract in lieu of such Shared Contract effective no later than the Disposition Date. Except as expressly provided under any Ancillary Agreement, none of AT&T or any other member of the AT&T Group shall be obligated to make available to the Company Group the benefits and SpinCo shall, and rights under any Shared Contracts after the Disposition Date. In no event shall cause AT&T be liable to the members of their respective Group to, Company for (i) treat for all Tax purposes the portion of each Shared Contract inuring to their respective Business as an Asset owned by, and/or a Liability of, as applicable, such Party, or the members any Liabilities arising out of such Party’s Group, as applicable, not later than the Distribution, and new Contracts or (ii) neither report nor take Liabilities arising out of the failure of the Company to obtain any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law or a good faith resolution of a Tax Contest)replacement contract.
Appears in 1 contract
Shared Contracts. (a) The Parties intend With respect to Shared Contractual Liabilities pursuant to, under or relating to a given Shared Contract, such Shared Contractual Liabilities shall, unless otherwise allocated pursuant to this Agreement or an Ancillary Agreement, be allocated between Parent and the Retained Subsidiaries, on the one hand, and Buyer, Designated Buyers and their Subsidiaries, on the other hand, as follows:
(i) first, to the extent a Shared Contractual Liability is incurred exclusively in respect of a benefit received by the Analytical Technologies Business, such Liability shall be determined to be an Assumed Liability;
(ii) second, to the extent a Shared Contractual Liability is incurred exclusively in respect of a benefit received by the Excluded Businesses, such Liability shall be determined to be a Retained Liability; and
(iii) third, to the extent a Shared Contractual Liability or portion thereof cannot be so allocated under clause (i) or (ii) above, such Liability shall be allocated to Parent and the Retained Subsidiaries, on the one hand, and to Designated Buyers and their Subsidiaries, on the other hand, as the case may be, based on the relative proportions of total benefit received (over the term of the Shared Contract, measured from the Closing Date up to the date of the allocation) by Parent and the Retained Subsidiaries, on the one hand, or Designated Buyers and their Subsidiaries, on the other hand, under the relevant Shared Contract. Notwithstanding the foregoing, Sellers, on the one hand, and Buyer, on the other hand, each shall be responsible for any or all Liabilities arising out of or resulting from their (or their respective Subsidiaries') breach of the relevant Shared Contract to which this Section 7.19 otherwise pertains, it being understood that Sellers shall be responsible for all such breaches prior to Closing.
(b) If Sellers or any Retained Subsidiary, on the one hand, or any Designated Buyers or any of their respective Subsidiaries, on the other hand, receives any benefit or payment under any Shared Contract which was intended for the other party, Sellers and Buyer will use their respective reasonable commercial efforts to, and to cause their respective Subsidiaries to, deliver, transfer or otherwise afford such benefit or payment to the other party.
(c) A complete and accurate list of Shared Contracts that would directly benefit the Analytical Technology Business prior to Closing, but which will not continue to directly benefit the Analytical Technology Business at or after Closing is set forth on Section 7.19(c)(i) of the Sellers' Disclosure Schedule. A complete list of Shared Contracts that directly benefit the Analytical Technology Business and which will continue to directly benefit the Analytical Technology Business at or after Closing (which excludes Shared Contracts provided under the Transition Services Agreement) is set forth on Section 7.19(c)(ii) of the Sellers' Disclosure Schedule. Notwithstanding anything to the contrary herein, the parties agree that the Shared Contracts, a complete list of which is set forth on Section 7.19(c)(i) and Section 7.19(c)(ii) of the Sellers' Disclosure Schedule, shall not be deemed to be Analytical Technologies Assets hereunder. From and after the Closing and until the expiration (including the expiration of the maximum time permitted under the applicable Contract for splitting) or splitting of the relevant Shared Contracts Contract and/or the Designated Buyer obtaining the relevant benefit, service or right from another source, Sellers shall, and shall cause their Affiliates to, make available to the relevant Designated Buyer for use in the conduct of the Analytical Technologies Business such benefits, services and rights (subject to the recipient being responsible for the corresponding Shared Contractual Liability) under each Shared Contract set forth on Section 7.19(c)(ii) of the Sellers' Disclosure Schedule as were provided to the Analytical Technologies Business in the manner in which it was conducted on the date hereof and as of Closing. Without limiting the Effective Timeforegoing, or portions thereofthe parties have determined that it is advisable that certain Shared Contracts, will have been separated or assigned to a member which are identified on Section 7.19(c)(iii) of the Holcim Group or the SpinCo GroupSellers' Disclosure Schedule, as applicable, prior to the Distribution. To the extent not completed prior to the Distribution, the Parties shall, following the Distribution, use their commercially reasonable efforts to separate any Shared Contracts be separated into separate Contracts between the appropriate Third Party third party and either (i) SpinCo the Excluded Businesses or a member of the SpinCo Group or (ii) Holcim or a member of the Holcim GroupAnalytical Technologies Business, including, but not limited to, by: (x) entering into new Contracts, (y) assigning (in whole or in part) existing Shared Contracts and (z) cooperating to obtain any Consents or Governmental Approvals that to the extent required provided on Section 7.19(c)(iii) of the Sellers' Disclosure Schedule, the Sellers and Buyer shall share the Shared Contractual Liabilities as set forth on such schedule. The parties agree to effectuate cooperate in good faith and provide reasonable assistance to each other prior to Closing (with no obligation on the foregoingpart of either party to pay any costs or fees or commence any litigation or other proceeding with respect to such assistance) in seeking to effect the separation of such Shared Contracts.
(bd) Notwithstanding anything As used in this Agreement to the contrarySection 7.19, in the event any Shared Contract is unable to be separated in accordance with Section 2.8(a), the Parties Buyer's Subsidiaries shall, and/or shall cause after the applicable members of its Group party to such Shared Contract toClosing, use commercially reasonable efforts to: (i) seek mutually acceptable alternative arrangements for purposes of allocating rights and Liabilities and obligations under such Shared Contract in accordance with include the relative proportions of total benefit to be received over the remaining term of the Shared Contract as of the Effective Time (provided that such arrangements shall not result in a breach or violation of such Shared Contract) and (ii) enforce for the benefit of the other Party (or the applicable member of the other Party’s Group) any and all rights under such Shared Contract related to such other Party’s Business, with such other Party bearing the reasonable and documented out-of-pocket costs and expenses of such enforcement to the extent related to the rights being enforced for the benefit of such other Party, provided that Party (or relevant member of its Group) retaining any Shared Contract shall be indemnified for all Indemnifiable Losses or other Liabilities arising out of any actions (or omissions to act) of such retaining Party taken at the direction of the other Party (or relevant member of its Group) in connection with and relating to such Shared Contract, as the case may be (other than in the event of its gross negligence, fraud or willful misconduct)Analytical Technologies Companies.
(c) Each of Holcim and SpinCo shall, and shall cause the members of their respective Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to their respective Business as an Asset owned by, and/or a Liability of, as applicable, such Party, or the members of such Party’s Group, as applicable, not later than the Distribution, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law or a good faith resolution of a Tax Contest).
Appears in 1 contract
Shared Contracts. (a) The Parties intend that all Contracts that would be deemed With respect to Shared Contracts as of the Effective TimeContractual Liabilities pursuant to, under or portions thereof, will have been separated or assigned relating to a member of the Holcim Group or the SpinCo Groupgiven Shared Contract, as applicable, prior to the Distribution. To the extent not completed prior to the Distribution, the Parties shall, following the Distribution, use their commercially reasonable efforts to separate any such Shared Contracts into separate Contracts Contractual Liabilities shall be allocated between the appropriate Third Party and either (i) SpinCo or a member of the SpinCo Group or (ii) Holcim or a member of the Holcim Group, including, but not limited to, by: (x) entering into new Contracts, (y) assigning (in whole or in part) existing Shared Contracts and (z) cooperating to obtain any Consents or Governmental Approvals to the extent required to effectuate the foregoing.
(b) Notwithstanding anything in this Agreement to the contrary, in the event any Shared Contract is unable to be separated in accordance with Section 2.8(a), the Parties shall, and/or shall cause the applicable members of its Group party to such Shared Contract to, use commercially reasonable efforts toparties as follows: (i) seek mutually acceptable alternative arrangements First, if a Liability is incurred exclusively in respect of a benefit received by one party or its Group, the party or Group receiving such benefit shall be responsible for purposes of allocating rights such Liability.
(ii) Second, if a Liability cannot be exclusively allocated to one party or its Group under clause (i) foregoing, such Liability shall be allocated among both parties and Liabilities and obligations under such Shared Contract in accordance with their respective Groups based on the relative proportions of total benefit to be received (over the remaining term of the Shared Contract Contract, measured as of the Effective Time (provided that such arrangements shall not result in a breach or violation date of such allocation) under the relevant Shared Contract) . Notwithstanding the foregoing, each party and (ii) enforce for the benefit of the other Party (or the applicable member of the other Party’s Group) any and all rights under such Shared Contract related to such other Party’s Business, with such other Party bearing the reasonable and documented out-of-pocket costs and expenses of such enforcement to the extent related to the rights being enforced for the benefit of such other Party, provided that Party (or relevant member of its Group) retaining any Shared Contract Group shall be indemnified responsible for any or all Indemnifiable Losses or other Liabilities arising out of any actions (or omissions to act) of resulting from such retaining Party taken at the direction party’s or Group’s breach of the other Party (or relevant member of its Group) in connection with and relating to such Shared Contract, as the case may be (other than in the event of its gross negligence, fraud or willful misconduct).
(cb) Each If ▇▇▇▇ ▇▇▇ or any member of Holcim the ▇▇▇▇ ▇▇▇ Group, on the one hand, or HBI or any member of the HBI Group, on the other hand, receives any benefit or payment under any Shared Contract which was intended for the other party or its Group, ▇▇▇▇ ▇▇▇ and SpinCo shallany member of the ▇▇▇▇ ▇▇▇ Group, on the one hand, or HBI and shall cause any member of the members of HBI Group, on the other hand, will use their respective Group toreasonable best efforts to deliver, transfer or otherwise afford such benefit or payment to the other party. Section 4.5 Excluded Assets, Excluded Liabilities and Certain Other Matters (i) treat for all Tax purposes the portion of each Shared Contract inuring to their respective Business as an Asset owned by, and/or a Liability of, as applicable, such Party, or the members of such Party’s Group, as applicable, not later than the Distribution, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law or a good faith resolution of a Tax Contesta).
Appears in 1 contract
Sources: Master Separation Agreement
Shared Contracts. (a) The Parties intend All contracts under which both Seller or an Affiliate of Seller, on the one hand, and the Company, on the other hand, share rights, benefits, duties or obligations (each, a “Shared Contract”) that all Contracts that would be deemed Shared Contracts as are material are, to the knowledge of Seller, listed in Section 8.09 of the Effective TimeSeller Disclosure Schedule. With respect to any obligation or liability of whatever kind and nature, primary or portions thereofsecondary, will have been separated direct or assigned indirect, absolute or contingent, known or unknown, whether or not accrued, whether arising before, on or after the Closing Date pursuant to, under or relating to a member any Shared Contract whether or not listed in Section 8.09 of the Holcim Group or Seller Disclosure Schedule (the SpinCo Group“Shared Contractual Liabilities”), as applicable, such Shared Contractual Liabilities shall be allocated between Seller and the Company prior to and after the Distribution. To the extent not completed prior to the Distribution, the Parties shall, following the Distribution, use their commercially reasonable efforts to separate any Shared Contracts into separate Contracts between the appropriate Third Party and either Closing as follows:
(i) SpinCo If a liability is incurred exclusively in respect of a benefit received exclusively by Seller (or a member of its Affiliates), on the SpinCo Group one hand, or by the Company (or its Affiliates), on the other hand, the party receiving such benefit shall be responsible for such liability.
(ii) Holcim or If a member of the Holcim Group, including, but liability cannot limited to, by: be so allocated under clause (x) entering into new Contracts, (y) assigning (in whole or in part) existing Shared Contracts and (z) cooperating to obtain any Consents or Governmental Approvals to the extent required to effectuate the foregoing.
(b) Notwithstanding anything in this Agreement to the contrary, in the event any Shared Contract is unable to be separated in accordance with Section 2.8(ai), such liability shall be allocated to Seller or the Parties shallCompany, and/or shall cause as the applicable members of its Group party to such Shared Contract tocase may be, use commercially reasonable efforts to: (i) seek mutually acceptable alternative arrangements for purposes of allocating rights and Liabilities and obligations under such Shared Contract in accordance with based on the relative proportions of total benefit to be received (over the remaining term of the Shared Contract relevant contract, measured as of the Effective Time (provided that date of the allocation) by such arrangements shall not result in a breach party or violation of such party=s Affiliates under the relevant Shared Contract. Notwithstanding the foregoing, each of Seller and the Company shall be responsible for any or all liabilities arising from its (or its Affiliates’) and breach of any relevant Shared Contract to which this Section 8.09 otherwise pertains.
(iib) enforce for If Seller or any of its Affiliates, on the benefit one hand, or Buyer or any of its Affiliates (including the Company), on the other Party (hand, receives any materials or the applicable member of the other Party’s Group) any and all rights information, benefit or payment which under such Shared Contract related to such other Party’s Business, with such other Party bearing the reasonable and documented out-of-pocket costs and expenses of such enforcement to the extent related to the rights being enforced for the benefit of such other Party, provided that Party (or relevant member of its Group) retaining any Shared Contract shall be indemnified was intended for all Indemnifiable Losses the other, Seller and Buyer will, and will cause their respective Affiliates to, deliver such materials or other Liabilities arising out of any actions (information, benefit or omissions payment to act) of such retaining Party taken at the direction of the other Party (or relevant member of its Group) in connection with and relating to such Shared Contract, as the case may be (other than in the event of its gross negligence, fraud or willful misconduct)party.
(c) Each of Holcim and SpinCo shall, and shall cause the members of their respective Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to their respective Business as an Asset owned by, and/or a Liability of, as applicable, such Party, or the members of such Party’s Group, as applicable, not later than the Distribution, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law or a good faith resolution of a Tax Contest).
Appears in 1 contract
Sources: Purchase Agreement (Deltagen Inc)
Shared Contracts. (a) The Parties intend that all Contracts that would With respect to Shared Contractual Liabilities pursuant to, under or relating to a given Shared Contract, such Shared Contractual Liabilities shall, unless otherwise allocated pursuant to this Agreement or a Related Agreement, be deemed allocated between TDY and Buyer as follows:
(i) If a Liability is incurred exclusively in respect of the Tungsten Materials Business or the Excluded Businesses, such Liability shall be allocated to Buyer (in respect of the Tungsten Materials Business) or TDY (in respect of the Excluded Businesses);
(ii) If a Liability cannot be so allocated under clause (i) above, such Liability shall be allocated to TDY or Buyer, as the case may be, based on the relative proportions of total benefit received (over the term of the Shared Contracts Contract remaining as of the Effective TimeClosing Date, measured as of the date of the allocation) by the Tungsten Materials Business or the Excluded Business under the relevant Shared Contract. Notwithstanding the foregoing, each of TDY and Buyer shall be responsible for any or all Liabilities arising from its (or its Subsidiary’s) breach of the relevant Shared Contract to which this Section 5.17 otherwise pertains; provided, however, that each of TDY and Buyer shall be entitled to indemnification from the other for the portion of any Liabilities arising from any breach of the relevant Shared Contract by the other party (or its Subsidiary), which indemnification shall be separate from and not subject to the limitations set forth in Section 8.4.
(b) If TDY or any Retained Subsidiary, on the one hand, or portions thereofBuyer or any of its Subsidiaries, on the other hand, receives any benefit or payment which under any Shared Contract was intended for the other, TDY and Buyer will have been separated use their respective reasonable best efforts to, and to cause their respective Subsidiaries to, deliver such benefit or assigned payment to a member the other party.
(c) Notwithstanding anything to the contrary herein, the parties agree that the Shared Contracts listed on Section 5.17(c)(i) of the Holcim Group or Seller’s Disclosure Schedule shall not be deemed to be Tungsten Materials Assets hereunder (the SpinCo Group, as applicable, prior to “Excluded Shared Contracts”). Without limiting the Distribution. To the extent not completed prior to the Distributionforegoing, the Parties shallparties have determined that it is advisable that certain Shared Contracts, following which are identified on Section 5.17(c)(ii) of the DistributionSeller’s Disclosure Schedule, use their commercially reasonable efforts to separate any Shared Contracts be separated into separate Contracts between the appropriate Third Party third party and either the Excluded Businesses or the Tungsten Materials Business. The parties agree to cooperate and provide reasonable assistance prior to the Closing (iwith no obligation on the part of either party to pay any costs or fees with respect to such assistance) SpinCo or a member in effecting the separation of such Shared Contracts. If such Shared Contracts are not separated at Closing, the SpinCo Group or (ii) Holcim or a member parties agree to continue to provide each other with reasonable cooperation and assistance in effecting the separation of the Holcim Group, including, but not limited to, by: (x) entering into new Contracts, (y) assigning (in whole or in part) existing such Shared Contracts and (z) cooperating shall treat the same as Shared Contracts or take such reasonable steps as are necessary to obtain any Consents or Governmental Approvals to the extent required to effectuate the foregoing.
(b) Notwithstanding anything in this Agreement to the contrary, in the event any Shared Contract is unable to be separated in accordance with Section 2.8(a), the Parties shall, and/or shall cause the applicable members of its Group provide each party to such Shared Contract to, use commercially reasonable efforts to: (i) seek mutually acceptable alternative arrangements for purposes of allocating rights and Liabilities and obligations under such Shared Contract in accordance with the relative proportions of total benefit to be received over the remaining term of the Shared Contract as of the Effective Time (provided that such arrangements shall not result in a breach or violation of such Shared Contract) and (ii) enforce for the benefit of the other Party (or the applicable member of the other Party’s Group) any and all rights under such Shared Contract related to such other Party’s Business, with such other Party bearing the reasonable and documented out-of-pocket costs and expenses of such enforcement to the extent related to the rights being enforced for the benefit of such other Party, provided that Party (or relevant member of its Group) retaining any Shared Contract shall be indemnified for all Indemnifiable Losses or other Liabilities arising out of any actions (or omissions to act) of such retaining Party taken at the direction of the other Party (or relevant member of its Group) in connection with and relating to such Shared Contract, as the case may be (other than in the event of its gross negligence, fraud or willful misconduct)Contracts.
(c) Each of Holcim and SpinCo shall, and shall cause the members of their respective Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to their respective Business as an Asset owned by, and/or a Liability of, as applicable, such Party, or the members of such Party’s Group, as applicable, not later than the Distribution, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law or a good faith resolution of a Tax Contest).
Appears in 1 contract
Shared Contracts. Prior to Closing, Seller and Buyer shall cooperate in good faith to determine a mutually acceptable plan for separating the Shared Contracts, including (a) The Parties intend that all to identify any additional Shared Contracts that would shall be deemed separated prior to Closing and (b) to seek to apportion any increased costs to the Company and Seller and its Affiliates (other than the Company) resulting from separating the Shared Contracts proportionally based on their respective allocated assets, licenses, services or financial commitments. Except as of the Effective Time, set forth in this Section 4.16 or portions thereof, will have been separated or assigned to a member of the Holcim Group or the SpinCo Group, as applicable, prior otherwise agreed in writing between Seller and Buyer and subject to the Distribution. To the extent not completed prior to the DistributionTransition Services Agreement and Day 1 Action Plan, the Parties shall, following the Distribution, parties hereto shall use their commercially reasonable efforts to separate any procure that the above-mentioned Shared Contracts into separate Contracts between the appropriate Third Party Contract shall be assigned, transferred and either (i) SpinCo or a member of the SpinCo Group or (ii) Holcim or a member of the Holcim Group, including, but not limited to, by: (x) entering into new Contracts, (y) assigning (in whole or in part) existing Shared Contracts and (z) cooperating to obtain any Consents or Governmental Approvals conveyed to the extent required to effectuate the foregoing.
(b) Notwithstanding anything in this Agreement to the contraryCompany, in the event any Shared Contract is unable each case, only with respect to be separated in accordance with Section 2.8(a), the Parties shall, and/or shall cause the applicable members those parts of its Group party to such Shared Contract tothat primarily relate to the Company, use commercially reasonable efforts to: (i) seek mutually acceptable alternative arrangements for purposes of allocating if so assignable, transferable or conveyable, or appropriately amended prior to the Closing, so that the Company shall be entitled to the rights and Liabilities and obligations under such Shared Contract in accordance with the relative proportions benefit of total benefit to be received over the remaining term those parts of the Shared Contract as and shall assume the portion of any liabilities, in each case, that relate primarily to the Effective Time (provided that such arrangements shall not result in a breach or violation of Company under such Shared Contract; provided, that (i) and (ii) enforce for the benefit of the other Party in no event shall any Person be required to assign (or the applicable member of the other Party’s Group) any and all rights under such Shared Contract related to such other Party’s Businessamend), with such other Party bearing the reasonable and documented out-of-pocket costs and expenses of such enforcement to the extent related to the rights being enforced for the benefit of such other Partyeither in its entirety or in part, provided that Party (or relevant member of its Group) retaining any Shared Contract shall be indemnified for all Indemnifiable Losses if an attempted assignment or amendment, without the consent of, or other Liabilities arising out of action by, any actions (third party, would constitute a breach thereunder or omissions to act) of such retaining Party taken at in any way adversely affect the direction rights of the other Party (Company or relevant member of its Group) in connection with and relating to such Shared Contract, as the case may be (other than in the event of its gross negligence, fraud Seller or willful misconduct).
(c) Each of Holcim and SpinCo shall, and shall cause the members any of their respective Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to their respective Business as an Asset owned by, and/or a Liability of, as applicable, such Party, or the members of such Party’s Group, as applicable, not later than the DistributionAffiliates thereunder, and (ii) neither report nor take if any Tax position (on a Tax Return Shared Contract cannot be so partially assigned by its terms or otherwise) inconsistent with , or cannot be amended, without such treatment (unless required by applicable Law consent or action, Seller and Buyer shall cooperate in a good faith resolution of a Tax Contest).mutually agreeable arrangement under
Appears in 1 contract
Sources: Stock Purchase Agreement (Vse Corp)
Shared Contracts. (a) The Parties intend From the date hereof until the date that all Contracts that would be deemed Shared Contracts as of is three (3) months following the Effective TimeClosing Date, or portions thereof, will have been separated or assigned to a member of the Holcim Group or the SpinCo Group, as applicable, prior to the Distribution. To the extent not completed prior to the Distribution, the Parties Seller and Purchaser shall, following the Distributionand shall cause their respective Affiliates to, use their commercially reasonable best efforts to separate work together (and, if necessary and desirable, to work with the third party to any Shared Contracts into separate Contracts between the appropriate Third Party and either (iContract) SpinCo to divide, partially assign, modify or a member of the SpinCo Group or (ii) Holcim or a member of the Holcim Group, including, but not limited to, by: (x) entering into new Contracts, (y) assigning replicate (in whole or in part) existing Shared Contracts the respective rights and (z) cooperating to obtain any Consents or Governmental Approvals to the extent required to effectuate the foregoing.
(b) Notwithstanding anything obligations under and in this Agreement to the contrary, in the event respect of any Shared Contract is unable to be separated in accordance with Section 2.8(a)Contract, such that, following the Parties shallClosing, and/or shall cause the applicable members of its Group party to such Shared Contract to, use commercially reasonable efforts to: (i) seek mutually acceptable alternative arrangements for purposes Purchaser, an Affiliate of allocating Purchaser or a Group Company is the beneficiary of the rights and Liabilities and obligations under such Shared Contract in accordance with the relative proportions of total benefit to be received over the remaining term of the Shared Contract as of the Effective Time (provided that such arrangements shall not result in a breach or violation of such Shared Contract) and (ii) enforce is responsible for the benefit obligations related to the portion of the other Party (or the applicable member of the other Party’s Group) any and all rights under such Shared Contract related to the Business (the “Purchaser Portion”), which rights shall be an asset of and which obligations shall be a liability of Purchaser, an Affiliate of Purchaser or a Group Company, and (ii) Seller or an Affiliate of Seller (other than a Group Company) is the beneficiary of the rights and is responsible for the obligations related to such Shared Contract relating to the Seller Business (the “Seller Portion”), which rights shall be an asset of and which obligations shall be a liability of Seller or an Affiliate of Seller (other Party’s Businessthan a Group Company). Nothing in this Agreement shall require the division, with partial assignment, modification or replication of a Shared Contract unless and until any necessary Consents are obtained or made, as applicable. If Seller and Purchaser or their respective Affiliates, as applicable, are not able to enter into an arrangement to divide, partially assign, modify or replicate (in whole or in part) the rights and obligations under and in respect of any such other Party bearing Shared Contract prior to the reasonable and documented out-of-pocket costs and expenses of such enforcement Closing, the Closing shall, subject to the satisfaction (or, to the extent related permitted by applicable Law, the waiver by the parties entitled to the rights being enforced for the benefit of such other Party, provided that Party (or relevant member of its Group) retaining any Shared Contract shall be indemnified for all Indemnifiable Losses or other Liabilities arising out of any actions (or omissions to actthereof) of such retaining Party taken at the direction of the other Party (or relevant member of its Group) conditions set forth in connection with and relating to such Shared Contract, as the case may be Article VI (other than in those conditions which by their terms are to be satisfied at the event Closing but subject to the satisfaction at the Closing or waiver of its gross negligencesuch conditions), fraud nonetheless take place on the terms set forth herein and, thereafter and until the earlier of (x) the date that is three (3) months following the Closing and (y) the date on which the division, partial assignment, modification or willful misconduct).
(c) Each replication of Holcim such Shared Contract is effected, Seller and SpinCo Purchaser shall, and shall cause the members of their respective Group Affiliates to, cooperate in any commercially reasonable arrangement to provide that (i1) treat for all Tax purposes Purchaser, an Affiliate of Purchaser or a Group Company shall receive the portion interest in the benefits and obligations of each the Purchaser Portion under and in respect of such Shared Contract inuring to their respective Business as and (2) Seller or an Asset owned by, and/or Affiliate of Seller (other than a Liability of, as applicable, such Party, or Group Company) shall receive the members interest in the benefits and obligations of the Seller Portion under and in respect of such Party’s GroupShared Contract. This Section 5.21(a) shall not apply to any Seller Shared Customer Contract or Purchaser Shared Customer Contract, as applicablewhich are governed by Sections 5.21(b) and 5.21(c), not later than the Distributionrespectively, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law or a good faith resolution of a Tax ContestSection 5.21(d).
Appears in 1 contract
Shared Contracts. (a) The Parties intend From the Signing Date until the date that all Contracts that would be deemed Shared Contracts as of is 12 months following the Effective TimeClosing Date, or portions thereof, will have been separated or assigned to a member of the Holcim Group or the SpinCo Group, as applicable, prior to the Distribution. To the extent not completed prior to the Distribution, the Parties Seller and Purchaser shall, following the Distributionand shall cause their respective Affiliates to, use their commercially reasonable best efforts to separate work together (and, if necessary and desirable, to work with the third party to any Shared Contracts into separate Contracts between the appropriate Third Party and either (iContract) SpinCo to divide, partially assign, modify or a member of the SpinCo Group or (ii) Holcim or a member of the Holcim Group, including, but not limited to, by: (x) entering into new Contracts, (y) assigning replicate (in whole or in part) existing the respective rights and obligations under and in respect of any Shared Contracts Contract, such that, following the Closing, (i) Purchaser, an Affiliate of Purchaser or a Group Company is the beneficiary of the rights and (z) cooperating to obtain any Consents or Governmental Approvals is solely responsible for the obligations under such Shared Contract to the extent required such obligations are related to effectuate the Business (the “Purchaser Portion”), which rights shall be an asset of and which obligations shall be a liability of Purchaser, an Affiliate of Purchaser or a Group Company, and (ii) Seller or an Affiliate of Seller (other than a Group Company) is the beneficiary of the rights and is solely responsible for the obligations related to the Seller Business (the “Seller Portion”), which rights shall be an asset of and which obligations shall be a liability of Seller or an Affiliate of Seller (other than a Group Company). Nothing in this Agreement shall require the division, partial assignment, modification or replication of a Shared Contract unless and until any necessary Consents are obtained or made, as applicable. From and after the Closing, Purchaser shall indemnify and hold harmless Seller and its Affiliates from any Losses and liabilities incurred by Seller or its Affiliates arising from or relating to the Purchaser Portion of any Shared Contract and Seller shall indemnify and hold harmless Purchaser, the Group Companies and their respective Affiliates for any Losses and liabilities incurred by Purchaser, the Group Companies or any of their respective Affiliates arising out of or relating to the Seller Portion of any Shared Contract. If Seller and Purchaser or their respective Affiliates, as applicable, are not able to enter into an arrangement to divide, partially assign, modify or replicate (in whole or in part) the rights and obligations under and in respect of any such Shared Contract prior to the Closing, the Closing shall, subject to the satisfaction (or, to the extent permitted by applicable Law, the waiver by the parties entitled to the benefit thereof) of the conditions set forth in Article VI (other than those conditions which by their terms are to be satisfied at the Closing but subject to the satisfaction at the Closing or waiver of such conditions), nonetheless take place on the terms set forth herein and, thereafter and until the earlier of (x) the date that is twelve (12) months following the Closing and (y) the date on which the division, partial assignment, modification or replication of such Shared Contract as described in this Section 5.18 is effected, Seller and Purchaser shall, and shall cause their respective Affiliates to, cooperate in any commercially reasonable arrangement to provide that (1) Purchaser, an Affiliate of Purchaser or a Group Company shall receive the interest in the benefits and obligations of the Purchaser Portion under and in respect of such Shared Contract and (2) Seller or an Affiliate of Seller (other than a Group Company) shall receive the interest in the benefits and obligations of the Seller Portion under and in respect of such Shared Contract. This Section 5.18(a) shall not apply to any Seller Shared Customer Contract or Purchaser Shared Customer Contract, which are governed by Section 5.18(a) and Section 5.18(b), respectively, and Section 5.18(c).
(a) From the Signing Date until the Closing, Seller and Purchaser shall, and shall cause their respective Affiliates to, use their reasonable best efforts to work together (and, if necessary and desirable, to work with the third party to any Seller Shared Customer Contract) to divide, partially assign, modify or replicate (in whole or in part) the respective rights and obligations under and in respect of any Seller Shared Customer Contract, such that, following the Closing, (i) Purchaser, an Affiliate of Purchaser or a Group Company is the beneficiary of the rights and is solely responsible for the obligations under such Seller Shared Customer Contract to the extent such obligations are related to the Purchaser Portion of such Seller Shared Customer Contract, which rights shall be an asset of and which obligations shall be a liability of Purchaser, an Affiliate of Purchaser or a Group Company, and (ii) Seller or an Affiliate of Seller (other than a Group Company) is the beneficiary of the rights and is solely responsible for the obligations related to the Seller Portion of such Seller Shared Customer Contract, which rights shall be an asset of and which obligations shall be a liability of Seller or an Affiliate of Seller (other than a Group Company). Nothing in this Agreement shall require the division, partial assignment, modification or replication of a Seller Shared Customer Contract unless and until any necessary Consents are obtained or made, as applicable. If Seller and Purchaser or their respective Affiliates, as applicable, are not able to enter into an arrangement to divide, partially assign, modify or replicate the rights and obligations under and in respect of any such Seller Shared Customer Contract prior to the Closing, the Closing shall, subject to the satisfaction (or, to the extent permitted by applicable Law, the waiver by the parties entitled to the benefit thereof) of the conditions set forth in Article VI (other than those conditions which by their terms are to be satisfied at the Closing but subject to the satisfaction at the Closing or waiver of such conditions), nonetheless take place on the terms set forth herein and, unless Purchaser and Seller otherwise agree, thereafter and until the earlier of (x) the date that is twelve (12) months following the Closing and (y) the date on which the subcontracting of the Purchaser Portion of such Seller Shared Customer Contract (the “Embedded Purchaser Portion”) to Purchaser, an Affiliate of Purchaser or a Group Company is effected, Seller and Purchaser shall, and shall cause their respective Affiliates to, (1) use their reasonable best efforts to obtain the Consent of, or make the Consent to, the third party to such Seller Shared Customer Contract to the subcontracting of the Embedded Purchaser Portion to Purchaser, an Affiliate of Purchaser or a Group Company and (2) cooperate in any commercially reasonable arrangement to provide that Purchaser, an Affiliate of Purchaser or a Group Company shall receive the interest in the benefits and obligations of the Embedded Purchaser Portion under and in respect of such Seller Shared Customer Contract. Notwithstanding the foregoing, if all required Consents to the subcontracting of the Embedded Purchaser Portion of any Seller Shared Customer Contract to Purchaser, an Affiliate of Purchaser or, after the Closing, a Group Company are obtained or made on or prior to the Closing Date, then Seller and Purchaser shall, and shall cause their respective applicable Affiliates to, enter into subcontracting arrangements on commercially reasonable terms mutually acceptable to Seller and Purchaser pursuant to which the Embedded Purchaser Portion of such Seller Shared Customer Contract shall be provided by Purchaser, an Affiliate of Purchaser or, after the Closing, a Group Company. Nothing in this Agreement shall require entering into a subcontracting arrangement with respect to the Embedded Purchaser Portion of a Seller Shared Customer Contract unless and until any necessary Consents are obtained or made, as applicable. From and after Closing, Purchaser shall indemnify and hold harmless Seller and its Affiliates from any Losses and liabilities incurred by Seller or its Affiliates arising from or relating to the Embedded Purchaser Portion of any Seller Shared Customer Contract and Seller shall indemnify and hold harmless Purchaser, the Group Companies and their respective Affiliates from any Losses and liabilities incurred by Purchaser, the Group Companies or any of their respective Affiliates arising out of or relating to such Seller Shared Customer Contracts other than the Embedded Purchaser Portions thereof.
(b) Notwithstanding anything in this Agreement to From the contrarySigning Date until the Closing, in the event any Shared Contract is unable to be separated in accordance with Section 2.8(a), the Parties Seller and Purchaser shall, and/or and shall cause the applicable members of its Group party to such Shared Contract their respective Affiliates to, use commercially their reasonable best efforts to: to work together (and, if necessary and desirable, to work with the third party to any Purchaser Shared Customer Contract) to divide, partially assign, modify or replicate (in whole or in part) the respective rights and obligations under and in respect of any Purchaser Shared Customer Contract, such that, following the Closing, (i) seek mutually acceptable alternative arrangements for purposes Seller or an Affiliate of allocating Seller (other than a Group Company) is the beneficiary of the rights and Liabilities and is solely responsible for the obligations under such Purchaser Shared Customer Contract in accordance with to the relative proportions of total benefit extent such obligations are related to be received over the remaining term of the Shared Contract as of the Effective Time (provided that such arrangements shall not result in a breach or violation Seller Portion of such Purchaser Shared Customer Contract) , which rights shall be an asset of and which obligations shall be a liability of Seller or an Affiliate of Seller (other than a Group Company), and (ii) enforce Purchaser, an Affiliate of Purchaser or a Group Company is the beneficiary of the rights and is solely responsible for the obligations related to the Purchaser Portion of such Purchaser Shared Customer Contract, which rights shall be an asset of and which obligations shall be a liability of Purchaser, an Affiliate of Purchaser or a Group Company. Nothing in this Agreement shall require the division, partial assignment, modification or replication of a Purchaser Shared Customer Contract unless and until any necessary Consents are obtained or made, as applicable. If Seller and Purchaser or their respective Affiliates, as applicable, are not able to enter into an arrangement to divide, partially assign, modify or replicate the rights and obligations under and in respect of any such Purchaser Shared Customer Contract prior to the Closing, the Closing shall, subject to the satisfaction (or, to the extent permitted by applicable Law, the waiver by the parties entitled to the benefit thereof) of the conditions set forth in Article VI (other Party than those conditions which by their terms are to be satisfied at the Closing but subject to the satisfaction at the Closing or waiver of such conditions), nonetheless take place on the terms set forth herein and, unless Purchaser and Seller otherwise agree, thereafter and until the earlier of (or x) the applicable member date that is twelve (12) months following the Closing and (y) the date on which the subcontracting of the Purchaser Portion of such Purchaser Shared Customer Contract (the “Embedded Seller Portion”) to Seller or an Affiliate of Seller (other Party’s Groupthan a Group Company) any is effected, Seller and all rights under such Shared Contract related Purchaser shall, and shall cause their respective Affiliates to, (1) use their reasonable best efforts to obtain the Consent of, or make the Consent to, the third party to such Purchaser Shared Customer Contract to the subcontracting of the Embedded Seller Portion to Seller or an Affiliate of Seller (other Party’s Businessthan a Group Company) and (2) cooperate in any commercially reasonable arrangement to provide that Seller or an Affiliate of Seller (other than a Group Company) shall receive the interest in the benefits and obligations of the Embedded Seller Portion under and in respect of such Purchaser Shared Customer Contract. Notwithstanding the foregoing, if all required Consents to the subcontracting of the Embedded Seller Portion of any Purchaser Shared Customer Contract to Seller or an Affiliate of Seller (other than a Group Company) are obtained or made on or prior to the Closing Date, then Seller and Purchaser shall, and shall cause their respective applicable Affiliates to, enter into subcontracting arrangements on commercially reasonable terms mutually acceptable to Seller and Purchaser pursuant to which the Embedded Seller Portion of such Purchaser Shared Customer Contract shall be provided by Seller or an Affiliate of Seller (other than a Group Company). Nothing in this Agreement shall require entering into a subcontracting arrangement with respect to the Embedded Seller Portion of a Purchaser Shared Customer Contract unless and until any necessary Consents are obtained or made, as applicable. From and after the Closing, Seller shall indemnify and hold harmless Purchaser, the Group Companies and their respective Affiliates for any Losses and liabilities incurred by Purchaser, the Group Companies or any of their respective Affiliates arising out of or relating to the Embedded Seller Portion of any Purchaser Shared Customer Contract and Purchaser shall indemnify and hold harmless Seller and its Affiliates from any Losses and liabilities incurred by Seller or its Affiliates arising out of or relating to such Purchaser Shared Customer Contracts other Party bearing than the Embedded Seller Portions thereof.
(c) Nothing in this Section 5.18 shall require either Seller or Purchaser nor any their respective Affiliates to contribute capital, pay or grant any consideration or concession in any form (including providing any letter of credit, guaranty or other financial accommodation) to any Person (other than reasonable and documented out-of-pocket costs expenses, attorneys’ fees and recording or similar fees, all of which shall be reimbursed as promptly as reasonably practicable by the party on whose behalf such expenses and fees are incurred). For avoidance of such enforcement to the extent related to the rights being enforced doubt, reasonable and documented out-of-pocket expenses, attorneys’ fees and recording or similar fees shall not include any purchase price, license fee or other payment or consideration for the benefit of such other Party, provided that Party (or relevant member of its Group) retaining any Shared Contract shall be indemnified for all Indemnifiable Losses or other Liabilities arising out procurement of any actions (or omissions asset secured to act) of such retaining Party taken at the direction of the other Party (or relevant member of its Group) in connection with and relating to such Shared Contract, as the case may be (other than replace an asset in the event course of its gross negligence, fraud Seller’s or willful misconductPurchaser’s obligations under Section 5.18(a) or Section 5.18(b).
(c) Each of Holcim and SpinCo shall, and shall cause the members of their respective Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to their respective Business as an Asset owned by, and/or a Liability of, as applicable, such Party, or the members of such Party’s Group, as applicable, not later than the Distribution, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law or a good faith resolution of a Tax Contest).
Appears in 1 contract
Shared Contracts. (a1) The Parties intend During the Interim Period, the Vendor Parent shall use commercially reasonable efforts to cause any Shared Contract to be split into two separate contracts (such that all Contracts that would be deemed Shared Contracts as the Vendor Parent or any of its Subsidiaries (other than a Purchased Entity) and the Effective Timecounterparty are a party to one and a Purchased Entity and the counterparty are a party to the other) or otherwise assigned, or portions thereof, will have been separated or assigned to a member of the Holcim Group or the SpinCo Groupamended and/or novated, as applicable, prior to or on the DistributionClosing Date, such that the Vendor Parent and/or its Subsidiaries (other than the Purchased Entities), on one hand, and the Purchased Entities (as applicable), on the other hand, shall be entitled only to the rights and benefits, and shall assume or otherwise be liable for only the related portion of any Liabilities, enuring to the Vendor Business and the Coal Business, respectively; provided, however, that in no event shall this Section 5.14 require the Vendor Parent or any of its Subsidiaries to (a) make any non de minimis payment, incur any non de minimis Liability or grant any non de minimis concession for the benefit of any Person in order to effect any action contemplated by this Section 5.14(1); (b) assign, amend and/or novate any Shared Contract in its entirety or any portion of any Shared Contract which is not assignable (or cannot be amended or novated) by its terms (including any terms imposing consents or conditions on an assignment, amendment or novation where such consents or conditions have not been obtained or fulfilled), or (c) partially assign (or amend or novate) any Shared Contract if, in the opinion of the Vendor Parent, such assignment, amendment and/or novation could reasonably be expected to impair the benefit derived by the Vendor Parent or its Subsidiaries from such Shared Contract. For greater certainty, the separation, assignment, amendment and/or novation of Shared Contracts described in this Section 5.14(1) shall not be a condition to the Closing.
(2) Notwithstanding Section 11.4, to the extent any Shared Contract to which no Purchased Entity is a party thereto cannot be separated, assigned, amended and/or novated prior to or on the Closing Date in accordance with Section 5.14(1), excluding, at the Vendor Parties' election, the Shared Contracts listed in Section 5.14(2) of the Disclosure Letter, the Vendor Parties shall to the extent (a) permitted by Law and the provisions of the applicable Shared Contract and (b) feasible under the provisions of the applicable Shared Contract, act after the Closing as the applicable Purchased Entities' agent to the extent that the Shared Contract relates to the Coal Business, or otherwise hold the benefit of the Shared Contract to that extent for, or provide the benefit of the Shared Contract to that extent to, the applicable Purchased Entities (via trust or any other form of commercial arrangement, including the on-sale of goods procured under the Shared Contract at cost), and shall cooperate, to the extent permitted by Law and the provisions of the applicable Shared Contract, with the Purchaser in any other reasonable arrangement designed to provide such benefits to the applicable Purchased Entities (collectively, "Shared Contract Agency Arrangements") until such time as the Shared Contract expires in accordance with its term or the portion of the Shared Contract relating to the Coal Business can be separated, assigned, amended and/or novated to, or for the benefit of, the applicable Purchased Entities, and all rights and obligations relating to the Coal Business under any Shared Contract subject to a Shared Contract Agency Arrangement will be deemed to be respectively Coal Assets and Coal Liabilities. The applicable Purchased Entities shall bear the costs incurred by a Vendor Party under the terms of any such Shared Contract to the extent that such costs are incurred in relation to the Coal Business pursuant to any such Shared Contract Agency Arrangement. To the extent not completed prior to the Distribution, the Parties shall, following the Distribution, use their commercially reasonable efforts to separate any Shared Contracts into separate Contracts between the appropriate Third Party and either (i) SpinCo or a member of the SpinCo Group or (ii) Holcim or a member of the Holcim Group, including, but not limited to, by: (x) entering into new Contracts, (y) assigning (in whole or in part) existing Shared Contracts and (z) cooperating to obtain any Consents or Governmental Approvals to the extent required to effectuate the foregoing.
(b) Notwithstanding anything in this Agreement to the contrary, in the event any Shared Contract to which no Purchased Entity is unable a party thereto (a) cannot be separated, assigned, amended and/or novated prior to be separated or on the Closing Date in accordance with Section 2.8(a5.14(1), and (b) excluding, at the Parties shallVendor Parties' election, the Shared Contracts listed in Section 5.14(2) of the Disclosure Letter, cannot be made subject to a Shared Contract Agency Arrangement in accordance with this Section 5.14(2), such Shared Contract shall be deemed to be an Excluded Asset (and the Liabilities thereunder shall be deemed to be Excluded Liabilities).
(3) To the extent any Shared Contract to which any Purchased Entity is a party thereto cannot be separated, assigned, amended and/or novated pursuant to Section 5.14(1) prior to or on the Closing Date: (i) all rights and obligations of the Vendor Parent and/or its applicable Subsidiaries (other than the Purchased Entities) in respect of such Shared Contract (or any portion thereof) shall cause remain with the Vendor Parent or such Subsidiaries, as applicable, and all such rights and obligations shall be deemed to be Excluded Assets and Excluded Liabilities, respectively; (ii) all rights and obligations of the applicable members Purchased Entities in respect of such Shared Contract (or any portion thereof) shall remain with the applicable Purchased Entities, and all such rights and obligations shall be deemed to be Coal Assets and Coal Liabilities, respectively; and (iii) none of: (A) the Vendor Parent or any of its Group Subsidiaries (on the one hand); or (B) any of the Purchaser Parties or Purchased Entities (on the other hand), shall have any Liabilities (including any payment obligations) in connection with any such Shared Contract except to any third party who is party to such Shared Contract toas provided under the provisions of such Shared Contract; provided that, in the case of the Vendor Parent and its Subsidiaries, each of them must ensure that it does not do anything to cause any of the Purchaser Parties and/or Purchased Entities to incur any liability to a third party in relation to such Shared Contract and, in the case of the Purchaser Parties and/or Purchased Entities, each of them must ensure that it does not do anything to cause any of the Vendor Parent or any of its Subsidiaries (other than the Purchased Entities) to incur any Liability to a third party in relation to such Shared Contract. This Section 5.14(3) is without prejudice to the liability of any party under any such Shared Contract to a third party under the terms of that arrangement.
(4) The Vendor Parties shall, upon the Purchaser's reasonable request, (a) reasonably consult with the Purchaser and its Representatives from time to time regarding the separation, assignment, amendment, novation and/or termination of Shared Contracts pursuant to this Section 5.14; and (b) use commercially reasonable efforts to: to facilitate discussions between the Purchaser and its Representatives (i) seek mutually acceptable alternative arrangements for purposes of allocating rights and Liabilities and obligations under such Shared Contract in accordance with the relative proportions of total benefit to be received over the remaining term of the Shared Contract as of the Effective Time (provided that such arrangements shall not result in a breach or violation of such Shared Contractone hand) and the Vendor Parties' partners, suppliers and service providers (ii) enforce for the benefit of on the other Party (or the applicable member of the other Party’s Group) any and all rights under such Shared Contract related to such other Party’s Business, with such other Party bearing the reasonable and documented out-of-pocket costs and expenses of such enforcement to the extent related to the rights being enforced for the benefit of such other Party, provided that Party (or relevant member of its Group) retaining any Shared Contract shall be indemnified for all Indemnifiable Losses or other Liabilities arising out of any actions (or omissions to act) of such retaining Party taken at the direction of the other Party (or relevant member of its Grouphand) in connection with the Purchaser's transition and relating to such Shared Contract, as integration of the case may be (other than in Coal Business and the event of its gross negligence, fraud or willful misconduct)Coal Assets into the Purchaser group from and after Closing.
(c) Each of Holcim and SpinCo shall, and shall cause the members of their respective Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to their respective Business as an Asset owned by, and/or a Liability of, as applicable, such Party, or the members of such Party’s Group, as applicable, not later than the Distribution, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law or a good faith resolution of a Tax Contest).
Appears in 1 contract
Shared Contracts. (a) The Parties intend that all Contracts that would With respect to Shared Contractual Liabilities pursuant to, under or relating to a given Shared Contract, such Shared Contractual Liabilities shall, unless otherwise allocated pursuant to this Agreement or a Related Agreement, be deemed allocated between TDY and Buyer as follows:
(i) If a Liability is incurred exclusively in respect of the Tungsten Materials Business or the Excluded Businesses, such Liability shall be allocated to Buyer (in respect of the Tungsten Materials Business) or TDY (in respect of the Excluded Businesses);
(ii) If a Liability cannot be so allocated under clause (i) above, such Liability shall be allocated to TDY or Buyer, as the case may be, based on the relative proportions of total benefit received (over the term of the Shared Contracts Contract remaining as of the Effective TimeClosing Date, measured as of the date of the allocation) by the Tungsten Materials Business or the Excluded Business under the relevant Shared Contract. Notwithstanding the foregoing, each of TDY and Buyer shall be responsible for any or all Liabilities arising from its (or its Subsidiary's) breach of the relevant Shared Contract to which this Section 5.17 otherwise pertains; provided, however, that each of TDY and Buyer shall be entitled to indemnification from the other for the portion of any Liabilities arising from any breach of the relevant Shared Contract by the other party (or its Subsidiary), which indemnification shall be separate from and not subject to the limitations set forth in Section 8.4.
(b) If TDY or any Retained Subsidiary, on the one hand, or portions thereofBuyer or any of its Subsidiaries, on the other hand, receives any benefit or payment which under any Shared Contract was intended for the other, TDY and Buyer will have been separated use their respective reasonable best efforts to, and to cause their respective Subsidiaries to, deliver such benefit or assigned payment to a member the other party.
(c) Notwithstanding anything to the contrary herein, the parties agree that the Shared Contracts listed on Section 5.17(c)(i) of the Holcim Group or Seller's Disclosure Schedule shall not be deemed to be Tungsten Materials Assets hereunder (the SpinCo Group, as applicable, prior to "Excluded Shared Contracts"). Without limiting the Distribution. To the extent not completed prior to the Distributionforegoing, the Parties shallparties have determined that it is advisable that certain Shared Contracts, following which are identified on Section 5.17(c)(ii) of the DistributionSeller's Disclosure Schedule, use their commercially reasonable efforts to separate any Shared Contracts be separated into separate Contracts between the appropriate Third Party third party and either the Excluded Businesses or the Tungsten Materials Business. The parties agree to cooperate and provide reasonable assistance prior to the Closing (iwith no obligation on the part of either party to pay any costs or fees with respect to such assistance) SpinCo or a member in effecting the separation of such Shared Contracts. If such Shared Contracts are not separated at Closing, the SpinCo Group or (ii) Holcim or a member parties agree to continue to provide each other with reasonable cooperation and assistance in effecting the separation of the Holcim Group, including, but not limited to, by: (x) entering into new Contracts, (y) assigning (in whole or in part) existing such Shared Contracts and (z) cooperating shall treat the same as Shared Contracts or take such reasonable steps as are necessary to obtain any Consents or Governmental Approvals to the extent required to effectuate the foregoing.
(b) Notwithstanding anything in this Agreement to the contrary, in the event any Shared Contract is unable to be separated in accordance with Section 2.8(a), the Parties shall, and/or shall cause the applicable members of its Group provide each party to such Shared Contract to, use commercially reasonable efforts to: (i) seek mutually acceptable alternative arrangements for purposes of allocating rights and Liabilities and obligations under such Shared Contract in accordance with the relative proportions of total benefit to be received over the remaining term of the Shared Contract as of the Effective Time (provided that such arrangements shall not result in a breach or violation of such Shared Contract) and (ii) enforce for the benefit of the other Party (or the applicable member of the other Party’s Group) any and all rights under such Shared Contract related to such other Party’s Business, with such other Party bearing the reasonable and documented out-of-pocket costs and expenses of such enforcement to the extent related to the rights being enforced for the benefit of such other Party, provided that Party (or relevant member of its Group) retaining any Shared Contract shall be indemnified for all Indemnifiable Losses or other Liabilities arising out of any actions (or omissions to act) of such retaining Party taken at the direction of the other Party (or relevant member of its Group) in connection with and relating to such Shared Contract, as the case may be (other than in the event of its gross negligence, fraud or willful misconduct)Contracts.
(c) Each of Holcim and SpinCo shall, and shall cause the members of their respective Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to their respective Business as an Asset owned by, and/or a Liability of, as applicable, such Party, or the members of such Party’s Group, as applicable, not later than the Distribution, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law or a good faith resolution of a Tax Contest).
Appears in 1 contract
Sources: Purchase Agreement (Kennametal Inc)
Shared Contracts. (a) The Parties intend that all Contracts that would be deemed With respect to Shared Contracts as of the Effective TimeContractual Liabilities pursuant to, under or portions thereof, will have been separated or assigned relating to a member given Shared Contract, such Shared Contractual Liabilities shall, 173 unless otherwise allocated pursuant to this Agreement, a Local Purchase Agreement, a Local Asset Transfer Agreement, a Transitional Services Agreements, an Other Agreement to which Buyer or any Buyer Sub (or any DTI Company or Asset Seller, if the final version of the Holcim Group or the SpinCo Group, as applicable, such agreement was disclosed to Buyer prior to the Distribution. To date of this Agreement or otherwise approved by Buyer) is a party, or a Related Agreement, be allocated between DuPont and the extent not completed prior to Retained Subsidiaries, on the Distributionone hand, and Buyer and its Subsidiaries, on the Parties shallother hand, following the Distribution, use their commercially reasonable efforts to separate any Shared Contracts into separate Contracts between the appropriate Third Party and either as follows:
(i) SpinCo first, to the extent a Liability is incurred exclusively in respect of (A) a benefit received by the DuPont Business or the DTI Business or (B) a member of breach or failure to perform caused by the SpinCo Group DuPont Business or the DTI Business (treating for this purpose any breaches or failures to perform by DuPont or its Affiliates that are caused by acts or failures to act by the DTI Business as a breach or failure to perform by the DTI Business), in each case such Liability shall be determined to be a Retained Liability or an Assumed Liability, respectively; and
(ii) Holcim or a member of the Holcim Groupsecond, including, but not limited to, by: (x) entering into new Contracts, (y) assigning (in whole or in part) existing Shared Contracts and (z) cooperating to obtain any Consents or Governmental Approvals to the extent required to effectuate the foregoing.
(b) Notwithstanding anything in this Agreement to the contrary, in the event any Shared Contract is unable to a Liability cannot be separated in accordance with Section 2.8(a), the Parties shall, and/or shall cause the applicable members of its Group party to such Shared Contract to, use commercially reasonable efforts to: so allocated under clause (i) seek mutually acceptable alternative arrangements for purposes of allocating rights above, such Liability shall be allocated to DuPont and Liabilities the Retained Subsidiaries, on the one hand, and obligations under such Shared Contract in accordance with to Buyer and its Subsidiaries, on the other hand, as the case may be, based on the relative proportions of total benefit received ((i) to be the extent the Liabilities relate to a specified period, the relative benefits received by the DuPont Business and the DTI Business over such period and (ii) otherwise over the remaining term of the Shared Contract, measured from January 1, 2003 or such later date as the Shared Contract as was entered into up to the date of the Effective Time (provided that such arrangements shall not result in a breach or violation of such allocation) by the DuPont Business, on the one hand, and the DTI Business, on the other hand, under the relevant Shared Contract) and (ii) enforce for . Notwithstanding the benefit of the other Party (foregoing, DuPont or the applicable member of the other Party’s Group) any and all rights under such Shared Contract related to such other Party’s Business, with such other Party bearing the reasonable and documented out-of-pocket costs and expenses of such enforcement to the extent related to the rights being enforced for the benefit of such other Party, provided that Party (or relevant member of its Group) retaining any Shared Contract shall be indemnified for all Indemnifiable Losses or other Liabilities arising out of any actions (or omissions to act) of such retaining Party taken at the direction of the other Party (or relevant member of its Group) in connection with and relating to such Shared ContractBuyer, as the case may be, shall be responsible for any or all Liabilities arising out of or resulting from their (other than in or their respective Subsidiaries') breach of the event relevant Shared Contract to which this Section 5.25 otherwise pertains.
(b) If DuPont or any Retained Subsidiary, on the one hand, or Buyer or any of its gross negligenceSubsidiaries, fraud on the other hand, receives any benefit or willful misconduct)payment that under any Shared Contract was intended for the other party, DuPont or Buyer, as the case may be, will use its reasonable commercial efforts to, and to cause such Subsidiaries to, deliver, transfer or otherwise afford such benefit or payment to the other party.
(c) Each Notwithstanding anything to the contrary herein, the parties agree that the Shared Contracts set forth on Schedule 5.25(c)(i) (excluding any Mirrored Shared Contracts, the "EXCLUDED SHARED CONTRACTS") shall not be deemed to be DTI Assets hereunder. Without limiting the foregoing, the parties have determined that it is advisable that certain Shared Contracts, which are set forth on Schedule 5.25(c)(ii) (together with any Excluded Shared Contracts that Buyer designates in writing no later than ten (10) Business Days prior to Closing as a Contract that it wants to be a Mirrored Shared Contract, collectively, the "MIRRORED SHARED CONTRACTS"), be separated into 174 separate Contracts between the appropriate third party and either the DuPont Business or the DTI Business as the case may be, in all material respects on the same terms (except for Mirrored Shared Contracts that are IT Assets which are addressed in Section 5.8); PROVIDED, that, for the avoidance of Holcim doubt, upon the separation of any such Mirrored Shared Contract, the newly created Contract that relates to the DTI Business shall be deemed to be a DTI Asset. The parties agree to cooperate and SpinCo provide reasonable assistance prior to, and for a period of nine (9) months following the Closing in effecting the separation of such Mirrored Shared Contracts. With respect to any Mirrored Shared Contract (other than any such Contract that would otherwise be an IT Asset) that has not been separated on or prior to the Closing, DuPont and Buyer shall, to the extent permitted by such Shared Contract, at or prior to the Closing enter into a transitional services agreement (a "TRANSITIONAL SERVICES AGREEMENT") reasonably satisfactory to each party which shall provide for Buyer to continue to receive the benefits and to continue to perform the obligations under such Shared Contracts, on, subject to the following sentence, the same terms (including appropriate indemnification provisions that would allocate DTI Business related Liabilities to Buyer on the basis consistent with the allocation in Section 5.25(a)), as those applicable to the DTI Business immediately prior to Closing; PROVIDED, that any such arrangement shall terminate upon the earlier of nine (9) months following the Closing and at such time as the underlying Shared Contract terminates or expires. Notwithstanding anything herein to the contrary, Buyer and DuPont shall share equally any additional costs imposed by a third party as a result of the arrangements contemplated by this Section 5.25(c).
(i) In the event and to the extent that DuPont or any Retained Subsidiary is unable to obtain any required consent, approval or amendment required to separate a Mirrored Shared Contract or enter into a Transitional Services Agreement with respect to a Mirrored Shared Contract pursuant to Section 5.25(c), DuPont shall, and shall cause the members of their respective Group Retained Subsidiaries to, use reasonable commercial efforts to (i) treat for all Tax purposes continue to hold, and to the extent required by the terms applicable to such Contract, be bound thereby, (ii) cooperate in any arrangement, reasonable and lawful as to DuPont and Buyer, designed to provide to Buyer or its Subsidiaries the benefits arising under such Mirrored Shared Contract, including accepting such reasonable direction as Buyer shall request of DuPont and (iii) enforce at Buyer's request, or allow Buyer and its Affiliates to enforce in a commercially reasonable manner, any rights of DuPont and its Affiliates under such Mirrored Shared Contract against the issuer thereof or the other party or parties thereto (including the right to elect to terminate that portion of each such Mirrored Shared Contract inuring that relates to their respective the DTI Business as an Asset owned byin accordance with and to the extent permitted by the terms thereof upon the request of Buyer); PROVIDED, and/or a Liability ofHOWEVER, as applicablethat (except for Mirrored Shared Contracts that are IT Assets which are addressed in Section 5.8) the reasonable costs and expenses (including reasonable professional fees and expenses) incurred by DuPont or its Affiliates at Buyer's request, and incurred by Buyer or its Affiliates, in each case, with respect to any of the actions contemplated under clauses (ii) and (iii) above, shall be borne equally by Buyer and DuPont, except to the extent such Partycosts and expenses would have been Buyer's obligation had such Mirrored Shared Contract been properly separated pursuant to Section 5.25(c), in which case such 175 costs and expenses shall be borne solely by Buyer. DuPont shall, and shall cause the Retained Subsidiaries to, without further consideration therefor, and without right of set-off, pay and remit to Buyer promptly all monies, rights and other considerations received in respect of such performance.
(ii) To the extent that Buyer or any of its Affiliates (including the DTI Companies) or the DTI Business are, had been or are to be provided the benefits from and after the Closing Date of any Mirrored Shared Contract pursuant to subsection (d)(i) above, Buyer or such Affiliate shall pay, perform and discharge fully, promptly when due, for the benefit of the issuer thereof, or the members other party or parties thereto, the obligations of such Party’s GroupDuPont or its relevant Affiliate, as applicablethe case may be, thereunder or in connection therewith or, if more advantageous to the parties, to take actions to enable DuPont or its Affiliates to pay, perform and discharge fully such obligations, but only to the extent that (i) such action by Buyer would not later result in any default (other than the Distribution, a Third Party Default) thereunder or in connection therewith and (ii) neither report nor take any Tax position such performance pertains to, or is related to, the providing (on a Tax Return past, present or otherwisefuture) inconsistent with of benefits to Buyer or its Affiliates or the DTI Business (including the DTI Companies); PROVIDED, HOWEVER, that if Buyer or its Affiliates shall fail to perform to the extent required herein and such treatment failure continues for ten (unless required by applicable Law or a good faith resolution of a Tax Contest).10) Business Days following notice thereof to Buyer, DuPont and its Affiliates shall thereafter cease to be obligated under this Section 5.25
Appears in 1 contract
Shared Contracts. (ai) The Parties intend that all Contracts that would be deemed Shared Contracts as ▇▇▇▇▇▇▇ (including on behalf of the Effective Time, or portions thereof, will have been separated or assigned other members of the ▇▇▇▇▇▇▇ Group) shall use reasonable best efforts to a separate and cause the applicable member of the Holcim Newco Group or to enter into new agreements with the SpinCo Group, as applicable, counterparties to the ▇▇▇▇▇▇▇ Shared Contracts prior to the DistributionSeparation. Upon such separation of a ▇▇▇▇▇▇▇ Shared Contract, the separated Contract that is related to the Communications Business will be a Newco Contract and the other separated Contract will be an Excluded Asset. To the extent not completed prior to the Distribution, the Parties shall, following the Distribution, use their commercially reasonable efforts to separate any Shared Contracts into separate Contracts between the appropriate Third Party and either (i) SpinCo or a member of the SpinCo Group or (ii) Holcim or a member of the Holcim Group, including, but not limited to, by: (x) entering into new Contracts, (y) assigning (in whole or in part) existing Shared Contracts and (z) cooperating to obtain any Consents or Governmental Approvals to the extent required to effectuate the foregoing.
(b) Notwithstanding anything in this Agreement to the contrary, in the event any Shared Contract that ▇▇▇▇▇▇▇ is unable or the counterparties are unwilling to be separated in accordance enter into agreements with Section 2.8(a), the Parties shall, and/or shall cause the applicable members of its Group party respect to such Shared Contract to, use commercially reasonable efforts to: (i) seek mutually acceptable alternative arrangements for purposes of allocating rights and Liabilities and obligations under such Shared Contract in accordance with the relative proportions of total benefit to be received over the remaining term of the Shared Contract as of the Effective Time (provided that such arrangements shall not result in a breach or violation of such any ▇▇▇▇▇▇▇ Shared Contract) and (ii) enforce for the benefit of the other Party , ▇▇▇▇▇▇▇ (or the applicable member of the other Party’s ▇▇▇▇▇▇▇ Group) any and all rights under will partially assign the Communications Business functions to Newco in the manner agreed to by the Parties (but only if such ▇▇▇▇▇▇▇ Shared Contract related is assignable) and in the event that such partial assignment is not permitted by the terms of the applicable ▇▇▇▇▇▇▇ Shared Contract or consented to such other Party’s Businessby the applicable counterparty, with such other Party bearing ▇▇▇▇▇▇▇ shall use reasonable best efforts to provide for an alternative arrangement so that the reasonable and documented out-of-pocket costs and expenses applicable member of the Newco Group will have the benefits of such enforcement to the extent related to the rights being enforced for the benefit of such other Party▇▇▇▇▇▇▇ Shared Contract as though it had been partially assigned; provided, provided however, that Party (or relevant no member of its Group) retaining any Shared Contract the ▇▇▇▇▇▇▇ Group shall be indemnified required to make any payments (other than as provided for all Indemnifiable Losses or other Liabilities arising out of in the underlying Contract) to any actions (or omissions to act) of such retaining Party taken at the direction of the other Party (or relevant member of its Group) third party in connection with and relating the foregoing; provided, further, that ▇▇▇▇▇▇▇ shall obtain Newco’s express written consent prior to agreeing to any waiver, amendment, modification or termination under any such ▇▇▇▇▇▇▇ Shared Contract if such waiver, amendment, modification would have the effect of limiting, restricting or increasing the costs to a member of the Newco Group’s rights or interests under such ▇▇▇▇▇▇▇ Shared Contract in a materially disproportionate manner relative to ▇▇▇▇▇▇▇’▇ other businesses covered under such ▇▇▇▇▇▇▇ Shared Contract, as . Newco shall cooperate with ▇▇▇▇▇▇▇ in connection with the case may be (other than entering into of any new agreement or partial assignment. The obligations set forth in the event first sentence of its gross negligencethis Section 1.08(c)(i) regarding ▇▇▇▇▇▇▇ use of reasonable best efforts to separate and assign ▇▇▇▇▇▇▇ Shared Contracts shall terminate on the eighteen (18) month anniversary of the Closing Date, fraud and the obligations set forth in the remainder of this Section 1.08(c)(i), including the obligations of ▇▇▇▇▇▇▇ to use reasonable best efforts to provide for alternative arrangements, shall survive for the duration of the term of the applicable Contract (without any obligation to renew or willful misconductextend).
(cii) Each Newco (including on behalf of Holcim the other members of the Newco Group) shall use reasonable best efforts to separate and SpinCo shallcause the applicable member of the ▇▇▇▇▇▇▇ Group to enter into new agreements with the counterparties to the Newco Shared Contracts prior to the Separation. Upon such separation of a Newco Shared Contract, the separated Contract that is related to the Communications Business will be a Newco Contract and the other separated Contract will be an Excluded Asset. To the extent that Newco is unable or the counterparties are unwilling to enter into agreements with respect to any Newco Shared Contract, Newco (or the applicable member of the Newco Group) will partially assign the non-Communications Business functions to ▇▇▇▇▇▇▇ in the manner agreed to by the Parties (but only if such Newco Shared Contract is assignable) and in the event that such partial assignment is not permitted by the terms of the applicable Newco Shared Contract or consented to by the applicable counterparty, Newco shall use reasonable best efforts to provide for an alternative arrangement so that the applicable member of the ▇▇▇▇▇▇▇ Group will have the benefits of such Newco Shared Contract as though it had been partially assigned; provided, however, that no member of the Newco Group shall be required to make any payments (other than as provided for in the underlying Contract) to any third party in connection with the foregoing; provided, further, that Newco shall obtain National’s written consent prior to agreeing to any waiver, amendment, modification or termination under any such Newco Shared Contract if such waiver, amendment, modification or termination would have the effect of limiting, restricting or increasing the costs of a member of the ▇▇▇▇▇▇▇ Group’s rights or interests under such Newco Shared Contract. ▇▇▇▇▇▇▇ shall cooperate with Newco in connection with the entering into of any new agreement or partial assignment. The obligations set forth in the first sentence of this Section 1.08(c)(ii) regarding Newco’s use of reasonable best efforts to separate and assign Newco Shared Contracts shall terminate on the eighteen (18) month anniversary of the Closing Date, and the obligations set forth in the remainder of this Section 1.08(c)(ii), including the obligations of Newco to use reasonable best efforts to provide for alternative arrangements, shall cause survive for the members duration of their respective Group to, the term of the applicable Contract (i) treat for all Tax purposes the portion of each Shared Contract inuring without any obligation to their respective Business as an Asset owned by, and/or a Liability of, as applicable, such Party, renew or the members of such Party’s Group, as applicable, not later than the Distribution, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law or a good faith resolution of a Tax Contestextend).
Appears in 1 contract
Sources: Separation and Distribution Agreement (Netscout Systems Inc)
Shared Contracts. (a) The Parties intend that all Contracts that would With respect to Liabilities pursuant to, under or relating to a given Shared Contract, such Liabilities shall, unless otherwise allocated pursuant to this Agreement, be deemed allocated between Sellers, on the one hand, and Purchasers, on the other hand, as follows:
(i) If a Liability is incurred exclusively in respect of the Business, such Liability shall be allocated to Purchasers (in respect of the Business);
(ii) If a Liability cannot be so allocated under clause (i) above, such Liability shall be allocated to Sellers or Purchasers, as the case may be, based on the relative proportions of total benefit received (over the term of the Shared Contracts Contract remaining as of the Effective TimeClosing Date, measured as of the date of the allocation) by the Business under the relevant Shared Contract (such portion allocated to Sellers pursuant to this clause (ii), “Seller Shared Contract Liabilities”). Notwithstanding the foregoing, each of Sellers, on the one hand, and Purchasers, on the other hand, shall be responsible for any or all Liabilities arising from its (or its Subsidiary’s) breach of the relevant Shared Contract to which this Section 5.22 otherwise pertains.
(b) If Sellers or any of their Subsidiaries, on the one hand, or portions thereofPurchasers or any of their Subsidiaries (including the Target Companies and their Subsidiaries), on the other hand, receives any benefit or payment which under any Shared Contract was intended for the other, Sellers and Purchasers will have been separated use their respective reasonable best efforts to, and to cause their respective Subsidiaries to, deliver such benefit or assigned payment to a member the other party net of any applicable Taxes.
(c) Notwithstanding anything to the contrary herein, the parties agree that the Shared Contracts listed on Section 5.22(c)(i) of the Holcim Group or the SpinCo Group, as applicable, prior Disclosure Letter shall not be deemed to be primarily related to the Distribution. To Business or otherwise for the extent not completed prior to the Distributionbenefit of Purchasers, the Parties shallTarget Companies or their respective Subsidiaries for any purposes hereunder. Without limiting the foregoing, following the Distributionparties have determined that it is advisable that certain Shared Contracts, use their commercially reasonable efforts to separate any Shared Contracts which are identified on Section 5.22(c)(ii) of the Disclosure Letter, be separated into separate Contracts between the appropriate Third Party third party and the Business. The parties agree to cooperate and provide reasonable assistance prior to the Closing (with no obligation on the part of either party to pay any costs or fees with respect to such assistance) in effecting the separation of such Shared Contracts.
(id) SpinCo Notwithstanding anything to the contrary herein, nothing in this Section 5.22 shall be deemed to apply to or a member of otherwise govern any arrangement otherwise expressly covered by the SpinCo Group or (ii) Holcim or a member of the Holcim Group, including, but not limited to, by: (x) entering into new Interaffiliate Contracts, (y) assigning (in whole or in part) existing Shared Contracts including the Master Subcontracting Print Arrangements. In the event and (z) cooperating to obtain any Consents or Governmental Approvals to the extent required to effectuate that there shall be a conflict between the foregoing.
(b) Notwithstanding anything in provisions of this Agreement to and the contrary, in the event provisions of any Shared Contract is unable to be separated in accordance with Section 2.8(a)Ancillary Agreement or Interaffiliate Contract, the Parties shall, and/or shall cause the applicable members of its Group party to such Shared Contract to, use commercially reasonable efforts to: (i) seek mutually acceptable alternative arrangements for purposes of allocating rights and Liabilities and obligations under such Shared Contract in accordance with the relative proportions of total benefit to be received over the remaining term of the Shared Contract as of the Effective Time (provided that such arrangements shall not result in a breach Ancillary Agreement or violation of such Shared Contract) and (ii) enforce for the benefit of the other Party (or the applicable member of the other Party’s Group) any and all rights under such Shared Contract related to such other Party’s Business, with such other Party bearing the reasonable and documented out-of-pocket costs and expenses of such enforcement to the extent related to the rights being enforced for the benefit of such other Party, provided that Party (or relevant member of its Group) retaining any Shared Interaffiliate Contract shall be indemnified for all Indemnifiable Losses or other Liabilities arising out of any actions (or omissions to act) of such retaining Party taken at the direction of the other Party (or relevant member of its Group) in connection with and relating to such Shared Contract, as the case may be (other than in the event of its gross negligence, fraud or willful misconduct)control.
(c) Each of Holcim and SpinCo shall, and shall cause the members of their respective Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to their respective Business as an Asset owned by, and/or a Liability of, as applicable, such Party, or the members of such Party’s Group, as applicable, not later than the Distribution, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law or a good faith resolution of a Tax Contest).
Appears in 1 contract
Sources: Purchase Agreement (DST Systems Inc)
Shared Contracts. (a) The Parties intend Any Contract to be assigned, contributed, conveyed, transferred and delivered to VS in accordance with the Restructuring Plan or as contemplated pursuant to Section 2.03 that all Contracts does not exclusively relate to the VS Business (each, a “Shared Contract”) shall be assigned, contributed, conveyed, transferred and delivered only with respect to (and preserving the meaning of) those parts that would be deemed Shared Contracts as of relate to the Effective TimeVS Business, or portions thereof, will have been separated or assigned to a member of the Holcim Group or the SpinCo VS Group, as applicableif so assignable, conveyable or transferrable, or appropriately amended (including by entering into a new agreement) prior to to, on or after the Distribution. To the extent not completed prior to the DistributionDistribution Date, the Parties shall, following the Distribution, use their commercially reasonable efforts to separate any Shared Contracts into separate Contracts between the appropriate Third Party and either (i) SpinCo or so that a member of the SpinCo VS Group or (ii) Holcim or a member of the Holcim Group, including, but not limited to, by: (x) entering into new Contracts, (y) assigning (in whole or in part) existing Shared Contracts and (z) cooperating to obtain any Consents or Governmental Approvals shall be entitled to the extent required to effectuate the foregoing.
(b) Notwithstanding anything in this Agreement to the contrary, in the event any Shared Contract is unable to be separated in accordance with Section 2.8(a), the Parties shall, and/or shall cause the applicable members rights and benefit of its Group party to those parts of such Shared Contract to, use commercially reasonable efforts to: (i) seek mutually acceptable alternative arrangements for purposes of allocating rights and Liabilities and obligations under such Shared Contract in accordance with the relative proportions of total benefit to be received over the remaining term of the Shared Contract as of the Effective Time (provided that such arrangements shall not result in a breach or violation of such Shared Contract) and (ii) enforce for the benefit of the other Party (or the applicable member of the other Party’s Group) any and all rights under such Shared Contract related to such other Party’s Business, with such other Party bearing the reasonable and documented out-of-pocket costs and expenses of such enforcement relate to the extent VS Business and shall assume the related to the rights being enforced for the benefit of such other Party, provided that Party (or relevant member of its Group) retaining any Shared Contract shall be indemnified for all Indemnifiable Losses or other Liabilities arising out of any actions (or omissions to act) of such retaining Party taken at the direction of the other Party (or relevant member of its Group) in connection with and relating respect to such Shared Contract, as the case may be (other than in the event of its gross negligence, fraud or willful misconduct).
(c) Each of Holcim and SpinCo shall, and shall cause the members of their respective Group to, contemplated by Section 2.03; provided that (i) treat for all Tax purposes the portion of each in no event shall any Person be required to assign, contribute, convey, transfer or deliver (or so amend), either in whole or in part, any Shared Contract inuring to their respective Business as an Asset owned by, and/or a Liability of, as applicable, such Party, that is not assignable (or cannot be amended) by its terms without the members consent or approval of such Party’s Group, as applicable, not later than the Distribution, any other Person and (ii) neither report nor take if any Tax position (on a Tax Return Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be so amended, without such consent or approval, until such time that such consent or approval is obtained, L Brands will cooperate with VS to establish an agency type or other similar arrangement reasonably satisfactory to L Brands and VS intended to both (A) inconsistent provide a member of the VS Group, to the fullest extent practicable under such Shared Contract, the claims, rights and benefits of those parts that relate to the VS Business and (B) cause such member of the VS Group to bear the related Liabilities thereunder from and after the Distribution in accordance with this Agreement (including by means of any subcontracting, sublicensing or subleasing arrangement) and in furtherance of the foregoing, VS shall, or shall cause another member of the VS Group to, promptly pay, perform or discharge when due any such treatment (unless required Liability arising after the Distribution Time, which shall constitute VS Liabilities for purposes of this Agreement. Nothing in this Section 2.05 shall require any member of the L Brands Group or the VS Group to incur any non-de minimis obligation or grant any non-de minimis concession in order to effect any transaction contemplated by applicable Law or a good faith resolution of a Tax Contest)this Section 2.05.
Appears in 1 contract
Sources: Separation and Distribution Agreement (Victoria's Secret & Co.)
Shared Contracts. (a) The Parties intend that all Contracts that would With respect to Shared Contractual Liabilities relating to, arising out of or resulting from a given Shared Contract, such Shared Contractual Liabilities shall be deemed Shared Contracts as of the Effective Timeallocated, unless otherwise allocated pursuant to this Agreement or portions thereofany Ancillary Agreement, will have been separated or assigned to a member of the Holcim Group or the SpinCo Group, as applicable, prior to the Distribution. To the extent not completed prior to the Distribution, between the Parties shall, following the Distribution, use their commercially reasonable efforts to separate any Shared Contracts into separate Contracts between the appropriate Third Party and either as follows:
(i) SpinCo first, if a Liability is incurred exclusively in respect of a benefit received by one Party or a member of its Group, the SpinCo Party or Group or receiving such benefit shall be responsible for such Liability;
(ii) Holcim second, if a Liability cannot be exclusively allocated to one Party or a member of the Holcim Group, including, but not limited to, by: (x) entering into new Contracts, (y) assigning (in whole or in part) existing Shared Contracts and (z) cooperating to obtain any Consents or Governmental Approvals to the extent required to effectuate the foregoing.
(b) Notwithstanding anything in this Agreement to the contrary, in the event any Shared Contract is unable to be separated in accordance with Section 2.8(a), the Parties shall, and/or shall cause the applicable members of its Group party to such Shared Contract to, use commercially reasonable efforts to: under clause (i) seek mutually acceptable alternative arrangements for purposes of allocating rights above, such Liability shall be allocated between both Parties and Liabilities and obligations under such Shared Contract in accordance with their respective Groups based on the relative proportions of total benefit to be received (over the remaining term of the Shared Contract Contract, measured starting as of the Effective Time (provided that such arrangements shall not result in a breach or violation date of such allocation) under the relevant Shared Contract) . Notwithstanding the foregoing, each Party and (ii) enforce for the benefit of the other Party (or the applicable member of the other Party’s Group) any and all rights under such Shared Contract related to such other Party’s Business, with such other Party bearing the reasonable and documented out-of-pocket costs and expenses of such enforcement to the extent related to the rights being enforced for the benefit of such other Party, provided that Party (or relevant member of its Group) retaining any Shared Contract Group shall be indemnified responsible for any or all Indemnifiable Losses or other Liabilities arising out of or resulting from such Party’s or Group’s breach of the relevant Shared Contract.
(b) Except as otherwise expressly contemplated in this Agreement or an Ancillary Agreement, if Crane Holdings, Co. (and, after the Effective Time, Crane NXT, Co.) or any actions (member of the Crane NXT Group, on the one hand, or omissions to act) Crane Company or any member of such retaining Party taken at the direction of Crane Company Group, on the other hand, receives any benefit or payment under any Shared Contract which was intended for the other Party or its Group, Crane Holdings, Co. (and, after the Effective Time, Crane NXT, Co.), on the one hand, or relevant Crane Company, on the other hand, as applicable, will use its respective commercially reasonable efforts, or will cause any member of its Group) in connection with and relating Group to use its commercially reasonable efforts, to deliver, Transfer or otherwise afford such Shared Contract, as benefit or payment to the case may be (other than in the event of its gross negligence, fraud or willful misconduct)Party.
(c) Each of Holcim Crane Holdings, Co. (and, after the Effective Time, Crane NXT, Co.) and SpinCo Crane Company shall, and shall cause the members of their its respective Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to their its respective Business Businesses as an Asset owned by, and/or a Liability of, as applicable, such Party, or the members of such Party’s Group, as applicable, not later than the DistributionEffective Time, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law or a good faith resolution of a Tax Contest).
Appears in 1 contract