Shared Contracts. (a) 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 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 to the extent such benefits and rights have historically been and currently are provided to the Animal Health Business. With respect to any Shared Contracts made available to the Company Group pursuant to this Section 2.10(a), (i) 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 breach on the part of any Person in the 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) 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 desirable to ensure that Pfizer is able to perform its obligations constituting Shared Contract Liabilities under such Shared Contract. (b) With respect to Shared Contract Liabilities pursuant to, under or relating to a given Shared Contract, such Shared Contract Liabilities shall be allocated, unless otherwise allocated pursuant to this Agreement or an Ancillary Agreement, between the parties 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 responsible for such Liability and (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 Contract, measured as of the date 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. (c) If Pfizer or any member of 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 its 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 Pfizer be liable to the Company for (i) any Liabilities arising out of such new Contracts or (ii) Liabilities arising out of the failure of the Company to obtain any 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 the Effective Date after giving effect to the consummation of the transactions contemplated in this Agreement to occur on or prior to the Effective Date, including the payment to Pfizer of the Contribution Payment. The calculation of Company Cash Balance shall be made by Pfizer in good faith 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. (ai) Subject Prior to Section 2.10(d) the Closing, Subscriber and other than the Company agree to mutually determine in good faith, with respect to the provision of Services under the Transitional Services Agreement or each Shared Contracts that are sublicensed Contract, whether to, and subject to such determination and Section 2.06(c), use commercially reasonable efforts to:
(A) seek to assign to the Company and other Persons in at the Closing that portion of the Shared Contract relating exclusively to Orion+, so that the Company Group pursuant shall be entitled to the Patent rights 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 benefits relating exclusively to the Company Group the benefits and rights Orion+ under Shared Contracts to the extent such benefits and rights have historically been and currently are provided to the Animal Health Business. With respect to any Shared Contracts made available to the Company Group pursuant to this Section 2.10(a), (i) 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 breach on the part of any Person in the Pfizer Group under any Shared Contract and shall assume the related portion of any Liabilities inuring to Orion+; or
(B) such Person in seek for 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) 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 desirable to ensure that Pfizer is able to perform its obligations constituting Shared Contract Liabilities under such Shared Contract.
(b) With respect to Shared Contract Liabilities pursuant to, under or relating to a given Shared Contract, such Shared Contract Liabilities shall be allocated, unless otherwise allocated pursuant to this Agreement or an Ancillary Agreement, between the parties 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 responsible for such Liability and (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 Contract, measured as of the date 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.
(c) If Pfizer or any member of 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 with the counterparty of such Shared Contract with respect to that portion of the Shared Contract relating exclusively to Orion+, to be effective as of the Effective Date pursuant Closing Date, on terms that are substantially equivalent, as applied mutatis mutandis, in the aggregate to which the Company those contractual rights and obligations of Subscriber or its Affiliates will receive substantially the same benefits provided Affiliates, as applicable, under such Shared Contracts (each new Contract entered into by the Shared Contract to the Animal Health Business Company, a “New Contract”).
(ii) If, prior to the Effective Date. Except Closing, the Parties do not or are not able to, with respect to any Shared Contract, partially assign, split or separate (as expressly provided applicable) any such Shared Contract in accordance with Section 2.06(b)(i), then, until the earliest of (1) such time as such New Contract is executed or such rights, benefits, burdens and Liabilities are so assigned, and (2) the expiration of the term of such Shared Contract in accordance with its current terms, (A) Subscriber and the Company shall reasonably cooperate to enter into (to the extent permitted under any relevant underlying Contract) a lawful and commercially reasonable arrangement (including sublicensing or subcontracting) designed to provide for the Transitional Services AgreementCompany all the economic benefits under any such Orion+ Contract and all the burdens and perform all obligations associated with any such Orion+ Contract, none of Pfizer (B) subject to the immediately foregoing clause (A), Subscriber shall hold all monies paid to Subscriber or any other member of its Affiliates, as applicable, thereunder on and after the Closing in trust for the account of the Pfizer Group Company, (C) subject to the immediately foregoing clause (A), Subscriber shall be obligated to make available remit such money to the Company Group the benefits as promptly as reasonably practicable, and rights under any Shared Contracts. In no event shall Pfizer be liable to (D) Subscriber and the Company shall continue to use commercially reasonable efforts to seek for (i) any Liabilities arising out of such new Contracts or (ii) Liabilities arising out of the failure of the Company to obtain any replacement contract.
(e) As promptly as practicable following the Effective Dateenter into such a New Contract with such counterparty or to seek to assign such benefits and Liabilities under such Shared Contract, Pfizer shall calculate the aggregate balance in each case, with respect to that portion of the cash, cash equivalents and short term investments of the Company Group (the "Company Cash Balance"), as of the close of business on the Effective Date after giving effect such Shared Contract relating exclusively to the consummation of the transactions contemplated in this Agreement to occur on or prior to the Effective Date, including the payment to Pfizer of the Contribution Payment. The calculation of Company Cash Balance shall be made by Pfizer in good faith 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.Orion+
Appears in 1 contract
Sources: Transaction Agreement (Anghami Inc)
Shared Contracts. (a) Subject With respect to Section 2.10(dany Contract that does not relate exclusively to the Business and that is a Shared Contract, Seller and Buyer shall use their commercially reasonable efforts, and cooperate with each other, to (i) divide, modify or replicate (in whole or in part) the respective rights and other than obligations under and in respect of the Shared Contract and (ii) if possible, novate the respective rights and obligations under and in respect of the Shared Contract, such that, effective as of the Closing, (A) Buyer or its designated Affiliate is the beneficiary of the post-Closing rights, and is responsible for the post-Closing obligations of the Business-related aspects of the Shared Contract (so that, subsequent to the Closing, Sellers or their applicable Affiliate shall have no post-Closing rights or post-Closing obligations with respect to the provision Business-related aspects of Services under the Transitional Services Agreement or Shared Contracts that are sublicensed to the Company and other Persons in the Company Group pursuant to the Patent and Know-How License Agreement (Pfizer as LicensorContract) 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 to the extent such benefits and rights have historically been and currently are provided to the Animal Health Business. With respect to any Shared Contracts made available to the Company Group pursuant to this Section 2.10(a), (i) 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 breach on the part of any Person in the Pfizer Group under any Shared Contract and (B) such Person in Seller or its Subsidiaries are the Company Group would otherwise be obligated beneficiary of the rights and is responsible for the obligations related to take or not take such action under the Shared Contract had such Person become severally liable under other than the Business-related aspects (the “Non-Business Portion”) (so that, subsequent to the Closing, Buyer and its Affiliates shall have no rights or obligations with respect to the Non-Business Portion of the Shared Contract at the Effective Date and (ii) 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 desirable to ensure that Pfizer is able to perform its obligations constituting Shared Contract Liabilities under such Shared Contract).
(b) With respect to In the event that the Closing proceeds without the sale, assignment, sublease, sublicense, transfer, conveyance or delivery of a Non-Assignable Asset that is a Shared Contract Liabilities pursuant toand the Parties have not entered into an arrangement to formally divide, modify or replicate such Shared Contract as contemplated by Section 2.7(a) prior to such time, Seller and Buyer shall use commercially reasonable efforts and cooperate with each other in any mutually agreeable, commercially reasonable and lawful arrangement under which Buyer or relating its designated Affiliate shall obtain, for up to the expiration of a given single renewal term beyond the then current term or earlier termination of such Shared Contract, the economic claims, rights and benefits of the Business-related aspects of such Shared Contract. Such arrangement may include subcontracting, sublicensing or subleasing to Buyer or its designated Affiliate of any and all rights of Seller or its applicable Subsidiaries under the Business-related aspects of such Shared Contract Liabilities shall be allocatedto the extent not prohibited, unless otherwise allocated pursuant consented to this Agreement or an Ancillary Agreementwaived under such Shared Contract, between the parties as follows: (i) first, if a Liability is incurred exclusively in respect of a benefit received by one party or Seller or its Groupdesignated Subsidiary acting as reseller on behalf of Buyer or its applicable Affiliate. To the extent Buyer or its designated Affiliate receives the economic claims, rights and benefits under the party Business-related aspects of such Shared Contract, Buyer or Group receiving such benefit its designated Affiliate shall be responsible for such Liability and (ii) secondthe Assumed Liabilities, if a Liability cannot be exclusively allocated to one party or its Group under clause (i) aboveany, 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 Contract, measured as of the date of allocation) arising under the relevant Business-related aspects of such Shared Contract. Notwithstanding For the foregoingavoidance of doubt, each party and its Group shall be responsible for the expiration or termination of any right of Buyer or all Liabilities arising out of or resulting from such party's or Group's breach of the relevant Shared Contract.
(c) If Pfizer or any member of 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 Seller 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 shall in no way limit 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 obligations 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 its 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 either Party under the Transitional Transition 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 Pfizer be liable to the Company for (i) any Liabilities arising out of such new Contracts or (ii) Liabilities arising out of the failure of the Company to obtain any 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 the Effective Date after giving effect to the consummation of the transactions contemplated in this Agreement to occur on or prior to the Effective Date, including the payment to Pfizer of the Contribution Payment. The calculation of Company Cash Balance shall be made by Pfizer in good faith 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) 2.3.1 Subject to the provisions of this Section 2.10(d) and other than with respect 2.3, the Transferred Assets shall include those rights exclusively relating to the provision of Services under the Transitional Services Agreement or Shared Contracts that 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, Business which arise from and after the Effective DateAdjustment Time under a Shared Contract set forth on Schedule 3.7.1 (each, Pfizer mayan “Allocable Shared Contract”), subject to the terms and conditions of such Allocable Shared Contract (such rights, the “Shared Contract Rights”), and the Assumed Liabilities shall include those Liabilities exclusively relating to the Business which arise from and after the Adjustment Time under an Allocable Shared Contract, subject to the terms and conditions of such Allocable Shared Contract (such Liabilities, the “Shared Contract Liabilities”). All rights and Liabilities which arise under an Allocable Shared Contract other than the Shared Contract Rights and the Shared Contract Liabilities shall in all cases be included in the Excluded Assets and the Retained Liabilities, as applicable. For purposes of determining the scope of the Shared Contract Rights and Shared Contract Liabilities, the rights and Liabilities under each Allocable Shared Contract shall be equitably allocated among (a) the Business, on the one hand, and (b) the newspapers or other businesses other than the Business that will continue to be owned by Seller or its Affiliates and other buyers of newspapers of Seller or its Affiliates, to the extent applicable, after the Closing, on the other hand, in accordance with the following equitable allocation principles:
(i) any allocation set forth on Schedule 3.7.1 with respect to a particular Allocable Shared Contract;
(ii) if there is no allocation set forth on Schedule 3.7.1, any allocation set forth in the Allocable Shared Contract shall control;
(iii) if there is no allocation in the Allocable Shared Contract as described in clause (ii) hereof, then any allocation previously made by Seller or its Affiliates in the ordinary course of business shall control;
(iv) if there is no allocation as described in clause (iii) hereof, then the quantifiable proportionate benefit to be received by Seller and Buyer after the Closing Date (to be determined by mutual good faith agreement of Seller and Buyer) shall control; and
(v) if not quantifiable as described in clause (iv) hereof, then reasonable accommodation (to be determined by mutual good faith agreement of Seller and Buyer) shall control.
2.3.2 At the election of Seller and subject to any applicable Consents, such allocation may be effectuated by termination of the Allocable Shared Contract in its entirety and the execution of new Contracts or by an assignment to and assumption by Buyer of the Shared Contract Rights and the Shared Contract Liabilities under such Allocable Shared Contract. The completion of the documentation of any such termination and replacement or assignment is not a condition to the Closing. As soon as practicable after the execution of this Agreement, Buyer and Seller shall make appropriate requests to obtain, at the election of Seller, either Consents from appropriate third parties to assignment and assumption by Buyer of such Shared Contract Rights and Shared Contract Liabilities or reasonably comparable replacement or separated Contracts (each, a “Replacement Contract”) that provide for the Shared Contract Rights and Shared Contract Liabilities for the benefit of Buyer and the Business with the remaining rights and Liabilities for the benefit of the newspapers or other businesses other than the Business that will continue to be owned by Seller or its Affiliates and other buyers of newspapers of Seller or its Affiliates, to the extent applicable, after the Closing, and Buyer and Seller shall use commercially reasonable efforts to obtain such Consents or Replacement Contracts as expeditiously as possible. Any requests for such Consents or Replacement Contracts shall include a request that Seller and its Affiliates be unconditionally released from all Liabilities relating to the Shared Contract Rights and Shared Contract Liabilities attributable to the period after the Adjustment Time, and Buyer and Seller shall use commercially reasonable efforts to obtain such releases. Buyer, on the one hand, and Seller, on the other hand, shall each be responsible for and pay one-half of all administrative or processing fees imposed by any Person pursuant to the terms of the relevant Allocable Shared Contract or otherwise as a condition to processing any Consent or Replacement Contract requests.
2.3.3 Buyer and Seller agree that obtaining the Consents or Replacement Contracts for the Allocable Shared Contracts is not a condition to the Closing. In the event that a Consent or Replacement Contract for an Allocable Shared Contract is not obtained by the Closing and the Closing occurs, Seller, in its sole discretion, make available may either assign the Shared Contract Rights and Shared Contract Liabilities arising under such Allocable Shared Contract to Buyer notwithstanding the absence of a Consent therefor or use commercially reasonable efforts to cooperate with Buyer in effecting a commercially reasonable arrangement permitted by Legal Rules and not inconsistent with such Allocable Shared Contract under which Buyer shall receive benefits under the Allocable Shared Contract corresponding to the Company Group Shared Contract Rights from and after the benefits and rights under Shared Contracts Adjustment Time, and, to the extent such of the benefits received, Buyer shall pay and rights have historically been perform Seller’s and currently are provided to its Affiliates’ Liabilities arising under the Animal Health Business. With respect to any Shared Contracts made available to the Company Group pursuant to this Section 2.10(a), (i) 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 breach on the part of any Person in the Pfizer Group under any Allocable Shared Contract and (B) such Person in the Company Group would otherwise be obligated corresponding to take or not take such action under the Shared Contract had Liabilities from and after the Adjustment Time in accordance with its terms; provided that Seller and its Affiliates shall not be liable or have any further responsibility to Buyer for the failure of such Person become severally liable under the Shared Contract at the Effective Date and (ii) each Person in the Company Group shall reasonably cooperate with Pfizer Consents or Replacement Contracts to be obtained, and, at Pfizer's reasonable requestin connection with any such assignment or arrangement, take such actions that are permissible and reasonably necessary or desirable to ensure that Pfizer is able to perform its obligations constituting Shared Contract Liabilities under such Shared Contract.
(b) With respect to Shared Contract Liabilities pursuant to, under or relating to a given Shared Contract, such Shared Contract Liabilities shall be allocated, unless otherwise allocated pursuant to this Agreement or an Ancillary Agreement, between the parties 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 responsible for such Liability and (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 Contract, measured as of the date of allocation) under the relevant Shared Contract. Notwithstanding the foregoing, each party Seller and its Group Affiliates shall not be responsible for any Liabilities relating to such assignment or all Liabilities arrangement or the Shared Contract Rights and Shared Contract Liabilities, and Buyer shall indemnify and hold harmless Seller and its Affiliates from and against any Losses arising out of or resulting from related to any such party's or Group's breach of the relevant Shared ContractLiabilities.
(c) If Pfizer or any member of 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 its 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 Pfizer be liable to the Company for (i) any Liabilities arising out of such new Contracts or (ii) Liabilities arising out of the failure of the Company to obtain any 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 the Effective Date after giving effect to the consummation of the transactions contemplated in this Agreement to occur on or prior to the Effective Date, including the payment to Pfizer of the Contribution Payment. The calculation of Company Cash Balance shall be made by Pfizer in good faith 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) Subject Any Contract with a Third Party that relates to both the NiSource Business and the Columbia Business (each such Contract, a “Shared Contract”) shall be handled as contemplated by Section 2.10(d5.2(d) and other than with respect to the provision of Services under the Transitional Services Agreement or Shared Contracts that 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 mayunless NiSource determines, in its sole discretion, make available that it is desirable to partially assign such Shared Contract as contemplated by Section 5.2(b) or to amend such Shared Contract as contemplated by Section 5.2(c).
(b) If any Shared Contract can be partially assigned by its terms and NiSource determines, in its sole discretion, that it is so desirable with respect to such Shared Contract, NiSource shall assign such Shared Contract in part to Columbia, or another Columbia Party designated by Columbia, so that the Company Group Columbia Parties will be entitled to the benefits and rights under Shared Contracts relating to the extent Columbia Business and will assume their related portion of any Liabilities under such benefits Shared Contract. If any such partial assignment requires the consent or approval of any Third Party or any other required action, the partial assignment of such Shared Contract shall be effected in accordance with the terms of this Agreement, if and rights have historically when such consent or approval is obtained or such other required action has been and currently are provided to the Animal Health Business. With taken.
(c) If NiSource determines, in its sole discretion, that it is so desirable with respect to any Shared Contracts made available Contract, NiSource and Columbia shall, and shall cause the applicable NiSource Parties and Columbia Parties to, cooperate and use commercially reasonable efforts to enter into an arrangement with the Company Group pursuant counterparty to this Section 2.10(a), such Shared Contract to amend such Shared Contract so as to delete all obligations therefrom (i) no Person to the extent that such obligations relate to the NiSource Business, and enter into a new Contract with the applicable counterparty which solely relates to the Columbia Business, on substantially equivalent terms and conditions as are then in the Company Group shall take any actioneffect under such Shared Contract, or refrain from taking any action, if (A) such action or inaction is reasonably likely to or does result in a breach on the part of any Person in the 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) each Person to the extent that such obligations relate to the Columbia Business, and enter into a new Contract with the applicable counterparty which solely relates to the NiSource Business, on substantially equivalent terms and conditions as are then 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 desirable to ensure that Pfizer is able to perform its obligations constituting Shared Contract Liabilities effect under such Shared Contract.
(bd) With respect to each Shared Contract Liabilities pursuant that is not partially assigned or amended as contemplated by Section 5.2(b) or Section 5.2(c), NiSource and Columbia shall, and shall cause the applicable NiSource Parties and Columbia Parties to, cooperate in any lawful and reasonable arrangement, to the extent so permitted under the terms of such Shared Contract and applicable Law:
(i) to provide the applicable NiSource Party the benefits and obligations of any such Shared Contract with respect to the NiSource Business, including subcontracting, licensing, sublicensing, leasing or subleasing to the NiSource Party any or all of the rights and obligations with respect to such Shared Contract with respect to the NiSource Business. In any such arrangement, the NiSource Parties will, with respect to that portion of the Shared Contract relating to a given the NiSource Business, (A) bear the sole responsibility for completion of the work or provision of goods and services, (B) bear all Taxes with respect thereto or arising therefrom, (C) be solely entitled to all benefits thereof, economic or otherwise, including the receipt of all goods and services thereunder, (D) be solely responsible for any amounts due thereunder, any warranty or breach thereof, any repurchase, indemnity and service obligations thereunder and any damages related to termination of such Shared Contract, (E) promptly reimburse the reasonable costs and expenses of Columbia and the applicable Columbia Party related to such activities, (F) be entitled to continue to receive any correspondence or invoices delivered with respect to such Shared Contract Liabilities shall and (G) be allocated, unless otherwise allocated pursuant entitled to this Agreement receive copies of all correspondence and invoices delivered to or an Ancillary Agreement, between the parties as follows: (i) first, if a Liability is incurred exclusively in by any Columbia Party with respect of a benefit received by one party or its Group, the party or Group receiving to such benefit shall be responsible for such Liability and Shared Contract; and
(ii) secondto provide the applicable Columbia Party the benefits and obligations of any such Shared Contract with respect to the Columbia Business, if a Liability cannot be exclusively allocated including subcontracting, licensing, sublicensing, leasing or subleasing to one party the Columbia Party any or its Group under clause (i) aboveall of the rights and obligations with respect to such Shared Contract with respect to the Columbia Business. In any such arrangement, such Liability shall be allocated among both parties and their respective Groups based on the relative proportions of total benefit received (over the term Columbia Parties will, with respect to that portion of the Shared ContractContract relating to the Columbia Business, measured as (A) bear the sole responsibility for completion of the date work or provision of allocationgoods and services, (B) under bear all Taxes with respect thereto or arising therefrom, (C) be solely entitled to all benefits thereof, economic or otherwise, including the relevant Shared Contract. Notwithstanding the foregoingreceipt of all goods and services thereunder, each party and its Group shall (D) be solely responsible for any amounts due thereunder, any warranty or breach thereof, any repurchase, indemnity and service obligations thereunder and any damages related to termination of such Shared Contract, (E) promptly reimburse the reasonable costs and expenses of NiSource and the applicable NiSource Party related to such activities and (F) be entitled to receive copies of all Liabilities arising out of correspondence and invoices delivered to or resulting from by any NiSource Party with respect to such party's or Group's breach of the relevant Shared Contract.
(ce) If Pfizer or any member of 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 With respect to each Shared Contract to enter into a new Contract effective as that is the subject of an arrangement contemplated by Section 5.2(d), NiSource, on behalf of itself and each of the Effective Date pursuant to which NiSource Parties, shall indemnify, defend and hold harmless each of the Company Columbia Parties from and its Affiliates will receive substantially against any and all Expenses or Losses incurred or suffered by one or more of the same benefits provided by Columbia Parties in connection with, relating to, arising out of or due to, directly or indirectly, that portion of the Shared Contract relating to the Animal Health Business prior NiSource Business. With respect to each Shared Contract that is the Effective Date. Except as expressly provided under the Transitional Services Agreementsubject of an arrangement contemplated by Section 5.2(d), none Columbia, on behalf of Pfizer or any other member itself and each of the Pfizer Group Columbia Parties, shall be obligated to make available to indemnify, defend and hold harmless each of the Company Group NiSource Parties from and against any and all Expenses or Losses incurred or suffered by one or more of the benefits and rights under any Shared Contracts. In no event shall Pfizer be liable to the Company for (i) any Liabilities NiSource Parties in connection with, relating to, arising out of such new Contracts or (ii) Liabilities arising out due to, directly or indirectly, that portion of the failure of Shared Contract relating to the Company to obtain any replacement contractColumbia Business.
(ef) As promptly as practicable following No NiSource Party or Columbia Party shall be required to pay any consideration to any Third Party in connection with implementing the Effective Date, Pfizer arrangements contemplated by this Section 5.2.
(g) The parties shall calculate follow the aggregate balance procedures specified in Section 10.2 in the event of any dispute regarding the rights and obligations of the cash, cash equivalents and short term investments NiSource Parties or the Columbia Parties with respect to any Shared Contract that is the subject of the Company Group (the "Company Cash Balance"an arrangement contemplated by Section 5.2(d), as of the close of business on the Effective Date after giving effect to the consummation of the transactions contemplated in this Agreement to occur on or prior to the Effective Date, including the payment to Pfizer of the Contribution Payment. The calculation of Company Cash Balance shall be made by Pfizer in good faith 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
Sources: Separation and Distribution Agreement (Columbia Pipeline Group, Inc.)
Shared Contracts. (a) Subject to Section 2.10(d) Except as otherwise provided in this Agreement or the Transaction Documents, and other than except with respect to the provision of Services any Shared Contract that relates to services to be provided under the Transitional Transition Services Agreement Agreement, Parent and Spinco will use their commercially reasonable efforts for a period ending thirty-six (36) months after the Distribution Date (or, if earlier, upon termination or expiration of each such Shared Contracts Contract) to separate any Shared Contract (or take such other action as may be reasonably agreed between Parent and Spinco) so that are sublicensed the Spinco Business will remain entitled to the Company rights and benefits, and shall be subject to the Liabilities, with respect to or arising from such Shared Contract to the extent related to the Spinco Business, and Parent will retain the rights and benefits, and shall be subject to the Liabilities, with respect to arising from such Shared Contract to the extent related to the Parent Business; provided that (x) neither Group shall be required to pay any amount to any third party (other Persons than as provided for in the Company Group pursuant underlying Contract), commence or participate in any Action or offer or grant any accommodation (financial or otherwise, including any accommodation or arrangement to remain secondarily liable or contingently liable for any Liability of the other Group) to any third party to obtain any such separation. If a counterparty to any Shared Contract is entitled under the terms of such Shared Contract to consent to the Patent separation of such Shared Contract and Knowhas not provided such consent, or if the separation of a Shared Contract has not been completed as of the Distribution Time for any other reason, then the Parties shall use their commercially reasonable efforts to develop and implement arrangements (including subcontracting, sublicensing, subleasing or back-How License Agreement (Pfizer as Licensorto-back agreement) or the Trademark and Copyright License Agreement, from and after the Effective Date, Pfizer may, in its sole discretion, make available to pass along to the Company Spinco Group the benefits and rights under the Liabilities of the portion of any such Shared Contracts Contract related to the extent such Spinco Business and to pass along to the Parent Group the benefits and rights have historically been and currently are provided the Liabilities of the portion of such Shared Contract related to the Animal Health Parent Business, as the case may be. With respect to If and when any such consent is obtained, such Shared Contracts made available to the Company Group pursuant to Contract will be separated in accordance with this Section 2.10(a2.5(a), (i) no Person in the Company Group . Parent and Spinco shall take equally bear any action, or refrain from taking any action, if (A) such action or inaction is reasonably likely costs related to or does result in a breach on the part of any Person in the 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 separating the Shared Contract had such Person become severally liable under the Shared Contract at the Effective Date and (ii) 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 desirable to ensure that Pfizer is able to perform its obligations constituting Shared Contract Liabilities under such Shared ContractContracts.
(b) With respect to Shared Contract Liabilities pursuant to, under Except as otherwise agreed by Parent and Spinco or relating to a given Shared Contract, such Shared Contract Liabilities shall be allocated, unless as otherwise allocated pursuant to provided in this Agreement or an Ancillary Agreementany other Transaction Document, between the parties as follows: (i) firstwith respect to any Permits issued prior to the Distribution Time that are an Excluded Asset, if a Liability is incurred exclusively in respect but that, as of a benefit received by one party immediately prior to the Distribution Time, provided rights or its Group, benefits that are reasonably required for the party or Group receiving such benefit shall be responsible for such Liability operation of the Spinco Business and (ii) secondwith respect to any Spinco Permits issued prior to the Distribution Time that, if a Liability cannot be exclusively allocated as of immediately prior to one party the Distribution Time, provided rights or its Group under benefits that are reasonably required for the operation of the Parent Business, in each case of clause (i) aboveand (ii), the Parties shall use their commercially reasonable efforts to split, transfer, assign or convey 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 Contractexisting Permits, measured as of the date of allocation) under the relevant Shared Contract. Notwithstanding the foregoing, each party and its Group shall be responsible or apply for any or all Liabilities arising out of or resulting from such party's or Group's breach of the relevant Shared Contract.
(c) If Pfizer or any member of the Pfizer Groupnew Permits, 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 in each case as reasonably required 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 its 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 Pfizer be liable to the Company for (i) any Liabilities arising out of such new Contracts or (ii) Liabilities arising out of the failure of the Company to obtain any 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 the Effective Date after giving effect to the consummation of effectuate the transactions contemplated in this Agreement to occur on or prior to the Effective Date, including the payment to Pfizer of the Contribution Payment. The calculation of Company Cash Balance shall be made by Pfizer in good faith 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 Balancehereby.
Appears in 1 contract
Shared Contracts. (a) 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 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 to the extent such benefits and rights have historically been and currently are provided to the Animal Health Business. With respect to any Shared Contracts made available to the Company Group pursuant to this Section 2.10(a), (i) 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 breach on the part of any Person in the 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) 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 desirable to ensure that Pfizer is able to perform its obligations constituting Shared Contract Liabilities under such Shared Contract.
(b) With respect to Shared Contract Liabilities pursuant to, under or relating to a given Shared Contract, such Shared Contract Liabilities shall be allocated, unless otherwise allocated pursuant to this Agreement or an Ancillary Agreement, between the parties 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 responsible for such Liability and (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 Contract, measured as of the date 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.
(c) If Pfizer or any member of the Pfizer GroupGlobe, on the one hand, or the Company or any member of the Company Groupand DCC, on the other hand, receives any benefit shall, unless otherwise agreed, (i) use commercially reasonable efforts to cause the Shared Contracts related to the Brazilian Business, except those set forth on Section 6.11(a) of the Disclosure Letter, to be split into separate contracts between the appropriate Third Party and Globe or payment under GMI (with respect to the portion of the Shared Contracts that does not relate to the Brazilian Business) or applicable Brazilian Entity (with respect to the portion of the Shared Contracts that relates to the Brazilian Business) and (ii) with respect to such Shared Contracts set forth on Section 6.11(a) of the Disclosure Letter and Shared Contracts relating to the Alloy Business, except as otherwise contemplated by an Ancillary Agreement, effect a lawful arrangement designed to provide for the applicable Subject Entity (excluding for this purpose, WV Alloys but not Alloy JV), at no additional cost to Alloy JV with respect to any Shared Contract which was intended Contract, the benefits after Closing that they would have received and to subject the applicable Subject Entity directly to the liabilities thereunder, as if such Shared Contracts had been separated and acquired by the applicable Subject Entity. Globe and DCC agree to cooperate and provide reasonable assistance prior to and for a period of six (6) months following the Closing to effect such separation. In the event and to the extent Globe and DCC are unable to obtain any required consent, approval or amendment required to separate the applicable Shared Contracts referenced in clause (i) above prior to the Closing, (x) Globe and DCC shall use their reasonable best efforts in good faith to separate such Shared Contracts as promptly as practicable and (y) if such separation is not obtained, the parties shall use reasonable best efforts in good faith to effect any lawful arrangement designed to provide for the other party or its Groupapplicable Brazilian Entity, Pfizer, on the one hand, or the Company, on the other hand, will use its respective commercially reasonable efforts, or will cause at no additional cost to DCC with respect to any member of its Group to use its commercially reasonable efforts, to deliver, transfer or otherwise afford such benefit or payment Contract related to the other partyBrazilian Business, the benefits after Closing that they would have received, and to subject the applicable Brazilian Entity directly to the liabilities thereunder, as if, but only as if, such Shared Contracts had been separated and acquired by the applicable Brazilian Entity.
(db) It From and after the Closing, Globe and DCC shall be the responsibility of the Company each use its reasonable best efforts in good faith to obtain the agreement of the third party that is the counterparty effect any lawful arrangement designed to each Shared Contract provide Alloy JV at no additional cost to enter into a new Contract effective as of the Effective Date pursuant Alloy JV with respect to which the Company and its 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 Pfizer be liable to the Company for (i) any Liabilities arising out of such new Contracts or the Letter Agreement, dated April 11, 2006, between GMI and Norchem, Inc. and (ii) Liabilities arising out of the failure of the Company to obtain any replacement contract.
(e) As promptly as practicable following the Effective DateDistribution and Supply Agreement, Pfizer shall calculate the aggregate balance of the cash, cash equivalents and short term investments of the Company Group (the "Company Cash Balance"), dated as of December 21, 2005, by and between GMI and Elkem Materials, Inc., the close of business on the Effective Date benefits after giving effect Closing that Alloy JV would have received, and to subject Alloy JV to the consummation of the transactions contemplated in this Agreement liabilities thereunder as if such contract had been assigned by GMI to occur on or prior to the Effective Date, including the payment to Pfizer of the Contribution Payment. The calculation of Company Cash Balance shall be made by Pfizer in good faith 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 BalanceAlloy JV.
Appears in 1 contract
Shared Contracts. Seller or its Affiliates are party to one or more Shared Contracts, including the Shared Contracts set forth on Section 4.13(a)(xiii) of the Disclosure Schedule. For the avoidance of doubt, to the extent Seller or Buyer identifies any Shared Contract after the Agreement Date that is not set forth on Section 4.13(a)(xiii) of the Disclosure Schedule, such Shared Contract shall be automatically, and without any further action on the part of either Party, be deemed added to Section 4.13(a)(xiii) of the Disclosure Schedule for purposes of this Section 6.08. Within 45 days following the Agreement Date, B▇▇▇▇ and Seller shall cooperate and mutually agree (in each case, acting reasonably and in good faith) on the Shared Contracts to be treated as ‘Specified Shared Contracts’ hereunder (the “Specified Shared Contracts”). Seller and Buyer shall use commercially reasonable efforts to have the Specified Shared Contracts separated into separate Contracts between the applicable third party and each of (a) Subject the business retained by Seller and its Affiliates and (b) the Business (including the Transferred Entities). The Parties agree to Section 2.10(d) cooperate and other than with respect use their commercially reasonable efforts to provide reasonable assistance prior to the provision of Services under the Transitional Services Agreement or Shared Contracts that 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 AgreementClosing and, 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 to the extent such benefits and rights have historically been and currently are provided not achieved prior to the Animal Health Closing, for 12 months thereafter (or, in the case of any Specified Shared Contract the subject of services under the Transition Services Agreement, until the expiration or termination of such services under the Transition Services Agreement if later) in effecting the separation of such Specified Shared Contracts (with such separated Specified Shared Contracts imposing no material additional or differing obligations (except arising from credit ratings of Buyer or different volume based arrangements, which shall be allocated proportionally between the Business and the retained businesses of Seller and its Affiliates based on consumption during the 12-month period prior to the Closing) than, and otherwise being on substantially the same terms as, the applicable Shared Contract (except that the replicated Specified Shared Contract will only pertain to the Business) or other terms mutually agreeable to the Parties in accordance with the terms and subject to the conditions set forth herein) and, once so separated, such separated Contract relating to the Business shall be deemed an Assumed Contract hereunder and transferred to, and assumed by, B▇▇▇▇ directly (but no sooner than the Closing); provided, however, it being understood that other than general internal costs, overhead and use of internal personnel and assets or infrastructure, none of Seller, Buyer or any of their respective Affiliates or Subsidiaries shall be required to make any payment, commence any litigation or offer or grant any accommodation (financial or otherwise) to any third party to separate such Specified Shared Contracts; provided, further, that Seller shall not, and shall cause its Affiliates (including the Transferred Entities prior to the Closing) to not, execute any separated Shared Contract without the prior written consent of Buyer (not to be unreasonably withheld, conditioned or delayed). With Further, with respect to any Shared Contracts made available Contract that is not a Specified Shared Contract or any Specified Shared Contract that has not been separated, to the Company Group pursuant to this Section 2.10(aextent requested by Buyer, after the Closing and for 12 months thereafter (or, in the case of any such Shared Contract the subject of services under the Transition Services Agreement, until the expiration or termination of such services under the Transition Services Agreement if later), until any separate Contract (iif any) is obtained therefor, the Parties shall cooperate with each other and use their commercially reasonable efforts to implement or obtain for Buyer, at no Person cost to any of Seller, Buyer or their respective Affiliates, an arrangement with respect thereto to provide for Buyer substantially comparable benefits therein (and bear the obligations and burdens thereof) and to otherwise put Buyer and Seller (and their respective Affiliates) in the Company Group shall take any action, or refrain from taking any action, if (A) such action or inaction is reasonably likely position they would have been in had the rights and obligations relating to or does result in a breach on the part of any Person in the 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) 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 desirable to ensure that Pfizer is able to perform its obligations constituting Shared Contract Liabilities Business under such Shared Contract.
Contract been transferred and assumed directly at the Closing (b) With respect i.e., without limiting that all Liabilities thereunder to Shared Contract Liabilities pursuant to, under or the extent relating to a given Shared Contract, such Shared Contract the Business nevertheless constitute Assumed Liabilities shall be allocated, unless otherwise allocated pursuant to for all purposes of this Agreement or an Ancillary Agreement, between the parties as follows: (i) first, if a Liability is incurred exclusively in respect ). In furtherance of a benefit received by one party or its Group, the party or Group receiving such benefit shall be responsible for such Liability and (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 Contract, measured as of the date 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.
(c) If Pfizer or if any member of the Pfizer Seller Group, on the one hand, or the Company Buyer or any member of its Affiliates (including the Company GroupTransferred Entities), on the other hand, receives any benefit or payment that under any Shared Contract which was intended for the other party or its Groupother, PfizerSeller and Buyer shall, on the one handand shall cause their respective Affiliates to, or the Companypromptly (and in any event, 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 within five (5) Business Days) deliver such benefit or payment to the other party.
(d) It shall be the responsibility , net 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 its 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 Pfizer be liable to the Company for (i) any Liabilities arising out of such new Contracts or (ii) Liabilities arising out of the failure of the Company to obtain any 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 Taxes imposed on the Effective Date after giving effect to the consummation recipient of the transactions contemplated in this Agreement to occur on any such benefit or prior to the Effective Date, including the payment to Pfizer of the Contribution Payment. The calculation of Company Cash Balance shall be made by Pfizer in good faith 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 Balancepayment.
Appears in 1 contract
Sources: Share and Asset Purchase Agreement (nVent Electric PLC)
Shared Contracts. (a) 2.3.1 Subject to the provisions of this Section 2.10(d) and other than with respect 2.3, the Transferred Assets shall include those rights relating to the provision of Services under the Transitional Services Agreement or Shared Contracts that 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, Business which arise from and after the Effective DateClosing under a Shared Contract set forth on Schedule 2.3.1 (each, Pfizer mayan “Allocable Shared Contract”), subject to the terms and conditions of such Allocable Shared Contract (such rights, the “Shared Contract Rights”), and the Assumed Liabilities shall include those Liabilities corresponding to such rights, other than those Liabilities which arise as a result of any breach thereof by Seller or any of its Affiliates prior to the Closing, subject to the terms and conditions of such Allocable Shared Contract (such Liabilities, the “Shared Contract Liabilities”). All rights and Liabilities which arise under an Allocable Shared Contract other than the Shared Contract Rights and the Shared Contract Liabilities shall in all cases be included in the Excluded Assets and the Retained Liabilities, as applicable. For purposes of determining the scope of the Shared Contract Rights and Shared Contract Liabilities, the rights and Liabilities under each Allocable Shared Contract shall be equitably allocated among (a) the Business, on the one hand, and (b) the newspapers or other businesses other than the Business that will continue to be owned by Seller or its Affiliates and other buyers of newspapers of Seller or its Affiliates, to the extent applicable, after the Closing, on the other hand, in accordance with the following equitable allocation principles:
(i) any allocation set forth in the Allocable Shared Contract shall control;
(ii) if there is no allocation in the Allocable Shared Contract as described in clause (i) hereof, then any allocation previously made by Seller or its Affiliates in the ordinary course of business shall control;
(iii) if there is no allocation as described in clause (ii) hereof, then the quantifiable proportionate benefit to be received by Seller and Buyer after the Closing Date (to be determined by mutual good faith agreement of Seller and Buyer) shall control; and
(iv) if not quantifiable as described in clause (iii) hereof, then reasonable accommodation (to be determined by mutual good faith agreement of Seller and Buyer) shall control.
2.3.2 At the election of Seller and subject to any applicable Consents, such allocation may be effectuated by termination of the Allocable Shared Contract in its entirety and the execution of new Contracts or by an assignment to and assumption by Buyer of the Shared Contract Rights and the Shared Contract Liabilities under such Allocable Shared Contract, provided, that the effectuation of such allocation by termination of the Allocable Shared Contract in its entirety does not materially disadvantage Buyer. Except as set forth on Schedule 6.1.6, the completion of the documentation of any such termination and replacement or assignment is not a condition to the Closing. As soon as practicable after the execution of this Agreement, Seller shall make appropriate requests to obtain, at the election of Seller, either Consents from appropriate third parties to assignment and assumption by Buyer of such Shared Contract Rights and Shared Contract Liabilities or reasonably comparable replacement or separated Contracts (each, a “Replacement Contract”) that provide for the Shared Contract Rights and Shared Contract Liabilities for the benefit of Buyer and the Business with the remaining rights and Liabilities for the benefit of Seller and its Affiliates, and Seller shall use commercially reasonable efforts to obtain such Consents or Replacement Contracts as expeditiously as possible. Any requests for such Consents or Replacement Contracts shall include a request that Seller and its Affiliates be unconditionally released from all Liabilities relating to the Shared Contract Rights and Shared Contract Liabilities attributable to the period after the Closing; provided, such releases shall not be a condition to the processing or provision of such Consents or Replacement Contracts. Seller shall be responsible for and pay all administrative or processing fees imposed by any Person pursuant to the terms of the relevant Allocable Shared Contract or otherwise as a condition to processing any Consent or Replacement Contract requests. Buyer shall reasonably cooperate with Seller to obtain such Consents or Replacement Contracts. Nothing in this Section 2.3.2 shall require the expenditure or payment of any funds (other than in respect of normal and usual attorneys fees, administrative fees, processing fees, filing fees or other normal costs of doing business) or the giving of any other consideration by Seller or Buyer or any adjustment to the Purchase Price.
2.3.3 Except as set forth on Schedule 6.1.6, Buyer and Seller agree that obtaining the Consents or Replacement Contracts for the Allocable Shared Contracts is not a condition to the Closing. In the event that a Consent or Replacement Contract for an Allocable Shared Contract is not obtained by the Closing and the Closing occurs, Seller, in its sole discretion, make available may either assign the Shared Contract Rights and Shared Contract Liabilities arising under such Allocable Shared Contract to Buyer notwithstanding the absence of a Consent therefor or use commercially reasonable efforts to cooperate with Buyer in effecting a commercially reasonable arrangement permitted by Legal Rules and not inconsistent with such Allocable Shared Contract under which Buyer shall receive benefits under the Allocable Shared Contract corresponding to the Company Group Shared Contract Rights from and after the benefits and rights under Shared Contracts Closing, and, to the extent such of the benefits received, Buyer shall pay and rights have historically been perform Seller’s and currently are provided its Affiliates’ Liabilities arising under the Allocable Shared Contract (other than Liabilities arising from a breach thereof by Seller or any of its Affiliates prior to the Animal Health Business. With respect Closing) corresponding to any Shared Contracts made available to the Company Group pursuant to this Section 2.10(a), (i) 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 breach on the part of any Person in the 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 Liabilities from and after the Shared Contract at the Effective Date and (ii) each Person Closing in the Company Group shall reasonably cooperate accordance with Pfizer andits terms; provided, at Pfizer's reasonable request, take such actions that are permissible and reasonably necessary or desirable to ensure that Pfizer is able to perform its obligations constituting Shared Contract Liabilities under such Shared Contract.
(b) With respect to Shared Contract Liabilities pursuant to, under or relating to a given Shared Contract, such Shared Contract Liabilities shall be allocated, unless otherwise allocated pursuant to this Agreement or an Ancillary Agreement, between the parties 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 responsible for such Liability and (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 Contract, measured as of the date 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.
(c) If Pfizer or any member of 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 Seller and its 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 Pfizer not be liable or have any further responsibility to the Company Buyer for (i) any Liabilities arising out of such new Contracts or (ii) Liabilities arising out of the failure of the Company such Consents or Replacement Contracts to obtain any replacement contract.
(e) As promptly be obtained so long 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 the Effective Date after giving effect to the consummation of the transactions contemplated in this Agreement to occur on or prior to the Effective Date, including the payment to Pfizer of the Contribution Payment. The calculation of Company Cash Balance shall be made by Pfizer in good faith 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 Seller 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 BalanceAffiliates have complied with this Section 2.3.3 in connection therewith.
Appears in 1 contract
Shared Contracts. (a) Subject With respect to each of the contracts listed on Schedule 5.13 (each, a “Shared Contract”), subject to Section 2.10(d5.13(c) and other than except as specifically described on Schedule 5.13, Buyer and the Sellers shall use their commercially reasonable efforts to arrange for one of the Companies or Subsidiaries to enter into a new contract with the applicable third party to the Shared Contract, which new contract contains the terms and conditions applicable to the Business as of the date hereof with respect to the provision of Services under the Transitional Services Agreement or Shared Contracts that 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 to the extent such benefits and rights have historically been and currently are provided to the Animal Health Business. With respect to any Shared Contracts made available to the Company Group pursuant to this Section 2.10(a), (i) 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 breach on the part of any Person in the 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) 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 desirable to ensure that Pfizer is able to perform its obligations constituting Shared Contract Liabilities under such Shared Contract.
(b) With respect to Shared Contract Liabilities pursuant to, under or relating to a given Shared Contract, such Shared Contract Liabilities shall be allocatedin the event that a new contract is not entered into on or prior to the Closing Date as set forth in Section 5.13(a), unless otherwise allocated pursuant the Sellers shall, subject to this Agreement or an Ancillary AgreementSection 5.13(c), between the parties as follows: use their commercially reasonable efforts (i) firstto provide one of the Companies or Subsidiaries (as applicable), if a Liability is incurred exclusively in respect of a benefit received by one party at the applicable Company’s or its GroupSubsidiary’s expense, the party or Group receiving such benefit shall be responsible for such Liability and (ii) second, if a Liability cannot be exclusively allocated to one party or its Group applicable benefits 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 Contract; provided that, measured as of the date of allocation) under such expenses shall not materially exceed those that would have been incurred had a Company or Subsidiary entered into an agreement directly with the relevant Shared Contract. Notwithstanding third party on 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 terms of the relevant Shared Contract, (ii) to cooperate in a reasonable and lawful arrangement designed to provide such benefits to one of the Companies or Subsidiaries (as applicable) and (iii) to enforce at the request of one of the Companies or Subsidiaries and for the account of such Company or Subsidiary, at the applicable Company’s or Subsidiary’s expense, any of the rights arising from any of the Shared Contracts that were to be assigned. To the extent such benefit is made available and/or such arrangement is created for the benefit of one of the Companies or Subsidiaries, Buyer shall procure that the applicable Company or Subsidiary shall pay, perform, and discharge fully all obligations applicable to the Business under any such agreement and provided that, to the extent that any Shared Contract is governed by English law, no such benefit shall be assigned to a Company or a Subsidiary under the preceding provisions of this Section 5.13(b) unless the corresponding obligations and liabilities under such contract are validly assumed by it by way of novation or otherwise.
(c) If Pfizer or any member of 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 its 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 Pfizer be liable to the Company for (i) any Liabilities arising out of such new Contracts or (ii) Liabilities arising out of the failure of the Company to obtain any 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 the Effective Date after giving effect to the consummation of the transactions contemplated in this Agreement to occur on or prior to the Effective Date, including the payment to Pfizer of the Contribution Payment. The calculation of Company Cash Balance shall be made by Pfizer in good faith 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 that performance of the obligations set out in Sections 5.13(a) and 5.13(b) would constitute unlawful financial assistance under the Companies ▇▇▇ ▇▇▇▇ (as amended) in relation to calculate the Company Cash Balanceany U.K. Entity, references in Section 5.13(a) and 5.13(b) to such U.K. Entity shall be deemed to refer instead to Buyer.
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Shared Contracts. (a) Subject Some contracts, agreements and leases relating to Section 2.10(dthe Stations, 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 Stations and other than that are material with respect to the provision of Services under applicable market. Except as provided by Schedule 1.2(c), as applicable, at the Transitional Services Agreement or Shared Contracts that are sublicensed to Closing, the Company rights 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 obligations under Shared Contracts to shall be equitably allocated among stations and such other business units in a manner reasonably determined by the extent such benefits and rights have historically been and currently are provided to parties in accordance with the Animal Health Business. With respect to any Shared Contracts made available to the Company Group pursuant to this Section 2.10(a), following equitable allocation principles:
(i) no Person any allocation expressly set forth 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 breach on the part of any Person in the 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 shall control;
(ii) each Person if none, then any allocation previously made by Cumulus in the Company Group ordinary course of Station operations shall reasonably cooperate with Pfizer control;
(iii) if none, then the quantifiable proportionate benefit to be received by the parties after Closing shall control; and
(iv) if not quantifiable, at Pfizer's then reasonable request, take such actions that are permissible and reasonably necessary or desirable to ensure that Pfizer is able to perform its obligations constituting Shared Contract Liabilities under such Shared Contractaccommodation shall control.
(b) With respect to Shared Contract Liabilities pursuant to, under or relating to a given 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 Liabilities shall is included in the contracts to be allocated, unless otherwise allocated pursuant to assigned and assumed under this Agreement or an Ancillary Agreement(without need for further action), between and (iii) the parties shall use their commercially reasonable efforts to ensure that such allocation shall occur by termination of the Shared Contract and execution of new contracts between each contract counterparty and Cumulus (but only if such contract is on terms at least as follows: (i) firstfavorable than the existing contract), if but shall include the allocated portion of such contracts will not include any group discounts or similar benefits specific to a Liability is incurred exclusively in respect of a benefit received by one party or its Groupaffiliates. Completion of documentation of any such allocation is not a condition to Closing; provided, however, that with respect to each such Shared Contract which is not allocated at Closing pursuant to subsection (iii) of this Section 1.3(b), the parties shall cooperate to the extent feasible in effecting a lawful and commercially reasonable arrangement under which acquiring party or Group receiving such benefit shall receive the allocable benefits thereunder from and after Closing, and to the extent of the allocable benefits received, Townsquare shall pay and perform Cumulus’s obligations arising thereunder from and after Closing in accordance with its terms, until new documentation effecting the allocation described in this Section 1.3 is executed and delivered. With respect to each Shared Contract, each party shall be responsible for such Liability and (ii) second, if a Liability cannot be exclusively all costs associated with the portion allocated to one such party, and shall indemnify and hold harmless the other 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 Contract, measured as of the date 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 losses associated with the performance of or resulting from such party for the portion allocated to such party's or Group's breach of the relevant Shared Contract.
(c) If Pfizer or any member In the event that the terms of 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 prohibits the other party or its Groupallocation contemplated by this Section 1.3, Pfizer, on the one hand, or the Company, on the other hand, will parties shall use its respective commercially reasonable efforts, or will cause efforts to provide the benefits and obligations of the portion of the Shared Contract that would have been allocated to a party hereunder but for any member of its Group to use its commercially reasonable efforts, to deliver, transfer or otherwise afford such benefit or payment to the other partyprohibition.
(d) It Notwithstanding the foregoing, in no event shall be the responsibility of the Company to obtain the agreement of the third party that is the counterparty to each a Shared Contract relate to enter into a new Contract effective as any employees of Cumulus, or the Effective Date pursuant to which the Company names “Cumulus” and its 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 “Citadel” (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 Pfizer be liable to the Company for (i) any Liabilities arising out of such new Contracts or (ii) Liabilities arising out of the failure of the Company to obtain any replacement contractwith respect thereto).
(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 the Effective Date after giving effect to the consummation of the transactions contemplated in this Agreement to occur on or prior to the Effective Date, including the payment to Pfizer of the Contribution Payment. The calculation of Company Cash Balance shall be made by Pfizer in good faith 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.
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Shared Contracts. (a) Subject to Section 2.10(d) Except as otherwise provided in this Agreement or the Transaction Documents, and other than except with respect to the provision of Services any Shared Contract that relates to services to be provided under the Transitional Transition Services Agreement Agreement, Parent and Spinco will use their commercially reasonable efforts for a period ending thirty-six (36) months after the Distribution Date (or, if earlier, upon termination or expiration of each such Shared Contracts Contract) to separate any Shared Contract (or take such other action as may be reasonably agreed between Parent and Spinco) so that are sublicensed the Spinco Business will remain entitled to the Company rights and benefits, and shall be subject to the Liabilities, with respect to or arising from such Shared Contract to the extent related to the Spinco Business, and Parent will retain the rights and benefits, and shall be subject to the Liabilities, with respect to arising from such Shared Contract to the extent related to the Parent Business; provided that (x) neither Group shall be required to pay any amount to any third party (other Persons than as provided for in the Company Group pursuant underlying Contract), commence or participate in any Action or offer or grant any accommodation (financial or otherwise, including any accommodation or arrangement to remain secondarily liable or contingently liable for any Liability of the other Group) to any third party to obtain any such separation. If a counterparty to any Shared Contract is entitled under the terms of such Shared Contract to consent to the Patent separation of such Shared Contract and Knowhas not provided such consent, or if the separation of a Shared Contract has not been completed as of the Distribution Time for any other reason, then the Parties shall use their commercially reasonable efforts to develop and implement arrangements (including subcontracting, sublicensing, subleasing or back-How License Agreement (Pfizer as Licensorto-back agreement) or the Trademark and Copyright License Agreement, from and after the Effective Date, Pfizer may, in its sole discretion, make available to pass along to the Company Spinco Group the benefits and rights under the Liabilities of the portion of any such Shared Contracts Contract related to the extent such Spinco Business and to pass along to the Parent Group the benefits and rights have historically been and currently are provided the Liabilities of the portion of such Shared Contract related to the Animal Health Parent Business, as the case may be. With respect to If and when any such consent is obtained, such Shared Contracts made available to the Company Group pursuant to Contract will be separated in accordance with this Section 2.10(a2.5(a), (i) no Person in the Company Group . Parent and Spinco shall take equally bear any action, or refrain from taking any action, if (A) such action or inaction is reasonably likely costs related to or does result in a breach on the part of any Person in the 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 separating the Shared Contract had such Person become severally liable under the Shared Contract at the Effective Date and (ii) 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 desirable to ensure that Pfizer is able to perform its obligations constituting Shared Contract Liabilities under such Shared ContractContracts.
(b) With respect to Shared Contract Liabilities pursuant to, under Except as otherwise agreed by Parent and Spinco or relating to a given Shared Contract, such Shared Contract Liabilities shall be allocated, unless as otherwise allocated pursuant to provided in this Agreement or an Ancillary Agreementany other Transaction Document, between the parties as follows: (i) firstwith respect to any Permits issued prior to the Distribution Time that are an Excluded Asset, if a Liability is incurred exclusively in respect but that, as of a benefit received by one party immediately prior to the Distribution Time, provided rights or its Group, benefits that are reasonably required for the party or Group receiving such benefit shall be responsible for such Liability operation of the Spinco Business and (ii) secondwith respect to any Spinco Permits issued prior to the Distribution Time that, if a Liability cannot be exclusively allocated as of immediately prior to one party the Distribution Time, provided rights or its Group under benefits that are reasonably required for the operation of the Parent Business, in each case of clause (i) aboveand (ii), the Parties shall use their commercially reasonable efforts to split, transfer, assign or convey 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 Contractexisting Permits, measured as of the date of allocation) under the relevant Shared Contract. Notwithstanding the foregoing, each party and its Group shall be responsible or apply for any or all Liabilities arising out of or resulting from such party's or Group's breach of new Permits, in each case as reasonably required to effectuate the relevant Shared ContractTransactions.
(c) If Pfizer or any member of 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 its 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 Pfizer be liable to the Company for (i) any Liabilities arising out of such new Contracts or (ii) Liabilities arising out of the failure of the Company to obtain any 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 the Effective Date after giving effect to the consummation of the transactions contemplated in this Agreement to occur on or prior to the Effective Date, including the payment to Pfizer of the Contribution Payment. The calculation of Company Cash Balance shall be made by Pfizer in good faith 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.
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