Intercompany Accounts and Arrangements. (a) Seller Parent may take (or cause one or more of its Affiliates to take) such action as is necessary or advisable to settle, effective as of, or prior to, the Closing Date, all intercompany accounts that are in the nature of Funded Indebtedness between a Conveyed Subsidiary or any Subsidiary thereof, on the one hand, and Seller Parent or any of the Retained Subsidiaries, on the other hand, in such a manner as Seller Parent shall determine in its sole discretion without any further Liability or obligation therefor of any Person. Any intercompany accounts that are in the nature of Funded Indebtedness between a Conveyed Subsidiary or any Subsidiary thereof, on the one hand, and Seller Parent or any of the Retained Subsidiaries, on the other hand, that are settled after 12:01 a.m. (New York time) on the Closing Date but in connection with the Closing shall be deemed for purposes of this Agreement to have been settled as of 12:01 a.m. (New York time) on the Closing Date, and any intercompany accounts that are in the nature of Funded Indebtedness between a Conveyed Subsidiary (or any of its Subsidiaries), on the one hand, and Seller Parent or any of the Retained Subsidiaries, on the other hand, that remain outstanding following the Closing shall not be deemed Purchased Assets or Assumed Liabilities for purposes of this Agreement. Except for the Ancillary Agreements or the agreements set forth in Section 6.7 of the Seller Disclosure Letter or as otherwise expressly contemplated by this Agreement, all intercompany arrangements and agreements, that are in the nature of Funded Indebtedness whether written or oral, between Seller Parent or any of the Retained Subsidiaries, on the one hand, and any of the Conveyed Subsidiaries or their Subsidiaries, on the other hand, shall be terminated as of or prior to the Closing Date without any further Liability or obligation thereunder of any Person and shall be of no further force and effect after the Closing. (b) Purchaser Parent may take (or cause one or more of its Affiliates to take) such action as is necessary or advisable to settle, effective as of, or prior to, the Closing Date, all intercompany accounts that are in the nature of Funded Indebtedness (other than intercompany accounts arising pursuant to a Purchaser Ancillary Agreement) between Purchaser or any Subsidiary of Purchaser, on the one hand, and Purchaser Parent or any Subsidiary of Purchaser Parent (other than Purchaser and its Subsidiaries), on the other hand, in such a manner as Purchaser Parent shall determine in its sole discretion without any further Liability or obligation therefor of any Person. Any such intercompany accounts that are in the nature of Funded Indebtedness between Purchaser or any Subsidiary of Purchaser, on the one hand, and Purchaser Parent or any Subsidiary of Purchaser Parent (other than Purchaser and its Subsidiaries), on the other hand, that are settled after 12:01 a.m. (New York time) on the Closing Date but in connection with the Closing shall be deemed for purposes of this Agreement to have been settled as of 12:01 a.m. (New York time) on the Closing Date, and any intercompany accounts that are in the nature of Funded Indebtedness between Purchaser or any Subsidiary of Purchaser, on the one hand, and Purchaser Parent or any Subsidiary of Purchaser Parent (other than Purchaser and its Subsidiaries), on the other hand (other than intercompany accounts arising pursuant to a Purchaser Ancillary Agreement), that remain outstanding following the Closing shall not be deemed an asset of Purchaser or a Purchaser Liability for purposes of this Agreement (including for purposes of calculating the Purchaser Working Capital), and Purchaser Parent shall cancel or otherwise transfer such intercompany account from Purchaser and its Subsidiaries for no consideration. All Liabilities related to or arising out of the intercompany loan between Setfirst Limited and Purchaser in respect of the acquisition by Purchaser or its applicable Affiliates of Novartis AG’s interest in Purchaser and its applicable Affiliates shall be fully extinguished and cancelled, effective prior to the Closing Date, or shall otherwise be transferred to Purchaser Parent or its Affiliates (other than Purchaser and its Subsidiaries) prior to the Closing Date and shall constitute a Purchaser Parent Retained Liability for all purposes hereunder, in any case without any further Liability or obligation therefor for Purchaser or any of its Subsidiaries. Except for the Ancillary Agreements or the Purchaser Related Party Contracts set forth in Section 6.7 of the Purchaser Parent Disclosure Letter (the Purchaser Related Party Contracts set forth thereon, the “Purchaser Ancillary Agreements”) or as otherwise expressly contemplated by this Agreement, all Purchaser Related Party Contracts shall be terminated as of or prior to the Closing Date without any further Liability or obligation thereunder of any Person and shall be of no further force and effect after the Closing. (c) Except to the extent provided to the contrary in this Section 6.7 and for any rights or obligations pursuant to this Agreement or any Ancillary Agreement or any commercial or other matter unrelated to this Agreement, effective as of the Closing, each of Purchaser Parent and Purchaser, on behalf of itself and its respective Affiliates, including the Conveyed Subsidiaries and their Subsidiaries, hereby releases Seller Parent and each of its Subsidiaries and Affiliates (and their respective officers, directors and employees, acting in their capacity as such) from any Liability, obligation or responsibility to any of them for any and all past actions or failures to take action prior to the Closing directly or indirectly relating to or arising out of the Business, the Retained Businesses, the Purchaser Business or the operations of the Conveyed Subsidiaries (or their Subsidiaries) prior to the Closing, or relating to or arising out of Seller Parent’s or its Affiliate’s ownership of the Purchased Assets. (d) Except to the extent provided to the contrary in this Section 6.7 and for any rights or obligations pursuant to this Agreement or any Ancillary Agreement, effective as of the Closing, Purchaser Parent, on behalf of itself and its respective Affiliates (other than Purchaser and its Subsidiaries) hereby releases Purchaser and each of its Subsidiaries (and their respective officers, directors and employees, acting in their capacity as such) from any Liability, obligation or responsibility to any of them for any and all past actions or failures to take action prior to the Closing directly or indirectly relating to or arising out of the Purchaser Business, the Purchaser Parent Retained Businesses or the operations of Purchaser and its Subsidiaries prior to the Closing, or relating to or arising out of the assets, properties or rights relating to the Purchaser Business or owned, used or held by Purchaser or any of its Subsidiaries. (e) Except to the extent provided to the contrary in this Section 6.7 and for any rights or obligations pursuant to this Agreement or any Ancillary Agreement or, in the case of Purchaser Parent, Purchaser and each of its Subsidiaries and Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries), any commercial or other matter unrelated to this Agreement, effective as of the Closing, Seller Parent, on behalf of itself and its Affiliates, hereby releases each of Purchaser Parent, Purchaser and each of its Subsidiaries and Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) (and their respective officers, directors and employees, acting in their capacity as such) from any Liability, obligation or responsibility to any of them for any and all past actions or failures to take action prior to the Closing directly or indirectly relating to or arising out of the Business, Purchaser Business, the Retained Businesses or the operations of the Conveyed Subsidiaries (or their Subsidiaries) prior to the Closing.
Appears in 4 contracts
Samples: Stock and Asset Purchase Agreement (Haleon PLC), Stock and Asset Purchase Agreement (Haleon PLC), Stock and Asset Purchase Agreement (Glaxosmithkline PLC)
Intercompany Accounts and Arrangements. (a) Seller Parent may take (or cause one or more of its Affiliates to take) such action as is necessary or advisable to settle, effective as of, or prior to, the Closing Date, all intercompany accounts that are in the nature of Funded Indebtedness between a Conveyed Subsidiary or any Subsidiary thereof, on the one hand, and Seller Parent or any of the Retained Subsidiaries, on the other hand, in such a manner as Seller Parent shall determine in its sole discretion without any further Liability or obligation therefor of any Person. Any intercompany accounts that are in the nature of Funded Indebtedness between a Conveyed Subsidiary or any Subsidiary thereof, on the one hand, and Seller Parent or any of the Retained Subsidiaries, on the other hand, that are settled after 12:01 a.m. (New York time) on the Closing Date but in connection with the Closing shall be deemed for purposes of this Agreement to have been settled as of 12:01 a.m. (New York time) on the Closing Date, and any intercompany accounts that are in the nature of Funded Indebtedness between a Conveyed Subsidiary (or any of its Subsidiaries), on the one hand, and Seller Parent or any of the Retained Subsidiaries, on the other hand, that remain outstanding following the Closing shall not be deemed Purchased Assets or Assumed Liabilities for purposes of this Agreement. Except for the Ancillary Agreements or the agreements set forth in Section 6.7 of the Seller Disclosure Letter or as otherwise expressly contemplated by this Agreement, all All material intercompany arrangements and agreements, that are in the nature of Funded Indebtedness whether written or oral, providing for the leasing or licensing of goods, services, tangible or intangible properties or joint activities between Seller Parent ATI or any of the Retained Subsidiaries, on the one hand, and any TDY (in respect of the Conveyed Subsidiaries Tungsten Materials Business) or their Subsidiariesa Transferred Subsidiary, on the other hand, are set forth in Section 5.5 of the Seller’s Disclosure Schedule (the “Intercompany Agreements”). Except for the Related Agreements, all intercompany arrangements and agreements, whether written or oral, providing for the leasing or licensing of goods, services, tangible or intangible properties or joint activities between ATI or any of the Retained Subsidiaries, on the one hand, and TDY (in respect of the Tungsten Materials Business) or a Transferred Subsidiary, on the other hand, including the Intercompany Agreements, shall be terminated as of at TDY’s expense by TDY (or prior TDY shall cause such agreements to the Closing Date without any further Liability or obligation thereunder of any Person be terminated) and such agreements shall be of no further force and effect after the Closing.
(b) Purchaser Parent may take (or cause one or more of its Affiliates to take) such action as is necessary or advisable to settle, effective as of, or prior to, . Effective upon the Closing DateClosing, all outstanding intercompany accounts that are in the nature of Funded Indebtedness (other than intercompany accounts arising pursuant to a Purchaser Ancillary Agreement) accounts, whether payables or receivables, between Purchaser ATI or any Subsidiary of Purchaserthe Retained Subsidiaries, on the one hand, and Purchaser Parent TDY (in respect of the Tungsten Materials Business) or any Subsidiary of Purchaser Parent (other than Purchaser and its Subsidiaries)a Transferred Subsidiary, on the other hand, in such a manner as Purchaser Parent shall determine in its sole discretion without any further Liability be settled and/or cancelled by TDY (or obligation therefor of any Person. Any TDY shall cause such intercompany accounts that are in the nature of Funded Indebtedness between Purchaser to be settled or any Subsidiary of Purchaser, on the one hand, cancelled) and Purchaser Parent or any Subsidiary of Purchaser Parent (other than Purchaser and its Subsidiaries), on the other hand, that are settled after 12:01 a.m. (New York time) on the Closing Date but in connection with the Closing such intercompany accounts shall be deemed for purposes of this Agreement to have been settled as of 12:01 a.m. (New York time) on the Closing Date, and any intercompany accounts that are in the nature of Funded Indebtedness between Purchaser or any Subsidiary of Purchaser, on the one hand, and Purchaser Parent or any Subsidiary of Purchaser Parent (other than Purchaser and its Subsidiaries), on the other hand (other than intercompany accounts arising pursuant to a Purchaser Ancillary Agreement), that remain outstanding following the Closing shall not be deemed an asset of Purchaser or a Purchaser Liability for purposes of this Agreement (including for purposes of calculating the Purchaser Working Capital), and Purchaser Parent shall cancel or otherwise transfer such intercompany account from Purchaser and its Subsidiaries for no consideration. All Liabilities related to or arising out of the intercompany loan between Setfirst Limited and Purchaser in respect of the acquisition by Purchaser or its applicable Affiliates of Novartis AG’s interest in Purchaser and its applicable Affiliates shall be fully extinguished and cancelled, effective prior to the Closing Date, or shall otherwise be transferred to Purchaser Parent or its Affiliates (other than Purchaser and its Subsidiaries) prior to the Closing Date and shall constitute a Purchaser Parent Retained Liability for all purposes hereunder, in any case without any further Liability or obligation therefor for Purchaser or any of its Subsidiaries. Except for the Ancillary Agreements or the Purchaser Related Party Contracts set forth in Section 6.7 of the Purchaser Parent Disclosure Letter (the Purchaser Related Party Contracts set forth thereon, the “Purchaser Ancillary Agreements”) or as otherwise expressly contemplated by this Agreement, all Purchaser Related Party Contracts shall be terminated as of or prior to the Closing Date without any further Liability or obligation thereunder of any Person and shall be of no further force and effect after (it being understood that such settlement or cancellation shall not in any way affect the ClosingRelated Agreements or any amounts which may be payable pursuant to the Related Agreements).
(cb) Except to the extent provided to the contrary in this Provided TDY has satisfied its obligations under Section 6.7 and for any rights or obligations pursuant to this Agreement or any Ancillary Agreement or any commercial or other matter unrelated to this Agreement5.5(a), effective as of the Closing, each of Purchaser Parent and PurchaserBuyer, on behalf of itself and its respective Affiliates, including the Conveyed Subsidiaries and their Subsidiaries, hereby releases Seller Parent TDY and each of its Subsidiaries and Affiliates (and their respective officers, directors and employees, acting in their capacity as such) from any Liability, obligation or responsibility to any of them for any and all past actions or failures to take action prior to the Closing directly Closing, including any actions which may be deemed to have been negligent or indirectly grossly negligent, relating to or arising out of Contracts with ATI or a Subsidiary thereof or the Businessoperation or conduct of any businesses, Assets (including activities performed thereat) or operations managed or operated by, or operationally related to, directly or indirectly, the Retained Businesses, the Purchaser Tungsten Materials Business or the operations of the Conveyed Subsidiaries (or their Subsidiaries) prior Excluded Businesses, except for any obligation pursuant to the Closing, or relating to or arising out provisions of Seller Parent’s or its Affiliate’s ownership of the Purchased Assets.
(d) Except to the extent provided to the contrary in this Section 6.7 and for any rights or obligations pursuant to this Agreement or any Ancillary Agreement, effective as of the Closing, Purchaser Parent, on behalf of itself and its respective Affiliates (other than Purchaser and its Subsidiaries) hereby releases Purchaser and each of its Subsidiaries (and their respective officers, directors and employees, acting in their capacity as such) from any Liability, obligation or responsibility to any of them for any and all past actions or failures to take action prior to the Closing directly or indirectly relating to or arising out of the Purchaser Business, the Purchaser Parent Retained Businesses or the operations of Purchaser and its Subsidiaries prior to the Closing, or relating to or arising out of the assets, properties or rights relating to the Purchaser Business or owned, used or held by Purchaser or any of its SubsidiariesRelated Agreements.
(e) Except to the extent provided to the contrary in this Section 6.7 and for any rights or obligations pursuant to this Agreement or any Ancillary Agreement or, in the case of Purchaser Parent, Purchaser and each of its Subsidiaries and Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries), any commercial or other matter unrelated to this Agreement, effective as of the Closing, Seller Parent, on behalf of itself and its Affiliates, hereby releases each of Purchaser Parent, Purchaser and each of its Subsidiaries and Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) (and their respective officers, directors and employees, acting in their capacity as such) from any Liability, obligation or responsibility to any of them for any and all past actions or failures to take action prior to the Closing directly or indirectly relating to or arising out of the Business, Purchaser Business, the Retained Businesses or the operations of the Conveyed Subsidiaries (or their Subsidiaries) prior to the Closing.
Appears in 2 contracts
Samples: Purchase Agreement (Kennametal Inc), Purchase Agreement (Allegheny Technologies Inc)
Intercompany Accounts and Arrangements. (a) Seller Parent may take (or cause one or more of its Affiliates to take) such action as is necessary or advisable to settle, effective as of, or prior to, the Closing Date, all intercompany accounts that are in the nature of Funded Indebtedness between a Conveyed Subsidiary or any Subsidiary thereof, on the one hand, and Seller Parent or any of the Retained Subsidiaries, on the other hand, in such a manner as Seller Parent shall determine in its sole discretion without any further Liability or obligation therefor of any Person. Any intercompany accounts that are in the nature of Funded Indebtedness between a Conveyed Subsidiary or any Subsidiary thereof, on the one hand, and Seller Parent or any of the Retained Subsidiaries, on the other hand, that are settled after 12:01 a.m. (New York time) on the Closing Date but in connection with the Closing shall be deemed for purposes of this Agreement to have been settled as of 12:01 a.m. (New York time) on the Closing Date, and any intercompany accounts that are in the nature of Funded Indebtedness between a Conveyed Subsidiary (or any of its Subsidiaries), on the one hand, and Seller Parent or any of the Retained Subsidiaries, on the other hand, that remain outstanding following the Closing shall not be deemed Purchased Assets or Assumed Liabilities for purposes of this Agreement. Except for the Ancillary Transition Services Agreement, Local Purchase Agreements and the other Transaction Documents, intercompany accounts not settled or cancelled as of the Closing pursuant to Section 5.5(e) or the agreements set forth in on Section 6.7 5.5(a) of the Seller Seller’s Disclosure Letter or as otherwise expressly contemplated by this Agreementhereto, all intercompany arrangements and agreements, that are in the nature of Funded Indebtedness whether written or oral, providing, leasing or licensing goods, services, tangible or intangible properties or joint activities between Seller Parent or any of the Retained Subsidiaries, on the one hand, and any of the Conveyed Subsidiaries Transferred FH Companies or their Closing Subsidiaries, on the other hand, shall be terminated as of or prior to the Closing Date without any further Liability or obligation thereunder of any Person and shall be of no further force and effect after effective as of the ClosingClosing (or, to the extent that any equity interests in a Transferred FH Company or Closing Subsidiary of a Transferred FH Company are not transferred to Buyer at the Closing pursuant to Section 5.16 or Section 5.17, such later date on which all such equity interests are transferred to Buyer).
(b) Purchaser Parent may take (or cause one or more of its Affiliates to take) such action as is necessary or advisable to settle, effective as of, or prior to, the Closing Date, all intercompany accounts that are in the nature of Funded Indebtedness (other than intercompany accounts arising pursuant to a Purchaser Ancillary Agreement) between Purchaser or any Subsidiary of Purchaser, on the one hand, and Purchaser Parent or any Subsidiary of Purchaser Parent (other than Purchaser and its Subsidiaries), on the other hand, in such a manner as Purchaser Parent shall determine in its sole discretion without any further Liability or obligation therefor of any Person. Any such intercompany accounts that are in the nature of Funded Indebtedness between Purchaser or any Subsidiary of Purchaser, on the one hand, and Purchaser Parent or any Subsidiary of Purchaser Parent (other than Purchaser and its Subsidiaries), on the other hand, that are settled after 12:01 a.m. (New York time) on the Closing Date but in connection with the Closing shall be deemed for purposes of this Agreement to have been settled as of 12:01 a.m. (New York time) on the Closing Date, and any intercompany accounts that are in the nature of Funded Indebtedness between Purchaser or any Subsidiary of Purchaser, on the one hand, and Purchaser Parent or any Subsidiary of Purchaser Parent (other than Purchaser and its Subsidiaries), on the other hand (other than intercompany accounts arising pursuant to a Purchaser Ancillary Agreement), that remain outstanding following the Closing shall not be deemed an asset of Purchaser or a Purchaser Liability for purposes of this Agreement (including for purposes of calculating the Purchaser Working Capital), and Purchaser Parent shall cancel or otherwise transfer such intercompany account from Purchaser and its Subsidiaries for no consideration. All Liabilities related to or arising out of the intercompany loan between Setfirst Limited and Purchaser in respect of the acquisition by Purchaser or its applicable Affiliates of Novartis AG’s interest in Purchaser and its applicable Affiliates shall be fully extinguished and cancelled, effective prior to the Closing Date, or shall otherwise be transferred to Purchaser Parent or its Affiliates (other than Purchaser and its Subsidiaries) prior to the Closing Date and shall constitute a Purchaser Parent Retained Liability for all purposes hereunder, in any case without any further Liability or obligation therefor for Purchaser or any of its Subsidiaries. Except for the Ancillary Agreements or the Purchaser Related Party Contracts set forth in Section 6.7 of the Purchaser Parent Disclosure Letter (the Purchaser Related Party Contracts set forth thereon, the “Purchaser Ancillary Agreements”) or as otherwise expressly contemplated by this Agreement, all Purchaser Related Party Contracts shall be terminated as of or prior to the Closing Date without any further Liability or obligation thereunder of any Person and shall be of no further force and effect after the Closing.
(c) Except to the extent provided to the contrary in this Section 6.7 and for any rights or obligations pursuant to this Agreement or any Ancillary Agreement or any commercial or other matter unrelated to this Agreement5.5(a), effective as of the Closing, each of Purchaser Parent and PurchaserBuyer, on behalf of itself and its respective Affiliates, including the Conveyed Subsidiaries Transferred FH Companies and their Closing Subsidiaries, hereby releases Seller Parent and each of its Subsidiaries and Affiliates (and their respective officers, directors and employees, acting in their capacity as such) from any Liability, obligation or responsibility to any of them for any and all past actions or failures to take action prior to the Closing directly or indirectly relating to or arising out of the Business, the Retained Businesses, the Purchaser Business or the operations of the Conveyed Subsidiaries (or their Subsidiaries) prior to the Closing, or relating to or arising out of Seller Parent’s or its Affiliate’s ownership of the Purchased Assets.
(d) Except to the extent provided to the contrary in this Section 6.7 and for any rights or obligations pursuant to this Agreement or any Ancillary Agreement, effective as of the Closing, Purchaser Parent, on behalf of itself and its respective Affiliates (other than Purchaser and its Subsidiaries) hereby releases Purchaser Seller and each of its the Retained Subsidiaries (and their respective officers, directors and employees, acting in their capacity as such) from any Liability, obligation or responsibility to any of them for any and all past actions or failures to take action prior to the Closing directly Closing, including any actions which may be deemed to have been negligent or indirectly grossly negligent, relating to or arising out of the Purchaser Business, the Purchaser Parent Retained Businesses Contracts with Seller or a Subsidiary thereof or the operation or conduct of any businesses, Assets (including activities performed thereat) or operations of Purchaser and its Subsidiaries prior managed or operated by, or operationally related to, directly or indirectly, to the ClosingFH Business or the Excluded Businesses, or relating except for any obligation pursuant to or arising out the provisions of the assets, properties or rights relating to the Purchaser Business or owned, used or held by Purchaser or any of its SubsidiariesTransaction Documents.
(ec) Except to the extent provided to the contrary in this Section 6.7 and for any rights or obligations pursuant to this Agreement or any Ancillary Agreement or, in the case of Purchaser Parent, Purchaser and each of its Subsidiaries and Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries5.5(a), any commercial or other matter unrelated to this Agreement, effective as of the Closing, Seller ParentSeller, on behalf of itself and its Affiliates, including each of the Retained Subsidiaries, effective as of the Closing, hereby releases each of Purchaser Parent, Purchaser and each of its Subsidiaries and Affiliates (including the Conveyed Subsidiaries Transferred FH Companies and their Subsidiaries) Closing Subsidiaries (and their respective officers, directors and employees, acting in their capacity as such) from any Liability, obligation or responsibility to any of them for any and all past actions or failures to take action prior to the Closing directly Closing, including any actions which may be deemed to have been negligent or indirectly relating grossly negligent, except for any obligation pursuant to or arising out the provisions of the BusinessTransaction Documents.
(d) Notwithstanding anything contained in this Agreement to the contrary, Purchaser BusinessSeller its Subsidiaries and the Transferred FH Companies and their Closing Subsidiaries shall be permitted to maintain through the Closing Date their respective cash management systems, and periodically settle intercompany balances with respect to intercompany borrowings consistent with past practices (including through dividends and capital contributions). Seller and its Subsidiaries (other than the Retained Businesses or Transferred FH Companies and their Closing Subsidiaries) shall have the operations right to withdraw all Cash Equivalents of the Conveyed Transferred FH Companies and their Closing Subsidiaries (or their Subsidiaries) prior to the Closing.
(e) Without limiting anything set forth in this Section 5.5, of Seller’s Disclosure Letter, Seller shall use commercially reasonable efforts to settle all outstanding intercompany accounts, whether payables or receivables, between Seller or any of the Retained Subsidiaries, on the one hand, and any of the Transferred FH Companies or their Closing Subsidiaries, on the other hand, with effect as of the Closing Date (it being understood that the settlement or cancellation of such amounts shall not in any way affect the Transition Services Agreement or any amounts which may be payable pursuant to the Transition Services Agreement); provided, however, that if any such intercompany accounts are not settled or cancelled as of the Closing, Seller and Buyer shall use commercially reasonable efforts to cooperate to settle or cancel such intercompany accounts as promptly as practicable following the Closing without liability to Buyer (which liability shall be calculated net of any Cash Equivalents of the Transferred FH Companies and their Closing Subsidiaries as of the Closing that would otherwise constitute Excluded Assets, which Cash Equivalents shall not constitute Excluded Assets or constitute Later Discovered Assets to the extent used by Buyer to satisfy such intercompany accounts).
Appears in 2 contracts
Samples: Purchase Agreement (Colfax CORP), Purchase Agreement (Circor International Inc)
Intercompany Accounts and Arrangements. (a) Seller Parent may take (or cause one or more of its Affiliates to take) such action as is necessary or advisable to settle, effective as of, or prior to, the Closing Date, all intercompany accounts that are in the nature of Funded Indebtedness between a Conveyed Subsidiary or any Subsidiary thereof, on the one hand, and Seller Parent or any of the Retained Subsidiaries, on the other hand, in such a manner as Seller Parent shall determine in its sole discretion without any further Liability or obligation therefor of any Person. Any intercompany accounts that are in the nature of Funded Indebtedness between a Conveyed Subsidiary or any Subsidiary thereof, on the one hand, and Seller Parent or any of the Retained Subsidiaries, on the other hand, that are settled after 12:01 a.m. (New York time) on the Closing Date but in connection with the Closing shall be deemed for purposes of this Agreement to have been settled as of 12:01 a.m. (New York time) on the Closing Date, and any intercompany accounts that are in the nature of Funded Indebtedness between a Conveyed Subsidiary (or any of its Subsidiaries), on the one hand, and Seller Parent or any of the Retained Subsidiaries, on the other hand, that remain outstanding following the Closing shall not be deemed Purchased Assets or Assumed Liabilities for purposes of this Agreement. Except for the Ancillary Related Agreements or the agreements set forth in on Section 6.7 5.5 of the Seller Seller’s Disclosure Letter or as otherwise expressly contemplated by this AgreementSchedule hereto, all intercompany arrangements and agreementsagreements providing, that are in the nature of Funded Indebtedness whether written leasing, or orallicensing goods, services, tangible or intangible properties, or joint activities between Seller Parent SEE or any of the Retained Subsidiaries, on the one hand, and any of the Conveyed Subsidiaries Transferred Diversey Companies or their Subsidiaries, on the other hand, shall, unless otherwise expressly agreed in writing by the parties hereto, be terminated and of no further force and effect as of the Closing (or, to the extent that any equity interests in a Transferred Diversey Company or Subsidiary of a Transferred Diversey Company are not transferred to Buyer or the Diversey Share Buyers at the Closing pursuant to Section 5.16, as of such later date on which all such equity interests are transferred to Buyer or the Diversey Share Buyers), in each case, without Liability to the Diversey Business at or after the Closing. Effective prior to the Closing, all outstanding intercompany accounts, whether payables or receivables, between SEE or any of the Retained Subsidiaries, on the one hand, and any of the Transferred Diversey Companies or their Subsidiaries, on the other hand, shall be terminated as of or prior to the Closing Date without any further Liability or obligation thereunder of any Person settled in full and shall be of no further force and effect (it being understood that such settlement shall not in any way affect the Related Agreements or any amounts which may be payable pursuant to any Related Agreement), in each case, without Liability to the Diversey Business at or after the Closing. No later than five (5) Business Days prior to Closing, SEE will provide reasonably satisfactory evidence of the terminations and settlements required under this Section 5.5(a) to Buyer.
(b) Purchaser Parent may take (or cause one or more of its Affiliates to take) such action as is necessary or advisable to settle, effective as of, or prior to, the Closing Date, all intercompany accounts that are in the nature of Funded Indebtedness (other than intercompany accounts arising pursuant to a Purchaser Ancillary Agreement) between Purchaser or any Subsidiary of Purchaser, on the one hand, and Purchaser Parent or any Subsidiary of Purchaser Parent (other than Purchaser and its Subsidiaries), on the other hand, in such a manner as Purchaser Parent shall determine in its sole discretion without any further Liability or obligation therefor of any Person. Any such intercompany accounts that are in the nature of Funded Indebtedness between Purchaser or any Subsidiary of Purchaser, on the one hand, and Purchaser Parent or any Subsidiary of Purchaser Parent (other than Purchaser and its Subsidiaries), on the other hand, that are settled after 12:01 a.m. (New York time) on the Closing Date but in connection with the Closing shall be deemed for purposes of this Agreement to have been settled as of 12:01 a.m. (New York time) on the Closing Date, and any intercompany accounts that are in the nature of Funded Indebtedness between Purchaser or any Subsidiary of Purchaser, on the one hand, and Purchaser Parent or any Subsidiary of Purchaser Parent (other than Purchaser and its Subsidiaries), on the other hand (other than intercompany accounts arising pursuant to a Purchaser Ancillary Agreement), that remain outstanding following the Closing shall not be deemed an asset of Purchaser or a Purchaser Liability for purposes of this Agreement (including for purposes of calculating the Purchaser Working Capital), and Purchaser Parent shall cancel or otherwise transfer such intercompany account from Purchaser and its Subsidiaries for no consideration. All Liabilities related to or arising out of the intercompany loan between Setfirst Limited and Purchaser in respect of the acquisition by Purchaser or its applicable Affiliates of Novartis AG’s interest in Purchaser and its applicable Affiliates shall be fully extinguished and cancelled, effective prior to the Closing Date, or shall otherwise be transferred to Purchaser Parent or its Affiliates (other than Purchaser and its Subsidiaries) prior to the Closing Date and shall constitute a Purchaser Parent Retained Liability for all purposes hereunder, in any case without any further Liability or obligation therefor for Purchaser or any of its Subsidiaries. Except for the Ancillary Agreements or the Purchaser Related Party Contracts set forth in Section 6.7 of the Purchaser Parent Disclosure Letter (the Purchaser Related Party Contracts set forth thereon, the “Purchaser Ancillary Agreements”) or as otherwise expressly contemplated by this Agreement, all Purchaser Related Party Contracts shall be terminated as of or prior to the Closing Date without any further Liability or obligation thereunder of any Person and shall be of no further force and effect after the Closing.
(c) Except to the extent provided to the contrary in this Section 6.7 and for any rights or obligations pursuant to this Agreement or any Ancillary Agreement or any commercial or other matter unrelated to this Agreement, effective Effective as of the Closing, each of Purchaser Parent and PurchaserBuyer, on behalf of itself and its respective Affiliates, including the Conveyed Subsidiaries Transferred Diversey Companies and their Subsidiaries, hereby releases Seller Parent SEE and each of its the Retained Subsidiaries and Affiliates (and their respective officers, directors directors, partners, members, managers, agents, custodians, and employees, acting in their capacity as such) from any Liability, obligation obligation, or responsibility to any of them for any and all past actions or failures to take action prior to the Closing directly Closing, including any actions which may be deemed to have been negligent or indirectly grossly negligent, relating to or arising out of the Business, the Retained Businesses, the Purchaser Business Contracts or the operations of the Conveyed Subsidiaries (or their Subsidiaries) prior to the Closing, or relating to or arising out of Seller Parent’s or its Affiliate’s ownership of the Purchased Assets.
(d) Except to the extent provided to the contrary in this Section 6.7 and for any rights or obligations pursuant to this Agreement or any Ancillary Agreement, effective as of the Closing, Purchaser Parent, on behalf of itself and its respective Affiliates (other than Purchaser and its Subsidiaries) hereby releases Purchaser and each of its Subsidiaries (and their respective officers, directors and employees, acting in their capacity as such) from any Liability, obligation or responsibility to any of them for any and all past actions or failures to take action prior to the Closing directly or indirectly relating to or arising out of the Purchaser Business, the Purchaser Parent Retained Businesses or the operations of Purchaser and its Subsidiaries prior to the Closing, or relating to or arising out of the assets, properties or rights relating to the Purchaser Business or owned, used or held by Purchaser agreements with SEE or any of its Subsidiaries.
Subsidiaries or the operation or conduct of any businesses, Assets (e) Except including activities performed thereat), or operations managed or operated by, or operationally related to, directly or indirectly, the Diversey Business or the Excluded Businesses, except for any obligation of SEE or the Retained Subsidiaries pursuant to the extent provided to the contrary in this Section 6.7 and for any rights or obligations pursuant to provisions of this Agreement or any Ancillary Agreement or, in the case of Purchaser Parent, Purchaser and each of its Subsidiaries and Affiliates (other than the Conveyed Subsidiaries and Related Agreements that by their Subsidiaries), any commercial or other matter unrelated to this Agreement, effective as of the Closing, Seller Parent, on behalf of itself and its Affiliates, hereby releases each of Purchaser Parent, Purchaser and each of its Subsidiaries and Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) (and their respective officers, directors and employees, acting in their capacity as such) from any Liability, obligation or responsibility to any of them for any and all past actions or failures to take action prior to the Closing directly or indirectly relating to or arising out of the Business, Purchaser Business, the Retained Businesses or the operations of the Conveyed Subsidiaries (or their Subsidiaries) prior to terms survive after the Closing.
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Intercompany Accounts and Arrangements. (a) Seller Parent may take (or cause one or more of its Affiliates to take) such action as is necessary or advisable to settle, effective as of, or prior to, the Closing Date, all intercompany accounts that are in the nature of Funded Indebtedness between a Conveyed Subsidiary or any Subsidiary thereof, on the one hand, and Seller Parent or any of the Retained Subsidiaries, on the other hand, in such a manner as Seller Parent shall determine in its sole discretion without any further Liability or obligation therefor of any Person. Any intercompany accounts that are in the nature of Funded Indebtedness between a Conveyed Subsidiary or any Subsidiary thereof, on the one hand, and Seller Parent or any of the Retained Subsidiaries, on the other hand, that are settled after 12:01 a.m. (New York time) on the Closing Date but in connection with the Closing shall be deemed for purposes of this Agreement to have been settled as of 12:01 a.m. (New York time) on the Closing Date, and any intercompany accounts that are in the nature of Funded Indebtedness between a Conveyed Subsidiary (or any of its Subsidiaries), on the one hand, and Seller Parent or any of the Retained Subsidiaries, on the other hand, that remain outstanding following the Closing shall not be deemed Purchased Assets or Assumed Liabilities for purposes of this Agreement. Except for the Ancillary Related Agreements, Local Asset Transfer Agreements, Local Purchase Agreements or the agreements set forth in on Section 6.7 5.5 of the Seller Seller's Disclosure Letter or as otherwise expressly contemplated by this AgreementSchedule hereto, all intercompany arrangements and agreements, that are in the nature of Funded Indebtedness whether written or oral, between Seller Parent DuPont or any of the Retained Subsidiaries, on the one hand, and any of the Conveyed Transferred DPC Companies or their Subsidiaries or their Subsidiariesthe Joint Ventures, on the other hand, shall be terminated as of or prior to the Closing Date without any further Liability or obligation thereunder of any Person and shall be of no further force and effect after the Closing.
Effective Time (b) Purchaser Parent may take (or, to the extent that any equity interests in a Transferred DPC Company, Subsidiary of a Transferred DPC Company or Joint Venture are not transferred to Buyer at the Closing pursuant to Section 5.18 or Section 5.19, such later date on which all such equity interests are transferred to Buyer). Except as contemplated by the Pre-Closing Restructuring Transactions, prior to the Effective Time, DuPont shall cause one or more each of its Affiliates Subsidiaries (including without limitation any of the Transferred DPC Companies or their respective Subsidiaries), and shall use reasonable best efforts to take) cause the Joint Ventures and their respective Subsidiaries (to the extent of DuPont's or its Subsidiary's control of such action as is necessary Joint Venture or advisable Subsidiary of a Joint Venture and subject to settle, effective as of, or prior to, the Closing Date, all intercompany accounts that are in the nature any fiduciary obligations of Funded Indebtedness (other than intercompany accounts arising pursuant to a Purchaser Ancillary Agreement) between Purchaser DuPont or any of its Subsidiaries with respect to such Joint Venture or Subsidiary thereof), to pay in full or otherwise cancel (to the extent the cancellation of Purchasersuch intercompany account does not have any material adverse Tax consequence on Buyer or its Subsidiaries in which event such intercompany account shall be paid in full) all outstanding intercompany accounts, whether payables or receivables, between DuPont or any of its Subsidiaries (including the Retained Subsidiaries), on the one hand, and Purchaser Parent any of the Transferred DPC Companies or any Subsidiary of Purchaser Parent (other than Purchaser and its their Subsidiaries or the Joint Ventures or their Subsidiaries), on the other hand, in such a manner as Purchaser Parent shall determine in its sole discretion without any further Liability or obligation therefor of any Person. Any such intercompany accounts that are in the nature of Funded Indebtedness between Purchaser or any Subsidiary of Purchaser, on the one hand, and Purchaser Parent or any Subsidiary of Purchaser Parent (other than Purchaser and its Subsidiaries), on the other hand, that are settled after 12:01 a.m. (New York time) on the Closing Date but in connection with the Closing shall be deemed for purposes of this Agreement to have been settled as of 12:01 a.m. (New York time) on the Closing Date, and any intercompany accounts that are in the nature of Funded Indebtedness between Purchaser or any Subsidiary of Purchaser, on the one hand, and Purchaser Parent or any Subsidiary of Purchaser Parent (other than Purchaser and its Subsidiaries), on the other hand (other than intercompany accounts arising pursuant to a Purchaser Ancillary Agreement), that remain outstanding following the Closing shall not be deemed an asset of Purchaser or a Purchaser Liability for purposes of this Agreement (including for purposes of calculating the Purchaser Working Capital), and Purchaser Parent shall cancel or otherwise transfer such intercompany account from Purchaser and its Subsidiaries for no consideration. All Liabilities related to or arising out of the intercompany loan between Setfirst Limited and Purchaser in respect of the acquisition by Purchaser or its applicable Affiliates of Novartis AG’s interest in Purchaser and its applicable Affiliates shall be fully extinguished and cancelled, effective prior to the Closing Date, or shall otherwise be transferred to Purchaser Parent or its Affiliates (other than Purchaser and its Subsidiaries) prior to the Closing Date and shall constitute a Purchaser Parent Retained Liability for all purposes hereunder, in any case without any further Liability or obligation therefor for Purchaser or any of its Subsidiaries. Except for the Ancillary Agreements or the Purchaser Related Party Contracts set forth in Section 6.7 of the Purchaser Parent Disclosure Letter (the Purchaser Related Party Contracts set forth thereon, the “Purchaser Ancillary Agreements”) or as otherwise expressly contemplated by this Agreement, all Purchaser Related Party Contracts shall be terminated as of or prior to the Closing Date without any further Liability or obligation thereunder of any Person and shall be of no further force and effect after the Closing.
(cb) Except to the extent provided to the contrary in this Section 6.7 and for any rights or obligations pursuant to this Agreement or any Ancillary Agreement or any commercial or other matter unrelated to this Agreement, effective as of the Closing, each of Purchaser Parent and PurchaserBuyer, on behalf of itself and its respective Affiliates, including the Conveyed Transferred DPC Companies and their Subsidiaries and the Joint Ventures and their Subsidiaries, hereby releases Seller Parent DuPont and each of its Subsidiaries and Affiliates (and their respective officers, directors and employees, acting in their capacity as such) from any Liability, obligation or responsibility to any of them for any and all past actions or failures to take action prior to the Closing directly or indirectly relating to or arising out of the Business, the Retained Businesses, the Purchaser Business or the operations of the Conveyed Subsidiaries (or their Subsidiaries) prior to the Closing, or relating to or arising out of Seller Parent’s or its Affiliate’s ownership of the Purchased Assets.
(d) Except to the extent provided to the contrary in this Section 6.7 and for any rights or obligations pursuant to this Agreement or any Ancillary Agreement, effective as of the Closing, Purchaser Parent, on behalf of itself and its respective Affiliates (other than Purchaser and its Subsidiaries) hereby releases Purchaser and each of its Subsidiaries (and their respective officers, directors and employees, acting in their capacity as such) from any Liability, obligation or responsibility to any of them for any and all past actions or failures to take action prior to the Closing directly Closing, including any actions which may be deemed to have been negligent or indirectly grossly negligent, relating to or arising out of Contracts with DuPont or a Subsidiary thereof or the Purchaser Businessoperation or conduct of any businesses, Assets (including activities performed thereat) or operations managed or operated by, or operationally related, directly or indirectly, to the DPC Business or the Excluded Businesses, except for any obligation pursuant to the provisions of this Agreement, the Purchaser Parent Retained Businesses Local Asset Transfer Agreements, the Local Purchase Agreements or the operations of Purchaser and its Subsidiaries prior to the Closing, or relating to or arising out of the assets, properties or rights relating to the Purchaser Business or owned, used or held by Purchaser or any of its Subsidiaries.
(e) Related Agreements. Except to the extent provided to the contrary in this Section 6.7 and for any rights or obligations pursuant to this Agreement or any Ancillary Agreement or, in the case of Purchaser Parent, Purchaser and each of its Subsidiaries and Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries), any commercial or other matter unrelated to this Agreement, effective as of the Closing, Seller ParentDuPont, on behalf of itself and its AffiliatesSubsidiaries, hereby releases each of Purchaser Parent, Purchaser Buyer and each of its the Transferred DPC Companies and their Subsidiaries and Affiliates (including the Conveyed Subsidiaries Joint Ventures and their Subsidiaries) Subsidiaries (and their respective officers, directors and employees, acting in their capacity as such) from any Liability, obligation or responsibility to any of them for any and all past actions or failures to take action prior to the Closing directly Closing, including any actions which may be deemed to have been negligent or indirectly grossly negligent, relating to or arising out of Contracts with DuPont or a Subsidiary thereof or the Businessoperation or conduct of any businesses, Purchaser BusinessAssets (including activities performed thereat) or operations managed or operated by, or operationally related, directly or indirectly, to DuPont and its Affiliates, except for any obligation pursuant to the provisions of this Agreement, the Retained Businesses Local Asset Transfer Agreements, the Local Purchase Agreements or the operations of the Conveyed Subsidiaries (or their Subsidiaries) prior to the ClosingRelated Agreements.
Appears in 1 contract
Intercompany Accounts and Arrangements. (a) Seller Parent may take (or cause one or more of its Affiliates to take) such action as is necessary or advisable to settle, effective as of, or prior to, the Closing Date, all intercompany accounts that are in the nature of Funded Indebtedness between a Conveyed Subsidiary or any Subsidiary thereof, on the one hand, and Seller Parent or any of the Retained Subsidiaries, on the other hand, in such a manner as Seller Parent shall determine in its sole discretion without any further Liability or obligation therefor of any Person. Any intercompany accounts that are in the nature of Funded Indebtedness between a Conveyed Subsidiary or any Subsidiary thereof, on the one hand, and Seller Parent or any of the Retained Subsidiaries, on the other hand, that are settled after 12:01 a.m. (New York time) on the Closing Date but in connection with the Closing shall be deemed for purposes of this Agreement to have been settled as of 12:01 a.m. (New York time) on the Closing Date, and any intercompany accounts that are in the nature of Funded Indebtedness between a Conveyed Subsidiary (or any of its Subsidiaries), on the one hand, and Seller Parent or any of the Retained Subsidiaries, on the other hand, that remain outstanding following the Closing shall not be deemed Purchased Assets or Assumed Liabilities for purposes of this Agreement. Except for the Ancillary Agreements or and the agreements set forth in on Section 6.7 7.9(a) of the Seller Sellers' Disclosure Letter Schedule, all Affiliated Transactions shall be terminated and of no further force and effect after the Closing. Prior to the Closing, Sellers shall cash settle (whether in the ordinary course of business or, in Parent's discretion, by way of capital contribution, dividend or as otherwise expressly contemplated by this Agreementotherwise) at or prior to the Closing, all intercompany arrangements receivables or payables and agreements, that are in loans existing and outstanding at any time prior to the nature of Funded Indebtedness whether written or oral, Closing between Seller Parent or any of the Retained Subsidiaries, on the one hand, and any of the Conveyed Subsidiaries or their Subsidiaries, on the other hand, shall be terminated as of or prior to the Closing Date without any further Liability or obligation thereunder of any Person and shall be of no further force and effect after the Closing.
(b) Purchaser Parent may take (or cause one or more of its Affiliates to take) such action as is necessary or advisable to settle, effective as of, or prior toAnalytical Technologies Business, the Closing Date, all intercompany accounts that are in Analytical Technologies Companies or the nature of Funded Indebtedness (other than intercompany accounts arising pursuant to a Purchaser Ancillary Agreement) between Purchaser or any Subsidiary of Purchaser, on the one hand, and Purchaser Parent or any Subsidiary of Purchaser Parent (other than Purchaser and its Subsidiaries), on the other hand, in such a manner as Purchaser Parent shall determine in its sole discretion without any further Liability or obligation therefor of any Person. Any such intercompany accounts that are in the nature of Funded Indebtedness between Purchaser or any Subsidiary of Purchaser, on the one hand, and Purchaser Parent or any Subsidiary of Purchaser Parent (other than Purchaser and its Subsidiaries), on the other hand, that are settled after 12:01 a.m. (New York time) on the Closing Date but in connection with the Closing shall be deemed for purposes of this Agreement to have been settled as of 12:01 a.m. (New York time) on the Closing Date, and any intercompany accounts that are in the nature of Funded Indebtedness between Purchaser or any Subsidiary of Purchaser, on the one hand, and Purchaser Parent or any Subsidiary of Purchaser Parent (other than Purchaser and its Subsidiaries)Joint Ventures, on the other hand (other than intercompany accounts arising pursuant collectively, "Intercompany Transactions"). Notwithstanding the foregoing, payables and loans owed to a Purchaser Ancillary Agreement), that Parent or any of the Retained Subsidiaries which are Intercompany Transactions incurred in the ordinary course of business consistent with past practice with an aggregate balance not to exceed $3,000,000 (the "Capped Payables") may remain outstanding as of Closing and will be cash settled following the Closing shall by the relevant Designated Buyer in the ordinary course of business consistent with past practice, and receivables owed by Parent or any of the Retained Subsidiaries which are Intercompany Transactions incurred in the ordinary course of business consistent with past practice with an aggregate balance not to exceed $3,000,000 (the "Capped Receivables") may remain outstanding as of Closing and will be deemed an asset cash settled by Parent or the relevant Subsidiary in the ordinary course of Purchaser or a Purchaser Liability for purposes business consistent with past practice. The actual amount as of Closing of Capped Payables minus Capped Receivables is referred to as the "Net Closing Intercompany Balance".
(b) From the date of this Agreement (including for purposes of calculating the Purchaser Working Capital), and Purchaser Parent shall cancel or otherwise transfer such intercompany account from Purchaser and its Subsidiaries for no consideration. All Liabilities related to or arising out of the intercompany loan between Setfirst Limited and Purchaser in respect of the acquisition by Purchaser or its applicable Affiliates of Novartis AG’s interest in Purchaser and its applicable Affiliates shall be fully extinguished and cancelled, effective prior to until the Closing Date, (x) the Analytical Technologies Companies and the AB Joint Venture shall be permitted to distribute or shall otherwise be transferred transfer any Cash Equivalents residing at any Analytical Technologies Company or the AB Joint Venture (to Purchaser Parent or its Affiliates (other than Purchaser and its Subsidiaries) the extent of Parent's pro rata share of the Cash Equivalents residing at the AB Joint Venture based on Parent's percentage ownership as of immediately prior to the Closing Date and shall constitute a Purchaser Effective Time) to Parent Retained Liability for all purposes hereunder, in any case without any further Liability or obligation therefor for Purchaser or any of its Subsidiaries. Except for the Ancillary Agreements or the Purchaser Related Party Contracts set forth in Section 6.7 one of the Purchaser Parent Disclosure Letter Retained Subsidiaries, and (y) the Purchaser Related Party Contracts set forth thereon, the “Purchaser Ancillary Agreements”) or as otherwise expressly contemplated by this Agreement, all Purchaser Related Party Contracts PE Joint Venture shall be terminated as of or prior permitted to the Closing Date without any further Liability or obligation thereunder of any Person and shall be of no further force and effect after the Closing.
(c) Except to the extent provided to the contrary in this Section 6.7 and for any rights or obligations pursuant to this Agreement or any Ancillary Agreement or any commercial or other matter unrelated to this Agreement, effective as of the Closing, each of Purchaser Parent and Purchaser, on behalf of itself and its respective Affiliates, including the Conveyed Subsidiaries and their Subsidiaries, hereby releases Seller Parent and each of its Subsidiaries and Affiliates (and their respective officers, directors and employees, acting in their capacity as such) from any Liability, obligation or responsibility to any of them for any and all past actions or failures to take action prior to the Closing directly or indirectly relating to or arising out of the Business, the Retained Businesses, the Purchaser Business or the operations of the Conveyed Subsidiaries (or their Subsidiaries) prior to the Closing, or relating to or arising out of Seller Parent’s or its Affiliate’s ownership of the Purchased Assets.
(d) Except to the extent provided to the contrary in this Section 6.7 and for any rights or obligations pursuant to this Agreement or any Ancillary Agreement, effective as of the Closing, Purchaser Parent, on behalf of itself and its respective Affiliates (other than Purchaser and its Subsidiaries) hereby releases Purchaser and each of its Subsidiaries (and their respective officers, directors and employees, acting in their capacity as such) from any Liability, obligation or responsibility to any of them for any and all past actions or failures to take action prior to the Closing directly or indirectly relating to or arising out of the Purchaser Business, the Purchaser Parent Retained Businesses or the operations of Purchaser and its Subsidiaries prior to the Closing, or relating to or arising out of the assets, properties or rights relating to the Purchaser Business or owned, used or held by Purchaser or any of its Subsidiaries.
(e) Except to the extent provided to the contrary in this Section 6.7 and for any rights or obligations pursuant to this Agreement or any Ancillary Agreement or, distribute Cash Equivalents in the case ordinary course of Purchaser Parent, Purchaser business and each of its Subsidiaries and Affiliates (other than in accordance with the Conveyed Subsidiaries and their Subsidiaries), any commercial or other matter unrelated to this PE Joint Venture Agreement, effective as of the Closing, Seller Parent, on behalf of itself and its Affiliates, hereby releases each of Purchaser Parent, Purchaser and each of its Subsidiaries and Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) (and their respective officers, directors and employees, acting in their capacity as such) from any Liability, obligation or responsibility to any of them for any and all past actions or failures to take action prior to the Closing directly or indirectly relating to or arising out of the Business, Purchaser Business, the Retained Businesses or the operations of the Conveyed Subsidiaries (or their Subsidiaries) prior to the Closing.
Appears in 1 contract
Intercompany Accounts and Arrangements. (a) Seller Parent may take (or cause one or more of its Affiliates to take) such action as is necessary or advisable to settle, effective as of, or prior to, the Closing Date, all intercompany accounts that are in the nature of Funded Indebtedness between a Conveyed Subsidiary or any Subsidiary thereof, on the one hand, and Seller Parent or any of the Retained Subsidiaries, on the other hand, in such a manner as Seller Parent shall determine in its sole discretion without any further Liability or obligation therefor of any Person. Any intercompany accounts that are in the nature of Funded Indebtedness between a Conveyed Subsidiary or any Subsidiary thereof, on the one hand, and Seller Parent or any of the Retained Subsidiaries, on the other hand, that are settled after 12:01 a.m. (New York time) on the Closing Date but in connection with the Closing shall be deemed for purposes of this Agreement to have been settled as of 12:01 a.m. (New York time) on the Closing Date, and any intercompany accounts that are in the nature of Funded Indebtedness between a Conveyed Subsidiary (or any of its Subsidiaries), on the one hand, and Seller Parent or any of the Retained Subsidiaries, on the other hand, that remain outstanding following the Closing shall not be deemed Purchased Assets or Assumed Liabilities for purposes of this Agreement. Except for the Ancillary Agreements, the Local Purchase Agreements or and the agreements set forth in on Section 6.7 7.10(i) of the Seller Seller’s Disclosure Letter or as otherwise expressly contemplated by this AgreementSchedule, all intercompany arrangements and agreementsContracts providing leasing, that are in the nature of Funded Indebtedness whether written subleasing, licensing or oralsublicensing goods, services, tangible or intangible property or joint activities between Seller Parent ASD or any of the Retained Subsidiaries, on the one hand, and any of the Conveyed Subsidiaries B&K Companies or their Subsidiaries, on the other hand, shall be terminated as of or prior to the Closing Date without any further Liability or obligation thereunder of any Person and shall be of no further force and effect after the Closing.
. Prior to the Closing, ASD shall use its reasonable efforts to settle (bwhether in the ordinary course of business or, in the ASD’s discretion, by way of capital contribution, dividend or otherwise) Purchaser Parent may take (or cause one or more of its Affiliates to take) such action as is necessary or advisable to settle, effective as of, at or prior to, to the Closing DateClosing, all intercompany accounts that are in receivables or payables and loans existing and outstanding at any time prior to the nature of Funded Indebtedness (other than intercompany accounts arising pursuant to a Purchaser Ancillary Agreement) Closing between Purchaser ASD or any Subsidiary of Purchaserthe Retained Subsidiaries, on the one hand, and Purchaser Parent the B&K Companies or any Subsidiary of Purchaser Parent (other than Purchaser and its their Subsidiaries), on the other handother. Notwithstanding the foregoing, in such a manner as Purchaser Parent shall determine in its sole discretion without any further Liability all intercompany receivables or obligation therefor of any Person. Any such intercompany accounts payables and loans that are in not settled as of the nature Closing and remain outstanding as of Funded Indebtedness the Closing between Purchaser ASD or any Subsidiary of Purchaserthe Retained Subsidiaries, on the one hand, and Purchaser Parent the B&K Companies or any Subsidiary of Purchaser Parent (other than Purchaser and its their Subsidiaries), on the other hand, that are settled shall continue in full force and effect from and after 12:01 a.m. (New York time) on the Closing Date but and shall be paid in connection accordance with the terms thereof, or, if no such terms are specified, then in accordance with normal commercial practices between unrelated parties. Any such intercompany trade receivables or payables outstanding as of the Closing shall be deemed for purposes of this Agreement to have been settled as of 12:01 a.m. (New York time) on the Closing Date, and any taken into account in determining Net Working Capital. Any such non-trade intercompany accounts that are in the nature of Funded Indebtedness between Purchaser receivables or any Subsidiary of Purchaser, on the one hand, and Purchaser Parent or any Subsidiary of Purchaser Parent (other than Purchaser and its Subsidiaries), on the other hand (other than intercompany accounts arising pursuant to a Purchaser Ancillary Agreement), payables that remain outstanding following as of the Closing shall not be deemed an asset of Purchaser treated as, respectively, Indebtedness or a Purchaser Liability for purposes of this Agreement (including for purposes of calculating the Purchaser Working Capital), and Purchaser Parent shall cancel or otherwise transfer such intercompany account from Purchaser and its Subsidiaries for no consideration. All Liabilities related to or arising out of the intercompany loan between Setfirst Limited and Purchaser in respect of the acquisition by Purchaser or its applicable Affiliates of Novartis AG’s interest in Purchaser and its applicable Affiliates shall be fully extinguished and cancelled, effective prior to the Closing Date, or shall otherwise be transferred to Purchaser Parent or its Affiliates (other than Purchaser and its Subsidiaries) prior to the Closing Date and shall constitute a Purchaser Parent Retained Liability for all purposes hereunder, in any case without any further Liability or obligation therefor for Purchaser or any of its Subsidiaries. Except for the Ancillary Agreements or the Purchaser Related Party Contracts set forth in Section 6.7 of the Purchaser Parent Disclosure Letter (the Purchaser Related Party Contracts set forth thereon, the “Purchaser Ancillary Agreements”) or as otherwise expressly contemplated by this Agreement, all Purchaser Related Party Contracts shall be terminated as of or prior to the Closing Date without any further Liability or obligation thereunder of any Person Cash Equivalents and shall be of no further force and effect after taken into account in determining the Indebtedness Amount or the Cash Amount. All such intercompany payables or receivables shall be paid as soon as practicable following the Closing.
(c) Except to the extent provided to the contrary in this Section 6.7 and for any rights or obligations pursuant to this Agreement or any Ancillary Agreement or any commercial or other matter unrelated to this Agreement, effective as of the Closing, each of Purchaser Parent and Purchaser, on behalf of itself and its respective Affiliates, including the Conveyed Subsidiaries and their Subsidiaries, hereby releases Seller Parent and each of its Subsidiaries and Affiliates (and their respective officers, directors and employees, acting in their capacity as such) from any Liability, obligation or responsibility to any of them for any and all past actions or failures to take action prior to the Closing directly or indirectly relating to or arising out of the Business, the Retained Businesses, the Purchaser Business or the operations of the Conveyed Subsidiaries (or their Subsidiaries) prior to the Closing, or relating to or arising out of Seller Parent’s or its Affiliate’s ownership of the Purchased Assets.
(d) Except to the extent provided to the contrary in this Section 6.7 and for any rights or obligations pursuant to this Agreement or any Ancillary Agreement, effective as of the Closing, Purchaser Parent, on behalf of itself and its respective Affiliates (other than Purchaser and its Subsidiaries) hereby releases Purchaser and each of its Subsidiaries (and their respective officers, directors and employees, acting in their capacity as such) from any Liability, obligation or responsibility to any of them for any and all past actions or failures to take action prior to the Closing directly or indirectly relating to or arising out of the Purchaser Business, the Purchaser Parent Retained Businesses or the operations of Purchaser and its Subsidiaries prior to the Closing, or relating to or arising out of the assets, properties or rights relating to the Purchaser Business or owned, used or held by Purchaser or any of its Subsidiaries.
(e) Except to the extent provided to the contrary in this Section 6.7 and for any rights or obligations pursuant to this Agreement or any Ancillary Agreement or, in the case of Purchaser Parent, Purchaser and each of its Subsidiaries and Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries), any commercial or other matter unrelated to this Agreement, effective as of the Closing, Seller Parent, on behalf of itself and its Affiliates, hereby releases each of Purchaser Parent, Purchaser and each of its Subsidiaries and Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) (and their respective officers, directors and employees, acting in their capacity as such) from any Liability, obligation or responsibility to any of them for any and all past actions or failures to take action prior to the Closing directly or indirectly relating to or arising out of the Business, Purchaser Business, the Retained Businesses or the operations of the Conveyed Subsidiaries (or their Subsidiaries) prior to the Closing.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (American Standard Companies Inc)
Intercompany Accounts and Arrangements. (a) Seller Parent may take (or cause one or more of its Affiliates to take) such action as is necessary or advisable to settle, effective as of, or prior to, the Closing Date, all intercompany accounts that are in the nature of Funded Indebtedness between a Conveyed Subsidiary or any Subsidiary thereof, on the one hand, and Seller Parent or any of the Retained Subsidiaries, on the other hand, in such a manner as Seller Parent shall determine in its sole discretion without any further Liability or obligation therefor of any Person. Any intercompany accounts that are in the nature of Funded Indebtedness between a Conveyed Subsidiary or any Subsidiary thereof, on the one hand, and Seller Parent or any of the Retained Subsidiaries, on the other hand, that are settled after 12:01 a.m. (New York time) on the Closing Date but in connection with the Closing shall be deemed for purposes of this Agreement to have been settled as of 12:01 a.m. (New York time) on the Closing Date, and any intercompany accounts that are in the nature of Funded Indebtedness between a Conveyed Subsidiary (or any of its Subsidiaries), on the one hand, and Seller Parent or any of the Retained Subsidiaries, on the other hand, that remain outstanding following the Closing shall not be deemed Purchased Assets or Assumed Liabilities for purposes of this Agreement. Except for the Ancillary Agreements or Related Agreements, the agreements set forth in Local Purchase Agreements, the Other Transaction Documents and intercompany accounts governed by Section 6.7 of the Seller Disclosure Letter or as otherwise expressly contemplated by this Agreement5.5(b), all intercompany arrangements and agreements, that are in the nature of Funded Indebtedness whether written or oral, providing, leasing or licensing goods, services, tangible or intangible properties or joint activities between Seller Parent APD or any of the Retained Subsidiaries, on the one hand, and any of the Conveyed Subsidiaries or their SubsidiariesTransferred PMD Companies, on the other hand, shall be terminated as or extended in accordance with Section 5.5(a) of or prior to the Closing Date without any further Liability or obligation thereunder of any Person and shall be of no further force and effect after the ClosingSeller’s Disclosure Schedule.
(b) Purchaser Parent may take (or cause one or more of its Affiliates to take) such action as is necessary or advisable to settle, effective as of, At or prior to, to the Closing DateClosing, all outstanding intercompany accounts that are in the nature of Funded Indebtedness accounts, whether payables (other than intercompany accounts arising pursuant to a Purchaser Ancillary Agreementtrade payables) or receivables (other than trade receivables), between Purchaser APD or any Subsidiary of Purchaserthe Retained Subsidiaries, on the one hand, and Purchaser Parent or any Subsidiary of Purchaser Parent (other than Purchaser and its Subsidiaries)the Transferred PMD Companies, on the other hand, in such a manner as Purchaser Parent shall determine in its sole discretion without any further Liability or obligation therefor of any Person. Any such intercompany accounts that are in the nature of Funded Indebtedness between Purchaser or any Subsidiary of Purchaser, on the one hand, and Purchaser Parent or any Subsidiary of Purchaser Parent (other than Purchaser and its Subsidiaries), on the other hand, that are settled after 12:01 a.m. (New York time) on the Closing Date but in connection with the Closing shall be deemed for purposes of this Agreement to have been settled as of 12:01 a.m. (New York time) on the Closing Date, and any intercompany accounts that are in the nature of Funded Indebtedness between Purchaser or any Subsidiary of Purchaser, on the one hand, and Purchaser Parent or any Subsidiary of Purchaser Parent (other than Purchaser and its Subsidiaries), on the other hand (other than intercompany accounts arising pursuant to a Purchaser Ancillary Agreement), that remain outstanding following the Closing shall not be deemed an asset of Purchaser or a Purchaser Liability for purposes of this Agreement (including for purposes of calculating the Purchaser Working Capital), and Purchaser Parent shall cancel or otherwise transfer such intercompany account from Purchaser and its Subsidiaries for no consideration. All Liabilities related to or arising out of the intercompany loan between Setfirst Limited and Purchaser in respect of the acquisition by Purchaser or its applicable Affiliates of Novartis AG’s interest in Purchaser and its applicable Affiliates shall be fully extinguished and cancelled, effective prior to the Closing Date, or shall otherwise be transferred to Purchaser Parent or its Affiliates (other than Purchaser and its Subsidiaries) prior to the Closing Date and shall constitute a Purchaser Parent Retained Liability for all purposes hereunder, in any case without any further Liability or obligation therefor for Purchaser or any of its Subsidiaries. Except for the Ancillary Agreements or the Purchaser Related Party Contracts set forth in Section 6.7 of the Purchaser Parent Disclosure Letter (the Purchaser Related Party Contracts set forth thereon, the “Purchaser Ancillary Agreements”) or as otherwise expressly contemplated by this Agreement, all Purchaser Related Party Contracts shall be terminated as of or prior to the Closing Date without any further Liability or obligation thereunder of any Person and shall be of no further force and effect such that none of Buyer or its Affiliates or any Transferred PMD Company shall have any continuing obligation with respect thereto (it being understood that such settlement shall not in any way affect the Related Agreements or the Other Transaction Documents or any amounts which may be payable pursuant to the Related Agreements or the Other Transaction Documents); provided, that in the case of any such payables or receivables (other than trade payables and trade receivables, as applicable) not set forth on Section 5.5(b)(i) of the Seller’s Disclosure Schedule, such payables or receivables shall be settled in a manner that does not have adverse tax consequences to the Transferred PMD Companies. Except as set forth on Section 5.5(b)(ii) of the Seller’s Disclosure Schedules, any intercompany trade payables or intercompany trade receivables, in each case as relating to the PMD Business, shall remain outstanding as of the Closing and shall be paid in the ordinary course after the Closing.
(c) Except to the extent provided to the contrary in this Section 6.7 and for any rights or obligations pursuant to this Agreement or any Ancillary Agreement or any commercial or other matter unrelated to this Agreement5.5(b), effective as of the Closing, each of Purchaser Parent and PurchaserBuyer, on behalf of itself and its respective Affiliates, including the Conveyed Subsidiaries and their SubsidiariesTransferred PMD Companies, hereby releases Seller Parent APD and each of its Subsidiaries and Affiliates (and their respective officers, directors and employees, acting in their capacity as such) from any Liability, obligation or responsibility to any of them for any and all past actions or failures to take action prior to the Closing directly or indirectly relating to or arising out of the Business, the Retained Businesses, the Purchaser Business or the operations of the Conveyed Subsidiaries (or their Subsidiaries) prior to the Closing, or relating to or arising out of Seller Parent’s or its Affiliate’s ownership of the Purchased Assets.
(d) Except to the extent provided to the contrary in this Section 6.7 and for any rights or obligations pursuant to this Agreement or any Ancillary Agreement, effective as of the Closing, Purchaser Parent, on behalf of itself and its respective Affiliates (other than Purchaser and its Subsidiaries) hereby releases Purchaser and each of its Subsidiaries (and their respective officers, directors and employees, acting in their capacity as such) from any Liability, obligation or responsibility to any of them for any and all past actions or failures to take action prior to the Closing directly Closing, including any actions which may be deemed to have been negligent or indirectly grossly negligent, relating to or arising out of Contracts with APD or a Subsidiary thereof or the Purchaser Businessoperation or conduct of any businesses, Assets (including activities performed thereat) or operations managed or operated by, or operationally related to, directly or indirectly, to the PMD Business or the Excluded Businesses, except for any obligation pursuant to the provisions of this Agreement, the Purchaser Parent Retained Businesses Local Purchase Agreements, the Related Agreements or the operations of Purchaser and its Subsidiaries prior to the Closing, or relating to or arising out of the assets, properties or rights relating to the Purchaser Business or owned, used or held by Purchaser or any of its SubsidiariesOther Transaction Documents.
(ed) Except to the extent provided to the contrary in this Section 6.7 and for any rights or obligations pursuant to this Agreement or any Ancillary Agreement or, in the case of Purchaser Parent, Purchaser and each of its Subsidiaries and Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries5.5(b), any commercial or other matter unrelated to this Agreement, effective as of the Closing, Seller ParentAPD, on behalf of itself and its Affiliates, including the Retained Subsidiaries, hereby releases Buyer, each of Purchaser Parent, Purchaser PMD Asset Buyer and each of its Subsidiaries and Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) Transferred PMD Companies (and their respective officers, directors and employees, acting in their capacity as such) from any Liability, obligation or responsibility to any of them for any and all past actions or failures to take action prior to the Closing directly Closing, including any actions which may be deemed to have been negligent or indirectly grossly negligent, relating to or arising out of Contracts with a PMD Asset Seller or a Transferred PMD Company or the operation or conduct of any businesses, Assets (including activities performed thereat) or operations managed or operated by, or operationally related to, directly or indirectly, to the PMD Business, Purchaser Businessexcept for any obligation pursuant to the provisions of this Agreement, the Retained Businesses Local Purchase Agreements, the Related Agreements or the operations of the Conveyed Subsidiaries (or their Subsidiaries) prior to the ClosingOther Transaction Documents.
Appears in 1 contract
Samples: Purchase Agreement (Air Products & Chemicals Inc /De/)
Intercompany Accounts and Arrangements. (a) Seller Parent may take (or cause one or more of its Affiliates to take) such action as is necessary or advisable to settle, effective as of, or prior to, the Closing Date, all intercompany accounts that are in the nature of Funded Indebtedness between a Conveyed Subsidiary or any Subsidiary thereof, on the one hand, and Seller Parent or any of the Retained Subsidiaries, on the other hand, in such a manner as Seller Parent shall determine in its sole discretion without any further Liability or obligation therefor of any Person. Any intercompany accounts that are in the nature of Funded Indebtedness between a Conveyed Subsidiary or any Subsidiary thereof, on the one hand, and Seller Parent or any of the Retained Subsidiaries, on the other hand, that are settled after 12:01 a.m. (New York time) on the Closing Date but in connection with the Closing shall be deemed for purposes of this Agreement to have been settled as of 12:01 a.m. (New York time) on the Closing Date, and any intercompany accounts that are in the nature of Funded Indebtedness between a Conveyed Subsidiary (or any of its Subsidiaries), on the one hand, and Seller Parent or any of the Retained Subsidiaries, on the other hand, that remain outstanding following the Closing shall not be deemed Purchased Assets or Assumed Liabilities for purposes of this Agreement. Except for the Ancillary Agreements or Related Agreements, the Delta Note and the agreements set forth in on Section 6.7 7.5 of the Seller Delta Disclosure Letter or Schedule hereto, effective as otherwise expressly contemplated by this Agreementof the Effective Time, all intercompany arrangements and agreements, that are in the nature of Funded Indebtedness whether written or oralContracts, between Seller Parent Delta or any of the Retained Subsidiaries, on the one hand, and any of the Conveyed Subsidiaries Transferred DPP Companies or their Subsidiaries, on the other hand, shall be terminated as of or prior to the Closing Date without any further Liability or obligation thereunder of any Person and shall be of no further force and effect after the Closing.
Effective Time (b) Purchaser Parent may take (or, to the extent that any equity interests in a Transferred DPP Company or Subsidiary of a Transferred DPP Company are not transferred to Newco at the Closing pursuant to Section 7.17, such later date on which all such equity interests are transferred to Newco). Prior to the Effective Time, Delta shall cause one or more each of its Affiliates Subsidiaries (including any of the Transferred DPP Companies or their respective Subsidiaries) to takepay in full or otherwise cancel (to the extent the cancellation of such intercompany account does not have any material adverse Tax consequence on Newco or its Subsidiaries in which event such intercompany account shall be paid in full) such action as is necessary all outstanding intercompany accounts, whether payables or advisable to settlereceivables, effective as of, or prior to, the Closing Date, all intercompany accounts that are in the nature of Funded Indebtedness (other than intercompany accounts arising pursuant to a Purchaser Ancillary Agreement) between Purchaser Delta or any Subsidiary of Purchaserits Retained Subsidiaries, on the one hand, and Purchaser Parent any of the Transferred DPP Companies or any Subsidiary of Purchaser Parent (other than Purchaser and its their Subsidiaries), on the other hand, in such a manner as Purchaser Parent shall determine in its sole discretion without any further Liability or obligation therefor of any Person. Any such intercompany accounts that are in the nature of Funded Indebtedness between Purchaser or any Subsidiary of Purchaser, on the one hand, and Purchaser Parent or any Subsidiary of Purchaser Parent (other than Purchaser and its Subsidiaries), on the other hand, that are settled after 12:01 a.m. (New York time) on the Closing Date but in connection with the Closing shall be deemed for purposes of this Agreement to have been settled as of 12:01 a.m. (New York time) on the Closing Date, and any intercompany accounts that are in the nature of Funded Indebtedness between Purchaser or any Subsidiary of Purchaser, on the one hand, and Purchaser Parent or any Subsidiary of Purchaser Parent (other than Purchaser and its Subsidiaries), on the other hand (other than intercompany accounts arising pursuant to a Purchaser Ancillary Agreement), that remain outstanding following the Closing shall not be deemed an asset of Purchaser or a Purchaser Liability for purposes of this Agreement (including for purposes of calculating the Purchaser Working Capital), and Purchaser Parent shall cancel or otherwise transfer such intercompany account from Purchaser and its Subsidiaries for no consideration. All Liabilities related to or arising out of the intercompany loan between Setfirst Limited and Purchaser in respect of the acquisition by Purchaser or its applicable Affiliates of Novartis AG’s interest in Purchaser and its applicable Affiliates shall be fully extinguished and cancelled, effective prior to the Closing Date, or shall otherwise be transferred to Purchaser Parent or its Affiliates (other than Purchaser and its Subsidiaries) prior to the Closing Date and shall constitute a Purchaser Parent Retained Liability for all purposes hereunder, in any case without any further Liability or obligation therefor for Purchaser or any of its Subsidiaries. Except for the Ancillary Agreements or the Purchaser Related Party Contracts set forth in Section 6.7 of the Purchaser Parent Disclosure Letter (the Purchaser Related Party Contracts set forth thereon, the “Purchaser Ancillary Agreements”) or as otherwise expressly contemplated by this Agreement, all Purchaser Related Party Contracts shall be terminated as of or prior to the Closing Date without any further Liability or obligation thereunder of any Person and shall be of no further force and effect after the Closing.
(cb) Except to the extent provided to the contrary in this Section 6.7 and for any rights or obligations pursuant to this Agreement or any Ancillary Related Agreement or any commercial or other matter unrelated to this Service Level Agreement, effective as of the Closing, each of Purchaser Parent and PurchaserNewco, on behalf of itself and its respective Affiliates, including the Conveyed Subsidiaries Transferred DPP Companies and their Subsidiaries, hereby releases Seller Parent Delta and each of its Subsidiaries and Affiliates (and their respective officers, directors and employees, acting in their capacity as such) from any Liability, obligation or responsibility to any of them for any and all past actions or failures to take action prior to the Closing directly or indirectly relating to or arising out of the Business, the Retained Businesses, the Purchaser Business or the operations of the Conveyed Subsidiaries (or their Subsidiaries) prior to the Closing, or relating to or arising out of Seller Parent’s or its Affiliate’s ownership of the Purchased Assets.
(d) Except to the extent provided to the contrary in this Section 6.7 and for any rights or obligations pursuant to this Agreement or any Ancillary Agreement, effective as of the Closing, Purchaser Parent, on behalf of itself and its respective Affiliates (other than Purchaser and its Subsidiaries) hereby releases Purchaser and each of its Subsidiaries (and their respective officers, directors and employees, acting in their capacity as such) from any Liability, obligation or responsibility Liability to any of them for any and all past actions or failures to take action occurring prior to the Closing directly or indirectly Closing, including any actions which may be deemed to have been negligent, relating to or arising out of the Purchaser Business, the Purchaser Parent Retained Businesses Contracts with Delta or a Subsidiary thereof or the operation or conduct of any businesses, Assets (including activities performed thereat) or operations of Purchaser and its Subsidiaries prior managed or operated by, or operationally related, directly or indirectly, to the ClosingDPP Business or the Excluded Businesses, or relating to or arising out of the assets, properties or rights relating except for any obligation pursuant to the Purchaser Business provisions of this Agreement or owned, used the Related Agreements or held by Purchaser or any of its Subsidiaries.
(e) Service Level Agreements. Except to the extent provided to the contrary in this Section 6.7 and for any rights or obligations pursuant to this Agreement or any Ancillary Related Agreement or, in the case of Purchaser Parent, Purchaser and each of its Subsidiaries and Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries), any commercial or other matter unrelated to this Service Level Agreement, effective as of the Closing, Seller ParentDelta, on behalf of itself and its AffiliatesSubsidiaries, hereby releases each of Purchaser Parent, Purchaser and each of its Subsidiaries and Affiliates (including the Conveyed Subsidiaries Transferred DPP Companies and their Subsidiaries) Subsidiaries (and their respective officers, directors and employeesRepresentatives, acting in their capacity as such) from any Liability, obligation or responsibility Liability to any of them for any and all past actions or failures to take action occurring prior to the Closing directly or indirectly Closing, including any actions which may be deemed to have been negligent, relating to or arising out of the Business, Purchaser Business, the Retained Businesses Contracts with Delta or a Subsidiary thereof or the operation or conduct of any businesses, Assets (including activities performed thereat) or operations of the Conveyed Subsidiaries (managed or their Subsidiaries) prior operated by, or operationally related, directly or indirectly, to Delta and its Affiliates, except for any obligation pursuant to the Closingprovisions of this Agreement or the Related Agreements or Service Level Agreements.
Appears in 1 contract
Samples: Contribution Agreement (Patheon Inc)
Intercompany Accounts and Arrangements. (a) Seller Parent may take (or cause one or more of its Affiliates to take) such action Except as is necessary or advisable to settle, effective as of, or prior to, the Closing Date, all intercompany accounts that are in the nature of Funded Indebtedness between -------------------------------------- expressly modified by a Conveyed Subsidiary or any Subsidiary thereof, on the one hand, Related Agreement and Seller Parent or any of the Retained Subsidiaries, on the other hand, in such a manner as Seller Parent shall determine in its sole discretion without any further Liability or obligation therefor of any Person. Any intercompany accounts that are in the nature of Funded Indebtedness between a Conveyed Subsidiary or any Subsidiary thereof, on the one hand, and Seller Parent or any of the Retained Subsidiaries, on the other hand, that are settled after 12:01 a.m. (New York time) on the Closing Date but in connection with the Closing shall be deemed except for purposes of this Agreement to have been settled as of 12:01 a.m. (New York time) on the Closing Date, and any intercompany accounts that are in the nature of Funded Indebtedness between a Conveyed Subsidiary (or any of its Subsidiaries), on the one hand, and Seller Parent or any of the Retained Subsidiaries, on the other hand, that remain outstanding following the Closing shall not be deemed Purchased Assets or Assumed Liabilities for purposes of this Agreement. Except for the Ancillary Agreements or the agreements set forth in Section 6.7 of the Seller Disclosure Letter or as otherwise expressly contemplated by this Agreementon Schedule 5.5 hereto, all intercompany arrangements and agreements, that are in the nature of Funded Indebtedness whether written or oral, providing goods, services or joint activities between Seller Parent DuPont or any of the Retained Subsidiaries, on the one hand, and any of the Conveyed Subsidiaries or their SubsidiariesTransferred Business Companies, on the other hand, shall be terminated as of or prior to the Closing Date without any further Liability or obligation thereunder of any Person and shall be of no further force and effect after the Closing.
(b) Purchaser Parent may take (or cause one or more of its Affiliates to take) such action as is necessary or advisable to settle, effective as of, or prior to, . Effective upon the Closing DateClosing, all outstanding intercompany accounts that are in the nature of Funded Indebtedness (other than intercompany accounts arising pursuant to a Purchaser Ancillary Agreement) accounts, whether payables or receivables, between Purchaser DuPont or any Subsidiary of Purchaserthe Retained Subsidiaries, on the one hand, and Purchaser Parent or any Subsidiary of Purchaser Parent (other than Purchaser and its Subsidiaries)the Transferred Business Companies, on the other hand, in such a manner as Purchaser Parent shall determine in its sole discretion without any further Liability or obligation therefor of any Person. Any such intercompany accounts that are in the nature of Funded Indebtedness between Purchaser or any Subsidiary of Purchaser, on the one hand, and Purchaser Parent or any Subsidiary of Purchaser Parent (other than Purchaser and its Subsidiaries), on the other hand, that are settled after 12:01 a.m. (New York time) on the Closing Date but in connection with the Closing shall be deemed for purposes of this Agreement to have been settled as of 12:01 a.m. (New York time) on the Closing Date, cancelled and any intercompany accounts that are in the nature of Funded Indebtedness between Purchaser or any Subsidiary of Purchaser, on the one hand, and Purchaser Parent or any Subsidiary of Purchaser Parent (other than Purchaser and its Subsidiaries), on the other hand (other than intercompany accounts arising pursuant to a Purchaser Ancillary Agreement), that remain outstanding following the Closing shall not be deemed an asset of Purchaser or a Purchaser Liability for purposes of this Agreement (including for purposes of calculating the Purchaser Working Capital), and Purchaser Parent shall cancel or otherwise transfer such intercompany account from Purchaser and its Subsidiaries for no consideration. All Liabilities related to or arising out of the intercompany loan between Setfirst Limited and Purchaser in respect of the acquisition by Purchaser or its applicable Affiliates of Novartis AG’s interest in Purchaser and its applicable Affiliates shall be fully extinguished and cancelled, effective prior to the Closing Date, or shall otherwise be transferred to Purchaser Parent or its Affiliates (other than Purchaser and its Subsidiaries) prior to the Closing Date and shall constitute a Purchaser Parent Retained Liability for all purposes hereunder, in any case without any further Liability or obligation therefor for Purchaser or any of its Subsidiaries. Except for the Ancillary Agreements or the Purchaser Related Party Contracts set forth in Section 6.7 of the Purchaser Parent Disclosure Letter (the Purchaser Related Party Contracts set forth thereon, the “Purchaser Ancillary Agreements”) or as otherwise expressly contemplated by this Agreement, all Purchaser Related Party Contracts shall be terminated as of or prior to the Closing Date without any further Liability or obligation thereunder of any Person and shall be of no further force and effect after (it being understood that such cancellation shall not in any way affect the ClosingRelated Agreements or any amounts which may be payable pursuant to the Related Agreements).
(cb) Except to the extent provided to the contrary in this Section 6.7 and for any rights or obligations pursuant to this Agreement or any Ancillary Agreement or any commercial or other matter unrelated to this Agreement5.5(a), effective as of the Closing, each of Purchaser Parent and Purchaser: (i) Buyer, on behalf of itself and its respective Affiliates, including the Conveyed Subsidiaries and their SubsidiariesTransferred Business Companies, hereby releases Seller Parent DuPont and each of its Subsidiaries and Affiliates (and their respective officers, directors and employees, acting in their capacity as such) from any Liability, obligation or responsibility to any of them for any and all past actions or failures to take action prior to the Closing directly or indirectly relating to or arising out of the Business, the Retained Businesses, the Purchaser Business or the operations of the Conveyed Subsidiaries (or their Subsidiaries) prior to the Closing, or relating to or arising out of Seller Parent’s or its Affiliate’s ownership of the Purchased Assets.
(d) Except to the extent provided to the contrary in this Section 6.7 and for any rights or obligations pursuant to this Agreement or any Ancillary Agreement, effective as of the Closing, Purchaser Parent, on behalf of itself and its respective Affiliates (other than Purchaser and its Subsidiaries) hereby releases Purchaser and each of its Subsidiaries (and their respective officers, directors and employees, acting in their capacity as such) from any Liability, obligation or responsibility to any of them for any and all past actions or failures to take action prior to the Closing directly Closing, including any actions which may be deemed to have been negligent or indirectly grossly negligent, relating to or arising out of Contracts with DuPont or a Subsidiary thereof or the Purchaser operation or conduct of any businesses, Assets (including activities performed thereat) or operations managed or operated by, or operationally related to, directly or indirectly, to the Transferred Business or the Retained Business, except for any Liability, obligation or responsibility for any action or failure to take action in accordance with the Purchaser Parent Retained Businesses provisions of this Agreement or for any fraudulent act or willful or intentional misconduct in the operations operation or conduct of Purchaser and its Subsidiaries Transferred Business prior to the ClosingClosing Date; and (ii) DuPont, or relating to or arising out of the assets, properties or rights relating to the Purchaser Business or owned, used or held by Purchaser or any of its Subsidiaries.
(e) Except to the extent provided to the contrary in this Section 6.7 for itself and for any rights or obligations pursuant to this Agreement or any Ancillary Agreement or, in the case of Purchaser Parent, Purchaser and each on behalf of its Subsidiaries and Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries), any commercial or other matter unrelated to this Agreement, effective as of the Closing, Seller Parent, on behalf of itself and its AffiliatesTransferred Business Companies, hereby releases each of Purchaser Parent, Purchaser and each of its Subsidiaries and Affiliates (including the Conveyed Subsidiaries and their Subsidiaries) Transferred Business Companies (and their respective officers, directors and employees, acting in their capacity as such) from any Liability, obligation or responsibility to any of them for any and all past actions or failures to take action prior to the Closing directly Closing, including any actions which may be deemed to have been negligent or indirectly grossly negligent, relating to or arising out of Contracts with DuPont or a Subsidiary thereof or the operation or conduct of any businesses, Assets (including activities performed thereat) or operations managed or operated by, or operationally related to, directly or indirectly, the Transferred Business or the Retained Business, Purchaser Businessexcept for any Liability, obligation or responsibility for any fraudulent act or willful or intentional misconduct in the operation or conduct of the Transferred Business or the Retained Businesses or the operations of the Conveyed Subsidiaries (or their Subsidiaries) Business prior to the ClosingClosing Date.
(c) Nothing set forth in this Section 5.5 shall limit or otherwise affect any party's rights or obligations pursuant to, or contemplated by, this Agreement and the Related Agreements, including any obligations relating to indemnification and the assumption of Liabilities.
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Intercompany Accounts and Arrangements. (a) Seller Parent may take (or cause one or more of its Affiliates to take) such action as is necessary or advisable to settle, effective as of, or prior to, the Closing Date, all intercompany accounts that are in the nature of Funded Indebtedness between a Conveyed Subsidiary or any Subsidiary thereof, on the one hand, and Seller Parent or any of the Retained Subsidiaries, on the other hand, in such a manner as Seller Parent shall determine in its sole discretion without any further Liability or obligation therefor of any Person. Any intercompany accounts that are in the nature of Funded Indebtedness between a Conveyed Subsidiary or any Subsidiary thereof, on the one hand, and Seller Parent or any of the Retained Subsidiaries, on the other hand, that are settled after 12:01 a.m. (New York time) on the Closing Date but in connection with the Closing shall be deemed for purposes of this Agreement to have been settled as of 12:01 a.m. (New York time) on the Closing Date, and any intercompany accounts that are in the nature of Funded Indebtedness between a Conveyed Subsidiary (or any of its Subsidiaries), on the one hand, and Seller Parent or any of the Retained Subsidiaries, on the other hand, that remain outstanding following the Closing shall not be deemed Purchased Assets or Assumed Liabilities for purposes of this Agreement. Except for the Ancillary Related Agreements, Local Asset Transfer Agreements, Local Purchase Agreements or the agreements set forth in on Section 6.7 5.5 of the Seller Seller’s Disclosure Letter or as otherwise expressly contemplated by this AgreementSchedule hereto, all intercompany arrangements and agreements, that are in the nature of Funded Indebtedness whether written or oral, between Seller Parent DuPont or any of the Retained Subsidiaries, on the one hand, and any of the Conveyed Transferred DPC Companies or their Subsidiaries or their Subsidiariesthe Joint Ventures, on the other hand, shall be terminated as of or prior to the Closing Date without any further Liability or obligation thereunder of any Person and shall be of no further force and effect after the Closing.
Effective Time (b) Purchaser Parent may take (or, to the extent that any equity interests in a Transferred DPC Company, Subsidiary of a Transferred DPC Company or Joint Venture are not transferred to Buyer at the Closing pursuant to Section 5.18 or Section 5.19, such later date on which all such equity interests are transferred to Buyer). Except as contemplated by the Pre-Closing Restructuring Transactions, prior to the Effective Time, DuPont shall cause one or more each of its Affiliates Subsidiaries (including without limitation any of the Transferred DPC Companies or their respective Subsidiaries), and shall use reasonable best efforts to take) cause the Joint Ventures and their respective Subsidiaries (to the extent of DuPont’s or its Subsidiary’s control of such action as is necessary Joint Venture or advisable Subsidiary of a Joint Venture and subject to settle, effective as of, or prior to, the Closing Date, all intercompany accounts that are in the nature any fiduciary obligations of Funded Indebtedness (other than intercompany accounts arising pursuant to a Purchaser Ancillary Agreement) between Purchaser DuPont or any of its Subsidiaries with respect to such Joint Venture or Subsidiary thereof), to pay in full or otherwise cancel (to the extent the cancellation of Purchasersuch intercompany account does not have any material adverse Tax consequence on Buyer or its Subsidiaries in which event such intercompany account shall be paid in full) all outstanding intercompany accounts, whether payables or receivables, between DuPont or any of its Subsidiaries (including the Retained Subsidiaries), on the one hand, and Purchaser Parent any of the Transferred DPC Companies or any Subsidiary of Purchaser Parent (other than Purchaser and its their Subsidiaries or the Joint Ventures or their Subsidiaries), on the other hand, in such a manner as Purchaser Parent shall determine in its sole discretion without any further Liability or obligation therefor of any Person. Any such intercompany accounts that are in the nature of Funded Indebtedness between Purchaser or any Subsidiary of Purchaser, on the one hand, and Purchaser Parent or any Subsidiary of Purchaser Parent (other than Purchaser and its Subsidiaries), on the other hand, that are settled after 12:01 a.m. (New York time) on the Closing Date but in connection with the Closing shall be deemed for purposes of this Agreement to have been settled as of 12:01 a.m. (New York time) on the Closing Date, and any intercompany accounts that are in the nature of Funded Indebtedness between Purchaser or any Subsidiary of Purchaser, on the one hand, and Purchaser Parent or any Subsidiary of Purchaser Parent (other than Purchaser and its Subsidiaries), on the other hand (other than intercompany accounts arising pursuant to a Purchaser Ancillary Agreement), that remain outstanding following the Closing shall not be deemed an asset of Purchaser or a Purchaser Liability for purposes of this Agreement (including for purposes of calculating the Purchaser Working Capital), and Purchaser Parent shall cancel or otherwise transfer such intercompany account from Purchaser and its Subsidiaries for no consideration. All Liabilities related to or arising out of the intercompany loan between Setfirst Limited and Purchaser in respect of the acquisition by Purchaser or its applicable Affiliates of Novartis AG’s interest in Purchaser and its applicable Affiliates shall be fully extinguished and cancelled, effective prior to the Closing Date, or shall otherwise be transferred to Purchaser Parent or its Affiliates (other than Purchaser and its Subsidiaries) prior to the Closing Date and shall constitute a Purchaser Parent Retained Liability for all purposes hereunder, in any case without any further Liability or obligation therefor for Purchaser or any of its Subsidiaries. Except for the Ancillary Agreements or the Purchaser Related Party Contracts set forth in Section 6.7 of the Purchaser Parent Disclosure Letter (the Purchaser Related Party Contracts set forth thereon, the “Purchaser Ancillary Agreements”) or as otherwise expressly contemplated by this Agreement, all Purchaser Related Party Contracts shall be terminated as of or prior to the Closing Date without any further Liability or obligation thereunder of any Person and shall be of no further force and effect after the Closing.
(cb) Except to the extent provided to the contrary in this Section 6.7 and for any rights or obligations pursuant to this Agreement or any Ancillary Agreement or any commercial or other matter unrelated to this Agreement, effective as of the Closing, each of Purchaser Parent and PurchaserBuyer, on behalf of itself and its respective Affiliates, including the Conveyed Transferred DPC Companies and their Subsidiaries and the Joint Ventures and their Subsidiaries, hereby releases Seller Parent DuPont and each of its Subsidiaries and Affiliates (and their respective officers, directors and employees, acting in their capacity as such) from any Liability, obligation or responsibility to any of them for any and all past actions or failures to take action prior to the Closing directly or indirectly relating to or arising out of the Business, the Retained Businesses, the Purchaser Business or the operations of the Conveyed Subsidiaries (or their Subsidiaries) prior to the Closing, or relating to or arising out of Seller Parent’s or its Affiliate’s ownership of the Purchased Assets.
(d) Except to the extent provided to the contrary in this Section 6.7 and for any rights or obligations pursuant to this Agreement or any Ancillary Agreement, effective as of the Closing, Purchaser Parent, on behalf of itself and its respective Affiliates (other than Purchaser and its Subsidiaries) hereby releases Purchaser and each of its Subsidiaries (and their respective officers, directors and employees, acting in their capacity as such) from any Liability, obligation or responsibility to any of them for any and all past actions or failures to take action prior to the Closing directly Closing, including any actions which may be deemed to have been negligent or indirectly grossly negligent, relating to or arising out of Contracts with DuPont or a Subsidiary thereof or the Purchaser Businessoperation or conduct of any businesses, Assets (including activities performed thereat) or operations managed or operated by, or operationally related, directly or indirectly, to the DPC Business or the Excluded Businesses, except for any obligation pursuant to the provisions of this Agreement, the Purchaser Parent Retained Businesses Local Asset Transfer Agreements, the Local Purchase Agreements or the operations of Purchaser and its Subsidiaries prior to the Closing, or relating to or arising out of the assets, properties or rights relating to the Purchaser Business or owned, used or held by Purchaser or any of its Subsidiaries.
(e) Related Agreements. Except to the extent provided to the contrary in this Section 6.7 and for any rights or obligations pursuant to this Agreement or any Ancillary Agreement or, in the case of Purchaser Parent, Purchaser and each of its Subsidiaries and Affiliates (other than the Conveyed Subsidiaries and their Subsidiaries), any commercial or other matter unrelated to this Agreement, effective as of the Closing, Seller ParentDuPont, on behalf of itself and its AffiliatesSubsidiaries, hereby releases each of Purchaser Parent, Purchaser Buyer and each of its the Transferred DPC Companies and their Subsidiaries and Affiliates (including the Conveyed Subsidiaries Joint Ventures and their Subsidiaries) Subsidiaries (and their respective officers, directors and employees, acting in their capacity as such) from any Liability, obligation or responsibility to any of them for any and all past actions or failures to take action prior to the Closing directly Closing, including any actions which may be deemed to have been negligent or indirectly grossly negligent, relating to or arising out of Contracts with DuPont or a Subsidiary thereof or the Businessoperation or conduct of any businesses, Purchaser BusinessAssets (including activities performed thereat) or operations managed or operated by, or operationally related, directly or indirectly, to DuPont and its Affiliates, except for any obligation pursuant to the provisions of this Agreement, the Retained Businesses Local Asset Transfer Agreements, the Local Purchase Agreements or the operations of the Conveyed Subsidiaries (or their Subsidiaries) prior to the ClosingRelated Agreements.
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