No Transfer of Undertaking. Eidos and Bayer enter this Agreement based on the common understanding that the execution of the Agreement, especially the collaboration for the further development and commercialization of the Licensed Product in the Licensed Territory as set out in this Agreement, does not constitute a transfer of undertaking within the meaning of the Transfers of Undertakings Directive 2001/23/EC and any national implementation laws or any law or regulation of substantially similar effect in the case of transfer of undertaking or business (“Transfer of Undertaking“). Eidos shall use all reasonable (also commercially) efforts to ensure that the Transfer of Undertaking does not apply and that no person’s employment (or any liability relating hereto) transfers to Bayer or any Bayer Affiliate. Bayer shall not be obligated to pay any consideration for Eidos’ efforts or to incur any costs, obligations or liabilities that Eidos incurs in connection with its efforts. Should nonetheless employees claim (whether directly by such person or through any worker representative) that their employment relationship mandatorily has to be transferred to Bayer or any Bayer Affiliate, the following provisions in Section 11.6(c) and 11.6(d) shall apply:
No Transfer of Undertaking. If contrary to the expectations of Seller and Purchasers the consummation of the transactions contemplated by this Agreement should not constitute a transfer of undertaking (Betriebsübergang) and the employment relationships of the Business Employees should therefore not transfer to Purchaser 1 by operation of law, Purchaser 1 shall make offers of employment to the Business Employees which provide for (i) at least the same salaries as the one paid to each Business Employee by Seller as set forth on Schedule 9.8.2, and (ii) benefits that, in the aggregate, are no less favourable than the benefits provided to each Business Employee by Seller as set forth on Schedule 9.8.2.
