Non-Transferred Assets. Subject to Clause 9 (Transferring Contracts and Non-Transferring Tenders), Clause 16 (Access to Information; Books and Records), Clause 30.3 (Matters Governed Exclusively by Ancillary Agreements) and Schedule 1 (Transferring Contracts and Non-Transferring Tenders), and except in relation to any Intellectual Property Right (in respect of which, to the extent relevant, the provisions of Clause 20.3 (Intellectual Property Wrong Pockets) shall apply), any monies to which Clause 11 (Accounts Payable and Receivable) applies or as otherwise expressly provided for in this Agreement, any Ancillary Agreement or the US Brands Commercial Agreement, if, following the Separation Date: (a) any property, right or asset: (i) forming part of the Sandoz Business (other than any property, right or asset expressly excluded under this Agreement or any Ancillary Agreement) has not and should have been transferred to Sandoz, or to another member of the Sandoz Group, pursuant to this Agreement or any Ancillary Agreement or otherwise; or (ii) that is a Sandoz Transferring Asset or is Exclusively Related to the Sandoz Business (other than any property, right or asset expressly excluded under this Agreement or any Ancillary Agreement and excluding any Novartis Retained Asset) has not been transferred to Sandoz, or to another member of the Sandoz Group, pursuant to this Agreement or any Ancillary Agreement or otherwise, or is held by a member of the Novartis Group after the Separation Date, then: (A) the Parties shall use their respective Commercially Reasonable Efforts to procure that the holder of such property, right or asset shall be deemed to be a Sandoz Asset Transferor for the purposes of this Agreement; and (B) Sandoz shall nominate a member of the Sandoz Group (acceptable to Novartis, acting reasonably) as the Sandoz Asset Transferee for such property, right or asset and such member of the Sandoz Group shall be deemed to be a Sandoz Asset Transferee for the purposes of this Agreement, then Novartis shall use Commercially Reasonable Efforts to procure that all right, title and interest in such property, right or asset (and any related liability which is a Sandoz Liability) is assigned and transferred to Sandoz (or another member of the Sandoz Group as Sandoz has nominated (in accordance with Clause 20.1(a)(ii)(B) above) or may nominate that is reasonably acceptable to Novartis) as soon as practicable and at no cost to Sandoz (or any member of its Group), and such member of the Sandoz Group shall accept such transfer or assume such assignment in accordance with the terms of this Agreement. Pending such transfer and subject to Applicable Law, Novartis shall cause such property, right or asset to be held on trust and provide to Sandoz or its designated assignee all of the benefits associated with such property, right or asset (in accordance with Schedule 1 (Transferring Contracts and Non-Transferring Tenders), if applicable); or (b) any property, right or asset: (i) forming part of the Novartis Business (other than any property, right or asset expressly excluded under this Agreement or any Ancillary Agreement) has not and should have been transferred to Novartis, or to another member of the Novartis Group, pursuant to this Agreement or any Ancillary Agreement or otherwise; or (ii) that is a Novartis Retained Asset or is Exclusively Related to the Novartis Business (other than any property, right or asset expressly excluded under this Agreement or any Ancillary Agreement and excluding any Sandoz Transferring Assets) that has not been transferred to Novartis, or to another member of the Novartis Group, pursuant to this Agreement or any Ancillary Agreement or otherwise, or is held by a member of the Sandoz Group after the Separation Date: (A) the Parties shall use their respective Commercially Reasonable Efforts to procure that the holder of such property, right or asset shall be deemed to be a Novartis Asset Transferor for the purposes of this Agreement; (B) Novartis shall nominate a member of the Novartis Group (acceptable to Sandoz, acting reasonably) as the Novartis Asset Transferee for such property, right or asset and such member of the Novartis Group shall be deemed to be a Novartis Asset Transferee for the purposes of this Agreement, then Sandoz shall use Commercially Reasonable Efforts to procure that all right, title and interest in such property, right or asset (and any related liability which is a Novartis Liability) is assigned and transferred to Novartis (or another member of the Novartis Group as Novartis has nominated (in accordance with Clause 20.1(b)(ii)(B) above) or may nominate that is reasonably acceptable to Sandoz) as soon as practicable and at no cost to Novartis (or any member of its Group), and such member of the Novartis Group shall accept such transfer or assume such assignment in accordance with the terms of this Agreement. Pending such transfer and subject to Applicable Law, Sandoz shall cause such property, right or asset to be held on trust and provide to Novartis or its designated assignee all of the benefits associated with such property, right or asset (in accordance with Schedule 1 (Transferring Contracts and Non-Transferring Tenders), if applicable).
Appears in 1 contract
Samples: Separation and Distribution Agreement (Novartis Ag)
Non-Transferred Assets. Subject (a) Notwithstanding anything in this Agreement to Clause 9 (Transferring Contracts and Non-Transferring Tenders)the contrary, Clause 16 (Access to Information; Books and Records), Clause 30.3 (Matters Governed Exclusively by Ancillary Agreements) and Schedule 1 (Transferring Contracts and Non-Transferring Tenders), and except in relation to any Intellectual Property Right (in respect of whichthe parties agree that, to the extent relevant, that as of the provisions Closing certain of Clause 20.3 (Intellectual Property Wrong Pockets) shall apply), any monies the Purchased Assets cannot be transferred to which Clause 11 (Accounts Payable and Receivable) applies or as otherwise expressly provided for in this Agreement, any Ancillary Agreement or the US Brands Commercial Agreement, if, following the Separation Date:
(a) any property, right or asset:
Buyer (i) forming part pending Buyer obtaining the requisite telecommunications regulatory authorizations from State and Federal regulatory agencies and/or consent of State and Federal regulatory agencies to the Sandoz Business (other than any property, right transfer of such Purchased Assets or asset expressly excluded under this Agreement or any Ancillary Agreement) has not and should have been transferred to Sandoz, or to another member of the Sandoz Group, pursuant to this Agreement or any Ancillary Agreement or otherwise; or
(ii) if an attempted assignment of any Contract or Real Property Lease, without the consent of any other Person that is a Sandoz Transferring Asset party thereto, would constitute a breach thereof or in any way negatively affect the rights of Buyer (unless the restrictions on assignment would be rendered ineffective pursuant to sections 9-406 through 9-409, inclusive, of the Uniform Commercial Code, as amended), as the assignee of such Contract or Real Property Lease, as the case may be, thereunder (or, in the event of an Alternative Transaction, if the acquisition by Buyer of any Shares or other equity interests of Company or one or more subsidiaries is Exclusively Related not consummated because certain Transferred Assets cannot be owned by Buyer or by entities whose Shares or other equity interests are owned by Buyer), Sellers shall retain title to such assets (the “Non-Transferred Assets”) and any Assumed Liabilities related to such assets, pending receipt of such authorizations and consents, and shall hold and treat such assets in accordance with the terms set forth in the Management Services Agreement dated May 13, 2011 between Buyer and Sellers, including certain Sellers serving as Managers. Upon receipt from time to time of any such necessary consents, such Non-Transferred Assets as are subject to the Sandoz Business consents so received, shall be transferred to Buyer pursuant to subsection 2.5(b) below, and Buyer shall assume all related Assumed Liabilities (or, in the event of an Alternative Transaction, the applicable Shares or other than equity interests of the Company or one or more of its subsidiaries shall be transferred to Buyer or otherwise caused to be acquired by Buyer by direct purchase of such equity interests, or pursuant to the terms of one or more mergers, consolidations, share exchanges, recapitalizations, reorganizations or other similar transactions, with or without redomestication or conversion of the Company or one or more of its subsidiaries into any property, right or asset expressly excluded form of entity under the laws of any state).
(b) Subject to and in accordance with the terms and conditions of this Agreement or any Ancillary Agreement and excluding any Novartis Retained Asset) has not been transferred to Sandozwithout limiting the obligations of the parties, it is hereby acknowledged, confirmed and agreed by the parties that each of the parties will execute, deliver, or cause to another member be delivered the Non-Transferred Asset Documents upon receipt of the Sandoz Groupconsents and approvals, pursuant if any, referred to this Agreement or any Ancillary Agreement or otherwise, or is held by a member of the Novartis Group after the Separation Date, then:
(Ain clauses 2.5(a)(i) the Parties shall use their respective Commercially Reasonable Efforts to procure that the holder and 2.5(a)(ii) above. Upon delivery of such propertyduly executed Non-Transferred Asset Documents, right or asset the requirements of Article XI below shall be deemed to be a Sandoz Asset Transferor for the purposes of this Agreement; and
(B) Sandoz shall nominate a member of the Sandoz Group (acceptable to Novartis, acting reasonably) satisfied as the Sandoz Asset Transferee for if such property, right or asset and such member of the Sandoz Group shall be deemed to be a Sandoz Asset Transferee for the purposes of this Agreement, then Novartis shall use Commercially Reasonable Efforts to procure that all right, title and interest in such property, right or asset (and any related liability which is a Sandoz Liability) is assigned and transferred to Sandoz (or another member of the Sandoz Group as Sandoz has nominated (in accordance with Clause 20.1(a)(ii)(B) above) or may nominate that is reasonably acceptable to Novartis) as soon as practicable and at no cost to Sandoz (or any member of its Group), and such member of the Sandoz Group shall accept such transfer or assume such assignment in accordance with the terms of this Agreement. Pending such transfer and subject to Applicable Law, Novartis shall cause such property, right or asset to be held on trust and provide to Sandoz or its designated assignee all of the benefits associated with such property, right or asset (in accordance with Schedule 1 (Transferring Contracts and Non-Transferring Tenders), if applicable); or
(b) any property, right or asset:
(i) forming part of the Novartis Business (other than any property, right or asset expressly excluded under this Agreement or any Ancillary Agreement) has not Transferred Assets and should have related Assumed Liabilities had been transferred to Novartis, or to another member of and assumed by Buyer at the Novartis Group, pursuant to this Agreement or any Ancillary Agreement or otherwise; or
(ii) that is a Novartis Retained Asset or is Exclusively Related to the Novartis Business (other than any property, right or asset expressly excluded under this Agreement or any Ancillary Agreement and excluding any Sandoz Transferring Assets) that has not been transferred to Novartis, or to another member of the Novartis Group, pursuant to this Agreement or any Ancillary Agreement or otherwise, or is held by a member of the Sandoz Group after the Separation Date:
(A) the Parties shall use their respective Commercially Reasonable Efforts to procure that the holder of such property, right or asset shall be deemed to be a Novartis Asset Transferor for the purposes of this Agreement;
(B) Novartis shall nominate a member of the Novartis Group (acceptable to Sandoz, acting reasonably) as the Novartis Asset Transferee for such property, right or asset and such member of the Novartis Group shall be deemed to be a Novartis Asset Transferee for the purposes of this Agreement, then Sandoz shall use Commercially Reasonable Efforts to procure that all right, title and interest in such property, right or asset (and any related liability which is a Novartis Liability) is assigned and transferred to Novartis (or another member of the Novartis Group as Novartis has nominated (in accordance with Clause 20.1(b)(ii)(B) above) or may nominate that is reasonably acceptable to Sandoz) as soon as practicable and at no cost to Novartis (or any member of its Group)Closing, and such member of the Novartis Group shall accept such transfer or assume such assignment in accordance with the terms of this Agreement. Pending such transfer and subject to Applicable Law, Sandoz shall cause such property, right or asset to Purchase Price will not be held on trust and provide to Novartis or its designated assignee all of the benefits associated with such property, right or asset (in accordance with Schedule 1 (Transferring Contracts and affected by Non-Transferring Tenders), if applicable)Transferred Assets.
Appears in 1 contract
Samples: Asset Purchase Agreement (Capital Growth Systems Inc /Fl/)
Non-Transferred Assets. Subject (a) Notwithstanding anything to Clause 9 (Transferring Contracts and Non-Transferring Tenders), Clause 16 (Access to Information; Books and Records), Clause 30.3 (Matters Governed Exclusively by Ancillary Agreements) and Schedule 1 (Transferring Contracts and Non-Transferring Tenders), and except the contrary contained in relation to any Intellectual Property Right (in respect of whichthis Agreement, to the extent relevant, that any Purchased Asset is not capable of being assigned or transferred to Buyer as contemplated by this Agreement without the provisions consent of Clause 20.3 the other party or parties thereto or the issuer thereof or any other third party (Intellectual Property Wrong Pockets) shall applyincluding a Governmental Authority), or if such assignment or transfer, or attempted assignment or transfer, without such consent would constitute a breach thereof by Seller or a violation by Seller of any monies to which Clause 11 (Accounts Payable and Receivable) applies Law or as otherwise expressly provided for in this Agreement, any Ancillary Agreement cause the other party or parties thereto or the US Brands Commercial Agreementissuer thereof to have the right to terminate any such Purchased Asset, if, following the Separation Date:
(a) any property, right or asset:
(i) forming part of the Sandoz Business (other than any property, right or asset expressly excluded under this Agreement shall not constitute an assignment or transfer by Seller to Buyer of any such Purchased Asset or any Ancillary Agreement) has not and should have been transferred to Sandozclaim, right, benefit or obligation thereunder, or any such attempted assignment or transfer, unless any such consent is obtained by Seller at or prior to another member the date of the Sandoz Group, pursuant to this Agreement such attempted assignment or transfer (any Ancillary Agreement or otherwise; or
(ii) such Purchased Asset that is a Sandoz Transferring Asset or is Exclusively Related not capable of being assigned by Seller to Buyer at the Sandoz Business (other than any propertyClosing, right or asset expressly excluded under as contemplated by this Agreement or any Ancillary Agreement and excluding any Novartis Retained Asset) has not been transferred to Sandoz, or to another member of the Sandoz Group, pursuant to this Agreement or any Ancillary Agreement or otherwise, or is held by a member of the Novartis Group after the Separation Date, then:
(A) the Parties shall use their respective Commercially Reasonable Efforts to procure that the holder of such property, right or asset shall be deemed to be a Sandoz Asset Transferor for the purposes of this Agreement; and
(B) Sandoz shall nominate a member of the Sandoz Group (acceptable to Novartis, acting reasonably) as the Sandoz Asset Transferee for such property, right or asset and such member of the Sandoz Group shall be deemed to be a Sandoz Asset Transferee for the purposes of this Agreement, then Novartis shall use Commercially Reasonable Efforts to procure that all right, title and interest in such property, right or asset (and any related liability which is a Sandoz Liability) is assigned and transferred to Sandoz (or another member of the Sandoz Group as Sandoz has nominated (in accordance with Clause 20.1(a)(ii)(B) above) or may nominate that is reasonably acceptable to Novartis) as soon as practicable and at no cost to Sandoz (or any member of its GroupSection 1.5(a), and such member of the Sandoz Group shall accept such transfer or assume such assignment in accordance with the terms of this Agreement. Pending such transfer and subject to Applicable Law, Novartis shall cause such property, right or asset to be held on trust and provide to Sandoz or its designated assignee all of the benefits associated with such property, right or asset (in accordance with Schedule 1 (Transferring Contracts and Non-Transferring Tendersa “Non- Transferred Asset”), if applicable); or.
(b) From and after the date of this Agreement through the Closing Date, Seller shall use commercially reasonable efforts to, as expeditiously as practicable, obtain the consents, waivers and approvals necessary for Seller to assign or transfer each Non-Transferred Asset to Buyer free and clear of all Liens, and Buyer shall reasonably cooperate with Seller in connection therewith (provided, that neither Seller nor Buyer nor any propertyof their respective Affiliates shall be required to commence or participate in any litigation, right offer or asset:grant any material accommodation or undertake any material obligation or Liability (financial or otherwise) to any third party to obtain any such consent, waiver or approval) and the Parties shall promptly execute and deliver all documents reasonably necessary to complete the assignment or transfer by Seller of such Non-Transferred Assets to Buyer. Seller shall keep Buyer reasonably apprised of the status of the foregoing.
(c) From and after the Closing Date, until the earlier of the (i) forming part of time that the Novartis Business (other than any propertyrequired consent, right or asset expressly excluded under this Agreement or any Ancillary Agreement) has not and should have been transferred to Novartiswaiver, or to another member of the Novartis Group, pursuant to this Agreement approval is obtained or any Ancillary Agreement or otherwise; or
(ii) that is a Novartis Retained Asset or is Exclusively Related to the Novartis Business (other than any property, right or asset expressly excluded under this Agreement or any Ancillary Agreement and excluding any Sandoz Transferring Assets) that has not been transferred to Novartis, or to another member expiration date of the Novartis Groupthen current term of any Purchased Asset, pursuant with respect to this Agreement or any Ancillary Agreement or otherwise, or is held by a member of the Sandoz Group after the Separation Date:
(A) the Parties shall use their respective Commercially Reasonable Efforts to procure that the holder of such property, right or asset shall be deemed to be a Novartis Asset Transferor for the purposes of this Agreement;
(B) Novartis shall nominate a member of the Novartis Group (acceptable to Sandoz, acting reasonably) as the Novartis Asset Transferee for such property, right or asset and such member of the Novartis Group shall be deemed to be a Novartis Asset Transferee for the purposes of this Agreement, then Sandoz shall use Commercially Reasonable Efforts to procure that all right, title and interest in such property, right or asset (and any related liability which is a Novartis Liability) is assigned and transferred to Novartis (or another member of the Novartis Group as Novartis has nominated (in accordance with Clause 20.1(b)(ii)(B) above) or may nominate that is reasonably acceptable to Sandoz) as soon as practicable and at no cost to Novartis (or any member of its Group), and such member of the Novartis Group shall accept such transfer or assume such assignment in accordance with the terms of this Agreement. Pending such transfer and subject to Applicable Law, Sandoz shall cause such property, right or asset to be held on trust and provide to Novartis or its designated assignee all of the benefits associated with such property, right or asset (in accordance with Schedule 1 (Transferring Contracts and Non-Transferring Tenders), if applicable).Transferred Asset for which any required
Appears in 1 contract
Samples: Asset Purchase and Sale Agreement (Pathward Financial, Inc.)
Non-Transferred Assets. Subject to Clause 9 (Transferring Contracts and Non-Transferring Tenders), Clause 16 (Access to Information; Books and Records), Clause 30.3 (Matters Governed Exclusively by Ancillary Agreements) and Schedule 1 (Transferring Contracts and Non-Transferring Tenders)Notwithstanding the foregoing provisions of ARTICLE II, and except in relation subject to any Intellectual Property Right (in respect of whichSECTION 6.2 and the Operating Agreement, the parties agree that, to the extent relevant, that as of the provisions of Clause 20.3 (Intellectual Property Wrong Pockets) shall apply), any monies to which Clause 11 (Accounts Payable and Receivable) applies or as otherwise expressly provided for in this Agreement, any Ancillary Agreement or the US Brands Commercial Agreement, if, following the Separation Date:
(a) any property, right or asset:
Closing (i) forming part certain of the Sandoz Business Acquired Assets cannot be transferred to Buyer pending the issuance of further FCC Consents or State PUC Consents or (other than ii) certain of the Acquired Assets are associated with one or more interconnection agreements, for which the ILEC's consent is required and which are reasonably necessary, in Buyer's sole discretion, to the operation of the Acquired Assets ("REQUIRED INTERCONNECTION AGREEMENTS") and receipt of any propertyILEC consents or expiration of any notice periods necessary to assign such Required Interconnection Agreements remains pending as of the Closing, right Sellers shall retain such assets (the "NON-TRANSFERRED ASSETS") pending receipt of such consents or asset expressly excluded under this Agreement or expiration of such notice periods. For the avoidance of doubt, Buyer shall have the right, in its sole discretion, to designate any Ancillary Acquired Asset (including any Required Interconnection Agreement) has not as a Non-Transferred Asset. During the period that the Non-Transferred Assets are held by Sellers, Buyer will provide management services to Sellers pursuant to the Operating Agreement. Upon receipt from time to time of any such necessary consents, such Non-Transferred Assets as are subject to such consents shall be transferred to Buyer and should Buyer will assume all related Assumed Liabilities; and within five (5) Business Days of Buyer's written request, Sellers will deliver a xxxx of sale and the requirements of SECTION 3.1 below shall have been deemed to be satisfied as if such Non-Transferred Assets and related Assumed Liabilities had otherwise been transferred to Sandozand assumed by Buyer at the Closing. With respect to assets that are designated by Buyer as Non-Transferred Assets and which are not subject to obtaining any further consents after the Closing, or such Non-Transferred Assets shall be transferred to another member Buyer and Buyer will assume all related Assumed Liabilities, within five (5) Business Days of Buyer's written request, at which time Sellers will deliver a xxxx of sale and the Sandoz Group, pursuant requirements of SECTION 3.1 below shall have been deemed to this Agreement or any Ancillary Agreement or otherwise; or
(ii) that is a Sandoz Transferring Asset or is Exclusively Related to the Sandoz Business (other than any property, right or asset expressly excluded under this Agreement or any Ancillary Agreement and excluding any Novartis Retained Asset) has not be satisfied as if such Non-Transferred Assets had otherwise been transferred to SandozBuyer at the Closing. In addition, or to another member Non-Transferred Assets shall include all of the Sandoz GroupSeller Marks, pursuant which shall be licensed to this Agreement Buyer upon the Closing as set forth in the Operating Agreement. After the expiration or any Ancillary Agreement or otherwise, or is held by a member termination of the Novartis Group after the Separation Date, then:
(A) the Parties shall use their respective Commercially Reasonable Efforts to procure that the holder of such property, right or asset shall be deemed to be a Sandoz Asset Transferor for the purposes of this Agreement; and
(B) Sandoz shall nominate a member of the Sandoz Group (acceptable to Novartis, acting reasonably) as the Sandoz Asset Transferee for such property, right or asset and such member of the Sandoz Group shall be deemed to be a Sandoz Asset Transferee for the purposes of this Operating Agreement, then Novartis shall use Commercially Reasonable Efforts to procure that upon the written request of Buyer, all right, title and interest in such property, right or asset (and any related liability which is a Sandoz Liability) is assigned and to the Seller Marks shall be transferred to Sandoz (or another member of the Sandoz Group as Sandoz has nominated (and vest in accordance with Clause 20.1(a)(ii)(B) above) or may nominate that is reasonably acceptable to Novartis) as soon as practicable and at no cost to Sandoz (or any member of its Group), and such member of the Sandoz Group shall accept such transfer or assume such assignment in accordance with the terms of this Agreement. Pending such transfer and subject to Applicable Law, Novartis shall cause such property, right or asset to be held on trust and provide to Sandoz or its designated assignee all of the benefits associated with such property, right or asset (in accordance with Schedule 1 (Transferring Contracts and Non-Transferring Tenders), if applicable); or
(b) any property, right or asset:
(i) forming part of the Novartis Business (other than any property, right or asset expressly excluded under this Agreement or any Ancillary Agreement) has not and should have been transferred to Novartis, or to another member of the Novartis Group, pursuant to this Agreement or any Ancillary Agreement or otherwise; or
(ii) that is a Novartis Retained Asset or is Exclusively Related to the Novartis Business (other than any property, right or asset expressly excluded under this Agreement or any Ancillary Agreement and excluding any Sandoz Transferring Assets) that has not been transferred to Novartis, or to another member of the Novartis Group, pursuant to this Agreement or any Ancillary Agreement or otherwise, or is held by a member of the Sandoz Group after the Separation Date:
(A) the Parties shall use their respective Commercially Reasonable Efforts to procure that the holder of such property, right or asset shall be deemed to be a Novartis Asset Transferor for the purposes of this Agreement;
(B) Novartis shall nominate a member of the Novartis Group (acceptable to Sandoz, acting reasonably) as the Novartis Asset Transferee for such property, right or asset and such member of the Novartis Group shall be deemed to be a Novartis Asset Transferee for the purposes of this Agreement, then Sandoz shall use Commercially Reasonable Efforts to procure that all right, title and interest in such property, right or asset (and any related liability which is a Novartis Liability) is assigned and transferred to Novartis (or another member of the Novartis Group as Novartis has nominated (in accordance with Clause 20.1(b)(ii)(B) above) or may nominate that is reasonably acceptable to Sandoz) as soon as practicable and at no cost to Novartis (or any member of its Group), and such member of the Novartis Group shall accept such transfer or assume such assignment in accordance with the terms of this Agreement. Pending such transfer and subject to Applicable Law, Sandoz shall cause such property, right or asset to be held on trust and provide to Novartis or its designated assignee all of the benefits associated with such property, right or asset (in accordance with Schedule 1 (Transferring Contracts and Non-Transferring Tenders), if applicable)Buyer.
Appears in 1 contract
