Treatment of Shared Contracts. (a) Subject to applicable Law and without limiting the generality of the obligations set forth in Section 2.1, unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding described in this Section 2.8 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract or agreement, a portion of which is a Varex Contract, but the remainder of which is a Parent Asset (any such contract or agreement, a “Shared Contract”), shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Effective Time, so that each Party or the member of its Group shall, as of the Effective Time, be entitled to the rights and benefits, and shall assume the related portion of any Liabilities, inuring to its respective businesses; provided, however, that (i) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and (ii) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then the Parties shall, and shall cause each of the members of their respective Groups to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a member of the Varex Group or the Parent Group, as the case may be, to receive the rights and benefits of that portion of each Shared Contract that relates to the Varex Business or the Parent Business, as the case may be (in each case, to the extent so related), as if such Shared Contract had been assigned to a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.8, and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed by a member of the applicable Group pursuant to this Section 2.8. (b) Each of Parent and Varex shall, and shall cause the members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset owned by, and/or a Liability of, as applicable, such Party, or the members of its Group, as applicable, not later than the Effective Time, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law). (c) Nothing in this Section 2.8 shall require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.8.
Appears in 7 contracts
Samples: Separation and Distribution Agreement, Separation and Distribution Agreement, Separation and Distribution Agreement
Treatment of Shared Contracts. (a) Subject to applicable Law and without Without limiting the generality of the obligations set forth in Section 2.1, unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding described in this Section 2.8 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract or agreement, a portion of which 2.2(a):
(i) Any Contract that is a Varex Contract, but the remainder of which is a Parent Asset listed on Schedule 2.2(b) (any such contract or agreementeach, a “Shared Contract”), ) shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after to the Effective Time, Time so that each Party of Trident or Fountain or the member members of its Group shall, their respective Groups as of the Effective Time, Time shall be entitled to the rights and benefits, and shall assume Assume the related portion of any Liabilities, inuring to its their respective businessesBusinesses; provided, however, that (ix) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled, subject to Section 2.2(c)) and (iiy) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then the Parties shall, and shall cause each of the members of their respective Groups Subsidiaries to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a member of the Varex Fountain Group or the Parent Trident Group, as the case may be, to receive the rights and benefits benefit of that portion of each Shared Contract that relates to the Varex Fountain Business or the Parent Trident Retained Business, as the case may be (in each case, to the extent so related), ) as if such Shared Contract had been assigned to (or amended to allow) a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.8, 2.2(b) and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), ) as if such Liabilities had been assumed Assumed by a member of the applicable Group pursuant to this Section 2.82.2(b).
(bii) Each of Parent Trident and Varex Fountain shall, and shall cause the members of its Group to, (iA) treat for all Income Tax purposes the portion of each Shared Contract inuring to its respective businesses Businesses as an Asset Assets owned by, and/or a Liability Liabilities of, as applicable, such Party, or the members of its Group, as applicable, Group not later than the Effective Time, Time and (iiB) neither report nor take any Income Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by a change in applicable LawTax Law or good faith resolution of a Tax Contest relating to Income Taxes).
(ciii) Nothing Neither Party will amend, renew, extend or otherwise modify any Shared Contract without the consent of the other Party to the extent such amendment, renewal, extension or modification would adversely affect such other Party. Notwithstanding anything to the contrary contained in this Section 2.8 2.2(b)(i), upon 90 days’ advance request of Patriot, Trident shall require use its reasonable best efforts to terminate, cancel or otherwise render inapplicable to the Fountain Business any portion of any Shared Contract inuring to the Fountain Business; provided that Trident shall not be required to, and shall not be required to cause any member of any its Group to, so terminate or cancel such Shared Contract prior to the 12 month anniversary of the Fountain Distribution Date or to make any non-de minimis payment payments (except to the extent advanced, assumed Assumed or agreed in advance to be reimbursed by Fountain) other than for fees and disbursements of outside counsel and any other advisors, commit to any third party on behalf of itself or any member of the other Group), incur its Group to assume any non-de minimis obligation material obligations or offer or grant any non-de minimis material concession for the benefit of to obtain any member of any other Group in order to effect any transaction contemplated by this Section 2.8such termination or cancellation.
Appears in 6 contracts
Samples: Separation and Distribution Agreement (Tyco International LTD), Separation and Distribution Agreement (Pentair Inc), Separation and Distribution Agreement (Tyco Flow Control International Ltd.)
Treatment of Shared Contracts. (a) Subject to applicable Law and without Without limiting the generality of the obligations set forth in Section 2.1, unless the Parties otherwise agree or 2.2(b):
(i) Unless the benefits of any contract, agreement, arrangement, commitment or understanding described in this Section 2.8 a Shared Contract are expressly conveyed to the applicable Party (or member of its Group) pursuant to this Agreement or an Ancillary Agreement, (A) any contract or agreement, a portion of which Contract that is a Varex Contract, but the remainder of which is a Parent Asset (any such contract or agreement, a “Shared Contract”), shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended amended, bifurcated, replicated or otherwise modified prior to, on or after the Effective Time, so that each Party or the member members of its Group shall, as of the Effective Time, their respective Groups shall be entitled to the rights and benefits, and shall assume Assume the related portion of any Liabilities, inuring to its their respective businessesBusinesses (each, a “Partial Assignment”); provided, however, that (ix) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract (including any Policy) which is not assignable (or cannot be amendedamended or otherwise modified) by its terms (including any terms imposing consents Consents or conditions on an assignment where such consents Consents or conditions have not been obtained or fulfilled) (including those set forth on Schedule 2.2(d)) or under applicable Law and (iiy) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or otherwise modified or if such assignment or amendment or modification would impair the benefit the parties thereto derive from such Shared Contract, then (A) the Parties shall, and shall cause each of the members of their respective Groups Subsidiaries to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a member of the Varex SpecCo Group, the MatCo Group or the Parent Group, AgCo Group as the case may be, to to, in each case, (I) receive the rights and benefits benefit of that portion of each Shared Contract that relates to the Varex Agriculture Business, the Materials Science Business or the Parent Specialty Products Business, as the case may be (in each case, to the extent so related), ) as if such Shared Contract had been assigned to (or amended or otherwise modified for the benefit of) a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.82.2(d) (including, enforcing on the applicable Group’s behalf any and all of such Group’s rights against such third party under such Shared Contract solely to the extent related to the applicable Group’s respective Business (or applicable portion thereof)) and (II) bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), ) as if such Liabilities had been assumed Assumed by a member of the applicable Group pursuant to this Section 2.82.2(d), including expenses related to enforcing rights under such Shared Contract against the third party counterparty thereto solely to the extent related to the applicable Group’s respective Business (or applicable portion thereof); and indemnifying each other Group against all Indemnifiable Losses to the extent arising out of any actions (or omissions to act) taken by such other Group with respect to such Shared Contract at the direction of such first Party (except to the extent arising out of or related to gross negligence, fraud or willful misconduct by such other Group) (for the avoidance of doubt, in the event that any rights in connection with a Force Majeure Event or similar event are exercised under a Shared Contract, the benefits and burdens with respect to such Shared Contract (as modified by such Force Majeure Event or similar event) shall, if reasonably practicable, be shared proportionally or, if not reasonably practicable, in such other manner as would be most equitable, among the Groups related to such Contract (or in any other manner as may be agreed in good faith by the relevant Parties whose Group is related to such contract), in each case, to the extent so related to the Agriculture Business, the Materials Science Business or the Specialty Products Business) and (B) to the extent that the Parties cannot effect a Partial Assignment in accordance with this Section 2.2(d), or cannot implement the arrangements set forth in clause (A), within 180 days of the MatCo Distribution Date, the Parties shall use commercially reasonable efforts to, if requested by any Party, seek mutually acceptable alternative arrangements for the purpose of allocating rights and obligations to each Group under such Shared Contract reflecting the principles set forth in clause (A) of this provision (an “Acceptable Alternative Arrangement”).
(bii) Each Party shall, and shall cause the other members of Parent its Group to, use its commercially reasonable efforts to obtain the required Consents to complete a Partial Assignment of any Shared Contract as contemplated by this Agreement. Notwithstanding anything herein to the contrary, no Partial Assignment of any Shared Contract or Acceptable Alternative Arrangement shall be completed if it would violate any applicable Law or the rights of any third party to such Shared Contract.
(iii) To the extent permitted by applicable Law, each of SpecCo, MatCo and Varex AgCo shall, and shall cause the members of its respective Group to, (iA) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses Businesses as an Asset Assets owned by, and/or a Liability Liabilities of, as applicable, such Party, or the members of its Group, as applicable, Party not later than the Effective Time, applicable Relevant Time and (iiB) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by a change in applicable LawTax Law or good faith resolution of a Tax Contest relating to income Taxes).
(civ) Nothing in this Section 2.8 shall require any member of any Group With respect to make any non-de minimis payment (except Liabilities pursuant to, under or relating to a Shared Contract to the extent advancedrelating to occurrences from and after the Relevant Time, assumed such Liabilities shall, unless otherwise allocated pursuant to this Agreement or agreed any Ancillary Agreement, be allocated among SpecCo, MatCo and AgCo as follows:
(1) If such Liability is incurred (x) exclusively in advance respect of the Agriculture Business, such Liability shall be allocated to AgCo or its applicable Subsidiary, (y) exclusively in respect of the Materials Science Business, such Liability shall be reimbursed allocated to MatCo or the applicable member of its Group or (z) exclusively in respect of the Specialty Products Business, such Liability shall be allocated to SpecCo or the applicable member of its Group;
(2) If such Liability cannot be so allocated under clause (1) above, such Liability shall be allocated to SpecCo, MatCo or AgCo, as the case may be, based on the relative proportions of total benefit received (over the term of the Shared Contract remaining as of the date of the MatCo Distribution (for apportioning between MatCo, on the one hand, and AgCo and SpecCo on the other hand) or the AgCo Distribution (for apportioning between AgCo and SpecCo)) by the Agriculture Business, the Materials Science Business or the Specialty Products Business, respectively, under the relevant Shared Contract after the Relevant Time; and
(3) Notwithstanding the foregoing in this clause (3), each of AgCo, MatCo or SpecCo shall be responsible for any member and all such Liabilities to the extent arising from its (or its Subsidiary’s) breach after the Relevant Time of the relevant Shared Contract.
(v) None of SpecCo, MatCo, AgCo or any of the members of their respective Group or their Affiliates shall be required to commence any litigation or offer or pay any money or otherwise grant any accommodation (financial or otherwise) to any third party to (x) obtain any new Contract or Partial Assignment with respect to any Shared Contract, as the case may be or (y) obtain any Consent necessary to enter into an Acceptable Alternative Arrangement; provided, however, any Party to which the benefit of a new Contract, Partial Assignment or Acceptable Alternative Arrangement would inure pursuant to this Section 2.2(d) may request that the Party that is allocated such Shared Contract as an Agriculture Asset, Materials Science Asset or Specialty Products Asset commence litigation, which request shall be considered in good faith by such Party; provided, further, that such Party’s good faith determination not to commence litigation shall not in and of itself constitute a breach of this Section 2.2(d)(v), but the foregoing shall not preclude consideration of a Party’s good faith for purposes of determining compliance with Section 2.2(d)(v).
(vi) From and after the Relevant Time, the Party to whose Group a Shared Contract has been allocated shall not (and shall cause the other members of its Group not to), without the consent of the other applicable Party or Parties (such consent not to be unreasonably withheld, conditioned or delayed) (x) waive any rights under such Shared Contract to the extent related to the Business, Assets or Liabilities of such other Party, (y) terminate (or consent to be terminated by the counterparty) such Shared Contract except in connection with (1) the expiration of such Shared Contract in accordance with its terms (it being understood, for the avoidance of doubt, that sending a notice of non-renewal to the counterparty to such Shared Contract in accordance with the terms of such Shared Contract is expressly permitted) or (2) a partial termination of such Shared Contract that would not reasonably be expected to impact any rights under such Shared Contract related to the Business, Assets or Liabilities of such other Party or Parties or any of its or their respective Subsidiaries, or (z) amend, modify or supplement such Shared Contract in a manner material (relative to the existing rights and obligations related to such other Party’s Business, Assets or Liabilities under such Shared Contract) and adverse to the Business, Assets or Liabilities of such other Party or Parties or any of its or their respective Subsidiaries. From and after the MatCo Distribution or AgCo Distribution, as applicable, if a member of a Group (the “Notice Recipient”) receives from a counterparty to a Shared Contract a formal notice of breach of such Shared Contract that would reasonably be expected to impact another Group, the Notice Recipient shall provide written notice to the other Party as soon as reasonably practicable (and in no event later than five (5) Business Days following receipt of such notice) and the Parties shall consult with respect to the actions proposed to be taken regarding the alleged breach. If a Group (the “Notifying Party”) sends to a counterparty to a Shared Contract a formal notice of breach of such Shared Contract that would reasonably be expected to impact another Group, the Notifying Party shall provide written notice to the other Party as soon as reasonably practicable (and in any event no less than five (5) Business Days prior to sending such notice of breach to the counterparty), incur and the Parties shall consult with each other regarding such alleged breach. From and after the MatCo Distribution or the AgCo Distribution, as applicable, no Party shall (and shall cause the other members of its Group not to) breach any non-de minimis obligation Shared Contract to the extent such breach would reasonably be expected to result in a loss of rights, or grant any non-de minimis concession for the benefit acceleration of obligations, of any member of another Party’s Group (or related to its Business, Assets or Liabilities under such Shared Contract) pursuant to (X) such Shared Contract, (Y) any Partial Assignment related to such Shared Contract or (Z) any other Group Contract with the counterparty to such Shared Contract (or any of its Affiliates) in order existence at the time of the applicable MatCo Distribution or AgCo Distribution that contains cross-default or similar provisions related to effect any transaction contemplated by this Section 2.8such Shared Contract.
Appears in 5 contracts
Samples: Separation and Distribution Agreement (Corteva, Inc.), Separation and Distribution Agreement (DowDuPont Inc.), Separation and Distribution Agreement (Dow Inc.)
Treatment of Shared Contracts. (a) Subject to applicable Law and without limiting the generality of the obligations set forth in Section 2.1, unless Unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding Contract described in this Section 2.8 2.3 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract or agreement, in the case of a portion of which is a Varex Shared Contract, but the remainder of which is a Parent Asset Parties shall use commercially reasonable efforts to cause such Shared Contract to be: (any such contract or agreement, a “Shared Contract”), shall be i) assigned in relevant part to the applicable member(s) a member of the applicable Bioverativ Group (or to a member of the Biogen Group if the contracting party is a member of the Bioverativ Group, ) if so assignable; (ii) appropriately amended, or appropriately amended prior to, on or after the Distribution Effective Time; or (iii) replaced or otherwise addressed with suitable arrangements, in each case so that each Party or the member of its Group shall, as of the Effective Time, their respective Subsidiaries shall be entitled to the rights and benefits, benefits and shall assume the related portion of any Liabilities, obligations and Liabilities inuring to its their respective businesses; provided, however, that (i) in no event shall any member of any Group either Party or its respective Subsidiaries be required to assign (or amend) amend any Shared Contract in its entirety or to assign a portion of any Shared Contract which that is not assignable (or cannot be amended) amended by its terms (including any terms imposing consents Consents or conditions on an assignment where such consents Consents or conditions have not been obtained or fulfilled) and (ii) if ). If any Shared Contract cannot be so partially assigned by its terms or otherwiseassigned, or cannot be amended amended, or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared ContractContract and such Shared Contract is not replaced or otherwise addressed with suitable arrangements, then the Parties Biogen and Bioverativ shall, and shall cause each of the members member of their respective Groups to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a member (with the costs and expenses of any such actions following the Varex Group or Distribution to be shared equally between the Parent Group, as Parties): (A) the case may be, to receive the rights and benefits of Assets associated with that portion of each Shared Contract that relates to the Varex Bioverativ Business or the Parent Business, as the case may to be (in each case, to the extent so related), as if such Shared Contract had been assigned to a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.8, and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed enjoyed by a member of the applicable Group pursuant Bioverativ Group; (B) the Liabilities associated with that portion of each Shared Contract that relates to this Section 2.8the Bioverativ Business to be borne by a member of the Bioverativ Group; (C) the Assets associated with that portion of each Shared Contract that relates to the Biogen Retained Business to be enjoyed by a member of the Biogen Group; and (D) the Liabilities associated with that portion of each Shared Contract that relates to the Biogen Retained Business to be borne by a member of the Biogen Group.
(b) Except for payments required in accordance with the performance of the applicable Shared Contract, nothing in this Section 2.3 shall obligate either Party or any of member of its Group to make any payment, incur any Liability or offer or grant any accommodation for the benefit of the other Party or any member of the other Party’s Group, in each case, in order to effect any transaction (other than the pass-through of rewards and burdens of the applicable portions of the Shared Contracts in accordance with this Section 2.3) (except to the extent advanced, assumed or agreed in advance to be reimbursed by the other Party or any member of the other Party’s Group).
(c) Each of Parent Biogen and Varex Bioverativ shall, and shall cause the members of its Group to, (iA) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses Businesses as an Asset Assets owned by, and/or a Liability Liabilities of, as applicable, such Party, or Party as of the members of its Group, as applicable, not later than the Distribution Effective Time, Time and (iiB) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable LawTax Law or good faith resolution of a Tax Contest).
(c) Nothing in this Section 2.8 shall require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.8.
Appears in 5 contracts
Samples: Separation Agreement, Separation Agreement (Bioverativ Inc.), Separation Agreement (Biogen Inc.)
Treatment of Shared Contracts. (a) Subject to applicable Law and without Without limiting the generality of the obligations set forth in Section 2.1, unless Sections 2.2(a) and (b):
(a) Unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding Contract described in this Section 2.8 2.3 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract or agreement, a portion of which Contract that is a Varex Contract, but the remainder of which is a Parent Asset listed on Schedule 2.3(a) (any such contract or agreement, a “Shared Contract”), shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Effective Separation Time, so that each Party or the member members of its Group shall, their respective Groups as of the Effective Time, Separation Time shall be entitled to the rights and benefits, and shall assume Assume the related portion of any Liabilities, inuring to its their respective businessesBusinesses; provided, however, that (ix) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) , subject to Section 2.2(e)), and (iiy) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or has not for any other reason been assigned or amended, or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then (A) at the Parties reasonable request of the Party (or the member of such Party’s Group) to which the benefit of such Shared Contract inures in part, the Party for which such Shared Contract is, as applicable, an Air Products Retained Asset or Versum Asset shall, and shall cause each of its respective Subsidiaries to, for a period ending not later than six (6) months after the members Distribution Date (unless the term of their respective Groups toShared Contract ends at a later date, in which case for a period ending on such date), take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a such member of the Varex Versum Group or the Parent Air Products Group, as the case may be, to receive the rights and benefits benefit of that portion of each Shared Contract that relates to the Varex Versum Business or the Parent Air Products Retained Business, as the case may be (in each case, to the extent so related), ) as if such Shared Contract had been assigned to (or amended to allow such assignment) a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.8, 2.3 and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), ) as if such Liabilities had been assumed Assumed by a member of the applicable Group pursuant to this Section 2.82.3; provided that the Party for which such Shared Contract is an Air Products Retained Asset or a Versum Asset, as applicable, shall be indemnified for all Indemnifiable Losses or other Liabilities arising out of any actions (or omissions to act) of such retaining Party taken at the direction of the other Party (or relevant member of its Group) in connection with and relating to such Shared Contract, as the case may be, and (B) the Party to which the benefit of such Shared Contract inures in part shall use commercially reasonable efforts to enter into a separate contract pursuant to which it procures such rights and obligations as are necessary such that it no longer needs to avail itself of the arrangements provided pursuant to this Section 2.3(a); provided that the Party for which such Shared Contract is, as applicable, an Air Products Retained Asset or Versum Asset, and such Party’s applicable Subsidiaries shall not be liable for any actions or omissions taken in accordance with clause (y) of this Section 2.3(a).
(b) Each of Parent Air Products and Varex Versum shall, and shall cause the members of its Group to, (iA) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses Businesses as an Asset Assets owned by, and/or a Liability Liabilities of, as applicable, such Party, or Party as of the members of its Group, as applicable, not later than the Effective Time, Separation Time and (iiB) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable LawTax Law or good faith resolution of a Tax Contest).
(c) Nothing in this Section 2.8 shall require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.8.
Appears in 5 contracts
Samples: Separation Agreement (Versum Materials, Inc.), Separation Agreement (Versum Materials, Inc.), Separation Agreement (Versum Materials, LLC)
Treatment of Shared Contracts. (a) Subject to applicable Law and without limiting the generality of the obligations set forth in Section 2.1, unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding described in this Section 2.8 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract or agreementContract, a portion of which is a Varex SpinCo Contract, but the remainder of which is a Parent Asset (any such contract or agreementContract, a “Shared Contract”), shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on at or after the Effective Time, so that each Party or the member of its Group shall, as of the Effective Time, be entitled to the rights and benefits, and shall assume the related portion of any Liabilities, inuring to its respective businesses; provided, however, that (i) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and (ii) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then the Parties shall, and shall cause each of the members of their respective Groups to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a member of the Varex SpinCo Group or the Parent Group, as the case may be, to receive the rights and benefits of that portion of each Shared Contract that relates to the Varex SpinCo Business or the Parent Business, as the case may be (in each case, to the extent so related), as if such Shared Contract had been assigned to a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.8, and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed by a member of the applicable Group pursuant to this Section 2.8.
(b) Each of Parent and Varex SpinCo shall, and shall cause the members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset owned by, and/or a Liability of, as applicable, such Party, or the members of its Group, as applicable, not later than the Effective Time, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law).
(c) Nothing in this Section 2.8 shall require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.8.
Appears in 5 contracts
Samples: Separation and Distribution Agreement, Separation and Distribution Agreement (Equitrans Midstream Corp), Separation and Distribution Agreement (EQT Corp)
Treatment of Shared Contracts. (a) Subject to applicable Applicable Law and without limiting the generality of the obligations set forth in Section 2.1Sections 2.01 and 2.02, unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding Contract described in this Section 2.8 2.08 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract Contract or agreement, a portion of which thereof that is a Varex Transferred Contract, but the remainder of which is a Parent an Excluded Asset (any such contract or agreementContract, a “Shared Contract”), shall be assigned or transferred in relevant part to the applicable member(s) of the applicable Group, if so assignableassignable or transferrable, or appropriately amended prior to, on or after the Effective Time, so that each Party or the member of its Group shall, as of the Effective Time, be entitled to the rights and benefits, and shall assume the related portion of any Liabilities, inuring to its respective businesses; provided, however, that (i) in no event shall any member of any Group be required to assign or transfer (or amend) any Shared Contract in its entirety or to assign or transfer a portion of any Shared Contract which that is not assignable or transferrable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment or transfer where such consents or conditions have not been obtained or fulfilled) and (ii) if any Shared Contract cannot be so partially assigned or transferred by its terms or otherwise, or cannot be amended or if such assignment or transfer or amendment would impair the benefit the parties thereto derive from such Shared Contract, then the Parties shall, and shall cause each of the members of their respective Groups to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a member of the Varex Newmark Group or the Parent BGC Group, as the case may be, to receive the rights and benefits of that portion of each Shared Contract that relates to the Varex Transferred Business or the Parent Retained Business, as the case may be (in each case, to the extent so related), as if such Shared Contract had been assigned or transferred to a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contractamended) pursuant to this Section 2.82.08, and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed by a member of the applicable Group pursuant to this Section 2.82.08.
(b) Each of Parent the BGC Entities and Varex the Newmark Entities shall, and shall cause the members of its Group to, except to the extent otherwise required by applicable Law, (i) treat for all U.S. federal (and applicable state and local) income Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset Assets owned by, and/or a Liability Liabilities of, as applicable, such Party, or the members of its Group, as applicable, not later than the Effective Time, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law)treatment.
(c) Nothing in this Section 2.8 2.08 shall require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.82.08.
Appears in 5 contracts
Samples: Separation and Distribution Agreement (BGC Partners, Inc.), Separation and Distribution Agreement (BGC Partners, Inc.), Separation and Distribution Agreement (Newmark Group, Inc.)
Treatment of Shared Contracts. (a) Subject to applicable Law and without limiting the generality of the obligations set forth in Section 2.1, unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding described in this Section 2.8 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract or agreement, a portion of which is a Varex ContractGCP Asset, but the remainder of which is a Parent Grace Asset (any such contract or agreement, a “Shared Contract”), shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Effective Time, so that each Party or the member of its Group shall, as of the Effective Time, be entitled to the rights and benefits, and shall assume the related portion of any Liabilities, inuring to its respective businesses; provided, however, that (i) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and (ii) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then the Parties shall, and shall cause each of the members of their respective Groups to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a member of the Varex GCP Group or the Parent Grace Group, as the case may be, to receive the rights and benefits of that portion of each Shared Contract that relates to the Varex GCP Business or the Parent Grace Business, as the case may be (in each case, to the extent so related), as if such Shared Contract had been assigned to (or amended to allow) a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.8, and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed by a member of the applicable Group pursuant to this Section 2.8.
(b) Each of Parent Grace and Varex GCP shall, and shall cause the members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset Assets owned by, and/or a Liability Liabilities of, as applicable, such Party, or the members of its Group, as applicable, not later than the Effective Timeeffective time of the Internal Distribution, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law).
(c) Nothing in this Section 2.8 shall require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.8.
Appears in 5 contracts
Samples: Separation and Distribution Agreement (W R Grace & Co), Separation and Distribution Agreement (GCP Applied Technologies Inc.), Separation and Distribution Agreement (GCP Applied Technologies Inc.)
Treatment of Shared Contracts. (a) Subject to applicable Law and without limiting the generality of the obligations set forth in Section 2.1, unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding described in this Section 2.8 2.9 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract or agreement, a portion of which is a Varex SpinCo Contract, but the remainder of which is a Parent KAR Asset (any such contract or agreement, a “Shared Contract”), shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Effective Time, so that each Party or the member of its Group shall, as of the Effective TimeTime be retained by or assigned to, be entitled to as applicable, KAR or another member of the rights and benefitsKAR Group, as determined in KAR’s sole discretion, and the Parties shall assume agree to mutually satisfactory allocation of the related portion of any Liabilitiesrights, inuring to its respective businessesbenefits and Liabilities under such Shared Contracts under the Transition Services Agreement or another agreement or arrangement, as applicable; provided, however, that (i) in no event shall any member of any either Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which that is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and (ii) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then the Parties shall, and shall cause each of the members of their respective Groups to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a member of the Varex KAR Group or the Parent Group, as the case may be, to receive the rights and benefits of that portion of each Shared Contract that relates to the Varex Business or the Parent Business, as the case may be (in each case, to the extent so related)Contract, as if such Shared Contract had been assigned to (or amended to allow) a member of the applicable KAR Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.82.9, and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed by a member of the applicable KAR Group pursuant to this Section 2.82.9.
(b) Notwithstanding the foregoing, each of the Shared Contracts set forth on Schedule 2.9(b) shall be assigned in whole or in part to SpinCo.
(c) Each of Parent KAR and Varex SpinCo shall, and shall cause the members of its each such Party’s Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset Assets owned by, and/or a Liability Liabilities of, as applicable, such Party, or the members of its such Party’s Group, as applicable, not later than the Effective Time, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law).
(cd) Nothing in this Section 2.8 2.9 shall require any member of any either Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any the other Group in order to effect any transaction contemplated by this Section 2.82.9.
Appears in 5 contracts
Samples: Separation and Distribution Agreement (KAR Auction Services, Inc.), Separation and Distribution Agreement (IAA, Inc.), Separation and Distribution Agreement (IAA Spinco Inc.)
Treatment of Shared Contracts. (a) Subject to applicable Law and without Without limiting the generality of the obligations set forth in Section 2.1, unless Sections 2.2(a) and (b):
(a) Unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding Contract described in this Section 2.8 2.3 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, and other than as provided by Article VIII, any contract or agreement, a portion of which Contract that is a Varex Contract, but the remainder of which is a Parent Asset listed on Schedule 2.3(a) (any such contract or agreement, a “Shared Contract”), ) shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on at or after the Effective Distribution Time, so that each Party or the member members of its Group shall, their respective Groups as of the Effective Time, Distribution Time shall be entitled to the rights and benefits, and shall assume Assume the related portion of any Liabilities, inuring to its their respective businessesBusinesses; provided, however, that (ix) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) , subject to Section 2.2(d)), and (iiy) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or has not for any other reason been assigned or amended, or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then (A) at the Parties reasonable request of the Party (or the member of such Party’s Group) to which the benefit of such Shared Contract inures in part, the Party for which such Shared Contract is, as applicable, a Ligand Retained Asset or OmniAb Asset shall, and shall cause each of its respective Subsidiaries to, for a period ending not later than six (6) months after the members Distribution Date (unless the term of their respective Groups toa Shared Contract (excluding any extensions thereof) ends at a later date, in which case for a period ending on such date), take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a such member of the Varex OmniAb Group or the Parent Ligand Group, as the case may be, to receive the rights and benefits benefit of that portion of each Shared Contract that relates to the Varex OmniAb Business or the Parent Ligand Retained Business, as the case may be (in each case, to the extent so related), ) as if such Shared Contract had been assigned to (or amended to allow) a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.8, 2.3 and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), ) as if such Liabilities had been assumed Assumed by a member of the applicable Group pursuant to this Section 2.82.3; provided that the Party for which such Shared Contract is a Ligand Retained Asset or an OmniAb Asset, as applicable, shall be indemnified for all Indemnifiable Losses or other Liabilities arising out of any actions (or omissions to act) of such retaining Party taken at the direction of the other Party (or relevant member of its Group) in connection with and relating to such Shared Contract, as the case may be, and (B) the Party to which the benefit of such Shared Contract inures in part shall use commercially reasonable efforts to enter into a separate contract pursuant to which it procures such rights and obligations as are necessary such that it no longer needs to avail itself of the arrangements provided pursuant to this Section 2.3(a); provided that, the Party for which such Shared Contract is, as applicable, a Ligand Retained Asset or OmniAb Asset, any such Party’s applicable Subsidiaries shall not be liable for any actions or omissions taken in accordance with clause (y) of this Section 2.3(a).
(b) Each Unless the Parties otherwise agree, each of Parent Ligand and Varex OmniAb shall, and shall cause the members of its Group to, (iA) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses Businesses as an Asset Assets owned by, and/or a Liability Liabilities of, as applicable, such Party, or Party as of the members of its Group, as applicable, not later than the Effective Time, Distribution Time and (iiB) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable LawLaw or good faith resolution of a Tax Contest).
(c) Nothing in this Section 2.8 shall require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.8.
Appears in 4 contracts
Samples: Separation and Distribution Agreement (Ligand Pharmaceuticals Inc), Merger Agreement (Avista Public Acquisition Corp. II), Separation and Distribution Agreement (Avista Public Acquisition Corp. II)
Treatment of Shared Contracts. (a) Subject to applicable Law and without Without limiting the generality of the obligations set forth in Section 2.1, unless 2.2(a):
(i) Unless the Parties otherwise agree or to the extent the benefits or obligations of any contract, agreement, arrangement, commitment or understanding Contract described in this Section 2.8 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement (or are otherwise expressly the subject of any Ancillary Agreement), any contract or agreement, a portion of which Contract that is a Varex Contract, but the remainder of which is a Parent Asset listed on Schedule 2.2(b) (any such contract or agreementeach, a “Shared Contract”), ) shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after to the Effective Time, effective time of this Agreement so that each Party of Tyco or ADT NA or the member members of its Group shalltheir respective Groups (for the avoidance of doubt, including, with respect to Tyco, members of the Flow Control Group) as of the Effective Time, effective time of this Agreement shall be entitled to the rights and benefits, and shall assume Assume the related portion of any Liabilities, inuring to its their respective businessesBusinesses; provided, however, that (ix) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled, subject to Section 2.2(c)) and (iiy) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then the Parties shall, and shall cause each of the members of their respective Groups Subsidiaries to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a member of the Varex ADT North American R/SB Group or the Parent Tyco Group, as the case may be, to receive the rights and benefits benefit of that portion of each Shared Contract that relates to the Varex ADT North American R/SB Business or the Parent Tyco Retained Business, as the case may be (in each case, to the extent so related), ) as if such Shared Contract had been assigned to (or amended to allow) a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.8, 2.2(b) and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), ) as if such Liabilities had been assumed Assumed by a member of the applicable Group pursuant to this Section 2.82.2(b).
(bii) Each of Parent Tyco and Varex ADT NA shall, and shall cause the members of its Group to, (i) treat for all Tax purposes of this Agreement the portion of each Shared Contract inuring to its respective businesses Businesses as an Asset Assets owned by, and/or a Liability Liabilities of, as applicable, such Party, or the members of its Group, as applicable, Group not later than the Effective Time, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law)effective time of this Agreement.
(c) Nothing in this Section 2.8 shall require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.8.
Appears in 4 contracts
Samples: Separation and Distribution Agreement (ADT, Inc.), Separation and Distribution Agreement (ADT, Inc.), Separation and Distribution Agreement (ADT Corp)
Treatment of Shared Contracts. (a) Subject to applicable Law and without Without limiting the generality of the obligations set forth in Section 2.1, unless 2.2(a) and 2.2(b):
(i) Unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding Contract described in this Section 2.8 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, (A) any contract Contract that is (1) listed on Schedule 2.2(c), (2) a Tyco Retained Asset but inures in part to the benefit or agreementburden of any member of the Healthcare Group or the Electronics Group, as the case may be, (3) a portion Healthcare Asset but inures in part to the benefit or burden of which is a Varex Contractany member of the Tyco Group or the Electronics Group, as the case may be or (4) an Electronics Asset but inures in part to the remainder benefit or burden of which is a Parent Asset any member of the Tyco Group or the Healthcare Group, as the case may be (any such contract or agreementeach, a “Shared Contract”), shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Effective Time, so that each Party or the member members of its Group shall, as of the Effective Time, their respective Groups shall be entitled to the rights and benefits, and shall assume Assume the related portion of any Liabilities, inuring to its their respective businessesBusinesses; provided, however, that (ix) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract (including any Policy) which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and (iiy) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then the Parties shall, and shall cause each of the members of their respective Groups Subsidiaries to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a member of the Varex Healthcare Group, the Electronics Group or the Parent Tyco Group, as the case may be, to receive the rights and benefits benefit of that portion of each Shared Contract that relates to the Varex Healthcare Business, the Electronics Business or the Parent Tyco Retained Business, as the case may be (in each case, to the extent so related), ) as if such Shared Contract had been assigned to (or amended to allow) a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.8, 2.2 and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), ) as if such Liabilities had been assumed Assumed by a member of the applicable Group pursuant to this Section 2.82.2.
(bii) Each of Parent Tyco, Healthcare and Varex Electronics shall, and shall cause the members of its Group to, (iA) treat for all Income Tax purposes the portion of each Shared Contract inuring to its respective businesses Businesses as an Asset Assets owned by, and/or a Liability Liabilities of, as applicable, such Party, or the members of its Group, as applicable, Party not later than the Effective Time, applicable Relevant Time and (iiB) neither report nor take any Income Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by a change in applicable LawTax Law or good faith resolution of a Tax Contest relating to Income Taxes).
(ciii) Nothing in this Section 2.8 2.2(c) shall require any member of any Group to make any non-de minimis material payment (except to the extent advanced, assumed Assumed or agreed in advance to be reimbursed by any member of the other GroupGroup or as otherwise provided on Schedule 1.1(14)(i)), incur any non-de minimis material obligation or grant any non-de minimis material concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.82.2(c).
Appears in 4 contracts
Samples: Separation and Distribution Agreement (Covidien Ltd.), Separation and Distribution Agreement (Tyco Electronics Ltd.), Separation and Distribution Agreement (Covidien Ltd.)
Treatment of Shared Contracts. (a) Subject to applicable Law and without Without limiting the generality of the obligations set forth in Section 2.1, unless Sections 2.2(a) and (b):
(a) Unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding Contract described in this Section 2.8 2.3 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract or agreement, a portion of which Contract that is a Varex Contract, but the remainder of which is a Parent Asset listed on Schedule 2.3(a) (any such contract or agreement, a “Shared Contract”), ) shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on at or after the Effective Time, so that each Party or the member members of its Group shall, their respective Groups as of the Effective Time, Time shall be entitled to the rights and benefits, and shall assume Assume the related portion of any Liabilities, inuring to its their respective businessesBusinesses; provided, however, that (ix) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract (including any Policy) which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) , subject to Section 2.2(d)), and (iiy) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or has not for any other reason been assigned or amended, or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then (A) at the Parties reasonable request of the Party (or the member of such Party’s Group) to which the benefit of such Shared Contract inures in part, the Party for which such Shared Contract is, as applicable, a Xxxxxxx Retained Asset or Veralto Asset shall, and shall cause each of its respective Subsidiaries to, for a period ending not later than six (6) months after the members Distribution Date (unless the term of their respective Groups toa Shared Contract (excluding any extensions thereof) ends at a later date, in which case for a period ending on such date), take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a such member of the Varex Veralto Group or the Parent Xxxxxxx Group, as the case may be, to receive the rights and benefits benefit of that portion of each Shared Contract that relates to the Varex Veralto Business or the Parent Xxxxxxx Retained Business, as the case may be (in each case, to the extent so related), ) as if such Shared Contract had been assigned to (or amended to allow) a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.8, 2.3 and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), ) as if such Liabilities had been assumed Assumed by a member of the applicable Group pursuant to this Section 2.82.3; provided that the Party for which such Shared Contract is a Xxxxxxx Retained Asset or an Veralto Asset, as applicable, shall be indemnified for all Indemnifiable Losses or other Liabilities arising out of any actions (or omissions to act) of such retaining Party taken at the direction of the other Party (or relevant member of its Group) in connection with and relating to such Shared Contract, as the case may be, and (B) the Party to which the benefit of such Shared Contract inures in part shall use commercially reasonable efforts to enter into a separate contract pursuant to which it procures such rights and obligations as are necessary such that it no longer needs to avail itself of the arrangements provided pursuant to this Section 2.3(a); provided that, the Party for which such Shared Contract is, as applicable, a Xxxxxxx Retained Asset or Veralto Asset, and such Party’s applicable Subsidiaries shall not be liable for any actions or omissions taken in accordance with clause (y) of this Section 2.3(a).
(b) Each Unless otherwise determined by Xxxxxxx in its sole discretion, each of Parent Xxxxxxx and Varex Veralto shall, and shall cause the other members of its Group to, (iA) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses Businesses as an Asset Assets owned by, and/or a Liability Liabilities of, as applicable, such Party, or the members Party as of its Group, as applicable, not later than the Effective Time, Time and (iiB) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable LawLaw or good faith resolution of a Tax Contest).
(c) Nothing in this Section 2.8 shall require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.8.
Appears in 4 contracts
Samples: Separation and Distribution Agreement (Danaher Corp /De/), Separation and Distribution Agreement (Veralto Corp), Separation and Distribution Agreement (Veralto Corp)
Treatment of Shared Contracts. (a) Subject to applicable Law and without limiting the generality of the obligations set forth in Section 2.1, unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding described in this Section 2.8 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract or agreement, a portion of which is a Varex SpinCo Contract, but the remainder of which is a Parent Asset (any such contract or agreement, a “Shared Contract”), shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Effective Time, so that each Party or the member of its Group shall, as of the Effective Time, be entitled to the rights and benefits, and shall assume the related portion of any Liabilities, inuring to its respective businesses; provided, however, that (i) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and (ii) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then the Parties shall, and shall cause each of the members of their respective Groups to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a member of the Varex SpinCo Group or the Parent Group, as the case may be, to receive the rights and benefits of that portion of each Shared Contract that relates to the Varex SpinCo Business or the Parent Business, as the case may be (in each case, to the extent so related), as if such Shared Contract had been assigned to a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.8, and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed by a member of the applicable Group pursuant to this Section 2.8.
(b) Each Except as otherwise required by applicable Law, as determined by Parent in its reasonable discretion, each of Parent and Varex SpinCo shall, and shall cause the members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset owned by, and/or a Liability of, as applicable, such Party, or the members of its Group, as applicable, not later than the Effective TimeTime (or such earlier time as provided under a Transfer Document), and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law)treatment.
(c) Nothing in this Section 2.8 shall require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.8.
Appears in 4 contracts
Samples: Separation and Distribution Agreement, Separation and Distribution Agreement (Knife River Holding Co), Separation and Distribution Agreement (Mdu Resources Group Inc)
Treatment of Shared Contracts. (a) Subject to applicable Law and without limiting the generality of the obligations set forth in Section 2.1, unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding described in this Section 2.8 2.9 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract or agreement, a portion of which is a Varex SpinCo Contract, but the remainder of which is a Parent Ventas Asset (any such contract or agreement, a “Shared Contract”), shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Effective Time, so that each Party or the member of its Group shall, as of the Effective Time, be entitled to the rights and benefits, and shall assume the related portion of any Liabilities, inuring to its respective businesses; provided, however, that (i) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and (ii) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then the Parties shall, and shall cause each of the members of their respective Groups to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a member of the Varex SpinCo Group or the Parent Ventas Group, as the case may be, to receive the rights and benefits of that portion of each Shared Contract that relates to the Varex SpinCo Business or the Parent Ventas Business, as the case may be (in each case, to the extent so related), as if such Shared Contract had been assigned to a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.82.9, and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed by a member of the applicable Group pursuant to this Section 2.82.9.
(b) Each of Parent Ventas and Varex SpinCo shall, and shall cause the members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset Assets owned by, and/or a Liability Liabilities of, as applicable, such Party, or the members of its Group, as applicable, not later than the Effective Time, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law).
(c) Nothing in this Section 2.8 2.9 shall require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.82.9.
Appears in 4 contracts
Samples: Separation and Distribution Agreement (Ventas Inc), Separation and Distribution Agreement (Care Capital Properties, Inc.), Separation and Distribution Agreement (Care Capital Properties, Inc.)
Treatment of Shared Contracts. (a) Subject to applicable Law and without Without limiting the generality of the obligations set forth in Section 2.12.4 and Section 2.5, unless the Parties parties otherwise agree or the benefits of any contractContract or understanding described in this Section 2.10 are expressly conveyed to the applicable party pursuant to an Ancillary Agreement or any other agreement or instrument expressly contemplated by this Agreement or by any Ancillary Agreement, (i) any Contract, agreement, arrangement, commitment or understanding described in this Section 2.8 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract or agreement, a portion of which that is a Varex Contract, but the remainder of which is a Parent Asset (any such contract or agreement, a “Shared Contract”), listed on Schedule 2.10(a) shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Effective Time, so that each Party party or the member members of its respective Group shall, as of the Effective Time, be entitled to the rights and benefits, and shall assume the related portion of any Liabilities, inuring to its respective businesses, in each case, in accordance with the allocation of benefits and burdens set forth on Schedule 2.10(a), and (ii) (A) any Contract or understanding that primarily relates to the SpinCo Business but, prior to the Effective Time, inured in part to the benefit or burden of any member of the RemainCo Group, and (B) any Contract or understanding that primarily relates to the RemainCo Business but, prior to the Effective Time, inured in part to the benefit or burden of any member of the SpinCo Group, shall be assigned in part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Effective Time, so that each party or the members of its respective Group shall, as of the Effective Time, be entitled to the rights and benefits, and shall assume the related portion of any Liabilities, inuring to its respective businesses (any Contract or understanding referred to in clause (i) or (ii) above, a “Shared Contract”); provided, however, that that, in the case of each of clause (i) and (ii), (1) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) ), and (ii2) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then the Parties parties shall, and shall cause each of the members of their respective Groups Subsidiaries to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party party the ability to exercise any applicable rights under such Shared Contract) to cause a member of the Varex RemainCo Group or the Parent SpinCo Group, as the case may be, to receive the rights and benefits of that portion of each Shared Contract that relates to the Varex SpinCo Business or the Parent RemainCo Business, as the case may be (in each case, to the extent so related), as if such Shared Contract had been assigned to a member of the applicable Group (to, appropriately duplicated, novated or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.82.10, and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed by a member of the applicable Group pursuant to this Section 2.82.10.
(b) Each of Parent SpinCo and Varex RemainCo shall, and shall cause the members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset Assets owned by, and/or a Liability Liabilities of, as applicable, such Partyparty, or the members of its GroupSubsidiaries, as applicable, not later than the Effective Time, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law).
(c) Nothing in this Section 2.8 2.10 shall require any member of any Group to make any non-de minimis material payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis material obligation or grant any non-de minimis material concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.82.10.
Appears in 4 contracts
Samples: Separation and Distribution Agreement (Archrock, Inc.), Separation and Distribution Agreement (Exterran Corp), Separation and Distribution Agreement (Exterran Corp)
Treatment of Shared Contracts. (a) Subject to applicable Law and without limiting the generality of the obligations set forth in Section 2.1, unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding described in this Section 2.8 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract or agreement, a portion of which is a Varex an UpstreamCo Contract, but the remainder of which is a Parent Asset (any such contract or agreement, a “Shared Contract”), shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Effective Time, so that each Party or the member of its Group shall, as of the Effective Time, be entitled to the rights and benefits, and shall assume the related portion of any Liabilities, inuring to its respective businesses; provided, however, that (i) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and (ii) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then the Parties shall, and shall cause each of the members of their respective Groups to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a member of the Varex UpstreamCo Group or the Parent Group, as the case may be, to receive the rights and benefits of that portion of each Shared Contract that relates to the Varex UpstreamCo Business or the Parent Business, as the case may be (in each case, to the extent so related), as if such Shared Contract had been assigned to a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.82.8 (or appropriately amended), and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed by a member of the applicable Group pursuant to this Section 2.82.8 (or appropriately amended).
(b) Each of Parent and Varex UpstreamCo shall, and shall cause the members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset Assets owned by, and/or a Liability Liabilities of, as applicable, such Party, or the members of its Group, as applicable, not later than the Effective Time, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law).
(c) Nothing in this Section 2.8 shall require any member of any either Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any the other Group in order to effect any transaction contemplated by this Section 2.8.
Appears in 4 contracts
Samples: Separation and Distribution Agreement, Separation and Distribution Agreement (Alcoa Corp), Separation and Distribution Agreement (Alcoa Upstream Corp)
Treatment of Shared Contracts. (a) Subject to applicable Law and without limiting the generality of the obligations set forth in Section 2.1, unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding described in this Section 2.8 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract or agreement, a portion of which is a Varex SpinCo Contract, but the remainder of which is a Parent Asset (any such contract or agreement, a “Shared Contract”), shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Effective Time, so that each Party or the member of its Group shall, as of the Effective Time, be entitled to the rights and benefits, and shall assume the related portion of any Liabilities, inuring to its respective businesses; provided, however, that (i) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and (ii) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then the Parties shall, and shall cause each of the members of their respective Groups to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a member of the Varex SpinCo Group or the Parent Group, as the case may be, to receive the rights and benefits of that portion of each Shared Contract that relates to the Varex SpinCo Business or the Parent Business, as the case may be (in each case, to the extent so related), as if such Shared Contract had been assigned to a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.8, and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed by a member of the applicable Group pursuant to this Section 2.8.
(b) Each of Parent and Varex SpinCo shall, and shall cause the members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset Assets owned by, and/or a Liability Liabilities of, as applicable, such Party, or the members of its Group, as applicable, not later than the Effective Time, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law).
(c) Nothing in this Section 2.8 shall require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.8.
Appears in 4 contracts
Samples: Separation and Distribution Agreement (Tegna Inc), Separation and Distribution Agreement (Gannett Co., Inc.), Separation and Distribution Agreement (Gannett SpinCo, Inc.)
Treatment of Shared Contracts. (a) Subject to applicable Law and without Without limiting the generality of the obligations set forth in Section 2.1, unless Sections 2.2(a) and (b):
(i) Unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding described in this Section 2.8 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreementagree, any contract that is (1) part of the B2B Assets but inures in whole or agreementin part to the benefit or burden of any member of the OWW Affiliated Group, a portion or (2) part of which is a Varex Contract, the B2C Assets but inures in whole or in part to the remainder benefit or burden of which is a Parent Asset any member of the Travelport Affiliated Group (any such contract or agreementeach, a “Shared Contract”), shall be assigned in relevant whole or in part to the applicable member(s) of the applicable Affiliated Group, if so assignable, or appropriately amended prior to, on or after the Effective Timedate hereof, so that each Party or the member members of its Group shall, as of the Effective Time, their respective Affiliated Groups shall be entitled to the rights and benefits, and shall assume the related portion of any Liabilities, inuring to its their respective businesses; provided, however, that (ix) in no event shall any member of any Affiliated Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and (iiy) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then the Parties shall, and shall cause each of the members of their respective Groups Subsidiaries to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a member of the Varex Group Travelport or the Parent GroupOWW, as the case may be, to receive the rights and benefits benefit of that portion of each Shared Contract that relates to is part of the Varex Business B2B Assets or the Parent BusinessB2C Assets, as the case may be (in each case, to the extent so related), as if such Shared Contract had been assigned to a (or amended to allow) such member of the applicable Affiliated Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.8, 2.2 and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), ) as if such Liabilities had been assumed by a member of the applicable Affiliated Group pursuant to this Section 2.82.2.
(b) Each of Parent and Varex shall, and shall cause the members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset owned by, and/or a Liability of, as applicable, such Party, or the members of its Group, as applicable, not later than the Effective Time, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law).
(c) Nothing in this Section 2.8 2.2(c) shall require any member of any either the Travelport Affiliated Group or the Orbitz Affiliated Group to make any non-de minimis material payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Affiliated Group), incur any non-de minimis material obligation or grant any non-de minimis material concession for the benefit of any member of any the other Affiliated Group in order to effect any transaction contemplated by this Section 2.82.2(c).
Appears in 4 contracts
Samples: Separation Agreement, Separation Agreement (Orbitz Worldwide, Inc.), Separation Agreement (Travelport LTD)
Treatment of Shared Contracts. (a) Subject to applicable Law and except as otherwise provided in any Ancillary Agreement, and without limiting the generality of the obligations set forth in Section 2.11.1, unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding Contract described in this Section 2.8 1.4 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract Contract entered into by a member of the TFMC Group or agreement, the TEN Group with a portion of which third party that is not a Varex ContractTEN Asset, but pursuant to which a member of the remainder TEN Group, as of which is a Parent Asset the Effective Time, has been provided certain revenues or other benefits or incurred any Liability (any such contract or agreementContract, a “Shared Contract”), ) shall not be assigned in relevant part to the applicable member(s) members of the applicable Group, if so assignable, TEN Group or appropriately amended prior to, on or after to give the Effective Time, so that each Party or the member of its Group shall, as relevant members of the Effective Time, be entitled TEN Group any entitlement to the such rights and benefits, and shall assume the related portion of any Liabilities, inuring to its respective businessesbenefits thereunder; provided, however, that (i) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and (ii) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then the Parties shall, and shall cause each of the members of their respective Groups Group to, take such other reasonable and permissible actions (including by providing prompt notice to cause to the other Party with respect to any extent permitted under applicable Law: (i) the relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a member of the Varex TEN Group or the Parent Group, as the case may be, to receive the rights and benefits previously provided in the ordinary course of that portion of each Shared Contract that relates business, consistent with past practice, pursuant to the Varex Business or the Parent Business, as the case may be (in each case, to the extent so related), as if such Shared Contract had been assigned to a Contract; and (ii) the relevant member of the applicable TEN Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.8, and to bear the burden of the corresponding applicable Liabilities (including any Liabilities that may arise by reason previously borne in the ordinary course of business, consistent with past practice, under such arrangement)Shared Contract. Notwithstanding the foregoing, as if such Liabilities had been assumed by a subject to the provisions of Schedule 1.4, no member of the applicable TFMC Group pursuant to shall be required by this Section 2.8.
(b) Each of Parent and Varex shall1.4 to maintain in effect any Shared Contract, and shall cause the members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset owned by, and/or a Liability of, as applicable, such Party, or the members of its Group, as applicable, not later than the Effective Time, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law).
(c) Nothing in this Section 2.8 shall require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any no member of the TEN Group shall have any approval or other Group)rights with respect to any amendment, incur any non-de minimis obligation termination or grant any non-de minimis concession for the benefit other modification of any member of any other Group in order to effect any transaction contemplated by this Section 2.8Shared Contract.
Appears in 4 contracts
Samples: Separation and Distribution Agreement (Technip Energies N.V.), Separation and Distribution Agreement (Technip Energies B.V.), Separation and Distribution Agreement (TechnipFMC PLC)
Treatment of Shared Contracts. (a) Subject to applicable Law and without Without limiting the generality of the obligations set forth in Section 2.1, unless Sections 2.2(a) and (b):
(a) Unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding Contract described in this Section 2.8 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract or agreementContract that is listed on Schedule 2.3(a), a portion of which is a Varex Contract, but the remainder of which is a Parent Asset (any such contract or agreement, a “Shared Contract”), shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Effective Time, so that each Party or the member members of its Group shall, their respective Groups as of the Effective Time, Time shall be entitled to the rights and benefits, and shall assume Assume the related portion of any Liabilities, inuring to its their respective businessesBusinesses; provided, however, that (ix) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract (including any Policy) which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) , subject to Section 2.2(c)), and (iiy) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or has not for any other reason been assigned or amended, or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then (I) at the Parties reasonable request of the Party (or the member of such Party’s Group) to which the benefit of such Shared Contract inures in part, the Party for which such Shared Contract is, as applicable, a Retained Asset or Xxxxxxx Electronics Asset shall, and shall cause each of its respective Subsidiaries to, for a period ending not later than six (6) months after the members Distribution Date (unless the term of their respective Groups toShared Contract ends at a later date, in which case for a period ending on such date), take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a such member of the Varex Xxxxxxx Electronics Group or the Parent Xxxxxxx International Group, as the case may be, to receive the rights and benefits benefit of that portion of each Shared Contract that relates to the Varex Xxxxxxx Electronics Business or the Parent Retained Business, as the case may be (in each case, to the extent so related), ) as if such Shared Contract had been assigned to (or amended to allow) a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.8, 2.3 and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), ) as if such Liabilities had been assumed Assumed by a member of the applicable Group pursuant to this Section 2.82.3 and (II) the Party to which the benefit of such Shared Contract inures in part shall use commercially reasonable efforts to enter into a separate contract pursuant to which it procures such rights and obligations as are necessary such that it no longer needs to avail itself of the arrangements provided pursuant to this Section 2.3(a); provided that, the Party for which such Shared Contract is, as applicable, a Retained Asset or Xxxxxxx Electronics Asset, such Party, and such Party’s applicable Subsidiaries shall not be liable for any actions or omissions taken in accordance with clause (y) of this Section 2.3(a).
(b) Each of Parent Xxxxxxx International and Varex Xxxxxxx Electronics shall, and shall cause the members of its Group to, (iA) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses Businesses as an Asset Assets owned by, and/or a Liability Liabilities of, as applicable, such Party, or the members Party as of its Group, as applicable, not later than the Effective Time, Time and (iiB) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable LawTax Law or good faith resolution of a Tax Contest relating to Taxes).
(c) Nothing in this Section 2.8 shall require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.8.
Appears in 4 contracts
Samples: Separation and Distribution Agreement (Kimball Electronics, Inc.), Separation and Distribution Agreement (Kimball International Inc), Separation and Distribution Agreement (Kimball Electronics, Inc.)
Treatment of Shared Contracts. (a) Subject to applicable Law and without limiting the generality of the obligations set forth in Section 2.1, unless the Parties otherwise agree in writing, the Parties shall, and shall cause the members of their respective Groups to, use their respective reasonable best efforts to work together to partially assign or divide the benefits respective rights and obligations under and in respect of any contract, agreement, arrangement, commitment or understanding described in this Section 2.8 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract or agreement, a portion of which is a Varex each Shared Contract, but the remainder of which is a Parent Asset (any such contract or agreement, a “Shared Contract”), shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Effective Time, so that each Party or the member of its Group shall, as of the Effective Time, be entitled to the rights and benefits, and shall assume the related portion of any Liabilities, inuring to its respective businesses; provided, however, that (i) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and (ii) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then the Parties shall, and shall cause each of the members of their respective Groups to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a member of the Varex WKKC Group or the Parent Kellanova Group, as the case may be, to receive the rights and benefits of that portion of each Shared Contract that relates to the Varex WKKC Business or the Parent Kellanova Business, as the case may be (in each case, to the extent so related), as if such Shared Contract had been assigned to a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.8, and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed by a member of the applicable Group pursuant to this Section 2.8.
(b) Each Except as otherwise required by applicable Law, each of Parent Kellanova and Varex WKKC shall, and shall cause the members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset owned by, and/or or a Liability of, as applicable, such Party, or the members of its Group, as applicable, not later than the Effective Time, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law)treatment.
(c) Nothing in this Section 2.8 shall require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.8.
Appears in 4 contracts
Samples: Separation and Distribution Agreement (Kellanova), Separation and Distribution Agreement (WK Kellogg Co), Separation and Distribution Agreement (WK Kellogg Co)
Treatment of Shared Contracts. (a) Subject to applicable Law and without limiting the generality of the obligations set forth in Section 2.1, unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding described in this Section 2.8 2.9 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract or agreement, a portion of which is a Varex relates to matters that would be the subject of an Xxxx Contract, but the remainder of which is relates to matters that would be the subject of a Parent Asset (any such contract or agreement, including those set forth on Schedule 2.9, a “Shared Contract”), shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Effective Separation Time, so that each Party or the member of its Group shall, as of the Effective Separation Time, be entitled to the rights and benefits, and shall assume the related portion of any Liabilities, inuring to its respective businesses; provided, however, that (i) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and (ii) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then the Parties shall, and shall cause each of the members of their respective Groups to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a member of the Varex Xxxx Group or the Parent Group, as the case may be, to receive the rights and benefits of that portion of each Shared Contract that relates to the Varex Xxxx Business or the Parent Business, as the case may be (in each case, to the extent so related), as if such Shared Contract had been assigned to a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.82.9, and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed by a member of the applicable Group pursuant to this Section 2.82.9.
(b) Each of Parent and Varex Xxxx shall, and shall cause the members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset owned by, and/or a Liability of, as applicable, such Party, or the members of its Group, as applicable, not later than the Effective Separation Time, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law).
(c) Nothing in this Section 2.8 2.9 shall require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.82.9.
Appears in 4 contracts
Samples: Master Separation Agreement, Master Separation Agreement (Netgear, Inc), Master Separation Agreement (Arlo Technologies, Inc.)
Treatment of Shared Contracts. (a) Subject to applicable Law and without limiting the generality of the obligations set forth in Section 2.1, unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding described in this Section 2.8 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract or agreement, a portion of which is a Varex SpinCo Contract, but the remainder of which is a Parent Asset (any such contract or agreement, including those set forth on Schedule 2.8, a “Shared Contract”), shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Effective Time, so that each Party or the member of its Group shall, as of the Effective Time, (i) be entitled to the rights and benefits, and shall (ii) assume the related portion of any Liabilities, inuring to its respective businessesbusinesses and (iii) take any actions set forth on Schedule 2.8 with respect to such Shared Contract; provided, however, that (iA) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and (iiB) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then the Parties shall, and shall cause each of the members of their respective Groups to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a member of the Varex SpinCo Group or the Parent Group, as the case may be, to receive the rights and benefits of that portion of each Shared Contract that relates to the Varex SpinCo Business or the Parent Business, as the case may be (in each case, to the extent so related), as if such Shared Contract had been assigned to a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.8, and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed by a member of the applicable Group pursuant to this Section 2.8.
(b) Each Except as otherwise required by applicable Law, each of Parent and Varex SpinCo shall, and shall cause the members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset owned by, and/or a Liability of, as applicable, such Party, or the members of its Group, as applicable, not later than the Effective TimeTime (and from any earlier time provided for in the Plan of Reorganization), and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law)treatment.
(c) Nothing in this Section 2.8 shall require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.8.
Appears in 4 contracts
Samples: Separation and Distribution Agreement (Vestis Corp), Separation and Distribution Agreement (Aramark), Separation and Distribution Agreement (Vestis Corp)
Treatment of Shared Contracts. (a) Subject to applicable Law and without limiting the generality of the obligations set forth in Section 2.1, unless Unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding Contract described in this Section 2.8 2.3 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract or agreement, in the case of a portion of which is a Varex Shared Contract, but the remainder of which is a Parent Asset Parties shall use commercially reasonable efforts to cause such Shared Contract to be: (any such contract or agreement, a “Shared Contract”), shall be i) assigned in relevant part to the applicable member(s) a member of the applicable Cyclerion Group (or to a member of the Ironwood Group if the contracting party is a member of the Cyclerion Group, ) if so assignable; (ii) appropriately amended, or appropriately amended prior to, on or after the Distribution Effective Time; or (iii) replaced or otherwise addressed with suitable arrangements, in each case so that each Party or the member of its Group shall, as of the Effective Time, respective Subsidiaries shall be entitled to the rights and benefits, benefits and shall assume the related portion of any Liabilities, obligations and Liabilities inuring to its their respective businesses; provided, however, that (i) in no event shall any member of any Group either Party or its respective Subsidiaries be required to assign (or amend) amend any Shared Contract in its entirety or to assign a portion of any Shared Contract which that is not assignable (or cannot be amended) amended by its terms (including any terms imposing consents Consents or conditions on an assignment where such consents Consents or conditions have not been obtained or fulfilled) and (ii) if ). If any Shared Contract cannot be so partially assigned by its terms or otherwiseassigned, or cannot be amended amended, or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared ContractContract and such Shared Contract is not replaced or otherwise addressed with suitable arrangements, then the Parties Ironwood and Cyclerion shall, and shall cause each of the members member of their respective Groups to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a member (with the costs and expenses of any such actions following the Varex Group or Separation to be shared equally between the Parent Group, as Parties): (A) the case may be, to receive the rights and benefits of Assets associated with that portion of each Shared Contract that relates to the Varex Cyclerion Pharmaceutical Business or the Parent Business, as the case may to be (in each case, to the extent so related), as if such Shared Contract had been assigned to a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.8, and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed enjoyed by a member of the applicable Group pursuant Cyclerion Group; (B) the Liabilities associated with that portion of each Shared Contract that relates to this Section 2.8the Cyclerion Pharmaceutical Business to be borne by a member of the Cyclerion Group; (C) the Assets associated with that portion of each Shared Contract that relates to the New Ironwood Pharmaceutical Business to be enjoyed by a member of the Ironwood Group; and (D) the Liabilities associated with that portion of each Shared Contract that relates to the New Ironwood Pharmaceutical Business to be borne by a member of the Ironwood Group.
(b) Except for payments required in accordance with the performance of the applicable Shared Contract, nothing in this Section 2.3 shall obligate either Party or any member of its Group to make any payment, incur any Liability or offer or grant any accommodation for the benefit of the other Party or any member of the other Party’s Group, in each case, in order to effect any transaction (other than the pass-through of rewards and burdens of the applicable portions of the Shared Contracts in accordance with this Section 2.3) (except to the extent advanced, assumed or agreed in advance to be reimbursed by the other Party or any member of the other Party’s Group).
(c) Each of Parent Ironwood and Varex Cyclerion shall, and shall cause the members of its Group to, (iA) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset Assets owned by, and/or a Liability Liabilities of, as applicable, such Party, or Party as of the members of its Group, as applicable, not later than the Distribution Effective Time, Time and (iiB) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by a change in applicable LawTax Law or good faith resolution of a Tax Contest).
(c) Nothing in this Section 2.8 shall require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.8.
Appears in 4 contracts
Samples: Separation Agreement (Ironwood Pharmaceuticals Inc), Separation Agreement (Cyclerion Therapeutics, Inc.), Separation Agreement (Cyclerion Therapeutics, Inc.)
Treatment of Shared Contracts. (a) Subject to applicable Law and without limiting the generality of the obligations set forth in Section 2.1, unless the Parties otherwise agree agree, or the benefits or obligations of any contract, agreement, arrangement, commitment or understanding Contract described in this Section 2.8 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract or agreement(i) Contract, a portion of which is a Varex SpinCo Contract, but and the remainder of which is a Parent YUM Asset or (ii) Contract entered into prior to the Effective Time that relates to the SpinCo Business but is not exclusively related to the SpinCo Business and with respect to which the portion that relates to the SpinCo Business cannot be divided (any such contract or agreementContract, a “Shared Contract”), shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on at or after the Effective Time, so that each Party YUM, SpinCo or the applicable other member of its respective Group shall, as of the Effective Time, be entitled to the rights and benefits, and shall assume the related portion of any Liabilities, inuring to its respective businesses; provided, however, provided that (iA) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) ), and (iiB) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or if such assignment or amendment of such Shared Contract would impair the benefit the parties thereto derive from such Shared Contract, then the Parties shall, and shall cause each of the members of their respective Groups to, take such other reasonable and permissible actions (including by providing prompt written notice to the each other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a member of the Varex SpinCo Group or the Parent YUM Group, as the case may be, to receive the rights and benefits of that portion of each Shared Contract that relates to the Varex SpinCo Business or the Parent YUM Business, as the case may be respectively (in each case, to the extent so related), as if such Shared Contract had been assigned to (or amended to admit) a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.8, and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed by a member of the applicable Group pursuant to this Section 2.8.
(b) Each of Parent YUM and Varex the SpinCo Parties shall, and shall cause the other members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset Assets owned by, and/or a Liability Liabilities of, as applicable, such Party, or the other members of its Group, as applicable, not later than the Effective Time, Time and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law).
(c) Nothing in this Section 2.8 shall require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any the other Group in order to effect any transaction contemplated by this Section 2.8.
Appears in 3 contracts
Samples: Separation and Distribution Agreement (Yum Brands Inc), Separation and Distribution Agreement (Yum China Holdings, Inc.), Separation and Distribution Agreement (Yum China Holdings, Inc.)
Treatment of Shared Contracts. (a) Subject to applicable Law and without limiting the generality of the obligations set forth in Section 2.11.01(c), unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding described in this Section 2.8 1.07 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreementany Transaction Document, any contract or agreementContract, a portion of which is a Varex Fortrea Contract, but the remainder of which is a Parent Labcorp Asset (any such contract or agreementContract, a “Shared Contract”), including those set forth on Schedule 1.07, shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Effective Business Transfer Time, so that each Party or the member of its Group shall, as of the Effective Business Transfer Time, be entitled to the rights and benefits, and shall assume the related portion of any Liabilities, inuring to its respective businesses; provided, however, that (i) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and (ii) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then the Parties shall, and shall cause each of the members of their respective Groups to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a member of the Varex Fortrea Group or the Parent Labcorp Group, as the case may be, to receive the rights and benefits of that portion of each Shared Contract that relates to the Varex Fortrea Business or the Parent Retained Business, as the case may be (in each case, to the extent so related), as if such Shared Contract had been assigned to a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.81.07, and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed by a member of the applicable Group pursuant to this Section 2.81.07.
(b) Each Except as otherwise required by applicable Law, each of Parent Labcorp and Varex Fortrea shall, and shall cause the members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset owned by, and/or a Liability of, as applicable, such Party, or the members of its Group, as applicable, not later than the Effective Business Transfer Time, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law)treatment.
(c) Nothing in this Section 2.8 2.07 shall require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.82.07.
Appears in 3 contracts
Samples: Separation and Distribution Agreement (Laboratory Corp of America Holdings), Separation and Distribution Agreement (Fortrea Holdings Inc.), Separation and Distribution Agreement (Fortrea Holdings Inc.)
Treatment of Shared Contracts. (a) Subject to applicable Law and without limiting the generality of the obligations set forth in Section 2.1, unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding described in this Section 2.8 2.9 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract or agreement, a portion of which is a Varex Contract, but the remainder of which is a Parent Asset agreement set forth on Schedule 2.9(a) (any each such contract or agreement, a “New Parkway Shared Contract”), ) shall not be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, New Parkway Group or appropriately amended prior to, on or after to give the Effective Time, so that each Party or the member of its Group shall, as relevant member(s) of the Effective Time, be entitled New Parkway Group any entitlement to the such rights and benefits, and shall assume the related portion of any Liabilities, inuring to its respective businessesbenefits thereunder; provided, however, that (i) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and (ii) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then the Parties shall, and shall cause each of the members of their respective Groups to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a (i) the relevant member of the Varex New Parkway Group or the Parent Group, as the case may be, to receive the rights and benefits previously provided in the ordinary course of that portion of each Shared Contract that relates to the Varex Business or the Parent Businessbusiness, as the case may be (in each caseconsistent with past practice, to the extent so related), as if New Parkway Business pursuant to such New Parkway Shared Contract had been assigned to a and (ii) the relevant member of the applicable New Parkway Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.8, and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of under such arrangement)New Parkway Shared Contract. Notwithstanding the foregoing, as if such Liabilities had been assumed by a no member of the applicable Cousins Group pursuant to shall be required by this Section 2.82.9 to maintain in effect any New Parkway Shared Contract, and no member of the New Parkway Group shall have any approval or other rights with respect to any amendment, termination or other modification of any New Parkway Shared Contract.
(b) Subject to applicable Law and without limiting the generality of the obligations set forth in Section 2.1, unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding described in this Section 2.9 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contracts and agreements set forth on Schedule 2.9(b) (each such contract or agreement, a “Cousins Shared Contract,” and together with each New Parkway Shared Contract, a “Shared Contract”) shall not be assigned in relevant part to the applicable member(s) of the Cousins Group or amended to give the relevant member(s) of the Cousins Group any entitlement to such rights and benefits thereunder; provided, however, that the Parties shall, and shall cause each of the members of their respective Groups to, take such other reasonable and permissible actions to cause (i) the relevant member of the Cousins Group to receive the rights and benefits previously provided in the ordinary course of business, consistent with past practice, to the Cousins Business pursuant to such Cousins Shared Contract and (ii) the relevant member of the Cousins Group to bear the burden of the corresponding Liabilities under such Cousins Shared Contract. Notwithstanding the foregoing, no member of the New Parkway Group shall be required by this Section 2.9 to maintain in effect any Cousins Shared Contract, and no member of the Cousins Group shall have any approval or other rights with respect to any amendment, termination or other modification of any Cousins Shared Contract.
(c) Each of Parent Cousins and Varex New Parkway shall, and shall cause the members of its respective Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset Assets owned by, and/or a Liability Liabilities of, as applicable, such Party, or the members of its Group, as applicable, not later than the Distribution Effective Time, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law).
(c) Nothing in this Section 2.8 shall require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.8.
Appears in 3 contracts
Samples: Separation, Distribution and Transition Services Agreement (Cousins Properties Inc), Separation, Distribution and Transition Services Agreement (Parkway, Inc.), Separation, Distribution and Transition Services Agreement (Parkway, Inc.)
Treatment of Shared Contracts. (a) Subject to applicable Law and without limiting the generality of the obligations set forth in Section 2.1, unless the Parties otherwise agree agree, or the benefits of any contract, agreement, arrangement, commitment or understanding described in this Section 2.8 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract or agreement, a portion of which is a Varex SpinCo Contract, but the remainder of which is a Parent Asset (any such contract or agreement, a “Shared Contract”), shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on at or after the Effective Time, so that each Party or the member of its Group shall, as of the Effective Time, be entitled to the rights and benefits, benefits and shall assume the related portion of any Liabilities, inuring to its respective businesses; provided, however, that (i) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and (ii) if any Shared Contract cannot be so partially assigned by its terms or otherwise, otherwise or cannot be amended or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then the Parties shall, and shall cause each of the members of their respective Groups to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a member of the Varex SpinCo Group or the Parent Group, as the case may be, to receive the rights and benefits of that portion of each Shared Contract that relates to the Varex SpinCo Business or the Parent Business, as the case may be (in each case, to the extent so related), as if such Shared Contract had been assigned to a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.82.8 (or appropriately amended), and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed by a member of the applicable Group pursuant to this Section 2.82.8 (or appropriately amended).
(b) Each of Parent and Varex SpinCo shall, and shall cause the members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset Assets owned by, and/or a Liability or Liabilities of, as applicable, such Party, or the members of its Group, as applicable, not later than the Effective Time, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless treatment, in each case, except as required by applicable Law).
(c) Nothing in this Section 2.8 shall require any member of any either Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any the other Group in order to effect any transaction contemplated by this Section 2.8.
Appears in 3 contracts
Samples: Separation and Distribution Agreement (International Paper Co /New/), Separation and Distribution Agreement (Sylvamo Corp), Separation and Distribution Agreement (Sylvamo Corp)
Treatment of Shared Contracts. (a) Subject to applicable Law and without limiting the generality of the obligations set forth in Section 2.1, unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding Contract described in this Section 2.8 2.7 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract or agreementContract, a portion of which is a Varex Retained Contract, but the remainder of which is a Parent Asset Transferred Contract (any such contract or agreementContract, a “Shared Contract”), shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Effective Time, so that each Party or the member of its Group shall, as of the Effective Time, be entitled to the rights and benefits, and shall assume the related portion of any Liabilities, inuring to its respective businesses; provided, however, that (i) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and (ii) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or if such assignment or amendment would impair the benefit the parties Parties thereto derive from such Shared Contract, then the Parties shall, and shall cause each of the members of their respective Groups to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a member of the Varex SpinCo Group or the Parent Group, as the case may be, to receive the rights and benefits of that portion of each Shared Contract that relates to the Varex Transferred Business or the Parent Retained Business, as the case may be (in each case, to the extent so related), as if such Shared Contract had been assigned to (or amended to allow) a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.82.7, and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed by a member of the applicable Group pursuant to this Section 2.82.7.
(b) Each of Parent and Varex SpinCo shall, and shall cause the members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset Assets owned by, and/or a Liability Liabilities of, as applicable, such Party, or the members of its Group, as applicable, not later than the Effective Time, and (ii) neither report nor take any Tax position (on a Tax Return return or otherwise) inconsistent with such treatment (unless required by applicable Law).
(c) Nothing in this Section 2.8 2.7 shall require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.82.7. For purposes of this Section 2.7, “de minimis” shall be determined in reference to customary contracts of similar nature, character and size to the Shared Contracts and not in reference to the value of the transactions contemplated by the Merger Agreement or the Distribution.
Appears in 3 contracts
Samples: Separation and Distribution Agreement (Atlas Energy, L.P.), Separation and Distribution Agreement (Targa Resources Partners LP), Separation and Distribution Agreement (Atlas Energy Group, LLC)
Treatment of Shared Contracts. (a) Subject to applicable Law and without limiting the generality of the obligations set forth in Section 2.1, unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding Contract described in this Section 2.8 2.7 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract or agreementContract, a portion of which is a Varex Retained Contract, but the remainder of which is a Parent Asset Transferred Contract (any such contract or agreementContract, a “Shared Contract”), shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Effective Time, so that each Party or the member of its Group shall, as of the Effective Time, be entitled to the rights and benefits, and shall assume the related portion of any Liabilities, inuring to its respective businesses; provided, however, that (i) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and (ii) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or if such assignment or amendment would impair the benefit the parties Parties thereto derive from such Shared Contract, then the Parties shall, and shall cause each of the members of their respective Groups to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a member of the Varex SpinCo Group or the Parent Group, as the case may be, to receive the rights and benefits of that portion of each Shared Contract that relates to the Varex Transferred Business or the Parent Retained Business, as the case may be (in each case, to the extent so related), as if such Shared Contract had been assigned to (or amended to allow) a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.82.7, and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed by a member of the applicable Group pursuant to this Section 2.82.7.
(b) Each of Parent and Varex SpinCo shall, and shall cause the members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset Assets owned by, and/or a Liability Liabilities of, as applicable, such Party, or the members of its Group, as applicable, not later than the Effective Time, and (ii) neither report nor take any Tax position (on a Tax Return return or otherwise) inconsistent with such treatment (unless required by applicable Law).
(c) Nothing in this Section 2.8 2.7 shall require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.82.7. For purposes of this Section 2.7I, “de minimis” shall be determined in reference to customary contracts of similar nature, character and size to the Shared Contracts and not in reference to the value of the transactions contemplated by the Merger Agreement or the Distribution.
Appears in 3 contracts
Samples: Merger Agreement (Targa Resources Corp.), Merger Agreement (Atlas Energy, L.P.), Merger Agreement (Atlas Pipeline Partners Lp)
Treatment of Shared Contracts. (a) Subject to applicable Law and without Without limiting the generality of the obligations set forth in Section 2.1, unless Sections 2.2(a) and (b):
(a) Unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding Contract described in this Section 2.8 2.3 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract or agreementContract that is listed on Schedule 2.3(a), a portion of which is a Varex Contract, but the remainder of which is a Parent Asset (any such contract or agreement, a “Shared Contract”), shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Effective Time, so that each Party or the member members of its Group shall, their respective Groups as of the Effective Time, Time shall be entitled to the rights and benefits, and shall assume Assume the related portion of any Liabilities, inuring to its their respective businessesBusinesses; provided, however, that (ix) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract (including any Policy) which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) , subject to Section 2.2(d)), and (iiy) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or has not for any other reason been assigned or amended, or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then (A) at the Parties reasonable request of the Party (or the member of such Party’s Group) to which the benefit of such Shared Contract inures in part, the Party for which such Shared Contract is, as applicable, a DuPont Retained Asset or Chemours Asset shall, and shall cause each of its respective Subsidiaries to, for a period ending not later than six (6) months after the members Distribution Date (unless the term of their respective Groups toShared Contract ends at a later date, in which case for a period ending on such date), take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a such member of the Varex Chemours Group or the Parent DuPont Group, as the case may be, to receive the rights and benefits benefit of that portion of each Shared Contract that relates to the Varex Chemours Business or the Parent DuPont Retained Business, as the case may be (in each case, to the extent so related), ) as if such Shared Contract had been assigned to (or amended to allow) a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.8, 2.3 and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), ) as if such Liabilities had been assumed Assumed by a member of the applicable Group pursuant to this Section 2.82.3; provided that the Party for which such Shared Contract is a DuPont Retained Asset or a Chemours Asset, as applicable, shall be indemnified for all Indemnifiable Losses or other Liabilities arising out of any actions (or omissions to act) of such retaining Party taken at the direction of the other Party (or relevant member of its Group) in connection with and relating to such Shared Contract, as the case may be, and (B) the Party to which the benefit of such Shared Contract inures in part shall use commercially reasonable efforts to enter into a separate contract pursuant to which it procures such rights and obligations as are necessary such that it no longer needs to avail itself of the arrangements provided pursuant to this Section 2.3(a); provided that, the Party for which such Shared Contract is, as applicable, a DuPont Retained Asset or Chemours Asset, and such Party’s applicable Subsidiaries shall not be liable for any actions or omissions taken in accordance with clause (y) of this Section 2.3(a).
(b) Each of Parent DuPont and Varex Chemours shall, and shall cause the members of its Group to, (iA) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses Businesses as an Asset Assets owned by, and/or a Liability Liabilities of, as applicable, such Party, or the members Party as of its Group, as applicable, not later than the Effective Time, Time and (iiB) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable LawTax Law or good faith resolution of a Tax Contest).
(c) Nothing in this Section 2.8 shall require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.8.
Appears in 3 contracts
Samples: Separation Agreement (Dupont E I De Nemours & Co), Separation Agreement (Chemours Co), Separation Agreement (Chemours Company, LLC)
Treatment of Shared Contracts. (a) Subject to applicable Law and without Without limiting the generality of the obligations set forth in Section 2.1, unless 2.2:
(a) Unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding Contract described in this Section 2.8 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract Contract that is (1) a Delta Asset but inures in part to the benefit or agreementburden of any member of the Ultra Group, or (2) a portion Ultra Asset but inures in part to the benefit or burden of which is a Varex Contract, but any member of the remainder of which is a Parent Asset Delta Group (any such contract or agreementeach, a “Shared Contract”), shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Effective Time, so that each Party member of the Ultra Group or the member of its Group shallDelta Group, as of the Effective Timecase may be, shall be entitled to the rights and benefits, and shall assume the related portion of any Liabilities, inuring to its respective businessesthe Ultra Business or the Delta Business, respectively; provided, however, that (ix) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and (iiy) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or has not for any other reason been assigned or amended, or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then (A) at the Parties reasonable request of the Party (or the member of such Party’s Group) to which the benefit of such Shared Contract inures in part, the Party for which such Shared Contract is, as applicable, a Delta Asset or Ultra Asset shall, and shall cause each of its respective Subsidiaries to, for a period ending on the members earlier of their respective Groups totwelve (12) months after the Distribution Date and the end of the term of such Shared Contract (without any extensions or renewals), take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a such member of the Varex Ultra Group or the Parent Delta Group, as the case may be, to receive the rights and benefits benefit of that portion of each Shared Contract that relates to the Varex Ultra Business or the Parent Delta Business, as the case may be (in each case, to the extent so related), ) as if such Shared Contract had been assigned to (or amended to allow) a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.8, 2.3 and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), ) as if such Liabilities had been assumed by a member of the applicable Group pursuant to this Section 2.82.3 and (B) the Party to which the benefit of such Shared Contract inures in part shall use commercially reasonable efforts to enter into a separate contract pursuant to which it procures such rights and obligations as are necessary such that it no longer needs to avail itself of the arrangements provided pursuant to this Section 2.3(a); provided that, other than in the event of willful breach or misconduct, knowing violation of Law, fraud, willful misrepresentation, or gross negligence of the Party for which such Shared Contract is, as applicable, a Delta Asset or Ultra Asset, such Party, and such Party’s applicable Subsidiaries shall not be liable for any actions or omissions taken in accordance with clause (y) of this Section 2.3(a).
(b) Each of Parent Delta and Varex Ultra shall, and shall cause the members of its Group to, (i) treat for all Income Tax purposes the portion of each Shared Contract inuring to its respective businesses the Delta Business or Ultra Business, as an Asset the case may be, as Assets owned by, and/or a Liability Liabilities of, as applicable, such Party, or the members Party as of its Group, as applicable, not later than the Effective Time, Time and (ii) neither report nor take any Income Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by a change in applicable LawTax Law or good faith resolution of a Tax Contest relating to Income Taxes).
(c) Nothing in this For avoidance of doubt:
(i) the Preferred Vendor Agreements shall be deemed Shared Contracts, and allocation of minimum purchase obligations between Delta and Ultra shall be governed by Section 2.8 shall require any member 7.2 of any Group to make any non-de minimis payment each Preferred Vendor Agreement; and
(except ii) to the extent advanced, assumed that either Ultra or agreed in advance to be reimbursed by any member Delta reasonably determines that an extension of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit term of any member Services (as that term is defined in the HPE Transition Services Agreement) provided to the Ultra Business under the HPE Transition Services Agreement is appropriate or necessary, the HPE Transition Services Agreement shall be deemed a Shared Contract, and Ultra shall be entitled to the rights and benefits, and shall assume the related portion of any other Group Liabilities, inuring to the Ultra Business under the HPE Transition Services Agreement in order to effect any transaction contemplated by this accordance with Section 2.82.3(a).
Appears in 3 contracts
Samples: Separation and Distribution Agreement (Perspecta Inc.), Separation and Distribution Agreement, Separation and Distribution Agreement (DXC Technology Co)
Treatment of Shared Contracts. (a) Subject to applicable Law and without Without limiting the generality of the obligations set forth in Section 2.1, unless the Parties parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment Contract or understanding described in this Section 2.8 2.9 are expressly conveyed to the applicable Party party pursuant to this Agreement another Transaction Document, (i) any Contract or an Ancillary Agreement, any contract or agreement, a portion of which understanding that is a Varex Contract, but the remainder of which is a Parent Asset listed on Schedule 2.9(a) (other than any such contract Contract or agreement, understanding covering substantially the same services or arrangements that are covered by a “Shared Contract”), Contract or understanding entered into by a member of the Keysight Group in connection with the Reorganization) shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Effective Time, so that each Party party or the member members of its respective Group shall, as of the Effective Time, be entitled to the rights and benefits, and shall assume the related portion of any Liabilities, inuring to the Keysight Business or the Agilent Business, as applicable, and (ii) (A) any other Contract or understanding that is an Excluded Asset or Excluded Liability but, prior to the Effective Time, inured in part to the benefit or burden of any member of the Keysight Group (other than any such Contract or understanding covering substantially the same services or arrangements that are covered by a Contract or understanding entered into by a member of the Keysight Group in connection with the Reorganization), and (B) any other Contract or understanding that is a Keysight Asset or a Keysight Liability but, prior to the Effective Time, inured in part to the benefit or burden of any member of the Agilent Group (other than any such Contract or understanding covering substantially the same services or arrangements that are covered by a Contract or understanding entered into by a member of the Agilent Group in connection with the Reorganization), shall be assigned in part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Effective Time, so that each party or the members of its respective businessesGroup shall, as of the Effective Time, be entitled to the rights and benefits, and shall assume the related portion of any Liabilities, inuring to the Keysight Business or the Agilent Business, as applicable (any Contract or understanding referred to in clause (i) or (ii) above, a “Shared Contract”); provided, however, that in the case of each of clauses (i) and (ii), (x) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and (iiy) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then the Parties parties shall, and shall cause each of the members of their respective Groups Subsidiaries to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party party the ability to exercise any applicable rights under such Shared Contract) to cause a member of the Varex Keysight Group or the Parent Agilent Group, as the case may beapplicable, to receive the rights and benefits of that portion of each Shared Contract that relates to the Varex Keysight Business or the Parent Agilent Business, as the case may be applicable (in each case, to the extent so related), as if such Shared Contract had been assigned to a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contractappropriately amended) pursuant to this Section 2.82.9, and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed by a member of the applicable Group pursuant to this Section 2.82.9.
(b) Each of Parent Agilent and Varex Keysight shall, and shall cause the members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset Assets owned by, and/or a Liability Liabilities of, as applicable, such Party, or the members of its Group, as applicable, party not later than the Effective Time, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law).
(c) Nothing in this Section 2.8 2.9 shall require any member of any Group to make any non-de minimis material payment (except to the extent advanced, assumed or agreed to in advance to be reimbursed by any member of the other Group), incur any non-de minimis material obligation or grant any non-de minimis material concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.82.9.
Appears in 3 contracts
Samples: Separation and Distribution Agreement (Keysight Technologies, Inc.), Separation and Distribution Agreement (Agilent Technologies Inc), Separation and Distribution Agreement (Keysight Technologies, Inc.)
Treatment of Shared Contracts. (a) Subject to applicable Law and without Without limiting the generality of the obligations set forth in Section 2.1, unless the Parties parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding described in this Section 2.8 2.9 are expressly conveyed to the applicable Party party pursuant to this Agreement or an Ancillary Agreement, (i) any contract or contract, agreement, a portion of which arrangement, commitment or understanding that is a Varex Contract, but the remainder of which is a Parent Asset (any such contract or agreement, a “Shared Contract”), listed on Schedule 2.9(a) shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Effective TimeDistribution Date, so that each Party party or the member members of its respective Group shall, as of the Effective TimeDistribution Date, be entitled to the rights and benefits, and shall assume the related portion of any Liabilities, inuring to its respective businesses, in each case, in accordance with the allocation of benefits and burdens set forth on Schedule 2.9(a), and (ii) (A) any contract, agreement, arrangement, commitment or understanding that is an Excluded Asset or Excluded Liability but, prior to the Distribution Date, inured in part to the benefit or burden of any member of the Corner Store Group, and (B) any contract, agreement, arrangement, commitment or understanding that is a Corner Store Asset or a Corner Store Liability but, prior to the Distribution Date, inured in part to the benefit or burden of any member of the Valero Group, shall be assigned in part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Distribution Date, so that each party or the members of its respective Group shall, as of the Distribution Date, be entitled to the rights and benefits, and shall assume the related portion of any Liabilities, inuring to its respective businesses (any contract, agreement, arrangement, commitment or understanding referred to in clause (i) or (ii) above, a “Shared Contract”); provided, however, that that, in the case of each of clause (i) and (ii), (1) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) ), and (ii2) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then the Parties parties shall, and shall cause each of the members of their respective Groups Subsidiaries to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party party the ability to exercise any applicable rights under such Shared Contract) to cause a member of the Varex Corner Store Group or the Parent Valero Group, as the case may be, to receive the rights and benefits of that portion of each Shared Contract that relates to the Varex Corner Store Business or the Parent Businessbusinesses retained by Valero, as the case may be (in each case, to the extent so related), as if such Shared Contract had been assigned to (or amended to allow) a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.82.9, and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed by a member of the applicable Group pursuant to this Section 2.82.9.
(b) Each of Parent Valero and Varex Corner Store shall, and shall cause the members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset Assets owned by, and/or a Liability Liabilities of, as applicable, such Partyparty, or the members of its Groupsubsidiaries, as applicable, not later than the Effective TimeDistribution Date, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law).
(c) Nothing in this Section 2.8 2.9 shall require any member of any Group to make any non-de minimis material payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis material obligation or grant any non-de minimis material concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.82.9.
Appears in 3 contracts
Samples: Separation and Distribution Agreement (CST Brands, Inc.), Separation and Distribution Agreement (CST Brands, Inc.), Separation and Distribution Agreement (Corner Store Holdings, Inc.)
Treatment of Shared Contracts. (a) Subject to applicable Law and without limiting the generality of the obligations set forth in Section 2.1, unless Unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding Contract described in this Section 2.8 2.3 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract or agreement, in the case of a portion of which is a Varex Shared Contract, but the remainder of which is a Parent Asset Parties shall use commercially reasonable efforts to cause such Shared Contract to be: (any such contract or agreement, a “Shared Contract”), shall be i) assigned in relevant part to the applicable member(s) a member of the applicable Mural Group (or to a member of the Alkermes Group if the contracting party is a member of the Mural Group, ) if so assignable; (ii) appropriately amended, or appropriately amended prior to, on or after the Distribution Effective Time; or (iii) replaced or otherwise addressed with suitable arrangements, in each case so that each Party or the member of its Group shall, as of the Effective Time, respective Subsidiaries shall be entitled to the rights and benefits, benefits and shall assume the related portion of any Liabilities, obligations and Liabilities inuring to its their respective businesses; provided, however, that (i) in no event shall any member of any Group either Party or its respective Subsidiaries be required to assign (or amend) amend any Shared Contract in its entirety or to assign a portion of any Shared Contract which that is not assignable (or cannot be amended) amended by its terms (including any terms imposing consents Consents or conditions on an assignment where such consents Consents or conditions have not been obtained or fulfilled) and (ii) if ). If any Shared Contract cannot be so partially assigned by its terms or otherwiseassigned, or cannot be amended amended, or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared ContractContract and such Shared Contract is not replaced or otherwise addressed with suitable arrangements, then the Parties Alkermes and Mural shall, and shall cause each of the members member of their respective Groups to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a member (with the costs and expenses of any such actions following the Varex Group or Separation to be shared equally between the Parent Group, as Parties): (A) the case may be, to receive the rights and benefits of Assets associated with that portion of each Shared Contract that relates to the Varex Oncology Business or the Parent Business, as the case may to be (in each case, to the extent so related), as if such Shared Contract had been assigned to a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.8, and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed enjoyed by a member of the applicable Group pursuant Mural Group; (B) the Liabilities associated with that portion of each Shared Contract that relates to this Section 2.8the Oncology Business to be borne by a member of the Mural Group; (C) the Assets associated with that portion of each Shared Contract that relates to the Neuroscience Business to be enjoyed by a member of the Alkermes Group; and (D) the Liabilities associated with that portion of each Shared Contract that relates to the Neuroscience Business to be borne by a member of the Alkermes Group.
(b) Except for payments required in accordance with the performance of the applicable Shared Contract, nothing in this Section 2.3 shall obligate either Party or any member of its Group to make any payment, incur any Liability or offer or grant any accommodation for the benefit of the other Party or any member of the other Party’s Group, in each case, in order to effect any transaction (other than the pass-through of rewards and burdens of the applicable portions of the Shared Contracts in accordance with this Section 2.3) (except to the extent advanced, assumed or agreed in advance to be reimbursed by the other Party or any member of the other Party’s Group).
(c) Each of Parent Alkermes and Varex Mural shall, and shall cause the members of its Group to, (iA) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset Assets owned by, and/or a Liability Liabilities of, as applicable, such Party, or Party as of the members of its Group, as applicable, not later than the Distribution Effective Time, Time and (iiB) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by a change in applicable LawTax Law or good faith resolution of a Tax Contest).
(c) Nothing in this Section 2.8 shall require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.8.
Appears in 3 contracts
Samples: Separation Agreement (Mural Oncology PLC), Separation Agreement (Alkermes Plc.), Separation Agreement (Mural Oncology PLC)
Treatment of Shared Contracts. (a) Subject to applicable Law and without limiting the generality of the obligations set forth in Section 2.1, unless the Parties parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding described in this Section 2.8 are expressly conveyed to the applicable Party party pursuant to this Agreement or an Ancillary Agreement, any contract or agreement, agreement entered into by a portion member of which the Vornado Group with a Third Party that is not a Varex Newco Contract, but pursuant to which the remainder DC Business, as of which is a Parent Asset the Effective Time, has been provided certain revenues or other benefits in respect of the Newco Properties (any such contract or agreement, a “Shared Contract”), ) shall not be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, Newco Group or appropriately amended prior to, on or after to give the Effective Time, so that each Party or the member of its Group shall, as relevant member(s) of the Effective Time, be entitled Newco Group any entitlement to the such rights and benefits, and shall assume the related portion of any Liabilities, inuring to its respective businessesbenefits thereunder; provided, however, that (i) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and (ii) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then the Parties shall, and shall cause each of the members of their respective Groups to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a (i) the relevant member of the Varex Newco Group or the Parent Group, as the case may be, to receive the rights and benefits previously provided in the ordinary course of that portion of each Shared Contract that relates to the Varex Business or the Parent Businessbusiness, as the case may be (in each caseconsistent with past practice, to the extent so related), as if DC Business pursuant to such Shared Contract had been assigned to a and (ii) the relevant member of the applicable Newco Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.8, and to bear the burden of the corresponding Liabilities under such Shared Contract. Notwithstanding the foregoing, no member of the Vornado Group shall be required by this Section 2.8 to maintain in effect any Shared Contract, and no member of the Newco Group shall have any approval or other rights with respect to any amendment, termination or other modification of any Shared Contract; provided, however, that for any Shared Contract that the Newco Group in consultation with JBG Properties identifies as material to the operation of the DC Business, the Parties shall cause the members of their respective Groups to use their respective commercially reasonable efforts to work together (including and, if necessary and desirable, to work with the Third Party to any Liabilities Shared Contract) in an effort to divide, partially assign, modify and/or replicate (in whole or in part) the respective rights and obligations under and in respect of any such identified Shared Contract such that may arise by reason of such arrangement), as if such Liabilities had been assumed by (i) a member of the applicable Newco Group pursuant is the beneficiary of the rights and is responsible for the obligations related to that portion of such Shared Contract relating to the DC Business (the “Newco Portion”), which rights shall be a Newco Asset and which obligations shall be a Newco Liability and (ii) a member of the Vornado Group is the beneficiary of the rights and is responsible for the obligations related to such Shared Contract relating to the Vornado Business (the “Vornado Portion”), which rights shall be a Vornado Asset and which obligations shall be a Vornado Liability. If the Parties, or a member of their respective Groups, as applicable, do not or are not able to enter into an arrangement to formally divide, partially assign, modify and/or replicate such Shared Contract as contemplated by the previous sentence, then the Parties shall, and shall cause the members of their Groups to, cooperate in any lawful arrangement to provide that a member of the Newco Group shall receive the interest in the benefits and obligations of the Newco Portion under such Shared Contract and that a member of the Vornado Group shall receive the interest in the benefits and obligations of the Vornado Portion under such Shared Contract. The obligations set forth in this Section 2.82.8(a) shall terminate on the date that is twelve (12) months after the Effective Time.
(b) Each of Parent Vornado and Varex Newco shall, and shall cause the members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset Assets owned by, and/or a Liability Liabilities of, as applicable, such Party, or the members of its Group, as applicable, not later than the Effective Time, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law).
(c) Nothing in this Section 2.8 shall require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.8.
Appears in 3 contracts
Samples: Separation and Distribution Agreement (JBG SMITH Properties), Separation and Distribution Agreement (Vornado Realty Lp), Separation and Distribution Agreement (JBG SMITH Properties)
Treatment of Shared Contracts. (a) Subject to applicable Law and without limiting the generality of the obligations set forth in Section 2.1, unless the The Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding described in this Section 2.8 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract or agreement, a portion of which is a Varex Contract, but the remainder of which is a Parent Asset (any such contract or agreement, a “Shared Contract”), shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Effective Time, so that each Party or the member of its Group shall, as of the Effective Time, be entitled to the rights and benefits, and shall assume cause the related portion members of their respective Groups to, use their respective commercially reasonable efforts to work together (and, if necessary and desirable, to work with the third party to any Shared Contract) in an effort to divide, partially assign, modify and/or replicate (in whole or in part) the respective rights and obligations under and in respect of any LiabilitiesShared Contract, inuring to its respective businesses; provided, however, such that (i) in no event shall any a member of any the Parent Group be required is the beneficiary of the rights and is responsible for the obligations related to assign (or amend) any that portion of such Shared Contract in its entirety or relating to assign the Parent Business (the “Parent Portion”), which rights shall be a portion of any Shared Contract Parent Asset and which is not assignable (or cannot obligations shall be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) a Parent Liability and (ii) if any a member of the SpinCo Group is the beneficiary of the rights and is responsible for the obligations related to such Shared Contract cannot relating to the SpinCo Business (the “SpinCo Portion”), which rights shall be so partially assigned by its terms or otherwisea SpinCo Asset and which obligations shall be a SpinCo Liability. If the Parties, or cantheir respective Group members, as applicable, are not be amended or if such assignment or amendment would impair the benefit the parties thereto derive from able to enter into an arrangement to formally divide, partially assign, modify and/or replicate such Shared ContractContract prior to the Effective Time as contemplated by the immediately preceding sentence, then the Parties shall, and shall cause each their respective Group members to, use their commercially reasonable efforts to cooperate in any lawful arrangement to provide that, following the Effective Time and until the earlier of two (2) years after the Effective Time and such date as the formal division, partial assignment, modification and/or replication of such Shared Contract as contemplated by the immediately preceding sentence is effected, a member of the members Parent Group shall receive the interest in the benefits and obligations of their respective Groups to, take the Parent Portion under such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party and a member of the ability to exercise any applicable rights SpinCo Group shall receive the interest in the benefits and obligations of the SpinCo Portion under such Shared Contract) to cause a member of the Varex Group or the Parent Group, as the case may be, to receive the rights and benefits of that portion of each Shared Contract that relates to the Varex Business or the Parent Business, as the case may be (in each case, to the extent so related), as if such Shared Contract had been assigned to a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.8, and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed by a member of the applicable Group pursuant to this Section 2.8.
(b) Each of Parent and Varex SpinCo shall, and shall cause the members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset Assets owned by, and/or a Liability Liabilities of, as applicable, such Party, or the members of its Group, as applicable, not later than the Effective Time, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law).
(c) Nothing in this Section 2.8 shall require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in writing in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.8.
Appears in 3 contracts
Samples: Separation and Distribution Agreement (Ingevity Corp), Separation and Distribution Agreement (Ingevity Corp), Separation and Distribution Agreement (Ingevity Corp)
Treatment of Shared Contracts. (a) Subject to applicable Law and without limiting the generality of the obligations set forth in Section 2.1, unless Unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding Contract described in this Section 2.8 2.3 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract or agreement, in the case of a portion of which is a Varex Shared Contract, but the remainder of which is a Parent Asset Parties shall use commercially reasonable efforts to cause such Shared Contract to be: (any such contract or agreement, a “Shared Contract”), shall be i) assigned in relevant part to the applicable member(s) a member of the applicable 2seventy Group (or to a member of the bluebird Group if the contracting party is a member of the 2seventy Group, ) if so assignable; (ii) appropriately amended, or appropriately amended prior to, on or after the Distribution Effective Time; or (iii) replaced or otherwise addressed with suitable arrangements, in each case so that each Party or the member of its Group shall, as of the Effective Time, respective Subsidiaries shall be entitled to the rights and benefits, benefits and shall assume the related portion of any Liabilities, obligations and Liabilities inuring to its their respective businesses; provided, however, that (i) in no event shall any member of any Group either Party or its respective Subsidiaries be required to assign (or amend) amend any Shared Contract in its entirety or to assign a portion of any Shared Contract which that is not assignable (or cannot be amended) amended by its terms (including any terms imposing consents Consents or conditions on an assignment where such consents Consents or conditions have not been obtained or fulfilled) and (ii) if ). If any Shared Contract cannot be so partially assigned by its terms or otherwiseassigned, or cannot be amended amended, or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared ContractContract and such Shared Contract is not replaced or otherwise addressed with suitable arrangements, then the Parties bluebird and 2seventy shall, and shall cause each of the members member of their respective Groups to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a member (with the costs and expenses of any such actions following the Varex Group or Separation to be shared equally between the Parent Group, as Parties): (A) the case may be, to receive the rights and benefits of Assets associated with that portion of each Shared Contract that relates to the Varex Oncology Business or the Parent Business, as the case may to be (in each case, to the extent so related), as if such Shared Contract had been assigned to a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.8, and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed enjoyed by a member of the applicable Group pursuant 2seventy Group; (B) the Liabilities associated with that portion of each Shared Contract that relates to this Section 2.8the Oncology Business to be borne by a member of the 2seventy Group; (C) the Assets associated with that portion of each Shared Contract that relates to the Severe Genetic Disease Business to be enjoyed by a member of the bluebird Group; and (D) the Liabilities associated with that portion of each Shared Contract that relates to the Severe Genetic Disease Business to be borne by a member of the bluebird Group.
(b) Except for payments required in accordance with the performance of the applicable Shared Contract, nothing in this Section 2.3 shall obligate either Party or any member of its Group to make any payment, incur any Liability or offer or grant any accommodation for the benefit of the other Party or any member of the other Party’s Group, in each case, in order to effect any transaction (other than the pass-through of rewards and burdens of the applicable portions of the Shared Contracts in accordance with this Section 2.3) (except to the extent advanced, assumed or agreed in advance to be reimbursed by the other Party or any member of the other Party’s Group).
(c) Each of Parent bluebird and Varex 2seventy shall, and shall cause the members of its Group to, (iA) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset Assets owned by, and/or a Liability Liabilities of, as applicable, such Party, or Party as of the members of its Group, as applicable, not later than the Distribution Effective Time, Time and (iiB) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by a change in applicable LawTax Law or good faith resolution of a Tax Contest).
(c) Nothing in this Section 2.8 shall require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.8.
Appears in 3 contracts
Samples: Separation Agreement (2seventy Bio, Inc.), Separation Agreement (Bluebird Bio, Inc.), Separation Agreement (2seventy Bio, Inc.)
Treatment of Shared Contracts. (a) Subject to applicable Law and without limiting the generality of the obligations set forth in Section 2.1, unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding described in this Section 2.8 2.10 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract or agreement, a portion of which is a Varex Coal Contract, but the remainder of which is a Parent Asset (any such contract or agreement, a “Shared Contract”), shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Effective Time, so that each Party or the member of its Group shall, as of the Effective Time, be entitled to the rights and benefits, and shall assume the related portion of any Liabilities, inuring to its respective businesses; provided, however, that (i) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and (ii) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then the Parties shall, and shall cause each of the members of their respective Groups to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a member of the Varex CoalCo Group or the Parent Group, as the case may be, to receive the rights and benefits of that portion of each Shared Contract that relates to the Varex Coal Business or the Parent Business, as the case may be (in each case, to the extent so related), as if such Shared Contract had been assigned to a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.82.10 (or appropriately amended), and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed by a member of the applicable Group pursuant to this Section 2.82.10 (or appropriately amended).
(b) Each of Parent and Varex CoalCo shall, and shall cause the members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset Assets owned by, and/or a Liability Liabilities of, as applicable, such Party, or the members of its Group, as applicable, not later than the Effective Time, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law).
(c) Nothing in this Section 2.8 2.10 shall require any member of any either Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any the other Group in order to effect any transaction contemplated by this Section 2.82.10.
Appears in 3 contracts
Samples: Separation and Distribution Agreement (CNX Resources Corp), Separation and Distribution Agreement (CNX Resources Corp), Separation and Distribution Agreement (CONSOL Mining Corp)
Treatment of Shared Contracts. (a) Subject to applicable Law and without limiting the generality of the obligations set forth in Section 2.1, unless the Parties otherwise agree in writing or the benefits of any contract, agreement, arrangement, commitment or understanding described in this Section 2.8 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract the Parties shall, and shall cause the members of their respective Groups to, use their respective reasonable best efforts to work together to divide, partially assign, modify or agreement, a portion replicate (in whole or in part) the respective rights and obligations under and in respect of which is a Varex each Shared Contract, but the remainder of which is a Parent Asset (any such contract or agreement, a “Shared Contract”), shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Effective Time, so that each Party or the member of its Group shall, as of the Effective Time, (i) be entitled to the related portion of the rights and benefitsbenefits inuring to its respective businesses, and shall (ii) assume the related portion of any Liabilities, Liabilities inuring to its respective businessesbusinesses and (iii) take any actions set forth on Schedule 2.8 with respect to such Shared Contract; provided, however, that (ix) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which that is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and (iiy) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then the Parties shall, and shall cause each of the members of their respective Groups to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a member of the Varex SpinCo Group or the Parent Group, as the case may be, to receive the rights and benefits of that portion of each Shared Contract that relates to the Varex SpinCo Business or the Parent Business, as the case may be (in each case, to the extent so related), as if such Shared Contract had been assigned to a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.8, and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed by a member of the applicable Group pursuant to this Section 2.8.
(b) Each of Parent and Varex SpinCo shall, and shall cause the members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its or their respective businesses as an Asset owned by, and/or a Liability of, as applicable, such Party, or the members of its Group, as applicable, not later than the Effective Time, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law).
(c) Nothing in this Section 2.8 shall require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.8.
Appears in 3 contracts
Samples: Separation and Distribution Agreement (RXO, Inc.), Separation and Distribution Agreement (Rxo, LLC), Separation and Distribution Agreement (Rxo, LLC)
Treatment of Shared Contracts. (a) Subject to applicable Law and without limiting the generality of the obligations set forth in Section 2.1, unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding described in this Section 2.8 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract or agreement, a portion of which is a Varex SpinCo Contract, but the remainder of which is a Parent Rayonier Asset (any such contract or agreement, a “Shared Contract”), shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Effective Time, so that each Party or the member of its Group shall, as of the Effective Time, be entitled to the rights and benefits, and shall assume the related portion of any Liabilities, inuring to its respective businesses; provided, however, that (i) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and (ii) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then the Parties shall, and shall cause each of the members of their respective Groups to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a member of the Varex SpinCo Group or the Parent Rayonier Group, as the case may be, to receive the rights and benefits of that portion of each Shared Contract that relates to the Varex SpinCo Business or the Parent Rayonier Business, as the case may be (in each case, to the extent so related), as if such Shared Contract had been assigned to (or amended to allow) a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.8, and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed by a member of the applicable Group pursuant to this Section 2.8.
(b) Each of Parent Rayonier and Varex SpinCo shall, and shall cause the members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset Assets owned by, and/or a Liability Liabilities of, as applicable, such Party, or the members of its Group, as applicable, not later than the Effective Time, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law).
(c) Nothing in this Section 2.8 shall require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.8.
Appears in 3 contracts
Samples: Separation and Distribution Agreement (Rayonier Inc), Separation and Distribution Agreement (Rayonier Advanced Materials Inc.), Separation and Distribution Agreement (Rayonier Holding Co)
Treatment of Shared Contracts. (a) Subject to applicable Law and without limiting the generality of the obligations set forth in Section 2.1, unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding described in this Section 2.8 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract or agreement, a portion of which is a Varex relates to matters that would be the subject of an Enhabit Contract, but the remainder of which is relates to matters that would be the subject of a Parent Encompass Asset (any such contract or agreement, including those set forth on Schedule 2.8, a “Shared Contract”), shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Effective Time, so that each Party or the member of its Group shall, as of the Effective Time, be entitled to the rights and benefits, and shall assume the related portion of any Liabilities, inuring to its respective businesses; provided, however, that (i) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and (ii) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then the Parties shall, and shall cause each of the members of their respective Groups to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a member of the Varex Enhabit Group or the Parent Encompass Group, as the case may be, to receive the rights and benefits of that portion of each Shared Contract that relates to the Varex Enhabit Business or the Parent Encompass Business, as the case may be (in each case, to the extent so related), as if such Shared Contract had been assigned to a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.8, and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed by a member of the applicable Group pursuant to this Section 2.8.
(b) Each of Parent Encompass and Varex Enhabit shall, and shall cause the members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset owned by, and/or a Liability of, as applicable, such Party, or the members of its Group, as applicable, not later than the Effective Time, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law).
(c) Nothing in this Section 2.8 shall require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any the other Group in order to effect any transaction contemplated by this Section 2.8.
Appears in 3 contracts
Samples: Separation and Distribution Agreement (Encompass Health Corp), Separation and Distribution Agreement (Enhabit, Inc.), Separation and Distribution Agreement (Enhabit, Inc.)
Treatment of Shared Contracts. (a) Subject to applicable Law and without Without limiting the generality of the obligations set forth in Section 2.1, unless 2.2(a) and 2.2(b):
(i) Unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding Contract described in this Section 2.8 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, (A) any contract Contract that is (1) listed on Schedule 2.2(c), (2) a Tyco Retained Asset but inures in part to the benefit or agreementburden of any member of the Healthcare Group or the Electronics Group, as the case may be, (3) a portion Healthcare Asset but inures in part to the benefit or burden of which is a Varex Contractany member of the Tyco Group or the Electronics Group, as the case may be or (4) an Electronics Asset but inures in part to the remainder benefit or burden of which is a Parent Asset any member of the Tyco Group or the Healthcare Group, as the case may be (any such contract or agreementeach, a “Shared Contract”), shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Effective Time, so that each Party or the member members of its Group shall, as of the Effective Time, their respective Groups shall be entitled to the rights and benefits, and shall assume Assume the related portion of any Liabilities, inuring to its their respective businessesBusinesses; provided, however, that (ix) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract (including any Policy) which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and (iiy) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then the Parties shall, and shall cause each of the members of their respective Groups Subsidiaries to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a member of the Varex Healthcare Group, the Electronics Group or the Parent Tyco Group, as the case may be, to receive the rights and benefits benefit of that portion of each Shared Contract that relates to the Varex Healthcare Business, the Electronics Business or the Parent Tyco Retained Business, as the case may be (in each case, to the extent so related), ) as if such Shared Contract had been assigned to (or amended to allow) a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.8, 2.2 and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), ) as if such Liabilities had been assumed Assumed by a member of the applicable Group pursuant to this Section 2.82.2.
(bii) Each of Parent Tyco, Healthcare and Varex Electronics shall, and shall cause the members of its Group to, (iA) treat for all Income Tax purposes the portion of each Shared Contract inuring to its respective businesses Businesses as an Asset Assets owned by, and/or a Liability Liabilities of, as applicable, such Party, or the members of its Group, as applicable, Party not later than the Effective Time, applicable Relevant Time and (iiB) neither report nor take any Income Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by a change in applicable LawTax Law or good faith resolution of a Tax Contest relating to Income Taxes).
(ciii) Nothing in this Section 2.8 2.2(c) shall require any member of any Group to make any non-de minimis material payment (except to the extent advanced, assumed Assumed or agreed in advance to be reimbursed by any member of the other GroupGroup or as otherwise provided on Schedule 1.1(15)(i)), incur any non-de minimis material obligation or grant any non-de minimis material concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.82.2(c).
Appears in 3 contracts
Samples: Separation and Distribution Agreement (Tyco International LTD /Ber/), Separation and Distribution Agreement (Tyco Electronics Ltd.), Separation and Distribution Agreement (Covidien Ltd.)
Treatment of Shared Contracts. (a) Subject to applicable Law and without Without limiting the generality of the obligations set forth in Section 2.12.2(a), unless the Parties otherwise agree parties shall, and shall cause their respective Subsidiaries to, use their respective reasonable best efforts to work together (and, if necessary and desirable, to work with the third party to such Shared Contract) in an effort to divide, partially assign, modify and/or replicate (in whole or in part) the benefits respective rights and obligations under and in respect of any contractShared Contract, agreement, arrangement, commitment or understanding described in this Section 2.8 are expressly conveyed such that (a) a member of the Donnelley Financial Group is the beneficiary of the rights and is responsible for the obligations related to that portion of such Shared Contract relating to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract or agreement, a portion of which is a Varex Contract, but Donnelley Financial Business (the remainder of which is a Parent Asset (any such contract or agreement, a “Shared ContractDonnelley Financial Portion”), which rights shall be assigned in relevant part to the applicable member(sDonnelley Financial Assets and which obligations shall be Donnelley Financial Liabilities, (b) a member of the applicable Group, if so assignable, or appropriately amended prior to, on or after LSC Group is the Effective Time, so that each Party or the member beneficiary of its Group shall, as of the Effective Time, be entitled to the rights and benefitsis responsible for the obligations related to such Shared Contract relating to the LSC Business (the “LSC Portion”), which rights shall be LSC Assets and which obligations shall assume the related portion of any Liabilities, inuring to its respective businesses; provided, however, that be LSC Liabilities and (ic) in no event shall any a member of any the RRD Group be required is the beneficiary of the rights and is responsible for the obligations related to assign (or amend) any such Shared Contract in its entirety relating to the RRD Business (the “RRD Portion”), which rights shall be RRD Retained Assets and which obligations shall be RRD Liabilities. If the Parties, or their respective Subsidiaries, as applicable, do not or are not able to assign a portion of any enter into an arrangement to formally divide, partially assign, modify and/or replicate such Shared Contract which is not assignable (or cannot be amended) as contemplated by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and (ii) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contractprevious sentence, then the Parties shall, and shall cause each their respective Subsidiaries to, cooperate in any lawful arrangement to provide that a member of the members LSC Group shall receive the interest in the benefits and obligations of their respective Groups to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights LSC Portion under such Shared Contract) to cause , a member of the Varex Donnelley Financial Group or the Parent Group, as the case may be, to shall receive the rights interest in the benefits and benefits obligations of that portion of each Shared Contract that relates to the Varex Business or the Parent Business, as the case may be (in each case, to the extent so related), as if Donnelley Financial Portion under such Shared Contract had been assigned to and a member of the applicable RRD Group (or amended to allow a member shall receive the interest in the benefits and obligations of the applicable Group to exercise applicable rights RRD Portion under such Shared Contract) pursuant ; provided, however, that no Party shall be required to expend any money or take any action in furtherance of this Section 2.8, and to bear 2.2(b) that would require the burden expenditure of the corresponding Liabilities money (including other than any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed by a member of payment obligations under the applicable Group pursuant to this Section 2.8.
(b) Each of Parent and Varex shall, and shall cause the members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset owned by, and/or a Liability of, as applicable, such Party, or the members of its Group, as applicable, not later than the Effective Time, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable LawContract).
(c) Nothing in this Section 2.8 shall require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.8.
Appears in 3 contracts
Samples: Separation and Distribution Agreement (Donnelley Financial Solutions, Inc.), Separation and Distribution Agreement (Donnelley Financial Solutions, Inc.), Separation and Distribution Agreement (LSC Communications, Inc.)
Treatment of Shared Contracts. (a) Subject to applicable Law and without Without limiting the generality of the obligations set forth in Section 2.1, unless 2.2:
(a) Unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding Contract described in this Section 2.8 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract Contract that is (1) a CSC Asset but inures in part to the benefit or agreementburden of any member of the Computer Sciences GS Group, or (2) a portion Computer Sciences GS Asset but inures in part to the benefit or burden of which is a Varex Contract, but any member of the remainder of which is a Parent Asset CSC Group (any such contract or agreementeach, a “Shared Contract”), shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Effective Time, so that each Party member of the Computer Sciences GS Group or the member of its Group shallCSC Group, as of the Effective Timecase may be, shall be entitled to the rights and benefits, and shall assume the related portion of any Liabilities, inuring to its respective businessesthe Computer Sciences GS Business or the CSC Business, respectively; provided, however, that (ix) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and (iiy) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or has not for any other reason been assigned or amended, or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then (A) at the Parties reasonable request of the Party (or the member of such Party’s Group) to which the benefit of such Shared Contract inures in part, the Party for which such Shared Contract is, as applicable, a CSC Asset or Computer Sciences GS Asset shall, and shall cause each of its respective Subsidiaries to, for a period ending on the members earlier of their respective Groups totwelve (12) months after the Distribution Date and the end of the term of such Shared Contract (without any extensions or renewals), take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a such member of the Varex Computer Sciences GS Group or the Parent CSC Group, as the case may be, to receive the rights and benefits benefit of that portion of each Shared Contract that relates to the Varex Computer Sciences GS Business or the Parent CSC Business, as the case may be (in each case, to the extent so related), ) as if such Shared Contract had been assigned to (or amended to allow) a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.8, 2.3 and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), ) as if such Liabilities had been assumed by a member of the applicable Group pursuant to this Section 2.82.3 and (B) the Party to which the benefit of such Shared Contract inures in part shall use commercially reasonable efforts to enter into a separate contract pursuant to which it procures such rights and obligations as are necessary such that it no longer needs to avail itself of the arrangements provided pursuant to this Section 2.3(a); provided that, other than in the event of willful breach or misconduct, knowing violation of Law, fraud, willful misrepresentation, or gross negligence of the Party for which such Shared Contract is, as applicable, a CSC Asset or Computer Sciences GS Asset, such Party, and such Party’s applicable Subsidiaries shall not be liable for any actions or omissions taken in accordance with clause (y) of this Section 2.3(a).
(b) Each of Parent CSC and Varex Computer Sciences GS shall, and shall cause the members of its Group to, (i) treat for all Income Tax purposes the portion of each Shared Contract inuring to its respective businesses the CSC Business or Computer Sciences GS Business, as an Asset the case may be, as Assets owned by, and/or a Liability Liabilities of, as applicable, such Party, or the members Party as of its Group, as applicable, not later than the Effective Time, Time and (ii) neither report nor take any Income Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by a change in applicable LawTax Law or good faith resolution of a Tax Contest relating to Income Taxes).
(c) Nothing in this Section 2.8 shall require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.8.
Appears in 3 contracts
Samples: Separation and Distribution Agreement (Computer Sciences Government Services Inc.), Agreement and Plan of Merger (Computer Sciences Corp), Agreement and Plan of Merger (Sra International, Inc.)
Treatment of Shared Contracts. (a) Subject to applicable Law and without limiting the generality of the obligations set forth in Section 2.1, unless the Parties otherwise agree or agree, the benefits portion of any contract, agreement, arrangement, commitment or understanding described to which any member of the iStar Group is a party or by which any of their respective Assets is bound, in this Section 2.8 are expressly conveyed each case, as of immediately prior to the applicable Party pursuant Distribution Effective Time, that is related to this Agreement or an Ancillary Agreement, any contract or agreement, a portion of which is a Varex Contract, but the remainder of which is a Parent Asset Transferred Business (any such contract contract, agreement, arrangement, commitment or agreementunderstanding, a “Shared Contract”), shall be assigned assigned, at or prior to the Distribution Effective Time, in relevant part to the applicable member(s) of the applicable SpinCo Group, if so assignable, or appropriately amended prior to, on at or after the Distribution Effective Time, so that each Party or the member applicable member(s) of its the SpinCo Group shall, as of the Distribution Effective Time, be entitled to the rights and benefits, and shall assume the related portion of any Liabilities, inuring to its respective businessesthe Transferred Business to the same extent received and borne as of immediately prior to the Distribution Effective Time with respect to such Shared Contract; provided, however, that (i) in no event shall any member of any iStar Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which is not so assignable (or cannot be so amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and (ii) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then the Parties shall, and shall cause each of the members of their respective Groups to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a member of the Varex SpinCo Group or the Parent Group, as the case may be, to receive the rights and benefits of that portion of each Shared Contract that relates to the Varex Business or the Parent Transferred Business, as the case may be (in each case, to the extent so related), as if such Shared Contract had been assigned to (or amended to allow) a member of the applicable SpinCo Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.82.7(a), and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed by a member of the applicable SpinCo Group pursuant to this Section 2.8.
(b) Each of Parent and Varex shall2.7. Notwithstanding the foregoing, and shall cause the members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset owned by, and/or a Liability of, as applicable, such Party, or the members of its Group, as applicable, not later than the Effective Time, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law).
(c) Nothing in this Section 2.8 shall require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any no member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any other iStar Group in order to effect any transaction contemplated shall be required by this Section 2.82.7 to maintain in effect any Shared Contract, and no member of the SpinCo Group shall have any approval or other rights with respect to any amendment, termination or other modification of any Shared Contract.
Appears in 3 contracts
Samples: Separation and Distribution Agreement (Istar Inc.), Separation and Distribution Agreement (Star Holdings), Merger Agreement (Istar Inc.)
Treatment of Shared Contracts. (a) Subject to applicable Law and without limiting the generality of the obligations set forth in Section 2.1, unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding Contract described in this Section 2.8 2.7 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract or agreementContract, only a portion of which is a Varex Contract, but the remainder of which is a Parent Asset Transferred Contract (any such contract or agreementContract, a “Shared Contract”), shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Effective Time, so that each Party or the member of its Group shall, as of the Effective Time, be entitled to the rights and benefits, and shall assume the related portion of any Liabilities, inuring to its respective businesses; provided, however, that (i) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and (ii) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or if such assignment or amendment would impair the benefit the parties Parties thereto derive from such Shared Contract, then the Parties shall, and shall cause each of the members of their respective Groups to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a member of the Varex SpinCo Group or the Parent RemainCo Group, as the case may be, to receive the rights and benefits of that portion of each Shared Contract that relates to the Varex Nevada Business or the Parent Mexico Business, as the case may be (in each case, to the extent so related), as if such Shared Contract had been assigned to (or amended to allow) a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.82.7, and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed by a member of the applicable Group pursuant to this Section 2.82.7.
(b) Each of Parent the Company and Varex SpinCo shall, and shall cause the members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset Assets owned by, and/or a Liability Liabilities of, as applicable, such Party, or the members of its Group, as applicable, not later than the Effective Time, and (ii) neither report nor take any Tax position (on a Tax Return return or otherwise) inconsistent with such treatment (unless required by applicable Law).
(c) Nothing in this Section 2.8 2.7 shall require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.82.7. For purposes of this Section 2.7, “de minimis” shall be determined in reference to customary contracts of similar nature, character and size to the Shared Contracts and not in reference to the value of the transactions contemplated by the Merger Agreement or the Distribution.
Appears in 3 contracts
Samples: Separation and Distribution Agreement (Paramount Gold & Silver Corp.), Merger Agreement (Coeur Mining, Inc.), Separation and Distribution Agreement (Paramount Gold Nevada Corp.)
Treatment of Shared Contracts. (a) Subject to applicable Law and without limiting the generality of the obligations set forth in Section 2.1, unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding described in this Section 2.8 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any (i) contract or agreement, a portion of which is a Varex PayPal Contract, but and the remainder of which is a Parent an eBay Asset or (ii) any contract or agreement entered into prior to the Effective Time that relates to the PayPal Business but is not exclusively related to the PayPal Business and with respect to which the portion that relates to the PayPal Business cannot be divided (any such contract or agreement, a “Shared Contract”), shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Effective Time, so that each Party or the applicable member of its Group shall, as of the Effective Time, be entitled to the rights and benefits, and shall assume the related portion of any Liabilities, inuring to its respective businesses; provided, however, that (iA) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and (iiB) if any Shared Contract cannot be so partially assigned by its terms or otherwise, otherwise or cannot be amended or amended, if such assignment or amendment would impair the benefit the parties thereto derive from such Shared ContractContract or if such Shared Contract is listed or described on Schedule 2.8(a), then the Parties shall, and shall cause each of the members of their respective Groups to, take such other reasonable and permissible actions (including by providing prompt written notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a member of the Varex PayPal Group or the Parent eBay Group, as the case may be, to receive the rights and benefits of that portion of each Shared Contract that relates to the Varex PayPal Business or the Parent eBay Business, as the case may be respectively (in each case, to the extent so related), as if such Shared Contract had been assigned to (or amended to admit) a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.8, and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed by a member of the applicable Group pursuant to this Section 2.8.
(b) Each of Parent eBay and Varex PayPal shall, and shall cause the members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset Assets owned by, and/or a Liability Liabilities of, as applicable, such Party, or the members of its Group, as applicable, not later than the Effective Time, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law).
(c) Nothing in this Section 2.8 shall require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any the other Group in order to effect any transaction contemplated by this Section 2.8.
Appears in 3 contracts
Samples: Separation and Distribution Agreement, Separation and Distribution Agreement (Ebay Inc), Separation and Distribution Agreement (PayPal Holdings, Inc.)
Treatment of Shared Contracts. (a) Subject to applicable Law and without Without limiting the generality of the obligations set forth in Section 2.1, unless Sections 2.2(a) and (b):
(a) Unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding Contract described in this Section 2.8 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract or agreementContract that is listed on Schedule 2.3(a), a portion of which is a Varex Contract, but the remainder of which is a Parent Asset (any such contract or agreement, a “Shared Contract”), shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Effective Time, so that each Party or the member members of its Group shall, their respective Groups as of the Effective Time, Time shall be entitled to the rights and benefits, and shall assume Assume the related portion of any Liabilities, inuring to its their respective businessesBusinesses; provided, however, that (ix) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract (including any Policy) which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) , subject to Section 2.2(d), and (iiy) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or has not for any other reason been assigned or amended, or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then (I) at the Parties reasonable request of the Party (or the member of such Party’s Group) to which the benefit of such Shared Contract inures in part, the Party for which such Shared Contract is, as applicable, an IR Retained Asset or Allegion Asset shall, and shall cause each of its respective Subsidiaries to, for a period ending not later than six (6) months after the members Distribution Date (unless the term of their respective Groups toShared Contract ends at a later date, in which case for a period ending on such date), take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a such member of the Varex Allegion Group or the Parent IR Group, as the case may be, to receive the rights and benefits benefit of that portion of each Shared Contract that relates to the Varex Allegion Business or the Parent IR Retained Business, as the case may be (in each case, to the extent so related), ) as if such Shared Contract had been assigned to (or amended to allow) a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.8, 2.3 and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), ) as if such Liabilities had been assumed Assumed by a member of the applicable Group pursuant to this Section 2.82.3 and (II) the Party to which the benefit of such Shared Contract inures in part shall use commercially reasonable efforts to enter into a separate contract pursuant to which it procures such rights and obligations as are necessary such that it no longer needs to avail itself of the arrangements provided pursuant to this Section 2.3(a); provided that, the Party for which such Shared Contract is, as applicable, an IR Retained Asset or Allegion Asset, such Party, and such Party’s applicable Subsidiaries shall not be liable for any actions or omissions taken in accordance with clause (y) of this Section 2.3(a).
(b) Each of Parent IR and Varex Allegion shall, and shall cause the members of its Group to, (iA) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses Businesses as an Asset Assets owned by, and/or a Liability Liabilities of, as applicable, such Party, or the members Party as of its Group, as applicable, not later than the Effective Time, Time and (iiB) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable LawTax Law or good faith resolution of a Tax Contest relating to Taxes).
(c) Nothing in this Section 2.8 shall require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.8.
Appears in 3 contracts
Samples: Separation and Distribution Agreement (Allegion PLC), Separation and Distribution Agreement (Ingersoll-Rand PLC), Separation and Distribution Agreement (Allegion PLC)
Treatment of Shared Contracts. (a) Subject to applicable Law and without limiting the generality of the obligations set forth in Section 2.1, unless the Parties otherwise agree in writing or the benefits of any contract, agreement, arrangement, commitment or understanding described in this Section 2.8 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract or agreement, a portion of which is a Varex SpinCo Contract, but the remainder of which is a Parent Asset (any such contract or agreement, including those set forth on Schedule 2.8, a “Shared Contract”), shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Effective Time, so that each Party or the member of its Group shall, as of the Effective Time, (i) be entitled to the rights and benefits, and shall (ii) assume the related portion of any Liabilities, inuring to its respective businessesbusinesses and (iii) take any actions set forth on Schedule 2.8 with respect to such Shared Contract; provided, however, that (ix) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which that is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and (iiy) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then the Parties shall, and shall cause each of the members of their respective Groups to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a member of the Varex SpinCo Group or the Parent Group, as the case may be, to receive the rights and benefits of that portion of each Shared Contract that relates to the Varex SpinCo Business or the Parent Business, as the case may be (in each case, to the extent so related), as if such Shared Contract had been assigned to a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.8, and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed by a member of the applicable Group pursuant to this Section 2.8.
(b) Each of Parent and Varex SpinCo shall, and shall cause the members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset owned by, and/or a Liability of, as applicable, such Party, or the members of its Group, as applicable, not later than the Effective Time, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law).
(c) Nothing in this Section 2.8 shall require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.8.
Appears in 2 contracts
Samples: Separation and Distribution Agreement (GXO Logistics, Inc.), Separation and Distribution Agreement (GXO Logistics, Inc.)
Treatment of Shared Contracts. (a) Subject to applicable Law and without limiting the generality of the obligations set forth in Section 2.1, unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding described in this Section 2.8 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract or agreement, a portion of which is a Varex GRP&E/BCS Contract, but the remainder of which is a Parent Asset (any such contract or agreement, a “Shared Contract”), shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Effective Time, so that each Party or the member of its Group shall, as of the Effective Time, be entitled to the rights and benefits, and shall assume the related portion of any Liabilities, inuring to its respective businesses; provided, however, that (i) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and (ii) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then the Parties shall, and shall cause each of the members of their respective Groups to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a member of the Varex GRP&E/BCS Group or the Parent Group, as the case may be, to receive the rights and benefits of that portion of each Shared Contract that relates to the Varex GRP&E/BCS Business or the Parent Howmet Aerospace Business, as the case may be (in each case, to the extent so related), as if such Shared Contract had been assigned to a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.82.8 (or appropriately amended), and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed by a member of the applicable Group pursuant to this Section 2.82.8 (or appropriately amended).
(b) Each of Parent and Varex GRP&E/BCS SpinCo shall, and shall cause the members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset Assets owned by, and/or a Liability Liabilities of, as applicable, such Party, or the members of its Group, as applicable, not later than the Effective Time, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law).
(c) Nothing in this Section 2.8 shall require any member of any either Group to make any non-non de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-non de minimis obligation or grant any non-non de minimis concession for the benefit of any member of any the other Group in order to effect any transaction contemplated by this Section 2.8.
Appears in 2 contracts
Samples: Separation and Distribution Agreement (Arconic Corp), Separation and Distribution Agreement (Arconic Rolled Products Corp)
Treatment of Shared Contracts. (a) Subject to applicable Law and without limiting the generality of the obligations set forth in Section 2.1, unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding described in this Section 2.8 are expressly conveyed or made available to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract or agreement, a the Parties shall cause the portion of which is a Varex Contract, but the remainder of which is a Shared Contract relating to the Parent Asset (any such contract or agreement, a “Shared Contract”), shall Business to be assigned in relevant part to the applicable member(s) of the Parent Group and the portion related to the SpinCo Business to be assigned to the applicable member(s) of the SpinCo Group, if so assignable, or shall cause the Shared Contract to be appropriately amended or otherwise modified prior to, on or after the Effective Time, so that each Party or the member other members of its Group shall, as of the Effective Time, be entitled to the rights and benefits, and shall assume the related portion of any Liabilities, inuring to its respective businesses; provided, however, that (i) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and ), (ii) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or modified or if such assignment assignment, amendment or amendment modification would impair the benefit the parties thereto derive from such Shared Contract, then the Parties shall, and shall cause each of the members of their respective Groups to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a member of the Varex SpinCo Group or the Parent Group, as the case may be, to receive the rights and benefits of that portion of each Shared Contract that relates to the Varex SpinCo Business or the Parent Business, as the case may be (in each case, to the extent so related), as if such Shared Contract had been assigned to a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.8, and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed by a member of the applicable Group pursuant to this Section 2.82.8 (iii) with respect to any Shared Commercial Contract (other than the Shared Commercial Contracts described on Schedule 2.8(a)), (A) it shall be a permissible method of implementing the requirements of this Section 2.8 to modify such Shared Commercial Contract (including modification by unilateral notice to the counterparty or similar action) to remove the products of the other Party from the scope of such Shared Commercial Contract, and (B) if the modification described in the foregoing clause (A) cannot be effected by unilateral action, the Party (or the applicable member of its Group) which is party to such Shared Commercial Contract shall not be in violation of this Section 2.8 as a result of notifying the counterparty to such Shared Commercial Contract of its intent to remove the products of the other Party from the scope of such Shared Commercial Contracts (it being understood that, notwithstanding such notice, such Party (or the applicable member of its Group) will continue to be obligated to otherwise comply with this Section 2.8 with respect to such Shared Commercial Contract), and (iv) this Section 2.8(a) shall not apply to the Shared Commercial Contracts set forth on Schedule 2.8(a).
(b) Each Except as otherwise required by applicable Law, each of Parent and Varex SpinCo shall, and shall cause the members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset owned by, and/or a Liability of, as applicable, such Party, or the members of its Group, as applicable, not later than the Effective Time, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law)treatment.
(c) Nothing in this Section 2.8 shall (a) require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.8, and (b) with respect to Shared Contracts that are sourcing contracts, require the Party (or the applicable member of its Group) that is party thereto to purchase on behalf of the other Party (or any member of its Group) under such Shared Contract if such Shared Contract cannot be assigned, amended or modified in the manner contemplated by Section 2.8(a).
Appears in 2 contracts
Samples: Separation and Distribution Agreement (3m Co), Separation and Distribution Agreement (Solventum Corp)
Treatment of Shared Contracts. (a) Subject to applicable Law and without limiting the generality of the obligations set forth in Section 2.1, unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding described in this Section 2.8 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract or agreement, a portion of which is a Varex SpinCo Contract, but the remainder of which is a Parent Asset (any such contract or agreement, a “Shared Contract”), shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Effective Time, so that each Party or the member of its Group shall, as of the Effective Time, be entitled to the rights and benefits, and shall assume the related portion of any Liabilities, inuring to its respective businesses; provided, however, that (i) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and (ii) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then the Parties shall, and shall cause each of the members of their respective Groups to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a member of the Varex SpinCo Group or the Parent Group, as the case may be, to receive the rights and benefits of that portion of each Shared Contract that relates to the Varex SpinCo Business or the Parent Business, as the case may be (in each case, to the extent so related), as if such Shared Contract had been assigned to a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.8, and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed by a member of the applicable Group pursuant to this Section 2.8.
(b) Each of Parent and Varex SpinCo shall, and shall cause the members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset owned by, and/or a Liability of, as applicable, such Party, or the members of its Group, as applicable, not later than the Effective Time, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law).
(c) Nothing in this Section 2.8 shall require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.8.
Appears in 2 contracts
Samples: Separation and Distribution Agreement (Cars.com Inc.), Separation and Distribution Agreement (Cars.com Inc.)
Treatment of Shared Contracts. (a) Subject to applicable Law Law, the Parties shall use reasonable best efforts to enter into or to grant, and without limiting the generality of the obligations use reasonable best efforts to cause each Third Party counterparty to each Contract set forth in Section 2.1, unless Schedule 2.3(a) (as such Schedule is updated by the mutual written agreement of the Parties otherwise agree or (following approval by the benefits VMware Special Committee) after the date of any contract, agreement, arrangement, commitment or understanding described in this Section 2.8 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract or agreement, a portion of which is a Varex ) (each such Contract, but the remainder of which is a Parent Asset (any such contract or agreement, a “Shared Contract”)) to enter into or to grant, shall be assigned in relevant part to the applicable member(s) of the applicable Groupany new agreements, if so assignablebifurcations, assignments, novations or appropriately amended prior to, on or after the Effective Time, consents so that each Party or the member of its Group shall, as of the Separation Effective Time, be entitled to the claims, rights and benefits, and shall assume the related portion of any Liabilities, inuring to its respective businesses; provided, however, that (i) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where as each such consents or conditions have not been obtained or fulfilled) and (ii) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or if such assignment or amendment would impair the benefit the parties thereto derive Person derives from such Shared Contract, then Contract immediately prior to the Parties shall, and shall cause each Separation Effective Time (such portion of the members of their respective Groups toclaims, take such other reasonable rights benefits and permissible actions (including by providing prompt notice to the other Party with respect Liabilities that are related to any relevant claim of Liability business or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a member businesses of the Varex Group VMware Group, is referred to herein as the “VMware Business Portion” and such portion of the claims, rights, benefits and Liabilities that are related to any business or businesses of the Parent Dell Group, is referred to herein as the “Dell Business Portion”). If, at the Separation Effective Time, any such new agreement, bifurcation, assignment, novation or consent, as the case may be, is not obtained with respect to receive a Shared Contract, the Parties shall (i) continue to use reasonable best efforts for a period of 24 months following the Separation Date to enter into or to grant, and to cause each Third Party counterparty to such Shared Contract to enter into or to grant, any such new agreements, bifurcations, assignments, novations or consents, as applicable, (ii) cooperate (at their own expense) reasonably and lawfully for a period of 24 months following the Separation Date or until a new contract is entered into with the applicable Third Party, in a mutually acceptable arrangement under which the applicable Party or the applicable member of its Groups, would, where commercially reasonable and in compliance with applicable Law, continue to obtain the same claims, rights and benefits and assume and perform and bear the related Liabilities of that portion the VMware Business Portion of each Shared Contract that relates to the Varex Business or the Parent Business, as the case may be (in each case, to the extent so related), as if such Shared Contract had been assigned (in the case of VMware) and the Dell Business Portion of such Shared Contract (in the case of Dell), including by means of subcontracting, sublicensing or subleasing arrangements, or enforcement by the party to a member such Shared Contract for the benefit (and at the expense) of the applicable Group (Party or amended to allow a the applicable member of the applicable its Group to exercise applicable rights under such Shared Contract) that is an intended beneficiary thereof pursuant to this Section 2.82.3(a) and (iii) pay, and reimburse or otherwise be responsible for the VMware Business Portion or the Dell Business Portion, as applicable, of all license or other fees payable to bear the burden any licensor or counterparty by any of the corresponding Liabilities (including foregoing or any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed by a member of their respective Groups under any such Shared Contract on the applicable Group pursuant same basis as in effect immediately prior to this Section 2.8the Distribution Date.
(b) Each of Parent Dell and Varex VMware shall, and shall cause the members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset owned by, and/or or a Liability of, as applicable, such Party, or the members of its Group, as applicable, not later than the Separation Effective Time, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law).
(c) Nothing Notwithstanding anything to the contrary set forth in this Section 2.8 shall require 2.3, neither Party nor any member of its Group shall (i) be required to take any Group action pursuant to make Section 2.3(a) that would (x) result in a violation of any non-de minimis payment (except to the extent advanced, assumed obligation which such Party or agreed in advance to be reimbursed by any member of the other Groupits Group has to any Third Party, (y) constitute a breach or violation of any applicable Law (whether by operation of law or otherwise), incur any non-de minimis obligation or grant any non-de minimis concession for (z) adversely affect the benefit rights of such Party or any member of its Group thereunder (unless the prior written consent of such Party has been obtained), (ii) be obligated to pay (or cause to be paid) (x) fees, costs or expenses in connection with their obligations under Section 2.3(a) (other than (x) immaterial administrative and legal costs and expenses or (y) as expressly set forth in Section 2.3(a)(iii)) or (y) any consideration to any Third Party who is requested to enter into or to grant any such new agreements, bifurcations, assignments, novations or consents (other Group than as expressly set forth in order Section 2.3(a)(iii)), or (iii) be required to effect take any transaction contemplated by action pursuant to this Section 2.82.3 in connection with any Contract that is not a Shared Contract.
Appears in 2 contracts
Samples: Separation and Distribution Agreement (Dell Technologies Inc.), Separation and Distribution Agreement (Vmware, Inc.)
Treatment of Shared Contracts. (a) Subject to applicable Law and without limiting the generality of the obligations set forth in Section 2.1, unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding described in this Section 2.8 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract or agreement, agreement entered into by a portion member of which the SPG Group with a Third Party that is not a Varex WPG Contract, but pursuant to which the remainder WPG Business, as of which is a Parent Asset the Effective Date, has been provided certain revenues or other benefits in respect of the WPG Properties (any such contract or agreement, a “Shared Contract”), ) shall not be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, WPG Group or appropriately amended prior to, on or after to give the Effective Time, so that each Party or the member of its Group shall, as relevant member(s) of the Effective Time, be entitled WPG Group any entitlement to the such rights and benefits, and shall assume the related portion of any Liabilities, inuring to its respective businessesbenefits thereunder; provided, however, that (i) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and (ii) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then the Parties shall, and shall cause each of the members of their respective Groups to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a (i) the relevant member of the Varex WPG Group or the Parent Group, as the case may be, to receive the rights and benefits previously provided in the ordinary course of that portion of each Shared Contract that relates to the Varex Business or the Parent Businessbusiness, as the case may be (in each caseconsistent with past practice, to the extent so related), as if WPG Business pursuant to such Shared Contract had been assigned to a and (ii) the relevant member of the applicable WPG Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.8, and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of under such arrangement)Shared Contract. Notwithstanding the foregoing, as if such Liabilities had been assumed by a no member of the applicable SPG Group pursuant to shall be required by this Section 2.82.8 to maintain in effect any Shared Contract, and no member of the WPG Group shall have any approval or other rights with respect to any amendment, termination or other modification of any Shared Contract.
(b) Each of Parent SPG and Varex WPG shall, and shall cause the members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset Assets owned by, and/or a Liability Liabilities of, as applicable, such Party, or the members of its Group, as applicable, not later than the Effective Time, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law).
(c) Nothing in this Section 2.8 shall require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.8.
Appears in 2 contracts
Samples: Separation and Distribution Agreement (Washington Prime Group Inc.), Separation and Distribution Agreement (Washington Prime Group Inc.)
Treatment of Shared Contracts. (a) Subject to applicable Law and without Without limiting the generality of the obligations set forth in Section 2.1, unless 2.2(a) and 2.2(b):
(a) Unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding Contract described in this Section 2.8 2.3 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract or agreement, Contract (i) that is a Parent Retained Asset but a portion of which is inures to the benefit of a Varex Contract, member of the SpinCo Group or (ii) a SpinCo Contract but the remainder a portion of which is materially inures to the benefit of a member of the Parent Asset Group (any such contract or agreementeach, a “Shared Contract”), ) shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Effective Time, so that each Party or the member members of its Group shall, their respective Groups as of the Effective Time, Time shall be entitled to the rights and benefits, and shall assume Assume the related portion of any Liabilities, inuring to its their respective businessesBusinesses; provided, however, that (ix) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract (including any Policy) which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) , subject to Section 2.2(d)), and (iiy) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or has not for any other reason been assigned or amended, or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then (A) at the Parties reasonable request of the Party (or the member of such Party’s Group) to which the benefit of such Shared Contract inures in part, the Party for which such Shared Contract is, as applicable, a Parent Retained Asset or SpinCo Asset shall, and shall cause each of its respective Subsidiaries to, for a period ending not later than six (6) months after the members Distribution Date (unless the term of their respective Groups toShared Contract (excluding any extensions thereof) ends at a later date, in which case for a period ending on such date), take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a such member of the Varex SpinCo Group or the Parent Group, as the case may be, to receive the rights and benefits benefit of that portion of each Shared Contract that relates to the Varex SpinCo Business or the Parent Retained Business, as the case may be (in each case, to the extent so related), ) as if such Shared Contract had been assigned to (or amended to allow) a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.8, 2.3 and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), ) as if such Liabilities had been assumed Assumed by a member of the applicable Group pursuant to this Section 2.82.3; provided that the Party for which such Shared Contract is a Parent Retained Asset or a SpinCo Asset, as applicable, shall be indemnified for all Indemnifiable Losses or other Liabilities arising out of any actions (or omissions to act) of such retaining Party taken at the direction of the other Party (or relevant member of its Group) in connection with and relating to such Shared Contract, as the case may be, and (B) the Party to which the benefit of such Shared Contract inures in part shall use commercially reasonable efforts to enter into a separate contract pursuant to which it procures such rights and obligations as are necessary such that it no longer needs to avail itself of the arrangements provided pursuant to this Section 2.3(a); provided that, depending on whether such Shared Contract is a Parent Retained Asset or SpinCo Asset, then the applicable Parent Group Member or SpinCo Group Member for which such Shared Contract is not an Asset shall not be liable for any actions or omissions taken in accordance with clause (y) of this Section 2.3(a).
(b) Each of Parent and Varex SpinCo shall, and shall cause the members of its Group to, (iA) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses Businesses as an Asset Assets owned by, and/or a Liability Liabilities of, as applicable, such Party, or the members Party as of its Group, as applicable, not later than the Effective Time, Time and (iiB) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable LawLaw or good faith resolution of a Tax Contest).
(c) Nothing in this Section 2.8 shall require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.8.
Appears in 2 contracts
Samples: Separation and Distribution Agreement (N-Able, Inc.), Separation and Distribution Agreement (N-Able, LLC)
Treatment of Shared Contracts. (a) Subject to applicable Law and without limiting the generality of the obligations set forth in Section 2.1, unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding described in this Section 2.8 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract or agreement, a portion of which is a Varex SpinCo Contract, but the remainder of which is a Parent Asset (any such contract or agreement, a “Shared Contract”), shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Effective Time, so that each Party or the member of its Group shall, as of the Effective Time, be entitled to the rights and benefits, and shall assume the related portion of any Liabilities, inuring to its respective businesses; provided, however, that (i) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign (or amend) a portion of any Shared Contract which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and (ii) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended amended, or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then the Parties shall, and shall cause each of the members of their respective Groups to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a member of the Varex SpinCo Group or the Parent Group, as the case may be, to receive the rights and benefits of that portion of each Shared Contract that relates to the Varex SpinCo Business or the Parent Business, as the case may be (in each case, to the extent so related), as if such Shared Contract had been assigned to a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.8, and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed by a member of the applicable Group pursuant to this Section 2.8.
(b) Each Except as otherwise required by applicable Law, as determined by Parent in its reasonable discretion, each of Parent and Varex SpinCo shall, and shall cause the members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset owned by, and/or a Liability of, as applicable, such Party, or the members of its Group, as applicable, not later than the Effective TimeTime (or such earlier time as provided under a Transfer Document), and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law)treatment.
(c) Nothing in this Section 2.8 shall require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.8.
Appears in 2 contracts
Samples: Separation and Distribution Agreement (Mdu Resources Group Inc), Separation and Distribution Agreement (Everus Construction Group, Inc.)
Treatment of Shared Contracts. (a) Subject to applicable Law and without limiting the generality of the obligations set forth in Section 2.1, unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding described in this Section 2.8 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract or agreement, a portion of which is a Varex SpinCo Contract, but the remainder of which is a Parent Asset (any such contract or agreement, a “Shared Contract”), shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Effective Time, so that each Party or the member of its Group shall, as of the Effective Time, be entitled to the rights and benefits, and shall assume the related portion of any Liabilities, inuring to its respective businesses; provided, however, that (i) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which that is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and (ii) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then the Parties shall, and shall cause each of the members of their respective Groups to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a member of the Varex SpinCo Group or the Parent Group, as the case may be, to receive the rights and benefits of that portion of each Shared Contract that relates to the Varex SpinCo Business or the Parent Business, as the case may be (in each case, to the extent so related), as if such Shared Contract had been assigned to a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.8, and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed by a member of the applicable Group pursuant to this Section 2.8.
(b) Each of Parent and Varex SpinCo shall, and shall cause the members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset owned by, and/or a Liability of, as applicable, such Party, or the members of its Group, as applicable, not later than the Effective Time, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law).
(c) Nothing in this Section 2.8 shall require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.8.
Appears in 2 contracts
Samples: Separation and Distribution Agreement (Frontdoor, Inc.), Separation and Distribution Agreement (AHS Holding Company, Inc.)
Treatment of Shared Contracts. (a) Subject to applicable Law and without Without limiting the generality of the obligations set forth in Section 2.1, unless Sections 2.2(a) and (b):
(a) Unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding Contract described in this Section 2.8 2.3 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract or agreement, a portion of which Contract that is a Varex Contract, but the remainder of which is a Parent Asset listed on Schedule 2.3(a) (any such contract or agreement, a “Shared Contract”), ) shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Effective Time, so that each Party or the member members of its Group shall, their respective Groups as of the Effective Time, Time shall be entitled to the rights and benefits, and shall assume Assume the related portion of any Liabilities, inuring to its their respective businessesBusinesses; provided, however, that (ix) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract (including any Policy) which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) , subject to Section 2.2(d)), and (iiy) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or has not for any other reason been assigned or amended, or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then (A) at the Parties reasonable request of the Party (or the member of such Party’s Group) to which the benefit of such Shared Contract inures in part, the Party for which such Shared Contract is, as applicable, a Xxxxxxx Retained Asset or Fortive Asset shall, and shall cause each of its respective Subsidiaries to, for a period ending not later than six (6) months after the members Distribution Date (unless the term of their respective Groups toShared Contract (excluding any extensions thereof) ends at a later date, in which case for a period ending on such date), take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a such member of the Varex Fortive Group or the Parent Xxxxxxx Group, as the case may be, to receive the rights and benefits benefit of that portion of each Shared Contract that relates to the Varex Fortive Business or the Parent Xxxxxxx Retained Business, as the case may be (in each case, to the extent so related), ) as if such Shared Contract had been assigned to (or amended to allow) a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.8, 2.3 and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), ) as if such Liabilities had been assumed Assumed by a member of the applicable Group pursuant to this Section 2.82.3; provided that the Party for which such Shared Contract is a Xxxxxxx Retained Asset or a Fortive Asset, as applicable, shall be indemnified for all Indemnifiable Losses or other Liabilities arising out of any actions (or omissions to act) of such retaining Party taken at the direction of the other Party (or relevant member of its Group) in connection with and relating to such Shared Contract, as the case may be, and (B) the Party to which the benefit of such Shared Contract inures in part shall use commercially reasonable efforts to enter into a separate contract pursuant to which it procures such rights and obligations as are necessary such that it no longer needs to avail itself of the arrangements provided pursuant to this Section 2.3(a); provided that, the Party for which such Shared Contract is, as applicable, a Xxxxxxx Retained Asset or Fortive Asset, and such Party’s applicable Subsidiaries shall not be liable for any actions or omissions taken in accordance with clause (y) of this Section 2.3(a).
(b) Each of Parent Xxxxxxx and Varex Fortive shall, and shall cause the members of its Group to, (iA) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses Businesses as an Asset Assets owned by, and/or a Liability Liabilities of, as applicable, such Party, or the members Party as of its Group, as applicable, not later than the Effective Time, Time and (iiB) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable LawLaw or good faith resolution of a Tax Contest).
(c) Nothing in this Section 2.8 shall require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.8.
Appears in 2 contracts
Samples: Separation and Distribution Agreement, Separation and Distribution Agreement (Fortive Corp)
Treatment of Shared Contracts. (a) Subject to applicable Law and without Without limiting the generality of the obligations set forth in Section 2.1, unless Sections 2.2(a) and (b):
(a) Unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding Contract described in this Section 2.8 2.3 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract or agreement, a portion of which Contract that is a Varex Contract, but the remainder of which is a Parent Asset listed on Schedule 2.3(a) (any such contract or agreement, a “Shared Contract”), ) shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on at or after the Effective Time, so that each Party or the member members of its Group shall, their respective Groups as of the Effective Time, Time shall be entitled to the rights and benefits, and shall assume Assume the related portion of any Liabilities, inuring to its their respective businessesBusinesses; provided, however, that (ix) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract (including any Policy) which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) , subject to Section 2.2(d)), and (iiy) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or has not for any other reason been assigned or amended, or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then (A) at the Parties reasonable request of the Party (or the member of such Party’s Group) to which the benefit of such Shared Contract inures in part, the Party for which such Shared Contract is, as applicable, a Fortive Retained Asset or Vontier Asset shall, and shall cause each of its respective Subsidiaries to, for a period ending not later than eighteen (18) months after the members Distribution Date (unless the term of their respective Groups toa Shared Contract (excluding any extensions thereof) ends at a later date, in which case for a period ending on such date), take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a such member of the Varex Vontier Group or the Parent Fortive Group, as the case may be, to receive the rights and benefits benefit of that portion of each Shared Contract that relates to the Varex Vontier Business or the Parent Fortive Retained Business, as the case may be (in each case, to the extent so related), ) as if such Shared Contract had been assigned to (or amended to allow) a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.8, 2.3 and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), ) as if such Liabilities had been assumed Assumed by a member of the applicable Group pursuant to this Section 2.82.3; provided that the Party for which such Shared Contract is a Fortive Retained Asset or a Vontier Asset, as applicable, shall be indemnified for all Indemnifiable Losses or other Liabilities arising out of any actions (or omissions to act) of such retaining Party taken at the direction of the other Party (or relevant member of its Group) in connection with and relating to such Shared Contract, as the case may be, and (B) the Party to which the benefit of such Shared Contract inures in part shall use commercially reasonable efforts to enter into a separate contract pursuant to which it procures such rights and obligations as are necessary such that it no longer needs to avail itself of the arrangements provided pursuant to this Section 2.3(a); provided that, the Party for which such Shared Contract is, as applicable, a Fortive Retained Asset or Vontier Asset, and such Party’s applicable Subsidiaries shall not be liable for any actions or omissions taken in accordance with clause (y) of this Section 2.3(a).
(b) Each Unless otherwise determined by Fortive in its sole discretion, each of Parent Fortive and Varex Vontier shall, and shall cause the members of its Group to, (iA) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses Businesses as an Asset Assets owned by, and/or a Liability Liabilities of, as applicable, such Party, or the members Party as of its Group, as applicable, not later than the Effective Time, Time and (iiB) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable LawLaw or good faith resolution of a Tax Contest).
(c) Nothing in this Section 2.8 shall require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.8.
Appears in 2 contracts
Samples: Separation and Distribution Agreement (Vontier Corp), Separation and Distribution Agreement (Vontier Corp)
Treatment of Shared Contracts. (a) Subject to applicable Law and without limiting the generality of the obligations set forth in Section 2.12.1, unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding described in this Section 2.8 2.8 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract or agreement, a portion of which is a Varex ContractINSW Asset, but the remainder of which is a Parent OSG Asset (any such contract or agreement, a “Shared Contract”), shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Effective Time, so that each Party or the member of its Group shall, as of the Effective Time, be entitled to the rights and benefits, and shall assume the related portion of any Liabilities, inuring to its respective businesses; provided, however, provided that (i) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which that is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and (ii) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then the Parties shall, and shall cause each of the members of their respective Groups to, for a period ending not later than six (6) months after the Effective Time (unless the term of the Shared Contract ends at a later date, in which case for a period ending on such date), take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a member of the Varex INSW Group or the Parent OSG Group, as the case may be, to receive the rights and benefits of that portion of each Shared Contract that relates to the Varex INSW Business or the Parent OSG Business, as the case may be (in each case, to the extent so related), as if such Shared Contract had been assigned to (or amended to allow) a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.82.8, and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed by a member of the applicable Group pursuant to this Section 2.82.8; provided further that the Party for which such Shared Contract is an OSG Asset or an INSW Asset, as applicable, shall be indemnified for all Liabilities arising out of any actions (or omissions to act) of such retaining Party taken at the direction of the other Party (or relevant member of its Group) in connection with and relating to such Shared Contract, as the case may be, and the Party to which the benefit of such Shared Contract inures in part shall use commercially reasonable efforts to enter into a separate contract pursuant to which it procures such rights and obligations as are necessary such that it no longer needs to avail itself of the arrangements provided pursuant to this Section 2.8(a); provided further that the Party for which such Shared Contract is, as applicable, an OSG Asset or INSW Asset, and such Party’s applicable Subsidiaries shall not be liable for any actions or omissions taken in accordance with this Section 2.8(a)(ii).
(b) Each of Parent OSG and Varex INSW shall, and shall cause the members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset Assets owned by, and/or a Liability Liabilities of, as applicable, such Party, or the members of its Group, as applicable, not later than the Effective Time, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law).
(c) Nothing in this Section 2.8 2.8 shall require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.82.8.
Appears in 2 contracts
Samples: Separation and Distribution Agreement (International Seaways, Inc.), Separation and Distribution Agreement (International Seaways, Inc.)
Treatment of Shared Contracts. (a) Subject to applicable Law and without Without limiting the generality of the obligations set forth in Section 2.1, unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding described in this Section 2.8 are expressly conveyed to the applicable Party party pursuant to this Agreement or an Ancillary Agreement, any contract or contract, agreement, a portion of which arrangement, commitment or understanding that is a Varex Contract, but the remainder of which is a Parent Asset (any such contract or agreement, a “Shared Contract”), listed on Schedule 2.8(a) shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Effective TimeDate, so that each Party or the member members of its respective Group shall, as of the Effective TimeDate, be entitled to the rights and benefits, and shall assume the related portion of any Liabilities, inuring to its respective businesses, in each case, in accordance with the allocation of benefits and burdens set forth on Schedule 2.8(a) (each, a “Schedule 2.8 Contract”); provided, however, that that, (i) in no event shall any member of any Group be required to assign (or amend) any Shared Schedule 2.8 Contract in its entirety or to assign a portion of any Shared Schedule 2.8 Contract which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and (ii) if any Shared Schedule 2.8 Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Schedule 2.8 Contract, then the Parties shall, and shall cause each of the members of their respective Groups Subsidiaries to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Schedule 2.8 Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Schedule 2.8 Contract) to cause a member of the Varex Venator Group or the Parent Huntsman Group, as the case may be, to receive the rights and benefits of that portion of each Shared Schedule 2.8 Contract that relates to the Varex Venator Business or the Parent Businessbusinesses retained by Huntsman, as the case may be (in each case, to the extent so related), as if such Shared Schedule 2.8 Contract had been assigned to (or amended to allow) a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.8, and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed by a member of the applicable Group pursuant to this Section 2.8.
(b) Each of Parent Huntsman and Varex Venator shall, and shall cause the members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset Assets owned by, and/or a Liability Liabilities of, as applicable, such Party, or the members of its GroupSubsidiaries, as applicable, not later than the Effective Time, Date; and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law).
(c) Nothing in this Section 2.8 shall require any member of any Group to make any non-de minimis material payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis material obligation or grant any non-de minimis material concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.8.
Appears in 2 contracts
Samples: Separation Agreement (Venator Materials PLC), Separation Agreement (Venator Materials PLC)
Treatment of Shared Contracts. (a) Subject to applicable Law and without Without limiting the generality of the obligations set forth in Section Sections 2.1, 2.2 and 2.3, unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding Contract described in this Section 2.8 2.12 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, (i) any contract or agreement, a portion of which Contract that is a Varex Contract, but the remainder of which is a Parent Asset (any such contract or agreement, a “Shared Contract”), listed on Schedule 2.12(a) shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Effective TimeDistribution Date, so that each Party or the member members of its respective Group shall, as of the Effective TimeDistribution Date, be entitled to the rights and benefits, and shall assume the related portion of any Liabilities, inuring to its respective businesses, in each case, unless otherwise specifically agreed to by the Parties, in accordance with the allocation of benefits and burdens reasonably determined by Parent after taking into consideration (A) the rights, benefits and Liabilities historically allocated to each Party or the members of its respective Group prior to the Distribution Date and (B) the anticipated future rights, benefits and Liabilities of each Party or members of its respective Group under the applicable Contract after the Distribution Date, and (ii) (A) any Contract that is a Retained Business Asset or Retained Business Liability but, prior to the Distribution Date, inured in part to the benefit or burden of any member of the Spinco Group (other than any such Contract covering substantially the same services or arrangements that are covered by a Contract entered into by a member of the Spinco Group in connection with the Separation), and (B) any Contract that is an LDC Asset or an LDC Liability but, prior to the Distribution Date, inured in part to the benefit or burden of any member of the Parent Group (other than any such Contract covering substantially the same services or arrangements that are covered by a Contract entered into by a member of the Parent Group in connection with the Separation), shall be assigned in part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Distribution Date, so that each Party or the members of its respective Group shall, as of the Distribution Date, be entitled to the rights and benefits, and shall assume the related portion of any Liabilities, inuring to its respective businesses (any contract, agreement, arrangement, commitment or understanding referred to in clause (i) or (ii) above, a “Shared Contract”); provided, however, that that, in the case of each of clause (i) and (ii), (1) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and (ii2) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or if such assignment or amendment would impair the benefit the parties Parties thereto derive from such Shared Contract, then the Parties shall, and shall cause each of the members of their respective Groups Subsidiaries to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a member of the Varex Spinco Group or the Parent Group, as the case may be, to receive the rights and benefits of that portion of each Shared Contract that relates to the Varex LDC Business or the Parent BusinessRetained Businesses, as the case may be (in each case, to the extent so related), as if such Shared Contract had been assigned to (or amended to allow) a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.82.12, and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed by a member of the applicable Group pursuant to this Section 2.82.12.
(b) Each of Parent and Varex Spinco shall, and shall cause the members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset Assets owned by, and/or a Liability Liabilities of, as applicable, such Party, or the members of its GroupSubsidiaries, as applicable, not later than the Effective TimeDistribution Date, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law).
(c) Nothing in this Section 2.8 2.12 shall require any member of any Group to make any non-de minimis material payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis material obligation or grant any non-de minimis material concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.82.12.
Appears in 2 contracts
Samples: Separation and Distribution Agreement (Oneok Inc /New/), Separation and Distribution Agreement (ONE Gas, Inc.)
Treatment of Shared Contracts. (a) Subject to applicable Law and without limiting the generality of the obligations set forth in Section 2.1, unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding described in this Section 2.8 2.9 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract or agreement, a portion of which is relates to matters that would be the subject of a Varex SpinCo Contract, but the remainder of which is relates to matters that would be the subject of a Parent Asset (any such contract or agreement, a “Shared Contract”), shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Effective Separation Time, so that each Party or the member of its Group shall, as of the Effective Separation Time, be entitled to the rights and benefits, and shall assume the related portion of any Liabilities, inuring to its respective businesses; provided, however, that (i) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and (ii) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then the Parties shall, and shall cause each of the members of their respective Groups to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a member of the Varex SpinCo Group or the Parent Group, as the case may be, to receive the rights and benefits of that portion of each Shared Contract that relates to the Varex SpinCo Business or the Parent Business, as the case may be (in each case, to the extent so related), as if such Shared Contract had been assigned to a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.82.9, and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed by a member of the applicable Group pursuant to this Section 2.82.9.
(b) Each of Parent and Varex SpinCo shall, and shall cause the members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset owned by, and/or a Liability of, as applicable, such Party, or the members of its Group, as applicable, not later than the Effective Separation Time, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law).
(c) Nothing in this Section 2.8 2.9 shall require any member of any Group to make any non-de de-minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de de-minimis obligation or grant any non-de de-minimis concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.82.9.
Appears in 2 contracts
Samples: Master Separation Agreement (Bausch & Lomb Corp), Master Separation Agreement (Bausch Health Companies Inc.)
Treatment of Shared Contracts. (a) Subject to applicable Law and without limiting the generality of the obligations set forth in Section 2.1, unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding described in this Section 2.8 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any (i) contract or agreement, a portion of which is a Varex Concentrix Contract, but and the remainder of which is a Parent an SYNNEX Asset or (ii) any contract or agreement entered into prior to the Effective Time that relates to the Concentrix Business but is not exclusively related to the Concentrix Business and with respect to which the portion that relates to the Concentrix Business cannot be divided (any such contract or agreement, a “Shared Contract”), shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Effective Time, so that each Party or the applicable member of its Group shall, as of the Effective Time, be entitled to the rights and benefits, and shall assume the related portion of any Liabilities, inuring to its respective businesses; provided, however, that (iA) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and (iiB) if any Shared Contract cannot be so partially assigned by its terms or otherwise, otherwise or cannot be amended or amended, if such assignment or amendment would impair the benefit the parties thereto derive from such Shared ContractContract or if such Shared Contract is listed or described on Schedule 2.8(a), then the Parties shall, and shall cause each of the members of their respective Groups to, take such other reasonable and permissible actions (including by providing prompt written notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a member of the Varex Concentrix Group or the Parent SYNNEX Group, as the case may be, to receive the rights and benefits of that portion of each Shared Contract that relates to the Varex Concentrix Business or the Parent SYNNEX Business, as the case may be respectively (in each case, to the extent so related), as if such Shared Contract had been assigned to (or amended to admit) a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.8, and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed by a member of the applicable Group pursuant to this Section 2.8.
(b) Each of Parent SYNNEX and Varex Concentrix shall, and shall cause the members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset Assets owned by, and/or a Liability Liabilities of, as applicable, such Party, or the members of its Group, as applicable, not later than the Effective Time, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law).
(c) Nothing in this Section 2.8 shall require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any the other Group in order to effect any transaction contemplated by this Section 2.8.
Appears in 2 contracts
Samples: Separation and Distribution Agreement (Concentrix Corp), Separation and Distribution Agreement (Concentrix Corp)
Treatment of Shared Contracts. (a) Subject to applicable Law and without Without limiting the generality of the obligations set forth in Section 2.1, unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding described in this Section 2.8 are expressly conveyed to the applicable Party party pursuant to this Agreement or an Ancillary Agreement, any contract or contract, agreement, a portion of which arrangement, commitment or understanding that is a Varex Contract, but the remainder of which is a Parent Asset (any such contract or agreement, a “Shared Contract”), listed on Schedule 2.8(a) shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Effective TimeDate, so that each Party or the member members of its respective Group shall, as of the Effective TimeDate, be entitled to the rights and benefits, and shall assume the related portion of any Liabilities, inuring to its respective businesses, in each case, in accordance with the allocation of benefits and burdens set forth on Schedule 2.8(a) (each, a “Schedule 2.8 Contract”); provided, however, that that, (i) in no event shall any member of any Group be required to assign (or amend) any Shared Schedule 2.8 Contract in its entirety or to assign a portion of any Shared Schedule 2.8 Contract which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and (ii) if any Shared Schedule 2.8 Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Schedule 2.8 Contract, then the Parties shall, and shall cause each of the members of their respective Groups Subsidiaries to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Schedule 2.8 Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Schedule 2.8 Contract) to cause a member of the Varex Venator Group or the Parent Huntsman Group, as the case may be, to receive the rights and benefits of that portion of each Shared Schedule 2.8 Contract that relates to the Varex Venator Business or the Parent Businessbusinesses retained by Huntsman, as the case may be (in each case, to the extent so related), as if such Shared Schedule 2.8 Contract had been assigned to (or amended to allow) a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.8, and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed by a member of the applicable Group pursuant to this Section 2.8.
(b) Each of Parent Huntsman and Varex Venator shall, and shall cause the members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset Assets owned by, and/or a Liability Liabilities of, as applicable, such Party, or the members of its GroupSubsidiaries, as applicable, not later than the Effective Time, Date; and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law).
(c) Nothing in this Section 2.8 shall require any member of any Group to make any non-de minimis material payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis material obligation or grant any non-de minimis material concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.8; provided, however, that the requirement to provide financial support in the form of a parent company guarantee, letter of credit or other similar form of support in accordance with this Agreement shall not be considered the incurrence of a material obligation.
Appears in 2 contracts
Samples: Separation Agreement, Separation Agreement (Huntsman International LLC)
Treatment of Shared Contracts. (a) Subject to applicable Law and without limiting the generality of the obligations set forth in Section 2.1, unless the Parties and Badger otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding described in this Section 2.8 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, with respect to any contract or agreementSpinCo Contract, a portion of which is a Varex Contract, assigned to SpinCo or any other member of the SpinCo Group pursuant to Section 2.2(a) but is not exclusively related to the remainder of which is a Parent Asset SpinCo Business (any such contract or agreementContract, a “Shared Contract”), shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Effective Time, so that each Party or the member of its Group shall, as of the Effective Time, be entitled to the rights and benefits, and shall assume the related portion of any Liabilities, inuring to its respective businesses; provided, however, that (i) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and (ii) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then the Parties shall, and shall cause each of the members of their respective Groups to, take such other use commercially reasonable and permissible actions efforts (including by providing prompt notice using commercially reasonable efforts to the other Party with respect to (i) obtain any relevant claim of Liability required Approvals or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared ContractNotifications or (ii) to cause facilitate a member of the Varex Parent Group or entering into a new Contract with the counterparty to such Shared Contract on the best terms reasonably available) to cause (A) the relevant member of the Parent Group, as the case may be, Group to receive the rights and benefits of that portion of each Shared Contract that relates previously provided to the Varex Parent Business or the Parent Business, as the case may be (in each case, pursuant to the extent so related), as if such Shared Contract had been assigned to a and (B) the relevant member of the applicable Parent Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.8, and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason under such Shared Contract. Following the Effective Time, SpinCo or another member of the SpinCo Group shall, upon reasonable written request from Parent, take such arrangement), as if such Liabilities had been assumed by reasonable and permissible actions to cause a member of the applicable Parent Group pursuant (at Parent’s sole cost and expense) to receive and exercise all rights under such Shared Contract to the extent such rights arise under the portion of the Shared Contract relating to the Parent Business, and Parent or another member of the Parent Group shall take such reasonable and permissible actions to bear the burden of the corresponding Liabilities to the extent such Liabilities arise under the portion of the Shared Contract relating to the Parent Business, and, as applicable, SpinCo or another member of the SpinCo Group shall promptly pay to Parent when received all monies received by the SpinCo Group under such portion of a Shared Contract. Notwithstanding the foregoing, no member of the SpinCo Group shall be required by this Section 2.82.8 to maintain in effect any Shared Contract, and no member of the Parent Group shall have any approval or other rights with respect to any amendment, termination or other modification of any Shared Contract.
(b) Each of Parent and Varex SpinCo shall, and shall cause the members of its respective Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset owned by, and/or a Liability of, as applicable, such Party, or the members of its Group, as applicable, not later than the Effective Time, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law).
(c) Nothing in this Section 2.8 shall require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group)payment, incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.8, except to the extent advanced, assumed or agreed in advance in writing to be reimbursed or indemnified by any member of the other Group.
Appears in 2 contracts
Samples: Separation and Distribution Agreement (Bluerock Homes Trust, Inc.), Separation and Distribution Agreement (Bluerock Homes Trust, Inc.)
Treatment of Shared Contracts. (a) Subject to applicable Applicable Law and without limiting the generality of the obligations set forth in Section 2.1, unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding described in this Section 2.8 2.9 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract or agreement, a portion of which is relates to matters that would be the subject of a Varex ContractCorebridge Asset, but the remainder of which is a Parent relates to matters that would be the subject of an AIG Asset (any such contract or agreement, including those set forth on Schedule 2.9, a “Shared Contract”), shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended or otherwise bifurcated or separated and replicated prior to, on or to the expiration of the term of the services to which such Shared Contract relates pursuant to the Transition Services Agreement (other than any Shared Contract that the Parties agree after the Effective Timedate hereof should be permitted to expire in accordance with its terms) or, in the event that there are no such services subject to the Transition Services Agreement, prior to the Majority Holder Date (or, if such Shared Contract expressly provides the AIG Group with the right to continue to make available the services thereunder to the Corebridge Group, or the Corebridge Group with the right to continue to make available the services thereunder to the AIG Group, in each case, after the Majority Holder Date, such later date when such right terminates by its terms under such Shared Contract, unless parties to such Shared Contract consent to such services continuing to be made available to the Corebridge Group or the AIG Group, as applicable, thereafter), so that each Party or the member of its Group shall, as of the Effective Timesuch time, be entitled to the rights and benefits, and shall assume the related portion of any Liabilities, inuring to its respective businesses; provided, however, that (i) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and (ii) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then the Parties shall, and shall cause each of the members of their respective Groups to, take such other commercially reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a member of the Varex Corebridge Group or the Parent AIG Group, as the case may be, to receive the rights and benefits of that portion of each Shared Contract (or a replacement therefor) that relates to the Varex Corebridge Business or the Parent AIG Business, as the case may be (in each case, to the extent so related), as if such Shared Contract had been assigned to a member of the applicable Group (or amended or otherwise bifurcated or separated and replicated to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.82.9, and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed by a member of the applicable Group pursuant to this Section 2.82.9.
(b) Each of Parent and Varex shall, and shall cause the members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset owned by, and/or a Liability of, as applicable, such Party, or the members of its Group, as applicable, not later than the Effective Time, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law).
(c) Nothing in this Section 2.8 2.9 shall require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.82.9.
Appears in 2 contracts
Samples: Separation Agreement (American International Group, Inc.), Separation Agreement (Corebridge Financial, Inc.)
Treatment of Shared Contracts. (a) Subject to applicable Law and without Without limiting the generality of the obligations set forth in Section 2.1, unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding described in this Section 2.8 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract or agreement, a portion of which 2.2:
(a) Any Contract that is a Varex Contract, but the remainder of which is a Parent Asset listed on Schedule 2.4(a) (any such contract or agreementeach, a “Shared Contract”), ) shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after with effect from the Effective Time, Time so that each Party of BX or PJT LP or the member members of its Group shall, their respective Groups as of the Effective Time, Time shall be entitled to the rights and benefits, and shall assume Assume the related portion of any Liabilities, inuring to its their respective businessesBusinesses; provided, however, that (ix) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract Contract) which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled, subject to Section 2.6(a)) and (iiy) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then the Parties shall, and shall cause each of the members of their respective Groups Subsidiaries to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a member of the Varex PJT Group or the Parent Blackstone Group, as the case may be, to receive the rights and benefits benefit of that portion of each Shared Contract that relates to the Varex Carbon Business or the Parent Blackstone Retained Business, as the case may be (in each case, to the extent so related)be, as if such Shared Contract had been assigned to a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.8, 2.4 (or appropriately amended) and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), ) as if such Liabilities had been assumed Assumed by a member of the applicable Group pursuant to this Section 2.82.4.
(b) Each of Parent BX and Varex PJT HoldCo shall, and shall cause the members of its Group to, (i) treat for all Income Tax purposes the portion of each Shared Contract inuring to its respective businesses Businesses as an Asset Assets owned by, and/or a Liability Liabilities of, as applicable, such Party, or the members Group as of its Group, as applicable, not later than the Effective Time, Time and (ii) neither report nor take any Income Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable LawTax Law or good faith resolution of a Tax Contest relating to Income Taxes).
(c) Nothing in this Section 2.8 shall require any No member of either Group will amend, renew, extend or otherwise modify any Group to make any non-de minimis payment (except to Shared Contract without the extent advanced, assumed or agreed in advance to be reimbursed by any consent of the applicable member of the other Group)Group to the extent such amendment, incur renewal, extension or modification would adversely affect or impose any non-de minimis obligation or grant any non-de minimis concession for the benefit of obligations on any member of any such other Group in order to effect any transaction contemplated by this Section 2.8Group.
Appears in 2 contracts
Samples: Separation and Distribution Agreement (PJT Partners Inc.), Separation and Distribution Agreement (PJT Partners Inc.)
Treatment of Shared Contracts. (a) Subject to applicable Law and without limiting the generality of the obligations set forth in Section 2.12.2, unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding described in this Section 2.8 2.9 are expressly conveyed to the applicable Party pursuant to the Plan of Division, this Agreement or an Ancillary Agreement, any contract or agreement, a portion of which is a Varex AFI Contract, but the remainder of which is a Parent AWI Asset (any such contract or agreement, a “Shared Contract”), shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Division Effective Time, so that each Party or the member of its such Party’s Group shall, as of the Division Effective Time, be entitled to the rights and benefits, and shall assume the related portion of any Liabilities, inuring to its the Parties’ respective businesses; provided, however, that (i) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and (ii) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then the Parties shall, and shall cause each of the members of their respective Groups to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a member of the Varex AFI Group or the Parent AWI Group, as the case may be, to receive the rights and benefits of that portion of each Shared Contract that relates to the Varex AFI Business or the Parent AWI Business, as the case may be (in each case, to the extent so related), as if such Shared Contract had been assigned to (or amended to allow) a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.82.9, and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed by a member of the applicable Group pursuant to this Section 2.82.9.
(b) Notwithstanding the foregoing, each of the Shared Contracts set forth on Schedule 2.9(b)(i) shall be retained by AWI and each of the Shared Contracts set forth on Schedule 2.9(b)(ii) shall be allocated to AFI Division Sub in the Division or assigned to AFI, as applicable. AWI and AFI shall cooperate in good faith to allocate the usage of the venues subject to such Shared Contracts on an equitable basis from season-to-season, and shall reimburse one another for a proportionate amount, based on the actual relative usage by the Parties of the venues subject to such Shared Contracts, of all fees, costs and other expenses incurred by the other Party in connection with such Shared Contracts, such payment to be made promptly upon receipt by AFI of an invoice therefor from AWI.
(c) Each of Parent AWI and Varex AFI shall, and shall cause the members of its each such Party’s Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset Assets owned by, and/or a Liability Liabilities of, as applicable, such Party, or the members of its such Party’s Group, as applicable, not later than the Division Effective Time, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law).
(cd) Nothing in this Section 2.8 2.9 shall require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.82.9.
Appears in 2 contracts
Samples: Separation and Distribution Agreement, Separation and Distribution Agreement (Armstrong World Industries Inc)
Treatment of Shared Contracts. (a) Subject to applicable Law and without Without limiting the generality of the obligations set forth in Section 2.1, unless Sections 2.2(a) and (b):
(a) Unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding Contract described in this Section 2.8 2.3 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract or agreement, a portion of which Contract that is a Varex Contract, but the remainder of which is a Parent Asset listed on Schedule 2.3(a) (any such contract or agreement, a “Shared Contract”), ) shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on at or after the Effective Time, so that each Party or the member members of its Group shall, their respective Groups as of the Effective Time, Time shall be entitled to the rights and benefits, and shall assume Assume the related portion of any Liabilities, inuring to its their respective businessesBusinesses; provided, however, that (ix) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract (including any Policy) which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) , subject to Section 2.2(d)), and (iiy) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or has not for any other reason been assigned or amended, or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then (A) at the Parties reasonable request of the Party (or the member of such Party’s Group) to which the benefit of such Shared Contract inures in part, the Party for which such Shared Contract is, as applicable, a Xxxxxxx Retained Asset or Envista Asset shall, and shall cause each of its respective Subsidiaries to, for a period ending not later than six (6) months after the members Effective Date (unless the term of their respective Groups toa Shared Contract (excluding any extensions thereof) ends at a later date, in which case for a period ending on such date), take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a such member of the Varex Envista Group or the Parent Xxxxxxx Group, as the case may be, to receive the rights and benefits benefit of that portion of each Shared Contract that relates to the Varex Envista Business or the Parent Xxxxxxx Retained Business, as the case may be (in each case, to the extent so related), ) as if such Shared Contract had been assigned to (or amended to allow) a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.8, 2.3 and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), ) as if such Liabilities had been assumed Assumed by a member of the applicable Group pursuant to this Section 2.82.3; provided that the Party for which such Shared Contract is a Xxxxxxx Retained Asset or an Envista Asset, as applicable, shall be indemnified for all Indemnifiable Losses or other Liabilities arising out of any actions (or omissions to act) of such retaining Party taken at the direction of the other Party (or relevant member of its Group) in connection with and relating to such Shared Contract, as the case may be, and (B) the Party to which the benefit of such Shared Contract inures in part shall use commercially reasonable efforts to enter into a separate contract pursuant to which it procures such rights and obligations as are necessary such that it no longer needs to avail itself of the arrangements provided pursuant to this Section 2.3(a); provided that, the Party for which such Shared Contract is, as applicable, a Xxxxxxx Retained Asset or Envista Asset, and such Party’s applicable Subsidiaries shall not be liable for any actions or omissions taken in accordance with clause (y) of this Section 2.3(a).
(b) Each Unless otherwise determined by Xxxxxxx in its sole discretion, each of Parent Xxxxxxx and Varex Envista shall, and shall cause the members of its Group to, (iA) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses Businesses as an Asset Assets owned by, and/or a Liability Liabilities of, as applicable, such Party, or the members Party as of its Group, as applicable, not later than the Effective Time, Time and (iiB) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable LawLaw or good faith resolution of a Tax Contest).
(c) Nothing in this Section 2.8 shall require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.8.
Appears in 2 contracts
Samples: Separation Agreement (Envista Holdings Corp), Separation Agreement (Envista Holdings Corp)
Treatment of Shared Contracts. (a) Subject to applicable Law and without Without limiting the generality of the obligations set forth in Section 2.1, unless Sections 2.2(a) and (b):
(a) Unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding Contract described in this Section 2.8 2.3 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, and other than as provided by Article VIII, any contract or agreement, a portion of which Contract that is a Varex Contract, but the remainder of which is a Parent Asset listed on Schedule 2.3(a) (any such contract or agreement, a “Shared Contract”), ) shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on at or after the Effective Distribution Time, so that each Party or the member members of its Group shall, their respective Groups as of the Effective Time, Distribution Time shall be entitled to the rights and benefits, and shall assume Assume the related portion of any Liabilities, inuring to its their respective businessesBusinesses; provided, however, that (ix) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) , subject to Section 2.2(d)), and (iiy) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or has not for any other reason been assigned or amended, or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then (A) at the Parties reasonable request of the Party (or the member of such Party’s Group) to which the benefit of such Shared Contract inures in part, the Party for which such Shared Contract is, as applicable, an Inpixon Retained Asset or Enterprise Apps Asset shall, and shall cause each of its respective Subsidiaries to, for a period ending not later than six (6) months after the members Distribution Date (unless the term of their respective Groups toa Shared Contract (excluding any extensions thereof) ends at a later date, in which case for a period ending on such date), take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a such member of the Varex CXApp Group or the Parent Inpixon Group, as the case may be, to receive the rights and benefits benefit of that portion of each Shared Contract that relates to the Varex Enterprise Apps Business or the Parent Inpixon Retained Business, as the case may be (in each case, to the extent so related), ) as if such Shared Contract had been assigned to (or amended to allow) a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.8, 2.3 and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), ) as if such Liabilities had been assumed Assumed by a member of the applicable Group pursuant to this Section 2.82.3; provided that the Party for which such Shared Contract is an Inpixon Retained Asset or an Enterprise Apps Asset, as applicable, shall be indemnified for all Indemnifiable Losses or other Liabilities arising out of any actions (or omissions to act) of such retaining Party taken at the direction of the other Party (or relevant member of its Group) in connection with and relating to such Shared Contract, as the case may be, and (B) the Party to which the benefit of such Shared Contract inures in part shall use commercially reasonable efforts to enter into a separate contract pursuant to which it procures such rights and obligations as are necessary such that it no longer needs to avail itself of the arrangements provided pursuant to this Section 2.3(a); provided that, the Party for which such Shared Contract is, as applicable, an Inpixon Retained Asset or Enterprise Apps Asset, any such Party’s applicable Subsidiaries shall not be liable for any actions or omissions taken in accordance with clause (y) of this Section 2.3(a).
(b) Each Unless the Parties otherwise agree, each of Parent Inpixon and Varex Design Reactor shall, and shall cause the members of its Group to, (iA) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses Businesses as an Asset Assets owned by, and/or a Liability Liabilities of, as applicable, such Party, or Party as of the members of its Group, as applicable, not later than the Effective Time, Distribution Time and (iiB) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable LawLaw or good faith resolution of a Tax Contest).
(c) Nothing in this Section 2.8 shall require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.8.
Appears in 2 contracts
Samples: Separation and Distribution Agreement (KINS Technology Group, Inc.), Separation and Distribution Agreement (Inpixon)
Treatment of Shared Contracts. (a) Subject to applicable Law and without Without limiting the generality of the obligations set forth in Section 2.1, unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding described in this Section 2.8 are expressly conveyed to the applicable Party party pursuant to this Agreement or an Ancillary Agreement, any contract or contract, agreement, a portion of which arrangement, commitment or understanding that is a Varex Contract, but the remainder of which is a Parent Asset (any such contract or agreement, a “Shared Contract”), listed on Schedule 2.8(a) shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Effective TimeDistribution Date, so that each Party or the member members of its respective Group shall, as of the Effective TimeDistribution Date, be entitled to the rights and benefits, and shall assume the related portion of any Liabilities, inuring to its respective businesses, in each case, in accordance with the allocation of benefits and burdens set forth on Schedule 2.8(a) (each, a “Schedule 2.8 Contract”); provided, however, that that, (i) in no event shall any member of any Group be required to assign (or amend) any Shared Schedule 2.8 Contract in its entirety or to assign a portion of any Shared Schedule 2.8 Contract which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and (ii) if any Shared Schedule 2.8 Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Schedule 2.8 Contract, then the Parties shall, and shall cause each of the members of their respective Groups Subsidiaries to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Schedule 2.8 Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Schedule 2.8 Contract) to cause a member of the Varex CRC Group or the Parent OPC Group, as the case may be, to receive the rights and benefits of that portion of each Shared Schedule 2.8 Contract that relates to the Varex CRC Business or the Parent Businessbusinesses retained by OPC, as the case may be (in each case, to the extent so related), as if such Shared Schedule 2.8 Contract had been assigned to (or amended to allow) a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.8, and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed by a member of the applicable Group pursuant to this Section 2.8.
(b) Each of Parent OPC and Varex CRC shall, and shall cause the members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset Assets owned by, and/or a Liability Liabilities of, as applicable, such Party, or the members of its GroupSubsidiaries, as applicable, not later than the Effective TimeDistribution Date, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law).
(c) Nothing in this Section 2.8 shall require any member of any Group to make any non-de minimis material payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis material obligation or grant any non-de minimis material concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.8.
Appears in 2 contracts
Samples: Separation and Distribution Agreement (California Resources Corp), Separation and Distribution Agreement (Occidental Petroleum Corp /De/)
Treatment of Shared Contracts. (a) Subject to applicable Law and without Without limiting the generality of the obligations set forth in Section 2.12.2(a), unless the Parties otherwise agree shall, and shall cause their respective Subsidiaries to, use their respective reasonable best efforts to work together (and, if necessary and desirable, to work with the third party to such Shared Contract) in an effort to divide, partially assign, modify and/or replicate (in whole or in part) the benefits respective rights and obligations under and in respect of any contractShared Contract, agreement, arrangement, commitment or understanding described in this Section 2.8 are expressly conveyed such that (a) a member of the Spinco Group is the beneficiary of the rights and is responsible for the obligations related to that portion of such Shared Contract relating to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract or agreement, a portion of which is a Varex Contract, but Spinco Business (the remainder of which is a Parent Asset (any such contract or agreement, a “Shared ContractSpinco Portion”), which rights shall be assigned in relevant part to the applicable member(sSpinco Assets and which obligations shall be Spinco Liabilities and (b) a member of the applicable Group, if so assignable, or appropriately amended prior to, on or after Vector Group is the Effective Time, so that each Party or the member beneficiary of its Group shall, as of the Effective Time, be entitled to the rights and benefits, and shall assume is responsible for the obligations related portion of any Liabilities, inuring to its respective businesses; provided, however, that (i) in no event shall any member of any Group be required to assign (or amend) any such Shared Contract in its entirety relating to the Vector Business (the “Vector Portion”), which rights shall be Vector Retained Assets and which obligations shall be Vector Liabilities. If the Parties, or their respective Subsidiaries, as applicable, do not or are not able to assign a portion of any enter into an arrangement to formally divide, partially assign, modify and/or replicate such Shared Contract which is not assignable (or cannot be amended) as contemplated by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and (ii) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contractprevious sentence, then the Parties shall, and shall cause each their respective Subsidiaries to, cooperate in any lawful arrangement to provide that a member of the members Spinco Group shall receive the interest in the benefits and obligations of their respective Groups to, take the Spinco Portion under such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party and a member of the ability to exercise any applicable rights Vector Group shall receive the interest in the benefits and obligations of the Vector Portion under such Shared Contract; provided, however, that no Party shall be required to expend any money or take any action in furtherance of this Section 2.2(b) to cause a member that would require the expenditure of the Varex Group or the Parent Group, as the case may be, to receive the rights and benefits of that portion of each Shared Contract that relates to the Varex Business or the Parent Business, as the case may be money (in each case, to the extent so related), as if such Shared Contract had been assigned to a member of other than any payment obligations under the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.8, and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed by a member of the applicable Group pursuant to this Section 2.8.
(b) Each of Parent and Varex shall, and shall cause the members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset owned by, and/or a Liability of, as applicable, such Party, or the members of its Group, as applicable, not later than the Effective Time, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law).
(c) Nothing in this Section 2.8 shall require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.8.]
Appears in 2 contracts
Samples: Distribution Agreement (Douglas Elliman Inc.), Distribution Agreement (Douglas Elliman Inc.)
Treatment of Shared Contracts. (a) Subject to applicable Law and without Without limiting the generality of the obligations set forth in Section 2.12.2(a) and Section 2.2(b), unless the Parties otherwise agree or the rights and benefits of any contract, agreement, arrangement, commitment or understanding Contract described in this Section 2.8 2.3 are expressly conveyed to the applicable Party addressed under or pursuant to this Agreement or an Ancillary Agreement, any contract or agreementContract, a portion of which is would constitute a Varex ContractFiltration Contract if considered on a stand-alone basis, but the remainder of which is would constitute a Parent Cummins Retained Asset (any each such contract or agreementContract, including those listed on Schedule 2.3, a “Shared Contract”), shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on at or after the Effective Time, so that each Party or the member members of its their respective Group shall, as of the Effective Time, Time shall be entitled to the rights and benefits, and shall assume Assume the related portion of any Liabilities, inuring to its their respective businessesBusinesses; provided, however, that that,
(ia) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract (including any Policy) which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and , subject to Section 2.2(d)), and
(iib) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or has not for any other reason been assigned or amended, or if such assignment or amendment would impair the benefit rights and benefits the parties thereto derive from such Shared Contract, then then,
(i) at the Parties reasonable request of the Party (or the member of such Party’s Group) to which the rights and benefits of such Shared Contract inure in part, the Party for which such Shared Contract is, as applicable, a Cummins Retained Asset or Filtration Asset shall, and shall cause each of its respective Subsidiaries to, for a period ending not later than six (6) months after the members Effective Date (unless the term of their respective Groups toa Shared Contract (excluding any extensions thereof) ends at a later date, in which case for a period ending on such date), take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a such member of the Varex Filtration Group or the Parent Cummins Group, as the case may be, to receive the rights and benefits of that portion of each Shared Contract that relates to the Varex Filtration Business or the Parent Cummins Retained Business, as the case may be (in each case, to the extent so related), as if such Shared Contract had been assigned to (or amended to allow) a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.8, 2.3 and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), ) as if such Liabilities had been assumed Assumed by a member of the applicable Group pursuant to this Section 2.8.
(b) Each of Parent and Varex shall2.3, and shall cause provided, further, that the members of its Group to, (i) treat Party for all Tax purposes the portion of each which such Shared Contract inuring to its respective businesses as an is a Cummins Retained Asset owned by, and/or or a Liability ofFiltration Asset, as applicable, shall be indemnified for all Indemnifiable Losses or other Liabilities arising out of any actions (or omissions to act) of such Party, retaining Party taken at the written direction of the other Party (or the members relevant member of its Group) in connection with and relating to such Shared Contract, as applicablethe case may be, not later than the Effective Time, and and
(ii) neither report nor take any Tax position (on the Party to which the rights and benefits of such Shared Contract inures in part shall use commercially reasonable efforts to enter into a Tax Return or otherwise) inconsistent with separate Contract pursuant to which it procures such treatment (unless required by applicable Law).
(c) Nothing in rights, benefits and Liabilities as are necessary such that it no longer needs to avail itself of the arrangements provided pursuant to this Section 2.8 shall require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.82.3.
Appears in 2 contracts
Samples: Separation Agreement (Atmus Filtration Technologies Inc.), Separation Agreement (Atmus Filtration Technologies Inc.)
Treatment of Shared Contracts. (a) Subject to applicable Law and without Without limiting the generality of the obligations set forth in Section 2.12.2(a), unless the Parties otherwise agree parties shall, and shall cause their respective Subsidiaries to, use their respective reasonable best efforts to work together (and, if necessary and desirable, to work with the Third Party to such Shared Contract) in an effort to divide, partially assign, modify and/or replicate (in whole or in part) the benefits respective rights and obligations under and in respect of any contractShared Contract, agreement, arrangement, commitment or understanding described in this Section 2.8 are expressly conveyed such that (a) a member of the Donnelley Financial Group is the beneficiary of the rights and is responsible for the obligations related to that portion of such Shared Contract relating to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract or agreement, a portion of which is a Varex Contract, but Donnelley Financial Business (the remainder of which is a Parent Asset (any such contract or agreement, a “Shared ContractDonnelley Financial Portion”), which rights shall be assigned in relevant part to the applicable member(sDonnelley Financial Assets and which obligations shall be Donnelley Financial Liabilities, (b) a member of the applicable Group, if so assignable, or appropriately amended prior to, on or after LSC Group is the Effective Time, so that each Party or the member beneficiary of its Group shall, as of the Effective Time, be entitled to the rights and benefitsis responsible for the obligations related to such Shared Contract relating to the LSC Business (the “LSC Portion”), which rights shall be LSC Assets and which obligations shall assume the related portion of any Liabilities, inuring to its respective businesses; provided, however, that be LSC Liabilities and (ic) in no event shall any a member of any the RRD Group be required is the beneficiary of the rights and is responsible for the obligations related to assign (or amend) any such Shared Contract in its entirety relating to the RRD Business (the “RRD Portion”), which rights shall be RRD Retained Assets and which obligations shall be RRD Liabilities. If the Parties, or their respective Subsidiaries, as applicable, do not or are not able to assign a portion of any enter into an arrangement to formally divide, partially assign, modify and/or replicate such Shared Contract which is not assignable (or cannot be amended) as contemplated by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and (ii) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contractprevious sentence, then the Parties shall, and shall cause each their respective Subsidiaries to, cooperate in any lawful arrangement to provide that a member of the members LSC Group shall receive the interest in the benefits and obligations of their respective Groups to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights LSC Portion under such Shared Contract) to cause , a member of the Varex Donnelley Financial Group or the Parent Group, as the case may be, to shall receive the rights interest in the benefits and benefits obligations of that portion of each Shared Contract that relates to the Varex Business or the Parent Business, as the case may be (in each case, to the extent so related), as if Donnelley Financial Portion under such Shared Contract had been assigned to and a member of the applicable RRD Group (or amended to allow a member shall receive the interest in the benefits and obligations of the applicable Group to exercise applicable rights RRD Portion under such Shared Contract) pursuant ; provided, however, that no Party shall be required to expend any money or take any action in furtherance of this Section 2.8, and to bear 2.2(b) that would require the burden expenditure of the corresponding Liabilities money (including other than any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed by a member of payment obligations under the applicable Group pursuant to this Section 2.8.
(b) Each of Parent and Varex shall, and shall cause the members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset owned by, and/or a Liability of, as applicable, such Party, or the members of its Group, as applicable, not later than the Effective Time, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable LawContract).
(c) Nothing in this Section 2.8 shall require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.8.
Appears in 2 contracts
Samples: Separation and Distribution Agreement (LSC Communications, Inc.), Separation and Distribution Agreement (LSC Communications, Inc.)
Treatment of Shared Contracts. (a) Subject to applicable Law and without limiting the generality of the obligations set forth in Section 2.12.10(a), unless the Parties otherwise agree or shall use their commercially reasonable efforts to separate the benefits of any contract, agreement, arrangement, commitment or understanding described in this Section 2.8 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract or agreement, a portion of which is a Varex Contract, but the remainder of which is a Parent Asset (any such contract or agreement, a “Shared Contract”), shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Effective Time, Contracts into separate contracts so that each Party or the member of its Outdoor Group shall, as of the Effective Time, will be entitled to the rights and benefits, and shall assume be subject to the related portion of any Liabilities, inuring with respect to its respective businesses; providedor arising from each Shared Contract to the extent primarily related to the Outdoor Business, howeverand the iHeart Group will retain the rights and benefits, that (i) in no event and shall any member of any Group be subject to the Liabilities, with respect to or arising from each Shared Contract to the extent primarily related to the iHeart Business. If an Approval is required to assign (or amend) any separate a Shared Contract in its entirety or to assign a portion of any Shared Contract which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where and such consents or conditions have Approval has not been obtained or fulfilled) and (ii) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended made or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then the Parties shall, and shall cause each separation of the members of their respective Groups to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so has not been completed as of the Closing for any other reason, then, subject to allow such other Party Section 2.10(a), the ability Parties shall use their commercially reasonable efforts to exercise develop and implement arrangements (including subcontracting, sublicensing, subleasing or back-to-back agreement) to pass along to the Outdoor Group the benefit and the Liabilities of the portion of any applicable rights under such Shared Contract) Contract related to cause a member the Outdoor Business and to pass along to the iHeart Group the benefit and the Liabilities of the Varex Group or portion of the Parent GroupShared Contract related to the iHeart Business, as the case may be. With respect to each Shared Contract, to receive the rights and benefits obligations set forth in this Section 2.9 shall terminate upon the earlier of that portion (x) the termination or expiration of each Shared Contract that relates to the Varex Business or the Parent Business, as the case may be (in each case, to the extent so related), as if such Shared Contract had been assigned to a member in accordance with its terms and (y) the second anniversary of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.8, and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed by a member of the applicable Group pursuant to this Section 2.8Closing Date.
(b) Each of Parent IHM and Varex CCH shall, and shall cause the members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its their respective businesses Businesses as an Asset owned by, and/or a Liability Liabilities of, as applicable, such Party, or the members of its Group, as applicable, Group not later than the Effective TimeClosing Date, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless otherwise required by applicable Law).
(c) Nothing in this Section 2.8 shall require any member To the extent of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of inconsistency with the other Group)sections of this Agreement, incur any non-de minimis obligation or grant any non-de minimis concession for Section 2.9 shall govern the benefit treatment of any member of any other Group in order to effect any transaction contemplated by this Section 2.8Shared Contracts.
Appears in 2 contracts
Samples: Settlement and Separation Agreement, Settlement and Separation Agreement (Clear Channel Outdoor Holdings, Inc.)
Treatment of Shared Contracts. (a) Subject to applicable Law and without limiting the generality of the obligations set forth in Section 2.1, unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding described in this Section 2.8 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract or agreement, agreement entered into by a portion member of which the Vornado Group with a Third Party that is not a Varex UE Contract, but pursuant to which the remainder UE Business, as of which is a Parent Asset the Effective Date, has been provided certain revenues or other benefits in respect of the UE Properties (any such contract or agreement, a “Shared Contract”), ) shall not be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, UE Group or appropriately amended prior to, on or after to give the Effective Time, so that each Party or the member of its Group shall, as relevant member(s) of the Effective Time, be entitled UE Group any entitlement to the such rights and benefits, and shall assume the related portion of any Liabilities, inuring to its respective businessesbenefits thereunder; provided, however, that (i) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and (ii) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then the Parties shall, and shall cause each of the members of their respective Groups to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a (i) the relevant member of the Varex UE Group or the Parent Group, as the case may be, to receive the rights and benefits previously provided in the ordinary course of that portion of each Shared Contract that relates to the Varex Business or the Parent Businessbusiness, as the case may be (in each caseconsistent with past practice, to the extent so related), as if UE Business pursuant to such Shared Contract had been assigned to a and (ii) the relevant member of the applicable UE Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.8, and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of under such arrangement)Shared Contract. Notwithstanding the foregoing, as if such Liabilities had been assumed by a no member of the applicable Vornado Group pursuant to shall be required by this Section 2.82.8 to maintain in effect any Shared Contract, and no member of the UE Group shall have any approval or other rights with respect to any amendment, termination or other modification of any Shared Contract.
(b) Each of Parent Vornado and Varex UE shall, and shall cause the members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset Assets owned by, and/or a Liability Liabilities of, as applicable, such Party, or the members of its Group, as applicable, not later than the Effective Time, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law).
(c) Nothing in this Section 2.8 shall require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.8.
Appears in 2 contracts
Samples: Separation and Distribution Agreement (Urban Edge Properties), Separation and Distribution Agreement (Urban Edge Properties)
Treatment of Shared Contracts. (a) Subject to applicable Law and without Without limiting the generality of the obligations set forth in Section 2.12.2(a), unless the Parties otherwise agree shall, and shall cause their respective Subsidiaries to, use their respective reasonable best efforts to work together (and, if necessary and desirable, to work with the third party to such Shared Contract) in an effort to divide, partially assign, modify and/or replicate (in whole or in part) the benefits respective rights and obligations under and in respect of any contractShared Contract, agreement, arrangement, commitment or understanding described in this Section 2.8 are expressly conveyed such that (a) a member of the Spinco Group is the beneficiary of the rights and is responsible for the obligations related to that portion of such Shared Contract relating to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract or agreement, a portion of which is a Varex Contract, but Spinco Business (the remainder of which is a Parent Asset (any such contract or agreement, a “Shared ContractSpinco Portion”), which rights shall be assigned in relevant part to the applicable member(sSpinco Assets and which obligations shall be Spinco Liabilities and (b) a member of the applicable Group, if so assignable, or appropriately amended prior to, on or after Vector Group is the Effective Time, so that each Party or the member beneficiary of its Group shall, as of the Effective Time, be entitled to the rights and benefits, and shall assume is responsible for the obligations related portion of any Liabilities, inuring to its respective businesses; provided, however, that (i) in no event shall any member of any Group be required to assign (or amend) any such Shared Contract in its entirety relating to the Vector Business (the “Vector Portion”), which rights shall be Vector Retained Assets and which obligations shall be Vector Liabilities. If the Parties, or their respective Subsidiaries, as applicable, do not or are not able to assign a portion of any enter into an arrangement to formally divide, partially assign, modify and/or replicate such Shared Contract which is not assignable (or cannot be amended) as contemplated by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and (ii) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contractprevious sentence, then the Parties shall, and shall cause each their respective Subsidiaries to, cooperate in any lawful arrangement to provide that a member of the members Spinco Group shall receive the interest in the benefits and obligations of their respective Groups to, take the Spinco Portion under such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party and a member of the ability to exercise any applicable rights Vector Group shall receive the interest in the benefits and obligations of the Vector Portion under such Shared Contract; provided, however, that no Party shall be required to expend any money or take any action in furtherance of this Section 2.2(b) to cause a member that would require the expenditure of the Varex Group or the Parent Group, as the case may be, to receive the rights and benefits of that portion of each Shared Contract that relates to the Varex Business or the Parent Business, as the case may be money (in each case, to the extent so related), as if such Shared Contract had been assigned to a member of other than any payment obligations under the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.8, and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed by a member of the applicable Group pursuant to this Section 2.8.
(b) Each of Parent and Varex shall, and shall cause the members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset owned by, and/or a Liability of, as applicable, such Party, or the members of its Group, as applicable, not later than the Effective Time, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law).
(c) Nothing in this Section 2.8 shall require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.8.
Appears in 2 contracts
Samples: Distribution Agreement (Vector Group LTD), Distribution Agreement (Douglas Elliman Inc.)
Treatment of Shared Contracts. (a) Subject to applicable Law and without limiting the generality of the obligations set forth in Section 2.1, unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding described in this Section 2.8 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract or agreement, a portion of which is a Varex SpinCo Contract, but the remainder of which is a Parent Asset (any such contract or agreement, a “Shared Contract”), shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Effective Time, so that each Party or the member of its Group shall, as of the Effective Time, be entitled to the rights and benefits, and shall assume the related portion of any Liabilities, inuring to its respective businesses; provided, however, that (i) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and (ii) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then the Parties shall, and shall cause each of the members of their respective Groups to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a member of the Varex SpinCo Group or the Parent Group, as the case may be, to receive the rights and benefits of that portion of each Shared Contract that relates to the Varex SpinCo Business or the Parent Business, as the case may be (in each case, to the extent so related), as if such Shared Contract had been assigned to a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.8, and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed by a member of the applicable Group pursuant to this Section 2.8.
(b) Each Except as otherwise required by applicable Law, each of Parent and Varex SpinCo shall, and shall cause the members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset owned by, and/or a Liability of, as applicable, such Party, or the members of its Group, as applicable, not later than the Effective Time, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law)treatment.
(c) Nothing in this Section 2.8 shall require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.8.
Appears in 2 contracts
Samples: Separation and Distribution Agreement (Becton Dickinson & Co), Separation and Distribution Agreement (Embecta Corp.)
Treatment of Shared Contracts. (a) Subject to applicable Law and without limiting the generality of the obligations set forth in Section 2.1, unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding described in this Section 2.8 2.8(c) are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract or agreement, a portion of which is a Varex SpinCo Contract, but the remainder of which is a Parent Asset (any such contract or agreement, including those set forth on Schedule 2.9, a “Shared Contract”), shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Effective TimeTime (or, in the case of any Deferred SpinCo Local Business, as of prior to the Local Closing Date), so that each Party or the member of its Group shall, as of the Effective TimeTime (or the Local Closing Date, as applicable), (i) be entitled to the rights and benefits, and shall (ii) assume the related portion of any Liabilities, inuring to its respective businessesbusinesses and (iii) take any actions set forth on Schedule 2.9 with respect to such Shared Contract; provided, however, that (ix) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which that is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and (iiy) except as set forth in any Ancillary Agreement or any other agreement between a member of the SpinCo Group, on the one hand, and a member of the Parent Group, on the other hand, entered into in connection with the Separation, if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then the Parties shall, and shall cause each of the members of their respective Groups to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a member of the Varex SpinCo Group or the Parent Group, as the case may be, to receive the rights and benefits of that portion of each Shared Contract that relates to the Varex SpinCo Business or the Parent Business, as the case may be (in each case, to the extent so related), as if such Shared Contract had been assigned to a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.82.8(c), and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed by a member of the applicable Group pursuant to this Section 2.82.8(c).
(b) Each of Parent and Varex SpinCo shall, and shall cause the members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset owned by, and/or a Liability of, as applicable, such Party, or the members of its Group, as applicable, not later than the Effective Time, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law).
(c) Nothing in this Section 2.8 2.8(c) shall require any member of any either Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any the other Group in order to effect any transaction contemplated by this Section 2.82.8(c).
Appears in 2 contracts
Samples: Separation and Distribution Agreement (Zimmer Biomet Holdings, Inc.), Separation and Distribution Agreement (ZimVie Inc.)
Treatment of Shared Contracts. (a) Subject to applicable Law and without limiting the generality of the obligations set forth in Section 2.1, unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding described in this Section 2.8 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract or agreement, a portion of which is a Varex an Adient Contract, but and the remainder of which is a Parent Xxxxxxx Controls Asset (any such contract or agreement, a “Shared Contract”), shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Effective Time, so that each Party or the applicable member of its Group shall, as of the Effective Time, be entitled to the rights and benefits, and shall assume the related portion of any Liabilities, inuring to its respective businesses; provided, however, that (i) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and (ii) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended amended, or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then the Parties shall, and shall cause each of the members of their respective Groups to, take such other reasonable and permissible actions (including by providing prompt written notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a member of the Varex Adient Group or the Parent Xxxxxxx Controls Group, as the case may be, to receive the rights and benefits of that portion of each Shared Contract that relates to the Varex Adient Business or the Parent Xxxxxxx Controls Business, as the case may be (in each case, to the extent so related), as if such Shared Contract had been assigned to (or amended to admit) a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.82.8 (the “Proposed Assignee,” and the Group in which the Proposed Assignee is a member, the “Proposed Assignee Group”), and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed by a the Proposed Assignee or another member of the applicable Proposed Assignee Group pursuant to this Section 2.8. Without limiting the foregoing, if (A) a Shared Contract that is a vendor or supplier Contract cannot be assigned or amended pursuant to this Section 2.8 and can be addressed through an arrangement described in clause (ii) of the immediately preceding sentence, but the Proposed Assignee elects not to receive the rights and benefits of the applicable portion of such Shared Contract pursuant to such an arrangement, and (B) as a result the other Party or a member of the other Party’s Group is required to pay any termination, breakage, volume reduction or similar fee or expense to such vendor or supplier, then (C) the Proposed Assignee or the applicable member of the Proposed Assignee Group shall reimburse the other Party or the applicable member of the other Party’s Group for the amount of such fee or expense.
(b) Each of Parent Xxxxxxx Controls and Varex Adient shall, and shall cause the members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset Assets owned by, and/or a Liability Liabilities of, as applicable, such Party, or the members of its Group, as applicable, not later than the Effective Time, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law).
(c) Nothing in this Section 2.8 shall require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.8, other than any One-Time Payments for Consents or Approvals to be made pursuant to Section 2.4.
Appears in 2 contracts
Samples: Separation and Distribution Agreement (Adient LTD), Separation and Distribution Agreement (Johnson Controls International PLC)
Treatment of Shared Contracts. (a) Subject to applicable Law and without Without limiting the generality of the obligations set forth in Section 2.1, unless the Parties otherwise agree Sections 2.1(a) and (b):
(a) Any Contract (or the benefits category of any contract, agreement, arrangement, commitment or understanding described in this Section 2.8 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract or agreement, a portion of which is a Varex Contract, but the remainder of which where applicable and described on Schedule 2.2(a)) that is a Parent Asset listed on Schedule 2.2(a) (any such contract or agreement, a “Shared Contract”), ) shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on at or after the Separation Effective Time, so that each Party of Everest or Newco or the member members of its their respective Group shall, as of the Separation Effective Time, Time shall be entitled to the rights and benefits, and shall assume Assume the related portion of any Liabilities, inuring to its their respective businessesBusinesses; provided, however, that (ix) in no event shall any member of any such Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which is not assignable (or cannot be amendedamended to effect an assignment or other transfer) by its terms (including any terms imposing consents Consent requirements or conditions on an assignment where such consents Consents or conditions have not been obtained or fulfilled) , subject to Section 2.5), and (iiy) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or has not for any other reason been assigned or amended, or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then (A) at the Parties reasonable request of Everest or Newco (or the member of such Party’s Group) to which the benefit of such Shared Contract inures in part, Everest or Newco, as applicable, for which such Shared Contract is, as applicable, an Everest Retained Asset or Newco Asset shall, and shall cause each of its respective Subsidiaries to, for a period ending not later than six (6) months after the members of their respective Groups toSeparation Effective Time, take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a such member of the Varex Newco Group or the Parent Everest Group, as the case may be, to receive the rights and benefits benefit of that portion of each Shared Contract that relates to the Varex Newco Business or the Parent Everest Retained Business, as the case may be (in each case, to the extent so related), ) as if such Shared Contract had been assigned (or amended to allow such assignment) to a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.8, 2.2 and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), ) as if such Liabilities had been assumed Assumed by a member of the applicable Group pursuant to this Section 2.82.2; provided that the Party for which such Shared Contract is an Everest Retained Asset or a Newco Asset, as applicable, shall be indemnified for all Indemnifiable Losses or other Liabilities arising out of any actions (or omissions to act) of such retaining Party taken at the direction of the other Party (or relevant member of its Group) in connection with and relating to such Shared Contract, as the case may be, and (B) the Party to which the benefit of such Shared Contract inures in part shall use commercially reasonable efforts to enter into a separate Contract pursuant to which it procures such rights and obligations as are necessary such that it no longer needs to avail itself of the arrangements provided pursuant to this Section 2.2(a); provided that, the Party for which such Shared Contract is, as applicable, an Everest Retained Asset or Newco Asset, and such Party’s applicable Subsidiaries shall not be liable for any actions or omissions taken in accordance with clause (y) of this Section 2.2(a).
(b) Each of Parent Everest and Varex Newco shall, and shall cause the members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses Businesses as an Asset Assets owned by, and/or a Liability Liabilities of, as applicable, such Party, or Party as of the members of its Group, as applicable, not later than the Separation Effective Time, Time and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable LawLegal Requirement or good faith resolution of a Tax Contest).
(c) Nothing in this Section 2.8 shall require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.8.
Appears in 2 contracts
Samples: Separation and Distribution Agreement (Ecolab Inc.), Separation and Distribution Agreement (Apergy Corp)
Treatment of Shared Contracts. (a) Subject to applicable Law and without limiting the generality of the obligations set forth in Section 2.1, unless the The Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding described in this Section 2.8 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract or agreement, a portion of which is a Varex Contract, but the remainder of which is a Parent Asset (any such contract or agreement, a “Shared Contract”), shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Effective Time, so that each Party or the member of its Group shall, as of the Effective Time, be entitled to the rights and benefitswill, and shall assume will cause the related portion of any Liabilities, inuring to its respective businesses; provided, however, that (i) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and (ii) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then the Parties shall, and shall cause each of the other members of their respective Groups to, take use commercially reasonable efforts to work together (and, if necessary and desirable, to work with the applicable Third Party to such other reasonable Shared Contract) in an effort to divide, partially assign, modify or replicate (in whole or in part) the respective rights and permissible actions obligations under and in respect of any Shared Contract, such that (including by providing prompt notice a) a member of the SpinCo Group is the beneficiary of the rights and is responsible for the obligations in respect of that portion of such Shared Contract relating to the other Party with SpinCo Business (the “SpinCo Portion”), which rights will be a SpinCo Asset and which obligations will be a SpinCo Liability, and (b) a member of the CES Group is the beneficiary of the rights and is responsible for the obligations in respect to any relevant claim of Liability or other relevant matters arising in connection with a that portion of such Shared Contract so relating to the CES Business (the “CES Portion”), which rights will be a CES Asset and which obligations will be a CES Liability. If the Parties are not able to enter into an arrangement to formally divide, partially assign, modify or replicate such Shared Contract as contemplated by the previous sentence, then the Parties will, and will cause the applicable other members of their respective Groups to, cooperate in any lawful arrangement to allow provide that a member of the SpinCo Group will receive the interest in the benefits and obligations of the SpinCo Portion under such other Party Shared Contract and a member of the ability to exercise any applicable rights CES Group will receive the interest in the benefits and obligations of the CES Portion under such Shared Contract; provided, however, that no Party will be required to take any action in furtherance of this Section 2.6 that would require the expenditure of money (other than any payment obligations under the applicable Shared Contract or commercially reasonable fees for any advisor or service provider a Party may engage in connection with the matters described in this this Section 2.6) and neither Party will be obligated to contribute capital or pay any consideration in any form (including providing any letter of credit, guaranty or other financial accommodation) to cause a member of the Varex Group or the Parent Group, as the case may be, to receive the rights and benefits of that portion of each Shared Contract that relates to the Varex Business or the Parent Business, as the case may be any Person (in each case, to the extent so related), as if such Shared Contract had been assigned to a member of other than any payment obligations under the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to in furtherance of this Section 2.8, and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed by a member of the applicable Group pursuant to this Section 2.82.6.
(b) Each of Parent and Varex shall, and shall cause the members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset owned by, and/or a Liability of, as applicable, such Party, or the members of its Group, as applicable, not later than the Effective Time, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law).
(c) Nothing in this Section 2.8 shall require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.8.
Appears in 2 contracts
Samples: Separation and Distribution Agreement (Cognyte Software Ltd.), Separation and Distribution Agreement (Cognyte Software Ltd.)
Treatment of Shared Contracts. (a) Subject to applicable Law and without limiting the generality of the obligations set forth in Section 2.1, unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding described in this Section 2.8 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract or agreement, a portion of which is a Varex SpinCo Contract, but the remainder of which is a Parent Asset (any such contract or agreement, a “Shared Contract”), including those set forth on Schedule 2.8, shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Effective Time, so that each Party or the member of its Group shall, as of the Effective Time, be entitled to the rights and benefits, and shall assume the related portion of any Liabilities, inuring to its respective businesses; provided, however, that (i) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and (ii) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then the Parties shall, and shall cause each of the members of their respective Groups to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a member of the Varex SpinCo Group or the Parent Group, as the case may be, to receive the rights and benefits of that portion of each Shared Contract that relates to the Varex SpinCo Business or the Parent Business, as the case may be (in each case, to the extent so related), as if such Shared Contract had been assigned to a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.8, and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed by a member of the applicable Group pursuant to this Section 2.8.
(b) Each Except as otherwise required by applicable Law, each of Parent and Varex SpinCo shall, and shall cause the members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset owned by, and/or a Liability of, as applicable, such Party, or the members of its Group, as applicable, not later than the Effective Time, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law)treatment.
(c) Nothing in this Section 2.8 shall require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.8.
Appears in 1 contract
Samples: Separation and Distribution Agreement (Embecta Corp.)
Treatment of Shared Contracts. (a) Subject to applicable Law and without limiting the generality of the obligations set forth in Section 2.1, unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding described in this Section 2.8 are expressly conveyed or made available to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract or agreement, a the Parties shall cause the portion of which is a Varex Contract, but the remainder of which is a Shared Contract relating to the Parent Asset (any such contract or agreement, a “Shared Contract”), shall Business to be assigned in relevant part to the applicable member(s) of the Parent Group and the portion related to the SpinCo Business to be assigned to the applicable member(s) of the SpinCo Group, if so assignable, or shall cause the Shared Contract to be appropriately amended or otherwise modified prior to, on or after the Effective Time, so that each Party or the member other members of its Group shall, as of the Effective Time, be entitled to the rights and benefits, and shall assume the related portion of any Liabilities, inuring to its respective businesses; provided, however, that (i) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and ), (ii) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or modified or if such assignment assignment, amendment or amendment modification would impair the benefit the parties thereto derive from such Shared Contract, then the Parties shall, and shall cause each of the members of their respective Groups to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a member of the Varex SpinCo Group or the Parent Group, as the case may be, to receive the rights and benefits of that portion of each Shared Contract that relates to the Varex SpinCo Business or the Parent Business, as the case may be (in each case, to the extent so related), as if such Shared Contract had been assigned to a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.8, and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed by a member of the applicable Group pursuant to this Section 2.8, (iii) with respect to any Shared Commercial Contract (other than the Shared Commercial Contracts described on Schedule 2.8(a)), (A) it shall be a permissible method of implementing the requirements of this Section 2.8 to modify such Shared Commercial Contract (including modification by unilateral notice to the counterparty or similar action) to remove the products of the other Party from the scope of such Shared Commercial Contract, and (B) if the modification described in the foregoing clause (A) cannot be effected by unilateral action, the Party (or the applicable member of its Group) which is party to such Shared Commercial Contract shall not be in violation of this Section 2.8 as a result of notifying the counterparty to such Shared Commercial Contract of its intent to remove the products of the other Party from the scope of such Shared Commercial Contracts (it being understood that, notwithstanding such notice, such Party (or the applicable member of its Group) will continue to be obligated to otherwise comply with this Section 2.8 with respect to such Shared Commercial Contract), and (iv) this Section 2.8(a) shall not apply to the Shared Commercial Contracts set forth on Schedule 2.8(a).
(b) Each Except as otherwise required by applicable Law, each of Parent and Varex SpinCo shall, and shall cause the members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset owned by, and/or a Liability of, as applicable, such Party, or the members of its Group, as applicable, not later than the Effective Time, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law)treatment.
(c) Nothing in this Section 2.8 shall (a) require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.8, and (b) with respect to Shared Contracts that are sourcing contracts, require the Party (or the applicable member of its Group) that is party thereto to purchase on behalf of the other Party (or any member of its Group) under such Shared Contract if such Shared Contract cannot be assigned, amended or modified in the manner contemplated by Section 2.8(a).
Appears in 1 contract
Samples: Separation and Distribution Agreement (Solventum Corp)
Treatment of Shared Contracts. (a) Subject to applicable Law and without Without limiting the generality of the obligations set forth in Section 2.1, unless the Parties parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding described in this Section 2.8 2.9 are expressly conveyed to the applicable Party party pursuant to this Agreement or an Ancillary Agreement, (i) any contract or contract, agreement, a portion of which arrangement, commitment or understanding that is a Varex Contract, but the remainder of which is a Parent Asset listed on Schedule 2.9
(any such contract or agreement, a “Shared Contract”), a) shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Effective TimeDistribution Date, so that each Party party or the member members of its respective Group shall, as of the Effective TimeDistribution Date, be entitled to the rights and benefits, and shall assume the related portion of any Liabilities, inuring to its respective businesses, in each case, in accordance with the allocation of benefits and burdens set forth on Schedule 2.9(a), and (ii) (A) any contract, agreement, arrangement, commitment or understanding that is an Excluded Asset or Excluded Liability but, prior to the Distribution Date, inured in part to the benefit or burden of any member of the Corner Store Group, and (B) any contract, agreement, arrangement, commitment or understanding that is a Corner Store Asset or a Corner Store Liability but, prior to the Distribution Date, inured in part to the benefit or burden of any member of the Valero Group, shall be assigned in part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Distribution Date, so that each party or the members of its respective Group shall, as of the Distribution Date, be entitled to the rights and benefits, and shall assume the related portion of any Liabilities, inuring to its respective businesses (any contract, agreement, arrangement, commitment or understanding referred to in clause (i) or (ii) above, a “Shared Contract”); provided, however, that that, in the case of each of clause (i) and (ii), (1) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) ), and (ii2) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then the Parties parties shall, and shall cause each of the members of their respective Groups Subsidiaries to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party party the ability to exercise any applicable rights under such Shared Contract) to cause a member of the Varex Corner Store Group or the Parent Valero Group, as the case may be, to receive the rights and benefits of that portion of each Shared Contract that relates to the Varex Corner Store Business or the Parent Businessbusinesses retained by Valero, as the case may be (in each case, to the extent so related), as if such Shared Contract had been assigned to (or amended to allow) a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.82.9, and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed by a member of the applicable Group pursuant to this Section 2.82.9.
(b) Each of Parent Valero and Varex Corner Store shall, and shall cause the members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset Assets owned by, and/or a Liability Liabilities of, as applicable, such Partyparty, or the members of its Groupsubsidiaries, as applicable, not later than the Effective TimeDistribution Date, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law).
(c) Nothing in this Section 2.8 2.9 shall require any member of any Group to make any non-de minimis material payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis material obligation or grant any non-de minimis material concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.82.9.
Appears in 1 contract
Treatment of Shared Contracts. (a) Subject to applicable Law and without limiting the generality of the obligations set forth in Section 2.1, unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding described in this Section 2.8 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract or agreement, a portion of which is relates to matters that would be the subject of a Varex StudioCo Contract, but the remainder of which is relates to matters that would be the subject of a Parent Asset (any such contract or agreement, excluding those set forth on Schedule 2.8(a), a “Shared Contract”), shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Effective Time, so that each Party or the member of its Group shall, as of the Effective Time, be entitled to the rights and benefits, and shall assume the related portion of any Liabilities, inuring to its respective businesses; provided, however, that (i) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and (ii) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then the Parties shall, and shall cause each of the members of their respective Groups to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a member of the Varex StudioCo Group or the Parent Group, as the case may be, to receive the rights and benefits of that portion of each Shared Contract that relates to the Varex Studio Business or the Parent Starz Business, as the case may be (in each case, to the extent so related), as if such Shared Contract had been assigned to a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.8, and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed by a member of the applicable Group pursuant to this Section 2.8.
(b) Each of Parent and Varex StudioCo shall, and shall cause the members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset owned by, and/or a Liability of, as applicable, such Party, or the members of its Group, as applicable, not later than the Effective TimeTime (or such earlier time as provided under a Transfer Document), and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law).
(c) Nothing in this Section 2.8 shall require any member of any Group to make any non-de de-minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de de-minimis obligation or grant any non-de de-minimis concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.8.
Appears in 1 contract
Treatment of Shared Contracts. (a) Subject to applicable Law and without limiting the generality of the obligations set forth in Section 2.1, unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding described in this Section 2.8 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract or agreement, a portion of which is a Varex C2 Contract, but the remainder of which is a Parent CIT Asset (any such contract or agreement, other than one in which the portion constituting a C2 Contract has been replaced by a contract or agreement entered into by a member of the C2 Group in connection with the Separation covering substantially the same services, a “Shared Contract”), shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Effective Time, so that each Party or the member of its Group shall, as of the Effective Time, be entitled to the rights and benefits, and shall assume the related portion of any Liabilities, inuring to its respective businesses; provided, however, that (i) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and (ii) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then the Parties shall, and shall cause each of the members of their respective Groups to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a member of the Varex C2 Group or the Parent CIT Group, as the case may be, to receive the rights and benefits of that portion of each Shared Contract that relates to the Varex C2 Business or the Parent CIT Business, as the case may be (in each case, to the extent so related), as if such Shared Contract had been assigned to a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.8, and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed by a member of the applicable Group pursuant to this Section 2.8.
(b) Each of Parent CIT and Varex C2 shall, and shall cause the members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset owned by, and/or a Liability of, as applicable, such Party, or the members of its Group, as applicable, not later than the Effective Time, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law).
(c) Nothing in this Section 2.8 shall require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.8.
Appears in 1 contract
Samples: Separation and Distribution Agreement (C2 Aviation Capital, Inc.)
Treatment of Shared Contracts. (a) Subject to applicable Law and without Without limiting the generality of the obligations set forth in Section 2.1, unless 2.2(a) and 2.2(b):
(i) Unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding Contract described in this Section 2.8 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, (A) any contract Contract that is (1) listed on Schedule 2.2(c), (2) a Tyco Retained Asset but inures in part to the benefit or agreementburden of any member of the Healthcare Group or the Electronics Group, as the case may be, (3) a portion Healthcare Asset but inures in part to the benefit or burden of which is a Varex Contractany member of the Tyco Group or the Electronics Group, as the case may be or (4) an Electronics Asset but inures in part to the remainder benefit or burden of which is a Parent Asset any member of the Tyco Group or the Healthcare Group, as the case may be (any such contract or agreementeach, a “Shared Contract”), shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Effective Time, so that each Party or the member members of its Group shall, their respective Groups as of the Effective Time, Time shall be entitled to the rights and benefits, and shall assume Assume the related portion of any Liabilities, inuring to its their respective businessesBusinesses; provided, however, that (ix) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract (including any Policy) which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and (iiy) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then the Parties shall, and shall cause each of the members of their respective Groups Subsidiaries to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a member of the Varex Healthcare Group, the Electronics Group or the Parent Tyco Group, as the case may be, to receive the rights and benefits benefit of that portion of each Shared Contract that relates to the Varex Healthcare Business, the Electronics Business or the Parent Tyco Retained Business, as the case may be (in each case, to the extent so related), ) as if such Shared Contract had been assigned to (or amended to allow) a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.8, 2.2 and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), ) as if such Liabilities had been assumed Assumed by a member of the applicable Group pursuant to this Section 2.82.2.
(bii) Each of Parent Tyco, Healthcare and Varex Electronics shall, and shall cause the members of its Group to, (iA) treat for all Income Tax purposes the portion of each Shared Contract inuring to its respective businesses Businesses as an Asset Assets owned by, and/or a Liability Liabilities of, as applicable, such Party, or the members of its Group, as applicable, Party not later than the Effective Time, applicable Relevant Time and (iiB) neither report nor take any Income Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by a change in applicable LawTax Law or good faith resolution of a Tax Contest relating to Income Taxes).
(ciii) Nothing in this Section 2.8 2.2(c) shall require any member of any Group to make any non-de minimis material payment (except to the extent advanced, assumed Assumed or agreed in advance to be reimbursed by any member of the other GroupGroup or as otherwise provided on Schedule 1.1(14)), incur any non-de minimis material obligation or grant any non-de minimis material concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.82.2(c).
Appears in 1 contract
Samples: Separation and Distribution Agreement (Tyco International LTD /Ber/)
Treatment of Shared Contracts. (a) Subject to applicable Law and without Without limiting the generality of the obligations set forth in Section 2.1, unless the Parties parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding described in this Section 2.8 2.9 are expressly conveyed to the applicable Party party pursuant to this Agreement or an Ancillary Agreement, (A) any contract or contract, agreement, arrangement, commitment or understanding that is an Excluded Asset or Excluded Liability but, prior to the Distribution Date, inured in part to the benefit or burden of any member of the Civeo Group (other than any such contract, agreement, arrangement, commitment or understanding covering substantially the same services or arrangements that are covered by a portion contract, agreement, arrangement, commitment or understanding entered into by a member of which the Civeo Group in connection with the Separation), and (B) any contract, agreement, arrangement, commitment or understanding that is a Varex ContractCiveo Asset or a Civeo Liability but, but prior to the remainder Distribution Date, inured in part to the benefit or burden of which is a Parent Asset any member of the Oil States Group (other than any such contract or contract, agreement, arrangement, commitment or understanding covering substantially the same services or arrangements that are covered by a “Shared Contract”contract, agreement, arrangement, commitment or understanding entered into by a member of the Oil States Group in connection with the Separation), shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Effective TimeDistribution Date, so that each Party party or the member members of its respective Group shall, as of the Effective TimeDistribution Date, be entitled to the rights and benefits, and shall assume the related portion of any Liabilities, inuring to its respective businesses; businesses (any such contract, agreement, arrangement, commitment or understanding, a “Shared Contract”); provided, however, that that, (i1) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and (ii2) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then the Parties parties shall, and shall cause each of the members of their respective Groups Subsidiaries to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party party the ability to exercise any applicable rights under such Shared Contract) to cause a member of the Varex Civeo Group or the Parent Oil States Group, as the case may be, to receive the rights and benefits of that portion of each Shared Contract that relates to the Varex Civeo Business or the Parent Businessbusinesses retained by Oil States, as the case may be (in each case, to the extent so related), as if such Shared Contract had been assigned to (or amended to allow) a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.82.9, and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed by a member of the applicable Group pursuant to this Section 2.82.9.
(b) Each of Parent Oil States and Varex Civeo shall, and shall cause the members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset Assets owned by, and/or a Liability Liabilities of, as applicable, such Partyparty, or the members of its Groupsubsidiaries, as applicable, not later than the Effective TimeDistribution Date, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law).
(c) Nothing in this Section 2.8 2.9 shall require any member of any Group to make any non-de minimis material payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis material obligation or grant any non-de minimis material concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.82.9.
Appears in 1 contract
Treatment of Shared Contracts. (a) Subject to applicable Law and without Without limiting the generality of the obligations set forth in Section 2.1, unless Sections 2.2(a) and (b): (a) Unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding Contract described in this Section 2.8 2.3 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract or agreementContract that is listed on Schedule 2.3(a), a portion of which is a Varex Contract, but the remainder of which is a Parent Asset (any such contract or agreement, a “Shared Contract”), shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Effective Time, so that each Party or the member members of its Group shall, their respective Groups as of the Effective Time, Time shall be entitled to the rights and benefits, and shall assume Assume the related portion of any Liabilities, inuring to its their respective businessesBusinesses; provided, however, that (ix) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract (including any Policy) which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) , subject to Section 2.2(d)), and (iiy) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or has not for any other reason been assigned or amended, or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then (A) at the Parties reasonable request of the Party (or the member of such Party’s Group) to which the benefit of such Shared Contract inures in part, the Party for which such Shared Contract is, as applicable, a DuPont Retained Asset or Chemours Asset shall, and shall cause each of its respective Subsidiaries to, for a period ending not later than six (6) months after the members Distribution Date (unless the term of their respective Groups toShared Contract ends at a later date, in which case for a period ending on such date), take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a such member of the Varex Chemours Group or the Parent DuPont Group, as the case may be, to receive the rights and benefits benefit of that portion of each Shared Contract that relates to the Varex Chemours Business or the Parent DuPont Retained Business, as the case may be (in each case, to the extent so related), ) as if such Shared Contract had been assigned to (or amended to allow) a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.8, 2.3 and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), ) as if such Liabilities had been assumed Assumed by a member of the applicable Group pursuant to this Section 2.8.
(b) Each of Parent and Varex shall, and shall cause 2.3; provided that the members of its Group to, (i) treat Party for all Tax purposes the portion of each which such Shared Contract inuring to its respective businesses as an is a DuPont Retained Asset owned by, and/or or a Liability ofChemours Asset, as applicable, shall be indemnified for all Indemnifiable Losses or other Liabilities arising out of any actions (or omissions to act) of such Party, retaining Party taken at the direction of the other Party (or the members relevant member of its Group) in connection with and relating to such Shared Contract, as the case may be, and (B) the Party to which the benefit of such Shared Contract inures in part shall use commercially reasonable efforts to enter into a separate contract pursuant to which it procures such rights and obligations as are necessary such 30 that it no longer needs to avail itself of the arrangements provided pursuant to this Section 2.3(a); provided that, the Party for which such Shared Contract is, as applicable, not later than the Effective Timea DuPont Retained Asset or Chemours Asset, and such Party’s applicable Subsidiaries shall not be liable for any actions or omissions taken in accordance with clause (iiy) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Lawof this Section 2.3(a).
(c) Nothing in this Section 2.8 shall require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.8.
Appears in 1 contract
Samples: Separation Agreement
Treatment of Shared Contracts. (a) Subject to applicable Law and without limiting the generality of the obligations set forth in Section 2.1, unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding described in this Section 2.8 2.9(a) are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract or agreement, a portion of which is a Varex SpinCo Contract, but the remainder of which is a Parent Asset (any such contract or agreement, including those set forth on Schedule 2.9, a “Shared Contract”), shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Effective TimeTime (or, in the case of any Deferred SpinCo Local Business, as of prior to the Local Closing Date), so that each Party or the member of its Group shall, as of the Effective TimeTime (or the Local Closing Date, as applicable), (i) be entitled to the rights and benefits, and shall (ii) assume the related portion of any Liabilities, inuring to its respective businessesbusinesses and (iii) take any actions set forth on Schedule 2.9 with respect to such Shared Contract; provided, however, that (ix) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which that is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and (iiy) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then the Parties shall, and shall cause each of the members of their respective Groups to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a member of the Varex SpinCo Group or the Parent Group, as the case may be, to receive the rights and benefits of that portion of each Shared Contract that relates to the Varex SpinCo Business or the Parent Business, as the case may be (in each case, to the extent so related), as if such Shared Contract had been assigned to a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.82.9(a), and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed by a member of the applicable Group pursuant to this Section 2.82.9(a).
(b) Each of Parent and Varex SpinCo shall, and shall cause the members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset owned by, and/or a Liability of, as applicable, such Party, or the members of its Group, as applicable, not later than the Effective Time, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law).
(c) Nothing in this Section 2.8 2.9 shall require any member of any either Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any the other Group in order to effect any transaction contemplated by this Section 2.82.9.
Appears in 1 contract
Samples: Separation and Distribution Agreement (ZimVie Inc.)
Treatment of Shared Contracts. (a) Subject to applicable Law and without limiting the generality of the obligations set forth in Section 2.11.01(c), unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding described in this Section 2.8 1.07 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreementany Transaction Document, any contract or agreementContract, a portion of which is a Varex Fortrea Contract, but the remainder of which is a Parent Labcorp Asset (any such contract or agreementContract, a “Shared Contract”), including those set forth on Schedule 1.07, shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Effective Business Transfer Time, so that each Party or the member of its Group shall, as of the Effective Business Transfer Time, be entitled to the rights and benefits, and shall assume the related portion of any Liabilities, inuring to its respective businesses; provided, however, that (i) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and (ii) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then the Parties shall, and shall cause each of the members of their respective Groups to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a member of the Varex Fortrea Group or the Parent Labcorp Group, as the case may be, to receive the rights and benefits of that portion of each Shared Contract that relates to the Varex Fortrea Business or the Parent Retained Business, as the case may be (in each case, to the extent so related), as if such Shared Contract had been assigned to a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.81.07, and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed by a member of the applicable Group pursuant to this Section 2.81.07.
(ba) Each Except as otherwise required by applicable Law, each of Parent Labcorp and Varex Fortrea shall, and shall cause the members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset owned by, and/or a Liability of, as applicable, such Party, or the members of its Group, as applicable, not later than the Effective Business Transfer Time, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law)treatment.
(cb) Nothing in this Section 2.8 2.07 shall require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.82.07.
Appears in 1 contract
Samples: Separation and Distribution Agreement (Fortrea Holdings Inc.)
Treatment of Shared Contracts. (a) Subject to applicable Law and without Without limiting the generality of the obligations set forth in Section 2.1, unless the Parties otherwise agree or :
(i) Unless the benefits of any contract, agreement, arrangement, commitment or understanding described in this Section 2.8 a Shared Contract are expressly conveyed to the applicable a Party (or member of its Group) pursuant to this Agreement or an Ancillary Agreement, (A) each of Remainco and Spinco shall, and shall cause the applicable member(s) of their Group to, use commercially reasonable efforts to assign in part any contract or agreement, a portion of which Contract that is a Varex Contract, but the remainder of which is a Parent Asset (any such contract or agreement, a “Shared Contract”), shall be assigned in relevant part Contract to the applicable member(s) of the applicable Group, if so assignable, or, appropriately amend, bifurcate, replicate or appropriately amended otherwise modify such Shared Contract (in a form reasonably acceptable to Remainco and Spinco) prior to, on at or after the Effective TimeSpinco Distribution, so that each Party Remainco and Spinco or the member members of its Group shall, as of the Effective Time, their respective Groups shall be entitled to the rights and benefits, and shall assume Assume the related portion of any Liabilities, inuring to its their respective businessesBusinesses (each, a “Partial Assignment”); provided, however, that (ix) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract (including any Policy) which is not assignable (or cannot be amendedamended or otherwise modified) by its terms (including any terms imposing consents Consents or conditions on an assignment where such consents Consents or conditions have not been obtained or fulfilled) or under applicable Law or any Shared Contract that is a Non-Material Shared Contract, (y) if in connection with the assignment, bifurcation, replication or other modification of a Shared Contract with annual spend by the Spinco Business in excess of ten million dollars ($10,000,000) either (1) the approval of a Third Party (other than by a Governmental Entity) is required to assign or amend such Shared Contract, or (2) such Shared Contract is being replicated and in the case of either (1) or (2) the costs of such Shared Contract attributable to the Spinco Business would increase in a material amount relative to the Spinco Business’ spend under such Shared Contract in the twelve (12) months prior to the date hereof, such assignment, amendment, bifurcation, or other modification or replication of such Shared Contract shall not proceed without the prior written consent of RMT Partner; provided, that to the extent the Shared Contract is specifically addressed in a report delivered in connection with a meeting of the Separation Committee (which report describes the annual spend under such Shared Contract) then notice with respect to the treatment of to such Shared Contract described in such report shall be deemed provided and RMT Partner shall be deemed to have provided its consent with respect thereto to the extent any of its members attended the meeting of the Separation Committee and did not object in writing to such assignment, amendment, or other modification or replication within ten (10) Business Days of such meeting and (iiz) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or otherwise modified or if such assignment or amendment or modification would impair the benefit the parties thereto derive from such Shared Contract or if such Shared Contract constitutes a Non-Material Shared Contract, then (A) the Parties shall, and shall cause each of the members of their respective Groups Subsidiaries to, use commercially reasonable efforts to take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a member of the Varex Spinco Group or the Parent Group, Remainco Group as the case may be, to to, in each case, (I) receive the rights and benefits benefit of that portion of each Shared Contract that relates to the Varex Remainco Business or the Parent Spinco Business, as the case may be (in each case, to the extent so related), ) as if such Shared Contract had been assigned to (or amended or otherwise modified for the benefit of) a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.82.4(a) (including, enforcing on the applicable Group’s behalf any and all of such Group’s rights against such Third Party under such Shared Contract solely to the extent related to the applicable Group’s respective Business (or applicable portion thereof)) and (II) bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), ) as if such Liabilities had been assumed Assumed by a member of the applicable Group pursuant to this Section 2.82.4(a), including expenses related to enforcing rights under such Shared Contract against the Third Party counterparty thereto solely to the extent related to the applicable Group’s respective Business (or applicable portion thereof); and indemnifying each other Group against all Indemnifiable Losses to the extent arising out of any actions (or omissions to act) taken by such other Group with respect to such Shared Contract at the direction of such first Party (except to the extent arising out of or related to gross negligence, fraud or willful misconduct by such other Group) (for the avoidance of doubt, in the event that any rights in connection with a Force Majeure Event or similar event are exercised under a Shared Contract, the benefits and burdens with respect to such Shared Contract (as modified by such Force Majeure Event or similar event) shall, if reasonably practicable, be shared proportionally or, if not reasonably practicable, in such other manner as would be most equitable, among the Groups related to such Contract (or in any other manner as may be agreed in good faith by the relevant Parties whose Group is related to such contract), in each case, to the extent so related to the Remainco Business or the Spinco Business) and (B) to the extent that the Parties cannot effect a Partial Assignment in accordance with this Section 2.4(a), or cannot implement the arrangements set forth in clause (A), within 180 days of the Spinco Distribution Date, the Parties shall use commercially reasonable efforts to, if requested by any Party, seek mutually acceptable alternative arrangements (including subcontracting, sublicensing, subleasing or back-to-back agreement) for the purpose of allocating rights and liabilities and obligations to each Group under such Shared Contract reflecting the principles set forth in clause (A) of this provision (an “Acceptable Alternative Arrangement”).
(bii) Each Party shall, and shall cause the other members of Parent its Group to, use its commercially reasonable efforts to obtain the required Consents to complete a Partial Assignment of any Shared Contract (other than any Non-Material Shared Contract) as contemplated by this Agreement. Notwithstanding anything herein to the contrary, no Partial Assignment of any Shared Contract or Acceptable Alternative Arrangement shall be completed if it would violate any applicable Law or the rights of any Third Party to such Shared Contract.
(iii) To the extent permitted by applicable Law, each of Spinco and Varex Remainco shall, and shall cause the members of its respective Group to, (iA) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses Businesses as an Asset Assets owned by, and/or a Liability Liabilities of, as applicable, such Party, Party or the members of its such Party’s Group, as applicable, not later than the Effective Time, Spinco Distribution and (iiB) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by a change in applicable LawTax Law or good faith resolution of a Tax Contest relating to income Taxes).
(civ) Nothing in this Section 2.8 shall require any member of any Group With respect to make any non-de minimis payment (except Liabilities pursuant to, under or relating to a Shared Contract to the extent advancedrelating to occurrences from and after the Spinco Distribution, assumed such Liabilities shall, unless otherwise allocated pursuant to this Agreement or agreed any Ancillary Agreement, be allocated among Spinco and Remainco as follows:
(1) If such Liability is incurred exclusively in advance respect of the Remainco Business or exclusively in respect of the Spinco Business, such Liability shall be allocated to Remainco or the applicable member of its Group (in respect of the Remainco Business) or Spinco or the applicable member of its Group (in respect of the Spinco Business);
(2) If such Liability cannot be so allocated under clause (1) above, such Liability shall be allocated to Spinco or Remainco, as the case may be, based on the relative proportions of total benefit received (over the term of the Shared Contract remaining as of the date of the Spinco Distribution) by the Spinco Business and Remainco Business, respectively, under the relevant Shared Contract after the Spinco Distribution Date; and
(3) Notwithstanding the foregoing in clauses (1) and (2) above, each of Spinco or Remainco shall be responsible for any and all such Liabilities to the extent arising from its (or its Subsidiary’s) breach after the Spinco Distribution of the relevant Shared Contract.
(v) None of Spinco or Remainco or any of the members of their respective Group or their Affiliates shall be required to commence any litigation or offer or pay any money or otherwise grant any accommodation (financial or otherwise) to any Third Party to (x) obtain any new Contract or Partial Assignment with respect to any Shared Contract, as the case may be or (y) obtain any Consent necessary to enter into an Acceptable Alternative Arrangement; provided, however, any Party to which the benefit of a new Contract, Partial Assignment or Acceptable Alternative Arrangement would inure pursuant to this Section 2.4(a) may request that the Party that is allocated such Shared Contract as a Remainco Asset or Spinco Asset commence litigation, which request shall be considered in good faith by such Party; provided, further, that such Party’s good faith determination not to commence litigation shall not in and of itself constitute a breach of this Section 2.4(a)(v), but the foregoing shall not preclude consideration of a Party’s good faith for purposes of determining compliance with Section 2.4(a)(v).
(vi) From and after the Spinco Distribution, the Party to whose Group a Shared Contract has been allocated shall not (and shall cause the other members of its Group not to), without the consent of the other Party (such consent not to be reimbursed unreasonably withheld, conditioned or delayed) (x) waive any rights under such Shared Contract to the extent related to the Business, Assets or Liabilities of such other Party, (y) terminate (or consent to be terminated by the counterparty) such Shared Contract except in connection with (1) the expiration of such Shared Contract in accordance with its terms (it being understood, for the avoidance of doubt, that sending a notice of non-renewal to the counterparty to such Shared Contract in accordance with the terms of such Shared Contract is expressly permitted) or (2) a partial termination of such Shared Contract that would not reasonably be expected to impact any rights under such Shared Contract related to the Business, Assets or Liabilities of such other Party or Parties or any of its or their respective Subsidiaries, or (z) amend, modify or supplement such Shared Contract in a manner material (relative to the existing rights and obligations related to such other Party’s Business, Assets or Liabilities under such Shared Contract) and adverse to the Business, Assets or Liabilities of such other Party or any of its Subsidiaries. From and after the Spinco Distribution, as applicable, if a member of a Group (the “Notice Recipient”) receives from a counterparty to a Shared Contract a formal notice of breach of such Shared Contract that would reasonably be expected to impact the other Group, the Notice Recipient shall provide written notice to the other Party as soon as reasonably practicable (and in no event later than five (5) Business Days following receipt of such notice) and the Parties shall consult with respect to the actions proposed to be taken regarding the alleged breach. If a Group (the “Notifying Party”) sends to a counterparty to a Shared Contract a formal notice of breach of such Shared Contract that would reasonably be expected to impact another Group, the Notifying Party shall provide written notice to the other Party as soon as reasonably practicable (and in any event no less than five (5) Business Days prior to sending such notice of breach to the counterparty), and the Parties shall consult with each other regarding such alleged breach. From and after the Spinco Distribution, as applicable, no Party shall (and shall cause the other members of its Group not to) breach any Shared Contract to the extent such breach would reasonably be expected to result in a loss of rights, or acceleration of obligations, of any member of the other Group)Party’s Group (or related to its Business, incur Assets or Liabilities under such Shared Contract) pursuant to (X) such Shared Contract, (Y) any non-de minimis obligation Partial Assignment related to such Shared Contract or grant any non-de minimis concession for the benefit of any member of (Z) any other Group Contract with the counterparty to such Shared Contract (or any of its Affiliates) in order existence at the time of the Spinco Distribution that contains cross-default or similar provisions related to effect any transaction contemplated by this Section 2.8such Shared Contract.
Appears in 1 contract
Samples: Separation and Distribution Agreement (International Flavors & Fragrances Inc)
Treatment of Shared Contracts. (a) Subject Except for those Shared Contracts set forth on Schedule 2.09(a), Xxxxxxx and SpinCo shall cooperate with each other and use their respective commercially reasonable efforts to applicable Law and without limiting obtain the generality agreement of the obligations set forth third party that is the counterparty to each material Shared Contract to enter into a new contract, amendment splitting the Shared Contract or assignment in Section 2.1relevant part, unless as appropriate (as determined by Xxxxxxx in good faith), effective as of the Parties otherwise agree Closing Date pursuant to which a the NP Business or the Xxxxxxx Business, as applicable, will receive substantially the same services/benefits of any contractprovided (and, agreementif applicable, arrangementwill be subject to substantially the same obligations, commitment or understanding described in this Section 2.8 are expressly conveyed terms and conditions imposed) under the applicable Shared Contract to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract or agreement, a portion of which is a Varex Contract, but the remainder of which is a Parent Asset (any such contract or agreement, a “Shared Contract”), shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Effective Time, so that each Party NP Business or the member of its Group shallXxxxxxx Business, as applicable, as of the Effective Time, be entitled to the rights and benefits, and shall assume the related portion of any Liabilities, inuring to its respective businessesClosing Date; provided, however, that (i) in it is agreed and understood that the Xxxxxxx Group shall have no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and (ii) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then the Parties shall, and shall cause each of the members of their respective Groups to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party obligation under this Section 2.09 with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a member of the Varex Group Master Supply Agreements.
(i) With respect to any material Xxxxxxx Entity Level Only Contract in respect of which a consent from, notice to or action by, a third party (a “Third Party Consent”) is required to take the Parent Group, as the case may be, to receive the rights and benefits of that portion of each Shared Contract that relates actions described in Section 2.09(a) has not been obtained at or prior to the Varex Business or the Parent Business, as the case may be (in each caseClosing, to the extent so relatednot prohibited under the terms of such contract, the Xxxxxxx Group member that is a party to such Xxxxxxx Entity Level Only Contract (or such other Xxxxxxx Group member as designated by Xxxxxxx in good faith) shall retain (or be transferred, as applicable) such Xxxxxxx Entity Level Only Contract (each, a “Holdover Contract”), as if and Xxxxxxx and SpinCo shall, subject to the assumption of all liabilities in respect of or relating to such Shared Holdover Contract had (with respect to which SpinCo agrees that it shall fully indemnify and hold harmless the Xxxxxxx Group) by SpinCo, until the earlier of (i) the time such Third Party Consent has been assigned obtained, (ii) the expiration or termination of such Holdover Contract in accordance with its terms and (iii) one year after the Closing Date, cooperate in a mutually agreeable arrangement under which the SpinCo Group obtains the benefits and assumes the liabilities related to the NP Business thereunder in accordance with this Agreement, including subcontracting, sublicensing or subleasing to a member of the SpinCo Group or under which the applicable Xxxxxxx Group member would, to the extent commercially reasonable, enforce for the benefit of the SpinCo Group, any and all rights of the Xxxxxxx Group under such Holdover Contract related to the NP Business against any third party thereto; and
(ii) With respect to any Xxxxxxx Business Contract (other than a Xxxxxxx Entity Level Only Contract) in respect of which a Third Party Consent is required to take the actions described in Section 2.09(a) has not been obtained at or amended prior to allow a the Closing, (A) the applicable SpinCo Group member and the applicable Xxxxxxx Group member shall continue to operate under such contract and (B) SpinCo shall indemnify and hold harmless the Xxxxxxx Group for all Damages arising under such contract to the extent related to the NP Business or the actions of any SpinCo Group member thereunder and Xxxxxxx shall indemnify and hold harmless the SpinCo Group for all Damages arising under such contract to the extent related to the applicable portion of the Xxxxxxx Business or the actions of any Xxxxxxx Group member thereunder. It is agreed and understood that no member of the Xxxxxxx Group shall be obligated to renew or otherwise extend for any period any Xxxxxxx Business Contract (and the Xxxxxxx Group shall be permitted to deliver any applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.8, and to bear the burden notice of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangementnon-renewal or non-extension), as if such Liabilities had been assumed by a member of the applicable Group pursuant to this Section 2.8.
(bc) With respect to any material SpinCo Entity Contract in respect of which a Third Party Consent is required to take the actions described in Section 2.09(a) has not been obtained at or prior to the Closing, to the extent not prohibited under the terms of such contract, the applicable SpinCo Group member that is a party to such SpinCo Entity Contract shall retain such SpinCo Entity Contract (each, a “SpinCo Entity Holdover Contract”), and Xxxxxxx and SpinCo shall, subject to the assumption of all liabilities in respect of or relating to such SpinCo Entity Contract (with respect to which Xxxxxxx agrees that it shall fully indemnify and hold harmless the SpinCo Group) by Xxxxxxx, until the earlier of (i) the time such Third Party Consent has been obtained and (ii) the expiration or termination of such SpinCo Entity Contract in accordance with its terms, cooperate in a mutually agreeable arrangement under which the Xxxxxxx Group obtains the benefits and assumes the liabilities related to the Xxxxxxx Business thereunder in accordance with this Agreement, including subcontracting, sublicensing or subleasing to the Xxxxxxx Group or under which the applicable SpinCo Group member would, to the extent commercially reasonable, enforce for the benefit of the Xxxxxxx Group, any and all rights of the SpinCo Group under such SpinCo Entity Contract related to the Xxxxxxx Business against any third party thereto.
(d) Each of Parent Xxxxxxx and Varex SpinCo shall, and shall cause the members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset Assets owned by, and/or a Liability Liabilities of, as applicable, such Party, or the members of its Group, as applicable, not later than the Effective Time, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law).
(ce) Nothing in this Section 2.8 2.08 shall require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any the other Group in order to effect any transaction contemplated by this Section 2.82.08.
Appears in 1 contract
Treatment of Shared Contracts. (a) Subject to applicable Law and without Without limiting the generality of the obligations set forth in Section 2.1, unless the Parties parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding described in this Section 2.8 are expressly conveyed to the applicable Party party pursuant to this Agreement or an Ancillary Agreement, any contract or contract, agreement, a portion of which arrangement, commitment or understanding that is a Varex Contract, but the remainder of which is a Parent Asset (any such contract or agreement, a “Shared Contract”), listed on Schedule 2.8(a) shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Effective TimeDistribution Date, so that each Party party or the member members of its respective Group shall, as of the Effective TimeDistribution Date, be entitled to the rights and benefits, and shall assume the related portion of any Liabilities, inuring to its respective businesses, in each case, in accordance with the allocation of benefits and burdens set forth on Schedule 2.8(a) (each, a “Shared Contract”); provided, however, that that, (i) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and (ii) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then the Parties parties shall, and shall cause each of the members of their respective Groups Subsidiaries to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party party the ability to exercise any applicable rights under such Shared Contract) to cause a member of the Varex CRC Group or the Parent OPC Group, as the case may be, to receive the rights and benefits of that portion of each Shared Contract that relates to the Varex CRC Business or the Parent Businessbusinesses retained by OPC, as the case may be (in each case, to the extent so related), as if such Shared Contract had been assigned to (or amended to allow) a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.8, and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed by a member of the applicable Group pursuant to this Section 2.8.
(b) Each of Parent OPC and Varex CRC shall, and shall cause the members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset Assets owned by, and/or a Liability Liabilities of, as applicable, such Partyparty, or the members of its Groupsubsidiaries, as applicable, not later than the Effective TimeDistribution Date, and (ii) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law).
(c) Nothing in this Section 2.8 shall require any member of any Group to make any non-de minimis material payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis material obligation or grant any non-de minimis material concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.8.
Appears in 1 contract
Samples: Separation and Distribution Agreement (California Resources Corp)
Treatment of Shared Contracts. (a) Subject to applicable Law and without Without limiting the generality of the obligations set forth in Section 2.1, unless Sections 2.2(a) and (b): (a) Unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding Contract described in this Section 2.8 2.3 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract or agreement, a portion of which Contract that is a Varex Contract, but the remainder of which is a Parent Asset listed on Schedule 2.3(a) (any such contract or agreement, a “Shared Contract”), ) shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended amend, bifurcate, replicate or otherwise modify such Shared Contract (in a form reasonably acceptable to JS Global and SharkNinja) prior to, on at or after the Effective TimeDisposition Date, so that each Party or the member members of its Group shall, as of the Effective Time, their respective Groups shall be entitled to the rights and benefits, and shall assume Assume the related portion of any Liabilities, inuring to its their respective businessesBusinesses (each, a “Partial Assignment”); provided, however, that (ix) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract (including any Policy) which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) , subject to Section 2.2(d)), and (iiy) if any Shared Contract cannot be so partially assigned by its terms or otherwiseotherwise (including, or but not limited to, a requirement that a Third Party’s Consent is required to partially assign), cannot be amended or has not for any other reason been assigned or amended, or if such assignment or amendment would impair the benefit the parties thereto derive from such Shared Contract, then (A) at the Parties reasonable request of the Party (or the member of such Party’s Group) to which the benefit of such Shared Contract inures in part, the Party for which such Shared Contract is, as applicable, a JS Global Asset or SharkNinja Asset shall, and shall cause each of the members of their its respective Groups Subsidiaries to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with for a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a member of the Varex Group or the Parent Group, as the case may be, to receive the rights and benefits of that portion of each Shared Contract that relates to the Varex Business or the Parent Business, as the case may be (in each case, to the extent so related), as if such Shared Contract had been assigned to a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.8, and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed by a member of the applicable Group pursuant to this Section 2.8.
(b) Each of Parent and Varex shall, and shall cause the members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset owned by, and/or a Liability of, as applicable, such Party, or the members of its Group, as applicable, period ending not later than the Effective Time, and six (ii6) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law).
(c) Nothing in this Section 2.8 shall require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.8.months after the
Appears in 1 contract
Samples: Separation and Distribution Agreement (SharkNinja, Inc.)
Treatment of Shared Contracts. (a) Subject to applicable Law and without limiting the generality of the obligations set forth in Section 2.1, unless the Parties otherwise agree or the benefits of any contract, agreement, arrangement, commitment or understanding Contract described in this Section 2.8 2.5 are expressly conveyed to the applicable Party pursuant to this Agreement or an Ancillary Agreement, any contract or agreementContract, only a portion of which is a Varex Contract, but the remainder of which is a Parent Asset Transferred Contract (any such contract or agreementContract, a “Shared Contract”), shall be assigned in relevant part to the applicable member(s) of the applicable Group, if so assignable, or appropriately amended prior to, on or after the Effective Time, so that each Party or the member of its Group shall, as of the Effective Time, be entitled to the rights and benefits, and shall assume the related portion of any Liabilities, inuring to its respective businesses; provided, however, that (i) in no event shall any member of any Group be required to assign (or amend) any Shared Contract in its entirety or to assign a portion of any Shared Contract which is not assignable (or cannot be amended) by its terms (including any terms imposing consents or conditions on an assignment where such consents or conditions have not been obtained or fulfilled) and (ii) if any Shared Contract cannot be so partially assigned by its terms or otherwise, or cannot be amended or if such assignment or amendment would impair the benefit the parties Parties thereto derive from such Shared Contract, then the Parties shall, and shall cause each of the members of their respective Groups to, take such other reasonable and permissible actions (including by providing prompt notice to the other Party with respect to any relevant claim of Liability or other relevant matters arising in connection with a Shared Contract so as to allow such other Party the ability to exercise any applicable rights under such Shared Contract) to cause a member of the Varex CORE Group or the Parent GroupCompany, as the case may be, to receive the rights and benefits of that portion of each Shared Contract that relates to the Varex Business Exploration Properties or the Parent BusinessRetained Properties, as the case may be (in each case, to the extent so related), as if such Shared Contract had been assigned to (or amended to allow) a member of the applicable Group (or amended to allow a member of the applicable Group to exercise applicable rights under such Shared Contract) pursuant to this Section 2.82.5, and to bear the burden of the corresponding Liabilities (including any Liabilities that may arise by reason of such arrangement), as if such Liabilities had been assumed by a member of the applicable Group pursuant to this Section 2.82.5.
(b) Each of Parent the Company and Varex CORE Minerals shall, and shall cause the members of its Group to, (i) treat for all Tax purposes the portion of each Shared Contract inuring to its respective businesses as an Asset Assets owned by, and/or a Liability Liabilities of, as applicable, such Party, or the members of its Group, as applicable, not later than the Effective Time, and (ii) neither report nor take any Tax position (on a Tax Return return or otherwise) inconsistent with such treatment (unless required by applicable Law).
(c) Nothing in this Section 2.8 2.5 shall require any member of any Group to make any non-de minimis payment (except to the extent advanced, assumed or agreed in advance to be reimbursed by any member of the other Group), incur any non-de minimis obligation or grant any non-de minimis concession for the benefit of any member of any other Group in order to effect any transaction contemplated by this Section 2.82.5. For purposes of this Section 2.5, “de minimis” shall be determined in reference to customary contracts of similar nature, character and size to the Shared Contracts and not in reference to the value of the transactions contemplated by the CORE Purchase Agreement.
Appears in 1 contract
Samples: Separation and Distribution Agreement (Contango ORE, Inc.)
