Common use of Wrong Pockets Clause in Contracts

Wrong Pockets. (b) If, after the Closing, (i) Seller or Purchaser reasonably determines that any tangible or intangible asset that should not have been transferred to Purchaser pursuant to this Agreement has been transferred to Purchaser or (ii) Seller or Purchaser reasonably determines that any tangible or intangible asset that should have been transferred to Purchaser pursuant to this Agreement (including by reason of the fact that such asset is used exclusively in the Business, or in the event that the failure to transfer such asset to Purchaser resulted in or would reasonably be expected to result in a breach of the representations and warranties set forth in Section 4.9(a)), has not been transferred to Purchaser, Purchaser and Seller shall consult with one another in good faith and reasonably cooperate to determine if such asset is held by the wrong Party and, if so determined, to effect the transfer of such asset to the appropriate Party or its designee as soon as practicable and for no additional consideration. (c) If and solely to the extent that any Software or Intellectual Property (excluding Trademarks) owned by a Seller or any Affiliate of a Seller as of the Closing (i) was used in any product or service of, or in the conduct of, the Business and (ii) would be infringed, misappropriated, or otherwise violated by the continued use or other commercial exploitation of such product or service or the continued conduct of the Business in (1) the same manner as used, exploited or conducted by Seller immediately prior to Closing, or (2) the reasonable expansion of the Business hereafter, then Seller, on behalf of itself and its Affiliates and its and their successors and assigns, hereby agrees not to, initiate, institute, commence, file, maintain or prosecute any action, lawsuit, proceeding or other claim of any kind against Purchaser, its Affiliates, any of its or their successors or assigns, or any of its or their sublicensees, suppliers, manufacturers, distributors, resellers, contractors, consultants and customers, with respect to use of such Software or Intellectual Property (excluding Trademarks) in connection with, and to the extent it relates to, the Business, or assist or cause any third party to do any of the foregoing. (d) Any dispute between the Parties regarding whether any Intellectual Property should be transferred or licensed under this Section 9.8 may be brought by any Party in a court of competent jurisdiction in accordance with Section 13.6. 49

Wrong Pockets. (b) If, after the ClosingClosing Date, (i) Seller or Purchaser reasonably determines its Affiliates finds that it has retained or received any tangible funds, assets, property or intangible asset that should not have been transferred to Purchaser pursuant to this Agreement has been transferred to Purchaser or (ii) Seller or Purchaser reasonably determines that any tangible or intangible asset rights that should have been transferred to Purchaser pursuant to this Agreement (including by reason the Acquired Companies as a result of the fact that such asset is used exclusively in Reorganization or otherwise (the Business“Other Assets”), Seller shall, or in shall cause one of its Affiliates to, remit or transfer any such Other Assets promptly to Buyer or its Affiliate. If, after the event Closing Date, Buyer or its Affiliates finds that it has been transferred, or has received, any funds, assets, property or rights that should have been retained by the failure Retained Business (the “Misplaced Assets”), Buyer shall, or shall cause one of its Affiliates to, remit or transfer any such Misplaced Assets promptly to transfer such asset to Purchaser resulted in Seller or would reasonably be expected to result in a breach its Affiliate. Without limiting the generality of the representations and warranties set forth in Section 4.9(a)), has not been transferred to Purchaser, Purchaser and Seller shall consult with one another in good faith and reasonably cooperate to determine if such asset is held by the wrong Party and, if so determined, to effect the transfer of such asset to the appropriate Party or its designee as soon as practicable and for no additional consideration. (c) If and solely to the extent that any Software or Intellectual Property (excluding Trademarks) owned by a Seller or any Affiliate of a Seller as of the Closing (i) was used in any product or service of, or in the conduct of, the Business and (ii) would be infringed, misappropriated, or otherwise violated by the continued use or other commercial exploitation of such product or service or the continued conduct of the Business in (1) the same manner as used, exploited or conducted by Seller immediately prior to Closing, or (2) the reasonable expansion of the Business hereafter, then Seller, on behalf of itself and its Affiliates and its and their successors and assigns, hereby agrees not to, initiate, institute, commence, file, maintain or prosecute any action, lawsuit, proceeding or other claim of any kind against Purchaser, its Affiliates, any of its or their successors or assigns, or any of its or their sublicensees, suppliers, manufacturers, distributors, resellers, contractors, consultants and customersforegoing, with respect to use of such Software any Misplaced Asset or Intellectual Property (excluding Trademarks) in connection withOther Asset, the Parties shall, and shall cause their respective Affiliates to, (i) execute all such agreements, deeds or other documents as may be necessary for the purposes of transferring, assigning and conveying such Misplaced Assets (or part thereof) or Other Assets (or part thereof), as applicable, or the relevant interests in them to the other Party, (ii) obtain all consents from Persons necessary or appropriate for the purposes of transferring, assigning, and conveying such Misplaced Assets (or part thereof) or Other Assets (or part thereof), as applicable or the relevant interests in them to the other Party, (iii) complete all such further acts or things as the other Party may reasonably direct in order to transfer, assign, and convey such Misplaced Assets (or parts thereof) or Other Assets (or part thereof), as applicable, or the relevant interests in them to the other Party, (iv) hold such Misplaced Assets (or part thereof) or Other Assets (or part thereof), as applicable, or relevant interest in such Misplaced Assets or Other Assets, as applicable, in trust for the other Party (to the extent it relates topermitted by applicable Law) until such time as the transfer is validly effected to vest the asset (or part thereof) or relevant interest in such Misplaced Asset or Other Asset, as applicable, to the Businessother Party, and (v) until such time as such Misplaced Asset or assist Other Asset, as applicable, is transferred to the appropriate Party, comply with all applicable covenants and obligations with respect to any such Misplaced Assets or cause Other Assets, as applicable, held by it, including the payment of any third costs and expenses in connection therewith, which shall be performed by such Party or its applicable Affiliate for the other Party’s account, and such other Party shall promptly reimburse such party to do for any of the foregoing. (d) Any dispute between the Parties regarding whether any Intellectual Property should be transferred such out-of-pocket costs, expenses or licensed under this Section 9.8 may be brought by any Party in a court of competent jurisdiction in accordance with Section 13.6. 49payments.

Wrong Pockets. (b) IfIn the event that, at any time or from time to time after the ClosingClosing and prior to the first anniversary thereof, (ia) Seller or Purchaser reasonably determines that any tangible or intangible asset that should not have been transferred to Purchaser pursuant to this Agreement has been transferred to Purchaser or (ii) Seller or Purchaser reasonably determines that any tangible or intangible asset that should have been transferred to Purchaser pursuant to this Agreement (including by reason of the fact that such asset is used exclusively in the Business, or in the event that the failure to transfer such asset to Purchaser resulted in or would reasonably be expected to result in a breach of the representations and warranties set forth in Section 4.9(a)), has not been transferred to Purchaser, Purchaser and Seller shall consult with one another in good faith and reasonably cooperate to determine if such asset is held by the wrong Party and, if so determined, to effect the transfer of such asset to the appropriate Party or its designee as soon as practicable and for no additional consideration. (c) If and solely to the extent that any Software or Intellectual Property (excluding Trademarks) owned by a Seller or any Affiliate of a Seller as of the Closing (i) was used in any product or service of, or in the conduct of, the Business and (ii) would be infringed, misappropriated, or otherwise violated by the continued use or other commercial exploitation of such product or service or the continued conduct of the Business in (1) the same manner as used, exploited or conducted by Seller immediately prior to Closing, or (2) the reasonable expansion of the Business hereafter, then Seller, on behalf of itself and its Affiliates and its and their successors and assigns, hereby agrees not to, initiate, institute, commence, file, maintain or prosecute any action, lawsuit, proceeding or other claim of any kind against Purchaser, its Affiliates, any of its or their successors or assigns, Parent or any of its Subsidiaries receives or their sublicenseesotherwise possesses any asset (including any payments or any mail (including electronic mail)) or is liable for any Liability that was reflected in the Closing Tangible Book Value (for this purpose, suppliersfor the avoidance of doubt, manufacturers, distributors, resellers, contractors, consultants and customers, with respect to use of such Software or Intellectual Property (excluding Trademarks) in connection with, and after giving effect to the extent it relates to, the Business, Pre-Closing Dividend) and therefore should belong to Acquiror or assist or cause any third party to do any of the foregoing. Company Group Entities pursuant to the terms of this Agreement, Parent shall, as promptly as practicable, transfer, or cause to be transferred, such asset or Liability to the appropriate Company Group Entity, as designated by the Acquiror (dand Parent shall be responsible for all out-of-pocket costs incurred by Parent or any of its Affiliates to effect such transfer and, prior to any such transfer, Parent shall, or shall cause its Affiliates to, hold such asset in trust for the benefit of the Acquiror), or (b) Any dispute between the Parties regarding whether Acquiror or any Intellectual Property should of its Subsidiaries, including any of the Company Group Entities, receives or otherwise possesses any asset (including any payments or any mail (including electronic mail)) or Liability that was not reflected in the Closing Tangible Book Value (for this purpose, for the avoidance of doubt, after giving effect to the Pre-Closing Dividend) and relates materially to any business of Parent or any of its Subsidiaries (excluding, for the avoidance of doubt, the businesses conducted by the Company Group Entities) pursuant to the terms of this Agreement, the Acquiror shall as promptly as practicable transfer, or cause to be transferred transferred, such asset or licensed under this Section 9.8 may be brought Liability to Parent or any of its Subsidiaries, as designated by Parent, in each case of clause (a) and (b), for no additional consideration (and Parent shall reimburse the Acquiror for all out-of-pocket costs reasonably incurred by the Acquiror or any Party of its Affiliates to effect such transfer and, prior to any such transfer, the Acquiror shall, or shall cause its respective Affiliates to, hold such asset in a court trust for the benefit of competent jurisdiction in accordance with Section 13.6. 49Parent).

Wrong Pockets. (ba) If, at any time during the twenty four (24) months after the Closing, Seller or any of its Affiliates is in possession of (i) any funds (including any refund or other amount relating to any claim (in respect of workers’ compensation, litigation, insurance or otherwise)) arising from the Business as presently conducted or (ii) any asset (including Intellectual Property) exclusively used or held for use in the conduct of the Business as presently conducted, then Seller shall promptly transfer, or Purchaser reasonably determines that any tangible cause its applicable Affiliate to transfer, such funds or intangible asset that should not have been transferred to Purchaser the Company or its designated Affiliate, for no additional consideration and net of Seller’s reasonable out-of-pocket costs incurred to effect such transfer or fulfill its obligation pursuant to the following sentence. Until such transfer is effected, Seller shall, or shall cause its applicable Affiliate to, preserve the value of, and hold in trust for the use and benefit of the Company or its designated Affiliate, such funds or asset and provide to the Company or its designated Affiliate all of the benefits arising from such funds or asset and otherwise cause such funds or asset to be used as reasonably instructed by the Company or its designated Affiliate. Notwithstanding anything in this Agreement has been Section 7.04(a) or any other provision of this Agreement, (i) the assets set forth on Section 7.04 of the Seller Disclosure Schedule (“Excluded Assets”) shall not be transferred to Purchaser or (ii) Seller the Company or Purchaser reasonably determines that any tangible or intangible asset that should have been transferred to Purchaser pursuant to this Agreement (including by reason of the fact that such asset is used exclusively in the Business, or in the event that the failure to transfer such asset to Purchaser resulted in or would reasonably be expected to result in a breach of the representations and warranties set forth in Section 4.9(a)), has not been transferred to Purchaser, Purchaser and Seller shall consult with one another in good faith and reasonably cooperate to determine if such asset is held by the wrong Party and, if so determined, to effect the transfer of such asset to the appropriate Party or its designee as soon as practicable and for no additional consideration. (c) If and solely to the extent that any Software or Intellectual Property (excluding Trademarks) owned by a Seller or any Affiliate of a Seller as of the Closing (i) was used in any product or service of, or in the conduct of, the Business and (ii) would be infringed, misappropriated, or otherwise violated by the continued use or other commercial exploitation of such product or service or the continued conduct of the Business in (1) the same manner as used, exploited or conducted by Seller immediately prior to Closing, or (2) the reasonable expansion of the Business hereafter, then Seller, on behalf of itself and its Affiliates and its and their successors and assigns, hereby agrees not to, initiate, institute, commence, file, maintain or prosecute any action, lawsuit, proceeding or other claim of any kind against Purchaser, its Affiliates, any of its or their successors or assignsAffiliates; (ii) as between the Parties, Purchaser and the Company agree that Seller is the sole and exclusive owner of all right, title and interest in and to the Excluded Assets and all rights related thereto and goodwill associated therewith; and (iii) to the extent that Purchaser, the Company, or any of its or their sublicenseesAffiliates has or acquires any right, suppliers, manufacturers, distributors, resellers, contractors, consultants and customers, with respect to use of such Software title or Intellectual Property (excluding Trademarks) interest in connection with, and to the extent it relates toExcluded Assets, Purchaser and the BusinessCompany shall, and do hereby, assign, and if applicable, shall cause its or assist or cause any third party their Affiliates to do any assign, to Seller all of such right, title, and interest in and to the foregoing. (d) Any dispute between the Parties regarding whether any Intellectual Property should be transferred or licensed under this Section 9.8 may be brought by any Party in a court of competent jurisdiction in accordance with Section 13.6. 49Excluded Assets.

Wrong Pockets. (b) If, after following the Closing, (i) Seller either Buyer, on the one hand, or Purchaser reasonably determines the Sellers, on the other hand, becomes aware that any tangible or intangible asset that should not have been transferred to Purchaser pursuant to this Agreement has been transferred to Purchaser or (ii) Seller or Purchaser reasonably determines that any tangible or intangible asset that should have been transferred to Purchaser pursuant to this Agreement (including by reason of the fact that such asset is used exclusively in the Business, Acquired Assets or in the event that the failure to transfer such asset to Purchaser resulted in or would reasonably be expected to result in a breach of the representations and warranties set forth in Section 4.9(a)), Assumed Liabilities has not been transferred to Purchaser, Purchaser and Seller shall consult with one another in good faith and reasonably cooperate to determine if such asset is held by the wrong Party and, if so determined, to effect the transfer of such asset to the appropriate Party Buyer or its designee Affiliate or that any of the Excluded Assets or Excluded Liabilities has been transferred to Buyer or its Affiliate (other than as contemplated in the Transaction Documents), Buyer or the Sellers, as applicable, shall promptly notify the other and the Parties shall, as soon as practicable and for no additional considerationreasonably practicable, ensure that such property or liability is transferred, with any necessary prior Third Party Consent, to (a) Buyer or its applicable Affiliate, in the case of any Acquired Asset or Assumed Liability which was not transferred to Buyer at the Closing; or (b) the applicable Seller, in the case of any Excluded Asset or Excluded Liability which was transferred to Buyer at the Closing. (c) If and solely to Without limiting the extent that any Software or Intellectual Property (excluding Trademarks) owned by a Seller or any Affiliate of a Seller as of foregoing, the Parties agree that, after the Closing Date, (ix) was used in any product or service of, or in the conduct of, the Business and (ii) would be infringed, misappropriated, or otherwise violated by the continued use or other commercial exploitation of such product or service or the continued conduct of the Business in (1) the same manner as used, exploited or conducted by Seller immediately prior to Closing, or (2) the reasonable expansion of the Business hereafter, then Seller, on behalf of itself and its Affiliates and its and their successors and assigns, hereby agrees not to, initiate, institute, commence, file, maintain or prosecute any action, lawsuit, proceeding or other claim of any kind against Purchaser, its Affiliates, any of its or their successors or assigns, if Buyer or any of its or their sublicenseesAffiliates receives any payment in respect of any Accounts Receivable, suppliersBuyer shall hold and shall promptly transfer and deliver such payment to the Sellers (to an account designated by the Sellers), manufacturers, distributors, resellers, contractors, consultants from time to time as and customers, with respect to use of such Software or Intellectual Property (excluding Trademarks) when received by Buyer and in connection withthe currency received, and Buyer shall account to the extent it relates toSellers for all such receipts, and (y) Buyer shall promptly deliver to the Sellers any invoice Buyer or any of its Affiliates receives in respect of any Accounts Payable and the Sellers shall promptly pay such Account Payable in full. Without limiting the foregoing, the BusinessSellers agree that, or assist or cause any third party to do after the Closing Date, if any of the foregoing. Sellers or their Affiliates receive any payment in respect of any Acquired Assets, the applicable Seller (dor Affiliate) Any dispute between shall hold and shall promptly transfer and deliver such payment to the Parties regarding whether any Intellectual Property should be transferred or licensed under this Section 9.8 may be brought Buyer as and when received by any Party such Seller and in a court of competent jurisdiction in accordance with Section 13.6. 49the currency received, and the Sellers shall account to the Buyer for all such receipts.

Wrong Pockets. (a) If, at any time after the Closing, Seller or any of its Affiliates (i) receives any funds (including any refund or other amount relating to any claim (in respect of workers’ compensation, litigation, insurance or otherwise)) arising from the Business, (ii) owns or is in possession of any Local Transferred Asset, Specified Asset or any other asset (including Intellectual Property) primarily used or held for use in the conduct of the Business (excluding any 47 Excluded Asset) or (iii) remains subject to any Assumed Liabilities, then Seller shall promptly transfer or assign, or cause its applicable Affiliate to transfer or assign, such funds, assets or Liabilities to the Company or its designated Affiliate (and the Company or its designated Affiliate shall accept any such funds or assets and irrevocably assume any such Liabilities), for no additional consideration, and the Company shall reimburse Seller for reasonable out-of-pocket costs incurred by Seller or any of its Affiliates to effect such transfer or assignment or fulfill its obligation pursuant to the following sentence, if applicable. Until the transfer of any such funds or assets are effected, Seller shall, or shall cause its applicable Affiliate to, preserve the value of, and hold in trust for the use and benefit of, the Company or its designated Affiliate, such funds or assets and provide to the Company or its designated Affiliate all of the benefits arising from such funds or assets and otherwise cause such funds or assets to be used as reasonably instructed by the Company or its designated Affiliate. (b) If, at any time after the Closing, Purchaser or any of its Affiliates (including the Company Group) (i) Seller receives any funds (including any refund or Purchaser reasonably determines that other amount relating to any tangible claim (in respect of workers’ compensation, litigation, insurance or intangible asset that should not have been transferred to Purchaser pursuant to this Agreement has been transferred to Purchaser or otherwise)) arising from the Retained Business, (ii) owns or is in possession of any Excluded Asset or any other asset (including Intellectual Property) primarily used or held for use in the conduct of the Retained Business (excluding any Specified Asset) or (iii) remains subject to any Retained Liabilities, then Purchaser shall promptly transfer or assign, or cause its applicable Affiliate to transfer or assign, such funds, assets or Liabilities to Seller or Purchaser reasonably determines that its designated Affiliate (and Seller or its designated Affiliate shall accept any tangible such funds or intangible asset that should have been transferred to Purchaser pursuant to this Agreement (including by reason of the fact that assets and irrevocably assume any such asset is used exclusively in the Business, or in the event that the failure to transfer such asset to Purchaser resulted in or would reasonably be expected to result in a breach of the representations and warranties set forth in Section 4.9(a)Liabilities), has not been transferred to Purchaser, Purchaser and Seller shall consult with one another in good faith and reasonably cooperate to determine if such asset is held by the wrong Party and, if so determined, to effect the transfer of such asset to the appropriate Party or its designee as soon as practicable and for no additional consideration. (c) If , and solely to the extent that any Software or Intellectual Property (excluding Trademarks) owned Seller shall reimburse Purchaser for reasonable out-of-pocket costs incurred by a Seller or any Affiliate of a Seller as of the Closing (i) was used in any product or service of, or in the conduct of, the Business and (ii) would be infringed, misappropriated, or otherwise violated by the continued use or other commercial exploitation of such product or service or the continued conduct of the Business in (1) the same manner as used, exploited or conducted by Seller immediately prior to Closing, or (2) the reasonable expansion of the Business hereafter, then Seller, on behalf of itself and its Affiliates and its and their successors and assigns, hereby agrees not to, initiate, institute, commence, file, maintain or prosecute any action, lawsuit, proceeding or other claim of any kind against Purchaser, its Affiliates, any of its or their successors or assigns, Purchaser or any of its Affiliates to effect such transfer or their sublicenseesassignment or fulfill its obligation pursuant to the following sentence, suppliersif applicable. Until the transfer of any such funds or assets are effected, manufacturersPurchaser shall, distributorsor shall cause its applicable Affiliate to, resellers, contractors, consultants and customers, with respect to use of such Software or Intellectual Property (excluding Trademarks) in connection withpreserve the value of, and hold in trust for the use and benefit of, Seller or its designated Affiliate, such funds or assets and provide to the extent it relates to, the Business, Seller or assist or cause any third party to do any its designated Affiliate all of the foregoingbenefits arising from such funds or assets and otherwise cause such funds or assets to be used as reasonably instructed by Seller or its designated Affiliate. (d) Any dispute between the Parties regarding whether any Intellectual Property should be transferred or licensed under this Section 9.8 may be brought by any Party in a court of competent jurisdiction in accordance with Section 13.6. 49SECTION 7.05

Wrong Pockets. (ba) If, at any time after the Closing, Seller or any of its Affiliates (i) Seller receives any funds (including any refund or Purchaser reasonably determines that other amount relating to any tangible claim (in respect of workers’ compensation, litigation, insurance or intangible asset that should not have been transferred to Purchaser pursuant to this Agreement has been transferred to Purchaser or otherwise)) arising from the Business, (ii) Seller owns or Purchaser reasonably determines that is in possession of any tangible Local Transferred Asset, Specified Asset or intangible any other asset that should have been transferred to Purchaser pursuant to this Agreement (including by reason Intellectual Property) primarily used or held for use in the conduct of the fact that such asset is used exclusively in the BusinessBusiness (excluding any Excluded Asset) or (iii) remains subject to any Assumed Liabilities, then Seller shall promptly transfer or assign, or in the event that the failure cause its applicable Affiliate to transfer or assign, such asset funds, assets or Liabilities to Purchaser resulted in the Company or would reasonably be expected to result in a breach of its designated Affiliate (and the representations Company or its designated Affiliate shall accept any such funds or assets and warranties set forth in Section 4.9(a)irrevocably assume any such Liabilities), has not been transferred to Purchaser, Purchaser and Seller shall consult with one another in good faith and reasonably cooperate to determine if such asset is held by the wrong Party and, if so determined, to effect the transfer of such asset to the appropriate Party or its designee as soon as practicable and for no additional consideration. (c) If , and solely to the extent that any Software or Intellectual Property (excluding Trademarks) owned by a Company shall reimburse Seller or any Affiliate of a Seller as of the Closing (i) was used in any product or service for reasonable out-of, or in the conduct of, the Business and (ii) would be infringed, misappropriated, or otherwise violated by the continued use or other commercial exploitation of such product or service or the continued conduct of the Business in (1) the same manner as used, exploited or conducted -pocket costs incurred by Seller immediately prior to Closing, or (2) the reasonable expansion of the Business hereafter, then Seller, on behalf of itself and its Affiliates and its and their successors and assigns, hereby agrees not to, initiate, institute, commence, file, maintain or prosecute any action, lawsuit, proceeding or other claim of any kind against Purchaser, its Affiliates, any of its or their successors or assigns, or any of its Affiliates to effect such transfer or their sublicenseesassignment or fulfill its obligation pursuant to the following sentence, suppliersif applicable. Until the transfer of any such funds or assets are effected, manufacturersSeller shall, distributorsor shall cause its applicable Affiliate to, resellers, contractors, consultants and customers, with respect to use of such Software or Intellectual Property (excluding Trademarks) in connection withpreserve the value of, and hold in trust for the use and benefit of, the Company or its designated Affiliate, such funds or assets and provide to the extent it relates to, the Business, Company or assist or cause any third party to do any its designated Affiliate all of the foregoing. (d) Any dispute between benefits arising from such funds or assets and otherwise cause such funds or assets to be used as reasonably instructed by the Parties regarding whether any Intellectual Property should be transferred Company or licensed under this Section 9.8 may be brought by any Party in a court of competent jurisdiction in accordance with Section 13.6. 49its designated Affiliate.