Wrong Pockets. (a) If, within twelve (12) months following the Closing, any person discovers any right, title or interest in any asset or any Liability (a “Wrong Pocket Asset” and a “Wrong Pocket Liability,” respectively) that as of the Closing Date related to (i) the business of the Acquired Companies, but was not transferred or assumed by Acquiror or any Acquired Company at Closing or (ii) the business of the Seller and its Affiliates other than the business of the Acquired Companies, but was transferred to Acquiror or an Acquired Company at Closing, in each case except as a result of a transaction occurring after the Closing consented to by the Parties, then: (i) the Parties shall cause any of their respective Affiliates holding such right, title or interest in a Wrong Pocket Asset (the “Wrong Pocket”) to transfer such Wrong Pocket Asset to the appropriate Person (the “Right Pocket”) as promptly as reasonably practicable for no additional consideration; (ii) the Parties shall cause such Wrong Pocket to hold its right, title and interest in and to the Wrong Pocket Asset for the benefit of the Right Pocket until such time as the transfer is completed; and (iii) the Parties shall cause the Right Pocket to assume any Wrong Pocket Liability from the relevant Wrong Pocket as promptly as reasonably practicable for no additional consideration. (b) All costs and expenses arising out of compliance with such transfers shall be allocated to the Parties as though such transfers had been completed as of the Closing in accordance with this Agreement. (c) The Parties shall cause the Right Pocket to cooperate with the Wrong Pocket in connection with the transfers contemplated by this Section 7.6.
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Wrong Pockets. (a) If, within During the twelve (12) months month period following the ClosingClosing Date, any person if Buyer or Seller discovers any right, title or interest in any asset or any Liability (a “Wrong Pocket Asset” and a “Wrong Pocket Liability,” respectively) that as of the Closing Date related to (i) the business of the Acquired Companies, but was not transferred or assumed by Acquiror or any Acquired Company at Closing or (ii) the business of the Seller and its Affiliates other than the business of the Acquired Companies, but was transferred to Acquiror or an Acquired Company at Closing, in each case except as a result of a transaction occurring after the Closing consented to by the Parties, thenany:
(i) Excluded Asset was directly or indirectly transferred to Buyer (or held by the Parties Acquired Companies) at Closing (each, a “Held Asset”), Buyer shall, and shall cause any of their respective its Buyer Affiliates holding such right, title or interest in a Wrong Pocket Asset to use reasonable best efforts to (the “Wrong Pocket”A) to promptly assign and transfer such Wrong Pocket Asset to the appropriate Person (the “Right Pocket”) as promptly as reasonably practicable for no additional consideration;
(ii) the Parties shall cause such Wrong Pocket to hold its all right, title and interest in such Held Asset to Seller or its designated assignee, and (B) pending such transfer, (x) hold in trust such Held Asset and provide to the Wrong Pocket Asset for the benefit Seller or its designated assignee all of the Right Pocket until benefits associated with the ownership of the Held Asset, and (y) cause such time Held Asset to be used or retained as the transfer is completedmay be reasonably instructed by Seller; andor
(iiiii) the Parties any Transferred Asset was not transferred to Buyer at Closing (each, an “Omitted Asset”), Seller shall, and shall cause its Affiliates to use reasonable best efforts to (A) promptly assign and transfer all right, title and interest in such Omitted Asset to Buyer or its designated assignee, and (B) pending such transfer, (x) hold in trust such Omitted Asset and provide to Buyer or its designated assignee all of the Right Pocket benefits associated with the ownership of the Omitted Asset, and (y) cause such Omitted Asset to assume any Wrong Pocket Liability from the relevant Wrong Pocket be used or retained as promptly as may be reasonably practicable for no additional considerationinstructed by Buyer.
(b) All costs Buyer or Seller, as applicable, shall (and expenses arising out of compliance with such transfers shall be allocated cause their Affiliates, as applicable, to) use reasonable best efforts to, in addition to the Parties as though such transfers had been completed as other actions set forth in Section 8.12(a)(i) and Section 8.12(a)(ii), promptly upon the request of the Closing other party, (A) obtain all consents from Persons necessary or appropriate for the purposes of transferring, assigning and conveying such Held Asset or Omitted Asset (or part thereof), as applicable, or the relevant interests in accordance with them to the other party and (B) complete all such further acts or things as the other party may reasonably direct in order to transfer, assign and convey such Held Asset or Omitted Asset (or parts thereof), as applicable, or the relevant interests in them to the other party; provided that the transferring party and its Affiliates shall not be required to incur any out-of-pocket expense pursuant to this Agreementclause (b) which is not agreed to be paid or reimbursed by the transferring party or its Affiliates.
(c) The Parties In the event that, following the Closing, (i) Buyer or any Buyer Affiliate (including, for the avoidance of doubt, the Acquired Companies) receives any payment that is for the account of Seller or any of its Affiliates (excluding any Acquired Company) under a Shared Customer Contract that is unable to be transferred out of an Acquired Company as part of the Reorganization, Buyer shall promptly remit (or cause the Right Pocket to cooperate with the Wrong Pocket be promptly remitted) such funds to Seller or an entity designated by Seller, net of any Tax incurred in connection with the transfers contemplated receipt of such funds or required to be withheld on remittance or (ii) Seller or any Affiliate of Seller receives any payment that is for the account of Buyer or any Affiliate of Buyer under a Shared Customer Contract, in respect of the Business or otherwise according to the terms of this Agreement, Seller shall promptly remit (or cause to be promptly remitted) such funds to Buyer or an entity designated by this Section 7.6Buyer.
(d) Buyer or the applicable Acquired Company shall forward any claim for an Excluded Liability to Seller after the Closing and Seller shall forward any claim for an Assumed Liability to Buyer after the Closing.
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Samples: Equity Purchase Agreement (Navigant Consulting Inc)
Wrong Pockets. (a) If, within twelve (12) 18 months following after the Closing, NewCo, AT&T, Investor or their respective Affiliates identify any person discovers assets or liabilities owned by any right, title of AT&T or interest in any asset or any Liability (a “Wrong Pocket Asset” and a “Wrong Pocket Liability,” respectively) its Affiliates that as of the Closing Date related to (i) the business of the Acquired Companies, should have been a Transferred Asset or Assumed Liability but was not transferred by such AT&T Entity to NewCo or assumed by Acquiror a Transferred Subsidiary at or any Acquired Company at prior to the Closing or (ii) the business including as part of the Seller and its Affiliates other than Pre-Closing Reorganization) (any such asset or liability, a “Wrong Pockets Item”), then NewCo (as directed by Investor in the business of the Acquired Companies, but was transferred to Acquiror or an Acquired Company at Closing, in each case except as a result of a transaction occurring after Transferred Asset and as directed by AT&T in the Closing consented to by the Partiescase of an Assumed Liability), then:
(i) the Parties shall cause any of AT&T, Investor, or their respective Affiliates holding Affiliates, as applicable, shall, promptly after identification of such rightWrong Pockets Item, title or interest in provide written notice (a Wrong Pocket Asset (the “Wrong PocketPockets Notice”) to transfer such Wrong Pocket Asset to the appropriate Person (the “Right Pocket”) as promptly as reasonably practicable for no additional consideration;
(ii) the Parties shall cause such Wrong Pocket to hold its right, title and interest in and to others identifying the Wrong Pocket Asset for Pockets Item and describing in reasonable detail the benefit use thereof in the Business as of the Right Pocket until such time as the transfer is completed; and
(iii) the Parties shall cause the Right Pocket to assume any Wrong Pocket Liability from the relevant Wrong Pocket as promptly as reasonably practicable for no additional considerationClosing Date.
(b) All costs AT&T and expenses arising out Investor shall notify NewCo in writing within 30 days of compliance with receipt of the Wrong Pockets Notice whether each reasonably believes in good faith that the identified Wrong Pockets Item was a Transferred Asset or Assumed Liability, as the case may be. With respect to any asset or liability identified in a Wrong Pockets Notice that each of AT&T or Investor reasonably believes in good faith was a Transferred Asset or Assumed Liability, as the case may be, (i) in the case of a Transferred Asset, AT&T agrees to promptly Transfer or cause to be Transferred such transfers Wrong Pockets Item to NewCo or such Subsidiary of NewCo as NewCo may designate, and (ii) in the case of an Assumed Liability, NewCo agrees to promptly assume or cause one of its Subsidiaries to assume such Wrong Pockets Item, in each case, for no additional consideration, and in the case of any Transferred Asset the Transfer of which by AT&T or its Affiliates to NewCo or a Transferred Subsidiary requires notice to or approval by a Governmental Entity, the relevant AT&T Entity and Investor shall use reasonable best efforts to make or obtain such notice or approval and the Transfer of such asset shall not be allocated completed until the required notices or approvals have been made or obtained. With respect to any other Wrong Pockets Item identified in the applicable Wrong Pockets Notice that AT&T and Investor do not mutually agree (acting reasonably and in good faith) was a Transferred Asset or Assumed Liability, as the case may be, the Parties as though shall resolve such transfers had been completed matter using the dispute resolution process set forth in Section 10.9.
(c) In the event that AT&T, NewCo or Investor identifies, following the Closing, an asset or a liability held by NewCo or any of its Subsidiaries as of immediately after the Closing that it believes in good faith should have been an Excluded Asset or Excluded Liability, as the case may be, then the provisions of Section 1.9(a) and Section 1.9(b) shall apply to AT&T, Investor and NewCo mutatis mutandis with respect thereto. Without duplication of any indemnity paid by or on behalf of AT&T pursuant to Article VIII, AT&T shall indemnify and hold harmless NewCo and its Affiliates from and against all Losses incurred or asserted as a result of NewCo’s and its Affiliates’ post-Closing direct or indirect ownership, management or operation of any such Excluded Asset or Excluded Liability in accordance with this Agreement, other than as a result of the gross negligence, fraud or willful misconduct of NewCo, Investor or its Affiliates.
(cd) The Any Wrong Pockets Item described in Section 1.9(a) and confirmed in Section 1.9(b) as a Transferred Asset or Assumed Liability shall be treated as having been Transferred to NewCo for U.S. federal (and applicable state or local) income tax purposes from and after the Closing, to the maximum extent allowable by applicable Law. Any asset or liability described in Section 1.9(c) as an Excluded Asset or Excluded Liability shall be treated as having never been Transferred to NewCo for U.S. federal (and applicable state or local) income tax purposes from and after the Closing, to the maximum extent allowable by applicable Law.
(e) To the extent permitted by applicable Law, the Parties shall cause the Right Pocket agree to cooperate with the treat for applicable Income Tax purposes (i) any Wrong Pocket Pockets Item described in connection with the transfers Section 1.9(a) and confirmed in Section 1.9(b) as a Transferred Asset that is transferred as contemplated by this hereby and (ii) any asset described in Section 7.61.9(c) as an Excluded Asset that is retained as contemplated hereby.
Appears in 1 contract
Samples: Agreement of Contribution and Subscription (At&t Inc.)
Wrong Pockets. (a) If, within twelve (During the 12) months -month period following the ClosingClosing Date, any person discovers any rightif Buyer, title Parent or interest in any asset or any Liability (a “Wrong Pocket Asset” and a “Wrong Pocket Liability,” respectively) Seller discover that as of the Closing Date related to (i) the business of the Acquired Companies, but was not transferred or assumed by Acquiror or any Acquired Company at Closing or (ii) the business of the Seller and its Affiliates other than the business of the Acquired Companies, but was transferred to Acquiror or an Acquired Company at Closing, in each case except as a result of a transaction occurring after the Closing consented to by the Parties, thenany:
(i) Seller Asset, Excluded Asset or settlement funds of Seller or its Affiliates (other than those held by the Parties Seller Licensed Subsidiary reflected in dedicated accounts which have been established in respect of the Business), were directly or indirectly transferred to Buyer (or held by the Companies) at Closing (each, a “Held Asset”), Buyer shall, and shall cause any of their respective its Buyer Affiliates holding such rightto, title or interest in a Wrong Pocket Asset use reasonable best efforts to (the “Wrong Pocket”A) to promptly assign and transfer such Wrong Pocket Asset to the appropriate Person (the “Right Pocket”) as promptly as reasonably practicable for no additional consideration;
(ii) the Parties shall cause such Wrong Pocket to hold its all right, title and interest in such Held Asset to Seller or its designated assignee and (B) pending such transfer, (x) hold in trust such Held Asset and provide to the Wrong Pocket Asset for the benefit Seller or its designated assignee all of the Right Pocket until benefits associated with the ownership of the Held Asset and (y) cause such time Held Asset to be used or retained as the transfer is completed; andmay be reasonably instructed by Seller;
(iiiii) any Contributed Asset or settlement funds of the (A) Seller Licensed Subsidiary reflected in dedicated accounts which have been established in respect of the Business or (B) the Parties Companies were not transferred to Buyer at Closing (each of (A) and (B), an “Omitted Asset”),Seller shall, and shall cause its Affiliates to use reasonable best efforts to (1) promptly assign and transfer all right, title and interest in such Omitted Asset to Buyer or its designated assignee, and (2) pending such transfer, (x) hold in trust such Omitted Asset and provide to Buyer or its designated assignee all of the Right Pocket benefits associated with the ownership of the Omitted Asset, and (y) cause such Omitted Asset to assume any Wrong Pocket Liability from the relevant Wrong Pocket be used or retained as promptly as may be reasonably practicable for no additional considerationinstructed by Buyer.
(b) All costs Buyer or Seller, as applicable, shall (and expenses arising out of compliance with such transfers shall be allocated cause their Affiliates, as applicable, to) use reasonable best efforts to, in addition to the Parties as though such transfers had been completed as other actions set forth in Section 7.11(a)(i) and Section 7.11(a)(ii), promptly upon the request of the Closing other party, (A) obtain all consents from Persons necessary or appropriate for the purposes of transferring, assigning and conveying such Held Asset or Omitted Asset (or part thereof), as applicable, or the relevant interests in accordance with them to the other party and (B) complete all such further acts or things as the other party may reasonably direct in order to transfer, assign and convey such Held Asset or Omitted Asset (or parts thereof), as applicable, or the relevant interests in them to the other party; provided, that the transferring party and its Affiliates shall not be required to incur any out-of-pocket expense pursuant to this Agreementclause (b) which is not agreed to be paid or reimbursed by the transferring party or its Affiliates.
(c) The Parties shall cause the Right Pocket to cooperate with the Wrong Pocket in connection with the transfers contemplated by this Section 7.6.
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Wrong Pockets. (a) IfAfter giving effect to the transactions contemplated by this Agreement, within twelve (12) months following if at any time after the Closing, it is determined that any person discovers any asset, property, right, title Contract or interest claim of Seller or its controlled Affiliate was not held by a Group Company at the Closing, but was primarily used in any asset or any Liability connection with the Acquired Business prior to the Closing (a collectively, the “Company’s Wrong Pocket Asset” ”), Seller shall, and a “Wrong Pocket Liability,” respectively) that as of the Closing Date related shall cause its Subsidiaries and controlled Affiliates to use commercially reasonable efforts to (i) execute all instruments, agreements, or documents as may be reasonably necessary for the business purpose of transferring the Acquired Companiesrelevant ownership and/or interests in the Company’s Wrong Pocket Assets (or relevant part thereof) held by such Person to the Company or its Affiliates, but was not transferred or assumed by Acquiror or any Acquired Company at Closing or (ii) do all such further acts or things as may be reasonably necessary to validly effect the business of transfer and vest the Seller and relevant ownership and/or interest in such Company’s Wrong Pocket Assets (or relevant part thereof) in the Company or its Affiliates other than and (iii) cause the business transferor of the Acquired Companies, but was transferred to Acquiror or an Acquired Company at Closing, in each case except as a result of a transaction occurring after the Closing consented to by the Parties, then:
(i) the Parties shall cause any of their respective Affiliates holding such right, title or interest in a Wrong Pocket Asset (the “Wrong Pocket”) to transfer such Company’s Wrong Pocket Asset to hold the appropriate Person (the “Right Pocket”) as promptly as reasonably practicable for no additional consideration;
(ii) the Parties shall cause such Wrong Pocket to hold its right, title and interest in and to the Company’s Wrong Pocket Asset and any monies, goods, or other benefits arising therefrom after the date of this Agreement by virtue thereof, as agent of and trustee for the benefit of the Right Pocket until such time as the transfer is completed; and
(iii) the Parties shall cause the Right Pocket to assume any Company’s Wrong Pocket Liability from Assets transferee and allow the relevant Company to such enjoyment and use of such Company’s Wrong Pocket Asset as promptly as reasonably practicable for Seller or its controlled Affiliate has. It is understood and agreed that no additional considerationconsideration shall be payable by Bxxxx in respect of any such Company’s Wrong Pocket Assets.
(b) All costs and expenses arising out of compliance with such transfers shall be allocated After giving effect to the Parties as though such transfers had been completed as of the Closing in accordance with transactions contemplated by this Agreement.
(c) The Parties shall cause , if at any time after the Right Pocket to cooperate with the Wrong Pocket Closing, it is determined that any asset, property, right, Contract or claim of any Group Company primarily used in connection with the transfers contemplated Excluded Business was held by a Group Company at the Closing (collectively, the “Sellers’ Wrong Pocket Asset”), Buyer shall, and shall cause its Subsidiaries and controlled Affiliates to use commercially reasonable efforts to (i) execute all instruments, agreements, or documents as may be reasonably necessary for the purpose of transferring the relevant ownership and/or interests in the Sellers’ Wrong Pocket Assets (or relevant part thereof) held by such Person to Seller or its designated Affiliate, (ii) do all such further acts or things as may be reasonably necessary to validly effect the transfer and vest the relevant ownership and/or interest in such Sellers’ Wrong Pocket Assets (or relevant part thereof) in Seller or its designated Affiliate, and (iii) cause the transferor of such Sellers’ Wrong Pocket Asset to hold the Sellers’ Wrong Pocket Asset and any monies, goods, or other benefits arising therefrom after the date of this Section 7.6Agreement by virtue thereof, as agent of and trustee for the Sellers’ Wrong Pocket Assets transferee and allow Seller or its designated Affiliate to have such enjoyment and use of such Sellers’ Wrong Pocket Assets as Buyer or its controlled Affiliate has. It is understood and agreed that no consideration shall be payable by Seller in respect of any such Sellers’ Wrong Pocket Assets.
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Wrong Pockets. (a) If, If within twelve (12) 18 months following the Closing, any person Party discovers that any right, title or interest in any asset not used in connection with the Purchased Business (a “Wrong Pocket Excluded Asset”) that was meant to be retained by a Seller pursuant to the terms of this Agreement was transferred to the Purchaser, then (i) the Purchaser shall transfer, as promptly as reasonably practicable, such Wrong Pocket Excluded Asset to the applicable Seller for no additional consideration and the Purchaser’s expense; and (ii) the Purchaser shall hold such right, title and interest in and to the Wrong Pocket Excluded Asset in trust for the applicable Seller until such time as the transfer is completed.
(b) If within 18 months following Closing, any Party discovers that any right, title or interest in any Liability asset used in connection with the Purchased Business (a “Wrong Pocket Asset” and a “Wrong Pocket Liability,” respectively”) that was meant to be transferred to the Purchaser pursuant to the terms of this Agreement (including, for certainty, any XXX XXX XXX XXX XXX XXX and 90 Days Account Receivable) was not transferred to the Purchaser as of the Closing Date related to contemplated by this Agreement, then (i) the business of the Acquired Companiesapplicable Seller shall transfer, but was not transferred or assumed by Acquiror or any Acquired Company at Closing or (ii) the business of the Seller and its Affiliates other than the business of the Acquired Companiesas promptly as reasonably practicable, but was transferred to Acquiror or an Acquired Company at Closing, in each case except as a result of a transaction occurring after the Closing consented to by the Parties, then:
(i) the Parties shall cause any of their respective Affiliates holding such right, title or interest in a Wrong Pocket Asset (the “Wrong Pocket”) to transfer such Wrong Pocket Asset to the appropriate Person (the “Right Pocket”) as promptly as reasonably practicable Purchaser for no additional consideration;
consideration and at Sellers’ expense; and (ii) the Parties Seller shall cause hold such Wrong Pocket to hold its right, title and interest in and to the Wrong Pocket Asset in trust for the benefit of the Right Pocket Purchaser until such time as the transfer is completed; and
(iii) the Parties shall cause the Right Pocket to assume any Wrong Pocket Liability from the relevant Wrong Pocket as promptly as reasonably practicable for no additional consideration.
(b) All costs and expenses arising out of compliance with such transfers shall be allocated to the Parties as though such transfers had been completed as of the Closing in accordance with this Agreement.
(c) The Parties shall cause the Right Pocket to cooperate with the Wrong Pocket in connection with the transfers contemplated by this Section 7.6.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Descartes Systems Group Inc)
Wrong Pockets. (a) If, within twelve (During the 12) months -month period following the ClosingClosing Date, any person discovers any rightif Buyer, title Parent or interest in any asset or any Liability (a “Wrong Pocket Asset” and a “Wrong Pocket Liability,” respectively) Seller discover that as of the Closing Date related to (i) the business of the Acquired Companies, but was not transferred or assumed by Acquiror or any Acquired Company at Closing or (ii) the business of the Seller and its Affiliates other than the business of the Acquired Companies, but was transferred to Acquiror or an Acquired Company at Closing, in each case except as a result of a transaction occurring after the Closing consented to by the Parties, thenany:
(i) Seller Asset, Excluded Asset or settlement funds of Seller or its Affiliates (other than those held by the Parties Seller Licensed Subsidiary reflected in dedicated accounts which have been established in respect of the Business), were directly or indirectly transferred to Buyer (or held by the Companies) at Closing (each, a “Held Asset”), Buyer shall, and shall cause any of their respective its Buyer Affiliates holding such rightto, title or interest in a Wrong Pocket Asset use reasonable best efforts to (the “Wrong Pocket”A) to promptly assign and transfer such Wrong Pocket Asset to the appropriate Person (the “Right Pocket”) as promptly as reasonably practicable for no additional consideration;
(ii) the Parties shall cause such Wrong Pocket to hold its all right, title and interest in such Held Asset to Seller or its designated assignee and (B) pending such transfer, (x) hold in trust such Held Asset and provide to the Wrong Pocket Asset for the benefit Seller or its designated assignee all of the Right Pocket until benefits associated with the ownership of the Held Asset and (y) cause such time Held Asset to be used or retained as the transfer is completed; andmay be reasonably instructed by Seller;
(iiiii) any Contributed Asset or settlement funds of the (A) Seller Licensed Subsidiary reflected in dedicated accounts which have been established in respect of the Business or (B) the Parties Companies were not transferred to Buyer at Closing (each of (A) and (B), an “Omitted Asset”), Seller shall, and shall cause its Affiliates to use reasonable best efforts to (1) promptly assign and transfer all right, title and interest in such Omitted Asset to Buyer or its designated assignee, and (2) pending such transfer, (x) hold in trust such Omitted Asset and provide to Buyer or its designated assignee all of the Right Pocket benefits associated with the ownership of the Omitted Asset, and (y) cause such Omitted Asset to assume any Wrong Pocket Liability from the relevant Wrong Pocket be used or retained as promptly as may be reasonably practicable for no additional considerationinstructed by Buyer.
(b) All costs Buyer or Seller, as applicable, shall (and expenses arising out of compliance with such transfers shall be allocated cause their Affiliates, as applicable, to) use reasonable best efforts to, in addition to the Parties as though such transfers had been completed as other actions set forth in Section 7.11(a)(i) and Section 7.11(a)(ii), promptly upon the request of the Closing other party, (A) obtain all consents from Persons necessary or appropriate for the purposes of transferring, assigning and conveying such Held Asset or Omitted Asset (or part thereof), as applicable, or the relevant interests in accordance with them to the other party and (B) complete all such further acts or things as the other party may reasonably direct in order to transfer, assign and convey such Held Asset or Omitted Asset (or parts thereof), as applicable, or the relevant interests in them to the other party; provided, that the transferring party and its Affiliates shall not be required to incur any out-of-pocket expense pursuant to this Agreementclause (b) which is not agreed to be paid or reimbursed by the transferring party or its Affiliates.
(c) The Parties shall cause the Right Pocket to cooperate with the Wrong Pocket in connection with the transfers contemplated by this Section 7.6.
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