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and TABLE OF CONTENTS
ARTICLE I DEFINITIONS
1.1. Definitions 1.2. Internal References
ARTICLE II TRANSFER OF ASSETS
2.1. Contribution and Purchase of Transferred Assets 2.2. Assumption of Liabilities 2.3. Closing 2.4. Deliveries
5 6 7 7
ARTICLE III EXCHANGE
3.1. Contribution 3.2. Reporting
ARTICLE IV REPRESENTATIONS AND WARRANTIES; DISCLAIMER
4.1. Disclaimer of Representations and Warranties 4.2. Transferred Assets Representation 4.3. Disclaimer of Liabilities
8 8 9
ARTICLE V CERTAIN AGREEMENTS AND COVENANTS OF THE PARTIES
Dispute Resolution 6.1. Governing Law 6.15 Interpretation .5. Compliance with Bulk Sales Laws 6. Entire Agreement 6. Failure or Indulgence not Waiver. Specific Performance 6.1.3. Binding Effect.13 . Amendment 6.2. Indemnification by Subsidiary 22.214.171.124.14 .2.9.8. Assignment 6. Information 6.3.12 . Authority 6. Counterparts 6. Remedies Cumulative 6.5.11 .10 . Severability 6. Further Assurances 9 1 0 1 0 1 1 1 1 1 1 1 1 1 1 1 2 1 2 1 2 1 2 1 2 1 3 1 3 1 3 1 3 1 3 1 3 i 1 4 ARTICLE VI MISCELLANEOUS 6.7. Construction 6. Inability to Transfer Assets 5. Notices 6. Inability to Assign Liabilities 5.
1(a)(i) Schedule 2. Third Party Beneficiaries 6. Incorporation by Reference 1 4 1 4 1 4 Exhibits Exhibit A Exhibit B Exhibit C Exhibit D Exhibit E Form of Bill of Sale and Assignment and Assumption Agreement Form of Copyright Assignment Form of Domain Name Assignment Form of Patent Assignment Form of Trademark Assignment Schedules Schedule 2. Conflicting Agreements 6.1(a)(ii) Schedule 2.16 .18 .1(b)(ii) Assigned Contracts Transferred Intellectual Property Hardware and Equipment Excluded Assets .1(a)(iv) Schedule 2..17 . 6.
NOW. arbitration. contractual rights and obligations and intellectual property rights.1(a)(i) hereto.3 hereof. action. action. suit. Parent is the beneficial owner of all of the issued and outstanding common stock of Subsidiary. Parent and Subsidiary are sometimes referred to herein separately as a “Party” and together as the “Parties”. WHEREAS. the Parties intend for the transactions contemplated by this Agreement to constitute a contribution to capital of Subsidiary to which the provisions of Section 351 of the Code (as defined below) apply. technology. and (“Subsidiary”). contractual rights and obligations and intellectual property rights relating to or used in the conduct of the Subsidiary Business.CONTRIBUTION AGREEMENT THIS CONTRIBUTION AGREEMENT. for themselves and their respective successors and assigns. as amended from time to time. together with the schedules and exhibits hereto. the following terms have the following meanings. Parent desires to transfer to Subsidiary certain assets. Controls. countersuit. “Affiliate” means a Person that directly. in consideration of the foregoing and for other good and valuable consideration. “Closing” has the meaning set forth in Section 2. arbitration. “Code” means the Internal Revenue Code of 1986 (or any successor statute). “Parent” has the meaning set forth in the preamble to this Agreement. other than any demand. is Controlled by or is under common Control with the Person of which such Person is deemed an Affiliate. Definitions. applicable both to the singular and the plural forms of the terms described. As used in this Agreement. and Subsidiary desires to obtain such assets. “Assigned Contracts” means the Contracts listed on Schedule 2. inquiry. WHEREAS. WHEREAS. proceeding or investigation relating to taxes. RECITALS: WHEREAS. “Agreement” means this Contribution Agreement by and between Parent and Subsidiary.1. countersuit. . Parent formed Subsidiary for the purpose of carrying out the Subsidiary Business (as defined below) as currently conducted by Parent. or indirectly through one or more intermediaries. proceeding or investigation by or before any Governmental Authority or any arbitration or mediation tribunal. and the regulations promulgated thereunder. the receipt and sufficiency of which are hereby acknowledged. All capitalized terms not otherwise defined herein shall have the meaning set forth in the Master Separation Agreement. “Assumed Liabilities” has the meaning set forth in Section 2. suit.2(a) hereof. hereby covenant and agree as follows: ARTICLE I DEFINITIONS 1.a corporation (“Parent”). technology. by and between . the Parties hereto. as the same may be amended and supplemented from time to time in accordance with the provisions hereof. “Action” means any demand. effective as of (the “Effective Date”). THEREFORE. inquiry.
the terms “controlled by” and “under common control with”) means the possession of the power to direct or cause the direction of the management and policies of such Person. by contract or otherwise. policy. devices. including intent-to-use applications.m. instrument or other commitment that is binding on any Person or any part of such Person’s property under applicable law. department. on-going arrangement. interests and protections. trade names. agreement. registered in any top-level domain by any authorized private registrar or Governmental Authority. program. formulas. to the extent amended from time to time. and “Subsidiary Entity” means any one of the Subsidiary Entities. from time to time. “Subsidiary Business” means the business presently conducted by Subsidiary as of the Effective Time “Subsidiary Employee” has the meaning set forth in the Employee Benefits Agreement. and “Parent Entity” means any one of the Parent Entities in place on the Effective Time and any entity which becomes a Subsidiary of Parent thereafter. neither Party hereto shall be considered an Affiliate of the other Party hereto. all copyrights (whether registered or unregistered). “Excluded Assets” has the meaning set forth in Section 2.1(b) hereof. with correlative meanings. government. insurance policy or other agreement or funding vehicle. among other things. technology. whether or not patentable. “Intellectual Property” means any of the following and similar intangible property and related proprietary rights. methods. whether or not published. extensions and renewals of such registrations and applications and the goodwill connected with the use of and symbolized by any of the foregoing. official or other regulatory. trust. agency. For the purposes of this Agreement. “Contracts” means any contract. the direct or indirect ownership of more than fifty percent (50%) of a Person’s outstanding voting stock. trade dress and other proprietary indicia of goods and services. sales order. for which the eligible classes of participants include employees or former employees of Parent or a Parent Entity. and all issuances. foreign or international court. on-going arrangement. “Former Subsidiary Employee” has the meaning set forth in the Employee Benefits Agreement. “Subsidiary Plan” means any plan. Time on the Effective Date. state. “Employee Benefits Agreement” means the Employee Benefits Agreement between the Parties of even date herewith. “Effective Time” means 11:59 p. extensions and renewals of such registrations and applications. program. “Subsidiary” has the meaning set forth in the preamble to this Agreement. whether or not trademarks. trust. however arising. (e) patented and patentable designs and . compositions and other trade secrets. policy. and excluding any Parent Plan. (b) internet domain names. logos. administrative or governmental authority. all registrations and applications for registration of such copyrights. insurance policy or other agreement or funding vehicle. and all registrations and applications for registration of such trademarks. processes. service marks. “Parent Indemnified Persons” has the meaning set forth in Section 5. commission. inventions. all issuances.“Parent Entities” means Parent and its Subsidiaries (other than Subsidiary). (c) original works of authorship in any medium of expression. “control” shall mean. contract. purchase order. brand names. whether through the ownership of voting stock. other than a Subsidiary Plan. contract. bureau. pursuant to the Laws of any jurisdiction throughout the world: (a) trademarks. research and development. license. lease. whether registered or unregistered. “Governmental Authority” means any federal. In the case of a corporation. board. (d) confidential information. “Control” (and.3(a) of this Agreement. “Parent Plan” means any plan. know-how. local. that is sponsored by Subsidiary and for which the eligible classes of employee participants are limited to employees or former employees of Subsidiary or a Subsidiary Entity. as amended from time to time. “Subsidiary Entities” means Subsidiary Corporation and its Subsidiaries. designs.
obligations.1. an unincorporated organization or a governmental entity or any department. present and future infringements thereof and rights to protections of interest therein. “Subsidiary” of any Person means a corporation. “Transferred Assets” has the meaning set forth in Section 2. reissues. “Law” means any statute. including the Intellectual Property Registrations set forth on Schedule 2. in the case of a partnership. deficiencies. either directly or indirectly. payments. “Party” or “Parties” has the meaning set forth in the preamble to this Agreement. penalties. association or other entity in which such Person: (1) beneficially owns. in either case. continuations-in-part. all of Parent’s right. (a) Parent hereby contributes. present and future infringement and any other rights relating to any of the foregoing that are discovered.1 hereof. Internal References. or (2) otherwise has the power to vote. extensions. transfers. code. rule. claims. “Transfer Impediment” has the meaning set forth in Section 5. and interest in and to the following assets . or (C) the capital or profits interest. costs and expenses (including. judgment. partnership. judgments.3(b) hereof. order. reexaminations and renewals of such patents and applications. for its and their own use and behalf. limited liability company.1(a)(ii)(A) and the Intellectual Property that is owned by and/or used exclusively by Parent in its conduct of the Subsidiary Business at the Effective Date. letters patent.inventions. common law. ARTICLE II TRANSFER OF ASSETS 2. a limited liability company. “Third Party Claim” has the meaning set forth in Section 5. continuations. a corporation. assigns. settlements and compromises relating thereto and the costs and expenses of attorneys’. treaty. plant and utility patents. sections and paragraphs in this Agreement. “Third Party” means any Person other than Parent or Subsidiary and their respective Affiliates. and (f) all rights to sue and recover and retain damages. “Loss” and “Losses” mean any and all damages. “Subsidiary” means any Subsidiary existing as of the Effective Date or that may be formed or acquired subsequent to the Effective Date. sufficient securities to elect a majority of the board of directors or similar governing body. Contribution of Transferred Assets. Sections and paragraphs shall refer to the corresponding articles. other requirement or rule of law of any Governmental Authority. costs and attorneys’ fees for past. so long as. losses. settlements. a trust. regulation.1(a) hereof. In the case of Subsidiary. conveys. consequential and punitive damages. without limitation. invented or developed before the Effective Time. pending patent applications and provisional applications and all issuances. a partnership. in each case. constitution. “Person” means an individual. Unless the context indicates otherwise. law. 1. joint venture. a joint venture. interest. either directly or indirectly. consultants’ and other professionals’ fees and expenses incurred in the investigation or defense thereof or the enforcement of rights hereunder). any remedies against any and all past. including direct. utility models. and references to the Parties shall mean the Parties to this Agreement. the costs and expenses of any and all Actions and demands. all design. an association. a joint stock company. such entity remains a Subsidiary of Subsidiary. fines. assessments. “Shares” has the meaning set forth in Section 3. judgments. ordinance. liabilities. references to Articles.2. title. trust. “Transferred Intellectual Property” means the Intellectual Property identified on Schedule 2. and delivers to Subsidiary and its successors and assigns.1(a)(ii)(B) and. more than fifty percent (50%) of (A) the total combined voting power of all classes of voting securities of such entity. decree. (B) the total combined equity interests. divisions.1(a) hereof. agency or political subdivision thereof. accountants’.
1 or elsewhere in this Agreement. (iii) Parent’s rights under this Agreement.2. (iv) the equipment listed on Schedule 2. (iii) all (A) accounting and other books and records. (a) At the Effective Time. performance and other obligations under the Assigned Contracts. known and unknown. Subsidiary shall not assume or agree to perform. on or after the Effective Time. and Subsidiary and its Subsidiaries. Assumption of Liabilities. (ii) the Transferred Intellectual Property listed on Schedule 2. the transfer of employment of the Transferred Employees shall not constitute a termination of employment for purposes of any compensation or benefit plan. (c) Transfer of Employees. or have any liability for. (C) reports.1(a)(iv) of this Agreement. the employment of any such Transferred Employees shall be at-will and terminable at any time for any or no reason whatsoever. For purposes of clarity. the following properties.1(b)(ii) of this Agreement. including without limitation: (i) all of Parent’s payment. Subsidiary shall assume and agree to discharge and be responsible for all of the liabilities and obligations relating to the Subsidiary Employees. As of the Effective Time. agreement or other arrangement (except if required under local law) and. and the Subsidiary Plans as specifically set forth in the Employee Benefits Agreement. (b) Notwithstanding anything to the contrary contained in Section 2. 2.1(a)(ii) (B) of this Agreement. and Parent shall remain unconditionally liable for and shall discharge. on the other hand. (B) correspondence. the Assumed Liabilities only include such liabilities and obligations that relate to the Transferred Assets or the Subsidiary Business that are liabilities or obligations of Parent and do not include any liabilities or obligations of any Parent Entity that is organized in a foreign jurisdiction. on the one hand. For purposes of clarity. Notwithstanding the foregoing. Parent Plans. to the extent (but only to the extent) that such liabilities and obligations relate to the Transferred Assets or the Subsidiary Business (the “Assumed Liabilities”). (b) Except as provided under this Section 2. whether arising prior to. pay or discharge.and all goodwill associated therewith. as reflected on the balance sheet of the Subsidiary Business as of . in each case to the extent related exclusively to the Subsidiary Business at the Effective Time. other than the Excluded Assets (the “Transferred Assets”). the Transferred Assets only include such assets as are owned by Parent and do not include any assets that are owned by any Parent Entity that is organized in a foreign jurisdiction. and (vii) all goodwill associated with any of the assets described in the foregoing clauses.1(a)(i) of this Agreement. policy. assets and rights of Parent (collectively. after the Effective Time. assignment. transfer. conveyance and delivery of the Transferred Assets and agrees to fully and entirely stand in the place of Parent in all matters related thereto: (i) the Assigned Contracts listed on Schedule 2. any . and Subsidiary hereby accepts the contribution. Parent shall hereby transfer to Subsidiary. and (iv) Parent’s rights under any Contracts not included in the Assumed Liabilities. subject to the terms of any agreement between any Transferred Employee. whether incurred prior to.2. (vi) all other assets of the Subsidiary Business operated by Parent immediately prior to the Effective Date. (ii) all items listed in Schedule 2. and Subsidiary shall hereby accept. program.1(a)(ii)(A) and Schedule 2. and (ii) all other liabilities relating to the Transferred Assets. For the avoidance of doubt. whether absolute or contingent. (v) all assets associated with the liabilities and obligations assumed by Subsidiary under the Parent Corporation Amended and Restated Long-Term Incentive Plan as more fully described in the Employee Benefits Agreement. Subsidiary shall assume and agree to discharge and be responsible for all of the liabilities and obligations. and (D) documents and other business records and files. on or after the Effective Time. Former Subsidiary Employees. the employment of the Transferred Employees. the “Excluded Assets”) are excluded from the Transferred Assets: (i) the names and marks “Parent” and any variants and derivations thereof.
title and interest in the same.351-3. Contribution. Parent shall deliver or cause to be delivered to Subsidiary all of the Transferred Assets.obligations. 2. title and interest in and to the copyrights included in the Transferred Intellectual Property to Subsidiary. . The Parties intend that the consummation of the transactions contemplated by this Agreement will constitute a contribution to capital of Subsidiary to which the provisions of Section 351(a) of the Code apply.2. 3. (v) Parent shall execute and deliver to Subsidiary a Patent Assignment in substantially the form attached hereto as Exhibit D (the “Patent Assignment”) transferring all of Parent’s right. and each of the Parties agrees to report the consummation of such transactions as such for federal. Subsidiary shall deliver or cause to be delivered to Parent the Bill of Sale and Assignment and Assumption Agreement. known or unknown. of any kind or nature. or at such other place as Parent and Subsidiary agree in writing. and in furtherance thereof: (i) Parent shall deliver or cause to be delivered to Subsidiary all of the Assigned Contracts with such assignments thereof and consents to assignments as are necessary to transfer to Subsidiary Parent’s full right. on the date hereof at 10:00 a. ARTICLE III EXCHANGE 3. 2. Parent shall continue to own one hundred (100%) percent of the issued and outstanding shares of Subsidiary as of the Effective Time. liabilities and commitments of Parent.4. Closing. (c) The assumption of the liabilities by Subsidiary under this Section 2. title and interest in and to the trademarks included in the Transferred Intellectual Property to Subsidiary. (b) At the Closing. Each of Parent and Subsidiary shall duly and timely file their respective tax returns for their taxable year in which the transactions contemplated by this Agreement are consummated containing the information required under Treasury Regulation Section 1.3. following the contribution. state and local income tax purposes. The Parties shall cooperate with each other in a timely manner providing the information necessary for the filing of such information. transfer and rights granted to Subsidiary and the assumption of the Assumed Liabilities by Subsidiary hereunder. Reporting. title and interest in and to the patents included in the Transferred Intellectual Property to Subsidiary. . and (vi) Parent shall execute and deliver to Subsidiary a Trademark Assignment in substantially the form attached hereto as Exhibit E (the “Trademark Assignment”) transferring all of Parent’s right. (iii) Parent shall execute and deliver to Subsidiary a Copyright Assignment in substantially the form attached hereto as Exhibit B (the “Copyright Assignment”) transferring all of Parent’s right. (iv) Parent shall execute and deliver to Subsidiary a Domain Name Assignment in substantially the form attached hereto as Exhibit C (the “Domain Name Assignment”) transferring all of Parent’s right.1. Parent is the owner of one hundred percent (100%) of the issued and outstanding shares of the common stock of Subsidiary (the “Shares”) and. (ii) Parent shall execute and deliver to Subsidiary a bill of sale and assignment and assumption agreement in substantially the form attached hereto as Exhibit A (the “Bill of Sale and Assignment and Assumption Agreement”) transferring the tangible personal property included in the Transferred Assets to Subsidiary and effecting the assignment to and assumption by Subsidiary of the Transferred Assets and the Assumed Liabilities. (a) At the Closing.m. title and interest in and to the domain names included in the Transferred Intellectual Property to Subsidiary.2 shall not enlarge any rights of Third Parties under Contracts with Subsidiary or Parent. local time. fixed or contingent (the “Excluded Liabilities”). The closing of the transactions contemplated hereby (the “Closing”) shall take place at the offices of Parent. Deliveries. The Closing shall be effective as of the Effective Time.
as applicable. any such representations or warranties. including. or result in the imposition of any lien. to Subsidiary. and Parent disclaims and renounces.1. express or implied. for purposes of Section 5. or (c) the legal sufficiency of any assignment. result in a material adverse effect on the financial condition. whether as a result of the provisions of Section 5. 4. (b) the absence of defenses or freedom from counterclaims with respect to any claim transferred.2.1(a) or for any . or constitute a default under. Subsidiary specifically acknowledges that it is not relying on any representations or warranties of any kind whatsoever. together with the rights provided under the Shared Services Agreement and the Intellectual Property Agreement. unless the Parties shall otherwise determine. instrument or document contemplated by this Agreement.3. to Subsidiary hereunder have been. except where such breach. MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. delivery and filing. charge or encumbrance upon any of the Transferred Assets. and Subsidiary expressly acknowledges and agrees to the disclaimer and renunciation of. Notwithstanding the foregoing. make any representation as to. shall enable Subsidiary to operate the Subsidiary Business after the Closing in substantially the same manner as operated prior to such transfer. The transfer of the Transferred Assets will not result in a breach or violation of any of the terms and provisions of. or any agreement or instrument to which any Subsidiary Entity is a party or by any Subsidiary Entity is bound or to which any of the Transferred Assets are subject. in this Agreement or any other agreement. (a) If and to the extent that the transfer to Subsidiary of any Transferred Asset from Parent would be a violation of applicable laws or agreements or require any consent or governmental approval in connection with the transactions contemplated hereby that has not been obtained by the Effective Time (a “Transfer Impediment”). ARTICLE V CERTAIN AGREEMENTS AND COVENANTS OF THE PARTIES 5. Disclaimer of Representations and Warranties. without limitation. All assets and liabilities transferred or assigned.3 below. transferred on an “AS IS. such asset shall still be considered a Transferred Asset for purposes of determining whether any Liability is an Assumed Liability. WITH ALL FAULTS” basis WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND OTHER THAN AS EXPLICITLY SET FORTH HEREIN. (b) If the transfer or assignment of any asset intended to be transferred or assigned hereunder is not consummated prior to or on the Effective Time.ARTICLE IV REPRESENTATIONS AND WARRANTIES. from Parent in connection with the transactions contemplated under this Agreement. DISCLAIMER 4. results of operations. as the case may be. to Subsidiary. or shall be. EXPRESS OR IMPLIED. provided. violation. or to be transferred. individually or in the aggregate. to Subsidiary hereunder. Inability to Transfer Assets. that neither Parent nor its Subsidiaries have any counterclaims with respect to any claim transferred. USES. or to be transferred. Disclaimer of Liabilities. business or properties of the Subsidiary Entities taken as a whole. Transferred Assets Representation. document or instrument delivered hereunder to convey title to any asset or thing of value upon its execution. The Transferred Assets include all of the material assets (whether tangible or intangible) used in the operation of the Subsidiary Business. the transfer or assignment to Subsidiary of such Transferred Asset shall be automatically deemed deferred and any such purported transfer shall be null and void until such time as all relevant Transfer Impediments are removed or obtained. other than those assets which shall continue to be owned by Parent and which shall be part of the services and/or software to be provided to Subsidiary by Parent pursuant to the Shared Services Agreement and the Intellectual Property Agreement (as such terms are defined in the Separation Agreement).1(b) below. or to be transferred or assigned. INCLUDING ANY WARRANTY OF INCOME POTENTIAL. default or imposition would not. Parent does not. and Parent shall not be obligated to transfer such asset except as provided in Section 5. then.1. or to be transferred. however. warranty of or covenant with respect to: (a) the value of any asset or thing of value transferred. The Transferred Assets. 4. WHERE IS. In addition.
and shall reimburse such Parent Indemnified Person with respect to.2. Subsidiary will be entitled to control the defense of any Third Party Claim.1(a) is removed or obtained. where applicable. defend (or. without the requirement to make any payment or make a material concession. any Transfer Impediment which prohibits the transfer or assignment of assets hereunder. risk of loss.4.3. or cause to be paid or remitted. any and all Losses that any Third Party seeks to impose upon the Parent Indemnified Persons. A Parent Indemnified Person will not consent to the entry of any judgment or enter into any compromise or settlement with respect to the Third Party Claim without the prior written consent of the Subsidiary (which consent will not be unreasonably withheld. Indemnification by Subsidiary. (c) The indemnification provisions of this Section 5. Subsidiary shall. officers and employees (collectively. The Parties shall cooperate and use reasonable efforts. or cause to be duly executed and delivered. Further Assurances. The Parties shall cooperate and use reasonable efforts. as applicable. of Subsidiary (at the expense of Subsidiary) and shall take such other actions as may be reasonably requested by Subsidiary in order to place Subsidiary. transferred or discharged all the obligations or other liabilities of Parent thereunder. Each of Parent and Subsidiary agrees to duly execute and deliver.3 shall be the sole and exclusive remedy for all Parent Indemnified Persons following the Effective Date with respect to any matter arising out of the transactions contemplated hereby. including possession. pay the defense costs for) and hold harmless Parent. agreements. use. arise or result from: (i) any failure of Subsidiary to discharge any Assumed Liabilities. that may be necessary or as the other Party hereto may at any time and from time to time reasonably request in connection with this Agreement or to carry out more effectively the provisions and purposes of. 5. then Parent shall hold such asset for the use and benefit. as applicable. potential for gain. If the assignment of an Assumed Liability to Subsidiary hereunder is prohibited by a Transfer Impediment. If and when such Transfer Impediment is removed or obtained. without the requirement to make any payment or make a material concession. pay and remit. and dominion. the “Parent Indemnified Persons”) from and against. any Transfer Impediment. 5. without limitation. rights and other consideration received by it in respect of such performance (unless any such consideration is an Excluded Asset). 5. as applicable. together with each of their respective directors. pay. In addition. If Subsidiary does not elect to control the defense of a Third Party Claim. this Agreement. control and command over such asset. and each Parent Entity. without further consideration. including. provided. A Parent Indemnified Person may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third Party Claim for which Subsidiary has assumed control. insofar as reasonably possible and not in violation of a Transfer Impediment. the execution of such additional assignments. If and when a Transfer Impediment which caused the deferral of a transfer of any asset pursuant to Section 5. Parent shall. the Parent Indemnified Person will control the defense of the Third Party Claim. or cause to be paid. the transfer of the applicable liability shall be effected in accordance with the terms of this Agreement. that no delay on the part of the Parent Indemnified Person in notifying Subsidiary will relieve Subsidiary from any obligation under this Section 5. however. insofar as reasonably possible and not in violation of a Transfer Impediment. . Inability to Assign Liabilities. perform and discharge fully. as agent or subcontractor for Parent. or such obligations shall otherwise become assignable. to Subsidiary promptly all money. in the same position as if such asset had been transferred as contemplated hereby and so that all the benefits and burdens relating to such asset. to remove or obtain. documents and instruments. such further instruments and do and cause to be done such further acts and things. (a) Subsidiary shall indemnify. as applicable. or to better assure and confirm unto such other Party its rights and remedies under. the transfer of the applicable asset shall be effected in accordance with the terms of this Agreement. conditioned or delayed).3(a). to remove or obtain. or (ii) any breach by Subsidiary of its obligations under this Section 5. then the Parent Indemnified Person will promptly give written notice to Subsidiary. Subsidiary will have the right to participate in the defense of any Third Party Claim for which it does not assume control. are to inure from and after the Effective Time to Subsidiary.3 except to the extent such delay prejudices Subsidiary. which prohibits the assignment of any Assumed Liability hereunder.other reason. Parent shall continue to be bound by the relevant obligations and. (b) If any Third Party notifies a Parent Indemnified Person with respect to any matter (a “Third Party Claim”) which may give rise to a claim for indemnity against Subsidiary under Section 5. or which are imposed upon the Parent Indemnified Persons and that relate to. unless not permitted by law or the terms of the relevant obligation.3.
6. confirmed by first class mail. This Agreement and any schedule may be amended at any time after such date by mutual written consent of Parent and Subsidiary evidenced by an instrument in writing signed on behalf of each of the Parties. within the United States. Any notice involving non-performance. but not limited to. however. without limitation. and any such assignment shall be void. or renewal shall be sent by hand delivery. any applicable state tax law (other than applicable state unemployment tax laws) that may require notification of state taxing authorities and related actions in respect of bulk sales of assets outside of the ordinary course of business. Assignment.9. Counterparts. This Agreement. Subject to applicable law and privileges. Notices. Compliance with Bulk Sales Laws. express or implied. without the prior written consent of the other Party. regulations and codes. shall be construed in accordance with and shall be governed by the laws of the State of applicable to contracts made and to be performed entirely in such State (without giving effect to the conflicts of laws provisions thereof). securities laws and regulations. and nothing in this Agreement.7. Governing Law. is intended to confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Agreement. United States federal. and the Employee Benefits Agreement. Amendment. including the validity hereof and the rights and obligations of the Parties hereunder. 6. termination. Neither Party may assign this Agreement or any rights or obligations hereunder. one working day after it is sent.3. All other notices may also be sent by facsimile or email. requests or other communications required or permitted to be given by either Party pursuant to the terms of this Agreement shall be given in writing to the respective Parties to the following addresses: If to Parent or a Parent Entity: If to Subsidiary or a Subsidiary Entity: or to such other address or facsimile number as the Party to whom notice is given may have previously furnished to the other in writing as provided herein. This Agreement. county and local laws. email or similar electronic transmission method. 6. including.1. if mailed first class mail or certified mail. ordinances. either Party may .ARTICLE VI MISCELLANEOUS 6. 6. any exhibits or schedules attached hereto. Binding Effect. if transmitted by facsimile. each of which shall be deemed an original. and three days after it is postmarked.2. if sent by recognized overnight courier. offers.5. may also be sent via certified mail. 6. each Party hereto covenants with and agrees to provide to the other Party all information regarding itself and transactions under this Agreement that the other Party reasonably believes is required to comply with all applicable foreign. return receipt requested. 6. return receipt requested. Entire Agreement. A signed copy of this Agreement delivered by facsimile. including. The provisions of Section 5.6. if hand delivered. e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement. Notices. but all of which together shall be deemed to be one and the same agreement. provided.8. when transmitted. The Parties hereby waive compliance with the bulk sales law and any other similar laws in any applicable jurisdiction in respect of the transactions contemplated by this Agreement. All notices shall be deemed to have been given when received. Dispute Resolution. 6. This Agreement shall inure to the benefit of and be binding upon the Parties hereto and their respective legal representatives and successors. Information. 6. state. constitute the entire agreement of the Parties with respect to the subject matter hereof and thereof and shall supersede all prior written and oral and all contemporaneous oral agreements and understandings with respect to the subject matter hereof and thereof. with postage prepaid. This Agreement may be executed in counterparts.4.12 of the Separation Agreement are hereby incorporated by reference as if set forth in their entirety herein. recognized overnight courier or.
Upon such determination that any term or other provision is invalid. delivery and performance of this Agreement by it have been duly authorized by all necessary corporate or other actions.18. Remedies Cumulative. or an exhibit or schedule to.14. enforceable against it in accordance with its terms. reorganization. nor shall any single or partial exercise of any such right preclude other or further exercise thereof or of any other right. The Parties hereto agree that irreparable damage would occur in the event that any provision of this Agreement was not performed in accordance with the terms hereof and that the Parties shall be entitled to specific performance of the terms hereof. any rights or remedies otherwise available. 6.15. in addition to any other remedy at law or equity. including any creditor of any Person. administrative agency or arbitrator to be invalid. moratorium or other similar laws affecting creditors’ rights generally and general equity principles. Conflicting Agreements. the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner to the end that transactions contemplated hereby are fulfilled to the fullest extent possible. In the event of conflict between this Agreement and any other agreement executed on or prior to the Effective Time in connection with the subject matter hereof. All schedules to this Agreement are incorporated herein by reference and made a part of this Agreement as if set forth in full herein. 6.13. subject to applicable bankruptcy. The headings contained in this Agreement.17. 6. Severability. IN WITNESS WHEREOF. 6. illegal or incapable of being enforced. 6. All rights and remedies existing under this Agreement or the schedules or any exhibits attached hereto are cumulative to. Each of the Parties represents to the other Party that (a) it has the corporate or other requisite power and authority to execute.11. and not exclusive of. Incorporation by Reference. Any capitalized terms used in any schedule but not otherwise defined therein shall have the meaning as defined in this Agreement. Interpretation. without the necessity of proving irreparable damage or posting a bond. the Parties have caused this Agreement to be signed by their duly authorized representatives as of the date first set forth above.assign this Agreement to a successor entity formed solely in connection with such Party’s reincorporation in another jurisdiction or into another business form. Third Party Beneficiaries.16. . the provisions of this Agreement shall prevail. No failure or delay on the part of either Party hereto in the exercise of any right hereunder shall impair such right or be construed to be a waiver of. all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to either Party. When a reference is made in this Agreement to an Article or a Section. such reference shall be to an Article or Section of. any breach of any representation. warranty or agreement herein. If any term or other provision of this Agreement or the schedules or exhibits attached hereto is determined by a court. insolvency. or acquiescence in. illegal or incapable of being enforced by any rule of law or public policy.10. this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any provisions of this Agreement. Construction.12. this Agreement unless otherwise indicated. The Parties have participated jointly in the negotiation and drafting of this Agreement. None of the provisions of this Agreement shall be for the benefit of or enforceable by any Third Party. and (d) this Agreement is its legal. 6. In the event an ambiguity or question of intent or interpretation arises. Authority. exhibit or schedule. Specific Performance. 6. (c) it has duly and validly executed and delivered this Agreement. No such Third Party shall obtain any right under any provision of this Agreement or shall by reasons of any such provision make any claim in respect of any liability (or otherwise) against either Party hereto. deliver and perform this Agreement. Failure or Indulgence not Waiver. valid and binding obligation. (b) the execution. in any exhibit or schedule hereto and in the table of contents to this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. 6. 6.
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