Common use of Misallocated Assets Clause in Contracts

Misallocated Assets. (a) If, following the Closing, any right, property or asset not included in the Purchased Assets and not primarily relating to the RLC Ductless Business is found to have been transferred to Purchaser, any of its Affiliates or the Purchased Companies in error, either directly or indirectly (including as a result of the Pre-Closing Reorganization), Purchaser shall transfer, or shall cause its Affiliates or the Purchased Companies to transfer, at no additional cost, such right, property or asset (and any related Liability) as soon as practicable to Seller or any of its Affiliates as indicated by Seller (and the provisions of Section 2.11(b) and Section 2.11(c) shall apply mutatis mutandis to such transfer). If, following the Closing, any right, property or asset included in the Purchased Assets or primarily relating to the RLC Ductless Business (other than an Excluded Asset) is found to have been retained by Seller or any of its Affiliates in error, either directly or indirectly (including as a result of the Pre-Closing Reorganization), Seller shall transfer, or shall cause its applicable Affiliates to transfer, at no additional cost, such right, property or asset (and any related Liability) as soon as practicable to Purchaser or an Affiliate or a Purchased Company as indicated by Purchaser (and the provisions of Section 2.11(b) and Section 2.11(c) shall apply mutatis mutandis to such transfer). For clarity, the foregoing procedures shall not apply to any Registered Intellectual Property, which is covered in Section 5.15(b) below. (b) With respect to Patents (but not any other Registered Intellectual Property), the following procedures apply: (i) Seller shall, on a date no more than fourteen (14) days prior to the Closing Date (and in any event prior to the delivery of the Closing Statement), provide Purchaser with a list and copies of all patent applications (in filed or draft form) that were invented by at least one employee of Seller and its Affiliates that reports into the RLC Ducted Business, as evidenced by Seller’s employee invention records maintained in the ordinary course of business, and which were filed or prepared by Seller or any of its Affiliates after the date of this Agreement, and (ii) Purchaser shall have six (6) months following the Closing to notify Seller in writing of (x) any applications disclosed pursuant to clause (i) above, or (y), any patent applications filed or patents issued having an earliest effective filing date before the date of this Agreement and not included on Section 2.4(d) of the Seller Disclosure Schedules as of the date hereof, in either case, and that (1) are owned by Seller or its Affiliates immediately following the Closing (but excluding any Intellectual Property (A) included on the schedules to the Ducted Patent License Agreement, and (B) embodied in any products, services, software or components that are sold or provided by the Retained Business to the RLC Ducted Business in a commercial arrangement as of the Closing Date, which in each case are not subject to the procedures herein), (2) Purchaser believes in good faith are primarily related to the RLC Ducted Business, and (3) were invented by one or more employees of Seller and its Affiliates that reported into the RLC Ducted Business as of the earliest effective filing date of such Patent (collectively, the “Identified Patents”). Purchaser shall aggregate all Identified Patents into a single notice provided to Seller in writing within such six (6) month period and Seller shall have ninety (90) days to review such submission. If Seller can demonstrate, in good faith, that claims of any such Identified Patent or any patent related by priority claim to such Identified Patent (collectively, the “Identified Patent Family”) are material to the Retained Business, then each patent or patent application (as applicable) in such Identified Patent Family will remain owned by Seller or any of its Affiliates (and for clarity, subject to the covenant not to sue in Section 5.9(f)(i)). If there is a good faith dispute between the parties with respect to the demonstration set forth in the prior sentence, such dispute shall be escalated to the Chief Executive Officer of Seller and the Chief Executive Officer of Purchaser for resolution within twenty (20) days of such notice, and each party shall use reasonable efforts to cause the Chief Executive Officers to reach a mutually agreeable resolution during such period. If the Chief Executive Officers of Seller and Purchaser are unable to negotiate a mutually agreeable resolution within such twenty (20)-day period, then such matter shall be finally resolved by arbitration administered by the American Arbitration Association (the “AAA”) pursuant to its Commercial Arbitration Rules and their Expedited Procedures, before a sole arbitrator to be appointed by AAA. If Seller cannot demonstrate the foregoing with respect to any Identified Patent Family, then all patents and patent applications in such Identified Patent Family shall be deemed included on Section 2.4(d) of the Seller Disclosure Schedules and transferred to Purchaser effective as of the Closing Date, at no additional cost to Purchaser (and for clarity, subject to the covenant not to sue in Section 5.9(f)(ii)).

Misallocated Assets. (a) If, at any time within 12 months following the Closing, any right, property property, asset or asset not included in the Purchased Assets and not Liability primarily relating to the RLC Ductless Retained Business is found to have been transferred to Purchaser, any of Purchaser or its Affiliates or the Purchased Companies (including any Transferred Entity) in error, either directly or indirectly (including as a result of the Pre-Closing Reorganization)indirectly, Purchaser shall transfer, or shall cause its Affiliates or (including the Purchased Companies Transferred Entities) to transfer, at Seller's sole cost and expense (except for any cost or expense that is an obligation of Purchaser pursuant to another Transaction Document) and for no additional costconsideration, such right, property property, asset or asset (and any related Liability) Liability as soon as practicable to Seller or any of its Affiliates as designated Affiliate, indicated by Seller in writing. (and the provisions of Section 2.11(bb) and Section 2.11(c) shall apply mutatis mutandis to such transfer). If, at any time within 12 months following the Closing, any right, property property, asset or asset included in the Purchased Assets or Liability primarily relating to the RLC Ductless Business (other than an Excluded Asset) is found to have been retained by Seller or any of its Affiliates in error, either directly or indirectly (including as a result of the Pre-Closing Reorganization)indirectly, Seller shall transfer, or shall cause its the applicable Affiliates Affiliate to transfer, at Seller's sole cost and expense (other than the portion of any Transfer Taxes for which Purchaser is responsible pursuant to this Agreement) and for no additional costconsideration, such right, property property, asset or asset (and any related Liability) Liability as soon as practicable to Purchaser or an Affiliate or a Purchased Company as its designated Affiliate, indicated by Purchaser in writing (and the provisions of Section 2.11(bc) and Section 2.11(cUntil such time as such misallocated right, property, or asset (each, a "Misallocated Asset") shall apply mutatis mutandis is transferred (to such transfer). For clarityPurchaser or its Affiliates, the foregoing procedures shall not apply pursuant to any Registered Intellectual Property, which is covered in Section 5.15(b) below. (b) With respect or Seller or its Affiliates pursuant to Patents (but not any other Registered Intellectual PropertySection 5.15(a), above), the following procedures apply: transferring Party on behalf of itself and its Affiliates, hereby (i) Seller shallagrees to hold, on maintain and utilize its right, title and interest in such Misallocated Asset in trust for the transferee Party for no additional consideration; and (ii) grants to the transferee Party (A) a date no more than fourteen non-exclusive, royalty-free, fully paid-up, worldwide, irrevocable, sub-licensable and transferable right and license (14or sub-license, as the case may be) days under the transferring Party's rights in such Misallocated Asset to use, practice and otherwise exploit such Misallocated Asset; and (B) a covenant not to sue with respect to transferee Party's use, practice and exploitation of any Intellectual Property associated with such Misallocated Asset solely to the extent that such Misallocated Asset is used, practiced and exploited in substantially the same manner as it was used, practiced and exploited in the 12-month period immediately prior to the Closing Date Date, in each case of clauses (and in any event prior to the delivery of the Closing Statement), provide Purchaser with a list and copies of all patent applications (in filed or draft formi) that were invented by at least one employee of Seller and its Affiliates that reports into the RLC Ducted Business, as evidenced by Seller’s employee invention records maintained in the ordinary course of business, and which were filed or prepared by Seller or any of its Affiliates after the date of this Agreement, and (ii) Purchaser shall have six (6) months following the Closing to notify Seller in writing of (x) any applications disclosed pursuant to clause (i) above, or (y), any patent applications filed or patents issued having an earliest effective filing date before the date of this Agreement and not included on Section 2.4(d) of the Seller Disclosure Schedules as of the date hereof, in either case, and that (1) are owned by Seller or its Affiliates immediately following the Closing (but excluding any Intellectual Property (A) included on the schedules to the Ducted Patent License Agreement, and (B) embodied in any products, services, software or components that are sold or provided by the Retained Business to the RLC Ducted Business in a commercial arrangement as of the Closing Date, which in each case are not subject to the procedures herein), (2) Purchaser believes in good faith are primarily related to the RLC Ducted Business, and (3) were invented by one or more employees of Seller and its Affiliates that reported into the RLC Ducted Business as of the earliest effective filing date of such Patent (collectively, the “Identified Patents”). Purchaser shall aggregate all Identified Patents into a single notice provided to Seller in writing within such six (6) month period and Seller shall have ninety (90) days to review such submission. If Seller can demonstrate, in good faith, that claims of any such Identified Patent or any patent related by priority claim to such Identified Patent (collectively, the “Identified Patent Family”) are material to the Retained Business, then each patent or patent application (as applicable) in such Identified Patent Family will remain owned by Seller or any of its Affiliates (and for clarity, subject to the covenant not to sue in Section 5.9(f)(i)). If there is a good faith dispute between the parties with respect to the demonstration set forth in the prior sentence, such dispute shall be escalated to the Chief Executive Officer of Seller and the Chief Executive Officer of Purchaser for resolution within twenty (20) days of such notice, and each party shall use reasonable efforts to cause the Chief Executive Officers to reach a mutually agreeable resolution during such period. If the Chief Executive Officers of Seller and Purchaser are unable to negotiate a mutually agreeable resolution within such twenty (20)-day period, then such matter shall be finally resolved by arbitration administered by the American Arbitration Association (the “AAA”) pursuant to its Commercial Arbitration Rules and their Expedited Procedures, before a sole arbitrator to be appointed by AAA. If Seller cannot demonstrate the foregoing with respect to any Identified Patent Family, then all patents and patent applications in such Identified Patent Family shall be deemed included on Section 2.4(d) of the Seller Disclosure Schedules and transferred to Purchaser effective as of the Closing DateDate until such Misallocated Asset is so transferred. Section 5.16 Acknowledgment of Pre-Closing Services. Purchaser acknowledges that Seller and its Affiliates provide various services, at no additional cost to Purchaser (rights and for clarity, subject support to the covenant not Business (including with respect to sue the following matters: tax, legal, compliance and governmental affairs, information technology support, audit, accounting, treasury, insurance, business development, capital raising and intercompany financing and access to shared facilities, including any research centers), in Section 5.9(f)(ii)).each

Misallocated Assets. (a) 17.1 If, following the Closingwithin two (2) years after Completion, any rightproperty, property right or asset which was not included predominantly (in the Purchased Assets and not primarily case of any property, right or asset excluding Intellectual Property) or exclusively (in the case of any property, right or asset including Intellectual Property) used by or relating to to, or forming part of, the RLC Ductless Business before Completion is found to have been transferred to Purchaserthe Purchaser or a Relevant Purchaser or a Group Company, any of its Affiliates or the Purchased Companies in error, either directly or indirectly (including as a result of the Pre-Closing Reorganization), Purchaser shall transfer, or procure that the relevant Group Company or Relevant Purchaser shall cause its Affiliates or transfer, and the Purchased Companies to transferSeller shall accept, at no additional costcost and free from any Encumbrance created by the Purchaser’s Group after Completion, such rightproperty, property right or asset (and any related Liability) as soon as practicable to Seller the transferor or another member of the Seller’s Group nominated by the 48 Seller, and pending such transfer shall hold any such property, right or asset (including any benefit attributed to or derived from it) on trust on behalf of its Affiliates as indicated by Seller (and for the provisions benefit of Section 2.11(b) and Section 2.11(c) shall apply mutatis mutandis to the relevant member of the Seller’s Group absolutely until the time that such transfer). transfer becomes effective. 17.2 If, following the Closingwithin three (3) years after Completion, any rightproperty, property right or asset included which was predominantly (in the Purchased Assets case of any property, right or primarily relating to asset excluding Intellectual Property) or exclusively (in the RLC Ductless case of any property, right or asset including Intellectual Property) used by, or forming part of, the Business (other than an Excluded Asset) before Completion is found to have been retained by Seller or any of its Affiliates in error, either the Seller’s Group (whether directly or indirectly (including as a result of the Pre-Closing Reorganizationindirectly), the Seller shall transfer, or procure that the relevant member of the Seller’s Group shall cause its applicable Affiliates to transfer, at no additional costcost and free from any Encumbrance, such rightproperty, property right or asset (and any related Liability) as soon as practicable to the Purchaser or an Affiliate such other Group Company or Relevant Purchaser, as may be nominated by the Purchaser, and pending such transfer shall hold any such property, right or asset (including any benefit attributed to or derived from it) on trust on behalf of and for the benefit of the Purchaser or relevant Group Company or Relevant Purchaser absolutely until the time that such transfer becomes effective. 17.3 If a Purchased Company as indicated by Purchaser member of either the Seller’s Group or the Purchaser’s Group discovers within three (and 3) years after Completion that a member of the provisions of Section 2.11(bPurchaser’s Group owns (including in accordance with Clause 17.2) and Section 2.11(c) shall apply mutatis mutandis to such transfer). For clarity, the foregoing procedures shall not apply to any Registered Retained Intellectual Property, which is covered in Section 5.15(b) belowthe Purchaser shall, as soon as practicable after receipt of a notice to that effect containing details of the Retained Intellectual Property concerned, procure the assignment of such Retained Intellectual Property by such other relevant member of the Purchaser’s Group to a member of the Seller’s Group designated by the Seller. (b) With respect 17.4 For the avoidance of doubt, any Tax cost arising in connection with any transfer or assignment made pursuant to Patents (but not any other Registered Intellectual Property), the following procedures apply: (i) Seller shall, on a date no more than fourteen (14) days prior to the Closing Date (and in any event prior to the delivery of the Closing Statement), provide Purchaser with a list and copies of all patent applications (in filed or draft form) that were invented by at least one employee of Seller and its Affiliates that reports into the RLC Ducted Business, as evidenced by Seller’s employee invention records maintained in the ordinary course of business, and which were filed or prepared by Seller or any of its Affiliates after the date of this Agreement, and (ii) Purchaser Clauses 17.1 to 17.3 above shall have six (6) months following the Closing to notify Seller in writing of (x) any applications disclosed pursuant to clause (i) above, or (y), any patent applications filed or patents issued having an earliest effective filing date before the date of this Agreement and not included on Section 2.4(d) of the Seller Disclosure Schedules as of the date hereof, in either case, and that (1) are owned by Seller or its Affiliates immediately following the Closing (but excluding any Intellectual Property (A) included on the schedules to the Ducted Patent License Agreement, and (B) embodied in any products, services, software or components that are sold or provided be borne solely by the Retained Business to the RLC Ducted Business in a commercial arrangement as of the Closing Date, which in each case are not subject to the procedures herein), (2) Purchaser believes in good faith are primarily related to the RLC Ducted Business, and (3) were invented by one or more employees of Seller and its Affiliates that reported into the RLC Ducted Business as of the earliest effective filing date of such Patent (collectively, the “Identified Patents”). Purchaser shall aggregate all Identified Patents into a single notice provided to Seller in writing within such six (6) month period and Seller shall have ninety (90) days to review such submission. If Seller can demonstrate, in good faith, that claims of any such Identified Patent or any patent related by priority claim to such Identified Patent (collectively, the “Identified Patent Family”) are material to the Retained Business, then each patent or patent application (as applicable) in such Identified Patent Family will remain owned by Seller or any of its Affiliates (and for clarity, subject to the covenant not to sue in Section 5.9(f)(i)). If there is a good faith dispute between the parties with respect to the demonstration set forth in the prior sentence, such dispute shall be escalated to the Chief Executive Officer of Seller and the Chief Executive Officer of Purchaser for resolution within twenty (20) days of such notice, and each party shall use reasonable efforts to cause the Chief Executive Officers to reach a mutually agreeable resolution during such period. If the Chief Executive Officers of Seller and Purchaser are unable to negotiate a mutually agreeable resolution within such twenty (20)-day period, then such matter shall be finally resolved by arbitration administered by the American Arbitration Association (the “AAA”) pursuant to its Commercial Arbitration Rules and their Expedited Procedures, before a sole arbitrator to be appointed by AAA. If Seller cannot demonstrate the foregoing with respect to any Identified Patent Family, then all patents and patent applications in such Identified Patent Family shall be deemed included on Section 2.4(d) of the Seller Disclosure Schedules and transferred to Purchaser effective as of the Closing Date, at no additional cost to Purchaser (and for clarity, subject to the covenant not to sue in Section 5.9(f)(ii))Seller.

Misallocated Assets. (a) If, following If before the Closing12 month anniversary of the Closing Date, any right, property legal title or asset not included interest in the Purchased Assets and not primarily relating to the RLC Ductless Business all or part of any Excluded Asset or Excluded Liability, is found to have been transferred to Purchaserto, any of its Affiliates or the Purchased Companies in errorassumed by, Buyer, either directly or indirectly indirectly, then Buyer shall (including as a result of the Pre-Closing Reorganization)i) provide written notice to Seller, Purchaser shall (ii) assign, transfer, convey and deliver, or shall cause its Affiliates or the Purchased Companies to transferbe assigned, at transferred, conveyed and delivered, for no additional costconsideration, such rightlegal title or interest in all or part of such Excluded Asset or Excluded Liability, property or asset (and any related Liability) as soon as practicable to Seller or any of its Affiliates as an Affiliate indicated by Seller and (iii) hold the Excluded Asset (or part thereof), or relevant interest in the Excluded Asset, in trust for Seller (to the extent permitted by applicable Law) until such time (beyond the 12 month anniversary of the Closing Date) as such assignment, transfer, conveyance and delivery is validly effected to vest the provisions Excluded Asset (or part thereof) or relevant interest in the Excluded Asset to Seller or an Affiliate of Section 2.11(bSeller designated by Seller. (b) and Section 2.11(c) shall apply mutatis mutandis to such transfer). If, following If before the Closing12 month anniversary of the Closing Date, any right, property legal title or asset included interest in the Purchased Assets all or primarily relating to the RLC Ductless Business (other than an Excluded Asset) part of any Acquired Asset or Assumed Liability is found to have been retained by Seller or any of its Affiliates in errorSeller, either directly or indirectly (including as a result of the Pre-Closing Reorganization)indirectly, then Seller shall (i) provide written notice to Buyer, (ii) assign, transfer, convey and deliver, or shall cause its applicable Affiliates to transferbe assigned, at transferred, conveyed and delivered, for no additional costconsideration, such right, property legal title or asset (and any related Liability) interest in all or part of such Acquired Asset or Assumed Liability as soon as practicable to Purchaser Buyer or an Affiliate or a Purchased Company as indicated by Purchaser Buyer and (and iii) hold the provisions of Section 2.11(b) and Section 2.11(c) shall apply mutatis mutandis to such transfer). For clarity, the foregoing procedures shall not apply to any Registered Intellectual Property, which is covered in Section 5.15(b) below. Acquired Asset (b) With respect to Patents (but not any other Registered Intellectual Propertyor part thereof), or relevant interest in the following procedures apply: Acquired Asset, in trust for Buyer (i) Seller shall, on a date no more than fourteen (14) days prior to the Closing Date extent permitted by applicable Law) until such time (and in any event prior to beyond the delivery of the Closing Statement), provide Purchaser with a list and copies of all patent applications (in filed or draft form) that were invented by at least one employee of Seller and its Affiliates that reports into the RLC Ducted Business, as evidenced by Seller’s employee invention records maintained in the ordinary course of business, and which were filed or prepared by Seller or any of its Affiliates after the date of this Agreement, and (ii) Purchaser shall have six (6) months following the Closing to notify Seller in writing of (x) any applications disclosed pursuant to clause (i) above, or (y), any patent applications filed or patents issued having an earliest effective filing date before the date of this Agreement and not included on Section 2.4(d) of the Seller Disclosure Schedules as of the date hereof, in either case, and that (1) are owned by Seller or its Affiliates immediately following the Closing (but excluding any Intellectual Property (A) included on the schedules to the Ducted Patent License Agreement, and (B) embodied in any products, services, software or components that are sold or provided by the Retained Business to the RLC Ducted Business in a commercial arrangement as 12 month anniversary of the Closing Date) as such assignment, which in each case are not subject transfer, conveyance and delivery is validly effected to vest the procedures herein), Acquired Asset (2or part thereof) Purchaser believes in good faith are primarily related to the RLC Ducted Business, and (3) were invented by one or more employees of Seller and its Affiliates that reported into the RLC Ducted Business as of the earliest effective filing date of such Patent (collectively, the “Identified Patents”). Purchaser shall aggregate all Identified Patents into a single notice provided to Seller in writing within such six (6) month period and Seller shall have ninety (90) days to review such submission. If Seller can demonstrate, in good faith, that claims of any such Identified Patent or any patent related by priority claim to such Identified Patent (collectively, the “Identified Patent Family”) are material to the Retained Business, then each patent or patent application (as applicable) in such Identified Patent Family will remain owned by Seller or any of its Affiliates (and for clarity, subject to the covenant not to sue in Section 5.9(f)(i)). If there is a good faith dispute between the parties with respect to the demonstration set forth relevant interest in the prior sentence, such dispute shall be escalated Excluded Asset to the Chief Executive Officer Buyer or an Affiliate of Seller and the Chief Executive Officer of Purchaser for resolution within twenty (20) days of such notice, and each party shall use reasonable efforts to cause the Chief Executive Officers to reach a mutually agreeable resolution during such period. If the Chief Executive Officers of Seller and Purchaser are unable to negotiate a mutually agreeable resolution within such twenty (20)-day period, then such matter shall be finally resolved Buyer designated by arbitration administered by the American Arbitration Association (the “AAA”) pursuant to its Commercial Arbitration Rules and their Expedited Procedures, before a sole arbitrator to be appointed by AAA. If Seller cannot demonstrate the foregoing with respect to any Identified Patent Family, then all patents and patent applications in such Identified Patent Family shall be deemed included on Section 2.4(d) of the Seller Disclosure Schedules and transferred to Purchaser effective as of the Closing Date, at no additional cost to Purchaser (and for clarity, subject to the covenant not to sue in Section 5.9(f)(ii))Buyer.