Common use of Third Party Consents; Non-Assignable Assets Clause in Contracts

Third Party Consents; Non-Assignable Assets. (a) The parties hereto acknowledge and agree that the consent of BIIB under each of the Assigned Contracts between CTI and BIIB, as identified on Section 5.8 of the Disclosure Schedule, will be the only Assignment Consent required to be obtained as of the Closing (collectively, the “BIIB Consent”), and the Company shall pay all fees, costs and other charges paid or payable to BIIB in connection with its consent to the assignment of the Assigned Contracts or otherwise related to the transactions contemplated under this Agreement (collectively, the “BIIB Consent Payment”). (b) Notwithstanding anything herein to the contrary, if any of the Assigned Contracts, the Regulatory Applications/Approvals or other Conveyed Assets are not assignable or transferrable (each a “Non-Assignable Asset”) without the consent of, notice to, waiver by, or, in the case of any applicable sublicense agreement, the receipt of a substantially equivalent sublicense agreement from, a third party, including any Governmental Entity (each an “Assignment Consent”), either as a result of the provisions thereof or applicable Governmental Rules, and any of such Assignment Consents are not obtained by CTI prior to the Closing, in either case this Agreement and the related instruments of transfer shall not constitute an assignment or transfer of such Non-Assignable Assets, and the Company shall not assume CTI’s rights or obligations under such Non-Assignable Assets, until and unless the Assignment Consent is obtained after the Closing. (c) Each of the Company, CTI and Spectrum shall use reasonable best efforts to obtain all other Assignment Consents to Non-Assignable Assets, on terms reasonably acceptable to (and approved in advance by) the Company, as soon as practicable after the Closing, and upon receipt of an Assignment Consent, the applicable Non-Assignable Asset shall be assigned, transferred and conveyed to the Company and otherwise give effect to the transactions contemplated hereby. Any and all costs or expenses incurred in connection with obtaining the Assignment Consent or otherwise transferring the Non-Assignable Asset to the Company shall be borne by the Company. After the Closing and until the applicable Assignment Consent is obtained, CTI shall cooperate with the Company in commercially reasonable arrangements as mutually agreed upon and designed to provide the Company with all of the benefits and burdens of the applicable Non-Assignable Assets that would be assigned to or assumed by the Company if the applicable Assignment Consents had been obtained prior to or as of the Closing, provided all costs and expenses in connection therewith shall be borne by the Company and reimbursed to CTI (assuming that the Company also receives the full benefit associated with any such costs and expenses). *** CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.

Third Party Consents; Non-Assignable Assets. (ai) The Buyer acknowledges that (1) certain third-party consents, authorizations, approvals, orders, and waivers with respect to the Contemplated Transactions may be required (A) from Governmental Authorities with respect to Governmental Authorizations or that new Governmental Authorizations may be required and (B) from parties hereto to the Material Contracts, Real Property Leases, Personal Property Leases, and other Contracts to which the Company is a party (jointly (A) and (B), including those listed on Section 2.4 of the Disclosure Schedules, the “Third Party Consents”), and that such Third Party Consents have not been obtained as of the date hereof and, except for the Closing Consents (unless waived as a Closing condition by the applicable Parties), may not be obtained prior to or at Closing and (2) obtaining the Closing Consents, and not all Third Party Consents, are conditions to Closing. (ii) The Company and the Buyer shall cooperate in all reasonable respects with each other and use all Reasonable Efforts to obtain all Third Party Consents, and to give all notices to and make all filings with, all Governmental Authorities (including those pertaining to the Governmental Authorizations) and other third parties that may be or become necessary for its execution and delivery of, and the performance of its obligations under this Agreement and will cooperate in all reasonable respects with each other in promptly seeking to obtain all such material Third Party Consents, giving such notices, and making such filings; provided, however, the Parties acknowledge and agree that (1) only the Closing Consents are conditions to the Closing and (2) it shall not be a breach by a Party of this Section 5.3(a) if despite such Party’s Reasonable Efforts, some or all of the Third Party Consents are not obtained. Notwithstanding the foregoing in this Section 5.3, the Buyer, the Company and their respective Affiliates shall not be obligated to make any payments or otherwise pay any consideration to any third party to obtain any applicable Third Party Consent. The Buyer will use its Reasonable Efforts to assist the Company in obtaining any Third Party Consents, including providing to such third parties such financial information with respect to the Buyer as such third parties may reasonably request. (iii) To the extent that the transfer or assignment hereunder by the Company to the Buyer of any Purchased Asset is not permitted or is not permitted without the consent of BIIB under each any other Person, which consent has not been received, this Agreement shall not be deemed to constitute an assignment of the Assigned Contracts between CTI and BIIBany such Purchased Asset if such consent is not given or if such assignment otherwise would constitute a breach of, as identified on Section 5.8 or cause a loss of the Disclosure Schedulecontractual benefits under, will be the only Assignment Consent required to be obtained as of the Closing (collectively, the “BIIB Consent”)any such Purchased Asset, and the Company shall pay all fees, costs and other charges paid or payable to BIIB in connection with its consent to the assignment of the Assigned Contracts or otherwise related to the transactions contemplated under this Agreement (collectively, the “BIIB Consent Payment”). (b) Notwithstanding anything herein to the contrary, if any of the Assigned Contracts, the Regulatory Applications/Approvals or other Conveyed Assets are not assignable or transferrable (each a “Non-Assignable Asset”) without the consent of, notice to, waiver by, or, in the case of any applicable sublicense agreement, the receipt of a substantially equivalent sublicense agreement from, a third party, including any Governmental Entity (each an “Assignment Consent”), either as a result of the provisions thereof or applicable Governmental Rules, and any of such Assignment Consents are not obtained by CTI prior to the Closing, in either case this Agreement and the related instruments of transfer shall not constitute an assignment or transfer of such Non-Assignable Assets, and the Company Buyer shall not assume CTI’s rights or obligations under any Liabilities thereunder. During the Earn-out Period, with respect to any such Non-Assignable AssetsPurchased Asset, until and unless the Assignment Consent is obtained after the Closing. (c) Each of the Company, CTI and Spectrum shall use reasonable best efforts to obtain all other Assignment Consents to Non-Assignable Assets, on terms reasonably acceptable to (and approved in advance by) the Company, as soon as practicable after the Closing, and upon receipt of an Assignment Consent, the applicable Non-Assignable Asset shall be assigned, transferred and conveyed to the Company and otherwise give effect the Beneficial Owners shall continue to the transactions contemplated hereby. Any use Reasonable Efforts to obtain such consents and all costs or expenses incurred in connection with obtaining the Assignment Consent or otherwise transferring the Non-Assignable Asset to the Company shall be borne by the Company. After the Closing and until the applicable Assignment Consent is obtained, CTI shall cooperate in all reasonable respects with the Company Buyer in commercially reasonable arrangements as mutually agreed upon and any arrangement designed to provide the Company Buyer with all of the rights and benefits and burdens of (subject to the applicable Non-Assignable Assets that would be assigned to or assumed obligations) under any such Purchased Asset until such consents are obtained by the Company if Parties. Upon the applicable Assignment Consents had been obtained prior to or as receipt of the Closingany such consent, provided all costs and expenses in connection therewith shall be borne by the Company shall promptly assign and reimbursed transfer such Purchased Asset to CTI (assuming that the Company also receives the full benefit associated with any such costs and expenses). *** CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONSBuyer.