IN ANY MEMBER STATE OF THE EUROPEAN UNION, OR IN ANY STATE WITHIN THE
EUROPEAN ECONOMIC AREA WHICH IS NOT A MEMBER
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State of the European Union, giving effect to the said Directives; and (d) any
similar legislation in those or any other jurisdiction; as amended, updated,
re-enacted or extended from time-to-time.
9.1.6.
"SUCCESSOR PROVIDER" MEANS ANY THIRD PARTY (INCLUDING WITHOUT
LIMITATION ANY AFFILIATE OF TMC) WHO, AT ANY TIME AFTER THE TERMINATION,
PROVIDES SIMILAR SERVICES TO THOSE PROVIDED, OR CARRIES OUT TASKS WHICH WERE
UNDERTAKEN, BY NYCOMED (ITSELF AND/OR USING A THIRD PARTY) UNDER THE TRANSACTION
AGREEMENTS AND THE QUALITY AGREEMENTS.
9.1.7.
"PROTECTED UNEXPECTED EMPLOYEE" MEANS ANY UNEXPECTED EMPLOYEE WHO
CANNOT BE DISMISSED AND REMAINS EMPLOYED WITH OR IS REINSTATED BY TMC OR A
SUCCESSOR PROVIDER, FOR THE REASONS SET OUT IN SECTION 9.8.5.
9.1.8.
"DISMISSED EMPLOYEE" MEANS ANY EMPLOYEE OF TMC OR A SUCCESSOR
PROVIDER WHO IS DISMISSED BECAUSE A PROTECTED UNEXPECTED EMPLOYEE CANNOT BE
DISMISSED, OR IS REINSTATED, FOR THE REASONS SET OUT IN SECTION 9.8.5.
9.2.
GIVEN THAT THE EFFECT OF THIS AGREEMENT IS TO TRANSFER CERTAIN
DETAILING, PROMOTION AND MARKETING ACTIVITIES TO TMC, BUT THE SERVICES AGREEMENT
ALSO PROVIDES THAT NYCOMED WILL PROVIDE TMC WITH SERVICES TO ASSIST TMC IN
PERFORMANCE OF SUCH ACTIVITIES SO TRANSFERRED AND THERE BEING NO INTERVENING
POINT AT WHICH SUCH SERVICES WILL BE CARRIED OUT BY ANYONE OTHER THAN NYCOMED,
THE PARTIES BELIEVE THAT THERE IS NEITHER THE TRANSFER OF AN ECONOMIC ENTITY,
NOR THE TRANSFER OF AN ACTIVITY, BY WHICH THIS AGREEMENT TRIGGERS THE
APPLICATION OF TUPE.
9.3.
STRICTLY WITHOUT PREJUDICE TO AND WITHOUT LIMITING NYCOMED'S
OBLIGATIONS UNDER THE SERVICES AGREEMENT, NYCOMED SHALL ENSURE THAT NEITHER THE
EMPLOYMENT OF ANY PERSON (INCLUDING ANY ASSIGNED EMPLOYEE), NOR ANY LIABILITIES
RELATING THERETO, SHALL TRANSFER BY OPERATION OF TUPE FROM NYCOMED AND/OR ANY
SUBCONTRACTOR (OF WHATEVER TIER) OF NYCOMED TO TMC OR ANY SUCCESSOR PROVIDER, AS
A CONSEQUENCE OF (A) THE EXECUTION OF THIS AGREEMENT OR (B) THE TERMINATION.
9.4.
NYCOMED REPRESENTS AND WARRANTS THAT SCHEDULE 9.4 SETS FORTH A
FULL AND ACCURATE LIST OF ALL ASSIGNED EMPLOYEES, ANONYMIZED WHERE NECESSARY TO
COMPLY WITH APPLICABLE DATA PROTECTION LAWS.
9.5.
NYCOMED WILL ENSURE THAT OTHER THAN AS PERMITTED OR REQUIRED BY
SECTION 9.6 OF THIS AGREEMENT OR SECTION 4.1(C) OF THE SERVICES AGREEMENT: (A)
THERE SHALL BE NO CHANGES TO THE ASSIGNED EMPLOYEES; (B) NO PERSON SHALL CEASE
TO BE AN ASSIGNED EMPLOYEE OTHER THAN BY REASON OF THEIR DISMISSAL OR
RESIGNATION FROM EMPLOYMENT BY NYCOMED; AND (C) NO PERSON SHALL BECOME AN
ASSIGNED EMPLOYEE, EXCEPT, IN EACH CASE, WITH THE WRITTEN AGREEMENT OF TMC, SUCH
AGREEMENT NOT TO BE UNREASONABLY WITHHELD OR DELAYED.
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9.6.
FOR THE AVOIDANCE OF DOUBT, TO THE EXTENT SUCH ASSIGNMENTS ARE
OTHERWISE PERMITTED PURSUANT TO SECTION 4.1(C) OF THE SERVICES AGREEMENT,
NYCOMED SHALL BE PERMITTED TO WHOLLY OR PARTIALLY ASSIGN ASSIGNED EMPLOYEES
(WITH THEIR AGREEMENT IF NECESSARY) TO OTHER WORK (AS WELL AS OR INSTEAD OF
SERVICES TO BE PERFORMED UNDER ANY TRANSACTION AGREEMENT