Person other than PDL, any PDL
Affiliate, Facet and any Facet Affiliate.
1.68
"Third-Party Claim" shall have the meaning set forth in
Section 5.5(a).
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1.69
"Trademarks" shall mean all trademarks, service marks, trade names,
names, slogans, taglines, logos, design marks, trade dress, product designs, and
product packaging, including all applications for and registrations of the
foregoing, and including those at common law.
1.70
"Transfer" shall have the meaning set forth in Section 2.2(a).
ARTICLE II
THE SEPARATION
2.1
GENERAL.
SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT,
THE PARTIES SHALL USE, AND SHALL CAUSE ANY RESPECTIVE SUBSIDIARIES TO USE, THEIR
RESPECTIVE REASONABLE BEST EFFORTS TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED
HEREBY.
2.2
TRANSFER OF FACET ASSETS AND ASSUMPTION OF FACET LIABILITIES.
SUBJECT TO SECTIONS 2.3, 2.4 AND 2.5:
(A)
AT THE EFFECTIVE TIME, PDL SHALL, AND HEREBY DOES, TRANSFER,
CONTRIBUTE, ASSIGN, AND CONVEY, OR CAUSE TO BE TRANSFERRED, CONTRIBUTED,
ASSIGNED, AND CONVEYED, TO FACET ALL OF PDL'S RIGHT, TITLE AND INTEREST IN AND
TO THE FACET ASSETS (THE "TRANSFER").
(B)
AT THE EFFECTIVE TIME, FACET SHALL, AND HEREBY DOES, ACCEPT THE
TRANSFER FROM PDL.
(C)
ON OR BEFORE THE DISTRIBUTION DATE, PDL SHALL TRANSFER THE FACET
EMPLOYEES TO FACET.
(D)
EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH IN THIS AGREEMENT OR
ANY ANCILLARY AGREEMENT, AT THE EFFECTIVE TIME FACET SHALL, AND HEREBY DOES,
ACCEPT, ASSUME OR, AS APPLICABLE, RETAIN ALL THE FACET LIABILITIES AND SHALL
AFTER THE EFFECTIVE TIME PERFORM, DISCHARGE AND FULFILL, IN ACCORDANCE WITH
THEIR RESPECTIVE TERMS, ALL THE FACET LIABILITIES, IN EACH CASE, UNLESS
SPECIFIED OTHERWISE IN THE DEFINITION OF FACET LIABILITIES, REGARDLESS OF
(I) WHEN OR WHERE SUCH LIABILITIES AROSE OR ARISE, (II) WHERE OR AGAINST WHOM
SUCH LIABILITIES ARE ASSERTED OR DETERMINED, (III) WHICH ENTITY IS NAMED IN ANY
ACTION ASSOCIATED WITH ANY LIABILITY, AND (IV) WHETHER THE FACTS ON WHICH THEY
ARE BASED OCCURRED PRIOR TO, ON OR AFTER THE EFFECTIVE TIME (THE "ASSUMPTION").
NOTWITHSTANDING THE FOREGOING, FACET SHALL NOT ASSUME ANY LIABILITY ATTRIBUTABLE
TO THE FAILURE OF PDL OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR
AFFILIATES TO MATERIALLY PERFORM PDL'S OBLIGATIONS TO FACET PURSUANT TO THIS
AGREEMENT OR THE ANCILLARY AGREEMENTS.
(E)
IF AT ANY TIME, AFTER THE EFFECTIVE TIME, THE PARTIES AGREE THAT
PDL OR ITS SUBSIDIARIES POSSESS ANY ASSETS OR LIABILITIES RELATED TO THE FACET
BUSINESS, PDL SHALL AS PROMPTLY AS PRACTICABLE TRANSFER OR CAUSE TO BE
TRANSFERRED, AT FACET'S EXPENSE, AND FACET SHALL ACCEPT SUCH TRANSFER AND/OR
ASSUME, FOR NO ADDITIONAL CONSIDERATION, SUCH FACET ASSET AND/OR LIABILITY,
INCLUDING ANY AND ALL ECONOMIC BENEFITS GENERATED FROM SUCH FACET ASSET AND/OR
LIABILITIES AFTER THE EFFECTIVE TIME, TO FACET.
EACH SUCH
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TRANSFERRED ASSET OR LIABILITY SHALL BE DEEMED A FACET ASSET OR A FACET
LIABILITY, RESPECTIVELY, AND SHALL BE SUBJECT TO THE TERMS AND CONDITIONS OF
THIS AGREEMENT APPLICABLE THERETO.
(F)
IF AT ANY TIME, AFTER THE EFFECTIVE TIME, THE PARTIES AGREE THAT
FACET OR ITS SUBSIDIARIES POSSESS ANY ASSETS OR LIABILITIES SOLELY RELATED TO
THE PDL BUSINESS, FACET SHALL