Common use of Assignment; Change in Control Clause in Contracts

Assignment; Change in Control. Except as expressly provided hereunder, neither this Agreement nor any rights or obligations hereunder may be assigned or otherwise transferred by either party without the prior written consent of the other party (which consent shall not be unreasonably withheld); provided, however, that either party may assign this Agreement and its rights and obligations hereunder without the other party’s consent: (a) in connection with the transfer or sale to a Third Party of all or substantially all of the business of such party to which this Agreement relates, whether by merger, sale of stock, sale of assets or otherwise; provided that the Third Party does not have a Competitive Product (except under the circumstances provided under Section 5.10) and the Third Party provides a written statement to the other party confirming that such Third Party is familiar with the terms of this Agreement and will comply, or cause the acquired party or such other entity affiliated with the Third Party that is the surviving entity in such transaction to comply, with the obligations of the transaction party under this Agreement; and provided, further that in the event of such a transaction (whether this Agreement is actually assigned or is assumed by the acquiring party by operation of law (e.g., in the context of a reverse triangular merger)), intellectual property rights of the acquiring party to such transaction (if other than one of the parties to this Agreement) shall not be included in the intellectual property rights licensed hereunder; or (b) to an Affiliate, provided that the assigning party shall remain liable and responsible to the non-assigning party hereto for the performance and observance of all such duties and obligations by such Affiliate. The rights and obligations of the parties under this Agreement shall be binding upon and inure to the benefit of the successors and permitted assigns of the parties. Any assignment not in accordance with this Agreement shall be void. Notwithstanding the preceding, in the event Forest is subject to a Change in Control (as defined below) which has not been approved by the Board of Directors of Forest as constituted immediately prior to such Change in Control, Replidyne shall have the right, but not the obligation, to terminate this Agreement upon written notice furnished within sixty (60) days of such Change in Control. In connection with any such termination by Replidyne pursuant to this paragraph, Replidyne shall pay Forest the Fair Market Value of Forest’s rights under this Agreement at such time, which payment shall be made in a lump-sum cash payment at the time of the effectiveness of such termination or, if later, within thirty (30) business days following the determination of Fair Market Value.

Assignment; Change in Control. Except as expressly provided hereunder, neither this Agreement nor any rights or obligations hereunder may be assigned or otherwise transferred by either party without the prior written consent of the other party (which consent shall not be unreasonably withheld); provided, however, that either party may assign this Agreement and its rights and obligations hereunder without the other party’s consent: (a) in connection with the transfer or sale to a Third Party of all or substantially all of the business of such party to which this Agreement relates, whether by merger, sale of stock, sale of assets or otherwise; provided that the Third Party does not have a Competitive Product (except under the circumstances provided under Section 5.10) and the Third Party provides a written statement to the other party confirming that such Third Party is familiar with the terms of this Agreement and will comply, or cause the acquired party or such other entity affiliated with the Third Party that is the surviving entity in such transaction to comply, with the obligations of the transaction party under this Agreement; and provided, further that in the event of such a transaction (whether this Agreement is actually assigned or is assumed by the acquiring party by operation of law (e.g., in the context of a reverse triangular merger)), intellectual property rights of the acquiring party to such transaction (if other than one of the parties to this Agreement) shall not be included in the intellectual property rights licensed hereunder; or (b) to an Affiliate, provided that the assigning party shall remain liable and responsible to the non-assigning party hereto for the performance and observance of all such duties and obligations by such Affiliate. The rights and obligations of the parties under this Agreement shall be binding upon and inure to the benefit of the successors and permitted assigns of the parties. Any assignment not in accordance with this Agreement shall be void. Notwithstanding the preceding, in the event Forest is subject to a Change in Control (as defined below) which has not been approved by the Board of Directors of Forest as constituted immediately prior to such Change in Control, Replidyne shall have the right, but not the obligation, to terminate this Agreement upon written notice furnished within sixty (60) days of such Change in Control. In connection with any such termination by Replidyne pursuant to this paragraph, Replidyne shall pay Forest the Fair Market Value of Forest’s rights under this Agreement at such time, which payment shall be made in a lump-sum cash payment at the time of the effectiveness of such termination or, if later, within thirty (30) business days following the determination of Fair Market Value.time

Assignment; Change in Control. Except as expressly provided hereunderLESSEE SHALL NOT ASSIGN OR IN ANY WAY DISPOSE OF ALL OR ANY OF ITS RIGHTS OR OBLIGATIONS UNDER THIS LEASE OR ENTER INTO ANY SUBLEASE OF ALL OR ANY PART OF THE LEASED PROPERTY WITHOUT THE PRIOR WRITTEN CONSENT OF LESSOR. IN CONNECTION WITH THE GRANTING OF SUCH CONSENT AND THE PREPARATION OF NECESSARY DOCUMENTATION, neither this Agreement nor A FEE SHALL BE ASSESSED EQUAL TO ONE PERCENT (1%) OF THE SUM OF THE REMAINING BALANCE THEN DUE HEREUNDER PLUS ANY RESIDUAL VALUE OF THE PROPERTY. In the event that Lessor has consented to any sublease of the Property, Lessee hereby assigns and grants to Lessor a security interest in any and all rights under any sublease(s), to secure all obligations to Lessor, and Lessee shall deliver to Lessor the original of such sublease(s). Lessee shall not consolidate or obligations hereunder may be assigned merge with or otherwise transferred by either party into any other entity, liquidate or dissolve, distribute, sell or dispose of all of its ownership interests, properties or any substantial portion thereof other than in the ordinary course of its business, without the prior written consent of the other party (which consent Lessor. LESSEE AGREES THAT LESSOR MAY ASSIGN OR TRANSFER THIS LEASE OR LESSOR’S INTEREST IN THE LEASED PROPERTY WITHOUT NOTICE TO LESSEE. Any assignee of Lessor shall not be unreasonably withheld); provided, however, that either party may assign this Agreement and its rights and obligations hereunder without the other party’s consent: (a) in connection with the transfer or sale to a Third Party of all or substantially have all of the business of such party to which this Agreement relates, whether by merger, sale of stock, sale of assets or otherwise; provided that the Third Party does not have a Competitive Product rights (except under for any rights retained by the circumstances provided under Section 5.10) and assignor Lessor), but none of the Third Party provides a written statement obligations (which arise prior to the other party confirming date of the assignment), of Lessor under this Lease and Lessee shall not assert against any assignee of Lessor any defense, counterclaim or offset that such Third Party is familiar with the terms Lessee may have against Lessor. Any assignee of this Agreement and will comply, or cause the acquired party or such other entity affiliated with the Third Party that is the surviving entity in such transaction to comply, with Lessor shall have the obligations of the transaction party Lessor that arise after the assignment (except for any obligations retained by the assignor Lessor). Lessee acknowledges that any assignment or transfer by Lessor will not materially change Lessee’s duties or obligations under this Agreement; and provided, further that Lease nor materially increase the burdens or risks imposed on Lessee. Lessee shall cooperate with Lessor in the event executing any documentation reasonably required by Lessor or any assignee of such a transaction (whether this Agreement is actually assigned or is assumed by the acquiring party by operation of law (e.g., in the context of a reverse triangular merger)), intellectual property rights of the acquiring party Lessor to such transaction (if other than one of the parties to this Agreement) shall not be included in the intellectual property rights licensed hereunder; or (b) to an Affiliate, provided that the assigning party shall remain liable and responsible to the non-assigning party hereto for the performance and observance of all such duties and obligations by such Affiliate. The rights and obligations of the parties under this Agreement shall be binding upon and inure to the benefit of the successors and permitted assigns of the parties. Any assignment not in accordance with this Agreement shall be void. Notwithstanding the preceding, in the event Forest is subject to a Change in Control (as defined below) which has not been approved by the Board of Directors of Forest as constituted immediately prior to such Change in Control, Replidyne shall have the right, but not the obligation, to terminate this Agreement upon written notice furnished within sixty (60) days of such Change in Control. In connection with effectuate any such termination by Replidyne pursuant to this paragraph, Replidyne shall pay Forest the Fair Market Value of Forest’s rights under this Agreement at such time, which payment shall be made in a lump-sum cash payment at the time of the effectiveness of such termination or, if later, within thirty (30) business days following the determination of Fair Market Valueassignment.

Assignment; Change in Control. ‌ 19.1.1 Except as expressly provided hereunderin Section 19.19, neither Party may assign this Agreement nor any or its rights or obligations hereunder may be assigned or otherwise transferred by either party under this Agreement without the prior written consent of the other party Party (which consent shall not be unreasonably withheldwithheld or delayed); provided, however, that notwithstanding the foregoing, either party Party may assign outright this Agreement and its rights and obligations hereunder under this Agreement without the other party’s consent: (a) in connection with the transfer or sale to a Third Party of all or substantially all consent of the business other Party to an Affiliate who: (i) possesses the experience and capability to satisfy the obligations of such party assigning Party under this Agreement; (ii) has the legal power and authority to which perform and satisfy the obligations of such assigning Party under this Agreement relates, whether by merger, sale of stock, sale of assets or otherwiseAgreement; provided that the Third Party (iii) does not have a Competitive Product Security Posting Condition with respect to such Affiliate or provides to the non-assigning Party consistent with the provisions of Article 5 hereof, Performance Security in the Required Collateral Amount and (except iv) has executed and delivered to the non-assigning Party an assignment and assumption agreement whereby the Assignee assumes and agrees to satisfy all conditions and pay and perform all obligations in favor of the non-assigning Party then existing and/or thereafter arising under this Agreement; provided, however, that for such assignment to an Affiliate to be effective the circumstances provided assignment shall not cause the Facility or this Agreement to be subject to jurisdiction of FERC (other than for purpose of the Facility as a Qualifying Facility). The assigning Party will notify the other Party in writing prior to any assignment with respect to which consent is not required under this Agreement. No assignment by a Party of this Agreement or its rights or obligations under this Agreement shall relieve the assigning Party of liability for its obligations under this Agreement nor shall it release any Performance Security then held by the non-assigning Party without the written release of the other Party. Such release shall not be withheld or unreasonably delayed if the Assignment Conditions, as defined in Section 5.1019.1.2, are satisfied. 19.1.2 The non-assigning Party’s obligation to recognize or perform for any Person claiming or otherwise holding rights in or under this Agreement by outright assignment or through a foreclosure or other exercise of rights pursuant to a collateral assignment, pledge of or grant of security interest in this Agreement (or any related rights) permitted by this Agreement (an “Assignee”) shall be subject to such Assignee: (i) establishing that it (a) has the legal power and authority to perform and satisfy the Third obligations then and thereafter to become due to the non- assigning Party under this Agreement and (b) does not have a Security Posting Condition or provides a written statement to the other party confirming that such Third Party consistent with the provisions of Article 5 hereof, an Eligible Letter of Credit in the Required Collateral Amount or an Eligible Guaranty; (ii) having cured all existing Events of Default (other than Events of Default with respect to which the non-assigning Party is familiar the Defaulting Party) under this Agreement; and (iii) having executed and delivered to the non- assigning Party and being in compliance with an assignment and assumption agreement whereby the Assignee assumes and agrees to satisfy all conditions and pay and perform all obligations in favor of the non-assigning Party then existing and/or thereafter arising under this Agreement (“Assignment Conditions”). Any attempted assignment, whether outright, by way of foreclosure or exercise of any rights pursuant to a collateral assignment, pledge or grant of security interest in this Agreement or any related rights or otherwise, which is not in compliance with the terms of this Agreement shall be voidable and will complyineffective, or cause at the acquired party or such other entity affiliated with the Third Party that is the surviving entity in such transaction to comply, with the obligations option of the transaction party under this Agreement; and provided, further that in the event of such a transaction (whether this Agreement is actually assigned or is assumed by the acquiring party by operation of law (e.g., in the context of a reverse triangular merger)), intellectual property rights of the acquiring party to such transaction (if other than one of the parties to this Agreement) shall not be included in the intellectual property rights licensed hereunder; or (b) to an Affiliate, provided that the assigning party shall remain liable and responsible to the non-assigning party hereto for Party. 19.1.3 Subject to Section 19.19, Seller agrees that, without the performance and observance prior written consent of all such duties and obligations by such Affiliate. The rights and obligations Buyer, there will be no (i) assignment or transfer of the parties under this Agreement shall be binding upon and inure to the benefit of the successors and permitted assigns of the parties. Any assignment not in accordance with this Agreement shall be void. Notwithstanding the preceding, any ownership interest in the event Forest is subject to a Facility or (ii) Change in Control with respect to Seller. For purposes of this Agreement, “Change in Control” means any transaction or series of transactions which, if consummated, would result in Seller being a subsidiary (as defined belowdirectly or indirectly) which has not been approved by the Board of Directors of Forest as constituted immediately an ultimate parent entity that is different than Seller’s ultimate parent entity prior to such Change in Controltransaction(s). For purposes hereof, Replidyne shall Seller’s ultimate parent entity is the Person who directly or indirectly controls more than fifty percent (50%) of Seller’s equity interests and who does not itself have the right, but not the obligation, to terminate this Agreement upon written notice furnished within sixty (60) days of such Change in Control. In connection with any such termination by Replidyne pursuant to this paragraph, Replidyne shall pay Forest the Fair Market Value of Forest’s rights under this Agreement at such time, which payment shall be made in a lump-sum cash payment at the time of the effectiveness of such termination or, if later, within thirty (30) business days following the determination of Fair Market Valuean ultimate parent entity.

Assignment; Change in Control. Except This Supply Agreement shall be binding on the Parties and their respective successors and permitted assigns. Any attempted assignment, delegation, or subcontracting not expressly contemplated by, or in contravention of, this Section 13(b) shall be void and ineffective. Seller hereby acknowledges that Buyer is entering into this Supply Agreement based upon (i) its personal relationship with Seller and (ii) the personal judgment, skills and abilities of Seller and its employees. Seller may assign this Supply Agreement, subject to Buyer’s express prior written consent (not to be unreasonably withheld), to (x) one or more of its Affiliates or (y) any entity that acquires all or substantially all of the assets (whether such sale is structured as expressly provided hereundera sale of stock, neither this Agreement nor a sale of assets, a merger or otherwise) of Seller unless the assignee is a direct or indirect Buyer Competitor, in which case such consent shall be subject to Buyer’s sole discretion. In addition, during the Term, Seller shall not sell all or substantially all of the assets or a material portion of the equity (whether such sale is structured as a sale of stock, sale of assets, a merger or otherwise) of Seller or any rights of its Affiliates to a direct or obligations hereunder may be assigned or otherwise transferred by either party indirect Buyer Competitor without the express prior written consent of Buyer (such consent shall be subject to Buyer’s sole discretion); provided, however, that the other party foregoing limitation shall not apply to any sale of either an Affiliate or a division of Seller that is not involved directly or indirectly in the manufacture, packaging, storing, warehousing, marketing or sale of Retail Products. Buyer may not assign this Supply Agreement without Seller’s prior written consent (which consent shall not be unreasonably withheld); provided, however, that either party Buyer may assign this Agreement and Supply Agreement, upon written notice to Seller, but without Seller’s prior written consent, to (x) one or more of its rights and Affiliates provided that in such case Buyer will nonetheless remain liable for all of its obligations hereunder without the other party’s consent: or (ay) in connection with the transfer or sale to a Third Party of any entity that acquires all or substantially all of the business assets of such party to which this Agreement relates, whether by merger, sale of stock, sale of assets or otherwise; provided that the Third Party does not have a Competitive Product (except under the circumstances provided under Section 5.10) and the Third Party provides a written statement to the other party confirming that such Third Party is familiar with the terms of this Agreement and will comply, or cause the acquired party or such other entity affiliated with the Third Party that is the surviving entity in such transaction to comply, with the obligations of the transaction party under this Agreement; and provided, further that in the event of such a transaction (whether this Agreement is actually assigned or is assumed by the acquiring party by operation of law (e.g., in the context of a reverse triangular merger)), intellectual property rights of the acquiring party to such transaction (if other than one of the parties to this Agreement) shall not be included in the intellectual property rights licensed hereunder; or (b) to an Affiliate, provided that the assigning party shall remain liable and responsible to the non-assigning party hereto for the performance and observance of all such duties and obligations by such Affiliate. The rights and obligations of the parties under this Agreement shall be binding upon and inure to the benefit of the successors and permitted assigns of the parties. Any assignment not in accordance with this Agreement shall be void. Notwithstanding the preceding, in the event Forest is subject to a Change in Control (as defined below) which has not been approved by the Board of Directors of Forest as constituted immediately prior to such Change in Control, Replidyne shall have the right, but not the obligation, to terminate this Agreement upon written notice furnished within sixty (60) days of such Change in Control. In connection with any such termination by Replidyne pursuant to this paragraph, Replidyne shall pay Forest the Fair Market Value of Forest’s rights under this Agreement at such time, which payment shall be made in a lump-sum cash payment at the time of the effectiveness of such termination or, if later, within thirty (30) business days following the determination of Fair Market ValueBuyer.

Assignment; Change in Control. Except as expressly provided hereunder, neither this This Agreement nor any rights or obligations hereunder may not be assigned or otherwise transferred transferred, nor may any right or obligation hereunder be assigned or transferred, by either party Party without the prior written consent of the other party (which consent shall not be unreasonably withheld)Party; provided, however, that either party may Party may, without the other Party’s written consent, assign this Agreement and its rights and obligations hereunder without the other party’s consent: in whole or in part to (a) an Affiliate; or (b) the relevant Person in connection the context of a Change in Control. Each Party agrees that, notwithstanding any provisions of this Agreement to the contrary, no Patent Right, Know-How or other intellectual property or other proprietary rights not Controlled by a Party prior to a Change in Control with respect to such Party or by any of its Affiliates who were its Affiliates prior to such Change in Control (such Party’s “Pre-Existing Affiliates”), or which first becomes Controlled by such Party’s Pre-Existing Affiliates following such Party’s Change in Control, will be deemed Controlled by such Party or its Affiliates for purposes of this Agreement after such Change in Control, other than any Patent Right that claims priority, directly or indirectly, to any other Patent Right first Controlled by such Party or its Pre-Existing Affiliates before such Change in Control and licensed to the transfer other Party hereunder as of such Change in Control, which will be deemed Controlled by such Party or sale its Pre-Existing Affiliates thereafter no matter when such Patent Right is filed or issued. Any purported assignment in violation of this Section 14.1 shall be void. For purposes of this Section 14.1, “Change in Control” means, with respect to a Party (a) the acquisition of beneficial ownership, directly or indirectly, by any Third Party of securities or other voting interest of such Party representing a majority or more of the combined voting power of such Party’s then outstanding securities or other voting interests, (b) any merger, reorganization, consolidation or business combination involving such Party with a Third Party that results in the holders of beneficial ownership (other than by virtue of obtaining irrevocable proxies) of the voting securities or other voting interests of such Party (or, if applicable, the ultimate parent of such Party) immediately prior to such merger, reorganization, consolidation or business combination ceasing to hold beneficial ownership of more than (50%) of the combined voting power of the surviving entity immediately after such merger, reorganization, consolidation or business combination, or (c) any sale, lease, exchange, contribution or other transfer (in one transaction or a series of related transactions) of all or substantially all of the business assets of such party Party to which this Agreement relatesrelates to a Third Party, whether by merger, other than a sale of stock, sale of assets or otherwise; provided that the Third Party does not have a Competitive Product (except under the circumstances provided under Section 5.10) and the Third Party provides a written statement to the other party confirming that such Third Party is familiar with the terms of this Agreement and will comply, or cause the acquired party or such other entity affiliated with the Third Party that is the surviving entity in such transaction to comply, with the obligations of the transaction party under this Agreement; and provided, further that in the event disposition of such a transaction (whether this Agreement is actually assigned or is assumed by the acquiring party by operation of law (e.g., in the context of a reverse triangular merger)), intellectual property rights of the acquiring party to such transaction (if other than one of the parties to this Agreement) shall not be included in the intellectual property rights licensed hereunder; or (b) assets to an Affiliate, provided that the assigning party shall remain liable and responsible to the non-assigning party hereto for the performance and observance of all such duties and obligations by such Affiliate. The rights and obligations of the parties under this Agreement shall be binding upon and inure to the benefit of the successors and permitted assigns of the parties. Any assignment not in accordance with this Agreement shall be void. Notwithstanding the preceding, in the event Forest is subject to a Change in Control (as defined below) which has not been approved by the Board of Directors of Forest as constituted immediately prior to such Change in Control, Replidyne shall have the right, but not the obligation, to terminate this Agreement upon written notice furnished within sixty (60) days Affiliate of such Change in Control. In connection with any such termination by Replidyne pursuant to this paragraph, Replidyne shall pay Forest the Fair Market Value of Forest’s rights under this Agreement at such time, which payment shall be made in a lump-sum cash payment at the time of the effectiveness of such termination or, if later, within thirty (30) business days following the determination of Fair Market ValueParty.