Contract
| EXHIBIT 2.1 Execution Version CERTAIN INFORMATION CONTAINED IN THIS DOCUMENT HAS BEEN EXCLUDED BECAUSE IT (I) IS NOT MATERIAL AND (II) IS THE TYPE OF INFORMATION THAT MERIT MEDICAL SYSTEMS, INC. TREATS AS PRIVATE OR CONFIDENTIAL. THE EXCULDED INFORMATION IS IDENTIFIED BY THE FOLLOWING MARK: [* * *] ASSET PURCHASE AGREEMENT by and between COOK MEDICAL HOLDINGS LLC as Seller and MERIT MEDICAL SYSTEMS, INC. as Xxxxx dated as of September 16, 2024 |
| iv Schedule 1.1(c) Individuals with Knowledge Schedule 2.1(a) Business Products Schedule 2.1(d) Transferred Contracts Schedule 2.1(e) Transferred Governmental Permits Schedule 2.1(g) Transferred In-Licenses Schedule 2.2(c) Excluded Intellectual Property Schedule 3.2 Subsidiaries Schedule 3.4(b) Required Consents Schedule 3.5(a) Business Product Approvals Ownership Schedule 3.5(b) Principal Equipment Schedule 3.6 Permits Schedule 3.7 Compliance with Laws Schedule 3.8 Litigation Schedule 3.9(a)(i) Business Employees Schedule 3.9(a)(ii) Unions and Works Councils Activities Schedule 3.9(a)(iv) Union Notifications Schedule 3.9(b) Benefit Plans Schedule 3.9(f) Severance, Retention and Change of Control Payment Schedule 3.9(g) Payments Upon Execution Schedule 3.9(j) Employee Related Actions Schedule 3.9(n) Plant Closings or Mass Layoffs Schedule 3.10(a) Material Contracts Schedule 3.11(a) Financial Statements Schedule 3.11(e) Liabilities Schedule 3.12(a) Intellectual Property Schedule 3.12(b) Intellectual Property Schedule 3.12(f) Intellectual Property Schedule 3.12(g) Intellectual Property Schedule 3.12(k) Intellectual Property Schedule 3.13(b) Business Product Liability Schedule 3.13(c) Business Product Recalls Schedule 3.14(a) FDA and Regulatory Matters Schedule 3.15(a) Business Product Warranty; Standard Terms and Conditions Schedule 3.15(b) Business Product Warranty Terms Schedule 3.16 Inventory Schedule 3.17 Customers and Suppliers Schedule 5.2 Conduct of Target Business Schedule 5.3(b) Asset Level Allocation Methodology Schedule 5.4(d) Severance Benefits Schedule 5.10 Seller Name Schedule 8.2(d) Material Consents Exhibits Exhibit A Form of Bill of Sale and Assignment and Assumption Agreement Exhibit B-1 Form of Patent Assignment Agreement Exhibit B-2 Form of Trademark Assignment Agreement |
| v Exhibit C Form of Intellectual Property License Agreement Exhibit D Form of Transition Services Agreement Exhibit E Form of Notarial Deed |
| ASSET PURCHASE AGREEMENT THIS ASSET PURCHASE AGREEMENT (this “Agreement”) is made as of September 16, 2024 by and between Cook Medical Holdings LLC, an Indiana limited liability company (“Seller”), and Merit Medical Systems, Inc., a Utah corporation (“Buyer”). Xxxxx and Seller are referred to herein individually as a “Party,” and together as the “Parties”. R E C I T A L S A. WHEREAS, Seller and its Subsidiaries (as hereinafter defined) are, among other things, engaged in the Target Business (as hereinafter defined); B. WHEREAS, the Target Business is comprised of certain assets and liabilities that are currently part of Seller and its Subsidiaries; C. WHEREAS, Seller and its Subsidiaries desire to sell, transfer and assign to Buyer or a Buyer Designee (as hereinafter defined), and Buyer or a Buyer Designee desires to purchase and assume from Seller and its Subsidiaries, the Purchased Assets (as hereinafter defined), and Buyer or a Buyer Designee is willing to assume, the Assumed Liabilities (as hereinafter defined), in each case as more fully described and upon the terms and subject to the conditions set forth herein; and D. WHEREAS, Seller and its Subsidiaries and Buyer or a Buyer Designee desire to enter into the Bill of Sale and Assignment and Assumption Agreement, the Patent Assignment Agreement, the Trademark Assignment Agreement, the Intellectual Property License Agreement and the Transition Services Agreement and its related Regulatory and Quality Agreement (each as hereinafter defined, and collectively, including the exhibits and schedules thereto, the “Collateral Agreements”). NOW, THEREFORE, in consideration of the mutual agreements and covenants herein contained and intending to be legally bound hereby, the Parties hereby agree as follows: 1. Definitions. 1.1. Defined Terms. For the purposes of this Agreement the following words and phrases shall have the following meanings: “Affiliate” of any Person means any other Person that controls, is controlled by, or is under common control with such Person, including any Subsidiary. As used herein, “control” (including the terms “controlling”, “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities or other interests, by contract or otherwise. For the avoidance of doubt, the term “Affiliate” does not include Third Party resellers or distributors. “Anti-Corruption Laws” means all Laws relating to anti-bribery or anti-corruption (governmental or commercial), including Laws that prohibit the corrupt payment, offer, promise, or authorization of the payment or transfer of anything of value (including gifts or entertainment), |
| -2- directly or indirectly, to any public official, commercial entity or any other Person to obtain or retain business or an improper business advantage; such as, without limitation, the U.S. Foreign Corrupt Practices Act of 1977, as amended from time to time, the UK Bribery Act of 2010 and all national and international Laws enacted to implement the OECD Convention on Combating Bribery of Foreign Officials in International Business Transactions. “Antitrust Laws” means all federal, state, provincial and foreign, if any, statutes, rules, regulations, orders, decrees, administrative and judicial doctrines and other Laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening of competition through merger or acquisition. “Assigned Intellectual Property” means the Intellectual Property and Information exclusively related to or exclusively used in the operation or conduct of the Target Business, including the distribution and sale of the Business Products including (a) the Assigned Patents, (b) the Assigned Trademarks, and (c) applicable Intellectual Property rights subject to the Transferred-In Licenses, as well as all deliverables and work product under the Transferred Contracts. “Benefit Plan” means each “employee benefit plan” within the meaning of Section 3(3) of ERISA (whether or not subject to ERISA), and each employment, compensation, bonus, pension, profit sharing, deferred compensation, incentive compensation, stock ownership, stock option, stock appreciation right, stock purchase, phantom stock or other equity or equity-based compensation, performance, retirement, thrift, savings, employee loan, stock bonus, excess benefit, supplemental unemployment, paid time off, vacation, personal days, floating holidays, perquisite, educational, tuition reimbursement, outplacement, fringe benefit, sabbatical, sick leave, change in control, retention, severance, termination, redundancy, transition, “stay,” tax gross-up, employee loan, termination indemnity, jubilee long-service, cafeteria, disability, death benefit, hospitalization, medical, dental, life insurance, vision, family building benefits, retiree medical, retiree life insurance or other retiree health or welfare, accident benefit, housing, transport, welfare benefit, employee assistance, or other plan, policy, program, agreement or arrangement, in each case maintained or contributed to, or required to be maintained or contributed to, by Seller, its Affiliates or any ERISA Affiliate or with respect to which Seller, its Affiliates or any ERISA Affiliate is a party or has any liability (whether actual or contingent, direct or indirect). “Bill of Sale and Assignment and Assumption Agreement” means that certain Bill of Sale and Assignment and Assumption Agreement, substantially in the form attached hereto as Exhibit A. “Business Data” means any and all business information and data, including confidential information and Personal Information (whether of employees, contractors, consultants, customers, consumers, vendors, suppliers, service providers or other persons and whether in electronic or any other form or medium) that is accessed, collected, used, processed, stored, shared, distributed, transferred, or disclosed by any of the Business IT Assets, Business Products or otherwise in the course of the conduct of the Target Business. “Business Day” means a day that is not (a) a Saturday, a Sunday or a statutory or civic holiday in the State of Indiana or Utah, or (b) a day on which banking institutions are required by Law to be closed in the State of Indiana or Utah. |
| -3- “Business Employees” means the employees of Seller or its Subsidiaries exclusively engaged in providing product management, sales and marketing services to the Target Business, each of whom shall be identified as a Business Employee on Schedule 3.9(a)(i). “Business Intellectual Property” means the Assigned Intellectual Property, the Licensed Intellectual Property and the Intellectual Property rights in the Purchased Assets. “Business Products” means those medical devices and other products designed, developed, tested, manufactured, produced, packaged, labeled, marketed, sold or distributed by or on behalf of Seller’s Lead Management business or that are the subject of or covered by any Assigned Intellectual Property as of the Closing, as set forth on Schedule 2.1(a). “Business Product Approvals” means those Permits (and pending applications therefor), filings and notifications that are necessary for the testing, manufacturing, marketing, promotion, distribution or sale of any Business Product in all jurisdictions in which any such Business Product is used, made, marketed, distributed or sold. “Business Records” means the books, records, ledgers, tangible data, disks, tapes, other media-storing data and files or other similar information, whether in hardcopy or computer format and whether stored in network facilities or otherwise, in each case to the extent exclusively related to or exclusively used in the operation or conduct of the Target Business or the Purchased Assets, including any advertising, promotional and media materials, training materials, trade show materials and videos, engineering information, design documents, models, manuals and data, product datasheets, sales and purchase correspondence, including price lists, lists of present and former customers, information concerning customer contacts, pricing information, account histories existing for the three (3) years before the Closing, research data and commercial data related to any Business Product, regulatory information relating to any Business Product, including without limitation all device master files, purchasing history, technical characteristics and other information reasonably required for ongoing customer relationships, lists of present and former suppliers or vendors, mailing lists, warranty information, catalogs, sales promotion literature, advertising materials, brochures, bids, records of operation, accounting and financial records, personnel and employment records, standard forms of documents, manuals of operations or business procedures, designs, research materials and product testing reports, and any information relating to any Tax imposed on any Purchased Assets or with respect to the Target Business, but excluding only the portion of such items that (a) contain proprietary information not related to the Target Business, (b) contain any information subject to attorney client privilege or legal or contractual Third Party confidentiality obligation, (c) contain Third Party data not created by Seller or one of its Affiliates and not related to the Target Business, (d) are Excluded Assets or Excluded Liabilities, or (e) contain information that is expressly prohibited by any applicable Law, including Data Protection Laws, from being transferred to Buyer; “Buyer Designee” means one or more Affiliates of Buyer identified to Seller in accordance with Section 2.9 prior to the Closing Date. “Buyer’s Knowledge” means the actual knowledge of Xxxx Xxxxxxxxxxxx, Xxxx Xxxxxx, and Xxxxx Xxxxx, each after reasonable investigation. |
| -4- “Closing” means the closing of the transactions described in Article 7. “COBRA” means the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, and the rules and regulations promulgated thereunder. “Code” means the U.S. Internal Revenue Code of 1986, as amended. “Confidentiality Agreement” means the Confidentiality Agreement between Seller and Xxxxx dated February 1, 2024. “Contract” means any legally binding oral or written contract, subcontract, agreement or commitment, note, bond, mortgage, indenture, lease, sublease, license, sublicense, supply contract, purchase order, sales order, instrument or other legally binding obligation, arrangement or understanding. “Copyrights” means rights in works of authorship, including without limitation copyrights and copyrightable works, whether registered or unregistered and whether arising under the Laws of the United States or any other jurisdiction anywhere in the world, including moral rights and mask work rights, and all registrations and applications for registration with respect thereto, and renewals, extensions and reversions of any of the foregoing. “COVID-19” means SARS-CoV-2 or COVID-19, and any evolutions, variants or mutations thereof or related or associated epidemics, pandemics or disease outbreaks. “COVID-19 Measures” means any quarantine, “shelter in place,” “stay at home,” workforce reduction, reduced capacity, social distancing, shut down, closure sequester, safety or similar Law, directive, guidelines or recommendations promulgated by any Governmental Body, including the Centers for Disease Control and Prevention, the World Health Organization, the Occupational Safety and Health Administration, and the Department of Health or similar Governmental Body of the State of Indiana, the Commonwealth of Pennsylvania, or any other jurisdiction in which the Target Business has operations, in each case, in connection with or in response to COVID-19. “Data Protection Laws” means all applicable Laws that govern or relate to (a) privacy, security, or confidentiality of any Personal Information or (b) Processing of any personal Information or other Business Data by Seller or its Subsidiaries, including, without limitation, (i) the U.S. Health Insurance Portability and Accountability Act of 1996 (42 U.S.C § 1320d et seq.) as amended by the Health Information Technology for Economic and Clinical Health Act (42 U.S.C. § 1921 et seq.) and all regulations promulgated thereunder, as each may be amended from time to time; (ii) the Fair Credit Reporting Act (15 U.S.C. § 1681 et. seq.); (iii) the Telephone Consumer Protection Act, 47 U.S.C. § 227; (iv) the Telemarketing and Consumer Fraud and Abuse Prevention Act (15 U.S.C. §§ 6101-6108); (v) the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (15 U.S.C. 7701-7713); (vi) the California Consumer Privacy Act of 2018; (vii) Section 5 of the (U.S.) Federal Trade Commission Act; (viii) the General Data Protection Regulation (EU) 2016/679; (ix) the UK Data Protection Act 2018; (x) all state Law equivalents of such Laws; (xi) implementing regulations or rulemaking concerning such Laws; and (xii) all Laws requiring notification of a security breach or other unauthorized access, use or disclosure of Personal Information or other Business Data. |
| -5- “Data Protection Requirements” means all applicable (a) Data Protection Laws; (b) Privacy Policies; (c) terms of any agreements to which Seller or its Affiliates are bound relating to the Processing of Personal Information or other Business Data by Seller or its Affiliates; and (d) applicable industry standards, such as the Payment Card Industry Data Security Standard (PCI-DSS). “Data Room” means the electronic data room hosted by Datasite LLC for “Project Beagle” (available at xxxxx://xxxxx.xxxxxx.xxxxxxxx.xxx/). “Encumbrance” means any lien, encumbrance, claim, charge, security interest, mortgage, pledge, easement, encroachment, building or use restriction, capital lease, conditional sale or other title retention agreement, covenant, adverse claims of ownership or use, or other similar restriction. “Environmental Law” means any Law relating to the environment, natural resources, pollutants, contaminants, wastes, chemicals or public health and safety, including any Law pertaining to (a) treatment, storage, disposal, generation and transportation of toxic or hazardous substances or solid or hazardous waste, (b) air, water and noise pollution, (c) groundwater or soil contamination, (d) the release or threatened release into the environment of toxic or hazardous substances or solid or hazardous waste, including emissions, discharges, injections, spills, escapes or dumping of pollutants, contaminants or chemicals, (e) manufacture, processing, use, distribution, treatment, storage, disposal, transportation or handling of pollutants, contaminants, chemicals or industrial, toxic or hazardous substances or oil or petroleum products or solid or hazardous waste, (f) underground and other storage tanks or vessels, abandoned, disposed or discarded barrels, containers and other closed receptacles, (g) public health and safety or (h) the protection of wild life, marine sanctuaries and wetlands, including all endangered and threatened species. “ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the regulations thereunder. “ERISA Affiliate” means each Affiliate and any other Person that, together with Seller or any of its Affiliates, is treated as a single employer under Section 414(b), (c), (m) or (o) of the Code or under Section 4001(a)(14) and 4001(b)(1) of ERISA. “Excluded Contracts” means any Contract (a) under which performance by Seller, counterparty and the Affiliates of both parties, as applicable, have been completed or earlier terminated, and for which there is no remaining payment, warranty, indemnification, maintenance, or support obligation, or obligations relating to license or option to license any Intellectual Property rights of a party therein, (b) that constitute a General Purchase Agreement or (c) not exclusively related to the Purchased Assets or Assumed Liabilities. “Excluded Taxes” means any liability, obligation or commitment, whether or not accrued, assessed or currently due and payable, with respect to (a) any Taxes of Seller or its Affiliates for any taxable period (including any liability of Seller or its Affiliates for the Taxes of any other Person under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law) or otherwise as a member of any affiliated, consolidated, combined, or unitary group of which Seller or its Affiliates is or was a member prior to the Closing Date), including as a |
| -6- transferee or successor, by Contract or otherwise, (b) any Taxes relating to, pertaining to, or arising out of, the Target Business or the Purchased Assets for any Tax period or portion thereof ending on or before the Closing Date or attributable to the operation of the Target Business or ownership of the Purchased Assets prior to the Closing, (c) any Taxes, other than Value Added Tax, required by Law to be paid by Seller or any Affiliate (or withheld from Seller by Buyer or a Buyer Designee and remitted to the appropriate taxing Governmental Body) as a result of their sale of Purchased Assets in any jurisdiction (including any withholding Taxes), (d) any Taxes imposed on Seller or its Affiliates as a transferee or successor, pursuant to any Tax indemnification or sharing agreement, or similar contract or arrangement, or otherwise, which Taxes relate to the Purchased Assets or the Target Business with respect to an event or transaction occurring before the Closing, and (f) any Taxes relating to Excluded Assets or other Excluded Liabilities. “Exigency Measure” means any action or omission taken or made by Seller or any of its Affiliates or its or their Representatives in good faith to protect the well-being, condition, or safety of Seller or its Representatives, properties, or assets, including in response to, in preparation of, or otherwise to address or minimize the effects of any (i) acts of war, hostilities or terrorism or any escalation or material worsening of any such acts of war, hostilities or terrorism, or the occurrence or escalation of any other calamity or crisis, including any riots, violent or destructive rallies, or similar activities or events; (ii) natural disasters, act of God, or other force majeure event; or (iii) epidemics and pandemics (including in respect of COVID-19). “Export-Import Laws” means all applicable United State and foreign Laws relating to export, reexport, transfer, and import controls, including the Export Administration Regulations and the EU Dual Use Regulation. “FDA” means the U.S. Food and Drug Administration and any successor agency thereto. “Fraud” means, with respect to a Party, an actual and intentional misrepresentation of a material existing fact with respect to the making of a representation or warranty in Article 3 or Article 4, made by such Party, (a) with respect to Seller, to Seller’s Knowledge, or (b) with respect to Buyer, to Buyer’s Knowledge, of its falsity and made for the purpose of inducing the other Party to act, and upon which the other Party justifiably relies with resulting Losses. Fraud shall not include constructive fraud or any other claims based on constructive knowledge, negligent misrepresentation or similar theories. “GAAP” means U.S. generally accepted accounting principles in effect from time to time. “General Purchase Agreements” means any Contracts between Seller or an Affiliate of Seller and a Third Party pursuant to which Seller or such Affiliate purchases products or services from such Third Party, including for any of Seller’s or an Affiliate’s retained businesses, in each case that are not exclusively related to or exclusively used in the operation or conduct of the Target Business. “German Subsidiary” means Cook Deutschland GmbH. “Governmental Body” means any legislative, executive or judicial unit of any governmental entity or body (supranational, national, federal, provincial, state or local or foreign) |
| -7- or any department, commission, board, public or private arbitral body, agency, bureau, official or other regulatory, administrative or judicial authority thereof. “Healthcare Laws” means, collectively, any and all applicable state, federal, national, and foreign healthcare Laws which govern the Target Business and Business Products, including but not limited to: (i) the Federal Food, Drug and Cosmetic Act (21 U.S.C. § 301 et seq.); (ii) all healthcare fraud and abuse laws, including, without limitation, the U.S. Anti-Kickback Statute (42 U.S.C. § 1320a-7b(b)), the U.S. Civil False Claims Act (31 U.S.C. § 3729 et seq.), the federal Civil Monetary Penalties Law (42 U.S.C. § 1320a-7a), the federal health care program exclusion law (42 U.S.C. § 1320a-7a), the criminal false statements law (42 U.S.C. §1320a-7b(a)), the Physician Payments Sunshine Act (42 U.S.C. § 1320a-7h), all criminal laws relating to health care fraud and abuse, including but not limited to the health care fraud statutes set forth at 18 U.S.C. §§ 286, 287, 1035, 1347 and 1349; and the U.S. Health Insurance Portability and Accountability Act of 1996 (42 U.S.C § 1320d et seq.) as amended by the Health Information Technology for Economic and Clinical Health Act (42 U.S.C. § 1921 et seq.); (iii) the Medicare and Medicaid statutes (Titles XVIII and XIX of the Social Security Act) and any other Law governing a government sponsored or funded healthcare programs; (iv) requirements applicable to medical device advertising under the Federal Trade Commission Act; (v) all implementing regulations of the preceding Laws; (vi) the EU Medical Devices Directives (Directives 93/42/EEC and 90/385/EEC), Regulation (EU) 2017/745, including their implementing national Laws, (vii) any analogous Laws of any applicable jurisdiction; and (viii) any other state, federal, national or foreign Laws which regulate kickbacks, recordkeeping, claims process, documentation requirements, referrals, the hiring of employees or acquisition of services or supplies from those who have been excluded from government healthcare programs, quality, safety, licensure or any other aspect of testing, manufacture, distributing, sale, promotion or marketing of medical devices. “HSR Act” means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the rules and regulations thereunder. “Information” means documented and undocumented information, including any technical information, and other data and drawings of whatever kind in whatever medium, specifications, techniques, network configurations and architectures, Software, APIs, subroutines, techniques, user interfaces, URLs, works of authorship, algorithms, formulae, protocols, schematics, compositions, processes, designs, bills of material, sketches, photographs, graphs, drawings, samples, non-patented inventions, discoveries, developments and ideas, build instructions, Software code (in any form, including source code and executable or object code), build scripts, test scripts, databases and data collections, past and current manufacturing and distribution methods and processes, tooling requirements, current and anticipated customer requirements, price lists, part lists, customer lists, market studies, business plans, database technologies, systems, structures, architectures, improvements, devices, concepts, methods and information, RTL, GDSII files, whether embodied in Software or otherwise, inventions (whether or not patentable), discoveries, improvements, and technology, breadboards, netlists, mask works, mask sets, wafers, test methodologies, verilog files, emulation and simulation reports, test vectors and hardware development tools, and any and all instantiations of the foregoing in any form and embodied in any media, however documented and whether or not embodied in any tangible form, and any and all notes, analysis, compilations, studies, summaries, and other material containing or based, in |
| -8- whole or in part, on any information included in the foregoing, and including all tangible embodiments of any of the foregoing. “Intellectual Property” means any and all intellectual property rights arising from or associated with any of the following, whether protected, created or arising under the Laws of the United States or any other jurisdiction anywhere in the world: (a) Copyrights, (b) Trademarks, (c) Patents, (d) Trade Secrets, (e) mask work rights and any registrations or applications for registration therefor, (f) rights in databases and data collections (including knowledge databases, customer lists and customer databases), whether registered or unregistered, and any registrations or applications for registration therefor, (g) rights in inventions (whether or not patentable) and Information and improvements thereto, (h) Internet domain names and any registrations therefor, and all social media accounts and (j) any other similar, corresponding or equivalent proprietary, intellectual or industrial property rights of any kind or nature now known or hereafter recognized in any jurisdiction worldwide, including any rights in Information. “Intellectual Property License Agreement” means that certain Intellectual Property License Agreement, substantially in the form attached hereto as Exhibit C. “Inventory” means the inventory, wherever located, including raw materials, work in process, recycled materials, demo and evaluation inventory, finished products, inventoriable supplies, and non-capital spare parts owned by Seller or a Subsidiary and exclusively related to or exclusively used in the operation or conduct of the Target Business or the Purchased Assets, and any rights of Seller or a Subsidiary to the warranties received from suppliers and any related claims, credits, rights of recovery and set-off with respect to such Inventory, but only to the extent such rights are assignable. “IRS” means the U.S. Internal Revenue Service. “Italian Business” means the portion of the Target Business operated by Seller or a Subsidiary of Seller in Italy and comprising the Purchased Assets, the Assumed Liabilities, and the contracts with the Transferred Employees in Italy. “Law” means any supranational, national, federal, state, provincial or local law (including common law), treaty, statute, ordinance, rule, award, writ, regulation, ordinance, code, order, judgment or injunction, ruling, or any decree or requirement with similar effect of any Governmental Body or Notified Body. “Lead Management” means Seller’s sub-business unit focused on medical devices intended for use in lead removal procedures of implantable cardiac leads, indwelling catheters and foreign objects, and related medical therapies. “Leased Equipment” means the vehicles, machinery and equipment and other similar items leased by Seller or a Subsidiary and exclusively related to or exclusively used in the operation or conduct of the Target Business or the Purchased Assets (outside of the United States solely with respect to any such vehicles) as listed on Schedule 1.1(a) but excluding any Excluded Assets or Excluded Liabilities. |
| -9- “Licensed Intellectual Property” means the Intellectual Property and Information that is owned or controlled by Seller and/or any of its Affiliates that are Excluded Assets and are being licensed to Buyer pursuant to the Intellectual Property License Agreement. “Manufacture,” “Manufactured,” or “Manufacturing” means all steps, processes, and activities necessary to manufacture, supply and/or produce the Business Products, including without limitation, the manufacturing, processing, packaging, labeling, storing, quality control testing, and distribution of Business Products as part of the operation of the Target Business. “Manufacturing Assets” means the equipment and tools utilized by Seller solely to Manufacture the Business Products as set forth on Schedule 1.1(b). “Non-Assignable Licenses” means those Contracts pursuant to which Seller and/or its Affiliates in-licenses Intellectual Property or Information from one or more Third Parties that are related to other businesses of Seller or an Affiliate and not exclusively related to or exclusively used in the operation or conduct of the Target Business, including Contracts for Standard Software, and general corporate-wide information technology and design licenses primarily used in Seller’s or an Affiliate’s retained businesses. “Non-U.S. Benefit Plan” means each Benefit Plan maintained or contributed to or required to be maintained or contributed to, that covers employees or is subject to the Laws of any jurisdiction outside the United States. “Notarial Deed” means the deed in substantially the form set forth in Exhibit E, which may be subject to revisions by the Notary Public and which Seller and Buyer shall execute on the Closing Date before the Notary Public. “Notary Public” means Xx. Xxxxx Xxxxxx, Notary in Milan or such other individual as may be mutually agreed by the Parties. “Notified Body” means any organization accredited, designated, licensed, authorized or approved under applicable Healthcare Laws by an EU country or the UK to assess and certify the conformity of medical devices in accordance with applicable Healthcare Laws and any applicable harmonized standards. “Open Source Materials” means the Software licensed under any license that conforms to the Open Source Initiative’s definition of “open source”, available online at xxxx://xxx.xxxxxxxxxx.xxx/xxx.xxxx. “Patents” means patents, patent applications or invention disclosures worldwide of any kind or nature (including industrial designs and utility models that are subject to statutory protection), and any renewals, adjustments, reissues, reexaminations, extensions, supplemental protection certificates, continuations, continuations-in-part, divisions and substitutions relating to any of the patents and patent applications, as well as all related counterparts to such patents and patent applications, wheresoever issued or pending anywhere in the world, and all rights to claim priority from any of the foregoing. |
| -10- “Patent Assignment Agreement” means that certain Patent Assignment Agreement, substantially in the form attached hereto as Exhibit B-1. “Permits” means any permits, licenses, consents, authorizations, orders, declarations, registrations, listings, clearances, exemptions, certifications and other permissions and approvals from Governmental Bodies or Notified Bodies. “Permitted Encumbrances” means any (a) statutory lien for Taxes, assessments and other governmental charges or liens of carriers, landlords, warehousemen, workmen’s, repairmen’s, mechanics and materialmen incurred in the ordinary course of business, in each case for sums not yet due and payable or due but not delinquent; (b) liens incurred or deposits made in the ordinary course of the Target Business in connection with workers’ compensation, unemployment insurance and other types of social security or to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, government contracts, performance and return of money bonds and similar obligations; (c) non-exclusive licenses granted by Seller or an Affiliate in connection with sales of products in the ordinary course of business; and (e) any minor imperfection in title and minor encroachments, if any, that, individually or in the aggregate, are not material in amount, do not materially interfere with the conduct of the Target Business or with the use of the Purchased Assets and do not materially affect the value, merchantability, or use of the Purchased Assets or the Target Business. “Person” means any individual, corporation, partnership, firm, association, joint venture, joint stock company, trust, unincorporated organization or other entity, or any government or regulatory, administrative, or political subdivision or agency, department, or instrumentality thereof. “Personal Information” means any information relating to an identified or identifiable natural person; an “identifiable person” is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity, including, without limitation, unique device or browser identifiers, names, addresses, telephone numbers, email addresses, social security numbers, and/or account information; and shall also mean any information that is regulated or protected by one or more Data Protection Laws. “Post-Closing Tax Period” means any Tax period beginning after the Closing Date, and, in the case of any Straddle Period, the portion of such Straddle Period beginning the day after the Closing Date. “Pre-Closing Tax Period” means any Tax period ending on or before the Closing Date and, in the case of any Straddle Period, the portion of such Straddle Period ending on the Closing Date. “Principal Equipment” means the personal property of Seller or an Affiliate exclusively related to or exclusively used in the operation or conduct of the Target Business or the Purchased Assets, including, without limitation, all Manufacturing Assets, machinery, equipment (including any related replacement or spare parts, components, dies, molds, tools, and tooling), phone or conferencing equipment, network equipment, data processing equipment and peripheral equipment and other similar items, but not (a) the Leased Equipment or (b) any such items |
| -11- primarily related to Excluded Assets or Excluded Liabilities. Principal Equipment includes rights to the warranties received from the manufacturers and distributors of such items and to any related claims, credits, rights of recovery and set-off with respect to such items, but only to the extent that such rights are assignable. “Privacy Policies” means all published, posted, and internal agreements and policies relating to Seller’s and its Affiliates’ Processing of Personal Information. “Process” or “Processing” means any operation or set of operations which is performed on data, whether or not by automated means, such as the access, use, collection, treatment, processing, structuring, storage, hosting, recording, organization, adaption, alteration, transfer, retrieval, transmittal, consultation, disclosure, disposal, dissemination, restriction, erasure, destruction or combination of such data. “Recall” means any voluntary and involuntary recall, correction, market withdrawal, market refund or replacement, “dear doctor” letter, investigator notice, stock recovery or other field action or notice relating to an alleged lack of safety, efficacy or regulatory compliance of any Business Product. “Representatives” means, with respect to any Person, such Person’s directors, officers, employees, Subsidiaries, Affiliates, investment bankers, attorneys and other advisors or representatives. “Return” means any return, declaration, report, claim for refund, or information return or statement, and any other document filed or required to be filed in respect of any Tax, including any schedule or attachment thereto or amendment thereof. “R&W Insurance Policy” means the Buyer-Side Representations and Warranties Insurance Policy Number AC2ZBN001 (as may be amended, modified or otherwise supplemented from time to time) issued by Liberty Surplus Insurance Corporation to Buyer that is being conditionally bound as of the date hereof. “R&W Insurance Policy Premium” means the premium and related fees and expenses payable to the underwriter and the broker with respect to the R&W Insurance Policy. “R&W Policy Retention Amount” means the aggregate amount of retention set forth in the R&W Insurance Policy. “Rollover PTO” means any accrued but not used vacation or other paid time off to which a Transferred Employee is entitled as of the Closing Date that could have been used by the Transferred Employee in the calendar year in which the Closing Date occurs under Seller’s policies with respect to vacation and other paid time off if the Transferred Employee had continued to be subject to such policies for the remainder of such calendar year. “Sanctions” means all applicable trade and economic sanctions laws, regulations, or trade embargoes imposed, administered or enforced by the U.S. government (including those administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control, the U.S. Department of Commerce and the U.S. Department of State), the United Nations Security Council, |
| -12- the European Union, any European Union member state or His Majesty’s Treasury of the United Kingdom. “Seller’s Knowledge” means the actual knowledge of the individuals specified on Schedule 1.1(c) after reasonable investigation. “Seller Material Adverse Effect” means any fact, circumstance, change, development, condition or effect that, individually or when taken together with all other such facts, circumstances, changes, conditions or effects that exist at the date of determination of the occurrence of a Seller Material Adverse Effect, had, has or is reasonably likely to have a material adverse effect on (a) the assets, business, operations, condition (financial or otherwise) or results of operations of the Target Business and the Purchased Assets, taken as a whole, or (b) Seller’s ability to perform its obligations under this Agreement and the Collateral Agreements or consummate the transactions contemplated hereby or thereby; provided, however, that, with respect to clause (a), no facts, circumstances, changes, conditions or effects (by themselves or when aggregated with any other facts, circumstances, changes, developments, conditions or effects listed below) resulting from, relating to or arising out of the items enumerated in sub-clauses (i) to (ix) below shall be deemed to be or constitute a Seller Material Adverse Effect, and no facts, circumstances, changes, developments, conditions or effects resulting from, relating to or arising out of the following (by themselves or when aggregated with any other facts, circumstances, changes or effects listed below) shall be taken into account when determining whether a Seller Material Adverse Effect has occurred or is reasonably likely to occur: (i) general economic, financial or political conditions in the United States or any other jurisdiction in which the Target Business has substantial business or operations, and any changes therein (including any changes arising out of acts of terrorism, war, weather conditions, epidemics, pandemics, or disease outbreaks (including COVID-19) or public health emergencies, or other force majeure events), except to the extent that such conditions in the industries (or therapeutic areas) in which the Target Business has substantial business or operations have a disproportionate effect on the Target Business compared with other companies or businesses operating in such industries (or therapeutic areas); (ii) changes in the industry that the Target Business is in, and any industry-wide changes therein (including any changes arising out of acts of terrorism, war, weather conditions, epidemics, pandemics, or disease outbreaks (including COVID-19) or public health emergencies, or other force majeure events) except to the extent that such changes in the industries (or therapeutic areas) in which the Target Business is in have a disproportionate effect of any of the Target Business compared with other companies or businesses operating in such industries (or therapeutic areas); (iii) conditions in the financial markets, and any changes therein (including any changes arising out of acts of terrorism, war, weather conditions, epidemics, pandemics, or disease outbreaks (including COVID-19) or public health emergencies, or other force majeure events); (iv) acts of terrorism, armed hostilities, civil unrest or war; (v) COVID-19 Measures; (vi) the announcement or pendency of the transactions contemplated by this Agreement or the identity of the Parties and their respective Affiliates, including any termination of, reduction in or similar negative impact on relationships, contractual or otherwise, with any customers, suppliers, agents, distributors, employees or contractors of the Target Business due to the announcement or pendency of the transactions contemplated by this Agreement or the identity of the Parties and their respective Affiliates; (vii) any failure by the Target Business to meet any internal or published projections, forecasts or revenue or earnings predictions (provided that the underlying causes of such failures (subject to the other provisions of this definition) shall not be excluded); (viii) any changes in |
| -13- applicable Laws or accounting rules (including GAAP) or the enforcement, implementation or interpretation thereof; (ix) any action or omission contemplated by this Agreement or taken or omitted with the written request or consent of Buyer; or (x) any actions or omissions by Buyer. “Shared Contracts” means any and all sales Contracts (other than immaterial purchase orders, pricing acknowledgements, confirmations and similar documents) which relate in part, but not exclusively, to the Business Products. “Software” means any and all (a) software and computer programs of any type, including software implementations of algorithms, heuristics models and methodologies, whether in source code or object code, (b) testing, validation, verification and quality assurance materials, (c) databases, conversion, interpreters and compilations, including any and all data and collections of data, whether machine readable or otherwise, (d) descriptions, schematics, flow-charts and other work product used to design, plan, organize and develop any of the foregoing, (e) software development processes, practices, methods and policies recorded in permanent form, relating to any of the foregoing, (f) operating systems, management code, firmware, utilities, graphical user interfaces and software engines, and (g) performance metrics, sightings, bug and feature lists, build, release and change control manifests recorded in permanent form, relating to any of the foregoing and (h) documentation, including user manuals, technical manuals, developer notes, developer tools, developers’ kits, utilities, comments and annotations, web materials, and architectural and design specifications and training materials, in each case whether stored, encoded, recorded or written on disk, tape, film, memory device, paper or other media of any nature relating to any of the foregoing. “Standard Software” means non-customized, off-the-shelf, commercially available Software that is licensed solely in executable or object code form pursuant to a nonexclusive, internal use software license, and not redistributed with or incorporated into, or used directly in, the development, manufacturing or distribution of, any of the Business Products or services of the Target Business and is generally available to the public on standard, non-negotiated terms. “Straddle Period” means any Tax period that begins on or before and ends after the Closing Date. “Subsidiary” means, with respect to any Person, any entity of which securities or other ownership interests having voting power to elect a majority of the board of directors or other persons performing similar functions are at any time directly or indirectly owned by such Person or of which a majority of ownership interests are controlled by such Person. “Target Business” means Seller’s business of designing, developing, testing, manufacturing, producing, packaging, labeling, marketing, selling, and distributing Business Products; provided that, for clarity, the Target Business does not include any billing, order entry, fulfillment, accounting, collections, finance, operations, engineering or other corporate centralized function organizations within Seller, or the provision by Seller and its Affiliates of the services to be provided under the Collateral Agreements, including the Transition Services Agreement, following the Closing. |
| -14- “Tax” means a tax of any kind, and all charges, fees, customs, levies, duties, imposts, required deposits or other assessments, whether federal, state, local or foreign, including all income, capital gains, gross income, gross receipt, property, franchise, sales, use, excise, registration, withholding, payroll, employment, severance, social security, worker’s compensation, unemployment, occupation, capital stock, ad valorem, value added, transfer, gains, profits, net worth, asset, transaction, real property, personal property, alternative, add-on minimum, escheat or estimated tax or other tax, including any interest, penalties or additions with respect thereto, whether disputed or not and whether or not correctly imposed, imposed upon any Person by any taxing or social security authority or other Governmental Body under applicable Law. “Third Party” means any Person not an Affiliate of the other referenced Person or Persons. “Trademark Assignment Agreement” means that certain Trademark Assignment Agreement, substantially in the form attached hereto as Exhibit B-2. “Trademarks” means trademarks, trade names, corporate names, business names, trade styles, service marks, service names, logos, slogans, trade dress, design rights, 800 numbers, or other source or business identifiers and general intangibles of like nature, together with goodwill associated therewith, whether registered or unregistered and whether arising under the Laws of the United States or any state or territory thereof or any other jurisdiction anywhere in the world, and registrations and applications for registration with respect to, and renewals and extensions of, any of the foregoing. “Trade Laws” means, with respect to any Person, all applicable customs, trade, antiboycott, and Export-Import Laws in jurisdictions in which such Person or any of its Subsidiaries does business or is otherwise subject to jurisdiction, except to the extent inconsistent with U.S. Law, including the U.S. Export Administration Regulations administered by the U.S. Department of Commerce and all other trade regulations imposed by the U.S. government. “Trade Secrets” means information of any kind or nature, in whatever form and whether or not embodied in a tangible medium, including customer lists, concepts, ideas, methods, processes, know-how, methodologies, designs, plans, schematics, bill of materials, drawings, formulae, technical data, specifications, research and development information, technology and product roadmaps, models, data bases, marketing materials and other proprietary or confidential information, in each case to the extent any of the foregoing derives economic value from not being generally known to other Persons who can obtain economic value from its disclosure or use, excluding any Copyrights or Patents that cover or protect any of the foregoing. “Transferred Contracts” means any Contract exclusively related to or exclusively used in the operation or conduct of the Target Business, including without limitation, the Contracts set forth on Schedule 2.1(d) (provided that purchase orders, pricing acknowledgements, confirmations and similar documents that fall into the foregoing categories shall be Transferred Contracts so long as the terms thereof do not materially modify the terms of any of the Contracts to which they relate, but need not each be listed on Schedule 2.1(d)), but excluding the Excluded Contracts. Seller shall use commercially reasonable efforts to provide Buyer with copies of all material purchase orders, pricing acknowledgements, confirmations and similar documents prior to Closing. |
| -16- Term Section “Claim Notice”........................................................................................... Section 9.9 “Closing”.................................................................................................... Section 7.5 “Closing Date” ........................................................................................... Section 7.5 “Closing Effective Time”........................................................................... Section 7.6 “Closing Payment”..................................................................................... Section 2.10 “Collateral Agreements” ............................................................................ Recitals “Cutoff Time” ........................................................................................... Section 10.12 “Deferred Purchase Price” ......................................................................... Section 2.10 “Excluded Assets”...................................................................................... Section 2.2 “Excluded Leased Equipment” .................................................................. Section 5.6 “Excluded Liabilities”................................................................................ Section 2.4 “Financial Statements”............................................................................... Section 3.11(a) “German Works Council Consultation” .................................................... Section 7.4(a) “Indemnified Party” ................................................................................... Section 9.8(a) “Indemnifying Party” ................................................................................. Section 9.8(a) “Independent Accounting Firm” ................................................................ Section 5.3(b) “Losses” ..................................................................................................... Section 9.3 “Material Contracts” ................................................................................. Section 3.10(a) “Nonassignable Assets” ............................................................................. Section 2.5(b) “Party”........................................................................................................ Preamble “Property Taxes”........................................................................................ Section 2.8(d) “Purchase Price”......................................................................................... Section 2.10 “Purchased Assets” .................................................................................... Section 2.1 “Reasonable Efforts”.................................................................................. Section 5.10(a)(iv) “Regulatory Approvals”............................................................................. Section 8.1(b) “Required Consents”.................................................................................. Section 3.4(b) “Seller”....................................................................................................... Preamble “Seller Indemnitee”.................................................................................... Section 9.4 “Seller Name” ............................................................................................ Section 5.10 “Seller Proprietary Information”................................................................ Section 6.2 “Separate Closing”..................................................................................... Section 7.4(b) “Termination Date”.................................................................................... Section 11.1(e) “Third Party Claim” ................................................................................... Section 9.8(a) “Third Party Components”......................................................................... Section 3.12(f) “Top Customer” ......................................................................................... Section 3.17 “Top Distributor” ....................................................................................... Section 3.17 “Top Supplier” ........................................................................................... Section 3.17 “Transferred Employee” ............................................................................ Section 5.4(b) “Transfer Taxes” ........................................................................................ Section 2.8(b) 1.3. Other Definitional and Interpretive Matters. Unless otherwise expressly provided, for purposes of this Agreement, the following rules of interpretation shall apply: (a) Calculation of Time Period. When calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the starting reference date in calculating such period shall be |
| -22- (h) any liability or obligation relating to or arising out of any claim of any Third Party relating to or arising out of the manufacture or sale of any Business Product on or before the Closing Date, including any liability for any returns and any warranty claims made prior to the Closing Date (regardless of whether the applicable warranty is express or implied); (i) any benefit liability or obligation relating to or arising in connection with COBRA or otherwise by operation of applicable Law to provide continuation of health care coverage to employees or former employees of Seller or an Affiliate or their dependents arising from a qualifying event occurring on or before the Closing Date (including, for the avoidance of doubt, such employees or former employees of Seller or an Affiliate (including the Transferred Employees) or their dependents who are “M&A qualified beneficiaries” as defined in Treasury Regulation Section 54.4980B-9, Q&A-4(b) with respect to the transactions contemplated by this Agreement); (j) any liability or obligation arising from or relating to any Benefit Plan; (k) any liability or obligation arising from or relating to any Environmental Law; and (l) any liability or obligation relating to or arising out of the sale, promotion, marketing, manufacture, or distribution of any Business Product on or before the Closing Date, including with respect to any Recall. 2.5. Further Assurances; Further Conveyances and Assumptions; Consent of Third Parties. (a) From time to time following the Closing, Seller and Buyer shall, and shall cause their respective Affiliates to, execute, acknowledge and deliver all such further conveyances, notices, assumptions, releases, acquittances and other instruments, and shall take such further actions, as may be necessary or appropriate to transfer fully to, and vest in, Buyer and the Buyer Designees and each of their respective successors or assigns, all of the properties, rights, titles, interests, estates, remedies, powers and privileges intended to be conveyed to Buyer or a Buyer Designee under this Agreement and the Collateral Agreements and to assure fully to Seller and its Subsidiaries and each of their respective successors and assigns, the assumption of the liabilities and obligations intended to be assumed by Buyer or a Buyer Designee under this Agreement and the Collateral Agreements, and to otherwise make effective the transactions contemplated hereby and thereby (including (i) transferring back to Seller or a Subsidiary any asset or liability not contemplated by this Agreement to be a Purchased Asset or an Assumed Liability, respectively, if and to the extent that any such asset or liability was erroneously or inadvertently transferred to Buyer or a Buyer Designee at the Closing and (ii) transferring to Buyer or a Buyer Designee any asset or liability contemplated by this Agreement to be a Purchased Asset or an Assumed Liability, respectively, which was erroneously or inadvertently not transferred to Buyer or a Buyer Designee at the Closing). |
| -23- (b) Nothing in this Agreement nor the consummation of the transactions contemplated hereby shall be construed as an attempt or agreement to transfer or assign any Purchased Asset, including any Transferred Contract, Transferred Governmental Permit, certificate, approval, license, authorization or other right, which by its terms or by Law is nonassignable or cannot be entered into without the consent of a Third Party or a Governmental Body or is cancelable by a Third Party in the event of an assignment (“Nonassignable Assets”) unless and until (i) such consents shall have been obtained or (ii) Buyer or a Buyer Designee notifies Seller that any such Purchased Asset should be transferred or assigned notwithstanding the absence of a requisite Third Party consent or Governmental Body consent or the right of a Third Party to cancel such Nonassignable Asset in the event of a transfer or assignment hereunder, in which event such Purchased Asset shall not be a Nonassignable Asset for purposes of this Agreement and shall instead be transferred and assigned hereunder notwithstanding the absence of such Third Party consent or Governmental Body consent or any right of a Third Party to cancel such Purchased Asset. Seller shall use commercially reasonable efforts to obtain such consents and deliver any required notices under all Nonassignable Assets, and Buyer shall, and shall cause its Affiliates to, cooperate with Seller to obtain such consents promptly. To the extent permitted by applicable Law, in the event any requisite consent cannot be or is not for any reason obtained prior to the Closing, from and after the Closing, Seller and Buyer shall, and shall cause their respective Affiliates to, use commercially reasonable efforts to develop a mutually agreeable arrangement (including by way of amendment or addition of services to the Transition Services Agreement) under which Buyer or a Buyer Designee would obtain the benefits and assume the obligations under such Nonassignable Assets in accordance with this Agreement, including by sub-contracting, sub-licensing, or sub-leasing to Buyer or a Buyer Designee. From and after the Closing, Seller shall, and shall cause its Affiliates to, also take or cause to be taken at Seller’s expense, such actions in its name or otherwise as mutually agreed to by the Parties (provided, that, Seller’s agreement not to be unreasonably withheld or delayed) so as to provide Buyer or the applicable Buyer Designee with the benefits of the Nonassignable Assets and to effect collection of money or other consideration that becomes due and payable under the Nonassignable Assets, and Seller or the applicable Subsidiary shall promptly pay over to Buyer or the applicable Buyer Designee all money or other consideration received by it in respect to all Nonassignable Assets; provided, however, with respect to any Transferred Governmental Permit which is a Nonasignable Asset, Buyer shall be responsible to pay (or as reasonably necessary, reimburse Seller for) the expense of transferring such Transferred Governmental Permit to Buyer as contemplated by this Agreement; and provided further, that Seller shall be entitled to deduct from any money or other consideration collected by Seller and required to be paid over to Buyer or the applicable Buyer Designee as described in this sentence, the out-of-pocket reasonable costs actually incurred by Seller to collect such amounts for the benefit of Buyer and any applicable early termination fees or penalties payable by Seller in connection with the Nonassignable Assets, so long as Seller obtained Buyer’s written consent prior to incurring such costs to collect such amounts or paying any such applicable early termination fees or penalties. If after the Closing Date any Nonassignable Asset becomes assignable (either because consent for the assignment or execution thereof is obtained or otherwise), Seller shall promptly notify Buyer and cooperate to assign or transfer such previously Nonassignable Asset to Buyer or the |
| -25- amounts are so withheld and paid to the appropriate Governmental Body, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of whom such deduction and withholding was made. If Buyer or a Buyer Designee intends to deduct or withhold on account of Taxes with respect to any payments made pursuant to this Agreement, Buyer or such Buyer Designee shall use commercially reasonable efforts to provide reasonable advance notice to Seller (or such other Person to whom such amount is payable) of any amounts otherwise payable to Seller (or such other Person) that it intends to deduct and withhold. Notwithstanding anything herein to the contrary, and provided that Seller (or such other Person) provides the properly completed Form W-8, Form W-9 or other similar forms, including any applicable non-U.S. Tax forms, (as applicable) as the applicable Buyer or Buyer Designee reasonably requests and except to the extent otherwise required by Law, Buyer or Buyer Designee shall not be entitled to deduct and withhold from any amount payable or otherwise deliverable pursuant to this Agreement any amounts of Tax. If withholding of Tax is required under this Section 2.8(a), (i) Seller (or such other Person) shall be entitled to claim the benefit of any applicable Tax treaty in any non-U.S. jurisdiction in which withholding is required, (ii) Buyer or the applicable Buyer Designee shall reasonably cooperate in good faith with Seller (or other Person, as applicable) to facilitate any such claim and to minimize or eliminate, to the extent permitted by applicable Laws, any such withholding obligation, and (iii) Buyer or the applicable Buyer Designee shall provide the Person in respect of whom withholding is imposed such documentation to support such Person’s claim of having paid the withheld amounts to the applicable taxing authorities. (b) The payment for any sales, use, transfer, conveyance, stamp, registration, documentary, filing, recording, or similar fees or Taxes (collectively, the “Transfer Taxes”) incurred in connection with the transfer of the Purchased Assets and the assumption of the Assumed Liabilities to and by, respectively, Buyer and Buyer Designees pursuant to this Agreement shall be borne solely by Buyer when due. (c) Unless otherwise provided for in this Agreement, any consideration stated to be payable or to be borne under this Agreement is exclusive of any applicable Value Added Taxes. Notwithstanding anything to the contrary in this Agreement, any Taxes that are Value Added Taxes imposed on assets sold hereunder, to the extent such Taxes are fully recoverable by Buyer or the applicable Buyer Designee (or would have been recoverable or not chargeable if Buyer had designated a local entity registered for Value Added Tax purposes to acquire the assets and operate the acquired business in each applicable country), shall be borne solely by Buyer or Buyer Designees, buy only to the extent that a duly issued invoice has been provided by Seller or a Subsidiary to Buyer or the applicable Buyer Designee, which invoice may be subject to adjustment following the completion of the Asset Level Allocation Statement. In the case and to the extent of Value Added Taxes incurred in connection with the transactions contemplated hereby that are fully or partially recoverable by Buyer or a Buyer Designee, such Taxes shall be properly invoiced by Seller or its Subsidiaries to Buyer or Buyer Designee, as applicable, paid by Buyer or Buyer Designee to Seller or its Subsidiaries, as applicable, and remitted by Seller or its Subsidiaries, as applicable, to the relevant Governmental Body in accordance with applicable Law, and Buyer or Buyer Designee shall be entitled to such recovery. The Party prescribed by Law as primarily liable for the payment of such Value Added Taxes shall |
| -26- prepare all necessary documents (including all Returns) with respect to all such amounts in a timely manner. For the avoidance of doubt, any adjustment to such documents resulting from changes to valuation shall not cause such documents to be considered untimely. The Parties shall use reasonable efforts and cooperate in good faith to determine the appropriate rate of Value Added Tax and/or, where available, to apply for specific relief for a “transfer of a going concern.” Consistent with the other provisions of this Section Error! Reference source not found., in the event that the competent Tax authority determines that the transactions contemplated hereby do not qualify for such Value Added Taxes relief applied by the Parties, Seller shall charge Buyer Value Added Taxes due on the transactions contemplated hereby and deliver to Buyer a valid Value Added Taxes invoice within the time as may be required by applicable Law. Value Added Taxes should be paid by Buyer to Seller, in addition to the consideration payable pursuant to this Agreement, and Seller shall remit the Value Added Taxes to the relevant Governmental Body, in each case, within such timing as may be required or customary under applicable Law. Any related interest, and/or penalties and/or surcharges imposed by the applicable Governmental Body related to this Agreement will be paid by Seller, Buyer, or the Buyer's Designee, provided that the fault is exclusively attributable to them. If the fault resulting in interest, penalties, and/or surcharges is not exclusively attributable to one party, including any challenges to the application of any applicable exemptions from Value Added Taxes (such as the transfer of a going concern, zero-rating sales, etc.) as discussed and agreed by the Parties, then the Parties shall bear the interest, penalties, and/or surcharges equally. (d) All real property Taxes (if any), personal property Taxes and similar ad valorem obligations (“Property Taxes”) levied with respect to the Purchased Assets for a Straddle Period shall be apportioned between Seller and Buyer based on the number of days of such Straddle Period, and Seller shall be liable for the proportionate amount of Property Taxes that is attributable to the Pre-Closing Tax Period within such Straddle Period, and Buyer shall be liable for the proportionate amount of Property Taxes that is attributable to the Post-Closing Tax Period within such Straddle Period. Any refund, rebate, abatement or other recovery of Property Taxes attributable to the Pre-Closing Tax Period shall be for the account of Seller, and any refund, rebate, abatement or other recovery of Property Taxes attributable to the Post-Closing Tax Period shall be for the account of Buyer. Upon receipt of any bill (or any refund, rebate, abatement, or other recovery) for such Property Taxes, Buyer or Seller, as applicable, shall present a statement to the other setting forth the amount of reimbursement to which each is entitled under this Section 2.8(d) together with such supporting evidence as is reasonably necessary to calculate the proration amount. The proration amount shall be paid by the Party owing it to the other within thirty (30) days after delivery of such statement. In the event that Buyer or Seller makes any payment for which it is entitled to reimbursement under this Section 2.8(d), the applicable Party shall make such reimbursement promptly but in no event later than thirty (30) days after the presentation of a statement setting forth the amount of reimbursement to which the presenting Party is entitled along with such supporting evidence as is reasonably necessary to calculate the amount of reimbursement. For the avoidance of doubt, Seller shall be responsible for and shall promptly pay when due all Property Taxes levied with respect to the Purchased Assets attributable to a Pre-Closing Tax Period. |
| -33- than routine individual grievances, or, to Seller’s Knowledge, any material activity or proceeding by a works council, labor union or trade union or similar labor-relations entity or representative thereof to organize the Business Employees or any other employees or independent contractors of Seller or any of its Subsidiaries who provide services for the Target Business, or any lockouts, strikes, slowdowns, work stoppages or, to Seller’s Knowledge, threats thereof by or with respect to the Business Employees or the Target Business; and (C) neither Seller nor any of its Subsidiaries is a party to or bound by any union, collective bargaining or other similar labor agreement (including any agreement with any works council, labor or trade union or other similar labor-relations entity) that covers any individuals providing services for the Target Business. (iii) No unfair labor practice, labor dispute or labor charge or complaint is pending or to Seller’s Knowledge threatened with respect to any Business Employee in their capacity as such or the Target Business. (iv) Except as set forth on Schedule 3.9(a)(iv), there is no union, works council, employee committee or representative or other labor organization, which, pursuant to applicable Law, Contract or past practice, must be notified or consulted or with which negotiations need to be conducted in connection with the transactions contemplated by this Agreement. (b) Schedule 3.9(b) contains a complete and accurate list, as of the date hereof, of each Benefit Plan that covers one or more Business Employees (collectively, the “Business Employee Plans”). With respect to each of the Business Employee Plans, Seller has made available to Buyer true and complete copies of, to the extent applicable, (i) the most recent plan document (including all amendments thereto) or, if a written plan document does not exist, a written description describing all material terms thereof, (ii) the applicable trust agreement, insurance contract or other funding arrangement, (iii) the most recent letter received from a Governmental Body regarding the tax-qualified status of such Business Employee Plan (including any IRS determination or opinion letter), (iv) the two most recent annual report (including on Form 5500), financial statements and actuarial valuation report, (v) any material, non-routine correspondence with a Governmental Body during the past three (3) years, and (vi) the most recent summary plan description, including any summaries of material modifications to such summary plan description, and summaries of benefits and coverage. (c) Each Business Employee Plan and related trust that is intended to be qualified under Section 401(a) of the Code is so qualified and has received a favorable determination letter or may rely on an opinion letter from the IRS as to its qualification in form under the Code, and, to Seller’s Knowledge, no event has occurred or conditions exist that could reasonably be expected to cause the loss of such qualified status. To Seller’s Knowledge, nothing has occurred with respect to any Business Employee Plan that could reasonably be expected to subject, Buyer or any of its Affiliates to a penalty under Section 502 of ERISA or Tax under Sections 4975 or 4980H of the Code. |
| -34- (d) No Business Employee Plan provides post-employment or post-service health, welfare, or life insurance benefits other than as required under COBRA or other similar applicable Law. No Business Employee Plan is, and none of Seller, any Subsidiary or any ERISA Affiliate sponsors, maintains, participates in, contributes to (or is obligated to contribute to), or has within the past six (6) years sponsored, maintained, participated in, contributed to, incurred an obligation to contribute to, or has any liability (contingent or otherwise) with respect to: (i) any “multiemployer plan” as defined in Section 3(37) or 4001(a)(3) of ERISA, (ii) any “employee pension benefit plan” as defined in Section 3(2) of ERISA that is subject to Title IV of ERISA, Part 3 of Title I of ERISA or Section 412 of the Code, (iii) any “multiple employer plan” as defined in ERISA or the Code or (iv) any “multiple employer welfare arrangement” as defined under Section 3(40)(A) of ERISA (without regard to Section 514(b)(6)(B) of ERISA). (e) Each Business Employee Plan (including a Non-U.S. Benefit Plan or any Benefit Plan covering one or more Business Employees that is otherwise not subject to ERISA or the Code) has been established, administered, and maintained in compliance in all material respects with its terms and with the requirements prescribed by any and all applicable Law (including without limitation ERISA, the Code, and any special provisions relating to the tax status of contributions to, earnings of or distributions from such Benefit Plan where each such Benefit Plan was intended to have such tax status). Neither Seller nor any Subsidiary is a party to any agreement, contract or arrangement that provides for, or is otherwise required or obligated to make a payment that would constitute, nonqualified deferred compensation (as defined in Section 409A(d)(1) of the Code) with respect to any Business Employee that does not comply with or satisfy an exemption from Code Section 409A. (f) Each Business Employee Plan that is a Non-U.S. Benefit Plan (i) has obtained from the Governmental Body having jurisdiction with respect to such Business Employee Plan any determination or registration required to give effect to such Business Employee Plan, if applicable, (ii) if it is intended to qualify for special tax treatment, satisfies in all material respects the requirements for such treatment and (iii) to the extent providing pension, termination indemnities, long-service awards, jubilee payments, post-termination welfare benefits or similar payments or benefits is listed on Schedule 3.9(f) and is fully secured by an insurance policy or is fully funded or book reserved, as applicable, in accordance GAAP or other applicable accounting standards. (g) Except as provided in Schedule 3.9(g), neither the execution or the delivery of this Agreement nor the consummation of the transactions contemplated hereby, in each case, whether alone or in conjunction with any other event, will (i) result in any payments or benefits becoming due to any Business Employee, (ii) increase the amount of or result in the acceleration of the time of payment, funding or vesting or result in the forfeiture of compensation or benefits under any Business Employee Plan, (iii) result in or entitle any Business Employee to any loan forgiveness or (iv) give rise to any payment or benefit that could reasonably be expected to be characterized as an “excess parachute payment” within the meaning of Section 280G of the Code. |
| -35- (h) There is no action, suit, consent decree, proceeding, arbitration or governmental investigation pending or, to Seller’s Knowledge, threatened relating to a Business Employee Plan (other than routine claims for benefits), and no Business Employee Plan has within the three (3) years prior to the date hereof been the subject of an examination or audit by a Governmental Body or the subject of an application or filing under or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored by any Governmental Body. (i) With respect to the Target Business, there is not presently pending, existing or, to Seller’s Knowledge, threatened, (i) any strike, slowdown, picketing, or work stoppage, (ii) any application for certification of a collective bargaining agent, (iii) any material controversies or material disputes pending or to Seller’s Knowledge threatened between Seller or any Subsidiary and any of its employees, or (iv) any material claims, material litigation or material disputes by a works council or other employee representative body, or an applicable Governmental Body against Seller or any of its Subsidiaries. (j) Except as set forth on Schedule 3.9(j), in the three (3) years prior to the date hereof, there have been no labor or employment-related litigations, administrative proceedings, arbitrations, audits or investigations in effect, pending, or to Seller’s Knowledge threatened regarding any Business Employee in their capacity as such, any employee or independent contractor of Seller or any of its Subsidiaries who provides services for the Target Business in their capacity as such, or the Target Business, at law or in equity, or before or by any Governmental Body or arbitrator. (k) Seller and its Subsidiaries are, and for the past three (3) years have been, in compliance, in all material respects, with all applicable Law regarding labor, employment and/or employment practices, including all applicable Law regarding terms and conditions of employment, health and safety, wages and hours (including the classification of independent contractors and exempt and non-exempt employees), immigration (including the completion of Forms I-9 for all employees and the proper confirmation of employee visas), harassment, discrimination, retaliation, whistleblowing, disability rights and benefits, equal opportunity, plant closures and layoffs, employee trainings and notices, workers’ compensation, labor relations, leaves of absences, COVID-19, affirmative action and/or unemployment insurance, with respect to any Business Employee, the Target Business and/or any former employee, independent contractor or other service provider who provided services to the Target Business. (l) Neither Seller nor any of its Subsidiaries has engaged in any material unfair labor practices within the meaning of the National Labor Relations Act or similar state, local or foreign agency in the preceding twelve (12) month period, with respect to any Business Employee or the Target Business. (m) Neither Seller nor any of its Subsidiaries in the past three (3) years has become a party to a settlement agreement resolving claims or allegations made of sexual harassment or sexual misconduct against a current executive-level Business Employee or former executive-level employee of Seller or any of its Subsidiaries, who provided services to the Target Business in their capacities as such. |
| -37- (v) pursuant to which Seller or any of its Subsidiaries is bound to, or has committed to provide or license any Business Product, or Purchased Asset to any Third Party including any reseller or distributor of products (including the Top Distributors) other than Contracts for sales of Business Products in the ordinary course of business pursuant to Seller’s standard terms and conditions that have been provided to Buyer or to acquire or license any product, Intellectual Property or service from a Third Party; (vi) that provide for “most favored nation” terms, including such terms for pricing; (vii) that create or obligate Seller or a Subsidiary to participate in any joint venture or similar arrangement; (viii) that contain maintenance, warranty, support or similar obligations, other than as set forth on the standard terms and conditions of sale included in Schedule 3.15(a); (ix) for any distributor, original equipment manufacturer, reseller, value added reseller, sales, agency or manufacturer’s representative relationships that is material to the Target Business or the Purchased Assets, including any with respect to the Business Products; (x) that provide for Intellectual Property that is exclusively related to or exclusively used in the operation or conduct of the Target Business and is licensed from a Third Party to Seller or any of its Subsidiaries; (xi) providing for the development of any Business Intellectual Property, independently or jointly, by or for Seller or any of its Affiliates; (xii) under which any Business Intellectual Property is licensed, assigned, or transferred by Seller or any of its Affiliates to a Third Party; (xiii) that is with any Governmental Body, university, or research organization; (xiv) that is a Contract obligating Seller or any of its Subsidiaries to purchase or otherwise obtain any product or service exclusively from a single party or sell any product or service exclusively to a single party; (xv) that involve, include or otherwise require Seller or any of its Subsidiaries to share profits or pay milestones, royalties or any other contingent payments with or to one or more other Persons; and (xvi) that constitute any other agreement, commitment, arrangement, or plan not made in the ordinary course of business that is otherwise material to the Target Business. |
| -40- any of the Assigned Intellectual Property or indicating an intention on the part of any Person to bring a claim that any of the Assigned Intellectual Property is invalid or unenforceable, nor to Seller’s Knowledge is there a reasonable basis for any claim that any of the Assigned Registered IP is either invalid or unenforceable. All Assigned Registered IP has been registered or obtained in accordance with all applicable legal requirements, and Seller has timely paid all filing, examination, issuance, post registration and maintenance fees and annuities associated with or required with respect thereto. None of the Assigned Registered IP has been in the past six (6) years or is currently involved in any interference, reissue, reexamination, opposition, cancellation, or similar proceeding and, to Seller’s Knowledge, no such action is threatened. Neither Seller nor any of its Affiliates has, to Seller’s Knowledge, taken any action or failed to take any action that would result in the abandonment, cancellation, forfeiture, relinquishment, invalidation, or unenforceability of any Assigned Intellectual Property. (b) Except as set forth in Schedule 3.12(b), (i) neither the operation and conduct of the Target Business by Seller and its Affiliates, nor the use, marketing, sale, import, export, and manufacture of Business Products or the Purchased Assets, nor use of the Business Intellectual Property, by Seller and its Affiliates, have not and do not infringe, misappropriate or otherwise violate, any Intellectual Property rights of any Third Party; (ii) there is no suit, or proceeding pending against or, to Seller’s Knowledge, threatened against, the Target Business, Business Intellectual Property, or the Business Products, including any such suit, proceeding, claim, agreement, or stipulation (x) based upon, or challenging or seeking to deny or restrict, the rights of Seller or any of its Affiliates in any of the Business Intellectual Property, (y) alleging that the use of the Business Intellectual Property, the Purchased Assets, or any other services, processes, or services provided, processes used, or products manufactured, used, imported, exported, marketed, offered for sale or sold with respect to the Target Business conflict with, misappropriate, infringe or otherwise violate any Intellectual Property rights of any Third Party, or (z) alleging that Seller or any of its Affiliates infringed, misappropriated, or otherwise violated any Intellectual Property rights of any Third Party in connection with the operation of the Target Business or the use of the Purchased Assets; (iii) to Seller’s Knowledge, no other Person is infringing, misappropriating or otherwise violating any Business Intellectual Property rights that are material to the conduct of the Target Business or the Purchased Assets as currently conducted or as currently planned to be conducted; (iv) no legal action, suit, arbitration, audit, claim, hearing, investigation or proceeding (whether federal, state, local or foreign) for infringement, misappropriation, dilution or violation is pending or, to Seller’s Knowledge, has been threatened against any Person by Seller or any of its Affiliates, nor to Seller’s Knowledge is there a reasonable basis for any such claim; and |
| -41- (v) (A) there exists no restrictions on the disclosure, use, license or transfer of the Business Intellectual Property (other than the restrictions imposed in the Intellectual Property License Agreement, or by applicable Law); and (B) the consummation of the transactions contemplated by this Agreement will not alter, impair or extinguish any of the Business Intellectual Property or rights therein. (c) At the Closing, Seller or one of its Affiliates will assign to Buyer the Assigned Intellectual Property in accordance with the applicable assignment agreements and will license to Buyer or Buyer Designee the Licensed Intellectual Property, in accordance with the Intellectual Property License Agreement. Other than Standard Software, the Business Intellectual Property constitutes all the Intellectual Property and Information related to or used in the operation or conduct of the Target Business and is sufficient to permit Buyer to conduct the Target Business immediately following the Closing in substantially the same manner as it is currently conducted. Following the Closing, Buyer will be permitted to exercise all of the rights of Seller, including under Business Intellectual Property, to the same extent Seller would have been able had the transactions contemplated by this Agreement and the Collateral Agreements not occurred and without the payment of any consideration. (d) None of the Business Intellectual Property has been adjudged invalid or unenforceable in whole or part and, to Seller’s Knowledge, all Business Intellectual Property is valid and enforceable. (e) Seller and its Affiliates have taken reasonable actions to maintain and protect the Assigned Intellectual Property, including payment of applicable maintenance fees and filing of applicable statements of use. (f) Schedule 3.12(f) contains a complete and accurate list, as of the date hereof, of all material Information (other than Open Source Materials) that is not owned by Seller or its Affiliates and is embedded in, incorporated into or distributed by Seller with the Business Products (“Third Party Components”), in each case identifying (i) the Business Product associated with such Third Party Component and (ii) the license or other agreement granting Seller or any of its Affiliates rights in and to such Third Party Component. (g) Schedule 3.12(g) contains a complete and accurate list, as of the date hereof, of all Contracts pertaining to licenses or rights Seller has granted, or otherwise agreed not to assert or enforce, with regard to any of the Assigned Intellectual Property. Seller has not granted any licenses or other rights under, or otherwise agreed not to assert or enforce, the Assigned Intellectual Property, except for as provided in the Contracts listed in Schedule 3.12(g). (h) Seller and its Affiliates have taken reasonable steps to maintain the confidentiality of all assigned Trade Secrets and all material confidential information, including Business Data and Information, to the Target Business and other information that at any time constituted a Trade Secret relating to the Target Business (“Business Trade Secrets”), including taking reasonable steps to ensure that any Business Trade Secrets disclosed by Seller or any of its Affiliates to a Third Party are subject to the confidentiality |
| -42- undertakings set forth in an applicable valid, enforceable, and written non-disclosure agreement. To Seller’s Knowledge, there has been no unauthorized access, use or misappropriation of any Business Trade Secrets. Seller and its Affiliates have not disclosed, nor is Seller or any of its Affiliates under any contractual or other obligation to disclose, to another Person any Business Trade Secrets, except pursuant to a valid, enforceable, and written confidentiality agreement or undertaking, and, to Seller’s Knowledge, no Person has breached any such agreement or undertaking. Without limiting the generality of the foregoing, Seller has and enforces in a commercially reasonable manner a policy requiring each Business Employee and independent contractor who has participated in or has made any contributions to the creation of any Business Intellectual Property or has had access to any Business Trade Secrets to enter into, and each such Business Employee and independent contractor has entered into, a valid, enforceable, and written non-disclosure and invention assignment agreement having the same or substantially similar provisions to Seller’s standard forms (which have previously been provided to Buyer) that provides for (i) the non-disclosure by such Person of any of Seller’s or any of its Affiliates’ or licensors’ confidential information, (ii) the assignment by such person to Seller or any of its Affiliates of all Intellectual Property relating to the Target Business and arising out of such person’s employment or engagement by, or contract with, Seller or any of its Affiliates, and (iii) no use by such Person of any of Seller’s or any of its Affiliates’ or licensors’ confidential information except for approved purposes. (i) Neither Seller nor any of its Affiliates is or ever was a member or promoter of, or a contributor to, any industry standards body or similar organization that could require or obligate Seller or any such Affiliate to grant or offer to any other Person any license or right to or otherwise impair Seller’s or its Affiliates’ control of any Business Intellectual Property. (j) To Seller’s Knowledge, no Business Employee or independent contractor of Seller or any of its Affiliates who is engaged in connection with the Target Business is obligated under any agreement or subject to any judgment, decree or order of any court or Governmental Body, or any other restriction that could reasonably be expected to materially interfere with such Business Employee or independent contractor carrying out his or her duties for Seller or such Affiliates, as applicable, or that could reasonably be expected to materially conflict with the Assigned Intellectual Property, the Licensed Intellectual Property, the Purchased Assets, or the Target Business as presently conducted or presently planned to be conducted. No funding, facilities, or personnel of any Governmental Body were used, directly or indirectly, to develop, invent or create, in whole or in part, any Business Intellectual Property. (k) The information technology assets constituting Principal Equipment (the “Business IT Assets”) are designed, implemented, operated and maintained in accordance with customary industry standards and practices for entities operating businesses similar to the Target Business, including with the respect to redundancy, reliability, scalability and security. The Business IT Assets are adequate for and operate and perform in all material respects as required in connection with the operation of the Target Business as currently conducted and as currently planned to be conducted. Seller and each of its Affiliates have in effect industry standard disaster recovery plans, procedures and facilities for its business |
| -43- and have taken all reasonable steps to safeguard the security and the integrity of the Business IT Assets. Seller and its Affiliates have undertaken all reasonably necessary surveys, audits, inventories, reviews, analyses and/or assessments (including any necessary risk assessments and risk analyses) of the Target Business and operations required by Data Protection Requirements. None of the Business IT Assets contain any “back door,” “drop dead device,” “time bomb,” “Trojan horse,” “vulnerability”, “virus,” or “worm” (as such terms are commonly understood in the software industry) or any other code designed or intended to have, or capable of performing, any of the following functions: (i) disrupting, disabling, harming or otherwise impeding in any manner the operation of, or providing unauthorized access to, a computer system or network or other device; or (ii) damaging or destroying any data or file without the user’s consent. Except as set forth in Schedule 3.12(k), since January 1, 2018, there have been no unauthorized intrusions or breaches of security with respect to the Business IT Assets, that have resulted in the unauthorized acquisition, destruction, damage, disclosure, loss, corruption, alteration, or use of any Personal Information or other Business Data (“Security Incident”) in the possession, custody or control of Seller or its Affiliates, which has required notification to any Person (including any Governmental Body). To Seller’s Knowledge, no subcontractor of Seller or any of its Affiliates has experienced a Security Incident or made or has been required to make any disclosure or notification pursuant to the applicable Data Protection Requirements in connection with any Security Incident with respect to any Personal Information or other Business Data provided by it to Seller or any of its Affiliates. Seller and each of its Affiliates have implemented any and all security patches or upgrades that are generally available for the Business IT Assets. (l) Since January 1, 2018, Seller and its Subsidiaries are and have been operating in material compliance with applicable Data Protection Requirements. To the extent required by Data Protection Requirements, Seller and its Subsidiaries have adopted and published Privacy Policies that accurately describe the privacy practices of Seller and its Subsidiaries (as applicable), to any website, mobile application or other electronic platform and complied with those notices and policies, and no such notices or disclosures have been inaccurate, misleading or deceptive. Seller and each of its Affiliates take and has taken reasonable measures designed to ensure that Personal Information is protected against unauthorized access, loss, damage, use, sharing, modification, or other misuse other than as expressly described in the Privacy Policies, and there has been no unauthorized access, loss, damage use, sharing, modification, or other misuse of any Personal Information by Seller or any of its Affiliates. (m) To Seller’s Knowledge, no Person (including any Governmental Body) has asserted or commenced any action, suit, decree, proceeding, arbitration or investigation with respect to any alleged violation of the applicable Data Protection Requirements or any data privacy or security practices of Seller or its Affiliates, including any loss, damage or unauthorized access, use, disclosure or modification of any Personal Information or other Business Data maintained by, or on behalf of, Seller or its Affiliates. The execution, delivery and performance of this Agreement complies in all material respects with the applicable Data Protection Requirements. |
| -56- (a) Buyer or any Buyer Designee shall make offers of employment, which shall be contingent on the Closing for offers made prior to the Closing, to the Business Employees who are active Business Employees on the Closing Date (including anyone absent due to vacation, holiday, bereavement, jury duty leave or any similar short-term absence that does not affect the Business Employee’s status as an active employee, but not including any Inactive Employee). With respect to each Business Employee who is on a leave of absence, short-term or long-term disability leave, medical leave, military leave or any similar leave (an “Inactive Employee”) who returns to work within the later of 180 days after the Closing Date, as the case may be, or such longer period as may be required by applicable Law, Buyer or a Buyer Designee will make an offer of employment to such Inactive Employee with such offer to be on terms and conditions consistent with this Section 5.4. Seller shall not be liable for Buyer’s or Buyer Designee’s failure to offer employment or the timing of any offer of employment to any such Inactive Employee, unless such failure is due to the negligence or willful failure of Seller. Buyer’s or Buyer Designee’s offer of employment to each Business Employee shall provide for employee benefits under the plans and arrangements provided by Buyer or a Buyer Designee to its similarly situated employees unless Buyer or a Buyer Designee is required by applicable Law to assume or replicate any Business Employee Plan or any benefit provided thereunder, in which case Buyer or Buyer Designee shall provide such required benefits. Seller and any applicable Subsidiary shall cooperate and assist in facilitating Buyer’s or a Buyer Designee’s offers and will not take any action, or cause any of the Subsidiaries to take any action, which would impede, hinder, interfere or otherwise compete with Xxxxx’s or a Buyer Designee’s effort to hire any Business Employee. Without limiting the foregoing, each Party shall comply with all applicable Law in connection with the transfer of the Business Employees to Buyer or a Buyer Designee, including with respect to notice and other procedural requirements. Seller and its applicable Subsidiaries will provide any and all information reasonably required by Buyer or a Buyer Designee in order for Buyer to fulfill its obligations under this Agreement with respect to the Business Employees. The Parties will enter into appropriate documentation for relevant jurisdictions outside the United States where necessary or appropriate for the transfer (or employment, where transfer is not available under applicable Law) by Buyer or a Buyer Designee of any Business Employees. Each Business Employee who accepts Buyer’s or a Buyer Designee’s offer of employment and commences employment with Buyer or a Buyer Designee shall, as of the effective date of their employment with Buyer or a Buyer Designee, be referred to as a “Transferred Employee.” Employment of Transferred Employees with Buyer or a Buyer Designee shall be effective as of the Closing Effective Time, except that the employment of Transferred Employees in a jurisdiction with a delayed closing and employment of an Inactive Employee who becomes employed by Buyer or a Buyer Designee after the Closing Effective Time will become effective as of the date they present themselves for work with Buyer or a Buyer Designee or such other date as is prescribed by applicable Law or an agreement between Seller and Buyer (or its respective designee), and such individual shall be deemed to be a Transferred Employee as of such date, and for purposes of this Agreement, such date shall be substituted for the terms “Closing”, “Closing Date” and “Closing Effective Time”, respectively, except where the context otherwise requires. |
| -57- (b) Buyer shall recognize each Transferred Employee’s service with Seller or a Subsidiary prior to the Closing for purposes of determining eligibility to participate and vesting in each employee benefit plan of Buyer or a Buyer Designee, including but not limited to any vacation plans and severance plans, to the extent permitted by applicable Law, provided that such service shall not be recognized to the extent such recognition would result in a duplication of benefits or would not be allowed by the applicable employee benefit plan of Buyer or a Buyer Designee, as applicable. (c) Effective as of the Closing, Seller or the applicable Subsidiary will terminate the employment of any Business Employee who is offered employment in accordance with Section 5.4(a) above and rejects such offer of employment with Buyer or a Buyer Designee, unless applicable Law restricts or penalizes such termination and Seller or a Subsidiary is able to reassign such employee to another position. (d) Except as set forth in Schedule 5.4(d), Transferred Employees will not be eligible for any severance benefits under the terms of any Benefit Plan. (e) The Parties agree to cooperate in good faith to determine whether any notification may be required under the WARN Act as a result of the transactions contemplated by this Agreement. Seller will be responsible for providing any notification that may be required under the WARN Act with respect to any of its employees terminated on or prior to Closing. Buyer will be responsible for providing any notification that may be required under the WARN Act with respect to any Transferred Employees terminated after the Closing Date. In addition, Seller shall, at its own expense, give all notices and other information required to be given by Seller to the Business Employees pursuant to COBRA, if any, in connection with the execution of this Agreement and the consummation of the transactions contemplated hereby and shall be solely responsible for providing continuation coverage under COBRA. (f) No provision of this Section 5.4 shall create any Third Party beneficiary or other rights in any Business Employee or former employee in respect of continued or resumed employment in Seller’s business, or with Buyer, and no provision of this Section 5.4 shall create any rights in any such persons in respect of any benefits that may be provided under any plan or arrangement which may be established by Buyer. Nothing contained herein shall be construed as requiring, and Seller, Buyer and their Affiliates shall take no action that would have the effect of requiring, Seller, Buyer, or any of their respective Affiliates to continue any specific Benefit Plan. The provisions of this Section 5.4 are for the sole benefit of Seller and Buyer and nothing in this Section 5.4, expressed or implied, is intended or shall be construed to constitute an amendment of any Benefit Plan or any similar benefit plan of Buyer (or an undertaking to amend any such plan) or other compensation and benefits plan maintained for or provided to Business Employees, including Transferred Employees, prior to, on or following the Closing. (g) To the extent to which a Transferred Employee would be in breach of any obligation owed to Seller or one of its Affiliates by reason of becoming employed by Buyer or a Buyer Designee (for example, a noncompete obligation), Seller and its Affiliates will waive such obligation. |
| -67- (iii) is received by Xxxxx from a Third Party without restriction and without breach of any agreement; (iv) to the extent it is independently developed by Xxxxx as demonstrated by competent evidence; or (v) is, subject to Section 6.2(c), required to be disclosed under applicable Law or judicial process. (c) If Buyer (or any of its Affiliates) is required by applicable Law (for example, by oral or written interrogatories, requests for information or documents, subpoenas, civil investigative demands or other similar legal processes) to disclose any Seller Proprietary Information to a Third Party, Buyer will promptly notify Seller of such request or requirement and will cooperate with Seller, at Seller’s cost and expense, in any Seller efforts to seek an appropriate protective order or other appropriate remedy to prevent or limit the disclosure of such Seller Proprietary Information. If, in the absence of a protective order or the receipt of a waiver hereunder, Buyer (or any of its Affiliates) is required by applicable Law (for example, by oral or written interrogatories, requests for information or documents, subpoenas, civil investigative demands or other similar processes) to disclose Seller Proprietary Information, Buyer (or its Affiliate) may disclose only so much of Seller Proprietary Information to the Third Party compelling disclosure as is so required; and such Seller Proprietary Information shall retain its confidentiality protections for all purposes other than the compelled disclosure. 6.3. Xxxxx’s Proprietary Information. (a) Except as provided in Section 6.3(b), from and after the Closing Date and for a period of seven (7) years thereafter, Seller agrees that it will keep confidential all of (i) Buyer’s and its Affiliates’ Information that is received from, or made available by, Buyer in the course of the transactions contemplated hereby and marked or identified at the time of disclosure as the proprietary or confidential information of Buyer, and (ii) all of the assigned Trade Secrets and other confidential information that is part of the Purchased Assets or the Assumed Liabilities (collectively, “Buyer Proprietary Information”), including, for purposes of this Section 6.2, information about business plans and strategies, marketing ideas and concepts, especially with respect to unannounced products and services, present and future product plans, pricing, volume estimates, financial data, product enhancement information, business plans, marketing plans, sales strategies, customer information (including customers’ applications and environments), market testing information, development plans, specifications, customer requirements, configurations, designs, plans, drawings, apparatus, sketches, software, hardware, data, prototypes, connecting requirements, other technical and business information and information regarding Business Employees. Notwithstanding the foregoing, or anything herein to the contrary, subject to Section 6.3(b) Seller shall maintain all assigned Trade Secrets as Trade Secrets indefinitely, using the same reasonable care and discretion as Seller used for such information prior to Closing and with respect to Seller’s own similar Trade Secrets of like importance (but subject to, for the avoidance of doubt, the exceptions set forth in Section 6.3(b) and (c)). |
| -82- [SIGNATURES PAGE FOLLOWS] |
| [SIGNATURE PAGE TO ASSET PURCHASE AGREEMENT] IN WITNESS WHEREOF, each Party has caused this Agreement to be duly executed on its behalf by its duly authorized officer as of the date first written above. MERIT MEDICAL SYSTEMS, INC. By: /s/ Xxxx X. Xxxxxxxxxxxx Name: Xxxx X. Xxxxxxxxxxxx Title: Chairman and Chief Executive Officer |
| [SIGNATURE PAGE TO ASSET PURCHASE AGREEMENT] IN WITNESS WHEREOF, each Party has caused this Agreement to be duly executed on its behalf by its duly authorized officer as of the date first written above. COOK MEDICAL HOLDINGS LLC By: /s/ Xxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxx Title: Executive Vice President, Secretary, and Treasurer |
