ZEB Buyer, LLC c/o H.I.G. Capital, LLC
Exhibit 2.2
EXECUTED VERSION
ZEB Buyer, LLC c/o H.I.G. Capital, LLC
0000 Xxxxxxxx Xxxxxx, 00xx Xxxxx Xxxxx, Xxxxxxx 00000
March 29, 2024
0000 Xxxxxxxxx Xxxxx
Palm Beach Gardens, Florida 33410
Reference is made to that certain Equity Purchase Agreement, dated as of December 15, 2023 (as may be amended, restated, supplemented or modified from time to time, the “EPA”), by and among ZIMVIE INC., a Delaware corporation (“Seller”), ZEB BUYER, LLC, a Delaware limited liability company (“Purchaser”), and XXXXXX BIOMET SPINE, LLC, a Delaware limited liability company (formerly XXXXXX BIOMET SPINE, INC., a Delaware corporation) (together with Purchaser and Seller, the “Parties”). Capitalized terms used but not defined in this letter agreement shall have the meaning given to them in the EPA.
The Parties have entered into this letter agreement to reflect certain amendments, consents, waivers, agreements and understandings, as set forth below, which each Party hereby agrees to and acknowledges:
“With respect to each Deferred Market, on the applicable Deferred Market Closing Date, (i) Seller shall, and shall cause its Subsidiaries to, transfer legal title to the Transferred Assets in such Deferred Market (including, with respect to Brazil and Taiwan, the Equity Interests of the Brazil Subsidiary and the Taiwan Subsidiary, respectively) to Purchaser (or the applicable Purchaser Local Subsidiary) free and clear of all Liens (other than Permitted Liens) and (ii) Purchaser shall (or shall cause the applicable Purchaser Local Subsidiary to) assume the Assumed Liabilities in such Deferred Market from Seller and its Subsidiaries, in each case (as applicable), pursuant to instruments of transfer, assignment, conveyance and assumption that are customary in the applicable local jurisdiction prepared by Seller and in form and substance reasonably satisfactory to Purchaser, in each case, for no additional consideration and in accordance with the Steps Plan. The closing of any such deferred transfer (a “Deferred Market Closing”) shall be deemed to be effective as of 12:01 a.m., New York City time, on the applicable Deferred Market Closing Date.”
“Transferred Group Subsidiary Equity Interests. Notwithstanding anything to the contrary set forth in this Agreement, at the Closing, Purchaser shall (or shall cause its applicable Affiliate set forth on Section 1.08 of the Seller Disclosure Letter under the heading “Purchaser Designee” to) acquire from the applicable Affiliate of the Transferred Company set forth on Section 1.08 of the Seller Disclosure Letter under the heading “Seller Designee”, all of the issued and outstanding Equity Interests of the Group Subsidiary set forth on
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Section 1.08 of the Seller Disclosure Letter under the heading “Group Subsidiary” (collectively, the “Transferred Group Subsidiary Equity Interests”). At the Closing, Seller shall deliver (or shall cause the applicable Designated Seller Subsidiary to deliver) certificates representing all certificated Transferred Group Subsidiary Equity Interests and customary instruments of transfer and assignment of the Transferred Group Subsidiary Equity Interests, in form and substance reasonably satisfactory to Purchaser, duly executed by Seller or the Designated Seller Subsidiary, as applicable. For the avoidance of doubt, the Parties hereby acknowledge and agree that (x) the Purchase Price being paid to Seller (or the Designated Seller Subsidiary) pursuant to Section 1.01 of this Agreement (as adjusted pursuant to Section 1.04) is inclusive of the consideration allocable to the Transferred Group Subsidiary Equity Interests and (y) Seller is receiving the Purchase Price allocable to the Transferred Group Subsidiary Equity Interests on behalf of its applicable Affiliates.
Section 1.08
Transferred Group Subsidiary Equity Interests
Group Subsidiary |
Seller Designee |
Purchaser Designee |
ZimVie Singapore Pte Ltd. |
ZimVie Netherlands BV (formerly Biomet 3i Netherlands B.V.) |
ZEB Buyer Singapore Pte. Ltd. |
EBI Patient Care Inc. |
Biomet 3i LLC |
ZEB BUYER PUERTO RICO, LLC |
LDR Medical SAS |
ZimVie Netherlands BV (formerly Biomet 3i Netherlands B.V.) |
ZEB BUYER FRANCE SAS |
“Deferred Markets” means Austria, Belgium, Brazil, Canada, Germany, Italy, Japan, Netherlands, Spain, Switzerland, the United Kingdom and Taiwan.
“Deferred Markets Conditions” mean, with respect to each Deferred Market, (a) no Judgment enacted, promulgated, issued, entered, amended or enforced by any Governmental Authority of competent jurisdiction or any applicable Law in such Deferred Market shall be in effect enjoining, restraining or otherwise making illegal, preventing or prohibiting the consummation of the Deferred Market Closing, (b) other than with respect to Brazil and Taiwan, the Purchaser Local Subsidiary
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for such Deferred Market shall have been organized and qualified to do business in such Deferred Market and shall have obtained all such regulatory approvals necessary in accordance with the Deferred Market Regulatory Roadmap (including, as applicable, approvals for the transfer of product registrations from the applicable Affiliate of Seller) to operate the applicable Deferred Local Business, (c) with respect to Brazil only, Seller shall have obtained all such regulatory approvals necessary in accordance with the Deferred Market Regulatory Roadmap to transfer certain product registrations related to the Seller Business from ZimVie Brasil Comércio, Importação e Exportação de Produtos Médicos Ltda. (the “Brazil Subsidiary”) to another Person and
(d) with respect to Taiwan only, Seller and Purchaser shall have obtained all such regulatory approvals necessary to transfer the Equity Interests of ZimVie Taiwan Co., Ltd. (the “Taiwan Subsidiary”) to Purchaser (or its designee).
Deferred Market Outside Dates
Deferred Market |
Deferred Market Outside Date |
Austria |
September 15, 2024 |
Belgium |
September 15, 2024 |
Brazil |
December 15, 2024 |
Canada |
December 15, 2024 |
Germany |
September 15, 2024 |
Italy |
September 15, 2024 |
Japan |
December 15, 2024 |
Netherlands |
September 15, 2024 |
Spain |
September 15, 2024 |
Switzerland |
September 15, 2024 |
Taiwan |
December 15, 2024 |
United Kingdom |
September 15, 2024 |
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“Upon written direction from Purchaser, Seller or its Affiliates shall terminate the employment of the applicable Specified China Employee (as defined in that certain letter agreement, dated as of March 29, 2024, by and among the parties), at or prior to the expiration of the applicable term in the Transition Services Agreement. Purchaser shall reimburse the applicable member of the Seller Group within ten (10) Business Days of notice thereof for the reasonable and documented out-of-pocket costs (including the employer-paid portion of any employment or similar taxes) for any severance payments or other severance benefits required by Contract (in effect as of the date hereof) or applicable Law to be provided by any member of the Seller Group to such Specified China Employee. Without limiting any other provision of this Agreement, Purchaser shall indemnify and hold harmless Seller and its Affiliates from all liabilities, obligations, claims and losses relating to the termination of employment of any Specified China Employee.”
“Notwithstanding the foregoing, Seller shall (i) until May 31, 2024 (or until the applicable renewal date), maintain coverage under all insurance policies
(x) related to the Deferred Local Businesses in the Deferred Markets and
(y) arranged or maintained by Seller or its Affiliates (other than the Group Companies) as of the Closing and (ii) thereafter and until the applicable Deferred Market Closing Date, arrange for coverage of the Deferred Local Businesses in the Deferred Markets under the insurance policies of Seller and its Affiliates in substantially the same manner as Seller and its Affiliates provide for the Seller Business. Seller and Purchaser agree that, following the Closing, such policies shall be for the benefit of Purchaser and its Affiliates (including, following the Closing, the Group Companies); provided that such policies shall be considered Available Insurance Policies, and any claims submitted thereunder by or on behalf of Purchaser or any Group Company shall be considered Coverage Claims, in each case subject to Section 5.21(b). Seller and Purchaser agree that all premiums and costs of maintaining such insurance policies related to the Deferred Local Businesses (or, as applicable, the portion of such insurance policies attributable to the Deferred Local Businesses) following the Closing, including any prepaid annual premiums and cancellation or adjustment fees and irrespective of whether the coverage period extends beyond the applicable Deferred Market Closing Date, shall be borne by Purchaser pursuant to the Net Economic Benefit Agreement or shall otherwise be reimbursed by Purchaser to the applicable member of the Seller Group within ten (10) Business Days of notice thereof; provided that Seller and its Affiliates shall use commercially reasonable efforts to cancel or otherwise terminate any unused portion of such coverage as a result of the applicable Deferred Market Closing and shall convey to Purchaser any refunds received by the applicable insurance provider within ten (10) Business Days of receipt thereof. Seller and Purchaser acknowledge and agree that nothing in
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this Section 5.21(a) shall limit the parties’ rights to indemnification pursuant to Article VIII. As of each Deferred Market Closing Date, Xxxxxxxxx agrees to arrange for its own insurance policies with respect to the applicable Deferred Local Business.”
[signature page follows]
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DocuSign Envelope ID: A7CA2C4B-CFBE-464C-B266-54FBE05E5168
Acknowledged and agreed as of the date first written above.
By: Xxxxxxx Xxxxxxx Title: SVP, Chief Legal, Compliance and Human Resources Officer and Corporate Secretary |
ZEB BUYER, LLC By: Xxxxxxx Xxxxxxxxx Title: President |
XXXXXX BIOMET SPINE, LLC By: Xxxxxxx Xxxxxxx Title: SVP, Chief Legal, Compliance and Human Resources Officer and Corporate Secretary |
DocuSign Envelope ID: E565138D-41E2-45C2-B446-EC3C7A0914C2
Acknowledged and agreed as of the date first written above.
By: Xxxxxxx Xxxxxxx
Title: SVP, Chief Legal, Compliance and Human Resources Officer and Corporate Secretary
ZEB BUYER, LLC
By: Xxxxxxx Xxxxxxxxx Title: President
XXXXXX BIOMET SPINE, LLC
By: Xxxxxxx Xxxxxxx
Title: SVP, Chief Legal, Compliance and Human Resources Officer and Corporate Secretary
[Signature Page to Side Letter to EPA]
