EXHIBIT 10.1
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ASSET PURCHASE AGREEMENT
BY AND AMONG
ANGEION CORPORATION
SANOFI-SYNTHELABO
AND
ELA MEDICAL
DATED
AUGUST 2, 1999
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TABLE OF CONTENTS
PAGE
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ARTICLE I PURCHASE AND SALE OF ASSETS..................................................................1
1.1 PURCHASE AND SALE OF ASSETS..................................................................1
1.2 ASSUMED LIABILITIES..........................................................................2
ARTICLE II PURCHASE PRICE; CLOSING......................................................................3
2.1 PURCHASE PRICE...............................................................................3
2.2 TIME AND PLACE...............................................................................3
2.3 DELIVERIES...................................................................................3
ARTICLE III REPRESENTATIONS AND WARRANTIES OF SELLER.....................................................5
3.1 ORGANIZATION AND GOOD STANDING...............................................................5
3.2 AUTHORITY; BINDING EFFECT; PERFORMANCE.......................................................5
3.3 CONSENTS AND APPROVALS; NO VIOLATIONS........................................................6
3.4 ABSENCE OF UNDISCLOSED LIABILITIES...........................................................6
3.5 NO CLAIMS OR LITIGATION......................................................................6
3.6 TITLE TO ASSETS AND RELATED MATTERS..........................................................7
3.7 INTELLECTUAL PROPERTY........................................................................7
3.8 CONTRACTS....................................................................................8
3.9 PERMITS......................................................................................8
3.10 COMPLIANCE WITH APPLICABLE LAW...............................................................8
3.11 BROKERS AND FINDERS..........................................................................8
3.12 ABSENCE OF OTHER AGREEMENT FOR SALE OF ASSETS................................................8
3.13 PROXY STATEMENT..............................................................................9
3.14 DISCLOSURE...................................................................................9
3.15 RELIANCE.....................................................................................9
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PARENT AND PURCHASER.......................................9
4.1 ORGANIZATION AND GOOD STANDING...............................................................9
4.2 AUTHORITY; BINDING EFFECT; PERFORMANCE.......................................................9
4.3 CONSENTS AND APPROVALS; NO VIOLATIONS.......................................................10
4.4 BROKERS AND FINDERS.........................................................................10
ARTICLE V COVENANTS...................................................................................10
5.1 CONDUCT PENDING CLOSING.....................................................................10
5.2 PROXY STATEMENT.............................................................................11
5.3 ACCESS TO INFORMATION.......................................................................13
5.4 NOTICE AND CURE.............................................................................13
5.5 BEST EFFORTS................................................................................13
ARTICLE VI CONDITIONS TO THE OBLIGATIONS OF PARENT AND
PURCHASER...................................................................................14
6.1 REPRESENTATIONS AND WARRANTIES TRUE.........................................................14
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6.2 PERFORMANCE.................................................................................14
6.3 APPROVALS, PERMITS, CONSENTS................................................................14
6.4 SHAREHOLDER AND SENIOR NOTE HOLDER APPROVAL.................................................14
6.5 DELIVERY OF CLOSING DOCUMENTS...............................................................14
6.6 ABSENCE OF CERTAIN EVENTS...................................................................14
ARTICLE VII CONDITIONS TO THE OBLIGATIONS OF SELLER.....................................................15
7.1 REPRESENTATIONS AND WARRANTIES TRUE.........................................................15
7.2 PERFORMANCE.................................................................................15
7.3 APPROVALS, PERMITS, CONSENTS................................................................15
7.4 SHAREHOLDER AND SENIOR NOTE HOLDER APPROVAL.................................................15
7.5 DELIVERY OF CLOSING DOCUMENTS...............................................................15
7.6 ABSENCE OF CERTAIN EVENTS...................................................................15
ARTICLE VIII TERMINATION.................................................................................16
8.1 TERMINATION.................................................................................16
8.2 EFFECT OF TERMINATION.......................................................................16
ARTICLE IX POST-CLOSING COVENANTS......................................................................17
9.1 ACCESS AFTER CLOSING........................................................................17
9.2 FURTHER ASSURANCES..........................................................................17
9.3 SUPPLY AGREEMENTS...........................................................................17
ARTICLE X INDEMNIFICATION; SURVIVAL OF REPRESENTATIONS AND WARRANTIES.................................17
10.1 INDEMNITY OBLIGATIONS OF SELLER.............................................................17
10.2 INDEMNITY OBLIGATIONS OF PARENT AND PURCHASER...............................................18
10.3 INDEMNIFICATION PROCEDURES..................................................................19
10.4 DURATION....................................................................................19
ARTICLE XI MISCELLANEOUS PROVISIONS....................................................................20
11.1 EXPORT CONTROLS.............................................................................20
11.2 FEES AND EXPENSES...........................................................................20
11.3 SEVERABILITY................................................................................20
11.4 ENTIRE AGREEMENT; AMENDMENTS................................................................20
11.5 NOTICES.....................................................................................21
11.6 SUCCESSORS AND ASSIGNMENT...................................................................22
11.7 NO THIRD PARTY BENEFICIARIES................................................................22
11.8 NO WAIVER...................................................................................22
11.9 PUBLICITY...................................................................................22
11.10 COUNTERPARTS................................................................................23
11.11 HEADINGS....................................................................................23
11.12 ENGLISH LANGUAGE CONTROLS; ENTIRE AGREEMENT.................................................23
11.13 GOVERNING LAW...............................................................................23
11.14 RELATIONSHIP OF THE PARTIES.................................................................23
11.15 SOVEREIGN IMMUNITY; EXCLUSIONS..............................................................23
11.16 CONSULTATION AND ARBITRATION................................................................24
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EXHIBITS
Exhibit A Warranty Xxxx of Sale and Assignment
Exhibit B Patent Assignment
Exhibit C Termination Agreement
Exhibit D License Agreement
Exhibit E FIRTPA Certificate
Exhibit F Settlement Agreement and Mutual Release
Exhibit G Assumption Agreement
Exhibit H Cross-License Agreement
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ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT, dated as of this 2nd day of August,
1999, is entered into by and among Angeion Corporation, a corporation organized
and existing under the laws of the State of Minnesota ("Seller"),
Sanofi-Synthelabo, a societe anonyme organized and existing under the laws of
the Republic of France ("Parent"), and ELA Medical, a societe anonyme organized
and existing under the laws of the Republic of France and a subsidiary of Parent
("Purchaser").
W I T N E S S E T H :
WHEREAS, Seller has expertise in, and is engaged in the business of,
the design, development, manufacture, distribution and sale of certain cardiac
stimulation devices (the "Cardiac Stimulation Device Business");
WHEREAS, Seller is currently considering certain strategic
alternatives, including, but not limited to, refocusing its operations so that
it would no longer be engaged in the Cardiac Stimulation Device Business; and
WHEREAS, Purchaser desires to purchase from Seller, and Seller desires
to sell to Purchaser, on the terms and conditions set forth herein, subject to
the approval of the shareholders of Seller and the approval of the Senior Note
Holders (as hereinafter defined), all of Seller's right, title and interest in
and to certain defibrillator leads used in implantable cardioverter
defibrillators and all of Seller's right, title and interest in and to the
research and development of a flatpack, photoflash capacitor being developed for
use in an implantable medical device, as more fully described below.
NOW, THEREFORE, in consideration of the mutual promises contained
herein, and intending to be legally bound hereby, the parties hereby agree as
follows:
ARTICLE I
PURCHASE AND SALE OF ASSETS
1.1 PURCHASE AND SALE OF ASSETS. Upon the terms and subject to the
conditions herein set forth, Seller hereby agrees to sell, convey, transfer,
assign, grant and deliver to Purchaser at the Closing (as hereinafter defined),
and Purchaser hereby agrees to purchase from Seller at the Closing, all of
Seller's right, title and interest in and to all technology, intellectual
property, patents, patent applications, including continuations, and know-how,
including licenses, development agreements and supply agreements from third
parties, to the extent assignable, owned or used by Seller with respect to
Seller's model Series 4040, 4080 and 4090 Leads (the "Leads") and the research
and development of a flatpack, photoflash capacitor being developed for use in
an implantable medical device (the "Flat Capacitor") (collectively, the
"Assets"), free and clear of all Encumbrances (as hereinafter defined), other
than those Encumbrances arising under the Assumed Contracts (as hereinafter
defined), including, without limitation,
(i) all technical specifications for the Leads and Flat Capacitor;
(ii) all trade secrets, inventions, patent disclosures, protocols,
know-how, formulae, processes, procedures, records of
inventions, test information, drawings, diagrams, designs,
operating manuals and other proprietary information for the
Leads and Flat Capacitor;
(iii) all patents and patent applications for the Leads and Flat
Capacitor, including Patent No. 5649974 and Patent No.
5454839, subject only to existing non-exclusive licenses in
favor of St. Jude Medical Inc., Guidant CPI and Medtronic,
Inc. (to the extent that Medtronic's license is held to be
valid) (collectively, the "Assigned Patents");
(iv) all documentation and all copyrights in such documentation for
the Leads and Flat Capacitor;
(v) all permits, licenses, franchises, approvals and
authorizations issued by governmental or regulatory
authorities or bodies for the Leads and Flat Capacitor, to the
extent assignable by Seller;
(vi) all testing and validation results for the Leads and Flat
Capacitor, and all test fixtures that relate specifically to
the Leads and Flat Capacitor and are not generally used with
respect to other assets of Seller used in the Cardiac
Stimulation Device Business. Purchaser acknowledges that
Cardiac Control Systems, Inc. presently owns certain
manufacturing equipment and fixtures which may be useful in
production of the Leads, and that any such equipment and
fixtures owned by Cardiac Control Systems, Inc. are not
included in the definition of Leads for purposes of this
Agreement;
(vii) all samples on hand of the Leads and Flat Capacitor; and
(viii) all of Seller's right, title and interest in and to the supply
and development agreements listed in Schedule 1.1 hereto (the
"Assumed Contracts").
For the avoidance of doubt, the parties acknowledge and agree that the Assets do
not include (i) non-proprietary software, (ii) any rights to any work of Seller
in respect of middle cardiac vein leads (model Series 4300), single pass dual
chamber leads (model Series 4060), single pass RV/SVC leads (model Series 4050)
or atrial defibrillation leads (model Series 4200), (iii) finished inventory or
work-in-progress or (iv) the physical tools and other assets listed in the
Disclosure Schedule.
1.2 ASSUMED LIABILITIES. Purchaser shall assume, pay, perform in
accordance with their terms, or otherwise satisfy, as of the Closing Date (as
hereinafter defined):
(i) the liabilities and obligations of Seller in respect of the
Assumed Contracts, and
(ii) all liabilities, obligations or undertakings of any nature
whatsoever, whether accrued, absolute, fixed or contingent,
known or unknown, arising out of or relating to the Assets,
including, without limitation, (a) any action brought or claim
made by third parties, which relate to the periods following
the Closing Date, and (b) any and all claims which relate to
Leads or Flat Capacitors manufactured and sold by Purchaser
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after the Closing Date.
The liabilities assumed by Purchaser pursuant to this Section 1.2 are
sometimes referred to as the "Assumed Liabilities". Except as expressly provided
in this Section 1.2, Purchaser shall not assume any liabilities or obligations
of (or claimed through) Seller, whether relating to the Assets or otherwise, it
being expressly acknowledged and agreed by the parties that all such liabilities
and obligations, and any claims or disputes relating thereto, whether existing
as of the Closing Date or arising thereafter, fixed or contingent, known or
unknown, asserted or unasserted, are and shall remain the liabilities and
obligations of Seller for all purposes (the "Excluded Liabilities").
ARTICLE II
PURCHASE PRICE; CLOSING
2.1 PURCHASE PRICE. (a) Subject to the terms and conditions of this
Agreement, the purchase price payable for the purchase of the Assets (the
"Purchase Price") shall be an amount equal to the fair market value of the
Securities (as hereinafter defined). The Purchase Price shall be payable as
follows: on the Closing Date, as consideration for the purchase of the Assets,
Parent shall deliver to Seller, and Seller shall accept from Parent, all of the
shares of common stock, par value $.01 per share, of Seller ("Seller Common
Stock") owned by Parent, directly or indirectly, and all of the warrants to
purchase shares of Seller Common Stock owned by Parent, directly or indirectly,
in each case as of the Closing Date and as set forth on Schedule 2.1(a) hereto
(collectively, the "Securities").
(b) The parties shall mutually determine the allocation of the
value of the Purchase Price among the Assets.
2.2 TIME AND PLACE. The closing for the sale and purchase of the Assets
(the "Closing") shall take place at 10:00 a.m. at the offices of Faegre & Xxxxxx
LLP, 0000 Xxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000 on such date, or at such
other location, as the parties shall mutually agree in writing (the "Closing
Date").
2.3 DELIVERIES.
(a) Deliveries by Seller. Seller shall deliver to Purchaser at
the Closing the following:
(i) a Warranty Xxxx of Sale and Assignment in form
attached hereto as Exhibit A, together with such other bills of sale,
assignments and other instruments of transfer, in form reasonably
satisfactory to Purchaser and its counsel, as Purchaser and its counsel
shall deem reasonably necessary or appropriate to vest and confirm in
Purchaser good and marketable title to the Assets;
(ii) a Patent Assignment in the form attached hereto as
Exhibit B;
(iii) an executed counterpart of a Termination of
Implantable Cardioverter Defibrillator Product Manufacturing and Supply
Agreement (the "Termination Agreement"), pursuant to which Seller and
Purchaser agree to terminate certain supply
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arrangements between such parties with respect to the Cardiac
Stimulation Device Business, in the form attached hereto as Exhibit C;
(iv) an executed counterpart of a License Agreement (the
"License Agreement") with respect to the Licensed Patents (as that term
is defined in the License Agreement) in the form attached hereto as
Exhibit D;
(v) a copy, certified as of the Closing Date by the
Secretary of Seller, of (A) the resolutions of the Board of Directors
of Seller authorizing the execution, delivery and performance of this
Agreement by Seller and (B) the resolutions or other actions of the
shareholders of Seller approving the sale by Seller of the Assets to
Purchaser and the other actions contemplated hereunder, as required
under the Minnesota Business Corporation Act ("MBCA") and Seller's
Articles of Incorporation and By-Laws, as amended;
(vi) a certificate of Seller ("FIRPTA Certificate") in
the form attached hereto as Exhibit E certifying that Seller is not a
"foreign person" within the meaning of Section 1445 of the Internal
Revenue Code of 1986, as amended;
(vii) all third party consents to the sale of the Assets
hereunder as set forth in Schedule 2.3(a)(vii) hereto;
(viii) transfer of all items of tangible personal
property included among the Assets and all documents, computer files
and other mediums which contain or evidence the Intellectual Property
Rights (as hereinafter defined);
(ix) a certificate, dated the Closing Date and executed
by a proper officer of Seller, to the effect that (A) each of the
representations and warranties of Seller made herein is true and
correct in all material respects on the Closing Date as though such
representations and warranties were made on such date and (B) Seller
has performed and complied in all material respects with all covenants,
conditions and obligations under this Agreement which are required to
be performed or complied with by Seller on or prior to the Closing
Date;
(x) evidence satisfactory to Purchaser and its counsel as
to the release of all Encumbrances created with respect to the Assets;
(xi) a written opinion of counsel for Seller, dated the
Closing Date and addressed to Parent and Purchaser, in a form to be
mutually agreed to by the parties;
(xii) an executed counterpart of a Settlement Agreement
and Mutual Release in the form attached hereto as Exhibit F (the
"Settlement Agreement and Mutual Release");
(xiii) an executed counterpart of an Assumption Agreement
(the "Assumption Agreement") in the form attached hereto as Exhibit G;
and
(xiv) an acknowledgment of receipt of the items to be
delivered by Parent and Purchaser at the Closing.
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(b) Deliveries by Parent and Purchaser. Parent or Purchaser, as
applicable, shall deliver to Seller at the Closing the following:
(i) an executed counterpart of the Assumption Agreement;
(ii) an executed counterpart of the Termination
Agreement;
(iii) an executed counterpart of the License Agreement;
(iv) the Securities, duly endorsed in blank or with stock
powers duly endorsed in blank attached thereto;
(v) a certificate, dated as of the Closing Date and
executed by a proper officer of Purchaser, to the effect that (A) each
of the representations and warranties of Purchaser made herein is true
and correct in all material respects on the Closing Date as though such
representations and warranties were made on such date and (B) Purchaser
has performed and complied in all material respects with all covenants
and obligations under this Agreement which are to be performed or
complied with by Purchaser on or prior to the Closing Date;
(vi) a written opinion of counsel for Parent and
Purchaser, dated the Closing Date and addressed to Seller, in a form to
be mutually agreed to by the parties;
(vii) an executed counterpart of the Settlement Agreement
and Mutual Release; and
(viii) an acknowledgment of receipt of the items to be
delivered by Seller at the Closing.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby makes the representations and warranties set forth in
this Article III, each of which is true and correct as of the date hereof and
will be true and correct as of the Closing Date, except as set forth in the
Disclosure Schedule to be delivered by Seller to Purchaser on the date hereof
(the "Disclosure Schedule") (which Disclosure Schedule sets forth the exceptions
to the representations and warranties contained in this Article III):
3.1 ORGANIZATION AND GOOD STANDING. Seller is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Minnesota and has all requisite corporate power and authority to own, lease and
operate the properties and assets it now owns, leases or operates and to carry
on its business as presently conducted. Seller is qualified to do business and
is in good standing in each jurisdiction where the ownership, leasing or
operations of the Assets or the conduct of its business requires such
qualification, except where such failure to be so qualified and in good standing
would not have a material adverse effect on the business or financial condition
of Seller as presently conducted.
3.2 AUTHORITY; BINDING EFFECT; PERFORMANCE. Seller has all requisite
corporate power
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and authority to execute and deliver and, subject to the approval of its
shareholders and the approval of the Senior Note Holders, to perform its
obligations hereunder and to consummate the transactions contemplated hereby.
The execution, delivery and performance of this Agreement by Seller, and the
consummation of the transactions contemplated hereby, have been duly authorized
by the Board of Directors of Seller. With the exception of shareholder approval
and the approval of the Senior Note Holders, which approvals shall be obtained
by the Closing Date, no other corporate action on the part of Seller is
necessary to authorize the execution, delivery or performance of this Agreement
by Seller or the consummation of the transactions contemplated hereby. This
Agreement has been duly executed and delivered on behalf of Seller and
constitutes the legal, valid and binding obligation of Seller, enforceable
against Seller in accordance with its terms, except that the enforceability of
this Agreement is subject to bankruptcy, insolvency, reorganization and similar
laws of general applicability relating to or affecting creditors' rights and
limitations on the availability of the remedy of specific performance and other
equitable relief.
3.3 CONSENTS AND APPROVALS; NO VIOLATIONS. The execution, delivery and
performance of this Agreement by Seller, and the consummation of the
transactions contemplated hereby, will not (i) violate or conflict with any
provision of the Articles of Incorporation or By-Laws of Seller; (ii) except
with respect to the Indenture dated as of April 14, 1998 (the "Indenture")
between Seller and U.S. Bank, national association, with respect to the 7 1/2%
Senior Convertible Notes due 2003 of Seller, violate or conflict with, result in
the breach of, constitute an event of default (or an event which, with the lapse
of time or the giving of notice or both, would constitute an event of default)
under, or result in the creation in any party of any right to accelerate,
modify, cancel or terminate, any contract or other instrument to which Seller is
a party, or by which Seller or any of the Assets is bound, or result in the
creation of any Encumbrance or other right of any third party upon any of the
Assets; (iii) violate or conflict with any law, rule, regulation, ordinance,
code, judgment, order, writ, injunction or decree of any court or any
governmental body or agency thereof of any jurisdiction to which Seller or any
of the Assets may be subject; or (iv) require any registration, declaration or
filing with, or permit, license, exemption, order, franchise, approval, consent
or other authorization of, or the giving of notice to, any governmental or
regulatory body, agency or authority.
3.4 ABSENCE OF UNDISCLOSED LIABILITIES. Except as set forth in the
Disclosure Schedule, there are no material liabilities or obligations relating
to the Assets, whether known or unknown, fixed or contingent.
3.5 NO CLAIMS OR LITIGATION. There are no suits, actions, claims,
proceedings (including, without limitation, arbitral and administrative
proceedings) or investigations pending or, to the knowledge of Seller,
threatened against Seller (or any of its directors, officers, employees,
stockholders or agents) relating to or affecting, directly or indirectly, the
Assets. There are no such suits, actions, claims, proceedings or investigations
pending or, to the knowledge of Seller, threatened against Seller or challenging
the validity or propriety of this Agreement or the transactions contemplated
hereby. There is no judgment, order, injunction, decree or award issued by any
court, arbitrator, governmental body or agency thereof of competent jurisdiction
to which Seller is a party or by which any of the Assets, including the
Intellectual Property Rights, are bound, which is unsatisfied or which requires
continuing compliance therewith by Seller, other than an arbitration concerning
a potential non-exclusive license to the Assigned Patents by Medtronic to which
Seller was not a party and disputes the outcome thereof or being bound thereby.
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3.6 TITLE TO ASSETS AND RELATED MATTERS. (a) Seller has good and
marketable title to the Assets, free and clear of any and all mortgages,
pledges, security interests, liens, charges, equities, claims, conditional sales
contracts, licenses, restrictions, reservations, options, rights and other
encumbrances of any nature whatsoever (collectively, "Encumbrances"), other than
those Encumbrances arising under the Assumed Contracts. On the Closing Date,
Seller shall convey to Purchaser, and Purchaser shall acquire from Seller, good
and marketable title to the Assets, free and clear of any Encumbrances, other
than those Encumbrances arising under the Assumed Contracts. There is no
agreement, arrangement or understanding with any person to which Seller is a
party, or any judgment, order, writ, injunction or decree of any court or
governmental body or agency thereof of any jurisdiction that is binding on
Seller, that would prevent the use by Purchaser of the Assets from and after the
Closing Date.
(b) The Assets include all of the Intellectual Property Rights
(as hereinafter defined). Seller has not assigned or conveyed any Intellectual
Property to any third party, other than as set forth in the Disclosure Schedule.
3.7 INTELLECTUAL PROPERTY. The Disclosure Schedule sets forth a
complete and correct list of all worldwide patents, patent applications,
copyrights, whether or not registered, trademarks and service marks, trademark
and service xxxx registrations (and applications therefor), trade names,
business names, brand names and logos, devices, insignias, formats, titles and
subtitles and all registrations issued and all applications pending with respect
to the foregoing, all technical specifications, know-how, trade secrets,
inventions, patent disclosures, protocols, formulae, processes, procedures,
records of inventions, test information, testing and validation results, test
fixtures (other than generic test fixtures), drawings, diagrams, designs,
operating manuals and other proprietary information currently owned or used by
Seller in connection with the Leads and the Flat Capacitor, excluding
non-proprietary software (collectively, the "Intellectual Property Rights"), all
of which are valid and subsisting and are included in the Assets. Except as set
forth on the Disclosure Schedule, Seller is the sole, rightful and exclusive
owner of, and has good and marketable title to, all of the Intellectual Property
Rights and the goodwill associated therewith, free and clear of all
Encumbrances. All patents, applications and registrations described in the
Disclosure Schedule are valid and in full force and effect, and no filings or
other action is required for at least 10 days after the Closing Date to maintain
the patents, registrations or applications described in the Disclosure Schedule
in full force and effect. Except as set forth on the Disclosure Schedule, there
are no licenses, agreements or commitments outstanding or effective granting any
other person any right to make, use, sell, import, operate under, license or
sublicense, or otherwise concerning, the Intellectual Property Rights. The
Intellectual Property Rights do not infringe, or otherwise conflict with, any
proprietary or other rights of any other person. Seller has no knowledge that
any of the Intellectual Property Rights infringe upon or conflict with the
rights of any other person and has not received any notice or claim of such
infringement or conflict, including from the U.S. Patent and Trademark Office.
To the knowledge of Seller, there is no infringement or violation by any other
person of Seller's rights in any of the Intellectual Property Rights. The
consummation of the transactions contemplated hereby will not result in any
modification of or create any right of termination, cancellation or abandonment
with respect to the Intellectual Property Rights. Seller has paid in full (or
otherwise to the satisfaction of the invoicing party) all invoiced fees and
expenses of domestic and foreign counsel for work done and disbursements
incurred on behalf of Seller relating to the Intellectual Property Rights
through and including the Closing Date.
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3.8 CONTRACTS. Except for the Assumed Contracts, there are no written
or oral contracts, arrangements and understandings relating to the Assets,
except those license agreements currently in effect which grant to any person
any rights with respect to any of the Intellectual Property Rights as set forth
in the Disclosure Schedule and standard employment, patent assignment, work for
hire, confidentiality agreements and consulting agreements between Seller and
employees or consultants of Seller, pursuant to which such employees and
consultants have assigned to Seller any rights that they have with respect to
the Intellectual Property Rights. Seller has previously delivered or made
available to Purchaser complete and correct copies (or, in the case of oral
contracts, a complete and correct description) of each Assumed Contract. Except
as set forth in the Disclosure Schedule, (i) each Assumed Contract is in full
force and effect; (ii) neither Seller nor (to the knowledge of Seller) any other
party is in default under any such contract, and no event has occurred which
constitutes, or with the lapse of time or the giving of notice or both would
constitute, a default by Seller or (to the knowledge of Seller) a default by any
other party under such contract; (iii) to the knowledge of Seller, there are no
disputes or disagreements between Seller and any other party with respect to any
such contract; (iv) Seller is not currently renegotiating any of such contracts,
nor is Seller paying liquidated damages in lieu of performing any of such
contracts; and (v) there are no amounts due and payable by Seller under any of
the Assumed Contracts and no amounts will be owing under any of the Assumed
Contracts in the future except with respect to products delivered or services
rendered after the Closing Date or as otherwise disclosed on the Disclosure
Schedule.
3.9 PERMITS. The Disclosure Schedule sets forth a complete and correct
list of all permits, licenses, franchises, approvals and authorizations issued
by governmental or regulatory authorities for the Leads and Flat Capacitor.
Except with respect to the 4090 Series leads, Seller is in compliance with all
such permits, licenses, franchises, approvals and authorizations, except where
the failure to be so in compliance would not have a material adverse effect on
the Assets or the use thereo, and has not received notification by any
governmental or regulatory authority of any violation by Seller of any such
permits, licenses, franchises, approvals and authorizations.
3.10 COMPLIANCE WITH APPLICABLE LAW. Seller is not in violation of any
applicable foreign or domestic laws, rules, regulations, ordinances, codes,
judgments, orders, injunctions, writs or decrees of any Federal, state, local or
foreign court or governmental body or agency thereof to which it may be subject
which are applicable to or which could materially adversely affect any of the
Assets. No claims have been filed against Seller, and Seller has not received
any notice alleging, any such violation, nor, to the knowledge of Seller, is
there any inquiry, investigation or proceedings relating thereto.
3.11 BROKERS AND FINDERS. Except for Xxxxxxx Xxxxx & Associates, no
broker, finder or investment banker has been retained by Seller or is entitled
to any brokerage, finder's or other fee or commission in connection with the
transactions contemplated by this Agreement. Seller agrees to pay Xxxxxxx Xxxxx
& Associates, and indemnify and hold each of Parent and Purchaser harmless in
respect of, all fees, commissions or other amounts payable to Xxxxxxx Xxxxx &
Associates.
3.12 ABSENCE OF OTHER AGREEMENT FOR SALE OF ASSETS. There are no
agreements, arrangements or understandings to which Seller is a party or by
which any of the Assets are bound providing for or involving the purchase, sale
or other disposition of the Assets, whether through a sale of assets or
otherwise, other than this Agreement.
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3.13 PROXY STATEMENT. The Proxy Statement (as hereinafter defined) will
comply in all material respects with the applicable requirements of the
Securities Exchange Act of 1934, as amended, except that no representation or
warranty is being made by Seller with respect to any information supplied to
Seller by Purchaser or any of its affiliates specifically for inclusion in the
Proxy Statement. The Proxy Statement will not, at the time the Proxy Statement
is filed with the Securities and Exchange Commission (the "SEC") or first sent
to shareholders of Seller or at the time of the Special Meeting (as hereinafter
defined) contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading or necessary to correct any statement in any earlier
communication with respect to the solicitation of proxies for the meeting of
Seller's shareholders held for approval of the transactions contemplated by this
Agreement which has become false or misleading.
3.14 DISCLOSURE. No representation and warranty of Seller contained in
this Agreement (including, without limitation, the Disclosure Schedule hereto),
nor any other statement, schedule, certificate or other document delivered or to
be delivered by Seller to Purchaser pursuant hereto or in connection with the
transactions contemplated by this Agreement, contains or will contain any untrue
statement of a material fact or omits or will omit to state a material fact
necessary in order to make the statements made herein or therein, in the light
of the circumstances in which they were made, not misleading. All information
required to be disclosed by Seller under this Agreement and all other material
information concerning the Assets have been disclosed by Seller in this
Agreement, the Disclosure Schedule hereto or any other statement, schedule,
certificate or other document delivered to Purchaser by Seller under this
Agreement.
3.15 RELIANCE. The foregoing representations and warranties are made by
Seller with the knowledge and expectation that Purchaser is placing complete
reliance thereon in entering into, and performing its obligations under, this
Agreement, and the same shall not be affected in any respect whatsoever by any
investigation heretofore conducted by or on behalf of either of them whether in
contemplation of this Agreement or otherwise.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PARENT AND PURCHASER
Parent and Purchaser, jointly and severally, make the representations
and warranties set forth in this Article IV, each of which is true and correct
as of the date hereof and will be true and correct as of the Closing Date:
4.1 ORGANIZATION AND GOOD STANDING. Each of Parent and Purchaser is a
societe anonyme duly organized, validly existing and in good standing under the
laws of the Republic of France and has all requisite corporate power and
authority to own, lease and operate the properties and assets it now owns,
leases or operates and to carry on its business as presently conducted.
4.2 AUTHORITY; BINDING EFFECT; PERFORMANCE. Each of Parent and
Purchaser has all requisite corporate power and authority to execute, deliver
and perform its obligations under this Agreement. The execution, delivery and
performance of this Agreement by Parent and Purchaser has been duly authorized
by all necessary corporate action on the part of Parent and Purchaser. This
Agreement has been duly executed and delivered on behalf of Parent and Purchaser
and constitutes
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the legal, valid and binding obligation of each of them, enforceable against
each of them in accordance with its terms, except that the enforceability of
this Agreement is subject to bankruptcy, insolvency, reorganization and similar
laws of general applicability relating to or affecting creditors' rights and
limitations on the availability of the remedy of specific performance and other
equitable relief.
4.3 CONSENTS AND APPROVALS; NO VIOLATIONS. The execution and delivery
of this Agreement by Parent and Purchaser, and the consummation of the
transactions contemplated hereby, will not (i) violate or conflict with any
provision of the organizational documents of either Parent or Purchaser; (ii)
violate or conflict with, result in the breach of or constitute a default (or an
event which, with the lapse of time or the giving of notice or both, will
constitute a default) under, any contract or other instrument to which either
Parent or Purchaser is a party or by which either Parent or Purchaser or any of
their assets are bound, except for any such violation, conflict, breach, event
of default, acceleration, modification, cancellation or termination which,
individually or in the aggregate, would not have a material adverse effect on
the business, financial condition or results of operations of either Parent or
Purchaser; (iii) violate or conflict with any law, rule, regulation, judgment,
order, writ, injunction or decree of any court or any governmental body or
agency thereof of any jurisdiction to which either Parent or Purchaser is
subject; or (iv) require any filing with, or license, permit, order, franchise,
approval, consent or other authorization of, any governmental body or agency
thereof.
4.4 BROKERS AND FINDERS. No broker, finder or investment banker has
been retained by Purchaser or is entitled to any brokerage, finder's or other
fee or commission in connection with the transactions contemplated by this
Agreement.
ARTICLE V
COVENANTS
5.1 CONDUCT PENDING CLOSING. Seller hereby makes the following
covenants and agreements with Purchaser:
(a) AFFIRMATIVE COVENANTS. Between the date hereof and the
Closing Date, unless otherwise consented to in writing by Purchaser, Seller
shall:
(i) use its best efforts to preserve the Assets;
(ii) remain in material compliance with all permits,
laws, rules and regulations, consent orders, and all other orders of
applicable courts, regulatory agencies and similar governmental
authorities applicable to the Assets and the Licensed Patents;
(iii) promptly advise Purchaser in writing of the
commencement or, if known to Seller, threat of any suit, proceeding or
investigation which could have a material adverse effect on the Assets
and the Licensed Patents, whether or not covered by insurance;
(iv) promptly advise Purchaser in writing of the
existence or occurrence of (i) any condition or event which could have
a material adverse effect on the Assets and the Licensed Patents and
(ii) any event, condition or state of facts which will or is
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reasonably likely to result in the failure to satisfy any of the
conditions specified in Article VI hereof; and
(v) maintain the policies of insurance on the Assets in
effect as of the date hereof in full force and effect without reduction
in coverage.
(b) NEGATIVE COVENANTS. Between the date hereof and the Closing
Date, unless otherwise consented to in writing by Purchaser, Seller shall not:
(i) make any change in the Articles of Incorporation or
By-Laws, or other constituent documents, of Seller;
(ii) enter into any contract or commitment, or series of
related contracts or commitments, in respect of the Assets, except with
the prior written consent of Purchaser;
(iii) subject to Section 5.1(b)(vii) hereof, create or
permit to become effective any Encumbrances on the Assets and the
Licensed Patents;
(iv) sell, assign, lease or otherwise transfer or dispose
of any of the Assets, abandon any of the Licensed Patents, grant any
exclusive license with respect to or, subject to Section 5.1(b)(vii)
hereof, sell, assign, or otherwise transfer or dispose of any of the
Licensed Patents;
(v) commit a material breach of or amend any agreement,
permit, license or other right of Seller in respect of the Assets;
(vi) enter into any other transaction in respect of the
Assets outside the ordinary course of business or prohibited hereunder;
or
(vii) enter into any agreement or commitment to do any of
the foregoing, provided, however, that Seller shall not be prohibited
from (1) entering into an agreement or agreements for the sale of all
or substantially all of the Licensed Patents, so long as the purchaser
acknowledges that such sale will be subject to the rights of Purchaser
and its affiliates under the License Agreement or the Cross-License
Agreement referred to in Section 8.2 hereof, as the case may be, (2)
entering into a security agreement in which all or substantially all of
the Licensed Patents are used as collateral, so long as the lender
acknowledges that such security interest will be subject to the rights
of Purchaser and its affiliates under the License Agreement or the
Cross-License Agreement referred to in Section 8.2 hereof, as the case
may be or (3) entering into a non-exclusive license with respect to any
of the Licensed Patents.
5.2 PROXY STATEMENT.
(a) Subject to Section 5.2(b) hereof, Seller, acting through its
Board of Directors, shall:
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(i) duly call, give notice of, convene and hold a special
meeting of its shareholders (the "Special Meeting") as soon as
practicable following the date hereof for the purpose of considering
and taking action upon this Agreement;
(ii) prepare and file with the SEC a preliminary proxy
relating to this Agreement no later than August 20, 1999 and obtain and
furnish the information required to be included by the SEC in the Proxy
Statement and, after consultation with Purchaser, use its best efforts
to respond promptly to any comments made by the SEC with respect to the
preliminary proxy and cause a definitive proxy (as amended or
supplemented, the "Proxy Statement") to be mailed to its shareholders;
(iii) include in the Proxy Statement the written opinion
of Seller's financial advisor that the consideration to be received by
Seller hereby is fair from a financial point of view; and
(iv) use its reasonable best efforts to obtain the
approval of this Agreement and the transactions contemplated hereby by
(A) the holders of the requisite number of issued and outstanding
shares of capital stock of Seller, and (B) the holders (the "Senior
Note Holders") of a majority of the issued and outstanding 7 1/2%
Senior Convertible Notes of Seller due April 14, 2004 (the "Senior
Notes").
(b) The Board of Directors of Seller shall recommend approval
and adoption of this Agreement and the transactions contemplated hereby by
Seller's shareholders and the Senior Note Holders. The Board of Directors of
Seller shall not be permitted to withdraw, amend or modify in a manner adverse
to Purchaser such recommendation (or announce publicly its intention to do so),
except that prior to the Special Meeting, the Board of Directors of Seller shall
be permitted to withdraw, amend or modify its recommendation (or announce
publicly its intention to do so) but only if the Board of Directors of Seller
shall have determined in its good faith judgment, based upon the advice of
outside counsel, that it is obligated by its fiduciary obligations under
applicable law to withdraw, amend or modify such recommendation. If the Special
Meeting is being held, the recommendation of the Board of Directors of Seller
shall be included in the Proxy Statement. Nothing contained in this Section
5.2(b) shall prohibit Seller from making any disclosure to Seller's shareholders
or the Senior Note Holders if, in the good faith judgment of the Board of
Directors of Seller, upon the advice of counsel, failure to make such disclosure
would be inconsistent with applicable laws.
(c) Each of Parent and Purchaser agrees that it will provide
Seller with the information concerning it required to be included in the Proxy
Statement and will vote, or cause to be voted, all of the shares of Seller
Common Stock then owned by it, directly or indirectly, or over which it has the
power to vote, in favor of approval of this Agreement and the transactions
contemplated hereby. Parent and Purchaser shall have the right to review in
advance all characterizations and information related to them, this Agreement
and the transactions contemplated hereby which appear in the Proxy Statement.
(d) Each of Parent, Purchaser and Seller agrees promptly to
correct any information provided by it for use in the Proxy Statement as and to
the extent it shall have become false or misleading in any material respect and
to supplement the information provided by it
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specifically for use in the Proxy Statement to include any information that
shall have become necessary, in order to make statements contained therein, in
light of the circumstances in which they were made, not misleading, and Seller
further agrees to take all steps necessary to cause the Proxy Statement, as so
corrected or supplemented, to be filed with the SEC and to be disseminated to
its shareholders and the Senior Note Holders, in each case as and to the extent
required by applicable federal securities laws.
5.3 ACCESS TO INFORMATION. From the date hereof until the Closing Date,
Seller and its representatives shall cooperate fully in all reasonable respects
with Purchaser in its investigation of the Assets. Without limiting the
foregoing, such persons shall allow the employees, attorneys, accountants and
other representatives of Purchaser to meet with the management of Seller and its
representatives at reasonable times, to have free and full access at reasonable
times to the premises, properties, books and records (including the right to
make extracts therefrom or copies thereof) of Seller in respect of the Assets,
and shall furnish to Purchaser or its authorized representatives such additional
information pertaining to the Assets as, in the reasonable discretion of
Purchaser, are required for Purchaser to conduct such investigation.
5.4 NOTICE AND CURE. Seller will notify Purchaser of, and will use all
commercially reasonable efforts to cure before the Closing, any event,
transaction or circumstance, as soon as practicable after it becomes known to
Seller, that causes or will cause any covenant or agreement of Seller under this
Agreement to be breached or that renders or will render untrue any
representation or warranty of Seller contained in this Agreement. Seller shall
also notify Purchaser in writing of, and will use all commercially reasonable
efforts to cure, before the Closing, any violation or breach, as soon as
practicable after it becomes known to Seller, of any representation, warranty,
covenant or agreement made by Seller in this Agreement. No notice given pursuant
to this Section 5.4 shall have any effect on the representations, warranties,
covenants or agreements contained in this Agreement for purposes of determining
satisfaction of any condition contained herein.
5.5 BEST EFFORTS. Subject to the terms and conditions of this
Agreement, each of the parties agrees that it shall use its commercially
reasonable best efforts to take, or cause to be taken, all actions, and to do,
or cause to be done, all things necessary, proper or advisable under applicable
laws and regulations to consummate and make effective the transactions
contemplated by this Agreement, including, but not limited to, (i) obtaining all
consents from governmental authorities and other third parties required for the
consummation of the transactions contemplated hereby, (ii) timely making all
necessary filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended (the "HSR Act"), if any, and (iii) having vacated, dismissed or
withdrawn any order, stay, decree, judgment or injunction of any governmental
authority which temporarily, preliminarily or permanently prohibits or prevents
the transactions contemplated by this Agreement; provided, however, that Parent,
Purchaser and Seller hereby agree that commercially reasonable best efforts
shall not include making any payment to, or otherwise satisfying any claims of,
the Senior Note Holders in order to obtain their approval of the consummation of
the transactions contemplated by this Agreement. Upon the terms and subject to
the conditions hereof, each of the parties agrees to use its commercially
reasonable best efforts to take, or cause to be taken, all actions and to do, or
cause to be done, all things necessary to satisfy the other conditions of the
Closing set forth herein.
ARTICLE VI
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CONDITIONS TO THE OBLIGATIONS OF PARENT AND PURCHASER
The obligations of Parent and Purchaser to consummate the transactions
contemplated hereunder shall be subject to the satisfaction of each of the
following conditions at or prior to the Closing, unless waived by Parent and
Purchaser in writing:
6.1 REPRESENTATIONS AND WARRANTIES TRUE. All of the representations and
warranties of Seller contained in this Agreement (including, without limitation,
the Schedules hereto) shall be true and correct in all material respects on the
Closing Date as though such representations and warranties were made on such
date and Seller shall have delivered the certificate to that effect which is
described in Section 2.3(a)(ix) above.
6.2 PERFORMANCE. Seller shall have performed and complied in all
material respects with all covenants and obligations under this Agreement which
are required to be performed or complied with by Seller on or prior to the
Closing Date and Seller shall have delivered the certificate to that effect
which is described in Section 2.3(a)(ix) above.
6.3 APPROVALS, PERMITS, CONSENTS. All material consents,
authorizations, approvals, exemptions, licenses or permits of, or material
registrations, qualifications, declarations or filings with, any governmental
body or agency thereof that are required in connection with the sale and
transfer of the Assets to Purchaser pursuant to this Agreement and the
consummation of the transactions contemplated hereby shall have been duly
obtained or made in form and substance reasonably satisfactory to Purchaser and
its counsel and shall be effective at and as of the Closing Date and, if
applicable, the specified waiting periods under the HSR Act shall have expired
without the receipt of any objections from the appropriate governmental agency.
Seller shall have delivered to Purchaser duly executed written consents of third
parties to the sale of Assets to Purchaser required pursuant to any agreement to
which Seller is a party or by which it is bound.
6.4 SHAREHOLDER AND SENIOR NOTE HOLDER APPROVAL. This Agreement and the
transactions contemplated hereby shall have been duly approved by the
shareholders of Seller in accordance with the MBCA and the Articles of
Incorporation and By-Laws of Seller and by the Senior Note Holders in accordance
with the Indenture.
6.5 DELIVERY OF CLOSING DOCUMENTS. Seller shall have delivered to
Purchaser the documents referred to in Section 2.3(a) hereof, in form and
substance reasonably satisfactory to Purchaser and its counsel.
6.6 ABSENCE OF CERTAIN EVENTS. No statute, rule or regulation shall
have been enacted or promulgated which would make any of the transactions
contemplated by this Agreement illegal or would otherwise prevent the
consummation thereof. No order, decree, writ or injunction shall have been
issued and shall remain in effect by any court or governmental body or agency
thereof which restrains, enjoins or otherwise prohibits the consummation of the
transactions contemplated hereby, and no action, suit or proceeding before any
court or governmental body or agency thereof shall be pending or, to the
knowledge of Seller, threatened by any person (or instituted or threatened by
any governmental body or agency thereof), and no investigation by any
governmental body or agency thereof shall be pending or, to the knowledge of
Seller, threatened with respect to the transactions contemplated hereby.
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ARTICLE VII
CONDITIONS TO THE OBLIGATIONS OF SELLER
The obligations of Seller to consummate the transactions contemplated
hereunder shall be subject to the satisfaction of each of the following
conditions on or prior to the Closing, unless waived by Seller in writing:
7.1 REPRESENTATIONS AND WARRANTIES TRUE. All of the representations and
warranties of Parent and Purchaser contained in this Agreement (including,
without limitation, the Schedules hereto) shall be true and correct in all
material respects on the Closing Date as though such representations and
warranties were made on such date and Purchaser shall have delivered the
certificates to that effect which are described in Section 2.3(b)(v) above.
7.2 PERFORMANCE. Parent and Purchaser shall have performed and complied
in all material respects with all covenants and obligations under this Agreement
which are required to be performed or complied with by them on or prior to the
Closing Date and Purchaser shall have delivered the certificates to that effect
which are described in Section 2.3(b)(v) above.
7.3 APPROVALS, PERMITS, CONSENTS. All material consents,
authorizations, approvals, exemptions, licenses or permits of, or material
registrations, qualifications, declarations or filings with, any governmental
body or agency thereof that are required in connection with the sale and
transfer of the Assets to Purchaser pursuant to this Agreement and the
consummation of the transactions contemplated hereby shall have been duly
obtained or made in form and substance reasonably satisfactory to Seller and its
counsel and shall be effective at and as of the Closing Date and, if applicable,
the specified waiting periods under the HSR Act shall have expired without the
receipt of any objections from the appropriate governmental agency.
7.4 SHAREHOLDER AND SENIOR NOTE HOLDER APPROVAL. This Agreement and the
transactions contemplated hereby shall have been duly approved by the
shareholders of Seller in accordance with the MBCA and the Articles of
Incorporation and By-Laws of Seller and by the Senior Note Holders in accordance
with the Indenture.
7.5 DELIVERY OF CLOSING DOCUMENTS. Seller shall have received the
documents referred to in Section 2.3(b) hereof in form and substance reasonably
satisfactory to Seller and its counsel.
7.6 ABSENCE OF CERTAIN EVENTS. No statute, rule or regulation shall
have been enacted or promulgated which would make any of the transactions
contemplated by this Agreement illegal or would otherwise prevent the
consummation thereof. No order, decree, writ or injunction shall have been
issued and shall remain in effect, by any court or governmental body or agency
thereof which restrains, enjoins or otherwise prohibits the consummation of the
transactions contemplated hereby, and no action, suit or proceeding before any
court or governmental body or agency thereof shall be pending or, to the
knowledge of Seller, threatened by any person (or instituted or threatened by
any governmental body or agency thereof), and no investigation by any
governmental body or agency thereof shall be pending or, to the knowledge of
Seller, threatened with respect to the transactions contemplated hereby.
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ARTICLE VIII
TERMINATION
8.1 TERMINATION. This Agreement may be terminated at any time prior to
the Closing Date:
(a) by the mutual written consent of Parent, Purchaser and
Seller;
(b) by any of Parent, Purchaser or Seller:
(i) if any statute, rule or regulation has been enacted
which would make any of the transactions contemplated by this Agreement
illegal or would otherwise prevent the consummation thereof or if any
court or governmental body or agency thereof shall have issued any writ
or injunction, or taken any other action, restraining, enjoining or
otherwise prohibiting the transactions contemplated hereby and all
appeals and means of appeal therefrom have been exhausted;
(ii) if the Closing shall not have occurred on or prior
to December 31, 1999; provided, however, that the right to terminate
this Agreement pursuant to this Section 8.1(b)(ii) shall not be
available to any party whose breach of any representation or warranty
or failure to perform or comply with any covenant or obligation under
this Agreement has been the cause of, or resulted in, the failure of
the Closing to occur on or before such date;
(c) by Parent or Purchaser, if this Agreement and the
transactions contemplated hereunder shall not have been duly approved by the
shareholders of Seller at the Special Meeting or by the Senior Note Holders at
the time of the Special Meeting;
(d) by Parent or Purchaser, if any of the conditions specified
in Article VI shall not have been met or waived prior to such time as such
condition can no longer be satisfied;
(e) by Seller, if the Board of Directors of Seller determines in
good faith, based upon the advice of outside counsel, that it is obligated by
its fiduciary obligations under applicable law to terminate this Agreement; or
(f) by Seller, if any of the conditions specified in Article VII
shall not have been met or waived prior to such time as such condition can no
longer be satisfied.
8.2 EFFECT OF TERMINATION. In the event of termination of this
Agreement by any party as provided in Section 8.1 hereof, this Agreement shall
forthwith become null and void and there shall be no liability or obligation on
the part of any party hereto or their respective officers or directors, except
for the provisions of Article XI, which shall remain in full force and effect,
and except that nothing herein shall relieve any party hereto from liability for
a breach of this Agreement prior to the termination hereof. Notwithstanding the
foregoing, in the event that this Agreement is terminated by Parent or Purchaser
pursuant to Section 8.1(c) or (d) or by Seller pursuant to Section 8.1 (e) or
(f), Seller and Purchaser hereby agree to forthwith enter into a Cross-License
Agreement in the form attached hereto as Exhibit H.
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ARTICLE IX
POST-CLOSING COVENANTS
9.1 ACCESS AFTER CLOSING. (a) Each of Purchaser and Seller agree to
retain all accounting, business, financial and tax records in its possession
relating to the Assets for a period of three years from the Closing Date,
provided that, after such date, each party shall make reasonable arrangements
for the other party's continued access to any such records which it does not
otherwise destroy under its normal document retention policies. Prior to any
liquidation, Seller shall take all steps reasonably necessary to provide
Purchaser with continued access to such records following such liquidation. In
addition, from and after the Closing Date, Purchaser and Seller agree that,
subject to receiving appropriate assurances of confidentiality and restrictions
on use, each will not unreasonably withhold access by the other party and its
attorneys, accountants and other representatives (after reasonable notice and at
times to be mutually agreed, provided that such access does not disrupt the
normal operations of the other party), to such personnel, books, records and
documents relating to the Assets as the other party may reasonably deem
necessary to properly prepare for, file, prove, answer, prosecute and/or defend
any financial statements, tax return, filing, audit, judicial or administrative
proceeding, protest, claim, suit, inquiry or other proceeding relating to the
Assets.
(b) The party requesting assistance hereunder shall pay to the
party whose assistance is requested the reasonable costs of the party providing
such assistance.
9.2 FURTHER ASSURANCES. Seller shall, at any time and from time to time
after the Closing, upon the request and at the expense of Purchaser but without
further consideration, do, execute, acknowledge, deliver and file, or shall
cause to be done, executed, acknowledged, delivered and filed, all such further
acts, deeds, transfers, conveyances, assignments or assurances as may be
reasonably requested by Purchaser to transfer, convey and assign the Assets to
Purchaser's possession and use and to comply with all applicable legal
requirements, including, without limitation, making any required governmental
filings, in connection with the purchase of the Assets by Purchaser. Without
limiting the foregoing, upon the request and at the expense of Purchaser, at any
time during the period commencing on the Closing Date and ending on the third
anniversary of the Closing Date, Seller shall take all steps necessary to assign
all licenses, permits, exemptions, consents, authorizations or approvals in
respect of the Assets to Purchaser in cases where such assignment is permitted
and to reasonably cooperate with and assist Purchaser in connection with the
issuance of new licenses, permits, exemptions, consents, authorizations and
approvals in cases where such assignment is not permitted.
9.3 SUPPLY AGREEMENTS. In the event that Purchaser or any of its
affiliates enters into a supply agreement for the Flat Capacitor with Xxxxxx
Microfarads, Inc., Seller shall have the right to purchase Flat Capacitors from
Purchaser for use in the Model 2030 ICD on a cost plus basis.
ARTICLE X
INDEMNIFICATION; SURVIVAL OF REPRESENTATIONS AND WARRANTIES
10.1 INDEMNITY OBLIGATIONS OF SELLER. (a) Seller hereby agrees to
indemnify and hold Purchaser and each of its stockholders, officers, directors,
affiliates, employees and agents (each, a "Purchaser Indemnitee") harmless from,
and to reimburse any Purchaser Indemnitee for, on an
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after-tax basis, any Purchaser Indemnity Claims (as hereinafter defined) arising
under this Agreement. For purposes of this Agreement, the term "Purchaser
Indemnity Claim" shall mean any loss, damage, deficiency, diminution in value,
claim, liability, obligation, suit, proceeding, action, demand, fee, cost, fine,
levy, penalty, surcharge or expense of any nature whatsoever including, without
limitation, reasonable out-of-pocket expenses, reasonable investigation costs
and reasonable fees and disbursements of counsel (collectively, "Damages")
suffered or incurred by a Purchaser Indemnitee (subject to Section 10.4) arising
out of, based upon or resulting from (i) the Excluded Liabilities or Seller's
failure to pay and discharge in full, or to cause to be paid and discharged in
full, all Excluded Liabilities in a full and timely manner from and after the
Closing Date; (ii) any breach of any representation and warranty of Seller which
is contained in this Agreement or any Schedule hereto or (iii) any breach or
nonfulfillment of, or any failure to perform, any of the covenants, agreements
or undertakings of Seller contained in or made pursuant to this Agreement.
(b) The indemnification obligations of Seller under this Article
X shall apply with respect to, without limitation, Damages arising out of any
and all actions, claims, suits, proceedings, demands, assessments, judgments,
recoveries, damages, costs and expenses or deficiencies incident to the disposal
of any Purchaser Indemnity Claim under this Section 10.1, together with any
interest, penalties, costs and expenses of any Purchaser Indemnitee (including,
without limitation, reasonable out-of-pocket expenses, reasonable investigation
expenses and reasonable fees and disbursements of accountants and counsel)
arising out of or related to any such Purchaser Indemnity Claims.
(c) Seller shall be liable to a Purchaser Indemnitee for any
Damages (i) only if the aggregate amount of all Damages exceeds $100,000 (the
"Basket Amount"), in which case Seller shall be obligated to indemnify the
Purchaser Indemnitee for the aggregate amount of all such Damages including the
Basket Amount, and (ii) in an amount not to exceed the Purchase Price (the "Cap
Amount"); provided, however, that the foregoing restriction shall not apply to
any claim based on (a) the untruth or inaccuracy of any representation or
warranty of Seller contained in Sections 3.1, 3.2 and 3.5 hereof, or (b) the
untruth or inaccuracy of any other representation or warranty made herein or in
any statement, certificate or schedule furnished hereunder with an intent to
deceive or defraud or with reckless disregard for the truth or accuracy thereof.
10.2 INDEMNITY OBLIGATIONS OF PARENT AND PURCHASER. (a) Parent and
Purchaser jointly and severally agree to indemnify and hold Seller and each of
its stockholders, officers, directors, affiliates, employees and agents (each, a
"Seller Indemnitee") harmless from, and to reimburse any Seller Indemnitee for,
on an after-tax basis, any Seller Indemnity Claims (as hereinafter defined)
arising under this Agreement. For purposes of this Agreement, the term "Seller
Indemnity Claim" shall mean any Damages suffered or incurred by Seller (subject
to Section 10.4) arising out of, based upon or resulting from (i) the Assumed
Liabilities; (ii) any breach of any representation and warranty of Purchaser
which is contained in this Agreement or any Schedule hereto; or (iii) any breach
or nonfulfillment of, or any failure to perform, any of the covenants,
agreements or undertakings of Purchaser contained in or made pursuant to the
terms and conditions of this Agreement.
(b) The indemnification obligations of Purchaser shall apply
with respect to, without limitation, Damages arising out of any and all actions,
claims, suits, proceedings, demands, assessments, judgments, recoveries,
damages, costs and expenses or deficiencies incident to the
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disposal of any such Seller Indemnity Claim under this Section 10.2, together
with any interest, penalties, costs and expenses of any Seller Indemnitee
(including, without limitation, reasonable out-of-pocket expenses, reasonable
investigation expenses and reasonable fees and disbursements of accountants and
counsel) arising out of or related to any such Seller Indemnity Claims.
10.3 INDEMNIFICATION PROCEDURES. If a party seeks indemnification
hereunder for a matter that involves a claim by a third party, the party seeking
indemnification (an "Indemnitee") shall promptly notify the indemnifying party
(the "Indemnitor") of and shall provide reasonable information and details
concerning the nature of such claim. Indemnitor shall, to the extent applicable,
have the right to assume the defense at its expense of all third party claims
and shall pay all costs and damages finally awarded against the Indemnitor and
the Indemnitee in conjunction with such third party claims, provided that (i)
the Indemnitee provides prompt written notice to the Indemnitor of its receipt
of service of any such claim; (ii) the Indemnitor controls the defense of the
third party claim on behalf of all Parties; (iii) the Indemnitee consents to
representation in such claims by counsel selected by and representing the
Indemnitor; provided, however, that if outside counsel to the Indemnitee
reasonably advises the Indemnitee and the Indemnitor in a written opinion that
such joint representation raises a potential conflict of interest as between the
Indemnitee and the Indemnitor (other than a conflict concerning the right to
indemnification under this Agreement), then the Indemnitee shall have the right
to retain separate counsel to represent its interests in such third party claim
and the reasonable costs, fees and expenses thereof shall be borne equally by
the Indemnitee and the Indemnitor; and (iv) upon request of the Indemnitor, the
Indemnitee uses its best efforts to cooperate with the Indemnitor in defending
such third party claim by providing the Indemnitor with all necessary business
information and relevant documents under its control related to the third party
claim and cooperating with such other reasonable requests of the Indemnitor at
the Indemnitor's expense in accordance with Applicable Law. The Parties'
indemnity obligations under this Article X shall not apply to amounts paid in
settlement of any loss, claim, liability or action if such settlement is
effected without the consent of the Indemnitor, which consent shall not be
unreasonably withheld. The Indemnitee's failure to deliver notice to the
Indemnitor within a reasonable time after the commencement of any such action,
if materially prejudicial to the Indemnitor's ability to defend such action,
shall relieve the Indemnitor of any liability to the Indemnitee under this
Article X, but not any liability that it may have to the Indemnitee otherwise
than under this Article X.
10.4 DURATION. (a) Notwithstanding anything to the contrary in this
Agreement, all representations, warranties, covenants, undertakings and
agreements of the parties contained in or made pursuant to this Agreement, and
the rights of the parties to seek indemnification with respect thereto, shall
survive the Closing; provided, however, that, except in respect of any claims
for indemnification as to which written notice shall have been duly given to the
Indemnifying Party prior to the Indemnity Termination Date in accordance with
the terms of this Agreement, and subject to the remaining provisions of this
Section 10.4, such representations, warranties, covenants, undertakings and
agreements, and the rights of the parties to seek indemnification with respect
thereto, shall expire on the date which is eighteen (18) months after the date
hereof (the "Indemnity Termination Date").
(b) Any claim for indemnification under this Article X which is
made in good faith and in writing prior to the expiration of such claim on the
Indemnity Termination Date shall survive such expiration until mutually resolved
or otherwise determined hereunder, as applicable,
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and the Indemnity Termination Date for all purposes hereunder shall
automatically be extended with respect to such claim until such claim is so
mutually resolved or otherwise determined hereunder. Any such claim not so made
in writing prior to the expiration of such claim on the Indemnity Termination
Date shall be deemed to have been waived.
ARTICLE XI
MISCELLANEOUS PROVISIONS
11.1 EXPORT CONTROLS. (a) It is understood and acknowledged that each
party is subject to regulation by governmental authorities, including the U.S.
Department of Commerce, which prohibit export or diversion of certain products
and technology to certain countries. Any and all obligations of the parties
under this Agreement shall be subject in all respects to such laws and
regulations as shall from time to time govern the export of technology and
products abroad by persons subject to the jurisdiction of such governmental
authorities, including the U.S. Export Administration Act of 1979, as amended,
any successor legislation, and the U.S. Export Administration Regulations
("EAR") issued by the U.S. Department of Commerce, International Trade
Administration, Bureau of Export Administration ("BXA"). Each party warrants
that it will comply in all material respects with all export and re-export
restrictions applicable to the Assets shipped to Purchaser hereunder.
(b) Without limiting the foregoing, Purchaser agrees that it
shall not knowingly export, re-export or transship, directly or indirectly, to
countries identified in Part 746 of the EAR which are subject to comprehensive
BXA controls (currently consisting of: Cuba, Iraq, Iran, Libya and North Korea)
any of the Assets provided to Purchaser hereunder.
11.2 FEES AND EXPENSES. Except as expressly set forth herein, each
party shall be solely responsible for the payment of the fees and expenses of
its advisers, counsel, accountants and other experts, if any, and all other
expenses incurred by such party incident to the negotiation, preparation,
execution, delivery and performance of this Agreement.
11.3 SEVERABILITY. If any provision of this Agreement is held by a
court of competent jurisdiction or panel of arbitrators (including pursuant to
enforcement of an arbitration award under this Agreement) to be invalid,
unlawful or unenforceable, it shall be modified, if possible, to the minimum
extent necessary to make it valid, lawful and enforceable or, if such
modification is not possible, it shall be stricken from this Agreement, and the
remaining provisions of this Agreement shall continue in full force and effect;
provided, however, that if a provision is so stricken and is of a nature so as
to fundamentally alter the economic arrangements of this Agreement, the party
adversely affected may terminate this Agreement by giving to the other parties
hereto sixty (60) days written notice of termination.
11.4 ENTIRE AGREEMENT; AMENDMENTS. This Agreement, and the Exhibits and
Schedules hereto, contain the entire understanding of the parties with respect
to the matters referred to hereby and, except as specifically set forth herein,
neither Purchaser nor Seller makes any representation, warranty, covenant or
undertaking with respect to such matters. No provision of this Agreement may be
amended or supplemented other than by a written instrument signed by the party
against whom enforcement of any such amendment or supplement is sought.
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11.5 NOTICES. Any notice or other communication required or permitted
to be given herein shall be in writing and shall be effective (i) upon hand
delivery or delivery by telecopy or facsimile at the address or number
designated below (if delivered on a business day during normal business hours
where such notice is to be received), or the first business day following such
delivery (if delivered other than on a business day during normal business hours
where such notice is to be received) or (ii) on the third business day following
the date of mailing by express courier service, fully prepaid, addressed to such
address, or upon actual receipt of such mailing, whichever shall first occur.
The addresses for such communications shall be:
(a) if to Seller at:
Angeion Corporation
0000 Xxxxxxxxx Xxxxx
Xxxxxxxx Xxxx, XX 00000-0000
Attention: Chief Executive Officer
Facsimile: (000) 000-0000
With copies to:
Faegre & Xxxxxx LLP
0000 Xxxxxxx Xxxxxx
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
(b) if to Purchaser to:
ELA Medical
Centre d'Affaires la Boursidiere
92357 Le Plessis Xxxxxxxx
Cedex, France
Attention: President
Facsimile: 00-0-00-00-00-00
Sanofi-Synthelabo
22 avenue Galilee
X.X. 00
00000 Xx Xxxxxxx Xxxxxxxx
Xxxxx, Xxxxxx
Attention: General Counsel
Facsimile: 00-0-00-00-00-00
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with copies to:
Coudert Brothers
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
Any party hereto may from time to time change its address for notices
under this Section 11.5 by giving at least ten (10) days' written notice of such
changed address to the other parties hereto. All such notices and communications
hereunder shall be deemed given when received, as evidenced by the signed
acknowledgment of receipt of the person to whom such notice or communication
shall have been personally delivered, confirmed answer back or other evidence of
transmission or the acknowledgment of receipt returned to the sender by the
applicable postal authorities. Receipt of notices sent by facsimile shall be
confirmed by telephone.
11.6 SUCCESSORS AND ASSIGNMENT. This Agreement shall be binding upon
and inure to the benefit of the parties and their successors and assigns.
Neither this Agreement nor any interest hereunder shall be assigned or
transferred, whether directly or indirectly, including by operation of law
("Assign" or "Assignment"), by any party without the prior express written
consent of the other parties (which consent may be withheld for any reason in
the sole discretion of the party from whom consent is sought), and any such
attempt at Assignment shall be null and void. The assignment by a party of this
Agreement or any rights hereunder shall not affect the obligations of such party
under this Agreement. Notwithstanding the foregoing, any party may Assign this
Agreement to an affiliate of such party so long as any assignment is made to an
affiliate that is directly or indirectly 100% owned by, or under 100% common
control with, that party. Any permitted Assignment made pursuant to this Section
shall be valid only if (i) the assigning party remains liable under this
Agreement, and (ii) the relevant affiliate or other entity assumes in writing
all of the assigning party's obligations under this Agreement.
11.7 NO THIRD PARTY BENEFICIARIES. Neither this Agreement or any
provision hereof nor any Schedule, certificate or other instrument delivered
pursuant hereto, nor any agreement to be entered into pursuant hereto or any
provision hereof, is intended to create any right, claim or remedy in favor of
any person or entity, other than the parties hereto and their respective
successors and permitted assigns.
11.8 NO WAIVER. No waiver by either party of any default with respect
to any provision, condition or requirement of this Agreement shall be deemed to
be a continuing waiver in the future of this Agreement, or a waiver of any other
provision, condition or request of this Agreement, nor shall any delay or
omission of any party to exercise any right hereunder in any manner impair the
exercise of any such right accruing to it thereafter.
11.9 PUBLICITY. Each party agrees, and shall cause its affiliates, not
to issue any press release disclosing the terms of, or relating to, this
Agreement, without the prior written consent of the other parties; provided,
however, that neither party or its affiliates shall be prevented from complying
with any duty of disclosure it may have pursuant to applicable law. Such
disclosing party shall use its best efforts to consult with the other parties
regarding the issuance of any such
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press release, or with regard to any public statement disclosing the terms of
this Agreement and shall use its best efforts to obtain confidential treatment
for any confidential information where such press release or other public
statement is required to be made by applicable law.
11.10 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
11.11 HEADINGS. The article and section headings contained in this
Agreement are solely for convenience of reference, are not part of the agreement
of the parties and shall not be used in construing this Agreement or in any way
affect the meaning or interpretation of this Agreement.
11.12 ENGLISH LANGUAGE CONTROLS; ENTIRE AGREEMENT. The original and
controlling version of this Agreement shall be the version using the English
language. All translations of this Agreement into other languages shall be for
the convenience of the parties only, and shall not control the meaning or
application of this Agreement. All notices and other communications required or
permitted by this Agreement must be in English, and the interpretation and
application of such notices and other communications shall be based solely upon
the English language version thereof. This Agreement, and the Schedules,
certificates and other instruments and documents delivered pursuant hereto,
together with the other agreements referred to herein and to be entered into
pursuant hereto, embody the entire agreement of the parties hereto in respect
of, and there are no other agreements or understandings, written or oral, among
the parties relating to, the subject matter hereof. This Agreement supersedes
all prior agreements and understandings, written or oral, between the parties
with respect to the subject matter hereof. The invalidity, illegality or
unenforceability for any reason of any one or more provisions of this Agreement
shall not affect the validity, legality or enforceability of the remainder of
this Agreement.
11.13 GOVERNING LAW. This Agreement, and the respective rights, duties
and obligations of the parties hereunder, shall be governed by and construed and
enforced in accordance with the laws of the State of New York, without giving
effect to principles of conflicts of law thereunder.
11.14 RELATIONSHIP OF THE PARTIES. For all purposes of this Agreement,
Purchaser and Seller shall be deemed to be independent entities and, anything in
this Agreement to the contrary notwithstanding, nothing herein shall be deemed
to constitute Purchaser and Seller as partners, joint venturers, co-owners, an
association or any entity separate and apart from each party itself, nor shall
this Agreement constitute any party hereto an employee or agent, legal or
otherwise, of the other for any purposes whatsoever. Neither party hereto is
authorized to make any statements or representations on behalf of the other
party or in any way obligate the other party, except as expressly authorized in
writing by the other party. Anything in this Agreement to the contrary
notwithstanding, no party hereto shall assume nor shall be liable for any
liabilities or obligations of the other party, whether past, present or future.
11.15 SOVEREIGN IMMUNITY; EXCLUSIONS. (a) Each party hereto agrees
that, to the extent that it or any of its property is or becomes entitled at any
time to any immunity on the grounds of sovereignty or otherwise from any legal
action, suit or proceeding, from set off or counterclaim, from the jurisdiction
of any set off or counterclaim, from the jurisdiction of any competent court,
from service of process, from attachment prior to judgment, from attachment in
aid of execution,
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from execution prior to judgment or from any other legal process in any
jurisdiction, it, for itself and its property, expressly, irrevocably and
unconditionally waives, and agrees not to plead or claim any such immunity with
respect to its obligations, liabilities or any other matter under or arising out
of or in connection with this Agreement or the subject matter of this Agreement
(including without limitation any obligation for the payment of money). Each
party hereto is not subject to withdrawal in any jurisdiction or under any
statute, including, without limitation, the Foreign Sovereign Immunities Act, 28
U.S.C. xx.xx. 1602 et seq. The foregoing waiver shall constitute a present
waiver of immunity at any time any action is initiated against any party hereto
with respect to this Agreement.
(b) The parties hereby agree to exclude application of the
following instruments and documents: United Nations Convention on the
International Sale of Goods, UNCITRAL Arbitration Rules and 1990 International
Chamber of Commerce Incoterms.
11.16 CONSULTATION AND ARBITRATION
(a) Dispute Resolution: General Dispute Principles.
(i) All disputes among Parent, Purchaser and Seller
and/or any of their affiliates under this Agreement shall be settled,
if possible, through good faith negotiations between the relevant
parties. For purposes of this Section 11.16, Purchaser, Parent and
Seller shall be referred to individually as a "Party" and together as
the "Parties".
(ii) Prior to resolving any dispute by means of
arbitration or by means of any suit, action or legal proceeding
permitted under Section 11.16(b), the relevant parties involved in such
dispute shall refer such dispute to their respective chief executive
officer or equivalent, who shall meet in person to negotiate in good
faith the possible resolution thereof on at least two occasions within
30 days before any such party commences arbitration or such litigation
(provided that if any such party fails or refuses to have a
representative attend such meetings within such 30 day period, the
procedures of Section 11.16(b) shall be applicable after the conclusion
of such 30 day period); and further provided, that (i) any legal
proceedings seeking interim equitable relief (including a temporary
restraining order or preliminary injunction) until such time as such
interim equitable relief can be addressed through arbitration; (ii)
proceedings for provisional relief contemplated by Section 11.16(b)(ix)
below; and (iii) third party legal proceedings under Section
11.16(a)(iii) below may be commenced immediately.
(iii) If a Party or any of its affiliates is subject to a
claim, demand, action or proceeding by a third party and is permitted
by law or arbitral rules to join another party to such proceeding, this
Section 11.16 shall not prevent such joinder. This Section 11.16 shall
also not prevent either Party or any such affiliate from pursuing any
legal action against a third party.
(b) Arbitration of Other Disputes.
(i) In the event such good faith negotiations are
unsuccessful, either Party may, after 30 days written notice to the
other, submit any controversy or claim arising out of, relating to or
in connection with this Agreement, or the breach thereof, to
arbitration administered by the American Arbitration Association
("AAA") in accordance with its then
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existing International Arbitration rules, except that Sections
29 and 31 of the Commercial Arbitration Rules in effect on the
date hereof, a copy of which is attached hereto as Schedule
11.16(b), shall govern in the event of any conflict therewith
(collectively, the "AAA Rules") and judgment upon the award
rendered by the arbitrator may be entered in any court having
jurisdiction thereof.
(ii) To the extent this Section 11.16 is deemed a
separate agreement, independent from this Agreement, the remaining
provisions of Article XI shall be incorporated herein by reference.
Either party (the "Initiating Party") may commence an arbitration by
submitting a demand for arbitration ("Demand for Arbitration") under
the AAA Rules and by notice to the other Party (the "Respondent") in
accordance with Section 11.16. Such notice shall set forth in
reasonable detail the basic operative facts upon which the Initiating
Party seeks relief and specific reference to the clauses of this
Agreement, the amount claimed, if any, and any nonmonetary relief
sought against the Respondent. After the Demand for Arbitration,
response and counterclaim, if any, and reply to counterclaim, if any,
have been submitted, either Party may propose additional issues for
resolution in the pending proceedings only if expressly so ordered by
the arbitrators.
(iii) The place of arbitration shall be New York, New
York, and the award shall be deemed a U.S. award for purposes of the
Convention on the Recognition and Enforcement of Foreign Arbitral
Awards of 1958 (the "New York Convention").
(iv) The parties shall attempt, by agreement, to nominate
a sole arbitrator for confirmation by the AAA. If the Parties fail so
to nominate a sole arbitrator within 30 days from the date when the
Initiating Party's Demand for Arbitration has been communicated to the
Respondent, a board of three arbitrators shall be appointed by the
Parties jointly or, if the Parties cannot agree as to three arbitrators
within 30 days after the commencement of the arbitration proceeding,
then one arbitrator shall be appointed by each of the Initiating Party
and the Respondent within 60 days after the commencement of the
arbitration proceeding and the third arbitrator shall be appointed by
mutual agreement of such two arbitrators. If such two arbitrators shall
fail to agree within 75 days after commencement of the arbitration
proceeding upon the appointment of the third arbitrator, the third
arbitrator shall be appointed by the AAA in accordance with the AAA
Rules. Notwithstanding the foregoing, if either Party shall fail to
appoint an arbitrator within the specified time period, such arbitrator
and the third arbitrator shall be appointed by the AAA in accordance
with its then existing rules. For purposes of this Section, the
"commencement of the arbitration proceeding" shall be deemed to be the
date upon which the Demand for Arbitration has been delivered to the
Parties in accordance with Section 11.16. Any award shall be rendered
by a majority of the arbitrators. A hearing on the matter in dispute
shall commence within 90 days following selection of the arbitrators,
and the decision of the arbitrators shall be rendered no later than 90
days after commencement of such hearing.
(v) An award rendered in connection with an arbitration
pursuant to this Section shall be final and binding upon the Parties,
and the Parties agree and consent that the arbitral award shall be
conclusive proof of the validity of the determinations of the
arbitrators set forth in the award and any judgment upon such an award
may be entered and enforced in any court of competent jurisdiction.
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(vi) The Parties agree that the award of the arbitral
tribunal will be the sole and exclusive remedy between them regarding
any and all claims and counterclaims between them with respect to the
subject matter of the arbitrated dispute. The Parties hereby waive all
IN PERSONAM jurisdictional defenses in connection with any arbitration
hereunder or the enforcement of an order or award rendered pursuant
thereto (assuming that the terms and conditions of this arbitration
clause have been complied with).
(vii) The Parties hereby agree that for purposes of the
New York Convention, the relationship between the Parties is commercial
in nature, and that any disputes between the Parties related to this
Agreement shall be deemed commercial.
(viii) The arbitrators shall issue a written explanation
of the reasons for the award and a full statement of the facts as found
and the rules of law applied in reaching their decision to both
Parties. The arbitrators shall apportion to each Party all costs
(including attorneys' and witness fees, if any) incurred in conducting
the arbitration in accordance with what the arbitrators deem just and
equitable under the circumstances. Any provisional remedy which would
be available to a court of law shall be available from the arbitrators
pending arbitration of the dispute. Either Party may make an
application to the arbitrators seeking injunctive or other interim
relief, and the arbitrators may take whatever interim measures they
deem necessary in respect of the subject matter of the dispute,
including measures to maintain the status quo until such time as the
arbitration award is rendered or the controversy is otherwise resolved.
The arbitrator shall have the authority to award any remedy or relief
(except as ex parte relief) that a court of the State of New York could
order or grant, including, without limitation, specific performance of
any obligation created under this Agreement, the issuance of an
injunction, or the imposition of sanctions for abuse or frustration of
the arbitration process, but specifically excluding punitive damages.
(ix) The Parties may file an application in any proper
court for a provisional remedy in connection with an arbitrable
controversy, but only upon the ground that the award to which the
application may be entitled may be rendered ineffectual without
provisional relief. The Parties may also commence legal action in lieu
of any arbitration under this Section 11.16(b) in connection with any
third party litigation proceedings or for any matter involving disputes
related to Intellectual Property Rights.
(x) After the appointment of the arbitrators, the parties
to the arbitration shall have the right to take depositions, ask
interrogatories, obtain documentation and to obtain other discovery
regarding the subject matter of the arbitration, and, to that end to
use and exercise all the same rights, remedies and procedures, and be
subject to all of the same duties, liabilities and obligations in the
arbitration with respect to the subject matter thereof, as if the
subject matter of the arbitration were pending in a civil action before
a United States District Court for the Southern District of New York
and such persons, documents or other requested material were located in
State of New York. The parties shall reach agreement with the
arbitrator on a streamlined and expedited discovery program in order to
save costs and avoid unnecessary delay in completing any arbitration
and may present to the arbitrator for a ruling any reasons for limiting
such discovery in order to save costs and avoid delay.
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(xi) For purposes of any suit, action or legal proceeding
permitted under this Section 11.16, each Party (a) hereby irrevocably
submits itself to and consents to the non-exclusive jurisdiction of the
United States District Court for the Southern District of New York for
the purposes of any suit, action or legal proceeding in connection with
this Agreement including to enforce an arbitral resolution, settlement,
order or award made pursuant to this Agreement (including pursuant to
the New York Convention, the U.S. Arbitration Act, or otherwise), and
(b) to the extent permitted by applicable law, hereby waives, and
agrees not to assert, by way of motion, as a defense, or otherwise, in
any such suit, action or legal proceeding pending in such event, any
claim that it is not personally subject to the jurisdiction of such
court, that the suit, action or legal proceeding is brought in an
inconvenient forum or that the venue of the suit, action or legal
proceeding is improper. Each Party hereby agrees to the entry of an
order to enforce any resolution, settlement, order or award made
pursuant to this Section by the United States District Court for the
Southern District of New York and in connection therewith hereby
waives, and agrees not to assert by way of motion, as a defense, or
otherwise, any claim that such resolution, settlement, order or award
is inconsistent with or violative of the laws or public policy of the
laws of the State of New York or any other jurisdiction.
(xii) All claims arising under this Agreement brought by
the Parties and/or their affiliates at substantially the same time
shall be referred to a single arbitration to the extent arbitrable
under this Section 11.16.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
ANGEION CORPORATION
By: /S/ XXXXX X. XXXXXX, XX.
-----------------------------------------
Name: Xxxxx X. Xxxxxx, Xx.
Title: President and CEO
ELA MEDICAL
By: /S/ XXXXXXX XXXXXXX
-----------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: President and CEO
Medical Devices Division
SANOFI-SYNTHELABO
By: /S/ XXXX-XXXXXX XXXXXXX
-----------------------------------------
Name: Xxxx-Xxxxxx Xxxxxxx
Title: V.P. Deputy Director
Legal Affairs
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