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EXHIBIT 10.2
TRANSITION SERVICES AGREEMENT
This Transition Services Agreement (this "Agreement") is made and
entered into as of this 7th day of July, 2000, by and among DePuy Orthopaedic
Technology, Inc., a Delaware corporation ("Seller"), DonJoy, L.L.C., a Delaware
limited liability company ("DonJoy, L.L.C."), and dj Orthopedics, LLC, a
Delaware limited liability company wholly-owned by DonJoy, L.L.C. ("DJ",
together with DonJoy, L.L.C., "Buyers").
WHEREAS, pursuant to the Asset Purchase Agreement, dated the date
hereof (the "Purchase Agreement") by and among DePuy, Inc., a Delaware
corporation, as guarantor of the obligations of Seller, DonJoy, L.L.C. and DJ,
Buyers are purchasing from Seller certain of its assets, and assuming certain of
its liabilities, related to the Business (as such term is defined in the
Purchase Agreement);
WHEREAS, it is a condition to Buyers' obligations under the
Purchase Agreement that Seller and Buyers enter into this Agreement; and
WHEREAS, in accordance with the Purchase Agreement, Seller wishes
to assist Buyers with the transfer and transition of the Business and Buyers
wish to obtain such assistance, all on the terms and conditions herein
described.
NOW, THEREFORE, in consideration of the mutual covenants set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Seller and Buyers do hereby agree
as follows:
1. DEFINED TERMS.
Defined terms used but not otherwise defined herein shall have
the meanings given to them in the Purchase Agreement.
2. SERVICES.
In this Agreement, the "Services" shall mean those services
provided by Seller to Buyers pursuant to this Agreement and described on Exhibit
A hereto (which Exhibit A shall be incorporated by reference into this
Agreement) and such other services as the parties may mutually agree. The actual
direct costs of Seller related to the delivery of the Services to Buyers (such
services to be consistent with past practice) shall be invoiced by Seller to
Buyers from time to time. Buyers shall pay the amounts set forth on such
invoices within ten (10) days of receipt of such invoices. Upon the request of
Buyers, Seller shall promptly provide Buyers with written substantiation
satisfactory to Buyers of all costs set forth on such invoices.
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3. DELIVERY OF SERVICES.
(a) The Services shall be performed by employees, representatives
or agents of Seller as may be selected by Seller in a manner designed to provide
the Services pursuant to Exhibit A. Seller shall use its commercially reasonable
efforts to continue to employ a sufficient number of its skilled and qualified
employees, including, without limitation, (i) at Buyers' direction and expense,
offer incentive bonuses to certain employees or (ii) retain the services of
qualified temporary personnel, if necessary, to provide the Services at times
and at such locations as are reasonably directed by Seller in a manner designed
to provide the Services pursuant to Exhibit A.
(b) The parties hereto shall be treated for all purposes as
independent contractors and not as an agent or representative of the other party
and neither has any power, right or authority to bind the other party or to
assume or to create any obligation or responsibility, express or implied, on
behalf of the other party. Nothing stated in this Agreement shall be construed
as constituting Buyers and Seller as partners or as members of a joint venture,
or as creating the relationship of employer and employee, master and servant, or
principal and agent between them.
(c) During the Term, Seller will only be required to provide the
Services to Buyers consistent with past practices.
4. TERM AND TERMINATION.
(a) This Agreement shall commence on the date hereof and shall
expire on the date which is thirteen (13) Weeks from the date hereof (the
"Initial Term"). It is the intent of the parties to transition the Business to
Buyers as soon as practicable; provided, however, if Buyers require the
provision of any Services after the expiration of the Initial Term, then Buyers
shall have the right to extend the Initial Term for up to additional three (3)
periods, each such period consisting of four (4) Weeks (each such period, an
"Extension Period", and collectively with the Initial Term, the "Term") by
providing Seller with written notice at least two (2) Weeks prior to the
expiration of the Initial Term or the then-applicable Extension Period, as the
case may be; provided, however that the provisions of Section 4 of Exhibit A
shall continue for sixteen (16) Weeks. Each "Week" shall consist of five (5)
business days. The expiration date of the Term is sometimes referred to as the
"Termination Date".
(b) Buyers shall have the right to terminate all or any part of
any Service to be provided under this Agreement at any time during the Term by
providing to Seller (i) during the period commencing on the date hereof and
ending on the date which is 45 days from the date hereof, with at least two (2)
Weeks prior written notice and (ii) thereafter, with at least four (4) Weeks
prior written notice. In addition, either party may terminate this Agreement by
written notice having immediate effect in the event that any of the following
events occur: (i) a receiver is appointed over any of the assets of the other
party and such receivership shall not have been vacated or stayed within thirty
(30) days; (ii) the other party is unable to pay its debts as they mature or
ceases to pay its debts as they mature in the ordinary course of business or
makes an assignment for the
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benefit of its creditors; (iii) any voluntary proceedings are commenced by or
for the other party under any bankruptcy, insolvency, or debtors' relief law; or
for any proceedings commenced against the other party under any bankruptcy,
insolvency or debtors' relief law and such proceeding is not vacated or set
aside within thirty (30) days from the date of commencement thereof; or (iv)
material default by the other party of any post-closing covenant or obligation
under the Purchase Agreement.
(c) Any material breach of any term of this Agreement shall
entitle the other party to terminate this Agreement provided the non-breaching
party first gives notice to the breaching party and permits the breaching party
twenty (20) days to cure such breach, provided that in the event of delay of
payment by Buyers the cure period shall be ten (10) days. The right to terminate
shall be in addition to all other rights and remedies available at law or in
equity.
5. INDEMNIFICATION.
(a) Indemnification by Seller.
Seller agrees to defend, indemnify and hold harmless Buyers and
Buyers' officers, managers, equity holders and Affiliates from and against any
and all claims, actions, damages, losses, costs, liabilities and expenses
(including without limitation reasonable attorneys' fees and expenses)
(hereinafter "Losses") sustained or incurred by Buyers as a consequence of (i)
any breach of any representation or warranty made by Seller in this Agreement,
(ii) any injury, death or property damage arising out of the negligence or
willful misconduct of Seller or its employees or agents (except to the extent
that such injury, death or damage was caused by the negligent act or willful
misconduct of Buyers) in any action or proceeding brought by any third party in
respect of such claim, (iii) Seller's gross negligent act or omission, (iv)
Seller's breach of or failure to comply with its covenants or obligations
hereunder or (v) a claim, action or proceeding by any governmental entity,
counterparty to any Partnership Program Contract, or any third party relating
to, the Partnership Program Contracts (except for any Losses resulting from
Buyers' use of Seller's tax identification number under Section 7(c)).
(b) Indemnification by Buyers.
Buyers shall indemnify, defend and hold harmless Seller and
Seller's officers, managers, equity holders and affiliates from and against any
Losses as a consequence of (i) any breach of any representation or warranty made
by Buyers in this Agreement, (ii) any injury, death or property damage arising
out of the negligence or willful misconduct of Buyers or its employees or agents
(except to the extent that such injury, death or damage was caused by the
negligent act or willful misconduct of Seller) in any action or proceeding
brought by any third party in respect of such claim, (iii) Buyers' gross
negligent act or omission, (iv) Buyers' breach of or failure to comply with its
covenants or obligations hereunder (including without limitation the obligations
of Buyer with respect to its status as subcontractor under the Partnership
Program Contract) or (v) Buyers' use of Seller's tax identification number under
Section 7(c).
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(c) Indemnification Procedures.
Each party shall be entitled to the indemnity described in
paragraphs (a) and (b) of this Section provided the following conditions are
met; the party obliged to provide indemnification is referred to as the
"Indemnifying Party", and the party entitled to be indemnified is referred to as
the "Indemnified Party":
(i) Promptly upon learning of any claim for which
indemnification is sought from the Indemnifying Party, the Indemnified
Party shall notify the Indemnifying Party of such claim and shall
furnish to the Indemnifying Party all information known and available to
the Indemnified Party related to such claim.
(ii) In the event of the commencement of litigation on the
basis of such claim, the Indemnified Party shall tender the defense of
such litigation to the Indemnifying Party.
(iii) The Indemnified Party shall comply with any such
reasonable instructions received from the Indemnifying Party relating to
settlement of such claim (unless settlement of the claim would establish
an adverse precedent for other similar claims in the future), if any, to
the extent that it lies within the power of the Indemnified Party to
comply with any such instructions, excluding any instruction that
requires the Indemnified Party to license or otherwise make available
technology or other confidential information to a third party.
(iv) If the Indemnifying Party undertakes defense of such
litigation, the Indemnifying Party shall be entitled to appoint its
attorneys to defend the case in the name of the Indemnified Party, and
the Indemnified Party shall reasonably cooperate with the Indemnifying
Party and its chosen attorneys in the defense of such litigation. The
Indemnified Party shall be free to appoint its own attorneys in the same
litigation, although all decisions with respect to the conduct or
settlement of such litigation shall remain, subject to subsection (iii)
above, with the Indemnifying Party.
(d) Insurance.
Each party shall maintain at its own expense general public
liability coverage of not less than Three Million Dollars ($3,000,000) per
occurrence with respect to bodily injury and death and Three Million Dollars
($3,000,000) per occurrence with respect to property damage for each claim with
a deductible of no more than Two Hundred Fifty Thousand Dollars ($250,000).
(e) Limitation of Liability.
Buyers' and Seller's maximum liability under Section 5(a) and
Section 5(b), respectively, shall not exceed the aggregate amount of moneys
actually received by Seller under this Agreement; provided that no limitation on
liability shall be applicable with respect to Seller's indemnification of Buyers
pursuant to Section 5(a)(v) or Buyers' indemnification of Seller pursuant to
Section 5(b)(iv) (as it relates to the Partnership
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Program Contracts) and 5(b)(v), respectively, it being understood such
indemnification must only relate to Losses which relate to the period during
which services were performed notwithstanding the date on which any such claim,
action or proceeding is commenced or made is after the expiration of such
period.
6. GOVERNMENTAL PERMITS AND COMPLIANCE WITH LAWS.
Each party to this Agreement shall maintain all Permits required
in order for each party to perform its respective obligations under this
Agreement. The parties shall comply in all material respects with all Laws or
Orders applicable to the Services being performed under this Agreement.
7. REPRESENTATIONS AND WARRANTIES.
(a) Representations and Warranties of Seller.
(i) Seller has the requisite corporate power and authority
to enter into this Agreement, to perform its obligations hereunder and
to consummate the transactions contemplated hereby. The execution,
delivery and performance by Seller of this Agreement and the
consummation of the transactions contemplated hereby are within Seller's
corporate powers and have been duly authorized by all necessary
corporate action on the part of Seller. This Agreement has been duly and
validly executed and delivered by Seller and is a valid and binding
obligation of Seller, enforceable against Seller in accordance with its
terms, subject to general principles of equity and except as the
enforceability thereof may be limited by applicable bankruptcy,
insolvency, reorganization or other similar laws of general application
relating to creditors' rights.
(ii) The execution, delivery and performance by Seller of
this Agreement and the consummation of the transactions contemplated
hereby do not and will not (i) violate, conflict with or result in any
violations of the certificate of incorporation or bylaws of Seller, (ii)
violate in any material respect any applicable Law or (iii) require any
consent or other action by any Person under, constitute a default or
breach under or give rise to any right of termination, cancellation or
acceleration of any right or obligation or to a loss of any benefit
relating to the Business to which Seller is entitled under any provision
or any agreement or other instrument binding upon Seller.
(b) Representations and Warranties of Buyers.
(i) Each Buyer has the requisite power and authority to
enter into this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby. The execution, delivery
and performance by each Buyer of this Agreement and the consummation of
the transactions contemplated hereby are within the powers of each Buyer
and have been duly authorized by all necessary action on the part of
each Buyer. This Agreement has been duly and validly executed and
delivered by each Buyer and is a valid and binding obligation of each
Buyer, enforceable against each Buyer in accordance
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with its terms, subject to general principles of equity and except as
the enforceability thereof may be limited by applicable bankruptcy,
insolvency, reorganization or other similar laws of general application
relating to creditors' rights.
(ii) The execution, delivery and performance by each Buyer
of this Agreement and the consummation of the transactions contemplated
hereby do not and will not (i) violate, conflict with or result in any
violations of the certificate of formation or company agreement of each
Buyer, (ii) violate in any material respects any applicable Law or (iii)
require any consent or other action by any Person under, constitute a
default or breach under or give rise to any right of termination,
cancellation or acceleration of any material right or obligation or a
loss of any material benefit to which each Buyer is entitled under any
provision or any agreement or other instrument binding upon each Buyer.
(c) Except for the representations and warranties made in this
Article 7, SELLER MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED,
CONCERNING THE SERVICES TO BE PERFORMED, INCLUDING ANY APPLICABLE IMPLIED
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND SELLER
HEREBY EXPRESSLY DISCLAIMS ANY APPLICABLE IMPLIED WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICES.
8. LICENSE TO USE "ORTHOTECH" OR ORTHOPAEDIC TECHNOLOGY" TRADENAME.
During the Term and subject to the provisions of the Purchase
Agreement, Buyers hereby grant to Seller, on the terms and subject to the
restrictions hereinafter set forth, a limited, non-exclusive license (the
"License"), without the right to assign or sublicense (directly or indirectly,
including by way of sale of stock, merger or other extraordinary transaction),
to use the trade names "OrthoTech" and "Orthopaedic Technology" solely in
connection with providing the Services to Buyers pursuant to this Agreement. The
parties hereto agree that the tradenames "OrthoTech" and "Orthopaedic
Technology" are and shall at all times remain the property of Buyers.
9. MISCELLANEOUS.
(a) This Agreement shall be amended or modified only by a written
instrument executed by the President of both parties.
(b) The waiver by either party of a breach or default in any of
the provisions of this Agreement by the other party shall not be construed as a
waiver of any succeeding breach of the same or any other provision.
(c) All notices under this Agreement shall be in writing and
shall be sufficient if delivered in accordance with the requirements of the
Purchase Agreement.
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(d) The construction, performance and enforcement of this
Agreement shall be governed by and construed in accordance with the laws of the
State of New York (other than conflicts of law provisions).
(e) If any provision of this Agreement shall be held to be
invalid, illegal, or unenforceable, the validity, legality and enforceability of
the remaining provisions of this Agreement shall not in any way be affected or
impaired thereby.
(f) Any controversy or claim arising out of or relating to this
Agreement or the validity, inducement, or breach thereof, shall be settled by
arbitration before a single arbitrator in accordance with the Commercial
Arbitration Rules of the American Arbitration Association ("AAA") then
pertaining, except where those rules conflict with this provision, in which case
this provision controls. The parties hereby consent to the jurisdiction of the
Federal District Court for the Southern District of New York for the enforcement
of these provisions and the entry of judgment on any award rendered hereunder.
Should such court for any reason lack jurisdiction, any court with jurisdiction
shall enforce this clause and enter judgment on any award. The arbitrator shall
be an attorney specializing in business litigation who has at least 15 years of
experience with a law firm of, or corporation with, over 25 lawyers or was a
judge of a court of general jurisdiction. The arbitration shall be held in New
York and the arbitrator shall apply the substantive law of New York, except that
the interpretation and enforcement of this arbitration provision shall be
governed by the Federal Arbitration Act. Within 30 days of initiation of
arbitration, the parties shall reach agreement upon and thereafter follow
procedures assuring that the arbitration will be concluded and the award
rendered within no more than six months from selection of the arbitrator.
Failing such agreement, the AAA will design and the parties will follow such
procedures. Each party has the right before or during the arbitration to seek
and obtain from the appropriate court provisional remedies such as attachment,
preliminary injunction, replevin, etc., to avoid irreparable harm, maintain the
status quo or preserve the subject matter of the arbitration. THE ARBITRATOR
SHALL NOT AWARD ANY PARTY PUNITIVE OR EXEMPLARY DAMAGES, AND EACH PARTY HEREBY
IRREVOCABLY WAIVES ANY RIGHT TO SEEK SUCH DAMAGES..
(g) This Agreement contains the entire agreement between the
parties with respect to the subject matter hereof. The parties represent that,
in entering into this Agreement, they are not relying upon any previous
representation, inducement or agreement of any kind.
(h) In the event of arbitration and/or litigation over any
controversy or claim arising out of or relating to this Agreement, or any breach
thereof, the prevailing party shall be entitled to recover its reasonable
attorneys fees and expenses in connection with such arbitration and/or
litigation.
(i) All Exhibits or Schedules attached hereto are incorporated
into this Agreement by reference.
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(j) Neither party may assign this Agreement without the written
consent of the other party, which consent shall not be unreasonably withheld;
provided, however, that either party may assign its rights and obligations under
this Agreement to any Affiliate without the prior written consent of the other
and it is expressly understood by Buyers that Affiliates of Seller may perform
the Services on behalf of the Seller; provided, further, that Buyers may assign
their rights and obligations to their lenders in connection with obtaining the
financings contemplated by the Purchase Agreement. Notwithstanding the
foregoing, neither party hereto shall be released from any of its obligations
hereunder by reason of any such assignment.
(k) Seller shall be not liable for its failure to perform its
obligations under this Agreement during the period, and to the extent, Seller is
prevented or hindered from performing such obligations due to events beyond its
reasonable control including but not limited to, strikes, riots, wars, fire,
acts of God, inability to obtain or shortages of labor, materials, equipment or
transportation and acts in compliance with applicable Law or Order (whether
valid or invalid) of any Governmental Entity.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first written above.
DonJoy, L.L.C. DePuy Orthopedic Technology, Inc.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
----------------------------------- -----------------------------------
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Chairman Title: Vice President
dj Orthopedics, LLC
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chairman
[Signature Page to Transition Services Agreement]
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EXHIBIT A
SERVICES
The following Services are to be provided in accordance with and
subject to the terms of the Transition Services Agreement (the "Agreement"):
1. Seller shall continue to operate its facility located in Tracy,
California (the "Tracy Facility") for Buyers' account in providing the
Services to Buyers pursuant to the Agreement Buyers shall be responsible
for the costs of maintaining the ▇▇▇▇▇ Facility equal to the lease rate
for the ▇▇▇▇▇ Facility as of the Closing Date plus all other direct
operating expenses of the ▇▇▇▇▇ Facility and the Business.
2. Subject to the two last sentences of this ▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ shall
continue to employ, or shall cause to be continually employed, all
domestic order entry, manufacturing, distribution and administrative
support personnel (collectively, "Transition Employees") as employees of
Seller or its Affiliates until the Termination Date. Buyers shall
reimburse Seller or its Affiliates, as applicable, for all actual wages,
expenses and benefits paid or provided to or on behalf of the Transition
Employees; provided, however, that Buyers shall not be obligated to
Seller to pay for any costs related to corporate allocations and
charges. The level of wages to be paid to the Transition Employees shall
be equal to the level of wages paid to the Transition Employees as of
May 17, 2000 (the date of the Letter of Exclusivity and Term Sheet),
unless the wages are adjusted by Seller, with the prior consent of
Buyers, in a manner designed to provide the Services pursuant to this
Exhibit A, which consent shall not be unreasonably withheld or delayed
by Buyers. The benefits to be provided to the Transition Employees shall
be similar to those provided to the Transition Employees as of May 17,
2000 (the date of the Letter of Exclusivity and Term Sheet). The
Transition Employees are not the Transferred Employees as such term is
defined in the Purchase Agreement. Subject to Buyers' approval, Seller
shall retain the services of qualified temporary personnel or
consultants if a sufficient number of Transition Employees is
unavailable in order to provide the Services to Buyers. Buyers shall be
responsible for all reasonable costs incurred by Seller in retaining
such temporary personnel or consultants.
3. Seller shall commence the employee severance benefits program on the
actual termination date of each Transition Employee per a schedule to be
prepared by Buyers. Buyers shall not be obligated to Seller or any of
its employees for any severance payments or other personnel charges
relating to the sale of the Business.
4. For a period of sixteen (16) Weeks after the Closing Date, Seller shall
continue to operate, support and maintain its current equipment and
systems and applications at and between the ▇▇▇▇▇ Facility and its
facility located in Warsaw, Indiana (the "Warsaw Facility") as such
equipment, systems and applications relate to the Business and to
provide access to Buyers to such equipment and applications (but
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not the software operating systems) for purposes of supporting the
orderly and complete transition of such equipment and software operating
systems and applications to Buyers' equipment and software operating
systems. Buyers shall be responsible for all reasonable costs incurred
by Seller to effect such a transition.
5. Seller shall, and shall cause its Affiliates to, provide Buyers with
access to the employees responsible for, and records related to,
Seller's global business operations related to the Business for the
purpose of supporting the orderly and complete transition of market
coverage, inventory, customer records and all necessary information and
functions of Seller's global business operations related to the
Business.
6. Seller shall continue to maintain all operations related to the sales
order entry, manufacturing, distribution and related administrative
functions at the ▇▇▇▇▇ Facility and the Warsaw Facility. Further, Seller
shall cooperate with Buyers to design and implement a plan to transition
such functions to Buyers' systems and facilities, including, without
limitation, cooperating with, and providing training to, Buyers'
personnel to facilitate such transition. Buyers shall be responsible for
all reasonable costs incurred by Seller to effect such a transition.
7. CONTRACTS
During the Term, and at Buyers' expense,
(a) Seller shall designate DJ as Seller's sole authorized
sub-contractor to perform all actions required, and receive
credit for product sales or other service payments exclusive
to each partnership program contract in effect on the Closing
Date hereto (the "Partnership Program Contracts") for the
period of time commencing on the Closing Date and ending on
the earlier of (i) the date upon which DJ enters into a
contract with each party to such partnership program contract
(the "Replacement Partnership Program Contract") or (ii) the
expiration or earlier termination of such Partnership Program
Contract pursuant to its terms (but in no case after 90 days
from the date hereof). Further, Seller shall fully cooperate
with Buyers to coordinate and maintain all efforts of Buyers
in negotiating and executing the Replacement Partnership
Program Contracts.
(b) Seller shall designate DJ as Seller's sole authorized
sub-contractor to perform all actions required, and receive
credit for product sales or other service payments exclusive
to each of Seller's group or national purchasing agreements in
effect on the Closing Date (the "Purchasing Agreements") for
the period commencing on the Closing Date and ending on the
earlier of (i) the date upon which DJ enters into a contract
with each party to each Purchasing Agreement (the "Replacement
Purchasing Agreements") or (ii) until each Purchasing
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Agreement expires or is earlier terminated pursuant to its
terms. Further, Seller shall fully cooperate with Buyers to
coordinate and maintain all efforts of Buyers in negotiating
and executing the Replacement Purchasing Agreements.
(c) To the extent permitted by Law, Seller agrees to permit Buyers
to file claims under Seller's tax identification number for
the sole purpose of maintaining and meeting the performance
requirements of Seller's Payor Contracts for a period of
twelve months (12) from the Closing Date. All resulting
payments under said filings would be made by all providers to
Buyer's lock box facilities.
8. REGULATORY MATTERS
(a) Seller shall maintain all Permits necessary for Seller to
provide the Services under this Agreement during the Term.
(b) Seller shall cooperate and assist Buyers in obtaining, or
assigning, all Permits necessary to enable Buyers to continue
to operate the Business from and after the Termination Date as
presently conducted by Seller.
9. FOREIGN OPERATIONS
(a) Seller shall cause its foreign operations Affiliates to
continue their operations only as necessary to satisfy/service
customer orders for a maximum period of thirteen (13) Weeks
after the Closing Date. Buyers shall reasonably support all of
Seller's foreign operations Affiliates by providing additional
Products at Buyers' international pricing levels for the sole
purpose of aiding Seller's foreign operations Affiliates in
satisfying customer orders and depleting existing inventory
during such thirteen (13) Week period. During such thirteen
(13) Week period (or sooner as mutually determined by Buyers
and Seller on a country-by-country basis), Seller and Buyers
shall cooperate in transferring the Seller's foreign
operations to Buyers' country distributors (see also paragraph
5 of this Exhibit A), including, without limitation, Seller
providing to Buyers the following information: (i) customer
names, addresses, account numbers by country of location; (ii)
sales results for fiscal years 2000 and 1999 by customer and
product; (iii) price lists by country and customer for total
in-market sales and intercompany transactions; (iv) details of
any provincial, state or other government contracts; (v)
details for current tenders/bids in progress; (vi) product
registration/regulatory details by country; and (vii)
marketing, advertising and promotional materials including
catalogs, brochures, etc. by country.
(b) At the end of such thirteen (13) Week period, Buyers shall, or
shall cause its distributors to, purchase from Seller's
foreign operations
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Affiliates an amount of the remaining inventory of Products in
"like-new" and "saleable" condition (with proper CE markings)
equal to the value of such Products existing on the Seller's
balance sheet as of March 31, 2000, in each case as valued
under Seller's inventory accounting policies in effect on the
date of the Audited Financial Statement (as defined in the
Purchase Agreement). Buyers, or Buyers' distributors, as
applicable, shall pay to Seller for each such Product an
amount equal to the book value of each Product less a
percentage discount equal to (i) the book value of such
Product multiplied by (ii) the Intercompany Profits Percentage
(as defined below); provided there shall be no discount for
locally sourced products or goods. For purposes of this
Section 10(b), the "Intercompany Profits Percentage" means a
ratio, the numerator of which is the total intercompany profit
associated with such Products and the denominator of which is
the total book value of such Products, as determined and
agreed to by Seller and Buyers. Buyers shall have the right to
inspect and approve all such Products prior to payment.
10. FRENCH SOFTGOODS AND BRACING BUSINESS
(a) Seller shall continue the operations of its French Softgoods
and Bracing Business only as necessary to satisfy/service
customer orders for a maximum period of thirteen (13) Weeks
after the Closing Date. During such thirteen (13) Week period,
Seller and Buyers shall cooperate in transitioning the French
Softgoods and Bracing Business to Buyers and Buyers' foreign
distributors, including, without limitation, Seller providing
to Buyers all pertinent customer records and any outstanding
customer purchase requirements as of the Closing Date.
(b) At the end of such thirteen (13) Week period, Buyers shall, or
shall cause its distributors to, purchase from Seller's French
Softgoods and Bracing Business an amount of the inventory of
Products in "like-new" and "saleable" condition (with proper
CE markings), work in process and raw materials equal to the
value of such Products, wip and raw materials existing on the
Seller's balance sheet as of March 31, 2000, in each case as
valued under Seller's inventory accounting policies in effect
on the date of the Audited Financial Statement (as defined in
the Purchase Agreement). Buyers, or Buyers' distributors, as
applicable, shall pay to Seller for each such Product an
amount equal to the book value of each Product. To clarify,
all products of the French Softgoods and Bracing Business are
manufactured locally. Buyers shall have the right to inspect
and approve all such Products prior to payment.
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14
▇▇.▇▇ addition to the other Services provided for in the Agreement,
Buyer shall also pay to Seller an administrative fee of up to $50,000. Such fee
shall be based upon the reasonable costs incurred by Seller under the Agreement
and shall be paid by Buyers to Seller upon adequate substantiation by Seller to
Buyers of such costs.
* * * * * *
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