EXHIBIT 2.1
PURCHASE AGREEMENT
Between
ELEKTA AB (PUBL)
and
NITINOL MEDICAL TECHNOLOGIES, INC.
INDEX
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Page
1. DEFINITIONS.............................................................. 1
1.1 "Acquired Companies".............................................. l
1.2 "Affiliate"....................................................... 1
1.3 "Affiliate Distribution Business"................................. 1
1.4 "Andover Facility"................................................ 1
1.5 "Andover Real Property"........................................... 1
1.6 "Assets".......................................................... 1
1.7 "Assignment and Assumption Agreement"............................. 2
1.8 "Assumed Liabilities"............................................. 2
1.9 "Authorizations".................................................. 2
1.10 "Balance Sheet" shall mean the balance sheet of the Business as
of February 28, 1998 which is attached hereto as Exhibit 3.6.
l.11 "Biot Facility"................................................... 2
1.12 "Biot Real Property".............................................. 2
1.13 "Business"........................................................ 2
l.14 "Buyer's Closing Net Worth Amount"................................ 2
1.15 "CIS"............................................................. 2
1.16 "Closing"......................................................... 2
1.l7 "Closing Balance Sheet"........................................... 2
1.18 "Closing Date".................................................... 2
l.19 "Closing Financial Statements".................................... 2
l.20 "Closing Net Worth" shall mean the assets minus the liabilities
of the Business as of the Effective Date, as shown on the Closing
Balance Sheet.
1.21 "Code"............................................................ 3
1.22 "Companies"....................................................... 3
1.23 "Company Intellectual Property"................................... 3
1.24 "Copyrights"...................................................... 3
1.25 "Critical Contracts".............................................. 3
1.26 "Descriptive Memorandum".......................................... 3
1.27 "EBEL"............................................................ 3
1.28 "EGBH"............................................................ 3
1.29 "EHSA"............................................................ 3
1.30 "EIAL"............................................................ 3
1.31 "EII"............................................................. 3
1.32 "EIL"............................................................. 3
1.33 "EISA"............................................................ 3
1.34 "ENTH"............................................................ 3
1.35 "ESP"............................................................. 3
1.36 "ESRL"............................................................ 3
1.37 "Effective Date".................................................. 4
1.38 "Employee Benefit Plans".......................................... 4
1.39 "Environmental Laws".............................................. 4
l.40 "Excluded Assets"................................................. 4
1.41 "Excluded Environmental Liabilities".............................. 4
l.42 "Hazardous Materials"............................................. 4
(i)
1.43 "Improvements".................................................... 4
l.44 "Intellectual Property"........................................... 4
l.45 "International Accounting Standards".............................. 4
1.46 "Know-How"........................................................ 4
1.47 "Patents"......................................................... 4
1.48 "Products"........................................................ 5
l.49 "Provisional Purchase Price"...................................... 5
1.50 "Purchase Price".................................................. 5
l.5l "Purchase Price Adjustment"....................................... 5
1.52 "Real Property"................................................... 5
1.53 "Release"......................................................... 5
1.54 "SCL"............................................................. 5
1.55 "SEK"............................................................. 5
1.56 "Swedemed"........................................................ 5
1.57 "Spembly"......................................................... 5
1.58 "Target Net Worth"................................................ 5
1.59 "Taxes"........................................................... 5
1.60 "Tax Return"...................................................... 5
1.6l "Tentative Purchase Price"........................................ 6
1.62 "Trademarks"...................................................... 6
1.63 "U.K. Tax Covenant"............................................... 6
1.64 "USD"............................................................. 6
2. Purchase and Sale of Assets.............................................. 6
2.1 Transfer.......................................................... 6
2.2 Determination and Payment of Purchase Price....................... 6
2.3 Assumption of Liabilities......................................... 7
2.4 Instruments of Transfer and Assumption............................ 8
2.5 Consents.......................................................... 8
2.6 Further Assurances................................................ 8
2.7 Sales and Transfer Taxes; Fees.................................... 9
3. Representations and Warranties of Seller................................. 9
3.1 Seller's Organization, Power, Execution........................... 9
3.2 Right to Transfer................................................. 10
3.3 Governmental Compliance........................................... 10
3.4 Notices of Violation.............................................. 10
3.5 Defaults.......................................................... 10
3.6 Balance Sheet and Changes......................................... 10
3.7 Tax Consolidation................................................. ll
3.8 Tax Returns....................................................... 11
3.9 Contracts, Etc.................................................... 12
3.10 Intellectual Property............................................. 12
3.11 Misappropriation of Intellectual Property......................... 13
3.12 Labor Matters..................................................... 13
3.l3 Employee Benefit Plans............................................ l3
3.14 Customers and Suppliers........................................... 15
3.l5 Environmental, Health and Safety Matters.......................... 15
3.16 Insurance......................................................... 15
3.17 Related Party Relationships....................................... 16
(ii)
3.18 Ownership of Tangible Assets and Leases............................ 16
3.19 Brokers--Seller ................................................... 17
3.20 Capitalization of the Acquired Companies........................... 18
3.21 Companies.......................................................... 18
3.22 Descriptive Memorandum............................................. l8
3.23 Litigation......................................................... 18
3.24 Export............................................................. 18
3.25 Product Warranty and Product Liability Claims...................... 19
4. Representations and Warranties of Buyer.................................. 19
4.1 Buyer's Organization, Power, Execution............................. 19
4.2 Brokers--Buyer..................................................... 19
4.3 No Violation....................................................... 19
4.4 Approvals and Consents............................................. 19
5. Covenants of Seller...................................................... 19
5.1 Conduct of the Business............................................ 19
5.2 Certain Changes.................................................... 20
5.3 Employees.......................................................... 21
5.4 Exclusivity........................................................ 21
5.5 Limitations on Employee Solicitation and Competition............... 21
5.6 Intercompany Debt.................................................. 21
5.7 Patent assignments................................................. 22
6. Conditions Precedent to Obligations of Buyer............................. 22
6.1 Representations True at Closing.................................... 22
6.2 Covenants of Seller................................................ 22
6.3 No Injunction, Etc................................................. 22
6.4 Consents, Approvals, and Waivers................................... 22
6.5 Absence of Adverse Changes......................................... 22
6.6 Opinions of Seller's Counsel....................................... 22
7. Conditions Precedent to the Obligations of the Seller to Close........... 23
7.1 Representations True at Closing.................................... 23
7.2 Covenants of Buyer................................................. 23
7.3 No Injunction, Etc................................................. 23
7.4 Consents, Approvals and Waivers.................................... 23
7.5 Opinions of Buyer's Counsel........................................ 23
8. Publicity................................................................ 23
9. Information.............................................................. 23
9.1 Right to Investigate............................................... 23
9.2 Confidentiality.................................................... 24
10. Cooperation.............................................................. 24
11. Termination.............................................................. 24
11.1 Both Parties....................................................... 24
11.2 Buyer.............................................................. 24
(iii)
11.3 Seller............................................................ 24
12. Closing.................................................................. 25
12.1 Time and Place of Closing......................................... 25
12.2 Transactions at Closing........................................... 25
13. Survival of Representations and Warranties and Covenants................. 26
13.1 Survival of Representations and Warranties and Covenants
of Seller......................................................... 26
13.2 Survival of Representations and Warranties and Covenants
of Buyer.......................................................... 26
14. Indemnification.......................................................... 26
14.1 Indemnification by Seller......................................... 26
14.2 Indemnification by Buyer.......................................... 27
14.3 Limitations on Indemnification For Breach of Representations
and Warranties.................................................... 27
14.4 Claims for Indemnification........................................ 27
14.5 Defense by Indemnifying Party..................................... 28
14.6 Payment of Indemnification Obligation............................. 28
14.7 Exclusive Remedy.................................................. 28
15. Post-Closing Actions..................................................... 28
15.1 Services.......................................................... 28
15.2 Change of Names................................................... 28
15.3 Release of Guarantees by Seller................................... 28
15.4 Post-Closing Agreements........................................... 29
16. General.................................................................. 30
16.1 Affiliate Involvement............................................. 30
16.2 Payment of Expenses............................................... 30
16.3 Modifications; Waivers............................................ 31
16.4 Assignability..................................................... 31
16.5 No Other Representations.......................................... 31
16.6 Notices........................................................... 31
16.7 Captions.......................................................... 32
16.8 Counterparts and Attachments...................................... 32
16.9 Knowledge......................................................... 32
16.10 Governing Law..................................................... 32
17. Dispute Resolution....................................................... 32
17.1 Objective......................................................... 32
17.2 No Affiliate Actions.............................................. 32
17.3 Arbitration....................................................... 33
18. Entire Agreement......................................................... 33
(iv)
PURCHASE AGREEMENT
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THIS AGREEMENT, executed this day of May, 1998 between ELEKTA AB (PUBL),
a Swedish corporation ("Seller") and NITINOL MEDICAL TECHNOLOGIES, INC., a
Delaware corporation ("Buyer").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Seller is the ultimate parent of certain Affiliates, which are
engaged in the neurosurgical instrument business;
WHEREAS, Buyer desires to acquire the Seller's neurosurgical instrument
business; and
WHEREAS, Seller is willing to cause its Affiliates to sell its
neurosurgical instrument business to Buyer and/or its Affiliates,
NOW THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties contained herein, the parties hereto agree as
follows:
1. DEFINITIONS. In this Agreement the following terms shall have the meanings
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assigned to them below.
1.1 "Acquired Companies" shall mean EIL, EISA, ESRL, EHSA, EBEL, ESP,
ENTH, CIS, Spembly, Swedemed and SCL.
1.2 "Affiliate" of a specified person (natural or juridical) shall mean a
person that directly, or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with, the person
specified.
1.3 "Affiliate Distribution Business" shall mean that part of the Business
which is conducted by Affiliates of Seller (other than the Acquired Companies)
which are engaged primarily in businesses other than the Business and which act
as distributors of the Products.
1.4 "Andover Facility" shall mean the facility of the Business in Andover,
England located on the Andover Real Property.
1.5 "Andover Real Property" shall mean the real property described on
Exhibit 3.18.2.3A on which the Andover Facility is located, and which is leased
by Spembly.
1.6 "Assets" shall mean the property described on the attached Schedule of
Assets, but excluding the property described on the attached Schedule of
Excluded Assets, with only such changes therein as shall have occurred between
the Effective Date and the Closing Date in the ordinary course of business in
transactions not inconsistent with any of Seller's
representations, warranties, covenants and agreements set forth herein. The
Assets shall include without limitation all of the outstanding capital stock of
all of the Acquired Companies and shall also be deemed to include all assets of
the Acquired Companies which are not Excluded Assets.
1.7 "Assignment and Assumption Agreement" shall have the meaning set
forth in Section 2.3 hereof.
1.8 "Assumed Liabilities" shall have the meaning set forth in Section 2.3
hereof.
1.9 "Authorizations" shall have the meaning described in Section 3.3
hereof.
1.10 "Balance Sheet" shall mean the balance sheet of the Business as of
February 28, 1998 which is attached hereto as Exhibit 1.10.
1.11 "Biot Facility" shall mean the facility of the Business in Sophia
Antipolis (Biot), France located on the Biot Real Property.
1.12 "Biot Real Property" shall mean the real property described on
Exhibit 3.18.2.1, on which the Biot facility is located, and which is owned by
EISA.
1.13 "Business" shall mean the research, development, manufacturing,
marketing, selling and distribution conducted by Seller and its Affiliates
(including without limitation the Companies) with respect to the Products.
1.14 "Buyer's Closing Net Worth Amount" shall have the meaning set
forth in subsection 2.2(c).
1.15 "CIS" shall mean Cordis Innovasive Systems, Inc., a Florida
corporation, which is an indirect, wholly-owned subsidiary of Seller.
1.16 "Closing" shall mean the meeting of the parties at which the
sale, assignment, licensing, transfer and delivery of the Assets to Buyer and
the payment of the Purchase Price, purchase and acquisition of the Assets and
assumption of the Assumed Liabilities by Buyer are completed, which meeting
shall be held at the offices of Xxxxx, Day, Xxxxxx & Xxxxx in London, England,
at 10:00a.m. on the later of (a) June 16, 1998, or (b) the second English
business day following receipt of the necessary governmental consents referred
to in Section 2.5 hereof.
1.17 "Closing Balance Sheet" shall mean the balance sheet described
in Section 2.2 hereof.
1.18 "Closing Date" shall mean the date on which the Closing takes
place. The Closing shall be effective as of the close of business, English time,
on the Closing Date.
1.19 "Closing Financial Statements" shall mean the financial statements
described in Section 2.2 hereof.
1.20 "Closing Net Worth" shall mean the "TOTAL ASSETS" minus "Goodwill"
minus "TOTAL INTEREST-FREE LIABILITIES" minus "Interest-bearing Loans" (non-
group) minus "TOTAL PROVISIONS" of the Business as of the Effective Date, each
determined using
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the corresponding line item on the Closing Balance Sheet, and calculated to be
the "Total Adjusted" amount for such item as indicated on the Closing Balance
Sheet. An example of the calculation of net worth at February 28, 1998, which is
the template for the calculation of Closing Net Worth attached as Exhibit 1.20.
1.21 "Code" shall mean the Internal Revenue Code of 1986, as amended.
1.22 "Companies" shall mean, collectively, the following, and "Company"
shall mean each of the following: EIL, EISA, ESRL, EHSA, EBEL, ESP, ENTH,
Spembly, Swedemed, SCL, CIS, EIAL, the Seller, and EII; provided, however, the
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Seller, EII, EGBH and EIAL shall each constitute one of the Companies only in
relation to its activities, assets, liabilities, and employees which relate
primarily to the Business.
1.23 "Company Intellectual Property" means all Intellectual Property
used in the Business as it is currently conducted.
1.24 "Copyrights" shall mean all copyrights, rights to mask works and
database rights, and all registrations and applications for registration of any
of the foregoing.
1.25 "Critical Contracts" is defined in Section 2.5(c) hereof.
1.26 "Descriptive Memorandum" shall mean the offering memorandum
relating to the neurosurgical instrument business of Seller and its Affiliates
prepared by Credit Suisse First Boston (Europe) Ltd. and delivered to the Buyer
on or about December 15, 1997.
1.27 "EBEL" shall mean Elekta Instruments S.A., a Belgian corporation,
which is a wholly-owned subsidiary of Seller.
1.28 "EGBH" shall mean Elekta Instruments GmbH, a German limited liability
company, which is a wholly-owned subsidiary of Seller.
1.29 "EHSA" shall mean Elekta Holding S.A., a French corporation, which is
a wholly-owned subsidiary of Seller.
1.30 "EIAL" shall mean Elekta Instruments Asia Ltd., a Hong Kong
corporation, which is an indirect, wholly-owned subsidiary of Seller.
1.31 "EII" shall mean Elekta Instruments, Inc., a Georgia
corporation, which is an indirect, wholly-owned subsidiary of Seller.
1.32 "EIL" shall mean Elekta Instruments Ltd., an English corporation,
which is an indirect, wholly-owned subsidiary of Seller.
1.33 "EISA" shall mean Elekta Implants S.A., a French corporation, which
is a wholly-owned subsidiary of EHSA.
1.34 "ENTH" shall mean Elekta Instruments B.V., a Netherlands corporation,
which is an indirect, wholly-owned subsidiary of Seller
3
1.35 "ESP" shall mean Elekta Instruments S.A., a Spanish corporation,
which is a wholly-owned subsidiary of EHSA.
1.36 "ESRL" shall mean Elekta Instruments SARL, a French corporation,
which is a wholly-owned subsidiary of EHSA.
1.37 "Effective Date" shall mean April 30, 1998.
1.38 "Employee Benefit Plans" shall mean all pension, retirement, profit
sharing, deferred compensation, stock ownership, stock purchase, stock option,
restricted stock, bonus, severance or termination pay, cafeteria, medical,
hospital, life, health, accident, disability, death, or other material employee
benefit plans or arrangements.
1.39 "Environmental Laws" shall mean any applicable law, rule, regulation,
permit, administrative order, or decision, common law precedent or other binding
determination (whether national, provincial, state or local) pertaining to (1)
the use, analysis, generation, manufacture, storage, discharge, release,
disposal or transportation of Hazardous Materials, (2) health and safety of
employees and the public, (3) environmental regulation, (4) with respect to
Hazardous Materials, contamination, clean-up or disclosure, drinking water,
groundwater, landfills, open dumps, storage tanks (underground or otherwise),
solid waste, waste water, stormwater runoff, emissions, or xxxxx.
1.40 "Excluded Assets" shall mean the property described on the attached
Schedule of Excluded Assets.
1.41 "Excluded Environmental Liabilities" is defined in Section 2.3
hereof.
1.42 "Hazardous Materials" shall mean petroleum, including crude oil or
any fraction thereof, or any other chemical substance, material, object,
condition, waste, pollutant or combination thereof which is hazardous to human
health or safety or to the environment due to its radioactivity, ignitability,
corrosivity, reactivity, explosivity, toxicity, carcinogenicity, infectiousness
or other harmful or potentially harmful properties or effects and all of those
chemicals, substances, materials, objects, conditions, wastes, pollutants or
combinations thereof which are now listed, defined or regulated by any
applicable law or regulation (whether national, provincial, state or local)
based upon, directly or indirectly, such properties or effects.
1.43 "Improvements" shall mean, collectively, any and all buildings,
fixtures and other improvements located on the Real Property
1.44 "Income Statement" shall mean the income statement of the Business
for the ten months ended on February 28, 1998, attached as Exhibit 1.10 hereto.
1.45 "Intellectual Property" shall mean Copyrights, Patents, Know-
How, and Trademarks, and all rights vesting in the owner thereof pursuant to the
applicable laws of any competent jurisdiction.
1.46 "International Accounting Standards" shall mean International
Accounting Standards, as adopted by the International Accounting Standards
Committee.
4
1.47 "Know-How" shall mean methods, devices, technology, trade secrets,
industrial designs, know-how, technical manuals and documentation and other
proprietary information, including, without limitation, proprietary processes
and formulae.
1.48 "Patents" shall mean patents and patent applications, all
continuations, continuations-in-part, divisions, reissues, reexaminations,
extensions and foreign counterparts of such patents and patent applications, and
all invention disclosures.
1.49 "Products" shall mean the products described on the attached Schedule
of Products.
1.50 "Provisional Purchase Price" is defined in subsection 2.2(d)(i)
hereof.
1.51 "Purchase Price" shall mean the Tentative Purchase Price less the
Purchase Price Adjustment.
1.52 "Purchase Price Adjustment" shall be determined as follows:
(a) If the Closing Net Worth is equal to or greater than the Target
Net Worth, the Purchase Price Adjustment shall be zero; or
(b) If the Closing Net Worth is less than the Target Net Worth, the
Purchase Price Adjustment shall be equal to the excess of the Target Net Worth
over the Closing Net Worth, converted from SEK to USD based on the exchange rate
equal to 7.733 SEK per USD.
1.53 "Real Property" shall mean the Andover Real Property and the Biot
Real Property.
1.54 "Release" shall mean any intentional or accidental spilling, leaking,
pumping, pouring, emitting, emptying, discharging, injecting, escaping,
leaching, dumping, or disposing of any Hazardous Materials (including the
abandonment or discarding of barrels, containers and other closed receptacles
containing any Hazardous Materials).
1.55 "SCL" shall mean Spembly Cryosurgery Limited, an English corporation,
which is a wholly-owned subsidiary of Spembly.
1.56 "SEK" shall mean Swedish crowns.
1.57 "Swedemed" shall mean Swedemed AB, a Swedish corporation, which is a
wholly-owned subsidiary of EIL.
1.58 "Swedish GAAP" shall mean generally accepted accounting principles of
Sweden.
1.59 "Spembly" shall mean Spembly Medical Ltd., an English corporation,
which is a wholly-owned subsidiary of EIL.
1.60 "Target Net Worth" shall mean the amount of SEK 158,832,000.
5
1.61 "Taxes" shall mean any national, state, or local taxes, assessments,
interest, penalties, deficiencies, fees and other governmental charges or
impositions, including, without limitation, all income, gross receipts,
unemployment compensation, social security, payroll, sales, use, excise,
privilege, property, ad valorem, franchise, license, school and any other tax or
similar governmental charge or imposition under the laws of any nation or any
state or municipal or political subdivision thereof or any other country.
1.62 "Tax Return" shall mean any return, declaration, report, claim
for refund, or information return or statement relating to Taxes, including any
schedule or attachment thereto, and including any amendment thereof.
1.63 "Tentative Purchase Price" shall mean the amount of USD 33,000,000.
1.64 "Trademarks" shall mean (a) registered trademarks and registered
service marks, applications for registration for trademarks and service marks,
renewal registrations and applications for renewal registrations, extensions and
foreign counterparts of such registrations and applications for registration;
(b) material unregistered trademarks and service marks; (c) corporate names,
business names and trade names, whether registered or unregistered; and (d)
Internet domain names and associated addresses and URLs.
1.65 "U.K. Tax Covenant" shall mean the covenant in respect of EIL, SCL
and Spembly to be entered into at Closing by Buyer and Seller in the agreed
form.
1.66 "USD" shall mean United States Dollars.
2. PURCHASE AND SALE OF ASSETS.
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2.1 TRANSFER. At the Closing, Seller shall (and/or shall cause its
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Affiliates to) sell, assign, license, transfer and deliver the Assets to Buyer,
and Buyer shall purchase and acquire the Assets and assume the Assumed
Liabilities.
2.2 DETERMINATION AND PAYMENT OF PURCHASE PRICE.
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(a) As soon as practicable after the Effective Date, Seller shall
prepare and deliver to Buyer a balance sheet as of the Effective Date (the
"Closing Balance Sheet"). The Closing Balance Sheet shall be audited by an
internationally recognized certified public accountant firm. The Closing Balance
Sheet shall be prepared by Seller (at its expense) accurately and in accordance
with International Accounting Standards with amounts expressed in SEK using
prevailing exchange rates (as reported by the Swedish Central Bank as of the
Effective Date) and, to the extent possible given the difference in audit
valuation of individual items between Swedish GAAP and International Accounting
Standards, in a manner consistent with, and using the same methodology as, the
Balance Sheet, including "Adjustments" and "Group Adjustments" consistent with,
and using the same methodology as, the "Adjustments" and "Group Adjustments" in
the Balance Sheet. In the event Buyer asserts that the nature or amount of any
item reflected on the Closing Balance Sheet which affects the determination of
Closing Net Worth is not in accordance with International Accounting Standards
or is not determined in a manner consistent with the Balance Sheet (except as
provided above), Buyer and Seller shall in good faith attempt to resolve any
such dispute with respect to the Closing Balance Sheet. If Buyer and Seller
cannot reach agreement with respect to the determination of Closing
6
Net Worth within ten (10) days after the delivery of the Closing Balance Sheet
to Buyer, Buyer and Seller shall jointly appoint an internationally recognized
certified public accountant firm to determine the proper resolution of the
disagreements between Buyer and Seller concerning the determination of Closing
Net Worth, whose determination (the cost of which shall be divided equally
between Seller and Buyer) shall be made within thirty (30) days and be final and
binding on the parties. If Buyer and Seller cannot agree on the appointment of
such a certified public accounting firm, such firm shall be selected by
arbitration pursuant to Section 17.3 hereof.
(b) If the amount determined as the Purchase Price Adjustment
pursuant to subsection 1.52 is greater than USD 1,500,000, then:
(i) Seller shall have the right to give written notice to Buyer,
not later than four (4) days after the final determination of the Purchase Price
Adjustment, that Seller desires to terminate this Agreement; and
(ii) If Seller gives the notice pursuant to subparagraph (i)
above, Buyer may either:
(A) Give written notice to Seller not later than midnight
Boston time on the fourth full day following receipt by Buyer of the Seller's
notice that Buyer elects to fix the Purchase Price Adjustment at USD1,500,000,
in which event this Agreement shall not terminate; or
(B) Allow this Agreement to terminate pursuant to Seller's
notice, which shall occur automatically if Buyer does not give Seller the
written notice pursuant to subparagraph (A) above not later than four (4) days
after its receipt of Seller's notice, in which event Seller shall pay to Buyer
the amount of USD 500,000 as a termination fee.
(c) On the Closing Date, Buyer shall divide and pay the Purchase
Price to and among Seller and its Affiliates in such portions as Seller may
designate, such payments to be made by wire transfers of funds from banks
selected by Buyer to banks selected by Seller. Prior to the Closing Date, Buyer
and Seller shall use their best efforts to agree on the allocation of the
Purchase Price among the Assets.
(d) Notwithstanding the provisions of subsection 2.2(c) hereof, if
the Closing Net Worth shall not have been finally determined by the Closing
Date, the Closing shall nevertheless take place if the amount which Buyer
asserts to be the correct amount for the Closing Net Worth (the "Buyer's Closing
Net Worth Amount") would result in a Purchase Price Adjustment of no more than
USD 1,500,000, and in such event the following rules shall apply:
(i) At Closing, Buyer shall pay an amount (the "Provisional
Purchase Price") equal to what the Purchase Price would be if the Buyer's
Closing Net Worth Amount is the correct amount for the Closing Net Worth; and
(ii) Promptly after the Closing Net Worth is finally determined
in accordance with subsection 2.2 (a), Buyer shall pay to Seller the amount, if
any, by which the Purchase Price exceeds the Provisional Purchase Price.
7
2.3 ASSUMPTION OF LIABILITIES. Buyer shall assume at the Closing (a) the
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Closing Balance Sheet items listed on Exhibit 2.3 A, (b) the obligations of the
Companies under the contracts listed on Exhibit 3.9, all of which shall be
assumed pursuant to an assignment of contracts, and assumption of liabilities in
the form attached hereto as Exhibit 2.3 (the "Assignment and Assumption
Agreement"), and (c) the other obligations and liabilities described on Exhibit
2.3A (collectively the "Assumed Liabilities"). Buyer shall perform all
obligations related to the Assumed Liabilities. After Closing, Seller shall have
no responsibility to the Buyer or the Acquired Companies for the Assumed
Liabilities of the Companies except for any liability attributable to a
violation of any Environmental Law(s) by the Business prior to the Closing or
the Release of any Hazardous Materials prior to the Closing ("Excluded
Environmental Liabilities"). Buyer's assumption of the Assumed Liabilities
relating to the Acquired Companies is intended solely for the benefit of Seller
and its Affiliates and is not intended to create rights for any other parties.
2.4 INSTRUMENTS OF TRANSFER AND ASSUMPTION.
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(a) Seller shall deliver to Buyer at the Closing such endorsed share
certificates, stock transfer forms, bills of sale, assignments of lease, deeds,
assignments of lease, licenses and other instruments of assignment and transfer,
in form reasonably satisfactory to Buyer, as shall be effective to convey to
Buyer all of Seller's right, title and interest in and to each of the Assets.
(b) Buyer shall deliver to Seller at the Closing such instruments of
assumption, in form reasonably satisfactory to Seller, as shall be effective to
assure Seller that Buyer will perform all obligations related to the Assumed
Liabilities, including without limitation the Assignment and Assumption
Agreement.
2.5 CONSENTS.
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(a) Buyer and Seller shall cooperate in securing before and after the
Closing all consents with respect to the sales and transfers of the Assets from
each governmental authority whose consent is necessary to such sales and
transfers.
(b) The Seller, the Companies and any other relevant Affiliates of
Seller shall use their reasonable commercial efforts to obtain the waiver,
consent and approval of all non-governmental persons whose waiver, consent or
approval (i) is required in order to consummate the transactions contemplated by
this Agreement or (ii) is required by any material agreement, lease, mortgage or
security instrument, arrangement, judgment, decree, order, permit or license to
which Seller or any of the Companies is a party or subject on the Closing Date
and (A) which would prohibit, or require the waiver, consent or approval of any
person to such transactions or (B) under which, without such waiver, consent or
approval, such transactions would constitute an occurrence of default under the
provisions thereof, result in the acceleration of any obligation thereunder or
give rise to a right of any party thereto to terminate its obligations
thereunder.
(c) Nothing in this Agreement shall be deemed to constitute or
require an assignment or an attempt to assign any contract or other agreement
with any third party if the attempted assignment thereof without the consent of
any such third party would constitute a breach thereof or adversely affect in
any way the rights of Seller and its assignee thereunder. If,
8
after Seller shall have used reasonable efforts to obtain such consents from any
such third party, any such consent shall not have been obtained at or prior to
the Closing, or the attempted assignment of such contract or agreement without
such consent at the Closing would have an adverse effect on such rights or Buyer
would not in fact receive such rights, Seller shall cooperate with Buyer, at
Buyer's expense, in any reasonable arrangement designed to provide for Buyer the
benefits thereunder, including enforcing for the benefit of Buyer any or all
rights of Seller against any such third party arising out of the breach or
cancellation thereof by any such third party or otherwise. Provided, however,
-------- -------
Buyer shall not be obligated to close until Seller has obtained all consents of
third parties which are required for the assignment of those contracts listed on
Exhibit 2.5 hereto (the "Critical Contracts").
2.6 FURTHER ASSURANCES. Buyer and Seller shall each, from time to time
------------------
after the Closing, at the request of the other and without further
consideration, execute and deliver such further instruments of assignment,
transfer, license or assumption and take such further action as the other may
reasonably request in order more effectively to transfer, reduce to possession
and record title to any of the Assets, or to implement the assumption of the
Assumed Liabilities. Reasonable out of pocket expenses incurred in compliance
with this Section by one party at the request of the other party shall be
promptly reimbursed by the requesting party to the party incurring such
expenses.
2.7 SALES AND TRANSFER TAXES; FEES. All applicable sales, transfer,
------------------------------
registration, documentary, use, filing and other taxes (other than income taxes)
and other governmental (and notarial) fees that may be levied or are otherwise
payable with respect to the sale and transfer of the Business and the Assets
hereunder, whether levied on or payable by Seller or Buyer, shall be divided
equally between Buyer and Seller, and Buyer and Seller shall each pay one-half
(1/2) thereof.
3. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller represents and warrants to
----------------------------------------
Buyer as follows.
3.1 SELLER'S ORGANIZATION, POWER, EXECUTION.
---------------------------------------
(a) Each of Seller and the Companies is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation and has all requisite power and authority (corporate and other) to
own its properties, to carry on its business as now being conducted, to execute,
and deliver this Agreement and the agreements contemplated herein and to carry
out the transactions contemplated hereby and thereby. Each of the Companies is
duly qualified to do business and in good standing in all jurisdictions in which
its ownership of property or the character of its business requires such
qualification, except where the failure to be qualified in the case of any such
Company would not have a material adverse effect on the business or assets of
such Company. Certified copies of the charter and bylaws or other governing
documents of the Seller and each of the Acquired Companies, as amended to date,
have been previously delivered to the Buyer, are complete and correct, and no
amendments have been made thereto or have been authorized since the date
thereof.
(b) The execution and delivery of this Agreement and the agreements
provided for herein and the consummation of all transactions contemplated hereby
and thereby have been duly authorized by all necessary corporate action on the
part of Seller, and this Agreement has been duly executed and delivered by
Seller and constitutes, and each other
9
document and instrument required hereby to be executed and delivered to Buyer
will when delivered constitute, the valid and legally binding obligation of
Seller or its relevant Affiliate enforceable in accordance with its terms,
subject to bankruptcy laws and general equitable principles. The execution and
delivery of this Agreement and performance of the transactions contemplated
hereby will not with or without the giving of notice or the passage of time or
both, conflict with, result in a breach, violation or termination of any term or
provision by Seller or any of the Companies of, or constitute a default by
Seller or any of the Companies under, any agreement, instrument or order to
which Seller or any of the Companies is a party or by which Seller or any of the
Companies is bound or the corporate charter or by-laws or other governing
documents of Seller or any of the Companies, or any statute, judgment, order,
award, injunction, decree, regulation or ruling of any court, governmental
authority or arbitrator, or cause any acceleration under, or cause the creation
of any lien, charge or encumbrance upon the properties or assets of the Seller
or any of the Companies pursuant to, any indenture, mortgage, deed of trust or
other instrument or agreement to which the Seller or any of the Companies is a
party or by which the Seller or any of the Companies or any of their respective
properties is or may be bound.
3.2 RIGHT TO TRANSFER. Seller and its Affiliates have the right to
-----------------
transfer the Assets to Buyer and/or its Affiliates, subject to the consents
referred to in Subsections 2.5(b) and 2.5(c).
3.3 GOVERNMENTAL COMPLIANCE. Each of Seller and the Companies has the
-----------------------
corporate power and authority and all licenses and permits: (i) which are
required by governmental authorities to own and operate the Business and to
carry on the Business as now being conducted and (ii) whose absence would have a
material adverse effect on the Business (the "Authorizations"). The
Authorizations are in full force and effect. All of the Products comply, and
have been manufactured, marketed and sold in compliance, in all material
respects with all applicable laws and regulations. None of the Companies have
reasonable grounds to believe that any of the Authorizations will not in the
ordinary course be renewed or continued. To the knowledge of the Companies, the
current operation of the Business is not in material violation of any applicable
statute, ordinance, regulation or administrative or judicial order or ruling.
3.4 NOTICES OF VIOLATION. None of the Companies has received any written
--------------------
claim or written assertion that there has been any breach of any of the terms or
conditions of any Authorizations (or has knowledge of any threat thereof) in
such manner (a) as would permit any other party to cancel, terminate or
materially amend any Authorization, or (b) that any such breach or breaches
singly or in the aggregate could materially and adversely affect the financial
condition or results of operations of the Business. None of the Companies has
received any written notice requiring the accumulation and submission of
substantial clinical data necessary to establish the safety and effectiveness of
any Product not previously required or imposing any other material condition or
requirement restricting the continued commercial distribution of such Product.
3.5 DEFAULTS. Neither the execution and delivery of this Agreement nor the
--------
carrying out of any of the provisions hereof or the transactions contemplated
hereby will result in the creation or imposition of any security interest, lien,
claim, charge, or other encumbrance of any nature whatsoever upon any of the
Assets after the Closing Date.
10
3.6 FINANCIAL STATEMENTS AND CHANGES.
--------------------------------
(a) The Balance Sheet was prepared in accordance with Swedish GAAP
(insofar as applicable to the description of a portion of a business). The
Balance Sheet reflects all liabilities of the Business, whether absolute,
contingent, accrued or otherwise existing as of the date thereof which are of a
nature required to be reflected in financial statements prepared in accordance
with Swedish GAAP. The Income Statement was prepared in accordance with Swedish
GAAP (insofar as applicable to the description of a portion of a business). The
Balance Sheet and the Income Statement fairly present, in all material respects,
the financial condition and results of operations, respectively, of the Business
at the date of such Balance Sheet and for the ten month period covered by the
Income Statement. If the Balance Sheet and Income Statement had been prepared in
accordance with International Accounting Standards instead of Swedish GAAP, they
would not be materially different, except for possible differences attributable
to: (i) group adjustments for restructuring provisions, acquisition goodwill and
consolidation; (ii) treatment of pension plan overfunding or underfunding; and
(iii) valuation of intellectual property. Except as reflected in the Balance
Sheet or as disclosed on Exhibit 1.10 and Exhibit 3.9, the Companies are not in
default with respect to any material liabilities or obligations, and any
liabilities incurred or accrued subsequent to the date of the Balance Sheet have
been, or are being, paid and discharged in the normal course as they become due,
and all such liabilities and obligations were incurred in the ordinary course of
business except as indicated on Exhibit 1.10.
(b) Since the date of the Balance Sheet, there has been (a) no change
in the financial condition, assets, liabilities or business of the Business or
the Assets which has had a material adverse effect on the Business; (b) no
damage, destruction or loss (whether or not covered by insurance) materially
adversely affecting the Business or the Assets; (c) no labor trouble materially
adversely affecting the Business or the Assets; (d) no sale or transfer of any
Assets, except sales in the ordinary course of business; (e) no imposition of
any material lien, charge, encumbrance (which as used herein includes, without
limitation, any mortgage, deed of trust, conveyance to secure debt or security
interest) or claim upon any of the Assets, except for statutory landlord's liens
with respect to rent not yet due and payable and any current year lien with
respect to personal or real property taxes not yet due and payable; (f) no
default in any liability or obligation which would have a material adverse
effect on the Business; (g) no agreement by any of the Companies to any material
adverse change in the terms of any material contract or instrument to which it
is a party; or (h) no waiver, cancellation or disposal by any of the Companies
of, for less than the face amount thereof, any material claim or right which it
has against others; (i) no transaction or event which would materially increase
the tax liability of any of the Acquired Companies for any prior taxable year or
the tax liability of any of the Companies for any prior taxable year for which
Purchaser, the Assets, or any of the Acquired Companies would become liable; (j)
no payment of any dividend or other distribution to a shareholder by any of the
Acquired Companies; or (k) no transaction other than in the ordinary course of
business which can be reasonably expected to have a material adverse effect on
the Business.
3.7 TAX CONSOLIDATION. None of the Acquired Companies has ever been a
-----------------
member of an "affiliated group" of corporations (within the meaning of Section
1504 of the Code), other than the group of which Elekta Holding U.S., Inc. is
the common parent and, previously, the groups of which Cordis Corporation and
Xxxxxxx & Xxxxxxx were the common parents. Neither CIS nor any member of any
"affiliated group" of which Elekta Holdings U.S., Inc. is the common parent has
any outstanding waivers or extensions of any applicable statute of limitations
relating to the assessment of Taxes. An election under Treasury Reg. Section
1.1502-20(g) has not been
11
made with respect to CIS by Elekta Holdings U.S., Inc. A basis reduction
pursuant to Treasury Reg. Section 1.1502-20(b) or Treasury Reg. Section
1.337(d)-2T(b) has not been required to be made with respect to CIS with respect
to any period during which CIS has been a member of the "affiliated group" of
which Elekta Holdings U.S., Inc. is the common parent. CIS does not have any
actual or potential liability for any Tax obligation of any other taxpayer
(including without limitation any affiliated group of corporations or other
entities that included CIS during a prior period).
3.8 TAX RETURNS. Each of the Companies has, as of the date hereof, and
-----------
will prior to Closing have, timely and accurately filed all Tax Returns required
to be filed by it prior to such dates and has timely paid, and will on the
Closing Date be current in the payment and remittance of all Taxes. None of the
Companies is, or will become, subject to any additional Taxes as a result of the
failure to file timely or accurately, as required by applicable law, any Tax
Return or to pay timely any amount shown to be due thereon. No written
assessments or notices of deficiency or other communications have been received
by any of the Companies with respect to any Tax Return which has not been paid
or discharged, and no amendments or applications for refund have been filed or
are planned with respect to any such Tax Return. There are no agreements between
any of the Companies and any taxing authority waiving or extending any statute
of limitations with respect to any Tax Return. Save in the ordinary course of
their businesses, none of the Companies has incurred with respect to any period
ending on or prior to the Closing Date any taxable income or liability for
taxes. True and correct copies of the income tax returns for each of the
Acquired Companies for the past three years (or for such portion thereof as each
Acquired Company may have been in existence and may have been owned by Seller)
have heretofore been delivered by Seller to Buyer. None of the Acquired
Companies are parties to any tax sharing agreements. The provisions for Taxes
shown on the Closing Balance Sheet will be adequate to discharge all Taxes
incurred by the Acquired Companies with respect to all periods ending on or
before the Effective Date, including as if the taxable year of each of the
Acquired Companies ended on the Effective Date. Except as set forth in Exhibit
3.8 hereto, none of the Tax Returns of the Acquired Companies has been audited
by any taxing authority within the past three (3) years and no adjustments have
been made to any Tax Returns of the Acquired Companies by any taxing authority
pursuant to any such audit. CIS has not made or is not obligated to make any
payment which will be or may be characterized as an "excess parachute payment"
within the meaning of Section 280G(b)(1) of the Code. CIS has not flied a
consent pursuant to Section 341(f) of the Code nor has CIS agreed to have
Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset
(as such term is defined in Section 341(f)(4) of the Code). CIS is not and has
not been a United States real property holding corporation within the meaning of
Section 897(c)(2) of the Code during the applicable period specified in Section
897(c)(1)(A)(ii) of the Code.
3.9 CONTRACTS, ETC.
---------------
(a) Exhibit 3.9 and Exhibit 3.9(c) hereto (together with the
agreements described in Section 3.10(a) below) consists of a true and complete
list of all material contracts, agreements and other instruments entered into in
respect of the Business); and contemporaneously with or prior to the execution
of this Agreement, Seller has provided Buyer access to a true and complete copy
of each such contract, agreement or instrument which is in writing.
12
(b) All of the contracts, agreements, policies of insurance or
instruments described on the Schedule of Assets or in Exhibit 3.9 hereto and the
agreements described in Section 3.10(a) below are, except as disclosed on the
Schedule of Assets or Exhibit 3.9 hereto, valid and binding upon the Companies
and the other parties thereto and are in full force and effect and enforceable
in accordance with their terms, and, except as disclosed in Exhibit 3.9, none of
the Companies nor, to the knowledge of the Companies, any other party to any
such contract, commitment or arrangement has breached any material provision of,
the terms thereof. Except as disclosed in Exhibit 3.9, none of the Companies has
received any payment from any contracting party in connection with or as an
inducement for entering into any contract, agreement, policy or instrument
except for payment for actual services rendered or to be rendered by the
Companies consistent with amounts historically charged for such services.
(c) Exhibit 3.9(c) is a true and complete list of certain contracts
between Seller and/or the Acquired Companies and certain management employees of
the Business pursuant to which such management employees will be paid incentive
compensation upon the sale of the Business and pursuant to which one management
employee is promised certain compensation in the event his employment is
terminated under certain circumstances. Except as indicated on Exhibit 3.9(c),
Buyer shall not be required to assume any obligations of the Seller under the
contracts or arrangements listed on Exhibit 3.9(c).
3.10 INTELLECTUAL PROPERTY.
---------------------
(a) The Schedule of Assets sets forth a complete and correct list and
summary description of all Company Intellectual Property, together with a
complete list of all material agreements relating thereto, including without
limitation all licenses granted by or to the Companies with respect to any
Company Intellectual Property. Except as disclosed on the Schedule of Assets,
all such Company Intellectual Property is beneficially owned and owned of record
by the Companies, free and clear of all liens, claims, security interests and
encumbrances of any nature whatsoever and constitute all of such items necessary
for the lawful conduct of the Business as now conducted.
(b) (i) Each Company has, or will have upon Closing, such rights to
use, protect, prosecute, sell, transfer, license, dispose of or bring actions
for the infringement of its rights in and to, and to exclude others from using
the Company Intellectual Property as are established by, the applicable laws of
each relevant jurisdiction (and to the extent provided in each agreement under
which each Company is licensee) to the sole and exclusive owner of an item of
Intellectual Property of such kind; (ii) except as disclosed on the Schedule of
Assets, each Company is the sole beneficial and record owner of its intellectual
property and the Company Intellectual Property which is registered or the
subject of an application for registration (collectively, the "Company
Registered Intellectual Property") has been duly maintained in all material
respects in accordance with the legal and administrative requirements of the
appropriate jurisdictions, and has (except for patents which may have expired on
their normal expiration dates) not lapsed, expired, been canceled or been
abandoned; (iii) no registration or application for registration of any material
item of Company Registered Intellectual Property is the subject of any pending
opposition, interference, cancellation or other legal or governmental proceeding
filed before any governmental authority in any competent jurisdiction.
(c) Except as disclosed on Exhibit 3.10, none of the Companies is
currently in receipt of any written notice of any violation of, and, to the
knowledge of the Companies,
13
none of Companies (and none of their employees or agents) is infringing,
misappropriating, misusing or violating, the rights of others in any
Intellectual Property. To Seller's knowledge the business of Spembly, SCL and
EIL is not subject to any claim to pay compensation pursuant to Sections 40 and
41 of the Patents Xxx 0000, and, to the Seller's knowledge, there are not any
facts likely to give rise to such a claim.
3.11 MISAPPROPRIATION OF INTELLECTUAL PROPERTY. There has been, to the
-----------------------------------------
knowledge of the Companies, no infringement, unauthorized use or disclosure or
misappropriation by any third party of any Company Intellectual Property that
could reasonably be expected to have a material adverse effect on the Business.
3.12 LABOR MATTERS.
-------------
3.12.1 Within the last three (3) years none of the Companies has been the
subject of any labor dispute, nor has there been any strike of any kind called
or threatened to be called against either of them. To the knowledge of the
Companies, none of the Companies has committed a violation of any applicable law
or regulation relating to labor or labor practices which would have a material
adverse effect on the Business.
3.12.2 Except as specified on Exhibit 3.12, there are no agreements or
arrangements including recognition agreements between any of the Companies and
any trade union or other body representing employees.
3.12.3 To Seller's knowledge, no executive of the Business has given or
received notice terminating his employment and no such executive or officer will
be entitled to give such notice as a result of this Agreement.
3.12.4 To Seller's knowledge, there are no current investigations by any
governmental or regulatory body in relation to any employment practice in the
Business.
3.13 EMPLOYEE BENEFIT PLANS.
----------------------
3.13.1 All Employee Benefit Plans have been maintained in substantial
compliance with the requirements of all applicable laws and regulations and in
the case of The Surgical Technology Group Pension and Life Assurance Scheme
("Pension Scheme") the rules of that Scheme.
3.13.2 None of the Companies maintains, contributes to, or is obligated to
contribute to any "multiemployer plan," as defined in Section 3(37) of Employee
Retirement Income Security Act of 1974 (as amended).
3.13.3 Attached hereto as Exhibit 3.13.3 is a complete list of all
Employee Benefits Plans currently maintained by the Acquired Companies.
3.13.4 No action, investigation or audit (other than routine claims for
benefits) is pending or threatened against any Employee Benefit Plan of any of
the Acquired Companies.
14
3.13.5 The Balance Sheet reflects an accrual for any unpaid liabilities
relating to Employee Benefit Plans which are required to be accrued by
International Accounting Standards.
3.13.6 Except pursuant to the contracts listed on Exhibit 3.9(c), no
amounts will be paid, or benefits or vesting of benefits accelerated under, any
Employee Benefit Plan of any Acquired Company as a result of the transactions
provided for in this Agreement.
3.13.7 The Assumed Liabilities do not include any Employee Benefit Plans
of EII, EIAL, EGBH or the Seller.
3.13.8 Attached hereto as Exhibit 3.13.8 is a current list of all
employees of the Business and their current compensation.
3.13.9 No power under the Pension Scheme to augment benefits or to
provide benefits which would not otherwise have been provided has been exercised
since the date of its last actuarial valuation.
3.13.10 Only employees of Spembly, SCL and EIL have participated in the
Pension Scheme.
3.13.11 All lump sum death in service benefits (other than a refund of the
member's contributions with interest where appropriate) payable under the
Pension Scheme on death before normal pension age of a member while in an
employment to which the Pension Scheme relates are insured fully under a policy
with an insurance company of good repute.
3.13.12 All contributions to the Pension Scheme have at all times been
made in accordance with the provisions of the Pension Scheme and the
recommendations of the actuary to the Pension Scheme.
3.13.13 Save as set out in Exhibit 3.13.13, there has been no increase or
decrease in the rate of any contribution to the Pension Scheme by Spembly, SCL
or EIL by any member at any time in the three years ending on the date of this
Agreement and no such increase or decrease is agreed, or, on the basis of
actuarial advice received in respect of the Pension Scheme, proposed or advised.
3.13.14 So far as the Seller is aware there is not in respect of the
Pension Scheme or the benefits thereunder any material actions, suits or claims
pending or threatened (other than routine claims for benefits).
3.13.15 No "surplus payment" within the meaning of the Pension Scheme
Surpluses (Administration) Regulations 1987 (S.I. 1987 No.352) has been made out
of the Pension Scheme.
3.14 CUSTOMERS AND SUPPLIERS. None of the Companies has received any
-----------------------
written notice that any customer or supplier of the Companies has taken any
steps which could disrupt the business relationship of the Companies with such
customer or supplier in a way that would result in a material adverse effect on
the Business.
15
3.15 ENVIRONMENTAL, HEALTH AND SAFETY MATTERS. Except as set forth on
----------------------------------------
Exhibit 3.l5 hereto:
3.15.1 The Companies are and have at all times been in substantial
compliance with all applicable Environmental Laws in connection with the
leasing, ownership, operation and condition of the Real Property, Assets and the
Business. There are no past or pending violations or alleged violations by the
Companies of any Environmental Laws asserted by any governmental entity or third
party. Set forth on Exhibit 3.15 are all permits, licenses, and approvals
necessary to conduct the Business in compliance with Environmental Laws.
3.15.2 There is no past or ongoing Release of Hazardous Materials
into the environment on, from or within any real property owned, leased, or
utilized by the Business. Any Release of Hazardous Materials into the
environment set forth on Exhibit 3.15 has not caused or aggravated any condition
or damage which would necessitate response, removal, or other remedial action
after the date of this Agreement with respect to any property, regardless of
whether the property is owned, leased or otherwise utilized by the Companies.
Set forth on Exhibit 3.15 are all environmental assessments, reports, or
investigations, whether commissioned by the Companies with respect to any
property currently or previously owned, leased, or utilized by the Business.
3.15.3 No employee, invitee, trespasser, or member of the public at
large has had his or her health impaired or threatened as the result of the
operation of the Business or as the result of the release of Hazardous Materials
related to the operation of the Business.
3.15.4 There are no Hazardous Materials located on, contained in, or
otherwise part of any property utilized by the Business. The Business has not
arranged for the transportation, storage, or disposal of any Hazardous Materials
at any property or site not owned or controlled by the Business that has or is
reasonably likely to give rise to any liability under any Environmental Law to
the Companies.
3.15.5 There are no landfills, lagoons, impoundments, waste piles,
drum storage areas, or underground storage tanks on any property previously or
currently owned, leased, or utilized by the Business.
3.16 INSURANCE. Seller has obtained insurance for the risks of the Business
---------
in amounts and at rates details of which have been provided to Buyer. Since
January 1, 1998, there has not been any material adverse change in the
Companies' relationship with its insurers or in premiums payable. Attached
hereto as Exhibit 3.16 is a list of pending insurance claims relating to the
Business and a history of insurance claims relating to the Business for the five
(5) years preceding the date of this Agreement (or with respect to parts of the
Business owned by Seller for less than five (5) years, for the period of time
owned by Seller).
3.17 RELATED PARTY RELATIONSHIPS. No officer or director of the Companies
---------------------------
possesses, directly or indirectly, any beneficial interest in, or is a director,
officer or employee of, any corporation, partnership, firm, association or
business organization which is a client, supplier, customer, lessor, lessee,
lender, creditor, borrower, debtor or contracting party with or of the Companies
(except as a stockholder holding less than a one percent interest in a
corporation whose shares are traded on a national or regional securities
exchange or in the over-the-counter market).
16
3.18 OWNERSHIP OF TANGIBLE ASSETS AND LEASES.
---------------------------------------
3.18.1 With respect to Assets other than intellectual property,
Real Property and Improvements:
3.18.1.1 Except as disclosed on Exhibit 3.18.1.2 (with
respect to leased Assets), the Companies have good title to all of the Assets
subject to no mortgage, pledge, lien, security interest, conditional sale
agreement, encumbrance, charge or adverse claim whatsoever, except for statutory
landlord's liens with respect to rent not yet due and payable and lien for
current year's property tax not yet due and payable.
3.18.1.2 Exhibit 3.18.1.2, describes each of the
material Assets which has a value in excess of USD 100,000 which are held under
any lease, or as conditional vendee under any conditional sale or other title
retention agreement.
3.18.1.3 Each of the leases and agreements described in
Exhibit 3.18.1.2 is in full force and effect and constitutes a legal, valid and
binding obligation of each of the Companies and the other respective parties
thereto and is enforceable in accordance with its terms, and there is not under
any of such leases or agreements existing any material default of any of the
Companies or, to the knowledge of the Companies, of any other parties thereto
(or event or condition which, with notice or lapse of time, or both, would
constitute a material default). None of the Companies has received any payment
from lessor in connection with or as inducement for entering into any such lease
except as set forth on Exhibit 3.18.1.2. Any security deposits made under the
leases listed in Exhibit 3.18.1.2 is set forth in such exhibit.
3.18.1.4 None of the Assets are leased by any of the
Companies to any other person or entity.
3.18.1.5 The Assets include all material assets which
are necessary to conduct the Business as presently conducted, except for certain
items of shared equipment not currently devoted exclusively to the Business,
which consist of office equipment and computer hardware and software necessary
for financial reporting and consolidation.
3.18.1.6 To the knowledge of the Companies, all material
items of machinery and equipment used in the Business is usable and operable in
good working order and is in a reasonable state of repair, subject only to
ordinary wear and tear, and has been subject to regular maintenance.
3.18.1.7 Except pursuant to this Agreement and the
License and Technology Agreement among EII, Xxxxx Xxxxxxx, Xxxxxx Xxxxxxx and
Florida Hospital Supply, Inc. dated May 10, 1994, none of the Companies is a
party to any contract or obligation whereby there has been granted to anyone an
absolute or contingent right to purchase, obtain or acquire any rights in any of
the Assets.
3.18.2 With respect to the Real Property and Improvements:
3.18.2.1 The Biot Real Property is the only owned real
estate used in the Business.
17
3.18.2.2 EISA owns good title to the Biot Real Property
and to all of the Improvements on the Biot Real Property, subject to no
mortgage, pledge, lien or any other encumbrance, except for: liens for property
taxes not yet due and payable, easements and other restrictions of record which
do not have a material adverse effect on the use of the Real Property in
connection with the Business, restrictions imposed by zoning or planning laws
which do not have a material adverse effect on the Business as presently
conducted, and an obligation to dispose of the undeveloped portion of the Biot
Real Property if certain additional building space is not constructed prior to
December 31, 2004.
3.18.2.3 The properties described in Exhibits 3.18.2.3A
and 3.18.2.3B constitute the only leased real estate used in the Business in
France, the United Kingdom and the United States. The leases described in
Exhibits 3.18.2.3A and 3.18.2.3B are in full force and effect and constitute
legal, valid and binding obligations of the Companies and the other respective
parties thereto and are enforceable in accordance with their terms, subject to
bankruptcy laws and general equitable principles. There is not existing under
any of such leases any material default of the Companies or, to the knowledge of
the Companies, of any other party thereto (or event or condition which, with
notice or lapse of time, or both, would constitute a default). None of the
Companies has received any payment from a lessor in connection with or as
inducement for entry into any such lease except as set forth on Exhibits
3.18.2.3A or 3.18.2.3B.
3.18.2.4 None of the property or part thereof shown on
Exhibits 3.18.2.1, 3.18.2.3A or 3.18.2.3B is leased by any of the Companies to
any other person or entity.
3.18.2.5 No taxes, assessments, water charges or sewer
charges relating to the Real Property or the Improvements are delinquent and
there are no special taxes, assessments or charges pending or, to the knowledge
of the Companies, threatened against the Real Property or the Improvements.
3.18.2.6 The Real Property and the Improvements are
usable and operable in the Business and the Improvements are in good working
order and in a reasonable state of repair, subject only to ordinary wear and
tear.
3.18.2.7 There are no pending or, to the knowledge of
the Companies, threatened or contemplated condemnation proceedings affecting the
Real Property or any part thereof.
3.18.2.8 None of EIL, SCL or Spembly is or has been in
occupation of or entitled to any estate or interest in land or premises save the
property at Andover referred to in Exhibit 3.18.2.3A
3.18.2.9 Save for the deposit of the title deeds of the
property at Andover referred to in Exhibit 3.18.2.3A such property and its title
deeds are free from any encumbrance or other third party right whether in the
nature of security or otherwise.
3.18.2.10 Spembly, in respect of the property at Andover
referred to in Exhibit 3.18.2.3A has, to the Seller's knowledge, performed and
observed all material covenants affecting such property requiring observance or
performance by it and, to Seller's knowledge, no notice of any breach of any
such material covenants has been received.
18
3.19 BROKERS-SELLER. None of the Seller, the Companies or any of their
--------------
Affiliates have engaged any person which could have any valid claim against
Buyer for a finder's fee, brokerage commission or other similar payment nor
otherwise acted in such a manner as to give rise to any valid claim against
Buyer for a finder's fee, brokerage commission or other similar payment.
3.20 CAPITALIZATION OF THE ACQUIRED COMPANIES.
----------------------------------------
The current capitalization of each of the Acquired Companies and
the current shareholder(s) of each of the Acquired Companies is set forth in
Exhibit 3.20 hereto. All of the issued and outstanding shares of each Acquired
Company have been and on the Closing Date will be duly and validly issued and
are, or will be on such date, fully paid and non-assessable. All of the issued
and outstanding shares of each Acquired Company are owned by its shareholder(s)
listed on Exhibit 3.20 free and clear of all liens, claims, charges and
encumbrances of any nature whatsoever, and the authorization or consent of no
other person or entity is required in order to consummate the transactions
contemplated herein by virtue of any such person or entity having an equitable
or beneficial interest in such Acquired Company or the capital stock of such
Acquired Company. There are not, and on the Closing Date there will not be,
outstanding any options, warrants, or other rights to purchase from any Acquired
Company any capital stock of such Acquired Company; any securities or
obligations which are convertible into or exchangeable for any shares of capital
stock of such Acquired Company; or any other commitments of any kind by any
Acquired Company to issue any additional shares of its capital stock to pay any
dividends on such shares or to purchase, redeem, or retire any outstanding
shares of its capital stock. The number of issued and outstanding shares of each
Acquired Company held in the treasury of such Acquired Company is set forth in
Exhibit 3.20 hereto.
3.21 COMPANIES. Exhibit 3.20 attached hereto sets forth (i) the
---------
jurisdiction of incorporation, capitalization and ownership of each Acquired
Company; (ii) the names of the officers and directors of each Acquired Company;
(iii) the jurisdictions in which each Acquired Company is qualified or holds
licenses to do business as a foreign corporation; and (iv) the name and
percentage ownership by each Acquired Company of each corporation, partnership,
joint venture or other entity in which such Company has, directly or indirectly,
an equity interest representing 50% or more of the capital stock thereof or
other equity interests therein.
3.22 DESCRIPTIVE MEMORANDUM. To the knowledge of Seller, the
----------------------
Descriptive Memorandum does not contain any untrue statement of a material fact
and does not omit to state a material fact necessary to make the statements
contained therein, in light of the circumstances under which they are made, not
misleading. Provided, however, Buyer and Seller hereby acknowledge that the
-------- -------
financial projections contained in the Descriptive Memorandum are no longer
current.
3.23 LITIGATION. Except as otherwise set forth in Exhibits 3.23 or
----------
3.10 hereto, there is no suit, action, proceeding, claim or investigation
pending or, to the knowledge of Seller, threatened against any of the Acquired
Companies or against any of the other Companies relating to the Business,
including without limitation claims for breach of product warranties. Within the
five (5) years preceding the date of this Agreement, there have been no product
liability claims asserted in writing against any of the Companies with respect
to any of the Products, except as disclosed on Exhibit 3.23 hereto.
19
3.24 EXPORT. Neither the Seller nor any of the other Companies has
------
sold (directly or indirectly) any Products that were manufactured in the United
States in or to any of the following countries (or to any party known by Seller
to be acting on behalf of any of the following countries): Cuba, Libya, Iran,
Iraq, North Korea, Sudan or Syria.
3.25 PRODUCT WARRANTY AND PRODUCT LIABILITY CLAIMS. No Product sold or
---------------------------------------------
delivered by any Company is subject to any warranty, guaranty, right of return
or other indemnity other than the relevant Company's applicable standard terms
and conditions of sale, which are consistent with customary industry practice.
Seller has maintained product liability insurance coverage in amounts of not
less than SEK 500,000,000 per occurrence and SEK 500,000,000 in the aggregate
with respect to products sold by the Companies. Such product liability insurance
is on a claims made basis.
4. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer represents and warrants to
---------------------------------------
Seller as follows.
4.1 BUYER'S ORGANIZATION, POWER, EXECUTION. Buyer is a corporation
--------------------------------------
duly organized validly existing and in good standing under the laws of Delaware,
and has all requisite corporate power and authority to carry out the
transactions contemplated by this Agreement. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby have been
duly authorized by all necessary corporate action on the part of Buyer, and this
Agreement has been duly executed and delivered by Buyer and constitutes a valid
and legally binding obligation of Buyer enforceable in accordance with its
terms, subject to bankruptcy laws and general equitable principles.
4.2 BROKERS-BUYER. Buyer has not engaged any person which could have
-------------
any valid claim against Seller for a finders fee, brokerage commission or other
similar payment.
4.3 NO VIOLATION. Assuming receipt of the approvals referred to in
------------
Section 2.5(a), the execution and delivery of Buyer of this Agreement does not,
and the performance by Buyer of its obligations hereunder and the consummation
by Buyer of the transactions contemplated hereby will not (i) violate any law or
regulation, governmental or court order, judgement or decree applicable to
Buyer, or (ii) result in any breach of any contract, agreements, license or
permit to which Buyer is a party or by which Buyer is bound.
4.4 APPROVALS AND CONSENTS. Except for the approvals referred to in
----------------------
Section 2.5(a), no consent, approval, authorization or order of, action by
filing with or notification to any governmental, regulatory or administrative
authority is required for the execution and delivery of this Agreement by Buyer
and for the consummation by Buyer of the transactions contemplated hereby.
5. COVENANTS OF SELLER. Seller covenants and agrees as follows.
-------------------
5.1 CONDUCT OF THE BUSINESS. From the date hereof to the Closing
-----------------------
Date, except as otherwise permitted by this Agreement or unless the prior
written consent of Buyer is obtained (such consent not to be unreasonably
withheld or delayed), Seller shall cause the Companies to: (a) carry on the
Business in the usual, regular and ordinary course in substantially the same
manner as heretofore and use commercially reasonable efforts to preserve intact
the present business organization, keep available the services of present
employees, and preserve
20
relationships with customers, suppliers and others having dealings with the
Business, (b)refrain from making or instituting any unusual or new methods of
manufacture, purchase, sale, shipment or delivery, lease, management, accounting
or operation, or shipping or delivering any quantity of Products in excess of
normal shipment or delivery levels, except as agreed to in writing by the Buyer,
(c) except with respect to EGBH, make no sales or other dispositions of assets
other than sales in the ordinary course of business, (d) perform each obligation
(for which there is no reason to contest) under agreements affecting the Assets
or Business, (e) maintain the books of account and records concerning the
Business in a regular manner consistent with past practices, (f) maintain the
physical assets of the Companies in substantially the same working order and
condition as such physical assets are in as of the date of this Agreement,
reasonable wear and tear excepted; and (g) continue in effect all insurance of
the Business including without limitation the product liability insurance
referred to in Section 3.25. All of the property of the Companies shall be used,
operated, repaired and maintained in a normal business manner consistent with
past practice.
5.2 CERTAIN CHANGES. Between the date hereof and the Closing Date,
---------------
except as otherwise specifically permitted by this Agreement or unless the prior
written consent of Buyer is obtained (such consent not to be unreasonably
withheld or delayed), Seller shall not permit (a) the mortgage, pledge or
subjection to any lien, lease, security interest or other charge or encumbrance
of any of the Assets except for landlord's liens with respect to rent not yet
due and payable and liens for property taxes not yet due and payable and other
inchoate liens incurred in the ordinary course of business which do not have a
material adverse effect on the Business, (b) the sale, assignment, transfer,
abandonment or other disposition of any of the Assets, or any interest therein,
otherwise than sales in the ordinary course of business, (c) the merger or
consolidation of any of the Companies with any corporation, partnership,
association or other business organization or division thereof, unless such
transaction specifically excludes the Assets and provides for their sale as
contemplated by this Agreement; (d) the modification, amendment, alteration or
termination of any of the contracts described on Exhibit 3.9; (e) the
declaration or payment of any dividends or other distributions to a shareholder
by any of the Acquired Companies or the purchase or redemption of any shares of
its capital stock; or (f) any of the Acquired Companies to (i) take any action
to amend its charter or bylaws or other governing documents; (ii) issue any
stock, bonds or other corporate securities or grant any option or issue any
warrant to purchase or subscribe to any of such securities or issue any
securities convertible into such securities; (iii) incur any obligation or
liability (absolute or contingent), except current liabilities incurred and
obligations under contracts entered into in the ordinary course of business;
(iv) cancel any debts or claims, except in the ordinary course of business; (v)
make, accrue or become liable for any bonus, profit sharing or incentive
payment, except for accruals under existing plans, if any, or increase the rate
of compensation payable or to become payable by it to any of its officers,
directors or employees, other than increases in the ordinary course of business
consistent with past practice; (vi) make any election or give any consent under
the Code or the tax statutes of any state or other jurisdiction or make any
termination, revocation or cancellation of any such election or any consent or
compromise or settle any claim for past or present tax due; (vii) waive any
rights of material value; (viii) make or permit any act or omission constituting
a breach or default under any contract, indenture or agreement by which it or
its properties are bound; (ix) enter into any leases, contracts, agreements or
understandings other than those entered into in the ordinary course of business
calling for payments which in the aggregate do not exceed $100,000 for each such
lease, contract, agreement or understanding; (x) engage any employee for a
salary in excess of $575,000 per annum; (xi) materially alter the terms, status
or
21
funding condition of any Employee Benefit Plan; or (xii) commit or agree to do
any of the foregoing in the future.
5.3 EMPLOYEES. Seller agrees to encourage the employees of the
---------
Business to continue their employment with Buyer or its Affiliates after
Closing. Buyer shall offer (or cause one of its Affiliates to offer) to hire all
employees of the Business who are employed by EII, EGBH or EIAL on the Closing
Date for substantially the same salary and benefits which they presently have.
EII will take all actions necessary to provide any employee of the Business
employed by EII (or dependents of such employee) with any health care
continuation coverage mandated by Section 4980B of the Code or Part 6 of Title I
of the Employee Retirement Income Security Act of 1974 (as amended) as a result
of any qualifying event experienced on or before the Closing Date, including
delivery of any notices required by such provisions.
5.4 EXCLUSIVITY. Prior to the Closing Date or the date on which this
-----------
Agreement is terminated pursuant to Section 11, neither the Seller nor any of
its shareholders, officers, directors, representatives, agents or affiliates
shall (i) directly, or indirectly through any other party, engage in any
discussions or negotiations with, or provide any information to, any other
person, firm or corporation with respect to an acquisition transaction involving
the Business, or (ii) directly, or indirectly through any other party, solicit
any proposal or offer relating to the acquisition of, or other major transaction
involving the Business.
5.5 LIMITATIONS ON EMPLOYEE SOLICITATION AND COMPETITION. During the
----------------------------------------------------
period of two (2) years following the Closing Date, Seller and its Affiliates
shall not:
(a) Offer employment to or employ any individual (other than Mats
Xxxxxxx and Maryse Kergueno) who is/was an employee of the Business at the time
of the offer/employment or at any time within six (6) months prior to the
offer/employment;
(b) Manufacture, market or sell any product which has the same or
substantially the same form, function or primary applications as any of the
Products (as defined in this Agreement) which are manufactured, marketed or sold
by the Buyer. Provided, however, this Section 5.5(b) shall not prohibit Seller
-------- -------
or its Affiliates from marketing or selling any surgical instruments or medical
devices in conjunction with the Leksell Microstereotactic System, the Leksell
Gamma Knife or image guided surgery systems.
The parties hereto agree that the duration and geographic scope of the non-
competition provision set forth in this Subsection 5.5 are reasonable. In the
event that any court determines that the duration or the geographic scope, or
both, are unreasonable and that such provision is to that extent unenforceable,
the parties hereto agree that the provision shall remain in full force and
effect for the greatest time period and in the greater area that would not
render it unenforceable. The parties intend that this non-competition provision
shall be deemed to be a series of separate covenants, one for each and every
county of each and every state of the United States of America and each and
every political subdivision of each and every country outside the United States
of America where this provision is intended to be effective. The Seller agrees
that damages are an inadequate remedy for any breach of this provision and that
the Buyer shall, whether or not it is pursuing any potential remedies at law, be
entitled to equitable relief in the form of preliminary and permanent
injunctions without bond or other security upon any actual or threatened breach
of this non-competition provision.
22
5.6 INTERCOMPANY DEBT. Prior to the Closing Date, Seller will,
-----------------
effective as of the Effective Date, cause the cancellation of all debt and
intercompany accounts owed by any of the Companies, on the one hand, to Seller
or any of its Affiliates (other than the Companies), on the other hand, and the
cancellation of all debt and intercompany accounts owed by Seller or any of its
Affiliates (other than the Companies), on the one hand, to any of the Companies,
on the other hand.
5.7 PATENT ASSIGNMENTS. Prior to the Closing Date, to the extent not
------------------
heretofore accomplished, Seller will cause all assignment documents transferring
record ownership of all patents and trademarks listed in the Schedule of Assets
as being beneficially owned by the Companies to be executed and filed in
relevant governmental offices. Provided, however, the covenant set forth in the
-----------------
preceding sentence shall not include patents numbered 24 to 32 inclusive in the
list entitled "Title to Be Assigned - Patents and Patents Applications", with
respect to which Seller shall use its best commercial efforts to fulfill the
covenant set forth in the preceding sentence.
5.8 EMPLOYEE NOTIFICATION. Prior to the Closing Date, Seller shall
---------------------
cause the Companies to (i) complete all consultations required to be made with
their respective worker's committees or works councils regarding the
transactions contemplated hereby and (ii) provide all notices required to be
given to employees regarding the transactions contemplated hereby.
6. CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER.
--------------------------------------------
All of the obligations of Buyer to consummate the transactions contemplated
by this Agreement shall be contingent upon and subject to the satisfaction, on
or before the Closing Date, of each and every one of the following conditions,
all or any of which may be waived, in whole or in part, by Buyer for purposes of
consummating such transactions, but without prejudice to any other right or
remedy which Buyer may have hereunder as a result of any misrepresentation by,
or breach of any covenant or warranty of, Seller or the Companies contained in
this Agreement or any other certificate or instrument furnished by Seller or the
Companies hereunder.
6.1 REPRESENTATIONS TRUE AT CLOSING. The representations and
-------------------------------
warranties made by Seller to Buyer in Section 3 of this Agreement shall be true
and correct in all material respects on the Closing Date with the same force and
effect as though such representations and warranties had been made on and as of
such time, except for changes contemplated by this Agreement.
6.2 COVENANTS OF SELLER. Seller shall have performed in all material
-------------------
respects all of the covenants, acts and undertakings to be performed by it on or
prior to the Closing Date, and a duly authorized officer of Seller shall deliver
to Buyer a certificate dated as of the Closing Date certifying to the
fulfillment of this condition and the condition set forth in Section 6.1 hereof.
6.3 NO INJUNCTION, ETC. No action, proceeding, investigation,
------------------
regulation or legislation shall have been instituted or threatened before any
court, governmental agency or legislative body to enjoin, restrain, or prohibit
the consummation of the transactions contemplated hereby, if such action,
proceeding, investigation, regulation or legislation makes it impracticable to
consummate such transactions.
23
6.4 CONSENTS, APPROVALS, AND WAIVERS. Buyer shall have received a
--------------------------------
true and correct copy of each and every consent, approval and waiver (a)
referred to in Section 2.5(a) hereof, and (b) required for the assignment of
Critical Contracts.
6.5 ABSENCE OF ADVERSE CHANGES. Since the date of the Balance Sheet,
--------------------------
there shall have been no material adverse change in the assets, liabilities,
results of operations or financial condition of the Business.
6.6 OPINIONS OF SELLER'S COUNSEL. Buyer shall have received the legal
----------------------------
opinions described on Exhibit 6.6 hereto.
7. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE SELLER TO CLOSE.
--------------------------------------------------------------
All of the obligations of Seller to consummate the transactions
contemplated by this Agreement shall be contingent upon and subject to the
satisfaction, on or before the Closing Date, of each and every one of the
following conditions, all or any of which may be waived, in whole or in part, by
Seller for purposes of consummating such transactions, but without prejudice to
any other right or remedy which it may have hereunder as a result of any
misrepresentation by, or breach of any covenant or warranty of Buyer contained
in this Agreement, or any certificate or instrument furnished by it hereunder.
7.1 REPRESENTATIONS TRUE AT CLOSING. The representations and
-------------------------------
warranties made by Buyer to the Seller in Section 4 of this Agreement shall be
true and correct in all material respects on the Closing Date with the same
force and effect as though such representations and warranties had been made on
and as of such date, except for changes contemplated by this Agreement.
7.2 COVENANTS OF BUYER. Buyer shall have performed in all material
------------------
respects all of the covenants, acts and undertakings to be performed by it on or
prior to the Closing Date, and a duly authorized officer of Buyer shall deliver
a certificate dated as of the Closing Date certifying to the fulfillment of this
condition and the condition set forth under Section 7.1 above.
7.3 NO INJUNCTION, ETC. No action, proceeding, investigation,
------------------
regulation or legislation shall have been instituted or threatened before any
court, governmental agency or legislative body to enjoin, restrain, prohibit the
consummation of the transactions contemplated hereby, if such action,
proceedings, investigation, regulation or legislation makes its impracticable to
consummate such transactions.
7.4 CONSENTS, APPROVALS AND WAIVERS. Seller shall have received a
-------------------------------
true and correct copy of each and every consent, approval and waiver referred to
in Section 2.5(a) hereof.
7.5 OPINIONS OF BUYER'S COUNSEL. Seller shall have received the legal
---------------------------
opinions described on Exhibit 7.5 hereto.
8. PUBLICITY. Except as may be required by law or legal authorities or
---------
applicable rules of a stock exchange, neither Seller nor Buyer shall release,
generate or permit any publicity concerning the transactions contemplated hereby
without the express consent of the other, which consent shall not be
unreasonably withheld or delayed. The term "publicity" shall not include
internal communications by a party directed solely to its employees.
24
9. INFORMATION.
-----------
9.1 RIGHT TO INVESTIGATE. Before and after the Closing, Seller shall
--------------------
afford to the authorized representatives of Buyer, including its independent
accountants and attorneys, reasonable access to the offices, plants, properties,
books and records, management and outside consultants of Seller and the
Companies in order that Buyer may have the opportunity to make such
investigations as it shall desire of the Assets and the Business, and Seller
shall furnish Buyer with such financial and operating data and other information
as to the Assets and the Business as Buyer shall from time to time reasonably
request.
9.2 CONFIDENTIALITY. Prior to the Closing, Buyer and its
---------------
representatives shall hold confidential all information obtained from Seller,
the Companies or Seller's other Affiliates in connection herewith and, if the
Closing shall be abandoned as provided herein, shall treat such information as
confidential and, where such information is in documentary form, return such
information to Seller, provided, Buyer may retain one copy of such information
for its files. The provisions of this Section 9.2 shall not apply to information
which is in the public domain due to no fault of Seller or its representatives.
10. COOPERATION. The parties recognize that in order for control of the
-----------
Business to pass from Seller to Buyer in an orderly manner on the Closing Date
it will be necessary for the parties to cooperate before and after the Closing
on matters relating to the recruiting of Seller's personnel by Buyer,
integration of sales force activity, identification of the Assets, ordering of
inventory, and preservation of relationships with customers, suppliers and
distributors. The parties shall render such cooperation to one another with
respect to such matters and with respect to such other matters concerning the
transition of control of the Business as reason and commercial prudence dictate
should be addressed before and after the Closing.
11. TERMINATION.
-----------
11.1 BOTH PARTIES. This Agreement may be terminated at any time prior
------------
to the Closing: (a) by the mutual consent of Seller and Buyer; (b) by Seller or
Buyer if there shall be any action or proceeding (other than an action or
proceeding commenced or induced by a party hereto or by a party claiming a
successor interest to a party hereto seeking to terminate or restrain
performance under this Agreement) instituted by any governmental authority which
shall seek to restrain, assess liability in respect of, or prohibit or
invalidate the transactions contemplated by this Agreement and which, in the
judgment of such party, made in good faith and based upon the advice of its
counsel, makes it inadvisable to proceed with the Closing; or (c) by Seller or
Buyer if, through no fault of the terminating party, the Closing shall not have
occurred by August 31, 1998.
11.2 BUYER. This Agreement may be terminated by Buyer: (a) at any time
-----
prior to the Closing, if Seller shall have failed to comply in any material
respect with any of its covenants or agreements contained in this Agreement and
such failure shall not have been rectified during the period of twenty-eight
(28) days after written notification thereof to Seller, (b) at any time prior to
the Closing, if there shall be any action or proceeding (other than an action or
proceeding commenced or induced by a party hereto or by a party claiming a
successor interest to a party hereto seeking to terminate or restrain
performance under this Agreement) instituted by or before any court or other
governmental body which could reasonably be expected to materially affect
25
the right of Buyer to own, operate or control the Business or the Assets
subsequent to the Closing and which makes it impractical to proceed with the
Closing; or (c) if any of the conditions precedent to the performance of its
obligations at the Closing shall not have been fulfilled by August 31, 1998.
11.3 SELLER. This Agreement may be terminated by Seller: (a) as
------
provided for in subsection 2.2(b)(i); (b)at any time prior to the Closing, if
Buyer shall have failed to comply in any material respect with any of its
covenants or agreements contained in this Agreement and such failure shall not
have been rectified during the period of twenty-eight (28) days after written
notification thereof to Buyer; or (c) if any of the conditions precedent to the
performance of its obligations at the Closing shall not have been fulfilled by
August 31, 1998.
12. CLOSING.
-------
12.1 TIME AND PLACE OF CLOSING. The Closing shall be held at the
-------------------------
offices of Xxxxx, Day, Xxxxxx & Xxxxx, London, England, commencing at 10:00 a.m.
local time, on the Closing Date, unless another place or date is agreed to in
writing by the parties, but in no event will the Closing be held later than
August 31, 1998.
12.2 TRANSACTIONS AT CLOSING. At the Closing, each of the following
-----------------------
transactions shall occur:
12.2.1 THE COMPANIES' AND THE SELLER'S PERFORMANCE. At the
-------------------------------------------
Closing, Seller shall deliver (and/or cause its Affiliates to deliver) to Buyer
the following:
(a) the instruments of transfer, endorsed stock
certificates (or indemnities in an agreed form in respect of any missing stock
certificates) and assumption described in Section 2.4 and the Assignment and
Assumption Agreement executed by the Companies and the Seller;
(b) the certificate of the authorized officer of Seller
described in Section 6.2;
(c) copies of the consents and waivers described in
Section 2.5(b) and the consents referred to in the last sentence of Section
2.5(c);
(d) satisfactory evidences of the approvals described in
Section 2.5(a);
(e) letters of resignation from each of the directors
(except for the Managing Director of EIL) and statutory auditors (if any) of the
Acquired Companies, dated as of the Closing Date;
(f) such other evidence of the performance of all
covenants and satisfaction of all conditions required of the Companies and the
Seller by this Agreement, at or prior to the Closing, as Buyer or its counsel
may reasonably require;
26
(g) a copy of the resolutions of the directors of the
Seller authorizing and approving the Agreement and all other transactions and
agreements contemplated hereby;
(h) resolutions of the directors and stockholders (if
necessary) of the Acquired Companies to the extent required authorizing the
transfer of the stock of all of the Acquired Companies, subject to the related
stock transfer forms being duly stamped and accepting the resignations referred
to in Section 12.2.1(e) above;
(i) resolutions of the directors and stockholders of EII,
EGBH and EIAL authorizing the transfer of Assets held by each of them;
(j) the U.K. Tax Covenant duly executed for and on behalf
of Seller;
(k) corporate record books of each Acquired Company
(except to the extent prohibited by law);
(l) the assignment of accounts receivable referred to in
subsection 15.4(d)(ii)(D).
(m) such other certificates, instruments and other
documents reasonably requested by Buyer to effect the transactions contemplated
hereby, all of which shall be reasonably satisfactory in form and substance to
Buyer.
12.2.2 PERFORMANCE BY BUYER. At the Closing, Buyer shall deliver
--------------------
to Seller the following:
(a) evidence of the wire transfers of the Purchase Price
(or the Provisional Purchase Price in the event subsection 2.2(d) applies);
(b) the instruments of transfer and assumption described
in Section 2.4 and the Assignment and Assumption Agreement executed by the
Buyer;
(c) the certificate of the authorized officer of Buyer
described in Section 7.2;
(d) satisfactory evidence of the approvals described in
Section 2.5(a);
(e) such other evidence of the performance of all the
covenants and satisfaction of all of the conditions required of Buyer by this
Agreement at or before the Closing as the Companies and the Seller or their
counsel may reasonably require;
(f) a copy of the resolutions of the directors of the
Buyer authorizing and approving the Agreement and all other transactions and
agreements contemplated hereby; and
27
(g) the U.K. Tax Covenant duly executed for and on behalf
of Buyer.
13. SURVIVAL OF REPRESENTATIONS AND WARRANTIES AND COVENANTS.
--------------------------------------------------------
13.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES AND COVENANTS OF
-----------------------------------------------------------
SELLER. All representations and warranties and covenants made by Seller in this
------
Agreement or in any document or instrument executed and delivered pursuant
hereto shall survive the Closing.
13.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES AND COVENANTS OF BUYER.
-----------------------------------------------------------------
All representations and warranties and covenants made by Buyer in this Agreement
or in any document or instrument executed and delivered pursuant hereto shall
survive the Closing.
14. INDEMNIFICATION.
---------------
14.1 INDEMNIFICATION BY SELLER. The Seller shall indemnify and hold
-------------------------
Buyer harmless from and against all direct damages and liabilities including
reasonable attorneys' fees (excluding lost profits and other consequential
damages) suffered or incurred by Buyer (and calculated on an after-tax basis)
arising from the falsity of any representation or warranty of Seller or breach
of any covenant contained in this Agreement by Seller or from any Excluded
Environmental Liabilities.
14.2 INDEMNIFICATION BY BUYER. Buyer shall indemnify and hold the
------------------------
Seller harmless from and against all direct damages and liabilities including
reasonable attorneys' fees (excluding lost profits and other consequential
damages) suffered or incurred by the Seller (and calculated on an after-tax
basis) arising from (j) the falsity of any representation or warranty of the
Buyer or the breach of any covenant contained in this Agreement by Buyer; and
(ii) the Assumed Liabilities except those relating to a breach of a
representation and warranty by Seller.
14.3 LIMITATIONS ON INDEMNIFICATION FOR BREACH OF REPRESENTATIONS AND
----------------------------------------------------------------
WARRANTIES. Any claim for indemnification for breach of a representation,
----------
warranty or covenant under Sections 14.1 or 14.2(i) must be made by giving
written notice of such claim to the person from whom indemnity is sought not
later than eighteen (18) months after the Closing Date. (Provided, however, the
-------- -------
survival period for indemnification based on the falsity of Sections 3.8,
3.18.1.1 or 3.l 8.2.2 shall be seven (7) years from the Closing Date, the
survival period for indemnification based on the falsity of Section 3.15 shall
be five (5) years from the Closing Date, the survival period for indemnification
based on the breach of Section 5.5 shall be two (2) years from the Closing Date,
and the survival period for indemnification based on the breach of Section 15.4
shall be three (3) years from the Closing Date.) There shall be no
indemnification for any such claim for breach of representation or warranty
under Section 14.1 or 14.2(i) or under the U.K. Tax Covenant unless the amount
of any such single claim exceeds USD 50,000 (excluding costs and interest
claimed) and until the aggregate amount of all claims which each exceed USD
50,000 (excluding costs and interest claimed) made by the party seeking
indemnification exceeds an amount equal to one million dollars ($l,000,000),
after which time such party shall be fully indemnified for all such claims (to
the extent provided in Section 14.1 or 14.2(i) or in the U.K. Tax Covenant, as
the case may be) from the first dollar of each such claim (including the amounts
used to satisfy the $1,000,000 threshold set forth in this Section 14.3). The
cumulative maximum liability (including costs and interest claimed) of Seller
for indemnification pursuant
28
to Section 14.1(i) and for claims under the U.K. Tax Covenant shall not exceed
the amount of the Purchase Price.
14.4 CLAIMS FOR INDEMNIFICATION. Whenever any claim shall arise for
--------------------------
indemnification hereunder, the party seeking indemnification (the "Indemnified
Party") shall promptly notify the party from whom indemnification is sought (the
"Indemnifying Party") of the claim and, when known, the facts constituting the
basis for such claim. For purposes of this Section 14.4, notice shall be deemed
to be promptly made if it is given to the Indemnifying Party within ten (10)
days of receipt by the Indemnified Party of any written notice of any third
party claim. In the event of any claim for indemnification under this Agreement
resulting from or in connection with any claim or legal proceedings by a third
party, the notice to the Indemnifying Party shall specify, if known, the amount
or an estimate of the amount of the liability arising from such claim or legal
proceeding. Except as provided in Section 14.5 of this Agreement, the
Indemnified Party shall not settle or compromise any claim by a third party for
which it may claim indemnification under this Agreement without the prior
written consent of the Indemnifying Party.
14.5 DEFENSE BY INDEMNIFYING PARTY. In connection with any claim by an
-----------------------------
Indemnified Party resulting from or arising out of any claim or legal proceeding
by a person who is not a party to this Agreement, the Indemnifying Party at its
sole cost and expense may, upon written notice to the Indemnified Party, assume
the defense of any such claim or legal proceeding if it acknowledges to the
Indemnified Party in writing its obligation to indemnify the Indemnified Party
with respect to all elements of such claim. The Indemnified Party shall be
entitled to participate in (but not control) the defense of any such action,
with its own counsel and at its own expense. If the Indemnifying Party does not
assume the defense of any such claim or litigation resulting therefrom within 30
days after the date of such claim is made, (a) the Indemnified Party may defend
against such claim or litigation, in such manner as it may deem appropriate,
including, but not limited to, settling such claim or litigation, after giving
notice of the same to the Indemnifying Party, on such terms as the Indemnified
Party may deem appropriate, and (b) the Indemnifying Party shall be entitled to
participate in (but not control) the defense of such action, with its own
counsel and at its own expense.
14.6 PAYMENT OF INDEMNIFICATION OBLIGATION. All indemnification
-------------------------------------
hereunder shall be effected by payment of cash or delivery of a cashier's or
certified check in the amount of the indemnification liability. Any
indemnification payment by Seller to Buyer hereunder shall be deemed to be a
reduction in the Purchase Price.
14.7 EXCLUSIVE REMEDY. The rights of indemnification set forth in this
----------------
Section 14 and in the U.K. Tax Covenant shall be, from and after the Closing
Date, the exclusive remedy of each party for the breach by the other party of
any representation, warranty, covenant or other term in this Agreement, except
for claims based upon fraud and claims for specific performance or other
equitable relief.
15. ADDITIONAL ACTIONS.
------------------
15.1 SERVICES. The parties recognize that in order for Buyer to assume
--------
control of the Business in an orderly manner it may be necessary for Seller to
assist Buyer in the performance of certain business support functions after the
Closing in view of the fact that the Business has not been a freestanding
enterprise. Understanding that Seller is not in the business of providing
29
such support services to others and that Buyer must diligently develop the
capacity to support the Business as soon as practicable after the Closing Date,
the parties shall cooperate during the period from the date hereof to the
Closing Date to identify those areas in which the Business will require support
and to enter into one or more service agreements providing for the rendering of
such support by Seller to Buyer such services to be performed at a reasonable
level and at no charge to the Buyer. The services to be provided by Seller and
the duration of each service are described in Exhibit 15.1 hereto.
15.2 CHANGE OF NAMES. As soon as practicable (but no later than thirty
---------------
(30) days) after Closing, Buyer shall cause the name of each of the Acquired
Companies which contains the word "Elekta" to be changed to a name which does
not contain the word "Elekta."
15.3 RELEASE OF GUARANTEES BY SELLER. As soon as practicable (but no
-------------------------------
later than thirty (30) days) after Closing, Buyer shall use its best efforts to
cause to be released all guarantees by Seller of the obligations of any of the
Acquired Companies listed on Exhibit 15.3 and pending such release the Buyer
shall indemnify and keep Seller indemnified from and against any and all costs,
claims, demands or liabilities incurred or arising from any such guarantees.
15.4 ADDITIONAL AGREEMENTS.
---------------------
The Seller and Buyer agree that:
(a) Proprietary Information.
-----------------------
(i) From and after the Closing Date, the Seller shall hold
in confidence, and use its best efforts to have all of its officers, directors
and personnel and each of the Companies hold in confidence, all knowledge and
information of a secret or confidential nature with respect to the Business and
shall not disclose, publish or make use of the same without the consent of the
Buyer, except to the extent that such information shall have become public
knowledge other than by breach of this Agreement by any of the Companies or to
the extent required by law.
(ii) The Seller agrees that the remedy at law for any breach
of this Subsection 15.4 would be inadequate and that the Buyer shall be entitled
to injunctive relief in addition to any other remedy it may have upon breach of
any provision of this Subsection 15.4.
(b) Sharing of Data.
---------------
(i) The Seller shall have the right for a period of three
years following the Closing Date to have reasonable access to such books,
records and accounts, including financial and tax information, correspondence,
production records, employment records and other similar information as are
transferred to the Buyer pursuant to the terms of this Agreement for the limited
purposes of concluding its involvement in the Business prior to the Closing Date
and for complying with its obligations under applicable securities, tax,
environmental, employment or other laws and regulations. The Buyer shall have
the right for a period of three years following the Closing Date to have
reasonable access to those books, records and accounts, including financial and
tax information, correspondence, production records, employment records and
other records which are retained by the Seller pursuant to the terms of this
Agreement to the extent that any of the foregoing relates to the Business
transferred to the Buyer hereunder or is otherwise
30
needed by the Buyer in order to comply with its obligations under applicable
securities, tax, environmental, employment or other laws and regulations.
(ii) The Seller and the Buyer agree that from and after the
Closing Date they shall cooperate fully with each other to facilitate the
transfer of the Assets from the Seller to the Buyer and the operation thereof by
the Buyer.
(c) Cooperation in Litigation. Each party hereto will fully cooperate
-------------------------
with the other in the defense or prosecution of any litigation or proceeding
already instituted or which may be instituted hereafter against or by such party
relating to or arising out of the conduct of the Business prior to or after the
Closing Date (other than litigation arising out the transactions contemplated by
this Agreement). The party requesting such cooperation shall pay the out-of-
pocket expenses (including legal fees and disbursements) of the party providing
such cooperation and of its officers, directors, employees and agents reasonably
incurred in connection with providing such cooperation, but shall not be
responsible to reimburse the party providing such cooperation for such party's
time spent in such cooperation or the salaries or costs of fringe benefits or
similar expenses paid by the party providing such cooperation to its officers,
directors, employees and agents while assisting in the defense or prosecution of
any such litigation or proceeding.
(d) Conduct of Business between Effective Date and Closing Date by
--------------------------------------------------------------
EII, EIAL, EGBH and Seller
--------------------------
(i) That portion of the Business conducted by EII, EIAL, EGBH and Seller
shall, during the period between the Effective Date and the Closing Date, be
conducted by EII, EIAL, EQBH and Seller for the account of the Buyer.
(ii) In order to effectuate the agreement set forth in subparagraph (i)
above, Buyer and Seller agree to implement the following procedure:
(A) During the period which begins on the Effective Date and ends on
the Closing Date, EII, EIAL, EGBH and Seller shall receive any
payments made by customers for Products sold after the Effective Date
by EII, EIAL, EGBH and Seller (the total amount thus received being
referred to herein as the "Gross Receipts");
(B) During the period which begins on the Effective Date and ends on
the Closing Date, EII, EIAL, EGBH and Seller shall continue to make
cash expenditures which are properly allocable to the normal operation
of the Business in the ordinary course consistent with prior practice
(but excluding the cost of providing the services described in Exhibit
15.1) (the total amount thus expended being referred to herein as
"Gross Expenditures");
(C) Fifteen (15) days after the Closing Date, Seller shall deliver to
Buyer a statement which itemizes the Gross Receipts and the Gross
Expenditures in reasonable detail, subject to Buyer's right to review
and dispute such statement. If Gross Receipts exceed Gross
Expenditures, Seller shall promptly pay to Buyer an amount equal to
such excess, or, if Gross Expenditures exceed Gross
31
Receipts, Buyer shall promptly pay to Seller an amount equal to
such excess; and
(D) On the Closing Date, Seller shall deliver to Buyer an
assignment of all unpaid accounts receivable which result from
delivery of Products by EII, EIAL, EGBH or Seller after the
Effective Date.
(e) Open Accounts Receivable. In the event Buyer receives
------------------------
payment on an account receivable which does not constitute part of the Assets,
Buyer shall promptly remit such amount to Seller. If Seller receives payment
after the Closing Date of an account receivable which constitutes part of the
Assets, it shall promptly remit such amounts to Buyer.
16. GENERAL.
-------
16.1 AFFILIATE INVOLVEMENT. It is understood that both Seller and Buyer
---------------------
conduct parts of their respective businesses through and in conjunction with
Affiliates and are likely to do so in the future. In this Agreement, references
to Affiliates are made in certain provisions for the sake of clarity, but some
repeated references have been avoided because the terms "Seller" and "Buyer" are
intended to encompass the Affiliates of each insofar as that is necessary to
give full effect to the rights and obligations of the parties hereunder and to
prevent results which are anomalous in the context of the transactions
contemplated hereby. The covenant or agreement of a party to do or not to do a
thing is also such party's covenant or agreement to cause its relevant
Affiliates to do or not to do that thing. A covenant, agreement, representation
or warranty for the benefit of a party is also for the benefit of such party's
relevant Affiliates. The act, omission or knowledge of a party's relevant
Affiliate is attributed to the party. Damages suffered by a relevant Affiliate
of a party are also suffered by the party. Buyer shall have the right to require
that certain of the Assets be conveyed at Closing to Affiliates of Buyer
specified by Buyer.
16.2 PAYMENT OF EXPENSES. Except as specifically set forth elsewhere in
-------------------
this Agreement, expenses related to this Agreement and attendant transactions,
including the fees of brokers, counsel and accountants, shall be borne by the
party incurring such expenses. No transaction expenses shall be borne by the
Acquired Companies.
16.3 MODIFICATIONS; WAIVERS. This Agreement may be modified and rights
----------------------
hereunder may be waived only by a writing executed and delivered on behalf of
the party against whom such modification or waiver is asserted.
16.4 ASSIGNABILITY. This Agreement and the rights and obligations
-------------
hereunder shall be binding upon and inure to the benefit of the parties hereto
and their respective successors (including successors by operation of law) and
legal representatives. This Agreement shall not be assignable by either party
hereto, except that Seller and Buyer may assign its rights and obligations
hereunder to one or more of its Affiliates, provided that, the assignor shall
-------------
guarantee the performance of such assignees under this Agreement and further
provided that if the Affiliate of Buyer to which the Buyer assigns its rights
and obligations under this Agreement ceases to be an Affiliate of Buyer, Buyer
shall cause such former Affiliate to assign its rights and obligations under
this Agreement to Buyer or another Affiliate of Buyer.
32
16.5 NO OTHER REPRESENTATIONS. Each of the parties acknowledges that in
------------------------
entering into this Agreement it has not relied on any representation, warranty,
agreement or statement not set out in this Agreement (or in any document,
instrument or certificate contemplated hereby), whether express or implied, and
that (in the absence of fraud) it will not have any right or remedy arising out
of any such representation, warranty, agreement or statement.
16.6 NOTICES. Any communication to be given hereunder by either party to
-------
the other party shall be in writing and delivered by messenger, sent by
overnight courier, or transmitted by facsimile, to the address or designation of
such party set forth below or as changed by such party by notice given
hereunder. A communication transmitted by facsimile shall be deemed effective
when transmitted; a communication sent by overnight courier shall be deemed
effective two days after being sent; and a communication delivered by messenger
shall be deemed effective when delivered.
SELLER: Elekta AB (publ)
X.X. Xxx 0000
00 Xxxxxx Xxxxxxxxxx
X-00000 Xxxxxxxxx, Xxxxxx
Attention: Xx. Xxxxxxx Xxxxxxx, President
Fax: 00-0-000-0000
WITH A COPY TO:
Xxxxx, Day, Xxxxxx & Xxxxx
000 Xxxxxxxxx Xxxxxx, X.X.
0000 XxxXxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attention: X. Xxxxx Cargill, Esq.
Fax: (000) 000-0000
BUYER: Nitinol Medical Technologies, Inc.
00 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Attention: Mr. Xxx Xxxxx, President
Fax: (000)000-0000
WITH A COPY TO:
Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Fax: (000)000-0000
The foregoing is not intended to be exclusive; any written communication
actually received shall be effective when received.
33
16.7 CAPTIONS. The section captions used in this Agreement are for
--------
reference and cross-reference purposes only and shall not otherwise affect the
meaning or interpretation of this Agreement.
16.8 COUNTERPARTS AND ATTACHMENTS. This Agreement may be executed in two
----------------------------
or more counterparts, each of which shall be deemed to be an original and all of
which shall be deemed to constitute the same Agreement. The schedules and other
attachments hereto are part of this Agreement.
16.9 KNOWLEDGE. Any statement in this Agreement qualified by the
---------
expression "so far as Seller is aware" or "to the knowledge of Seller" or "to
the knowledge of the Companies" or any similar expression shall be deemed to
include the knowledge of the following individuals (and only the knowledge of
such individuals), regardless of the corporation which employs each such
individual): Xxxxx Xxxxxx, Xxxxx St. Xxxx, Xxxxx Xxxxxxx, Xxxxxxx Xx Xxxxxxxx
and Xxxx Xxxxxxx.
16.10 GOVERNING LAW. This Agreement shall be governed by and construed in
-------------
accordance with the law of the State of Georgia.
17. DISPUTE RESOLUTION
------------------
17.1 OBJECTIVE. This Agreement will be implemented by the parties and
---------
their Affiliates in more than one jurisdiction. The negotiations of the parties
have focused primarily on the ordinary meaning of the provisions of this
Agreement and not on the legal effects those provisions might have under the
laws of a particular jurisdiction. One of the purposes of this Section is to
minimize the possibility of an unexpected reordering of agreed rights and
obligations.
17.2 NO AFFILIATE ACTIONS. Neither party shall permit any of its
--------------------
Affiliates to initiate or participate in any legal proceeding in connection with
any controversy or claim arising out of or relating to this Agreement or the
transactions contemplated hereby; rather, the parties shall settle all such
controversies or claims on behalf of their Affiliates by arbitration conducted
by the parties in accordance with this Section. The parties shall cause their
Affiliates to comply with any award rendered in an arbitration proceeding
pursuant hereto.
17.3 ARBITRATION. Any controversy or claim arising out of or relating to
-----------
this Agreement or the transactions contemplated hereby shall be finally settled
by arbitration in accordance with the Rules of Arbitration of the London Court
of Arbitration by an arbitrator or arbitrators appointed in accordance with said
rules. Judgment upon the award rendered by the arbitral tribunal may be entered
in any court having jurisdiction thereof or application may be made to such
court for judicial acceptance of such award and an order of enforcement, as the
case may be. The place of arbitration shall be London, England, and the language
of the arbitration shall be English. The parties hereby agree that the rendering
of an award by the arbitrator or arbitrators shall be a condition precedent to
the initiation of any legal proceeding with respect to any dispute arising in
connection with this Agreement. Such award shall be final, binding and
enforceable. Each of EHSA and EISA expressly waives its rights to the
jurisdiction of the French courts. The arbitral tribunal shall apply the
substantive laws of the State of Georgia, without regard to the conflicts of
laws principles of the State of Georgia.
34
18. ENTIRE AGREEMENT. This Agreement (including the Exhibits and Schedules
----------------
hereto) constitutes the entire agreement among the parties hereto and supersedes
and cancels any prior agreements, representations, warranties, or
communications, whether oral or written, among the parties hereto relating to
the transactions contemplated hereby or the subject matter herein. Neither this
Agreement nor any provision hereof may be changed, waived, discharged or
terminated orally, but only by an agreement in writing signed by the party
against whom or which the enforcement of such change, waiver, discharge or
termination is sought.
IN WITNESS WHEREOF, Buyer and Seller have each caused this Agreement to be
duly executed in its corporate name by a duly authorized representative as of
the date first above written.
SELLER:
ELEKTA AB (PUBL)
By: /s/ Jonas Serlachius
-------------------------------
Title: VP. CORP DEV.
-------------------------
BUYER:
NITINOL MEDICAL TECHNOLOGIES, INC.
By: /s/ Xxxxxx X. Xxxxx
--------------------------------
Title: CEO
-----------------------------
35
SCHEDULE OF ASSETS
All assets and property, tangible and intangible, wherever located, used by
Seller and/or its Affiliates (including without limitation the Companies) in the
conduct of the Business, including, without limitation, the following
significant Assets:
(1) The real estate, buildings and equipment which comprise the Biot
Facility;
(2) The books, records, technical manuals, customer lists and other
documents and tangible embodiments of information necessary to the conduct of
the Business;
(3) The inventory of raw materials, parts and finished and in-process
Products;
(4) All Company Intellectual Property, including without limitation the
patents and patent applications described on the attached lists with the
indication "TITLE TO BE ASSIGNED" subject, in the case of those patents with the
indication "TO BE LICENSED BACK TO ELEKTA", to a royalty-free, non-exclusive
license in favor of Seller and its Affiliates and Xxxxxxx & Xxxxxxx and its
Affiliates to make, have made, use and sell, and to sublicense customers to use,
inventions covered by the claims of the U.S. patents (and their foreign
equivalents) for products other than neuroscience products;
(5) Seller's rights to the patents described on the attached lists with the
indication "LICENSED PATENTS WITH ROYALTY BEARING AGREEMENTS and CIS's rights to
the patents described on the attached lists with the indication "CORDIS
INNOVASIVE SYSTEMS, INC. PATENTS";
(6) The trademarks listed on the attached List of Trademarks, provided
--------
that, (a) the right to use the trademark and name CORDIS (whether alone or with
----
other trademarks or names) shall be limited to (i) use in the promotion and
labeling of Products, and (ii) a period ending on October 11, 1998; (b) the
right to use the trademark and name HAKIM shall be limited to (i) use until
December 18, 2007 in connection with the promotion and labeling of the Products
which bear the trademark on the Closing Date, and (ii) subject to (a) above, use
in conjunction with a name or trademark (other than CORDIS) in the manner used
on the Closing Date; and (c) the right to use each of the trademarks and names
ELEKTA and LEKSELL (whether alone or with other trademarks or names) shall be
limited to (i) use in the promotion and labeling of Products which bear the
corresponding trademark or name on the Closing Date, and (ii) a period ending
six (6) months after the Closing Date; the trademarks which contain the name
CORDIS or the names ELEKTA or LEKSELL will be licensed to Buyer with the above
restrictions, and the other trademarks will be assigned to Buyer;
(7) Seller's rights under agreements assumed by Buyer.
(8) All outstanding shares of capital stock in the Acquired Companies, as
well as the corporate minute book and all corporate records of the Acquired
Companies.
(9) A perpetual, non-exclusive, royalty-free license (with no right to
sublicense other than to an Affiliate of Buyer) to use the computer software
used in the Business which is known as MIPOS/DCS, in object code form only, it
being understood that Seller is not obligated to provide maintenance services
for such software.
(10) The licenses referred to in paragraphs (4) and (6) above shall be
memorialized in separate license agreements to be executed by Seller and Buyer
at Closing.
-2-
TITLE TO BE ASSIGNED
PATENTS AND PATENT APPLICATIONS
1. Fluid heating apparatus for medical use - has controllable infra-red light
source emitting radiation to fluid which temperature is monitored by
sensor- patent no. GB2312736A. Registered holder - Spembly.
2. Liquid cryogen supply apparatus - has cryogen tank with valveless outlet
and inlet supplied with gas at controlled pressure that manages cryogen
outflow patent no. WO9630816A. Registered holder - Spembly.
3. Connection apparatus to link instrument to supply source - has two
connectors fitted with complementary bayonet locking formations with sleeve
on non-sterile side and sleeve displacement formation on sterile side for
locking - patent no. GB2289510A. Registered holder - Spembly.
4. Cryosurgical instrument - comprising a metal cooling tip cooled by a flow
of cryogenic fluid within the tip and coated in heat-insulated coating -
patent no. GB2289414A. Registered holder - Spembly.
5. Cryosurgical instrument for surgical use where living tissues have been
destroyed - has cooling tip operable to be cooled to flow having exhaust
conduit carrying fluid to atmospheric air vent with purging flow of cool
gas supplied from vessel - patent no. GB2289413A. Registered holder -
Spembly.
6. Cryosurgical instrument for surgical operative where living tissues have
been destroyed - has cooling tip cooled by flow of fluid from transfer
chamber having outlet communicating with having air vent having by pass
valve - patent no. GB2289412A. Registered holder - Spembly.
7. Cryosurgical probe for cardiac surgery - comprises probe head cooled by
expansion of refrigerant gas, handle with gas precooler and flexible
catheter linking handle and head - patent no. GB2283678A. Registered
holder - Spembly.
8. Ultrasonic surgical instrument - has unitary construction operating tip
being of length of at least one quarter wave length of ultrasonic
vibrations generated by transducer - patent no. GB2273445A. Registered
holder - Spembly. (Lapsed)
9. Cryosurgical probe with cooling element tip - has channel for introducing
heat-conducting liquid into cavity, and cooling element with associated
thermo couple sensor at tip of probe - patent nos. GB2269107A, EP584930B,
GB2269107B and US5403309A. Registered holder - Spembly. (Lapsed)
-3-
10. Ultrasonic surgical aspirator with vacuum control - comprises vacuum
source, handpiece, handpiece comprising aspiration tip with aperture for
communicating with vacuum source - patent no. GB2267828A. Registered
holder - Spembly.
11. Coupling assembly for cryogen supply line - has respective rubber O-rings
located externally of male and female coupling members, secured together
with screw threaded portions - patent no. WO9308870A. Registered holder -
Cryogenic Technology Limited (beneficial interest assigned to SCL).
12. Cryosurgical equipment thawing method - involves circulating heated inert
gas through equipment circuit via heat exchanger - patent nos. WO9308752A
and US5632743A. Registered holder - Cryogenic Technology Limited
(beneficial interest assigned to SCL).
13. Cryosurgical probe assembly - has exhaust and cryogen supply passages
leading to tip, insulated by air filled or partially evacuated jacket -
patent no. WO9308751A. Registered holder - Cryogenic Technology Limited
(beneficial interest assigned to SCL).
14. Rapid purge cryosurgical probe - has valve allowing purging gas to pass
through supply passages without going through Joule-Thomson nozzle - patent
nos. WO9006726A, GB2246710B and US5224943A. Registered holder - Spembly.
15. Cryosurgical probe for percutaneous use in surgery - has steerable catheter
connected between probe head and handle for guiding probe with safety and
precision along arteries - patent nos. GB2226497A, GB2226497B, US5078713A.
Registered holder - Spembly.
16. Pressure monitor - has disc with coded tracks divided into transparent and
opaque portions, and rotated to intercept beam of light going to
photosensor -patent no. GB2153172A. Registered holder - Spembly.
17. Stainless steel cryosurgical probe - has hollow tip with exhaust passage
extending into problem body for removing cooled, expanded gas - patent no.
GB2094636A. Registered holder - Spembly.
18. Cryogenic surgical probe for stimulating nerves - has closed end forming
point and contg. or forming exposed electrode - patent no. DE2732486A.
Registered holder - Spembly.
19. Curved ultrasonic knife for brain or spinal surgery - consists of
transducer unit with curved resonance rod located between piezoelectric
unit and horn - patent nos. EP305627A, EP305627B and US4974581A.
Registered holder - Swedemed.
-4-
20. Surgical equipment for removing tissue - has frequency generator driving
transducer unit causing tip portion of ultrasonic knife to oscillate -
patent no. EP282684A, EP282684B and US4886060A. Registered holders - EIL.
21. Ultrasonic aspirator with tip functioning as knife - has amplitude
transformer providing separated maximum longitudinal mode oscillation
resonant frequency - patent no. EP229003A, EP229003B and US5062827A.
Registered holder - EIL.
22. Surgical heating apparatus for preventing unwanted freezing of tissue
adjacent to site of cryogenic surgery - has bag for location adjacent to
tissue which provides for entry of liquid at required temperature and
circulation of liquid through outer wall of bag - patent no. PCT/GB95/00974
(USA and Japan designated on PCT application). Registered holder -
Cryogenic Technology Limited (beneficial interest assigned to SCL).
23. (Not used).
24. Visualization surgical cart design - patent no. 355,257. Registered holder
- CIS.
25. Optical shunt cutter system - patent applications:- United States
08/215,130 (registered holder - CIS), Germany 00000000.1 and Japan
61133/95. Registered holder - Xxxxxx - Xxx (beneficial interest assigned
to CIS).
26. Adjustable arm for instrument holder - provisional (ABN) 60/005,473,
application 08/731,502, application PCT US96/16765. Registered holder -
Xxxxxx - Xxx (beneficial interest assigned to CIS).
27. Control module for controlling a neuroendoscopic visualization system
having a plurality of video input sources and method thereof - patent
application 08/712,933. Registered holder - CIS.
28. Punch catheter - provisional no. 60/030,929. Registered holder - CIS.
29. Interchangeable handle and surgical tools for endoscopic use - provisional
patent application [dated April 14, 1997] [no. ].
Registered holder - CIS.
30. Variable length shunt placement introducer - provisional patent application
60/036,208. Registered holder - CIS.
31. Neuroendoscopic training model - provisional patent application dated
February 24, 1997 [no. ]. Registered holder - CIS.
32. Malleable cannula xxxxxx - provisional patent application [dated April 11,
1997] [no. ]. Registered holder - CIS.
-5-
Assignments of the patents numbered 24 to 32 above by Xxxxxx-Xxx
Engineering, Inc. to CIS have not been completed, hence Xxxxxx-Xxx
Engineering, Inc. remains the registered owner. The patents numbered 24 to
32 above are also subject to non-exclusive, non-sublicensable, worldwide,
royalty-free license granted by CIS is favor of Xxxxxx-Xxx Engineering,
Inc.
33. Intracranial pressure monitoring catheter (assigned with a royalty-bearing
agreement).
U.S. patent no. 4,114,603 dated September 19, 0000
Xxxxxx - patent no. 1,068,514 dated December 15, 0000
Xxxxxx - patent no. 7724065 dated Xxxxxx 0, 0000
Xxxxx Xxxxxxx - patent no. 1547064 dated Xxxxxx 0, 0000 (xxxxxxx)
Xxxxx - patent no. 0000000 dated August 4, 0000
Xxxxxxxxxxx - patent no. 182197 dated July 5, 0000
Xxxxxx - patent no. 429297 dated August 3, 0000
Xxxxxxxxxxx - patent no. 615819 dated August 4, 1977
34. Intercranial pressure regulator valve.
US - patent no. 4,769,002 dated September 6, 0000
Xxxxxx - patent no. 1,248,425 dated January 10, 0000
Xxxxxx - patent no. 117050 dated January 13, 1984
Great Britain - patent no. 117050 dated January 13, 0000
Xxxxxxx - patent no. P3483539.3 dated January 13, 0000
Xxxxx - patent no. 117050 dated January 13, 0000
Xxxxx - patent no. 0000000 dated February 7, 0000
Xxxxxxxxxxx - patent no. 117050 dated January 13, 1984
35. Three stage valve (assigned with a royalty-bearing agreement).
US patent no. 4,776,838 dated October 11, 0000
Xxxxxx - patent no. 1236749 dated May 17, 0000
Xxxxxx - patent no. 156974 dated December 7, 1984
Great Britain - patent no. 156974 dated December 7, 0000
Xxxxxxx - patent no. P3479565.0 dated December 7, 0000
Xxxxx - patent no. 156974 dated December 7, 0000
Xxxxx - patent no. 0000000 dated December 8, 0000
Xxxxxxxxxxx - patent no. 156974 dated December 7, 1984
36. Three stage intercranial pressure relief valve having single-piece valve
stem (assigned with a royalty-bearing agreement).
US - patent no. 4,627,832 dated December 9, 1986.
-0-
Xxxxxx - patent no. 163897 dated April 22, 1985
Great Britain - patent no. 163897 dated April 22, 0000
Xxxxxxx - patent no. P3563683.1 dated April 22, 0000
Xxxxx - patent no. 163897 dated April 22, 0000
Xxxxxxxxxxx - patent no. 163897 dated April 22, 1985
37. Three stage intercranial pressure control valve.
U.S. - patent no. 4,714,459 dated December 22, 0000
Xxxxxx - patent no. 233324 dated November 4, 1986
Great Britain - patent no. 233324 dated November 4, 0000
Xxxxxxx - patent no. P3679541.0 dated November 4, 0000
Xxxxx - patent no. 233324 dated November 4, 0000
Xxxxxxxxxxx - patent no. 233324 dated November 4, 1986
38. Three stage implantable pressure relief valve with adjustable valve stem
members.
U.S. - patent no. 4,729,762 dated Xxxxx 0, 0000
Xxxxxx - patent no. 233325 dated November 4, 1986
Great Britain - patent no. 233325 dated November 4, 0000
Xxxxxxx - patent no. P3666350.6 dated November 4, 0000
Xxxxx - patent no. 233325 dated November 4, 0000
Xxxxxxxxxxx - patent no. 233325 dated November 4, 1986
39. Hydrocephalus valve.
U.S. - patent no. 5,069,663 dated December 3, 0000
Xxxxx - patent application no. 261221/89 filed October 5, 1989
40. Reservoir membrane implantable under the skin of a patient.
French patent application no. 8903998 filed March 28, 1989
U.S. patent no. 5,102,389 dated April 7, 1992
European patent no. 399,857 - validated in Germany, Italy, Spain and France
Japan patent application no. 277167 filed March 28, 1990
41. Three stage implantable drainage valve for treatment of hydrocephalus.
French patent application no. 9115778 filed December 19, 1991
U.S. patent no. 5,336,166 dated August 9, 1994
European patent application no. 93400817.8 filed March 30, 1993
42. Implantable drainage valve for the treatment of hydrocephalus.
-7-
French patent application no. 9200671 filed January 22, 1992
U.S. patent no. 5,368,556 dated November 29, 1994
European patent application no. 93400818.6 filed March 30, 1993
43. Implantable valve for the treatment of hydrocephaly.
French patent application no. 9210972 filed September 1992
U.S. patent no. 5,437,627 dated August 1, 1995
European patent application no. 93401464.8 filed June 9, 1993
44. Dilatation balloon catheter for endoscopy.
French patent application no. 9409890 (assigned with a royalty-bearing
agreement in favor of Christian Sainte Rose) filed August 10, 1994
U.S. patent no. 5718712.
45. Implantable drainage valve for treatment of hydrocephalus - French patent
application no. 9306356 filed June 27, 1993 (Docket 91087).
46. Pressure and anti-gravity regulating valve - French patent application no.
9603721 filed March 26, 1996 (Docket 95103).
47. OSV2 - French Patent application no. 9603726 filed March 26, 1996.
48. Implantable hand-operable dispensers for fluid medicaments
U.S. patent no. 4,668,231 dated May 26, 1987.
Dutch patent application no. 8400489 filed February 15, 0000
Xxxxxx - patent no. 1243913 dated November 1, 0000
Xxxxxx - patent no. 143503 dated November 23, 1984
Great Britain - patent no. 143503 dated November 23, 0000
Xxxxxxx - patent no. P3476521.2 dated November 23, 0000
Xxxxx - patent no. 143503 dated November 23, 0000
Xxxxx - patent no. 0000000 dated November 24, 0000
Xxxxxxxxxxx - patent no. 143503 dated November 23, 1984
49. Pompe multidose. This patent was purchased from Applied Precision Limited
and assignment has not been recorded in the U.S. Patent and Trademark
Office.
French patent no. 2582222 dated May 21, 1985
U.S. patent - no. 4,718,894 dated January 12, 0000
Xxxxxx - patent no. 1262851 dated November 14, 1989
EPO - patent no. 202696 dated November 26, 0000
-0-
Xxxxxxx - patent no. P3664259 dated July 12, 1989
50. Manufacture of tubing assembly for drainage catheter - patent no.
4,601,724. Subject to license in favor of Cordis Corporation.
51. Intracranial ventricular catheter assembly - patent no. 4,723,556. Subject
to license in favor of Xxxxxxx & Xxxxxxx and its Affiliates.
52. External drainage antisiphon device - patent no. 4,731,056. Subject to
license in favor of Xxxxxxx & Xxxxxxx and its Affiliates.
53. Porous ventricular catheter - patent no. 4,767,400. Subject to license in
favor of Xxxxxxx & Xxxxxxx and its Affiliates.
54. Cyst puncture catheter assembly - patent no. 5,409,462. Subject to license
in favor of Xxxxxxx & Xxxxxxx and its Affiliates.
55. Catheter introducer (subject to license in favor of Xxxxxxx & Xxxxxxx and
its Affiliates).
French patent application no. 8714852 filed October 27, 1987
U.S. patent no. 4,946,443.
56. [Device for a carriage for pallet handling] - patent no. 9616267 dated
December 31, 1996.
57. Mechanical arm for a neuroendoscopy device - patent no. 9704060 dated April
3, 1997.
58. Catheter for neurosurgery - patent no. 9704061 dated April 3, 1997.
59. Implantable microinfusion pump system - patent no. 4487603 dated
December 11, 1984.
60. Non-invasively adjustable valve - patent no. 4540400 dated September 10,
1985.
61. Implantable manually actuated medication dispensing system - patent no.
4548607 dated October 22, 1985.
62. Cerebrospinal fluid shunt value - patent no. 4551128 dated November 5,
1985.
63. Servo valve - patent no. 4557721 dated December 10, 1985.
64. Fill port for an implantable dispensing system dated December 10, 1985.
-9-
65. Self-calibrating differential condition sensor - patent no. 4576035 dated
March 18, 1986.
66. Ventricular right angle connector and system - patent no. 4578057 dated
March 25, 1986.
67. Telescoping catheter shunt system - patent no. 4583967 dated April 22,
1986.
68. Portable instrument to test pressure/flow of ventricular shunt valves -
patent no. 4598579 dated July 8, 1986.
69. Ventricular amniotic shunt and introducer system - patent no. 4631051 dated
December 23, 1986.
70. Differential thermal expansion driven pump - patent no. 4636149 dated
January 13, 1987.
71. Three stage pressure regulator valve - patent no. 4675003 dated June 23,
1987.
72. Adjustable implantable valve having non-invasive position indicator dated
June 30, 1987.
73. Plural valve three stage pressure relief system - patent no. 4681559 dated
July 21, 1987.
74. Implantable servo valve having integral pressure sensor - patent no.
4705499 dated October 11, 1987.
75. Three stage valve with flexible valve seat - patent no. 4714458 dated
December 22, 1987.
76. Infusion pump - patent no. 4744786 dated May 17, 1988.
77. Three stage implantable pressure relief valve with improved valve stem
member - patent no. 4776839 dated October 11, 1988.
78. Three stage implantable flow control valve with improved valve closure
member - patent no. 4781672 dated November 1, 1988.
79. Adjustable implantable valve having non-invasic position indication -
patent no. 4,676,772 dated June 30, 1987.
The patents and patent applications numbered 33 to 79 above were acquired
from Xxxxxxx & Xxxxxxx or its Affiliates as part of the acquisition of the
Cordis Neuroscience business dated April 11, 1997. The United States and
Canadian patents
-10-
and patent applications are registered in the name of the Seller.
Assignments of the other patents and patent applications numbered 33 to 79
above to the Seller have not been completed hence Xxxxxxx & Xxxxxxx or its
Affiliates remain the registered holder.
-11-
LICENSED PATENTS WITH ROYALTY BEARING AGREEMENTS
1. XXXXXXX - Infusion pump
U.S. patent no. 4,561,856 dated December 31, 1985
2. HAKIM - Servo valve
U.S. patent no. 4,106,510 dated August 15, 1978 (expired)
Canada - patent no. 1080080 dated June 24, 0000
Xxxxxx - patent no. 7735554 dated November 25, 1977 (expired)
Great Britain - patent no. 1554100 dated November 24, 0000
Xxxxx - patent no. 0000000 dated November 22, 1977
3. Method and apparatus for the treatment of ascites
U.S. patent no. 4,261,341 dated April 14, 0000
Xxxxxx - patent no. 1152408 dated August 23, 0000
Xxxxxx - patent no. 8012654 dated June 6, 0000
Xxxxxxx - patent no. P3020991.7 dated June 3, 0000
Xxxxx - patent no. 0000000 dated June 6, 1980
4. Agreement to transfer a patent license agreement dated January 1, 1990
between (1) Cordis S.A. and (2) Cordis Europa N.V. concerning an
implantable drainage device for the treatment of hydrocephalus.
5. Patent license agreement dated December 5, 1994 between (1) Cordis S.A. and
(2) Christian Sainte Rose concerning a dilatation balloon catheter for
endoscopy. French patent application no. 9409890 dated August 10, 1994 in
the name of Cordis S.A. (beneficially assigned to EISA).
6. Patent license agreement dated December 5, 1994 between (1) Cordis S.A. and
(2) Christian Sainte Rose concerning a subdural drainage catheter.
7. Patent license agreement dated December 5, 1994 between (1) Cordis S.A. and
(2) Christian Sainte Rose concerning an integral drainage device.
8. License and technology agreement dated May 10, 1994 between (1) Xxxxx
Xxxxxxx, (2) Xxxxxx Xxxxxxx, (3) Florida Hospital Supply, Inc. and (4) EII
concerning titanium aneurysm clips. US patent no. 5,053,045 and US patent
application no. PCT/US93/10054 in the name of Xxxxxx Xxxxxxx
-12-
9. License agreement between (1) Xxxxxx X. Xxxxxxxx and (2) EII concerning
powered surgical instrument/powered clip applier. Patent application no.
07/882,945 in the name of Xxxxxx Xxxxxxxx.
-13-
CORDIS INNOVASIVE SYSTEMS, INC. PATENTS
Title Country Patent/Application Date
----- ------- ------------------ ----
Improved visualization trocar* United States 08/376,759 January 20, 1995
Visualization surgical cart United States D355,257 February 7, 1995
Optical shunt cutter system Germany 19509606.1 March 16, 1995
Optical shunt cutter system Japan 61133/95 March 20, 1995
Optical shunt cutter system United States 08/215,130 March 18, 1994
Adjustable arm for instrument United States 60/005,473 October 16, 1995
holder
Suturing device and method United States 60/002,769 August 24, 1995
Trocar for endoscopic surgery* Canada 2,151,926 November 12, 1993
Trocar for endoscopic surgery* EPO 94902247.9 November 12, 1993
Trocar for endoscopic surgery* United States US93/11024 November 12, 1993
Trocar for endoscopic surgery* United States 5,385,572 January 31, 1995
Method and apparatus for Germany P4418263.5 May 25, 1994
replacing a cannula*
Method and apparatus for Japan 112963/94 May 26, 1994
replacing a cannula*
Method and apparatus for United States 5,437,644 August 1, 1995
replacing a cannula*
* Assigned to Ethicon Endo-Surgery, Inc. with license to Cordis Innovasive
Systems, Inc.
-14-
TRADEMARKS
TRADEMARK COUNTRY REGN/APPLN
--------- ------- ----------
1. ATLAS Benelux 453,921
International Registration 537,063
Denmark 00 000-0000
Finland 112,866
Ireland 130,929
United Kingdom 1,559,120
2. HAWKVISION Benelux 564,550
International Registration 640,757
United Kingdom 2,029,274
3. LIGHTOUCH Benelux 559,395
International Registration 634,240
United Kingdom 2,013,166
4. OMNISHUNT United States 1,602,100
Benelux 476,926
5. ORBIS-SIGMA United States 1,612,836
Benelux 446,700
International Registration 531,693
Canada 395,796
Denmark 00 000-0000
Finland 109,287
Ireland 128,481
Japan 2,571,829
Xxxxxx 000,000
Xxxxxx 222,897
United Kingdom 1,355,753
6. XXXXX United States 1,416,512
Benelux 402,972
International Registration 492,374
Xxxxxxx 0000/00
Xxxxxx Xxxxxxx B123,0202
Norway 127,864
-15-
TRADEMARK COUNTRY REGN/APPLN
--------- ------- ----------
Sweden 199,767
7. CORDIS MINIPORT Benelux 460,991
International Registration 543,819
Denmark 7370-1990
Finland 129,956
Xxxxxx 000,000
Xxxxxx 230,494
United Kingdom 1,389,454
8. CORDIS MPAP United States 1,625,836
Benelux 461,100
International Registration 543,821
Denmark 7371-1990
Finland 129,955
Xxxxxx 000,000
Xxxxxx 230,492
United Kingdom 1,389,453
9. CORDIS Benelux 460,992
MULTIPURPOSE International Registration 543,820
ACCESS XXXX Xxxxxxx 0000-0000
Xxxxxxx 129,954
Xxxxxx 000,000
Xxxxxx 230,493
United Kingdom 1,389,455
10. XXXXXX-XXXXX Japan 2,252,933
11. XXXXXX-XXXXX Japan 2,252,934
(Katakana Characters)
Trade marks and trade xxxx applications numbered 1 to 11 were acquired from
Xxxxxxx & Xxxxxxx as part of the acquisition of the Cordis Neuroscience business
dated April 11, 1997. Numbers 1 to 11 are registered in the name of Cordis
Europa N.V. save that the US trade marks set out in numbers 4 to 6 and 8 are
registered in the name of Seller and the Canadian trade xxxx set out in number 5
is registered in the name of Cordis Corporation. Cordis Europa N.V. and Cordis
Corporation are Affiliates of Xxxxxxx & Xxxxxxx. The beneficial interest in such
trade marks have been transferred to the Companies.
-16-
12. CRYOTECH United Kingdom 1560476
United States 74/555391
13. CRYOTECH logo (x2) Xxxxxx Xxxxxxx 0000000
0000000
Xxxxxx Xxxxxx 74/555392 (suspended)
14. HCS2000 (series of 3) United Kingdom 1577747 (abandoned)
15. LCS2000 (series of 3) United Kingdom 1563254 (abandoned)
United States 74/564754 (abandoned)
Trade marks and trade xxxx applications numbered 12 to 15 are registered in the
name of Cryogenic Technology Limited while the beneficial interest has been
transferred to SCL pursuant to an asset purchase agreement between (1) Cryogenic
Technology Limited, (2) SCL and (3) Spembly dated August 30, 1995.
16. SONOCUT Sweden 209645
17. SWEDEMED Sweden
00. XXXXXXXX Xxxxx 0000000
Xxxxxx Xxxxxxx 1367059
Xxxxxx Xxxxxx 0000000
19. AMOILS United Kingdom 1138472
20. CRYONEEDLE United Kingdom 1559062
21. XXXXXXXX Xxxxxx Xxxxxxx 0000000
Xxxxxx Xxxxxx 74/515948
(published for opposition - fifth extension granted (October 14, 1997)).
22. XXXXXXXXX Xxxxxx Xxxxxxx X0000000
00. XXXXXX Xxxxxx Xxxxxxx B1259448
Trade marks and trade xxxx applications numbered 16 to 23 are registered in the
name of Spembly.
-17-
LICENSED TRADEMARKS
HAKIM
-18-
AMENDMENT NO. 1
TO
PURCHASE AGREEMENT
This Amendment No. 1 to the Purchase Agreement dated May 8, 1998 by and
between Elekta AB (Publ), a corporation organized and existing under the laws of
Sweden (the "Seller") and Nitinol Medical Technologies, Inc., a corporation
organized under the laws of the State of Delaware (the "Buyer") is entered into
as of July 8, 1998 by and between the Seller and the Buyer.
WHEREAS, the Buyer and the Seller have agreed to amend the Purchase
Agreement of hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual promises and undertakings
herein contained, and for other good and valuable consideration, the parties
agree as follows:
1. All capitalized terms used herein shall have the meanings assigned to them
in the Purchase Agreement.
2. Section 5.6 of the Purchase Agreement is hereby amended by adding the
following to the end thereof:
", except for (i) the promissory notes referred to on Exhibit 5.6 attached
hereto and (ii) trade accounts receivable held by the Acquired Companies due
from the Seller and/or its Affiliates (other than the Acquired Companies) as of
April 30, 1998 (the "Acquired Companies' Receivables from Group") and (iii)
trade accounts receivable held by Seller and/or its Affiliates (other than the
Acquired Companies) due from the Acquired Companies as of April 30, 1998 (the
"Group's Receivables from the Acquired Companies"). Effective as of the
Closing, Buyer shall cause the Acquired Companies to transfer the Acquired
Companies' Receivables from Group to Elekta Instrument AB, an Affiliate of
Seller. Effective as of the Closing, Seller shall, and shall cause its
Affiliates to, transfer the Group's Receivables from the Acquired Companies
(except for the account payable owed by EIL to Seller totalling SEK 3,866,070
relating to the Birmingham Surgiscope and the account payable from ESRL to
Seller totalling SEK 1,723,962.50 relating to the Marseilles Leksell Gamma Plan)
to such Affiliates of Buyer as may be designated by Buyer. On or before July 22,
1998, the Seller shall provide the Buyer with a written itemization of the
Group's Receivables from the Acquired Companies, indicating the amount of the
trade account receivable due to the Seller and each Affiliate of the Seller, as
the case may be, from each Acquired Company as of April 30, 1998, certified as
accurate and complete by the Chief Financial Officer of the Seller. The Seller
shall cause its Affiliates to promptly execute and deliver to the Buyer any
additional transfer of the Group's Receivables from the Acquired Companies as
the Buyer may request after receipt of such itemization from the Seller (except
for the account payable owed by EIL to Seller totalling SEK 3,866,070 relating
to the Birmingham Surgiscope and the account payable from ESRL to Seller
totalling SEK 1,723,962.50 relating to the Marseilles Leksell Gamma Plan)."
3. The Schedule of Assets to the Purchase Agreement is hereby amended by
adding the following to the end thereof:
1
"(11) The following promissory notes, each dated April 30, 1998, payable to
the Seller, copies of which are attached:
Borrower Amount Rate Approximate USD
-------- ------ ---- ---------------
Elekta Holding SA, France FF 66,838,000 0.1655 $11,061,689
Elekta Holding SA, France ESP 2,500,000 0.0066 $ 16,500
Elekta Instruments SA., Spain ESP 16,450,000 0.0066 $ 108,570
Elekta Instruments Ltd., UK GBP 350,912.64 1.672 $ 586,726
Spembly Medical Ltd., UK GBP 1,129,746.69 1.672 $ 1,888,936
Spembly Cryosurgery Ltd., UK GBP 350,000 1.672 $ 585,200
-----------
Total $14,247,621
===========
(12) Trade accounts receivable held by the Seller and/or its Affiliates
(other than the Acquired Companies) from any of the Acquired Companies as of
April 30, 1998, excluding (i) accounts payable from ESRL to the Seller totalling
1,723,962.50 SEK relating to the Marseilles Leksell Gamma Plan and (ii) accounts
payable owed by EIL to the Seller totalling 3,866,070 SEK relating to the
Birmingham Surgiscope."
4. There shall be added a new paragraph (f) at the end of Section 15.4, as
follows:
"(f) MODUS Consignment Inventory. At any time prior to December 31, 1998,
---------------------------
the Buyer may, by giving written notice to the Seller, require the Seller to
repurchase, at book value, any MODUS consignment inventory which is suitable
exclusively for facial use and, following such repurchase, the Buyer shall
deliver such inventory to EII."
5. Notwithstanding any other provision of the Purchase Agreement to the
contrary, the Purchase Price shall be $32,760,261 and no further adjustments
shall be made in such Purchase Price, except for indemnification payments
pursuant to Section 14.6 of the Purchase Agreement that are treated as a
reduction in the Purchase Price.
6. Except as set forth above, the Purchase Agreement is hereby ratified and
confirmed in all respects.
IN WITNESS WHEREOF, the Buyer and the Seller have each caused this
amendment to be duly executed in its corporate name by a duly authorized
representative as of the date first above written.
SELLER:
ELEKTA AB (PUBL)
/s/ Jonas Serlachius
-------------------------------
By: JONAS SERLACHIUS
----------------------------
Title: Attorney-in-Fact
-------------------------
BUYER:
NITINOL MEDICAL TECHNOLOGIES, INC.
/s/ XX Xxxxx
-------------------------------
By: XX XXXXX
----------------------------
Title: CEO
-------------------------
2
Exhibit 5.6
Promissory Notes Payable to the Seller, each dated April 30, 1998
Borrower Amount Rate Approximate USD
-------- ------ ---- ---------------
Elekta Holding SA, France FF 66,838,000 0.1655 $ 11,061,689
Elekta Holding SA, France ESP 2,500,000 0.0066 $ 16,500
Elekta Instruments SA, Spain ESP 16,450,000 0.0066 $ 108,570
Elekta Instruments Ltd., UK GBP 350,912.64 1.672 $ 586,726
Spembly Medical Ltd., UK GBP 1,129,746.69 1.672 $ 1,888,936
Spembly Cryosurgery Ltd., UK GBP 350,000 1.672 $ 585,200
------------
Total $ 14,247,621
============
3