Exhibit 2.1
separation
Agreement*
Schedules and exhibits have been omitted pursuant to Item
601(b)(2) of Regulation S-K. A copy of any omitted schedule or exhibit will be furnished supplementally to the Securities and
Exchange Commission upon request.
* Corrected pages included by mutual agreement of the parties.
table of
contents
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Page |
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Article I DEFINITIONS |
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1 |
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Article II THE SEPARATION |
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9 |
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Section 2.1 |
Timing and Conditions |
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9 |
Section 2.2 |
Contributions |
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9 |
Section 2.3 |
Assumption |
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11 |
Section 2.4 |
Transfer Documents |
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12 |
Section 2.5 |
Governmental Approvals; Consents |
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13 |
Section 2.6 |
Deferred Transfers |
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13 |
Section 2.7 |
Termination of Agreements |
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14 |
Section 2.8 |
Further Actions |
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14 |
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Article III [RESERVED] |
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14 |
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Article IV INSURANCE |
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15 |
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Section 4.1 |
Policies and Rights Included Within the SpinCo Assets |
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15 |
Section 4.2 |
Post-Closing Date Claims |
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15 |
Section 4.3 |
Insured Liabilities |
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15 |
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Article V RELEASES AND INDEMNIFICATION |
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16 |
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Section 5.1 |
Release of Pre-Closing Claims |
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16 |
Section 5.2 |
Indemnification by SpinCo |
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18 |
Section 5.3 |
Indemnification by the Company |
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18 |
Section 5.4 |
Reduction for Insurance Proceeds and Other Recoveries |
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19 |
Section 5.5 |
Procedures For Indemnification of Third Party Claims |
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19 |
Section 5.6 |
Additional Matters |
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21 |
Section 5.7 |
Survival of Indemnities |
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21 |
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Article VI CERTAIN COVENANTS AND OTHER AGREEMENTS OF THE PARTIES |
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22 |
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Section 6.1 |
Restriction on Employee Solicitation and Hiring |
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22 |
Section 6.2 |
Employee Matters |
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22 |
Section 6.3 |
Marks |
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24 |
Section 6.4 |
Merger Agreement |
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24 |
Section 6.5 |
Representations; Limitations |
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24 |
Section 6.6 |
Non-Competition |
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26 |
Section 6.7 |
Acknowledgements |
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27 |
Section 6.8 |
Cash Adjustment |
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27 |
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Article VII CONFIDENTIALITY |
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28 |
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Section 7.1 |
Confidentiality |
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28 |
Section 7.2 |
Protective Arrangements |
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30 |
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Article VIII ACCESS TO INFORMATION AND SERVICES |
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30 |
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Section 8.1 |
Provision of Corporate Records |
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30 |
Section 8.2 |
Access to Information |
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31 |
Section 8.3 |
Production of Witnesses |
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31 |
Section 8.4 |
Privileged Matters |
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32 |
Section 8.5 |
Limitations on Obligations |
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33 |
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Article IX DISPUTE RESOLUTION |
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33 |
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Section 9.1 |
Disputes |
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33 |
Section 9.2 |
Arbitration |
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34 |
Section 9.3 |
Arbitration Procedure |
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34 |
Section 9.4 |
Confidentiality |
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35 |
Section 9.5 |
Non-Arbitration Matters |
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36 |
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Article X TAX MATTERS |
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36 |
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Section 10.1 |
Tax Returns and Payments |
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36 |
Section 10.2 |
Allocation of Taxes |
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38 |
Section 10.3 |
Transfer Taxes |
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41 |
Section 10.4 |
Tax Benefit Attributes |
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41 |
Section 10.5 |
Consistency in Filing Tax Returns |
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42 |
Section 10.6 |
Tax Characterization of Spinco Consideration |
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42 |
Section 10.7 |
Refunds |
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42 |
Section 10.8 |
Information and Cooperation |
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43 |
Section 10.9 |
Contests |
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43 |
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Article XI FURTHER ASSURANCES |
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44 |
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Section 11.1 |
Further Assurances |
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44 |
Section 11.2 |
Savings Clause |
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44 |
Section 11.3 |
Schedules |
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45 |
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Article XII TERMINATION |
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45 |
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Section 12.1 |
Termination |
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45 |
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Article XIII MISCELLANEOUS |
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45 |
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Section 13.1 |
Counterparts; Entire Agreement |
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45 |
Section 13.2 |
Governing Law |
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45 |
Section 13.3 |
Assignability |
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46 |
Section 13.4 |
Third Party Beneficiaries |
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46 |
Section 13.5 |
Notices |
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46 |
Section 13.6 |
Severability |
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47 |
Section 13.7 |
Publicity |
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47 |
Section 13.8 |
Expenses |
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48 |
Section 13.9 |
Headings; Interpretation |
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48 |
Section 13.10 |
Survival of Covenants |
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48 |
Section 13.11 |
Waivers of Default |
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48 |
Section 13.12 |
Specific Performance |
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48 |
Section 13.13 |
Amendments |
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49 |
Section 13.14 |
Waiver of Jury Trial |
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49 |
SEPARATION AGREEMENT
This Separation Agreement (this βAgreementβ)
is entered into as of August 4, 2014, by and between Symmetry Medical Inc., a Delaware corporation (the βCompanyβ),
and Racecar Spinco Inc., a Delaware corporation (βSpinCoβ). Capitalized terms used herein but not otherwise
defined shall have the meanings set forth in the Merger Agreement (as defined below).
RECITALS
WHEREAS, the Company
has entered into that certain Agreement and Plan of Merger dated as of August 4, 2014 (the βMerger Agreementβ),
by and among the Company, TecoStar Holdings, Inc., a Delaware corporation, Tecomet Inc., a Massachusetts corporation (βBuyerβ),
and TecoSym Inc., Delaware corporation (βMerger Subβ), pursuant to which, among other things, Merger Sub will
merge with and into the Company with the Company being the Surviving Corporation in the Merger, upon the terms and subject to the
conditions set forth in the Merger Agreement;
WHEREAS, the Companyβs
operations are divided into two reporting segments for purposes of financial reporting: the Symmetry Surgical Business and the
OEM Solutions Business;
WHEREAS, Buyer desires
to acquire from the Company, and the Company desires to transfer to Buyer, only the OEM Solutions Business, upon the terms and
subject to the conditions set forth in the Merger Agreement, and not the Symmetry Surgical Business;
WHEREAS, SpinCo has
been formed by the Company to hold the Symmetry Surgical Business;
WHEREAS, the Parties
desire to effect the Separation;
WHEREAS, pursuant to
the Merger, the common stock of the Company will be converted into the right to receive cash and shares of SpinCo Common Stock,
in the amounts and on the terms and subject to the conditions set forth in the Merger Agreement; and
WHEREAS, the parties
intend that this Agreement, including the schedules hereto, shall set forth the principal arrangements between them regarding the
Separation.
NOW, THEREFORE, in
consideration of the foregoing and the covenants and the mutual covenants and agreements herein contained, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound hereby,
the parties hereto hereby agree as follows:
Article
I
DEFINITIONS
The following terms
shall have the meanings assigned to them below whenever they are used in this Agreement and terms defined elsewhere in this Agreement
shall have the meanings ascribed to them at the location of their definition indicated below. Except where the context otherwise
requires, words imparting the singular shall include the plural and vice versa.
βAAAβ
shall mean the American Arbitration Association.
βAccounting
Firmβ shall have the meaning set forth in Section 10.1(a)(iii).
βActionβ
shall mean any demand, action, suit, countersuit, arbitration, inquiry, proceeding or investigation by or before any federal, state,
local, foreign or international Governmental Authority or any arbitration or mediation tribunal.
βAffiliateβ
shall mean, when used with respect to a specified Person, a Person that directly or indirectly, through one or more intermediaries,
controls, is controlled by or is under common control with such specified Person, including a Subsidiary (as defined below). As
used herein, βcontrolβ means the possession, directly or indirectly, of the power to direct or cause the direction
of the management and policies of such Person, whether through ownership of voting securities or other interests, by contract or
otherwise; provided, that control based solely on the basis of ownership of voting securities or other interests shall
be deemed to exist only if such ownership is in excess of twenty percent (20%) of the then outstanding shares of common stock or
the combined voting power of such Person.
βAgreementβ
shall have the meaning set forth in the introductory paragraph.
βAncillary
Agreementsβ shall mean the Transition Services Agreement, the Shared IP Cross License Agreement, the Supply Agreement,
the Quality Agreement and the Transfer Documents. The Ancillary Agreements shall not include the Merger Agreement.
βBuyerβ
shall have the meaning set forth in the recitals.
βCash-Out
Optionβ shall mean each Company Option that is outstanding as of immediately prior to the Effective Time and that has
an exercise price per share of Company Common Stock that is less than the sum of (a) the Merger Consideration, plus (b)
the fair market value of a share of SpinCo Common Stock as of immediately prior to the Effective Time (as determined by the Company
Board).
βChosen
Courtsβ shall have the meaning set forth in Section 9.5(a)(i).
βClosing
Indebtednessβ shall have the meaning set forth in Section 6.9(a).
βCombined
Books and Recordsβ shall have the meaning set forth in Section 8.1(c).
βCommissionβ
shall mean the United States Securities and Exchange Commission or any successor agency thereto.
βCompanyβ
shall have the meaning set forth in the introductory paragraph.
βCompany
Books and Recordsβ shall have the meaning set forth in Section 8.1(b).
βCompany
Common Stockβ shall mean the Common Stock, $0.001 par value per share, of the Company.
βCompany Consolidated
Groupβ shall mean (a) an βaffiliated groupβ as defined in Section 1504(a) of the Code of which the Company
is the common parent and a member of the SpinCo Group is a member and (b) any group with respect to which a member of the SpinCo
Group is included in a federal, state, local or foreign consolidated, combined or unitary Tax Return with the Company or any of
its Subsidiaries for state, local or foreign tax purposes.
βCompany
Consolidated Returnsβ shall mean any federal, state, local or foreign consolidated, combined or unitary Tax Return of
a Company Consolidated Group.
βCompany
Groupβ shall mean the Company and each of its direct and indirect Subsidiaries immediately following the implementation
of the Spinoff Plan, expressly excluding the SpinCo Group.
βCompany
Liabilitiesβ shall mean all Liabilities of the Company Group arising out of the OEM Solutions Business at any time prior
to, at or after the Effective Time, and which, for the avoidance of doubt, shall not include any SpinCo Liabilities.
βCompany
Restricted Businessβ shall mean the marketing, manufacture or distribution for sale of surgical hand-held instruments,
retractor systems, sterile disposable surgical products and sterilization containers, in each case, for sale directly to hospitals,
physicianβs offices, surgical centers or other healthcare providers.
βCompany
Separate Returnsβ shall have the meaning set forth in Section 10.1(b).
βConsentsβ
shall mean any consents, waivers or approvals required from, or notification required to be made to, any Third Party (other than
a Governmental Authority) in connection with the Separation or the Merger.
βContractβ
shall mean any contract, obligation, indenture, agreement, lease, purchase order, commitment, permit, license, note, bond, mortgage,
arrangement or undertaking (whether written or oral and whether express or implied) that is legally binding on any Person or any
part of its property under applicable Law, but excluding this Agreement and any Ancillary Agreement save as otherwise expressly
provided in this Agreement or any Ancillary Agreement.
βExchangeβ
shall mean the NASDAQ Global Market.
βExchange
Actβ shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time that reference is made thereto.
βForeign
Retained Subsidiariesβ shall mean, collectively, Symmetry Medical Malaysia, SDN, Symmetry Medical Ireland, Ltd and Symmetry
Medical Polyvac SAS.
βFSAβ
shall have the meaning set forth in Section 6.2(c)(ii).
βGenstar
Fundβ shall mean, collectively, Genstar Capital Partners V, L.P. and Genstar Capital Partners VI, L.P.
βGenstar
Affiliatesβ shall mean, with respect to any Genstar Fund, (a) the directors, officers, employees, members and managers
of such Genstar Fund, its general partner and/or manager and its Affiliated Funds (as defined below); (b) any affiliated funds
managed or advised by such Genstar Fundβs general partner or manager (the βAffiliated Fundsβ); and (c)
any portfolio company of such Genstar Fund or any of the Affiliated Funds other than Buyer and its Subsidiaries.
βGovernmental
Approvalsβ shall mean any notices, reports or other filings required to be made, and any consents, registrations, approvals,
permits or authorizations required to be obtained from, any Governmental Authority, in each case, in connection with consummation
of the Separation or the Merger.
βGovernmental
Authorityβ shall mean any federal, state, local, foreign or international court, government department, commission, board,
bureau, agency, official or other regulatory, administrative or governmental authority.
βGroupβ
shall mean either the Company Group or the SpinCo Group, as the case may be.
βHSA
Planβ shall have the meaning set forth in Section 6.2(c)(iii).
βIndebtedness Statementβ
shall have the meaning set forth in Section 6.9(a).
βIndemnifying
Partyβ shall have the meaning set forth in Section 5.4(a).
βIndemniteeβ
shall have the meaning set forth in Section 5.4(a).
βInformationβ
shall mean information, whether or not patentable or copyrightable or a trade secret, in written, oral, electronic or other tangible
or intangible forms, stored in any medium, including studies, reports, records, books, contracts, instruments, surveys, discoveries,
ideas, concepts, know-how, techniques, designs, specifications, drawings, blueprints, diagrams, models, prototypes, samples, flow
charts, data, computer data, disks, diskettes, tapes, computer programs or other software, marketing plans, customer names, employee
information, compensation information, financial information, projections, communications by or to attorneys (including attorney-client
privileged communications), memos and other materials prepared by attorneys or under their direction (including attorney work product),
communications and materials otherwise related to or made or prepared in connection with or in preparation for any legal proceeding,
and other technical, financial, employee or business information or data.
βInsurance
Proceedsβ shall mean those monies (a) received by an insured from an unaffiliated Third Party insurer under any
Shared Policy, or (b) paid by such Third Party insurer on behalf of an insured under any Shared Policy, in either case net
of any applicable premium adjustment, retrospectively-rated premium, deductible, retention, or cost of reserve paid or held by
or for the benefit of such insured.
βInsured
Company Liabilitiesβ shall mean that portion of any Company Liability to the extent, and only to the extent, that, with
respect to such portion of such Liability, Insurance Proceeds of the Shared Policies are actually recoverable by a member
of the SpinCo Group directly, as a holder, successor in interest or permitted assignee under the terms of the Shared Policies in
accordance with applicable Law, and not by any member of the Company Group.
βInsured
SpinCo Liabilitiesβ shall mean that portion of any SpinCo Liability to the extent, and only to the extent, that, with
respect to such portion of such Liability, Insurance Proceeds of the Shared Policies are actually recoverable by a member
of the Company Group directly, as a holder, successor in interest or permitted assignee under the terms of the Shared Policies
in accordance with applicable Law, and not by any member of the SpinCo Group.
βIntellectual
Propertyβ shall mean all intellectual property and industrial property rights of any kind or nature, including all United
States and foreign (a) patents, patent applications, patent disclosures, and all related continuations, continuations-in-part,
divisionals, reissues, re-examinations, substitutions and extensions thereof, (b) trademarks and all goodwill associated therewith,
(c) copyrights and copyrightable subject matter, whether statutory or common law, registered or unregistered and published
or unpublished, (d) rights of publicity, (e) moral rights and rights of attribution and integrity, (f) rights in
Software, (g) trade secrets and all other Information, know-how, inventions, improvements, processes, formulae, models and
methodologies, (h) rights to personal information, (i) internet domain names, social media accounts, telephone numbers
and internet protocol addresses, (j) applications and registrations for the foregoing, and (k) rights and remedies with
respect to past, present, and future infringement, misappropriation, or other violation of any of the foregoing.
βLawβ
shall mean any United States or non-United States federal, national, supranational, state, provincial, local or similar statute,
law, ordinance, regulation, rule, code, order, requirement or rule of law (including common law).
βLiabilitiesβ
shall mean any and all debts, guarantees, liabilities and obligations whatsoever, whether accrued or fixed, known or unknown, absolute
or contingent, matured or unmatured, reserved or unreserved, or determined or determinable of any kind or nature whatsoever, including
those arising under any Law or Action (including any product liability or warranty claim), whether asserted or unasserted, or order,
writ, judgment, injunction, decree, stipulation, determination or award entered by or with any Governmental Authority, and those
arising under any Contract or any fines, damages or equitable relief which may be imposed in connection with any of the foregoing
and including all costs and expenses related thereto.
βMarksβ
shall have the meaning set forth in Section 6.3.
βMergerβ
shall have the meaning set forth in the recitals.
βMinimum
Cash Amountβ shall mean (a) with respect to any Foreign Retained Subsidiary, $333,333 and (b) with respect to the Company
or any other Subsidiary, zero.
βOEM
Solutions Businessβ shall mean the business related to third party contract manufacturing, as described in the audited
consolidated balance sheet of the OEM Solutions Business financial reporting segment as of December 29, 2012 and December 28, 2013,
and the related consolidated statements of operations, changes in net parent investment and accumulated other comprehensive income,
comprehensive income and cash flows, attached hereto as Schedule 1.1(a).
βPartiesβ
shall mean the parties to this Agreement.
βPersonβ
shall mean any natural person, firm, individual, corporation, business trust, joint venture, association, company, limited liability
company, partnership, or other organization or entity, whether incorporated or unincorporated, or any governmental entity.
βPoliciesβ
shall mean insurance policies and insurance Contracts of any kind (other than life and benefits policies or Contracts), including
primary, excess and umbrella policies, comprehensive general liability policies, director and officer liability, fiduciary liability,
automobile, aircraft, property and casualty, business interruption, workersβ compensation and employee dishonesty insurance
policies, bonds and self-insurance and captive insurance company arrangements, together with the rights, benefits and privileges
thereunder.
βPost-Closing
Tax Periodβ shall mean any taxable period beginning after the date of the Effective Time and the portion determined under
Section 10.2(a) beginning after the date of the Effective Time for a Straddle Period.
βPre-Closing
Tax Periodβ shall mean any taxable period ending on or before the date of the Effective Time and the portion determined
under Section 10.2(a) through the end of the date of the Effective Time for a Straddle Period.
βRedemptionβ
shall mean the conversion in partial redemption described in clause (i) of Section 3.1(a) of the Merger Agreement.
βRegistered
Intellectual Propertyβ means patents, patent applications, trademark registrations or applications for registration,
copyright registrations and domain names.
βRestricted
Businessβ shall mean the marketing, manufacture or distribution of medical devices, medical instruments, medical sterilization
cases or trays, or aerospace products on a contract manufacturing basis for third parties providing such devices, instruments or
cases as part of a value-added product offering or providing supply chain management to third party medical device companies, but
excluding order to cash services in the United States.
βRestricted
Periodβ shall have the meaning set forth in Section 6.6.
βRulesβ
shall have the meaning set forth in Section 9.3.
βSeparation
or Redemption Taxesβ shall have the meaning set forth in Section 10.2(d).
βShared
Policiesβ shall mean all Policies, entered prior to the Effective Time and set forth on Schedule 1.1(b), which
are between or among a member of the Company Group, the SpinCo Group or any of their respective Affiliates and one or more Third
Parties that benefit both the OEM Solutions Business and the Symmetry Surgical Business.
βSpinCoβ
shall have the meaning set forth in the introductory paragraph.
βSpinCo
Assetsβ shall have the meaning set forth in Section 2.2.
βSpinCo
Books and Recordsβ shall have the meaning set forth in Section 8.1(a).
βSpinCo
Common Stockβ shall mean the common stock of SpinCo, $0.01 par value per share.
βSpinco
Consideration Equivalent Amountβ shall mean with respect to each Company Option, a number of shares of SpinCo Common
Stock equal to the result, if a positive number, of (a) the fair market value of a share of Company Common Stock (as determined
by the Company Board) as of immediately prior to the Effective Time, minus the exercise price per share of Company Common
Stock of such Company Option, multiplied by (b) the number of shares of Company Common Stock underlying such Company Option,
divided by (c) the fair market value of a share of SpinCo Common Stock (as determined by the Company Board) as of immediately
prior to the Effective Time.
βSpinCo
Consolidated Groupβ shall mean (a) the affiliated group of corporations as defined in Section 1504(a) of the Code as
in existence after the date of the Effective Time of which SpinCo is the common parent and (b) any group in existence after the
date of the Effective Time with respect to which a member of the SpinCo Group is included in a federal, state, local or foreign
consolidated, combined or unitary Tax Return with SpinCo or any of its Subsidiaries for state, local or foreign tax purposes.
βSpinCo
Groupβ shall mean SpinCo and each of its direct and indirect Subsidiaries immediately following implementation of the
Spinoff Plan.
βSpinCo
Group Pre-Closing Taxesβ shall have the meaning set forth in Section 10.2(b).
βSpinCo
Liabilitiesβ shall have the meaning set forth in Section 2.3.
βSpinCo
Marksβ shall have the meaning set forth in Section 6.2.
βSpinCo
Policiesβ shall mean all Policies, current or past, which are owned or maintained by or on behalf of the Company or any
of its Affiliates or predecessors, which relate only to the Symmetry Surgical Business and are assignable to the SpinCo Group.
βSpinCo
Separate Returnsβ shall have the meaning set forth in Section 10.1(b).
βSpinCo
Tax Itemsβ shall have the meaning set forth in Section 10.1(a)(i).
βSpinCo
Taxesβ shall mean, without duplication, (a) SpinCo Group Pre-Closing Taxes, as determined pursuant to Section 10.2(b),
(b) Separation or Redemption Taxes, as determined pursuant to Section 10.2(d), and (c) Transfer Taxes for which SpinCo is
responsible pursuant to Section 10.3.
βSpinoff
Planβ shall have the meaning set forth in Section 2.2.
βStraddle
Periodβ shall mean any taxable period that include but does not end on the Closing Date.
βSubsidiaryβ
means any corporation, partnership, joint venture or other legal entity of which the Company, the
Surviving Corporation, Buyer or such other Person, as the case may be (either alone or through or together with any other Subsidiary),
owns, directly or indirectly, securities or other ownership interests representing more than fifty percent (50%) of the equity
or more than fifty percent (50%) of the ordinary voting power (or, in the case of a partnership, more than fifty percent (50%)
of the general partnership interests) of such corporation or other legal entity.
βSymmetry
Surgical Assetsβ shall mean all of the equipment, machinery, fixtures, physical assets, inventory, improvements and other
personal, mixed or moveable property or interests reflected on the Symmetry Surgical Balance Sheet.
βSymmetry
Surgical Balance Sheetβ shall mean the unaudited consolidated balance sheet of the Symmetry Surgical financial reporting
segment as of December 28, 2013, attached hereto as Schedule 1.1(c).
βSymmetry
Surgical Businessβ shall mean the business related to surgical supply, as described in the Symmetry Surgical Balance
Sheet.
βSymmetry
Surgical Employeesβ shall mean all employees of the SpinCo Group, including Transferred Symmetry Surgical Employees.
βTarget Indebtedness Amountβ
shall mean $165,200,000.
βTax Benefit Attributeβ means any net operating loss, net capital loss, foreign tax credit, general business
credit or any other similar Tax asset or attribute.
βTax
Packageβ shall have the meaning set forth in Section 10.1(a)(ii).
βTerritoryβ
shall mean the world.
βThird
Partyβ shall mean any Person other than the Company, any Company Affiliate, SpinCo and any SpinCo Affiliate.
βThird
Party Claimβ shall have the meaning set forth in Section 5.5(a).
βTransfer
Documentsβ shall have the meaning set forth in Section 2.4.
βTransfer
Taxesβ shall have the meaning set forth in Section 10.3.
βTransfer-Eligible
Symmetry Surgical Employeesβ shall mean those employees of the Company Group providing services to the SpinCo Group and
identified on Schedule 1.1(d).
βTransferred
Symmetry Surgical Employeesβ shall mean those Transfer-Eligible Symmetry Surgical Employees who accept offers of employment
with a member of the SpinCo Group pursuant to Section 6.2.
Article
II
THE SEPARATION
Section 2.1 Timing
and Conditions. The Separation shall be effected in accordance with the Spinoff Plan and shall be completed only after all
the conditions to the Merger as set forth in Article VII of the Merger Agreement have been satisfied or waived in accordance
with their terms, other than (a) the condition set forth in Section 7.3(g) of the Merger Agreement with respect to the Separation,
and (b) those conditions that by the nature of their terms are to be satisfied at the Closing.
Section 2.2 Contributions.
In order to effectuate the Separation, and in accordance with the plan and structure set forth on Schedule 2.2 (such plan
and structure being referred to herein as βSpinoff Planβ), the Company shall (and shall cause its Subsidiaries
to) contribute, assign, transfer and convey to SpinCo, prior to the Effective Time, all rights, title and interests in and to the
following equity securities, assets and properties of the Symmetry Surgical Business (collectively, the βSpinCo Assetsβ),
in each case to the extent such contribution, assignment, transfer or conveyance is not prohibited by applicable Law:
(a) Equity
Securities of Subsidiaries. All of the outstanding shares of capital stock, membership interests and other equity interests,
as applicable, of each of Xxxxx Medical LLC, Specialty Surgical Instrumentation, Inc. and Symmetry Surgical International Inc.;
(b) Symmetry
Surgical Assets. The Symmetry Surgical Assets;
(c) Corporate
Assets. All tangible assets set forth on Schedule 2.2(c), which assets relate to corporate overhead and general administration
of the Company and are used primarily in the Symmetry Surgical Business;
(d) Contracts.
(i) All Contracts (including open purchase orders) relating exclusively to the Symmetry Surgical Business set forth on Schedule 2.2(d)(i),
(ii) all Contracts (including open purchase orders) relating to the corporate overhead and general administration of the Company
that are used primarily in the Symmetry Surgical Business and set forth on Schedule 2.2(d)(ii), and (iii) all employment
agreements, executive benefit agreements, severance agreements and other similar individual Contracts with any Symmetry Surgical
Employees;
(e) Real
Property Leases. The real property leases set forth on Schedule 2.2(e) under the heading βSymmetry Surgical
Businessβ. Schedule 2.2(e) also identifies all real property leases to which the Company or a Retained Subsidiary
is a party that will remain with the Company or a Retained Subsidiary following the Separation under the heading βOEM
Solutions Businessβ;
(f) Accounts
Receivable; Cash. (i) All accounts receivables of the Symmetry Surgical Business, of the kinds and sources reflected in the
chart of accounts set forth on Schedule 2.2(f), (ii) the deferred payment in the amount of up to Β£400,000 payable
by HLD Corporation, Ltd. in connection with the sale of Clamonta Ltd, pursuant to that certain Share Purchase Agreement dated May
21, 2014, to the extent such payment is actually received by the Company (net of any applicable Taxes owed by the Company in respect
thereof), and (iii) all cash and cash equivalents of the Company as of the Closing Date, which shall be paid into one or more accounts
designated by SpinCo, but only to the extent that such payments would not result in the failure of the condition set forth in Section 7.3(f) of
the Merger Agreement to be satisfied;
(g) Intellectual
Property. (i) The Registered Intellectual Property identified on Schedule 2.2(g), (ii) all other Intellectual Property,
excluding Registered Intellectual Property, used or held for use primarily in the operation of the OEM Solutions Business and (iii)
all documentation and physical embodiments of all Intellectual Property in clauses (i) and (ii);
(h) Software.
All rights in the software set forth on Schedule 2.2(h);
(i)
Books and Records. (i) Copies of all records, ledgers and files,
whether written or in electronic form, that relate primarily to the Symmetry Surgical Business (provided that a reasonable
number of copies of all such records shall be retained by the Company for archival purposes), including emails, financial and
accounting records, and other records and documentation containing Information that relates primarily to the Symmetry
Surgical Business, as well as emails of the Transferred Symmetry Surgical Employees primarily concerning the Symmetry
Surgical Business, (ii) upon the reasonable request of SpinCo, copies of all accounting and other records (including
records relating to the provision of benefits under any employee benefit plan or other compensatory agreement or arrangement
covering Symmetry Surgical Employees), ledgers and files, whether written or in electronic form (other than the items
described in clause (i) above) to the extent relating to the Symmetry Surgical Business that are not described in
clause (i) above and (iii) copies of all Tax Returns, Tax work papers and related records and files relating to the
Company and its Subsidiaries for taxable periods (or portions thereof) ending on or prior to the Closing Date;
(j)
Authorizations. All licenses, permits, approvals and authorizations issued or
granted by any Governmental Authority set forth on Schedule 2.2(j), which are used or held for use primarily in
connection with the Symmetry Surgical Business;
(k)
Insurance. (a) All Contracts of insurance identified on Schedule
2.2(k)(i), (b) the SpinCo Policies set forth on Schedule 2.2(k)(ii), and (c) all rights of SpinCo and
the SpinCo Group set forth in Sections 4.1 and 4.2;
(l)
Goodwill. All goodwill of the Symmetry Surgical Business; and
(m) Actions.
All Actions and rights to xxx at law or in equity against any Person relating exclusively to the Symmetry Surgical Business (including
with respect to the Intellectual Property included in the SpinCo Assets pursuant to Section 2.2(g)), including the right
to seek equitable and legal relief and receive all proceeds and damages therefrom (including damages for past, present and future
infringement of such Intellectual Property).
For the avoidance of
doubt, the structure and steps of the Spinoff Plan shall not be changed without the prior written consent of Buyer, and any contribution
of assets or liabilities contemplated pursuant to Sections 2.2 and 2.3 and any settlement of intercompany debt or
repatriation of cash held in a non-U.S. jurisdiction shall, absent express written consent by Buyer, be effected only in accordance
therewith.
Section 2.3 Assumption.
In furtherance of the Separation and in accordance with the Spinoff Plan, SpinCo shall accept the SpinCo Assets as contributed,
assigned, transferred and conveyed to it pursuant to Section 2.2 herein, and shall assume, discharge and be solely responsible
for the following:
(a) Liabilities.
All Liabilities set forth on Schedule 2.3(a) and any other Liabilities to the extent relating to, arising out of or resulting
from the Symmetry Surgical Business and the SpinCo Group, including all Liabilities to the extent relating to, arising out of or
resulting from:
(i) the
operation of the Symmetry Surgical Business, or any other business of any member of the SpinCo Group, as conducted at any time
before, at or after the Effective Time;
(ii) SpinCo
Taxes;
(iii) except
as expressly set forth in Section 6.2, the Symmetry Surgical Employees and the Transfer-Eligible Symmetry Surgical Employees,
including any claim made by any of them in the course of such employeeβs employment against any member of the Company Group
or the SpinCo Group, regardless of whether such claim arises prior to or after the Effective Time;
(iv) any
act or omission by any director, officer or representative of the Symmetry Surgical Business or the SpinCo Group (whether or not
such act of failure to act is or was within such Personβs authority), to the extent related to the Symmetry Surgical Business;
(v) any
SpinCo Assets;
(vi) the
protection or restoration of, or prevention of harm to, the environment or natural resources, the protection of human and occupational
health and safety, or otherwise arising under Environmental Laws or relating to Materials of Environmental Concern to the extent
arising out of (A) the operation of the Symmetry Surgical Business, as conducted at any time before, at or after the Effective
Time, (B) any of the SpinCo Assets, including any other businesses, operations or properties associated with the SpinCo Assets
(including any businesses, operations or properties for which a current or future owner or operator of the SpinCo Assets or the
Symmetry Surgical Business may be alleged to be responsible as a matter of Law, contract or otherwise due to such ownership or
operation of the SpinCo Assets or Symmetry Surgical Business), in any case, whether arising before, at or after the Effective Time
or (C) the operation of any business conducted by any member of the SpinCo Group at any time before, at or after the Effective
Time;
(vii) the
recall of the Quad-Lock Sterilization System sold by the Symmetry Surgical Business, and any product liability or warranty claims
relating to such products; and
(viii) the
recall of any products produced by the OEM Solutions Business for or on behalf of the Symmetry Surgical Business prior to the Closing.
(b) Transaction
Expenses. All fees and expenses incurred prior to the Effective Time (whether paid or payable prior to or after the Effective
Time) to third parties by the Company and/or its Affiliates in connection with this Agreement, the Merger Agreement and the Separation,
including (i) all fees and expenses owed to the Paying Agent, the respective financial, legal and accounting advisors of the foregoing,
and fees for the liability insurance policies referenced in Section 6.6(b) of the Merger Agreement, (ii) all unpaid payment obligations
of the Company, SpinCo or any of their respective Subsidiaries that become due solely as a result of the consummation of the transactions
contemplated by this Agreement or the Merger Agreement under any change in control, transaction bonus or similar agreement or arrangement
with any employee, consultant, independent contractor or director of the Company, SpinCo or any of their respective Subsidiaries,
and (iii) severance payments or similar obligations made or provided, or required to be made or provided by the Company, SpinCo
or any of their respective Subsidiaries to any employee, consultant, independent contractor or director of the Company, SpinCo
or any of their respective Subsidiaries, in each such case excluding, for the avoidance of doubt, all fees and expenses incurred
by the Genstar Funds or the Genstar Affiliates in connection with this Agreement, the Merger Agreement or the Separation. All of
such fees and expenses shall be paid by the Company at the Closing or, to the extent not paid at the Closing but incurred prior
to the Effective Time, by SpinCo promptly upon request of the Company or any of its Affiliates.
The Liabilities described
and encompassed in this Section 2.3 are hereinafter referred to as the βSpinCo Liabilitiesβ.
Section 2.4 Transfer
Documents. In furtherance of the contribution, assignment, transfer and conveyance of the SpinCo Assets and the assumption
of the SpinCo Liabilities in accordance with Section 2.2 and Section 2.3, on the date that such SpinCo Assets
are contributed, assigned, transferred or conveyed or such SpinCo Liabilities are assumed (a) the Company and SpinCo shall
execute and deliver, and shall cause their respective Subsidiaries to execute and deliver, such bills of sale, quitclaim deeds,
stock powers, certificates of title, assignments of partnership interests, assignments of Contracts and other instruments of transfer,
conveyance and assignment as and to the extent reasonably necessary to evidence the transfer, conveyance and assignment of all
right, title and interest in and to such SpinCo Assets to the applicable transferee thereof provided in the Spinoff Plan, and (b)
the Company and SpinCo shall execute and deliver, and shall cause their respective Subsidiaries to execute and deliver, such assumptions
of Contracts and other instruments of assumption as and to the extent necessary to evidence the valid and effective assumption
of such SpinCo Liabilities by the applicable assignee thereof provided in the Spinoff Plan, in each case in form and substance
approved by Buyer. All of the foregoing documents contemplated by this Section 2.4 shall be referred to collectively herein
as the βTransfer Documents.β
Section 2.5 Governmental
Approvals; Consents.
(a) Governmental
Approvals. The Parties shall use their respective reasonable commercial efforts to obtain any Governmental Approvals as promptly
as practicable following the date of this Agreement. If and to the extent that the valid, complete and perfected transfer or assignment
to SpinCo or one of its Subsidiaries, as the case may be, of any SpinCo Assets would be a violation of applicable Law or require
any Governmental Approval in connection with the Separation, then, unless the Company shall otherwise determine, the transfer or
assignment to SpinCo or one of its Subsidiaries, as the case may be, of such SpinCo Assets shall be automatically deemed deferred
and any such purported transfer or assignment shall be null and void until such time as all legal impediments are removed and/or
each of such Governmental Approvals has been obtained.
(b) Consents.
The Parties shall use their respective reasonable commercial efforts to obtain any Consents as promptly as practicable following
the date of this Agreement. Notwithstanding the foregoing, no Party shall be obligated to pay any consideration therefor to any
Third Party from whom any such Consent is requested (unless such Party is fully reimbursed by the requesting Party).
Section 2.6 Deferred
Transfers.
(a) Deferred
Assets. If the transfer or assignment of any SpinCo Asset intended to be transferred or assigned pursuant to Section 2.2
is not consummated prior to the Effective Time, whether as a result of the provisions of Section 2.5 or for any other reason,
then the Company shall retain such SpinCo Asset and shall thereafter hold such SpinCo Asset in trust solely for the use and benefit
of SpinCo (and at the sole expenses of SpinCo) to the extent not prohibited by Law.
(b) Deferred
Transfer. If and when the Consents and/or Governmental Approvals, or any other impediments to transfer, the absence of which
caused the deferral of transfer of any SpinCo Asset pursuant to Section 2.5 or otherwise, are obtained or removed (as appropriate),
the transfer of the SpinCo Asset (and the assumption of all SpinCo Liabilities related to such SpinCo Asset) shall be effected
in accordance with the terms of this Agreement and any applicable Ancillary Agreement.
(c) Continuing
Obligation. If the Parties are unable to obtain, or to cause to be obtained, any Governmental Approval or Consents contemplated
under Section 2.5 to transfer or assign any Contract, license or other obligation, then (i) the Company or the member of
the Company Group, as applicable, that is party to or otherwise bound by such Contract, license, or other obligation shall continue
to be party to or bound by such Contract, license or other obligation, in each case (unless prohibited by Law or the terms thereof),
as agent or subcontractor for SpinCo or member of the SpinCo Group to which such SpinCo Asset is to be assigned, transferred or
conveyed hereunder had the impediment to transfer not existed, and (ii) SpinCo shall, or shall cause a member of the SpinCo
Group to, pay, perform and discharge fully all the obligations or other Liabilities of the Company or member of the Company Group
thereunder from and after the Closing Date; provided, however, that neither the Company nor any member
of the Company Group shall be obligated to extend, renew or otherwise cause such Contract, license or other obligation to remain
in effect beyond the term in effect as of the Closing Date. SpinCo shall indemnify the Company and the members of the Company Group
and hold each of them harmless against any and all Liabilities arising in connection with any such SpinCo Asset that is not transferred
to SpinCo; provided, that SpinCo shall have no obligation to indemnify the Company any member of the Company Group
with respect to any matter to the extent that the Liability results from the Company having engaged in any violation of Law or
fraud in connection therewith. The Company shall, without further consideration, promptly pay and remit, or cause to be promptly
paid or remitted, to SpinCo (or to another member of the SpinCo Group designated in writing by SpinCo) all money, rights and other
consideration received by it or any member of its Group in respect of such retained Contract, license or other obligation. If and
when any such Governmental Approval or Consent shall be obtained or such SpinCo Asset shall otherwise become assignable or capable
of novation, the Company shall promptly assign, or cause to be assigned, all rights, obligations and other Liabilities thereunder
of any member of the Company Group to SpinCo (or to another member of the SpinCo Group designated in writing by SpinCo) without
payment of any further consideration and the SpinCo, or another member of the SpinCo Group, without the payment of any further
consideration, shall assume such rights, obligations and other Liabilities.
Section 2.7 Termination
of Agreements. Except with respect to this Agreement, the Merger Agreement and the Ancillary Agreements (and each other agreement
or instrument expressly contemplated herein or therein to survive by their terms) on behalf of the Parties and their respective
Groups, the Parties hereby terminate any and all written or oral agreements, arrangements, commitments or understandings (including
tax sharing or allocation agreements), solely between or among SpinCo and/or any member of the SpinCo Group, on the one hand, and
the Company and/or any member of the Company Group, on the other hand, effective as of the Closing Date. Each Party shall, at the
reasonable request of the other Party, take, or cause to be taken, such other actions as may be necessary to effect the foregoing.
Notwithstanding the foregoing, the Groups shall settle or otherwise contribute to capital all intercompany receivables and payables
between the Company Group and the SpinCo Group as of the Closing Date, and after the Closing Date neither Group shall owe any further
amounts to the other Group in respect of such intercompany receivables and payables. The provisions of this Section 2.6
shall not apply to any agreement, arrangement, commitment or understanding to which any Person other than the Parties and their
respective wholly-owned Subsidiaries is a party.
Section 2.8 Further
Actions. From time to time following the Closing Date, if the Company specifically identifies in writing to SpinCo an asset
that was transferred, conveyed, assigned or delivered inadvertently (because it was not contemplated by Section 2.2 to be
a SpinCo Asset) by the Company pursuant to this Agreement, then upon receiving such written notice SpinCo shall, as promptly as
practicable after receipt of such written notice, transfer, convey, assign or deliver back to the Company all right, title and
interest in and to such asset. In the event that SpinCo maintains that an asset identified by the Company pursuant to this Section
2.8 was in fact contemplated by Section 2.2 to be a SpinCo Asset, such dispute shall be resolved in accordance with
the dispute resolution procedures set forth in Article IX.
Article
III
[RESERVED]
Article
IV
INSURANCE
Section 4.1 Policies
and Rights Included Within the SpinCo Assets. Without limiting the generality of the definition of the SpinCo Assets, the SpinCo
Assets shall include: (a) any and all rights of an insured party under each of the Shared Policies (including rights of indemnity
and the right to be defended by or at the expense of the insurer), with respect to any injuries, losses, Liabilities, damages and
expenses incurred or claimed to have been incurred on or prior to the Closing Date by any Party in connection with the conduct
of the Symmetry Surgical Business, and which injuries, losses, liabilities, damages and expenses may have or have arisen out of
insured or insurable occurrences or events under one or more of the Shared Policies; provided, however,
that nothing in this Section 4.1 shall be deemed to constitute (or to reflect) the assignment of the Shared Policies, or
any of them, to SpinCo; and (b) the SpinCo Policies set forth on Schedule 2.2(k)(ii).
Section 4.2 Post-Closing
Date Claims. If, subsequent to the Closing Date, any Person shall assert a claim against any member of the SpinCo Group with
respect to any injury, loss, liability, damage or expense incurred or claimed to have been incurred on or prior to the Closing
Date in connection with the conduct of the Symmetry Surgical Business and such injury, loss, liability, damage or expense may have
or has arisen out of insured or insurable occurrences or events under one or more of the Shared Policies, the Company shall at
the time such claim is asserted (except to the extent inconsistent with Section 4.1) be deemed to assign, without need
of further documentation, to SpinCo the benefit of any and all rights of an insured party under the applicable Shared Policy with
respect to such asserted claim, including rights of indemnity and the right to be defended by or at the expense of the insurer;
provided, however, that nothing in this Section 4.2 shall be deemed to constitute (or to reflect)
the assignment of the Shared Policies, or any of them, to SpinCo.
Section 4.3 Insured
Liabilities.
(a) Claims
for coverage of Insured SpinCo Liabilities shall be tendered by the Company, to the extent permitted under the applicable Policy,
as necessary to invoke the benefit of the Policies, at SpinCoβs sole option, cost and expense. If such insurers do not promptly
acknowledge insurance coverage in connection with the Insured SpinCo Liabilities, then, with respect to such Insured SpinCo Liabilities,
SpinCo or a member of the SpinCo Group on an as-incurred basis shall: (i) advance all amounts expended by the Company Group
for or with respect to such Insured SpinCo Liabilities, including all costs and expenses in connection with the defense and settlement
and in satisfaction of any judgment incurred, and shall pay all amounts required (as determined by the Company) to cover any Liabilities
incurred by the Company Group in connection therewith, and (ii) pay all costs incurred in connection with pursuing and recovering
Insurance Proceeds with respect to the Insured SpinCo Liabilities. Any payments made by a member of the SpinCo Group on account
of such Insured SpinCo Liabilities shall be deemed to be advances pursuant to this Section 4.3(a). The SpinCo Group
shall have the right to recover any advances made pursuant to Section 4.3(a) from the Company Group, and the Company
Group shall have the obligation promptly to reimburse the SpinCo Group for such advances, solely from the Insurance Proceeds of
the Policies that cover such Insured SpinCo Liabilities and that are received by the Company Group with respect to an Insured SpinCo
Liability. The Company Group shall: (i) at all times until paid to a member of the SpinCo Group, hold Insurance Proceeds received
for or with respect to Insured SpinCo Liabilities in trust for the benefit of SpinCo; and (ii) promptly remit such Insurance Proceeds
to SpinCo.
(b) Claims
for coverage of Insured Company Liabilities shall be tendered by SpinCo, to the extent permitted by the applicable Policy, as necessary
to invoke the benefit of the Policies, at the Company's sole option, cost and expense. If such insurers do not promptly acknowledge
insurance coverage in connection with the Insured Company Liabilities, then, with respect to such Insured Company Liabilities,
the Company or a member of the Company Group on an as-incurred basis shall: (i) advance all amounts expended by the SpinCo Group
for or with respect to such Insured Company Liabilities, including all costs and expenses in connection with the defense and settlement
and in satisfaction of any judgment incurred, and shall pay all amounts required (as determined by SpinCo) to cover any Liabilities
incurred by the SpinCo Group in connection therewith, and (ii) pay all costs incurred in connection with pursuing and recovering
Insurance Proceeds with respect to the Insured Company Liabilities. Any payments made by a member of the Company Group on account
of such Insured Company Liabilities shall be deemed to be advances pursuant to this Section 4.3(b). The Company and the
Retained Subsidiaries shall have the right to recover any advances made pursuant to Section 4.3(b) from the SpinCo Group,
and the SpinCo Group shall have the obligation promptly to reimburse the Company Group for such advances, solely from the Insurance
Proceeds of the Policies that cover such Insured Company Liabilities and that are received by the SpinCo Group with respect to
an Insured Company Liability. The SpinCo Group shall: (i) at all times until paid to a member of the Company Group, hold Insurance
Proceeds received for or with respect to Insured Company Liabilities in trust for the benefit of the Company; and (ii) promptly
remit such Insurance Proceeds to the Company.
Article
V
RELEASES AND INDEMNIFICATION
Section 5.1 Release
of Pre-Closing Claims.
(a) Spinco
Release. SpinCo, for itself and each member of the SpinCo Group, their respective Affiliates, and all Persons who at any time
on or prior to the Closing Date were directors, officers, agents or employees of any member of the SpinCo Group (in each case,
in their respective capacities as such), in each case, together with their respective heirs, executors, administrators, successors
and assigns, do hereby, effective as of the Closing Date, remise, release and forever discharge the Company and the other members
of the Company Group, their respective Affiliates and all Persons who at any time on or prior to the Closing Date were shareholders,
directors, officers, agents or employees of any member of the Company Group (in each case, in their respective capacities as such),
in each case, together with their respective heirs, executors, administrators, successors and assigns, from (a) the SpinCo Liabilities
and (b) any and all other Liabilities whatsoever, whether at Law or in equity (including any right of contribution), whether arising
under any Contract, by operation of Law or otherwise, existing or arising from any acts or events occurring or failing to occur
or alleged to have occurred or to have failed to occur or any conditions existing or alleged to have existed on or before the Closing
Date, including in connection with the transactions and all other activities to implement the Separation and any of the other transactions
contemplated by this Agreement, the Ancillary Agreements and the Merger Agreement.
(b) Company
Release. The Company, for itself and each member of the Company Group, their respective Affiliates and all Persons who at any
time on or prior to the Closing Date were directors, officers, agents or employees of any member of the Companyβs Group (in
each case, in their respective capacities as such), in each case, together with their respective heirs, executors, administrators,
successors and assigns, do hereby, effective as of the Closing Date, remise, release and forever discharge SpinCo and the other
members of the SpinCo Group, their respective Affiliates and all Persons who at any time on or prior to the Closing Date were shareholders,
directors, officers, agents or employees of any member of the Company (in each case, in their respective capacities as such), in
each case, together with their respective heirs, executors, administrators, successors and assigns, from (a) the Company Liabilities
and (b) any and all other Liabilities whatsoever, whether at Law or in equity (including any right of contribution), whether arising
under any Contract, by operation of Law or otherwise, existing or arising from any acts or events occurring or failing to occur
or alleged to have occurred or to have failed to occur or any conditions existing or alleged to have existed on or before the Closing
Date, including in connection with the transactions and all other activities to implement the Separation and the Merger and any
of the other transactions contemplated by this Agreement, the Ancillary Agreements and the Merger Agreement.
(c) Mutual
Provisions. Nothing contained in Sections 5.1(a) or 5.1(b) shall impair or otherwise affect any right of any
Party, and as applicable, a member of the Partyβs Group to enforce this Agreement, the Merger Agreement or any Ancillary
Agreement. In addition, nothing contained in Sections 5.1(a) or 5.1(b) shall release any person from:
(i) any
Liability assumed by, or transferred, assigned or allocated to, a Party or a member of such Partyβs Group pursuant to or
contemplated by this Agreement or any Ancillary Agreement;
(ii) any
Liability provided in or resulting from any other Contract or understanding that is entered into on or after the Effective Time
between one Party or any member of such Partyβs Group, on the one hand, and the other Party or any member of such other Partyβs
Group, on the other hand; and
(iii) any
Liability that the Parties may have with respect to indemnification or contribution pursuant to this Agreement or otherwise for
claims brought against the Parties by a Third Party, which Liability shall be governed by the provisions of this Article
V and, if applicable, the appropriate provisions of the Merger Agreement and/or the Ancillary Agreements.
(d) Further
Actions. Each Party shall not, and shall not permit any member of its Group to, make any claim or demand, or commence any Action
asserting any claim or demand, including any claim of contribution or indemnification, against any other Party, any member of any
other Partyβs Group or any other Person released pursuant to Section 5.1(a) or Section 5.1(b), as applicable,
with respect to any and all Liabilities released pursuant thereto. If a Party breaches this Section 5.1(d), such breaching
Party, in addition to any other remedy available at Law or under this Agreement, shall be liable for all related expenses, including,
but not limited to, court costs, reasonable attorneysβ fees, and all other legal expenses, of the other Party.
(e) Intent.
It is the intent of each Party, by virtue of the provisions of this Section 5.1, to provide for a full and complete
release and discharge of all the Liabilities specified herein existing or arising from all acts and events occurring or failing
to occur or alleged to have occurred or to have failed to occur, and all conditions existing or alleged to have existed, on or
before the Closing Date, whether known or unknown, including any contractual agreements or arrangements existing or alleged to
exist between or among any Parties or the members of any Partyβs Group on or before the Closing Date, except as otherwise
set forth in Section 5.1(c).
(f) Representatives.
If any director, officer or employee of a Party (or any other Person on such Partyβs behalf) initiates an Action with respect
to claims released by this Section 5.1, such shall indemnify the other Party against such Action in accordance with
the provisions set forth in this Article V.
(g) Further
Releases. At any time, at the request of any other Party, each Party shall cause each member of its respective Group and to
the extent practicable each other Person on whose behalf it released Liabilities pursuant to this Section 5.1 to execute
and deliver releases reflecting the provisions hereof.
Section 5.2 Indemnification
by SpinCo. Following the Closing Date, SpinCo, on behalf of itself and its Subsidiaries following the consummation of the Separation,
shall indemnify, defend and hold harmless and shall cause its direct and indirect Subsidiaries to indemnify, defend and hold harmless,
the Company, the other members of the Company Group, their respective directors, officers and employees, and each of the heirs,
executors, successors and assigns of any of the foregoing (collectively, the βCompany Indemniteesβ), from and
against any and all Liabilities of the Company Indemnitees relating to, arising out of or resulting from any of the following:
(a) the
failure of SpinCo, any member of the SpinCo Group or any other Person to pay, perform or otherwise promptly discharge any SpinCo
Liabilities in accordance with their respective terms, whether prior to, on or after the Closing Date;
(b) the
SpinCo Liabilities; and
(c) any
breach (including any breach of any representation or warranty) of this Agreement or any of the other Ancillary Agreements by any
member of the SpinCo Group; provided, that the indemnification provisions of this Section 5.2 shall not apply to
the Transition Services Agreement or the Supply Agreement, which shall be subject to the indemnification provisions contained therein.
Section 5.3 Indemnification
by the Company. Following the Closing Date, the Company, on behalf of itself and the Retained Subsidiaries, shall indemnify,
defend and hold harmless SpinCo, the other members of the SpinCo Group, each of their respective directors, officers and employees,
and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the βSpinCo Indemniteesβ),
from and against any and all Liabilities of the SpinCo Indemnitees relating to, arising out of or resulting from any of the following:
(a) the
failure of the Company, any member of the Company Group or any other Person to pay, perform or otherwise promptly discharge any
Company Liabilities in accordance with their respective terms, whether prior to, on or after the Closing Date;
(b) the
Company Liabilities; and
(c) any
breach (including any breach of any representation or warranty) of this Agreement or any of the other Ancillary Agreements by any
member of the SpinCo Group; provided, that the indemnification provisions of this Section 5.3 shall not apply to
the Transition Services Agreement or the Supply Agreement, which shall be subject to the indemnification provisions contained therein.
Section 5.4 Reduction
for Insurance Proceeds and Other Recoveries.
(a) Insurance
Proceeds; Tax Benefits. The amount that any Party is required to provide indemnification (the βIndemnifying Partyβ)
to or on behalf of the Party entitled to such indemnification (the βIndemniteeβ) pursuant to this Article
V, shall be reduced by (i) Insurance Proceeds or other amounts, in each case, actually recovered from Third Parties on behalf
of such Indemnitee in respect of the Liability and (ii) any Tax benefits actually realized by the Indemnitee in the year that the
loss was incurred or any prior tax years or the next succeeding two (2) years, in connection with the indemnifiable loss (including
any correlative adjustment within such period). If an Indemnitee receives a payment as required by this Agreement from an Indemnifying
Party in respect of any Liability and subsequently receives Insurance Proceeds in respect of such Liability or realizes a Tax benefit
described in clause (ii), then such Indemnitee shall pay to the Indemnifying Party, as promptly as practicable after receipt, an
amount equal to the aggregate amount of such Insurance Proceeds received or such Tax benefit realized; provided, that
the aggregate amount of all payments by such Indemnitee pursuant to this Section 5.4(a) in respect of any indemnifiable
loss shall not exceed the aggregate amount of all payments received from the Indemnifying Party pursuant to this Agreement in respect
of such indemnifiable loss.
(b) Insurance
Proceeds. Any insurer who would otherwise be obligated to pay any claim shall not be relieved of the responsibility with respect
thereto or, solely by virtue of the indemnification provisions hereof, have any subrogation rights with respect thereto, it being
expressly understood and agreed that no insurer or any other Third Party shall be entitled to any benefit they would not be entitled
to receive in the absence of the indemnification provisions by virtue of the indemnification provisions hereof. Notwithstanding
the foregoing, each member of the Company Group and SpinCo Group shall be required to use its respective reasonable commercial
efforts to collect or recover any available Insurance Proceeds; provided, that the inability to so collect or recover available
Insurance Proceeds shall not limit any Indemnifying Partyβs obligations hereunder.
Section 5.5 Procedures
For Indemnification of Third Party Claims.
(a) Notice
of Third Party Claim. If any Indemnitee shall receive notice or otherwise learn of the assertion by a Third Party (including
any Governmental Authority) of any claim or of the commencement by any Third Party of any Action (each a βThird Party
Claimβ) with respect to which any Indemnifying Party may be obligated to provide indemnification to such Indemnitee hereunder,
such Indemnitee shall give such Indemnifying Party and each Party to this Agreement, written notice thereof as soon as reasonably
practicable, but no later than ten (10) Business Days after becoming aware of such Third Party Claim. Any such notice shall
describe the Third Party Claim in reasonable detail to the extent available. Notwithstanding the foregoing, the failure of any
Indemnitee or other Party to give notice as provided in this Section 5.5(a) shall not relieve the related Indemnifying
Party of its obligations under this Article V, except to the extent that such Indemnifying Party is actually and materially
prejudiced by such failure to give notice.
(b) Defense
of Third Party Claims. An Indemnifying Party may elect to defend (and seek to settle or compromise), at its own expense and
with its own counsel, any Third Party Claim. Within thirty (30) days after the receipt of notice from any Indemnitee in accordance
with Section 5.5(a) (or sooner, if the nature of such Third Party Claim so requires), the Indemnifying Party shall
notify the Indemnified Party whether the Indemnifying Party will assume responsibility for defending the Third Party Claim. If
the Indemnifying Party so elects, the Indemnifying Party shall be entitled, at its own cost and expense, (i) to take control
of the defense and investigation of such Third Party Claim, (ii) to employ and engage legal counsel of its own choice to handle
and defend the same, unless (A) the named parties to such action or proceeding include both the Indemnifying Party and such
Indemnitee and such Indemnitee has been advised in writing by counsel that there may be one or more legal defenses available to
such Indemnitee that are different from or additional to those available to the Indemnifying Party, (B) the Indemnitee reasonably
determines in good faith that any Third Party Claim is having or could reasonably be expected to have a material adverse effect
on its business, assets, affairs, or condition (financial or otherwise), or (C) a claim for indemnification relates to or
arises in connection with any criminal proceeding, indictment or investigation involving the Indemniteeβs Group, then in
the event of clauses (A) - (C), such Indemnitee shall be entitled, at the Indemnifying Partyβs cost and expense, to
participate in such defense; provided, that the Indemnifying Party shall not be responsible for the reasonable fees of more
than one separate counsel of the Indemniteeβs own choosing, and (iii) to compromise or settle such Third Party Claim,
which compromise or settlement shall be made only with the written consent of the Indemnitee (such consent not to be unreasonably
conditioned, delayed or withheld) unless (1) there is no finding or admission of any violation or wrongdoing by the Indemnitee,
(2) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party and (3) such compromise or
settlement provides for a full, unconditional and irrevocable release of the Indemnitee from all liability in connection with such
Third Party Claim. After notice from the Indemnifying Party to the Indemnitee of its election to assume the defense of any Third
Party Claim, (x) the Indemnifying Party will not be liable to such Indemnitee for any fees of other counsel or any other expenses
with respect to the defense of such Claim, except as otherwise provided in this Section 5.5(b) and (y) such Indemnitee
shall have the right to employ separate counsel and to participate in (but not control) the defense, compromise, or settlement
thereof, but the fees and expenses of such counsel shall be the expense of such Indemnitee.
(c) Cooperation.
With respect to any Third Party Claim, the Indemnifying Party and Indemnitees agree, and shall cause their respective counsel (if
applicable), to cooperate fully (in a manner that will preserve all attorney-client privilege or other privileges) to mitigate
any such claim and minimize the defense costs associated therewith.
(d) Assumption
of Defense. If any Indemnifying Party fails to assume the defense of any Third Party Claim within thirty (30) days after
receipt of written notice of such claim (or sooner if the nature of such claim requires), the Indemnitee will, upon delivering
notice to such effect to the Indemnifying Party, have the right to undertake the defense, compromise or settlement of such Third
Party Claim and be fully indemnified therefor to the extent it is ultimately determined that the Indemnifying Party is obligated
hereunder to indemnify the Indemnified Party with respect to such Third Party Claim. If the Indemnitee assumes the defense of any
Third Party Claim, it shall keep the Indemnifying Party reasonably informed of the progress of any such defense, compromise or
settlement. The Indemnifying Party shall, to the extent required hereunder, reimburse all costs and expenses of the Indemnitee
incurred with respect to such Third Party Claim.
(e) This
Section 5.5 shall not apply to any claim relating to Taxes, which shall be covered by Section 10.9.
Section 5.6 Additional
Matters.
(a) Direct
Claims. Any claim on account of a Liability which does not result from a Third Party Claim shall be asserted by written notice
given by the Indemnitee to the relevant Indemnifying Party. Such Indemnifying Party shall have a period of ten (10) Business Days
after the receipt of such notice within which to respond thereto. If such Indemnifying Party does not respond within such ten (10)
Business Day period, such Indemnifying Party shall be deemed to have rejected responsibility to make payment. If such Indemnifying
Party rejects such claim in whole or in part, such Indemnitee shall be free to pursue such remedies as may be available to such
Party as contemplated by this Agreement and any applicable Ancillary Agreement.
(b) Subrogation;
Cooperation. In the event of payment by or on behalf of any Indemnifying Party to any Indemnitee in connection with any Third
Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee as to any events or
circumstances in respect of which such Indemnitee may have any right, defense or claim relating to such Third Party Claim against
any claimant or plaintiff asserting such Third Party Claim or against any other Person. Such Indemnitee shall cooperate with such
Indemnifying Party in a reasonable manner, and at the cost and expense (including allocated costs of in-house counsel and other
in-house personnel) of such Indemnifying Party, in prosecuting any subrogated right, defense or claim.
(c) Substitution.
In the event of an Action in which the Indemnifying Party is not a named defendant, if the Indemnifying Party shall so request,
the Parties shall endeavor to substitute the Indemnifying Party for the named defendant, and add the Indemnifying Party as a named
defendant if at all practicable.
Section 5.7 Survival
of Indemnities. The rights and obligations of each Party and their respective Indemnitees under this ARTICLE V shall
survive the sale or other transfer by any Party or its Affiliates of any assets or businesses or the assignment by it of any and
all Liabilities.
Article
VI
CERTAIN COVENANTS AND OTHER AGREEMENTS OF THE PARTIES
Section 6.1 Restriction
on Employee Solicitation and Hiring.
(a) Company
Non-Solicit. During the period from the date hereof through the third (3rd) anniversary of the date hereof, none of Buyer,
the Company or any of their respective Subsidiaries shall, directly or indirectly, hire or solicit any Person, other than any Person
who is an employee of the OEM Solutions Business as of the date hereof and who does not become a Transferred Symmetry Surgical
Employee, who (i) is or was employed by SpinCo or any of its Subsidiaries during the twelve (12) month period prior to the date
hereof and who provided services in connection with the Symmetry Surgical Business, or (ii) becomes a Transferred Symmetry Surgical
Employee, or encourage any such employee to leave or limit such employment or hire any such employee who has left such employment,
except pursuant to a general solicitation which is not directed specifically to any such employees; provided, that nothing
in this Section 6.1(a) shall prevent any such Person from hiring any employee whose employment has been terminated
subsequent to date hereof. Notwithstanding the foregoing, no third party (or Affiliate of any such third party) who acquires Buyer
or any of its Subsidiaries shall be subject to the restrictions set forth in this Section 6.1(a).
(b) SpinCo
Non-Solicit. During the period from the date hereof through the third anniversary of the date hereof, SpinCo shall not, directly
or indirectly, hire or solicit any Person, other than Persons who are employees of the Symmetry Surgical Business as of the date
hereof or Persons who are Transfer-Eligible Symmetry Surgical Employees, who is or was employed by the Company or Buyer or any
of their respective Subsidiaries during the twelve (12) month period prior to the date hereof in connection with the Restricted
Business, or encourage any such employee to leave or limit such employment or hire any such employee who has left such employment,
except pursuant to a general solicitation which is not directed specifically to any such employees; provided, that nothing in this
Section 6.1(b) shall prevent SpinCo from hiring any employee whose employment has been terminated subsequent to date
hereof. Notwithstanding the foregoing, no Affiliate of any third party (other than SpinCo and its Subsidiaries) who acquires SpinCo
(or any of its Subsidiaries) shall be subject to the restrictions set forth in this Section 6.1(b).
Section 6.2 Employee
Matters.
(a) Employment
Offers. Prior to the Closing Date, SpinCo shall make offers, or shall cause a member of the SpinCo Group to make offers, of
employment to such Transfer-Eligible Symmetry Surgical Employees as SpinCo determines in its sole discretion, on terms and conditions
to be mutually agreed to by SpinCo and the applicable Transfer-Eligible Symmetry Surgical Employee. To the extent permitted by
applicable Law, all employee records relating to the Symmetry Surgical Employees in possession of the Company Group shall be transferred
to the SpinCo Group on or promptly following the Closing Date; provided, that the Company Group shall be permitted to retain
copies of all such records to the extent permitted by applicable Law.
(b) Waiver
of Non-Compete. The Company, on behalf of itself and each member of the Company Group, hereby waives its rights to enforce
all non-competition provisions against each Symmetry Surgical Employee to the extent that they could be asserted against such Symmetry
Surgical Employee for providing services to the SpinCo Group. SpinCo, on behalf of itself and each member of the SpinCo Group,
hereby waives its rights to enforce all non-competition provisions against each employee of the Company Group, to the extent that
they could be asserted against such employee for providing services to the Company Group.
(c) Benefit
Plans. As soon as is reasonably practicable following the Closing Date, the Company shall use its commercially reasonable efforts,
subject to compliance with applicable Law, to:
(i) cause
the Companyβs 401(k) plan to transfer the account balances of the Symmetry Surgical Employees (including any outstanding
loans) from the Companyβs 401(k) plan to a 401(k) plan established by the SpinCo Group in accordance with the requirements
of Sections 411(d)(6) and 414(l) of the Code, and SpinCo shall cause the SpinCo Groupβs 401(k) plan to accept such transfer
in accordance with such requirements.
(ii) cause
the Companyβs Flexible Spending Account (βFSAβ) administrator to transfer the account balances of the
Symmetry Surgical Employees from the Companyβs FSA Plan to a FSA plan established by the SpinCo Group, and SpinCo shall cause
the SpinCo Groupβs FSA plan to accept such transfer; and
(iii) cause
the administrators of the Companyβs Health Savings Accounts (each, an βHSA Planβ) to transfer the account
balances of the Symmetry Surgical Employees from the Companyβs HSA Plans to a HSA plan or plans established by the SpinCo
Group, and SpinCo shall cause the SpinCo Groupβs HSA plan or plans to accept such transfer.
(d) Claims
Incurred. Without limiting the application of Section 6.2(e), the Company Group shall be responsible for all reimbursement
claims (such as medical and dental claims), all non-reimbursement claims (such as life insurance claims) and all Liabilities incurred
under or with respect to any Company Plans at or prior to the Closing with respect to Symmetry Surgical Employees and Transfer-Eligible
Symmetry Surgical Employees. The SpinCo Group shall only be responsible for reimbursement claims (such as medical and dental claims),
non-reimbursement claims (such as life insurance claims) and Liabilities incurred under or with respect to any employee benefit
plans of the SpinCo Group following the Closing with respect to any Symmetry Surgical Employees. For purposes of this Section 6.2(d),
a claim shall be deemed to be incurred as follows: (i) with respect to life, accidental death and dismemberment, disability and
business travel accident insurance benefits, upon the death, accident or illness giving rise to such benefits, and (ii) with respect
to health, dental and prescription drug benefits (including in respect of any hospital confinement), upon the provision of the
related services, materials or supplies.
(e) Compliance.
The Company Group shall be solely responsible for complying with the requirements of Part 6 of Subtitle B of Title I of ERISA and
Section 4980B of the Code for any individual who is an βM&A qualified beneficiaryβ as defined in Q&A-4 of Treas.
Reg. Β§54.4980B-9 in connection with the transactions contemplated by this Agreement and the Merger Agreement.
Section 6.3 Marks.
As soon as reasonably practicable and in any event within one (1) year of the Closing Date, each Party shall, and shall cause each
member of such Partyβs Group to: (a)(i) in the case of the Company, cease to make any use of the word combinations set
forth on Schedule 6.3(a) or derivations thereof and any trademarks related thereto or containing or comprising the
foregoing, including any name or xxxx confusingly similar thereto or dilutive thereof (the βSpinCo Marksβ) and
(ii) in the case of SpinCo, cease to make use of the words set forth on Schedule 6.3(b) or derivations thereof
and any trademarks related thereto or containing or comprising the foregoing, including any name or xxxx confusingly similar thereto
or dilutive thereof (collectively with the SpinCo Marks, the βMarksβ); (b) take all steps necessary, and
fully cooperate with the other Party and its Affiliates, to remove the other Partyβs Marks from any corporate, trade, and
assumed names and cancel any recordation of such names with any Governmental Authority, and change any corporate, trade, and assumed
name that uses the other Partyβs Marks to a name that does not include the Marks or any variation, derivation, or colorable
imitation thereof; and (c) remove, strike over or otherwise obliterate all Marks of the other Party from (or otherwise not
use) in all materials owned by such Party and its Affiliates, including any business cards, stationary, packaging materials, displays,
signs, promotional and advertising materials, and other materials or media including any internet usage or domain names that include
the other Partyβs Marks.
Section 6.4 Merger
Agreement. Until the occurrence of the Effective Time, the Company covenants to comply in all material respects with its obligations
under the Merger Agreement.
Section 6.5 Representations;
Limitations.
(a) Mutual
Representations. The Company and SpinCo each represents and warrants to the other, as of the date hereof and as of the Closing
Date, as follows:
(i) Such
Party has all necessary corporate power and authority to execute and deliver this Agreement (and each other agreement, certificate,
document and instrument contemplated hereby to be executed and delivered by them), to perform its obligations hereunder and thereunder
and to consummate the transactions contemplated hereby and thereby, including the Separation. The execution and delivery of this
Agreement by such Party (and each other agreement, certificate, document and instrument contemplated hereby to be executed and
delivered by such Party) and the consummation by such Party of the transactions contemplated hereby and thereby, including the
Separation, have been duly and validly authorized by all necessary corporate action, and no other corporate proceedings on the
part of such Party and no stockholder votes (other than the Requisite Stockholder Approval) are necessary to authorize this Agreement
or to consummate the transactions contemplated hereby. This Agreement has been duly authorized and validly executed and delivered
by such Party and constitutes a legal, valid and binding obligation of such Party, enforceable against it in accordance with its
terms, except that (A) such enforcement may be subject to applicable bankruptcy, insolvency or other similar Laws, now or
hereafter in effect, affecting creditorsβ rights generally and (B) the remedy of specific performance and injunctive
and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding
therefor may be thought.
(ii) None
of the execution, delivery or performance of this Agreement by such Party or the consummation by them of the Separation or the
compliance with any of the provisions of this Agreement will (with or without notice of lapse of time, or both): (A) conflict
with or violate any provision of the certificate of incorporation or bylaws of the such party, or any of its Subsidiaries; (B) assuming
that all required consents, approvals, authorizations and permits described in Section 4.5(b) of the Merger Agreement have
been obtained and all required filings and notifications described in Section 4.5(b) of the Merger Agreement have been made
and any waiting periods thereunder have terminated or expired, conflict with or violate any Law applicable to such Party or any
of its Subsidiaries, properties or assets; or (C) require any consent or approval under, violate, conflict with, result in
any breach of or any loss of any benefit under, or constitute a change of control or default under, or result in termination or
give to others any right of termination, vesting, amendment, acceleration or cancellation of, or result in the creation of a Lien
upon any of the respective properties or assets of the Company or any Retained Subsidiary pursuant to, any Contract, Permit, or
other instrument or obligation to which the Company or any Retained Subsidiary is a party or any of their respective properties
or assets may be bound or affected, except, with respect to clauses (B) and (C), for any such conflicts, violations, consents,
breaches, losses, changes of control, defaults, other occurrences or Liens which, individually or in the aggregate, have not had
and would not reasonably be expected to have a Material Adverse Effect.
(b) SpinCo
Representations. SpinCo hereby represents and warrants to the Company, as of the date hereof and as of the Closing Date, as
follows:
(i) SpinCo
is not now insolvent, and will not be rendered insolvent by the Separation. As used in this Section 6.5(b)(i), βinsolventβ
means that the sum of debts and other probable Liabilities exceeds the present fair saleable value of assets. Immediately after
giving effect to the consummation of the Separation and the Merger, (A) SpinCo will be able to pay its Liabilities as they
become due in the usual course of its business, (B) SpinCo will have sufficient working capital with which to conduct its
present or proposed business, (C) SpinCo will have assets (calculated at fair market value) that exceed its Liabilities and
(D) SpinCo will have sufficient cash available to satisfy its obligations, including the indemnification obligations to the
Company pursuant to this Agreement.
(ii) The
SpinCo Registration Statement (including any amendments or supplements thereto) will not, at the Effective Time, contain any untrue
statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they are made, not misleading, in each case, with respect to
SpinCo, the Symmetry Surgical Business, the SpinCo Assets or any other matter concerning SpinCo or any of its Subsidiaries (regardless
of whether such information is provided by SpinCo, the Company or any of their respective Affiliates). For the avoidance of doubt,
no representation or warranty is made by Spinco with respect to information supplied in writing by Parent, Merger Sub or any Affiliate
of Parent or Merger Sub for inclusion in the SpinCo Registration Statement. The SpinCo Registration Statement will, at the Effective
Time, comply as to form in all material respects with the provisions of the Securities Act and the rules and regulations of the
SEC promulgated thereunder.
(iii) On
the Closing Date, after giving effect to the Separation and the Merger, the Company and the Retained Subsidiaries shall own or
have the right to use all of the assets, rights and properties (including Intellectual Property) necessary to conduct in all material
respects the OEM Solutions Business on the same terms as all of the foregoing have been owned or used by the Company and its Subsidiaries
to operate the OEM Solutions Business in the ordinary course of business consistent with past practice prior to the date of this
Agreement, except with respect to the matters addressed by the Ancillary Agreements. As of immediately following the Effective
Time, the Company and the Retained Subsidiaries shall own all of the assets set forth on the OEM Solutions Financials, except for
those that have been sold or disposed of on or since the date of this Agreement in the ordinary course of business consistent with
past practice, or that have been transferred to SpinCo after the date of this Agreement in accordance with the terms hereof.
Section 6.6 Non-Competition.
(a) SpinCo
Non-Compete. For a period of ten (10) years commencing on the date hereof (the βRestricted Periodβ),
without the prior written consent of the Company, SpinCo shall not, directly or indirectly, through one or more of its Subsidiaries
or otherwise: (a) engage in or assist others in engaging in the Restricted Business in the Territory; (b) have an equity
or other ownership interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any
capacity, including as a partner, shareholder, member, agent, trustee or consultant; (c) solicit or accept the business of
any existing (as of the date hereof) client or customer of the Company or the Restricted Business (including any current client
or customer of Buyer or any of its Subsidiaries) to purchase any products or services competitive with the Restricted Business;
or (d) cause, induce or encourage any existing (as of the date hereof) client or customer of the Company or Buyer (or any
of their respective Subsidiaries) or the Restricted Business to terminate or modify any such actual or prospective relationship.
Notwithstanding the foregoing, SpinCo may own, directly or indirectly, solely as an investment, equity securities of any Person
traded on any national securities exchange if SpinCo is not a controlling Person of, or a member of a group which controls, such
Person and does not, directly or indirectly, own five percent (5%) or more of any class of equity securities of such Person. Notwithstanding
the foregoing, no Affiliate of any third party (other than SpinCo and its Subsidiaries) who acquires SpinCo (or any of its Subsidiaries)
shall be subject to the restrictions set forth in this Section 6.6.1.
(b) Company
Non-Compete. During the Restricted Period, without the prior written consent of SpinCo, the Company shall not, directly or
indirectly, through one or more of its Subsidiaries or otherwise: (a) engage in or assist others in engaging in the Company
Restricted Business in the Territory; (b) have an equity or other ownership interest in any Person (other than Buyer or its
Affiliates) that engages directly or indirectly in the Company Restricted Business in the Territory in any capacity, including
as a partner, shareholder, member, agent, trustee or consultant; (c) solicit or accept the business of any existing (as of
the date hereof) client or customer of the Symmetry Surgical Business, to purchase products or services competitive with the Company
Restricted Business; or (d) cause, induce or encourage any existing (as of the date hereof) client or customer of the Symmetry
Surgical Business to terminate or modify any such relationship. Notwithstanding the foregoing, the Company may own, directly or
indirectly, solely as an investment, equity securities of any Person traded on any national securities exchange if the Company
is not a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly, own five
percent (5%) or more of any class of equity securities of such Person. Notwithstanding the foregoing, (i) no third party (or Affiliate
of any such third party) who acquires Buyer or any of its Subsidiaries shall be subject to the restrictions set forth in this Section
6.6 and (ii) none of the Genstar Affiliates shall be subject to the restrictions set forth in this Section 6.6; provided,
that the Genstar Affiliates shall not engage in any reorganization involving the Company for the purposes of avoiding the obligations
applicable to the Company set forth in this Section 6.6.
(c) Acknowledgements.
Each of the Parties hereby acknowledges the broad territorial scope of the covenant contained in this Section 6.6, but acknowledges
and agrees that the restrictions are reasonable and enforceable in view of, among other things, (i) the narrow range of activities
prohibited, (ii) the national and international markets in which the Parties now, or in the future will, operate and in which the
products of the business conducted by them are, or will be, sold, (iii) the confidential, proprietary and trade secret information
of the other Party to which such Party had and/or may have had access.
Section 6.7 Acknowledgements.
The covenants and undertakings contained in Section 6.1 and Section 6.6 relate to matters which are of a special,
unique and extraordinary character and a violation of any of the terms of Section 6.1 or Section 6.6 would cause
irreparable injury to the non-breaching party, the amount of which will be impossible to estimate or determine and which cannot
be adequately compensated. Accordingly, the remedy at Law for any breach of Section 6.1 or Section 6.6 may be inadequate.
Therefore, the non-breaching party will be entitled to an injunction, restraining order or other equitable relief from any court
of competent jurisdiction in the event of any breach of Section 6.1 or Section 6.6 without the necessity of proving
actual damages or posting any bond whatsoever. The rights and remedies provided by this Section 6.7 are cumulative and in
addition to any other rights and remedies which the non-breaching party may have hereunder or under any other theory of liability.
The parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified
time period, a specified geographical area, a specified business limitation or any other relevant feature of Section 6.1
or Section 6.6 is unreasonable, arbitrary or against public policy, then a lesser time period, smaller geographical area,
less restrictive business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary
and not against public policy may be enforced against the applicable party.
Section 6.8 Cash
Adjustment.
(a) Cash
Statement. As promptly as practicable, but not later than thirty (30) days after the Closing, the Company shall deliver to
SpinCo a statement (the βCash Statementβ) setting forth a good faith determination of the amount of all cash
and cash equivalents as of the Closing (the βClosing Cashβ) for the Company and each of the Foreign Retained
Subsidiaries; provided, that Closing Cash shall not include the amount of the exercise price of any Company Equity Awards
exercised prior to the Closing.
(b) Payments
to SpinCo. If the Closing Cash for the Company, as set forth in the Cash Statement, is greater than the Minimum Cash Amount,
the Company shall pay to SpinCo the amount of such excess within two (2) Business Days of delivery of the Cash Statement, by wire
transfer of immediately available United States funds; provided, that the amount of such payment shall not exceed $1,000,000.
If the Closing Cash for any of the Foreign Retained Subsidiaries, as set forth in the Cash Statement, is greater than the Minimum
Cash Amount, the Company shall pay to SpinCo the amount of such excess within two (2) Business Days of delivery of the Cash Statement,
by wire transfer of immediately available United States funds; provided, that the amount of all such payments shall not
exceed $400,000 in the aggregate.
(c) Payments
to the Company. If the Closing Cash for the Company or any of the Foreign Retained Subsidiaries, as set forth in the Cash Statement,
is less than the Minimum Cash Amount, SpinCo shall pay to the Company the amount of any such shortfall within two (2) Business
Days of delivery of the Cash Statement, by wire transfer of immediately available United States funds.
(d) Currency.
With respect to the determination of Closing Cash denominated in currencies other than United States dollars, the foreign exchange
rate for each such currency as of the Closing as published by Reuters shall be used to convert such amounts into United States
dollars for purposes of determining the Closing Cash.
Section 6.9 Indebtedness
Statement.
(a) Indebtedness
Statement. As promptly as practicable, but not later than thirty (30) days after the Closing, the Company shall deliver to
SpinCo a statement (the "Indebtedness Statement") setting forth a good faith determination of the amount of all
Indebtedness of the Company and its Subsidiaries as of the Closing (the βClosing Indebtednessβ).
(b) Payments
to the Company. Payments to the Company. If the Closing Indebtedness, as set forth in the Indebtedness Statement, is greater
than the Target Indebtedness Amount, Spinco shall pay to the Company the amount of such excess within two (2) Business Days of
delivery of the Indebtedness Statement, by wire transfer of immediately available United States funds.
Article
VII
CONFIDENTIALITY
Section 7.1 Confidentiality.
(a) Confidentiality
Obligation. Notwithstanding any termination of this Agreement and subject to Section 7.2, for a period of five (5) years
from the Closing Date, each Party agrees to hold, and to cause its respective Affiliates, directors, officers, employees, agents,
accountants, counsel and other advisors and representatives to hold, in strict confidence, and undertake all reasonable precautions
to safeguard and protect the confidentiality of, all Information concerning the other Party or any member of such other Partyβs
Group that is in its possession after the Closing Date or furnished by the other Party, any other member of such other Partyβs
Group, or any of their respective directors, officers, employees, agents, accountants, counsel or other advisors and representatives
at any time pursuant to this Agreement, any Ancillary Agreement or otherwise in connection with the transactions contemplated hereby
or thereby, and shall not use any such Information other than for such purposes as shall be expressly permitted hereunder or thereunder,
except, in each case, to the extent that such Information has been: (i) in the public domain through no fault of such Party,
their respective Group or any of their respective directors, officers, employees, agents, accountants, counsel and other advisors
and representatives; (ii) lawfully acquired from other sources, which are not bound by a confidentiality obligation, by such
Party or their respective Group; or (iii) independently generated without reference to any proprietary or confidential Information
of the other Party or any member of such other Partyβs Group.
(b) Destruction
or Return of Information. Each Party agrees not to release or disclose, or permit to be released or disclosed, any such Information
concerning the other Party or any member of such other Partyβs Group to any other Person, except to its directors, officers,
employees, agents, accountants, counsel and other advisors and representatives who need to know such Information and who are informed
and advised that the Information is confidential and subject to the obligations hereunder, except in compliance with Section
7.2. Without limiting the foregoing, when any Information is no longer needed for the purposes contemplated by this Agreement
or any Ancillary Agreement, the Party in possession, custody or control of such Information shall, promptly upon the other Partyβs
request, either (i) destroy all copies of such Information in such Partyβs possession, custody or control (including any
that may be stored in any computer, word processor, or similar device, to the extent not commercially impractical to destroy such
copies) including any copies, summaries, analyses, compilations, reports, extracts or other reproductions, in whole or in part,
of such written, electronic or other tangible material or any other materials in written, electronic or other tangible format based
on, reflecting or containing Information prepared by such Party, and at the written request of such other Party, such destruction
shall be confirmed in writing, or (ii) return to the requesting Party, at the expense of the requesting Party, all copies of the
Information furnished to such Party by or on behalf of the requesting Party; provided, however, that the obligation
to destroy Information shall not apply to copies of Information made as a matter of routine information technology backup (although
such copies shall remain subject to the confidentiality and use restrictions hereunder); and provided, further, that
regardless of whether any Information is destroyed, the recipient Party may retain a reasonable number of copies of the other Partyβs
(or any of its Groupβs) Information for use solely in the event a dispute arises hereunder and only in connection with such
dispute, or to the extent required to comply with legal or regulatory requirements.
(c) Information.
The Company hereby agrees that it shall not, and it shall not permit its controlled Affiliates or their respective employees to,
at any time on or after the Closing Date, directly or indirectly, without prior written consent of SpinCo, disclose or use any
Information arising from or relating to the Symmetry Surgical Business or otherwise included in the SpinCo Assets or to disclose
or use any Information arising from or relating to the employment with the Company prior to the Effective Time of the Transferred
Symmetry Surgical Employees; provided, that the Information subject to the foregoing provisions of this sentence will not
include any Information generally available to, or known by, the public (other than as a result of disclosure in violation hereof);
provided, further, that the provisions of this Section 7.1(c) will not prohibit any retention of copies of
records, any disclosure required by any applicable Law (so long as reasonable prior notice is given of such disclosure and a reasonable
opportunity is afforded to contest the same), any disclosure in connection with the preparation and filing of financial statements
and tax returns of the Company, or its Affiliates or any disclosure made in connection with the enforcement of any right or remedy
relating to this Agreement or the transactions contemplated hereby. The Company further agrees that it will be responsible for
any breach or violation of the provisions of this Section 7.1(c) by any of its controlled Affiliates or their respective
employees. SpinCo hereby agrees that it shall not, and it shall not permit its controlled Affiliates or their respective employees,
at any time on or after the Closing Date, directly or indirectly, without prior written consent of the Company, disclose or use
any Information arising from or relating to the OEM Business, the assets of the OEM Business or to disclose or use any Information
arising from or relating to the employment with the Company prior to the Effective Time of the employees of the OEM Business; provided,
that the Information subject to the foregoing provisions of this sentence will not include any Information generally available
to, or known by, the public (other than as a result of disclosure in violation hereof); provided, further, that the
provisions of this Section 7.1(c) will not prohibit any retention of copies of records, any disclosure required by any applicable
Law (so long as reasonable prior notice is given of such disclosure and a reasonable opportunity is afforded to contest the same),
any disclosure in connection with the preparation and filing of financial statements and tax returns of Spinco or its Subsidiaries,
or any disclosure made in connection with the enforcement of any right or remedy relating to this Agreement or the transactions
contemplated hereby. SpinCo further agrees that it will be responsible for any breach or violation of the provisions of this Section
7.1(c) by any of its controlled Affiliates or their respective employees.
Section 7.2 Protective
Arrangements. In the event that either Party or any member of such Partyβs Group, either (a) determines after consultation
with counsel, in the opinion of such counsel that it is required by Law to disclose any Information or (b) receives any demand
under lawful process or from any Governmental Authority to disclose or provide Information of the other Party or their respective
Group that is subject to the confidentiality provisions hereof, such Party shall notify the other Party prior to disclosing or
providing such Information and shall cooperate at the expense of the requesting Party (and to the extent legally permissible) in
seeking any reasonable protective arrangements requested by such other Party. Subject to the foregoing, the Party that received
such request may thereafter: (i) furnish only that portion of the Information that is legally required; (ii) give notice
to the other Party of the information to be disclosed as far in advance as is practical; and (iii) exercise commercially reasonable
efforts to obtain reliable assurance that the confidential nature of such Information shall be maintained.
Article
VIII
ACCESS TO INFORMATION AND SERVICES
Section 8.1 Provision
of Corporate Records.
(a) SpinCo
Books and Records. In furtherance and not in limitation of the Companyβs obligation to deliver to SpinCo the SpinCo Assets
set forth in Section 2.2(i), and except as otherwise provided in any Ancillary Agreement, upon the prior written request
by SpinCo for specific and identified books and records which relate to (i) SpinCo or the conduct of the Symmetry Surgical
Business, as the case may be, on or prior to the Closing Date or (ii) any Ancillary Agreement to which SpinCo and the Company are
parties (collectively, the βSpinCo Books and Recordsβ), the Company shall deliver or cause to be delivered,
as soon as practicable following the date of such request, copies of such SpinCo Books and Records in its possession or control,
except to the extent such items are already in the possession of SpinCo or a SpinCo Affiliate, at the expense of SpinCo to a location
specified by SpinCo.
(b) Company
Books and Records. Except as otherwise provided in any Ancillary Agreement, upon the prior written request by the Company for
specific and identified books and records which relate to (i) the Company or the conduct of the OEM Solutions Business, as
the case may be, on or prior to the Closing Date or (ii) any Ancillary Agreement to which SpinCo and the Company are parties
(collectively, the βCompany Books and Recordsβ), SpinCo shall deliver or cause to be delivered, as soon as practicable
following the date of such request, copies of such Company Books and Records in its possession or control, except to the extent
such items are already in the possession of the Company or a Company Affiliate, at the expense of the Company to a location specified
by the Company.
(c) Combined
Books and Records. With respect to books and records that relate to both the Symmetry Surgical Business and the OEM Solutions
Business (the βCombined Books and Recordsβ) each Party shall each keep and maintain copies of such Combined
Books and Records as reasonably appropriate under the circumstances, subject to applicable confidentiality provisions hereof.
Section 8.2 Access
to Information. Except as otherwise provided in any Ancillary Agreement, and subject to Section 8.4, from and after
the Closing Date, the Company shall use commercially reasonable efforts to provide SpinCo and its authorized accountants, counsel
and other designated representatives with electronic access (in the manner in which the Company may reasonably determine) upon
reasonable advance notice of all records, books, contracts, instruments, computer data and other data and information (collectively,
βOperations Dataβ) to the extent relating to the operations of the Symmetry Surgical Business prior to the Closing
Date and within the Companyβs possession or control (including using commercially reasonable efforts to request such electronic
access from any Persons possessing such Operations Data), insofar as such Operations Data is required by SpinCo for the conduct
of the Symmetry Surgical Business, subject to appropriate restrictions for classified or privileged information. Similarly, except
as otherwise provided in any Ancillary Agreement, and subject to Section 8.4, from and after the Closing Date, SpinCo shall
use commercially reasonable efforts to provide the Company with electronic access (in the manner in which SpinCo may reasonably
determine) upon reasonable advance notice of all Operations Data to the extent relating to the operations of the OEM Solutions
Business prior to the Closing Date and within SpinCoβs possession or control (including using commercially reasonable efforts
to request such electronic access from any Persons possessing such Operations Data), insofar as such Operations Data is required
by the Company for the conduct of the OEM Solutions Business, subject to appropriate restrictions for classified or privileged
information. Operations Data may be requested under this Section 8.2 only for the legitimate business purposes of the requested
party, including audit, accounting, claims (including claims for indemnification hereunder), litigation and tax purposes, as well
as for purposes of fulfilling disclosure and reporting obligations and for performing under this Agreement and the transactions
contemplated hereby.
Section 8.3 Production
of Witnesses. At all times after the Closing Date, subject to Section 8.4, each of SpinCo and the Company shall
use commercially reasonable efforts to make available to the other, upon prior written request, its and its Subsidiariesβ
officers, directors, employees and agents as witnesses to the extent that such Persons may reasonably be required in connection
with any Action arising out of the conduct of the Symmetry Surgical Business or the OEM Business, as the case may be, prior to
the Closing Date, except in the case of an adversarial Action by one Party (or any member of such Partyβs Group) against
another Party (or any member of such Partyβs Group). A Party providing witness services to the other Party under this Section
8.3 shall be entitled to receive from the recipient, upon the presentation of invoices therefor, payments of such amounts,
relating to supplies, disbursements and other out-of-pocket expenses (at cost) and direct and indirect expenses of employees who
are witnesses or otherwise furnish assistance (at cost), as may be reasonably incurred in providing such witness services.
Section 8.4 Privileged
Matters. To allocate the interests of each Party with respect to privileged information, the Parties agree as follows:
(a) Company
Control. The Company shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with
privileged information which relates solely to the OEM Solutions Business, whether or not the privileged information is in the
possession of or under the control of the Company, or SpinCo. The Company shall also be entitled, in perpetuity, to control the
assertion or waiver of all privileges in connection with privileged information that relates solely to the subject matter of any
claims constituting Liabilities of the Company and the Company Group, now pending or which may be asserted in the future, in any
lawsuits or other Actions initiated against or by the Company, whether or not the privileged information is in the possession of
or under the control of the Company or SpinCo.
(b) SpinCo
Control. SpinCo shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with privileged
information which relates solely to the Symmetry Surgical Business, whether or not the privileged information is in the possession
of or under the control of the Company or SpinCo. SpinCo shall also be entitled, in perpetuity, to control the assertion or waiver
of all privileges in connection with privileged information which relates solely to the subject matter of any claims constituting
SpinCo Liabilities, now pending or which may be asserted in the future, in any lawsuits or other Actions initiated against or by
SpinCo, whether or not the privileged information is in the possession of SpinCo or under the control of the Company or SpinCo.
(c) Shared
Privilege. The Company and SpinCo agree that they shall have a shared privilege, with equal right to assert or waive, subject
to the restrictions of this Section 8.4, with respect to all privileges not allocated pursuant to the terms of Sections 8.4(a) and (b).
All privileges relating to any Actions or other matters which involve both the Company and SpinCo shall be subject to a shared
privilege.
(d) Waiver.
No Party may waive any privilege which could be asserted under any applicable Law, if the other Party has a shared privilege, without
the consent of the other Party, except to the extent reasonably required in connection with any litigation with Third Parties or
as provided in Section 8.4(e) below. Such consent shall (i) be in writing, (ii) not be unreasonably withheld,
conditioned or delayed, and (iii) shall be deemed to be granted unless written objection is made within twenty (20) days after
notice upon the other Party requesting such consent.
(e) Party
Claims. In the event of any Action between a member of the Company Group and a member of the SpinCo Group, either Party may
waive a privilege in which the other Party has a shared privilege, without obtaining the consent of the other Party; provided,
that such waiver of a shared privilege shall be effective only as to the use of information with respect to the Action between
the Company Group and the SpinCo Group, and shall not operate as a waiver of the shared privilege with respect to Third Parties.
(f) Disputes.
If a dispute arises between the Parties, or any members of their respective Groups, regarding whether a privilege should be waived
to protect or advance the interest of either Party, each Party agrees that it shall (i) negotiate in good faith, (ii) endeavor
to minimize any prejudice to the rights of the other Party, and (iii) not unreasonably withhold consent to any request for waiver
by the other Party. Each Party specifically agrees that it will not withhold consent to waiver for any purpose except to protect
its own legitimate interests.
(g) Subpoena
or Discovery. Upon receipt by any Party of any subpoena, discovery or other request which may reasonably be expected to result
in the production or disclosure of information subject to a shared privilege or as to which the other Party has the sole right
hereunder to assert a privilege, or if any Party obtains knowledge that any of its current or former directors, officers, agents
or employees has received any subpoena, discovery or other request which may reasonably be expected to result in the production
or disclosure of such privileged information, such Party shall promptly notify the other Party of the existence of the request
and shall provide the other Party a reasonable opportunity to review the information and to assert any rights it may have under
this Section 8.4 or otherwise to prevent the production or disclosure of such privileged information.
(h) Confidentiality.
The transfer of all Information pursuant to this Agreement is made in reliance on the agreement of the Company and SpinCo, as set
forth in Sections 8.3 and 8.4 and elsewhere in this Agreement, to maintain the confidentiality
of privileged information and to assert and maintain applicable privileges. The Parties agree that their respective rights to any
access to information being granted pursuant to Section 8.1 and Section 8.2, the agreement to provide witnesses and
individuals pursuant to Section 8.3, and the transfer of privileged information between the Company Group and
the SpinCo Group pursuant to this Agreement shall not be deemed a waiver of any privilege that has been or may be asserted under
this Agreement or otherwise.
Section 8.5 Limitations
on Obligations. Notwithstanding anything to the contrary, (a) in the event that the Party to whom a request for Information
has been made pursuant to this Article VIII determines in good faith upon the advice of counsel that any such provision
of Information would violate any applicable Law or Contract or waive any attorney-client privilege, then the Parties shall use
commercially reasonable efforts to permit compliance with such obligations to the extent and in a manner that avoids any harm or
consequence; and (b) the Party providing any Information hereunder shall only be obligated to provide such Information in
the form, condition and format in which it then exists and in no event shall such Party be required to perform any improvement,
modification, conversion, updating or reformatting of any such information.
Article
IX
DISPUTE RESOLUTION
Section 9.1 Disputes.
The Company and SpinCo recognize that disputes as to certain matters may from time to time arise during the effectiveness of this
Agreement and the Ancillary Agreements which relate to either Partyβs rights and obligations hereunder or thereunder. It
is the objective of the Parties to establish procedures to facilitate the resolution of certain disputes arising under this Agreement
and the Ancillary Agreements in an expedient manner by mutual cooperation and without resort to litigation. To accomplish this
objective, the Parties agree to follow the arbitration procedures set forth in Sections 9.2, 9.3 and 9.4 if
and when a dispute arises under this Agreement or the Ancillary Agreements; provided, however, that if and when a
dispute arises with respect to Sections 6.1, 6.6 and 6.7 (the βNon-Arbitration Mattersβ),
the Parties shall follow the procedures set forth in Section 9.5; provided, further, that any Non-Arbitration
Matter shall be subject to the provisions set forth in Article XIII; and provided, further, that the Parties
shall follow the procedures set forth in Article X with respect to the disputes described therein.
Section 9.2 Arbitration.
In the event of a dispute, controversy or claim arising out of or relating to this Agreement or the Ancillary Agreements, including
disputes relating to breach, validity of termination hereof or thereof, either Party may, by written notice to the other, have
such matter referred to their respective chief executive officers for attempted resolution by good faith negotiations. In the event
that, for any reason, the chief executive officers are not able to resolve such dispute within ten (10) Business Days after
receipt of notice, then at the request of any Party the dispute shall be resolved as provided in Section 9.3.
Section 9.3 Arbitration
Procedure. The arbitration shall be conducted in accordance with the American Arbitration Association Commercial Arbitration
Rules (the βRulesβ) then in effect, subject to the following provisions:
(a) Notice.
If a Party intends to begin an arbitration proceeding to resolve a dispute hereunder, such Party shall provide written notice to
the other Party in accordance with the Rules, which notice shall include a complete listing of all of the issues to be resolved
in such arbitration. The other Party may, in response to such notice, add additional issues to be resolved by providing a written
response to such first Party.
(b) Arbitral
Tribunal. If the aggregate amount in controversy is $5 million or less (including all claims and counterclaims), there
shall be one arbitrator who shall be agreed upon by the Parties within thirty (30) days of receipt by respondent of a copy
of the demand for arbitration. If the aggregate amount in controversy is more than $5 million (including all claims and counterclaims),
there shall be three (3) arbitrators meeting the conditions set forth in this Section 9.3(b), one of whom shall be appointed
by each of the Parties in accordance with the Rules, and the third arbitrator, who shall chair the arbitral tribunal, shall be
mutually appointed by the two Party-appointed arbitrators within fifteen (15) days of the appointment of the second arbitrator.
If any arbitrator is not appointed within the time limit provided herein, such arbitrator shall be appointed by the AAA in accordance
with the Rules. Any arbitrator appointed by the AAA shall be a retired judge or a practicing attorney with no less than fifteen
(15) years of experience with large commercial cases and experience as an arbitrator. Each arbitrator shall be neutral, disinterested,
impartial and independent of the Parties and others having any known interest in the outcome, and shall abide by the AAA/ABA Code
of Ethics for Arbitrators in Commercial Disputes. Except with regard to selection of the third (3rd) arbitrator by the Party-appointed
arbitrators, there shall be no ex parte communications with the arbitrator(s) during the arbitration.
(c) Pre-Arbitral
Relief. By agreeing to arbitration, the Parties do not intend to deprive any court of its jurisdiction to issue a pre-arbitral
injunction, pre-arbitral attachment, or other order in aid of arbitration proceedings and the enforcement of any award. Without
prejudice to such provisional remedies as may be available under the jurisdiction of a court, the arbitral tribunal shall have
full authority to grant provisional remedies and to direct the Parties to request that any court modify or vacate any temporary
or preliminary relief issued by such court, and to award damages for the failure of any Party to respect the arbitral tribunalβs
orders to that effect.
(d) Location.
The arbitration shall be conducted and the award shall be rendered in New York City, or another location mutually agreed to by
the Parties.
(e) Discovery.
The Parties shall have the right to undertake limited and focused documentary discovery and, as may be expressly authorized by
the arbitrator(s) limited depositions of no more than five (5) per Party and of limited duration, upon a determination that
such depositions are reasonably necessary to enable the requesting Party to prepare and present its claims and/or defenses at the
hearing.
(f) Procedure.
The arbitration hearing on the merits shall be held as soon as practicable, if possible no later than one hundred and twenty (120) days
following the date of the appointment of the sole or third arbitrator, or as soon thereafter as is practicable. The arbitrator(s) must
hold an oral hearing, but may impose reasonable time limits on each phase of the proceeding and may limit testimony to exclude
evidence that would be immaterial or unduly repetitive; provided, that all Parties are afforded the opportunity to
present material and relevant evidence and that each Party is given at least an approximately equal amount of time for presentation
of its case. The arbitrator(s) shall require witnesses to testify under oath if requested by any Party. Any Party desiring
a stenographic record may, at their own cost, secure a court reporter to attend the proceedings. When the arbitrator(s) determine
that all relevant and material evidence and arguments have been presented, the arbitrator(s) will declare the hearing closed.
The arbitrator(s) may defer the closing of the hearing for up to ten (10) days to permit the Parties to submit post-hearing
briefs.
(g) Awards.
The arbitrator(s) may award any remedy allowed by Law, including money damages, prejudgment interest and attorneysβ
fees, and to grant final, complete, interim, or interlocutory relief, including specific performance or any other form of permanent
injunctive relief. Notwithstanding the foregoing, punitive, exemplary or multiple damages may not be awarded, except to the extent
of indemnification for a Third-Party Claim based on such damages. Judgment upon any arbitration award hereunder may be entered
and enforced in any court having jurisdiction thereof. In rendering the award, the arbitrator(s) shall apply the substantive
Law of the State of Delaware, without regard to its conflict of laws provisions. The interpretation of and enforcement of this Article
IX shall be governed by the Federal Arbitration Act. The arbitrator(s) will render the award and its decisions within
thirty (30) days following the date of the closing of the hearing or as soon thereafter as practicable. The decision and award
of the arbitrator(s) will be final and binding on the Parties and may be entered and enforced in any court having jurisdiction.
(h) Fees
and Expenses. The Parties shall share equally all fees and expenses of the arbitrators to the extent permitted by applicable
Law and each Party shall personally bear all other costs and fees, including attorneyβs fees, incurred by such Party in the
course of the arbitration.
Section 9.4 Confidentiality.
The arbitration proceeding shall be confidential and the arbitrator(s) shall issue appropriate protective orders to safeguard
each Partyβs confidential Information. Except as required by Law, no Party shall make (or instruct the arbitrator(s) to
make) any public announcement with respect to the proceedings or decision of the arbitrator(s) without prior written consent
of each other Party. The existence of any dispute submitted to arbitration, and the award, shall be kept in confidence by the Parties
and the arbitrator(s), except as may be required in connection with the enforcement of such award or as otherwise required by applicable
Law or regulatory authority.
Section 9.5 Non-Arbitration
Matters.
(a) Procedures.
With respect to any Non-Arbitration Matter, each Party hereby agrees:
(i) that
it irrevocably submits to the exclusive jurisdiction of, and that the exclusive jurisdiction is hereby vested in, the state courts
of the State of Delaware and the United States District Court for the District of Delaware (the βChosen Courtsβ);
(ii) that
all claims in respect of any such Non-Arbitration Matter shall be heard and determined exclusively in the Chosen Courts;
(iii) that
it irrevocably waives, to the fullest extent permitted by applicable Law, any objection which such Party may now or hereafter have
to the laying of venue of any such dispute brought in such above-described courts or any defense of inconvenient forum for the
maintenance of such dispute;
(iv) that
it will not bring or support any action, cause of action, claim, cross-claim or third-party claim of any kind, whether in contract
or in tort or otherwise, in respect of any Non-Arbitration Matter in any forum other than the Chosen Courts; and
(v) that
a judgment in any such dispute may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by
Law.
(b) Service
of Process. Each of the Parties hereby consents to process being served by any Party in any suit, action or proceeding by delivery
of a copy thereof in accordance with the provisions of Section 12.6.
Article
X
TAX MATTERS
Section 10.1 Tax
Returns and Payments.
(a) Company
Consolidated Returns. The Company shall prepare and timely file (or cause to be prepared and timely filed), in accordance with
this Section 10.1, all Company Consolidated Returns. All such Company Consolidated Returns for a Pre-Closing Tax Period
shall be prepared in a manner consistent with past practice unless otherwise required by applicable Law or agreed to in writing
by the Company and SpinCo. The Company will be responsible for and will make all payments of Taxes shown to be due on such Company
Consolidated Returns.
(i) Company
Consolidated Returns for any Pre-Closing Tax Period shall include all income, gains, losses, deductions, credits and other Tax
items of the applicable members of the SpinCo Group (βSpinCo Tax Itemsβ). SpinCo Tax Items allocated to the
Pre-Closing Tax Period that includes the date of the Effective Time shall be determined pursuant to Section 10.2(b), to
the extent permitted under applicable Law.
(ii) SpinCo
shall provide to the Company all information reasonably necessary to prepare any Company Consolidated Return (a βTax Packageβ).
The Tax Package shall be prepared on a basis consistent with the current practices of the Company Consolidated Group. SpinCo shall
furnish to the Company for the relevant Company Consolidated Return in respect of a taxable year at least ninety (90) days prior
to the due (taking into account extensions) of such Company Consolidated Return. SpinCo shall also furnish the Company work papers
and such other information and documentation as is reasonably requested by the Company for Tax preparation purposes with respect
to any member of the SpinCo Group.
(iii) At
least sixty (60) days prior to the filing of a Company Consolidated Return with respect to a Pre-Closing Tax Period, the Company
shall provide to SpinCo a draft of such Company Consolidated Return, along with a statement describing in reasonable detail the
amount of SpinCo Taxes reflected thereon (as determined in accordance with Section 10.2(b)), for SpinCoβs review,
comment and consent. SpinCo shall provide any comments on such Company Consolidated Return within 30 days prior to the filing of
such return, and the Company shall make changes to such Company Consolidated Return or the amount of SpinCo Taxes reflected thereon
to reflect any reasonable comments from SpinCo that relate to the Separation, the Merger, any member of the SpinCo Group or any
SpinCo Taxes. The Company and SpinCo shall attempt in good faith to resolve any disagreement regarding a Company Consolidated Return
and the amount of SpinCo Taxes shown thereon, and if they are not able to resolve their disagreement the matter shall be submitted
for resolution to a βbig fourβ accounting firm to be mutually agreed upon (the βAccounting Firmβ).
The determination of the Accounting Firm, which shall be made no later than five (5) days prior to the due date of such return,
shall be binding on Buyer, the Company, SpinCo and their Affiliates. The costs, fees and expenses of the Accounting Firm will be
borne half by the Company and half by SpinCo.
(b) Separate
Returns. The Company shall prepare and file, or cause to be prepared and filed, all federal, state, local or foreign Tax Returns
of the Company or a member of the Company Group that do not include a member of the SpinCo Group (βCompany Separate Returnsβ).
The Company will be responsible for and will make all payments of Taxes shown to be due on such Company Separate Returns. SpinCo
shall prepare and file, or cause to be prepared and filed, all federal, state, local or foreign Tax Returns of SpinCo or a member
of the SpinCo Group that are not required to be filed on a consolidated, combined or unitary basis with a member of the Company
Group (βSpinCo Separate Returnsβ).
(c) Post-Closing
Period Taxes. The Company and the members of the Company Group shall be liable for and shall pay or cause to be paid any Taxes
of or relating to any member of the Company Group for any Post-Closing Tax Period. SpinCo and the members of the SpinCo Group shall
be liable for and shall pay or cause to be paid any Taxes of or relating to any member of the SpinCo Group for any Post-Closing
Tax Period.
(d) Authorizations.
The Company and SpinCo shall, and if necessary or appropriate shall cause their respective Subsidiaries to, prepare, sign and timely
file any consents, elections, powers of attorney and other documents, and shall take any other actions necessary or appropriate,
to effect the filing of any Tax Return pursuant to this Section 10.1.
(e) Amended
Returns. None of the Buyer, the Company or their Affiliates shall (unless otherwise required by Law) amend any Company Consolidated
Return for any Pre-Closing Tax Period without the prior written consent of SpinCo, which will not be unreasonably withheld, conditioned
or delayed.
(f) Reimbursement.
(i) With
respect to any Company Consolidated Return for a Pre-Closing Tax Period filed by the Company pursuant to Section 10.1(a),
SpinCo shall pay to the Company the amount of SpinCo Taxes reflected on such Company Consolidated Tax Return (as finally determined
pursuant to Section 10.1(a)(iii)). Such payments will be made in immediately available funds no later than the Business
Day immediately preceding the due date (including extensions) for such Company Consolidated Tax Return.
(ii) In
the event any Taxes in respect of a Company Consolidated Group that are not SpinCo Taxes are imposed on or paid by a member of
the SpinCo Group (including pursuant to Treasury Regulation 1.1502-6 or any predecessor or successor thereof or any analogous or
similar provision of state, local or foreign Law), the Company shall pay to SpinCo the amount of such Taxes promptly upon SpinCoβs
request.
(g) Treatment.
For all Tax purposes, the Parties agree to treat (i) SpinCoβs payment to the Company on account of any SpinCo Taxes as a
distribution by SpinCo to the Company and (ii) the Companyβs payment to SpinCo on account of Taxes for which the Company
is responsible as a contribution by the Company to SpinCo, in each case occurring immediately prior to the Merger.
Section 10.2 Allocation
of Taxes.
(a) Taxable
Periods; Straddle Periods.
(i) Unless
otherwise required by applicable Law, any taxable year or other period of SpinCo or any of its Subsidiaries that is included in
a Company Consolidated Return that includes the date of the Effective Time shall end on the close of the date of the Effective
Time. Where an election is required to be made in order to close a taxable period, the Parties (and their Subsidiaries) shall join
together to make such election.
(ii) With
respect to any Straddle Period that is not able to be closed pursuant to Section 10.2(a)(i) above, (A) the Taxes not based
upon or measured by income, activities, events, the level of any item, gain, receipts, proceeds, profits or similar items for the
Pre-Closing Tax Period will be deemed to be the total amount of such Taxes multiplied by a fraction, the numerator of which is
the number of days in the partial period through and including the date of the Effective Time and the denominator of which is the
total number of days in such Straddle Period; and (B) the amount of any other Taxes for the Pre-Closing Tax Period will be determined
based on an interim closing of the books as of the close of business on the date of the Effective Time, except that any item determined
on an annual or periodic basis (including amortization and depreciation deductions) shall be allocated to the Pre-Closing Tax Period
by multiplying the amount of such item for the entire Straddle Period by a fraction, the numerator of which is the number of days
in the portion of the Straddle Period ending on the date of the Effective Time and the denominator of which is the number of days
in the entire Straddle Period, with such reasonable adjustments as may be necessary to appropriately take the items into account
(e.g., to appropriately reflect the period during which depreciable property was in service).
(b) Determination
of SpinCo Group Pre-Closing Taxes. βSpinCo Group Pre-Closing Taxesβ shall mean any Taxes (including for
this purpose any liability in respect of Taxes of any other Person payable by reason of Contract, assumption, successor or transferee
liability, operation of Law, Treasury Regulation Section 1.1502-6(a) (or any predecessor or successor thereof or any analogous
or similar provision under Law), excluding in each case Taxes of the Company Consolidated Group that are attributable to a member
of the Company Group imposed on or paid by a member of the SpinCo Group other than by reason of this Agreement) of any member of
the SpinCo Group for any Pre-Closing Tax Period. For the purpose of making such determination, the following guidelines shall be
applied:
(i) Subject
to the other provisions of this Section 10.2(b), the Taxes of a Straddle Period shall be split in accordance with Section
10.2(a)(ii) above.
(ii) With
respect to any Taxes imposed on a Company Consolidated Group for a taxable period in which any member of the SpinCo Group is included
in such Company Consolidated Group, the Taxes of the Pre-Closing Tax Period with respect to the SpinCo Group shall be calculated
in the following manner:
(1) Such
Taxes shall generally be determined on a hypothetical separate Tax Return basis as if the SpinCo Group member were not included
in the Company Consolidated Group; provided, however, that the calculation will not take into account any hypothetical
effects of deconsolidation from the Company Consolidated Group. To the extent that such SpinCo Group member could have filed a
separate consolidated, combined, joint, unitary or other similar Tax Return with one or more other members of the SpinCo Group
for such type of Tax and taxable year, such Tax liability will be computed on the basis of such a hypothetical consolidated, combined,
joint, unitary or other similar Tax Return for such taxable year and for similar prior taxable years. Use of Tax Benefits Attributes
of a member of the SpinCo Group can be used in making such determination only to the extent that such attribute will actually be
used on the Company Consolidated Group Return.
(2) With
respect to the determination of income and similar Taxes: (i) where the Tax liability of the Company Consolidated Group with respect
to any state or local income Tax Return is calculated using an apportionment ratio based on the combined factors of the entities
included in such Tax Return, the apportionment of net income or net loss of each relevant member of the SpinCo Group will be determined
using the same apportionment ratio; and (ii) deductions, losses, income or gain attributable to deferred intercompany transactions
(as defined under Regulations Section 1.1502-13 and corresponding provisions of state and local law) shall not be taken into account
until such deductions, losses, income or gain are actually recognized and taken into account in the Company Consolidated Returns.
(3) The
Parties agree that neither will make (or will allow to be made) a ratable allocation election under Regulations Section 1.1502-76(b)(2)(ii)-(iii)
or any other similar provision of state, local or non-U.S. Law.
(4) Tax
deductions and attributes for Pre-Closing Tax Periods shall be allocated between the Company (and members of the Company Group)
and SpinCo (and members of the SpinCo Group) in accordance with the Code and Treasury Regulations (and any applicable state, local
and foreign Laws).
(5)
The Parties agree that the same elections, methods of accounting, allocations, methodologies and calculations shall be used for
purposes of preparing the applicable Company Consolidated Return and determining SpinCo Taxes and Taxes of the Company Consolidated
Group.
(iii) With
respect to any property or similar Taxes attributable to property held by any member of the SpinCo Group after the Separation,
the entirety of such Taxes for a Straddle Period shall be payable by the SpinCo Group. With respect to any property or similar
Taxes attributable to property held by any member of the Company Group after the Separation, the entirety of such Taxes for a Straddle
Period shall be payable by the Company Group.
(c) Valuation
of SpinCo. Within 120 days after the Closing Date, SpinCo shall determine the value of the SpinCo Common Stock distributed
in the Redemption, and provide such determination to the Company in writing. If the Company disagrees with the value determined
by SpinCo, the Parties shall attempt in good faith to resolve such disagreement, and if they are not able to resolve their disagreement
the matter shall be submitted for resolution to the Accounting Firm. The costs of the Accounting Firm will be borne half by the
Company and half by SpinCo. The Company and SpinCo shall and shall cause their Affiliates to file all Tax Returns consistent with
the value of SpinCo as determined pursuant to this Section 10.2(c) and shall not otherwise take any position for Tax purposes
inconsistent with such value.
(d) Determination
of Separation or Redemption Taxes. βSeparation or Redemption Taxesβ shall mean any Taxes (including for
this purpose any liability in respect of Taxes of any other Person payable by reason of Contract, assumption, successor or transferee
liability, operation of Law, Treasury Regulation Section 1.1502-6(a) (or any predecessor or successor thereof of any analogous
or similar provision under Law)) of any member of the Company Group or SpinCo Group resulting from the consummation of the Separation
or the Redemption, including but not limited to (i) any Taxes resulting from the separation of the OEM Solutions Business and the
Symmetry Surgical Business and the distribution of the Symmetry Surgical Business and any actions to effect such separation and
distribution, including any transactions described in Article II or Article III of this Agreement or the Redemption
(and including any Taxes triggered pursuant to the operation of Regulations Section 1.1502-13 or 1.1502-19, and, in each case any
similar provision of state, local or non-U.S. Law), (ii) any Taxes resulting from the settlement (including cancelation or contribution
to capital) of any intercompany debt or the repatriation of cash held in a non-U.S. jurisdiction, in each case either from the
date of the Merger Agreement to the Effective Time or pursuant to this Agreement or the Merger Agreement, and (iii) any withholding
Taxes imposed on a member of the Company Group in connection with the Redemption to the extent such withholding Tax is not satisfied
through a withholding of purchase price in the Merger pursuant to Section 3.6 of the Merger Agreement, through withholding pursuant
to Section 3.5 of this Agreement or from employeesβ compensation through payroll; provided, that Separation
or Redemption Taxes shall not include Taxes resulting from actions taken by or at the direction of Buyer or the Company on the
Closing Date after the Effective Time.
Section 10.3 Transfer
Taxes. All sales, use, transfer, recordation, documentary, stamp or similar Taxes (βTransfer Taxesβ) resulting
from the Separation or the Redemption shall be borne by SpinCo. All Transfer Taxes resulting from the consummation of the Merger
(other than from the Redemption) shall be borne by the Buyer or the Company. The Buyer, the Company, SpinCo and their Affiliates
shall cooperate with each other in the preparation and filing of any Tax Returns required to be filed with respect to such Transfer
Taxes.
Section 10.4 Tax
Benefit Attributes.
(a) Carrybacks.
If a Tax Benefit Attribute arises in any taxable period beginning after the date of the Effective Time in respect of any Tax Return
of SpinCo or any other member of the SpinCo Group, to the fullest extent permitted under applicable Tax Law, the SpinCo Consolidated
Group, or the relevant member of the SpinCo Group, as applicable, shall waive the carryback of such Tax Benefit Attribute. In the
event the carryback of such Tax Benefit Attribute cannot be waived, the Company shall pay to SpinCo an amount equal to any refund,
credit or reduction in Tax recognized (at the time the same is recognized) by the Company Consolidated Group as of result of the
carryback of such Tax Benefit Attribute.
(b) Carryforwards.
The Company shall notify SpinCo (i) as soon as practicable after the date of the Effective Time, of any consolidated carryover
item that may be partially or totally allocable to a member of the SpinCo Group and carried over to a taxable period beginning
after the date of the Effective Time and (ii) promptly of subsequent adjustments which may affect such carryover item.
(c) Use
of Tax Benefit Attributes. The Buyer, the Company and their Affiliates shall not make any election after the date of the Effective
Time under Treasury Regulations under Section 1502 of the Code (or similar provisions under state, local or foreign Law) that would
have the effect of reducing any Tax attributes of SpinCo or any of its Subsidiaries (or reattributing any such Tax attributes to
the Buyer, the Company or any of their Subsidiaries), and the Buyer, the Company and their Affiliates shall consult with SpinCo
so as to ensure no such reduction in or reattributing of Tax attributes. The Company shall make an election under Treasury Regulation
Section 1.1502-36(d)(6)(i) (or Section 362(e) of the Code or other similar provision of Law) with respect to SpinCo and members
of the SpinCo Group, and no election under Section 336(e) or Section 338 of the Code shall be made with respect to the transactions
contemplated by this Agreement or the Merger Agreement.
(d) Certain
Deductions. To the extent that, in the Companyβs reasonable judgment, the total deductions of the Company Group resulting
from the vesting of Company Restricted Shares and Company Restricted Stock Units in connection with the Merger is lower than $12.19
million, then promptly following receiving written notice of such determination from the Company, SpinCo shall pay to the Company
an amount equal to (x) the shortfall between such total deductions available to the Company Group under such determination and
$12.19 million multiplied by (y) 40%. If SpinCo disagrees with the Companyβs determination under this Section 10.4(d), the
parties shall work together in good faith to resolve such dispute. If the parties are unable to resolve such dispute within 30
days after the receipt of the Companyβs determination, the dispute shall be resolved by the Accounting Firm. The determination
of the Accounting Firm, shall be binding on Buyer, the Company, SpinCo and their Affiliates. The costs, fees and expenses of the
Accounting Firm will be borne half by the Company and half by SpinCo.
(e) No
Payments for Tax Benefit Attributes. No member of a Group that utilizes a Tax Benefit Attribute of a member of the other Group
shall be required to compensate or make any payment to such member of the other Group with respect to the utilization of such Tax
Benefit Attribute except as provided in Section 10.4(a) or Section 10.4(d).
Section 10.5 Consistency
in Filing Tax Returns. On or after the date of the Effective Time, neither the Company nor SpinCo shall or shall permit any
member of its Group to, make or change any accounting method, change its taxable year, amend any Tax Return or take any Tax position
on any Tax Return, in each case with respect to a taxable year ending on or prior to the date of the Effective Time, except (i)
as required by applicable Law or (ii) with the prior written consent of SpinCo, in the case of such a change, amendment, or position
by the Company Group, or the Company, in the case of such a change, amendment or position by the SpinCo Group, which consent shall
in each case not be unreasonably withheld or delayed. The Parties hereto agree to file, and to cause the other members of the Company
Group and the SpinCo Group, as applicable, to file, all U.S. federal, state, local and foreign income Tax Returns in accordance
with this Article X.
Section 10.6 Tax
Characterization of Spinco Consideration. The Spinco Consideration and the Spinco Consideration Equivalent Amount shall be
treated for Tax purposes as part of the consideration paid in partial redemption of Company Common Stock, Cash-Out Options, Non-Cash-Out
Options, Company Restricted Shares and Company Restricted Stock Units in the Merger pursuant to the Merger Agreement, and the Parties
and their Affiliates shall file all Tax Returns and otherwise report consistently with such treatment unless otherwise required
pursuant to a βfinal determinationβ as defined in Section 1313 of the Code.
Section 10.7 Refunds.
SpinCo shall have the right to (i) any Tax refunds of SpinCo Taxes for Pre-Closing Tax Periods and (ii) the refunds described in
Schedule 10.7 to the extent received after the Merger, in each case including any interest thereon paid by a taxing authority.
The Company shall promptly pay or cause to be paid to SpinCo any such refund to which SpinCo is entitled that is received by a
member of the Company Group or the Buyer or any of its Affiliates (net of any reasonable out-of-pocket expense incurred in connection
with such refund). The Company shall have the right to any Tax refunds of Taxes of the Company that are not SpinCo Taxes for Pre-Closing
Tax Periods and any interest thereon paid by a taxing authority. SpinCo shall promptly pay or cause to be paid to the Company any
such refund to which the Company is entitled that is received by a member of the SpinCo Group any of their Affiliates (net of any
reasonable out-of-pocket expense incurred in connection with such refund).
Section 10.8 Information
and Cooperation.
(a) SpinCo
Tax Information. SpinCo shall deliver (or cause to be delivered) to the Company, as soon as practicable upon the Companyβs
request, such information and data concerning the operations conducted before or as of the date of the Effective Time or in a Straddle
Period by the SpinCo Group, and the members of the SpinCo Group shall make available such knowledgeable employees of the SpinCo
Group as the Company may reasonably request, including providing the information and data required by the Companyβs customary
internal tax and accounting procedures, in order to enable the Company to complete and timely file all Tax Returns that the Company
may be required to file with respect to the activities of any member of the SpinCo Group, to respond to audits by any taxing authorities
with respect to such activities, to prosecute or defend any administrative or judicial proceeding and to otherwise enable the Company
to satisfy its accounting and tax requirements. In addition, SpinCo shall make available to the Company SpinCoβs knowledgeable
employees for such purpose during normal business hours on a mutually convenient basis. The Company shall reimburse SpinCo for
reasonable out-of-pocket expenses incurred by SpinCo in connection with this Section 10.8(a).
(b) Company
Tax Information. The Company shall deliver, or cause to be delivered, to SpinCo, as soon as practicable after SpinCoβs
request, such information and data in respect of SpinCo Separate Returns for Pre-Closing Tax Periods or information concerning
any Tax Benefit Attributes that were allocated to a member of the SpinCo Group if such information is reasonably necessary for
SpinCo to complete and timely file any Tax Returns that SpinCo may be required to file with respect to the activities of any member
of the SpinCo Group, to respond to audits by any taxing authorities with respect to such activities, to prosecute or defend claims
for Taxes in any administrative or judicial proceedings and to otherwise enable SpinCo to satisfy its accounting and tax requirements.
In addition, the Company shall make available to SpinCo the Companyβs knowledgeable employees for such purpose during normal
business hours on a mutually convenient basis. SpinCo shall reimburse the Company for reasonable out-of-pocket expenses incurred
by the Company in connection with this Section 10.8(b).
(c) Cooperation.
SpinCo, the Company, the Buyer and their Affiliates will cooperate fully and promptly, as and to the extent reasonably requested
by any of the other parties and at the expense of the requesting party, in connection with any Tax matters relating to SpinCo and
its Subsidiaries. Such cooperation and information will include retaining and providing copies of relevant Tax Returns or portions
thereof that are reasonably relevant to any such Tax matter and making employees available on a mutually convenient basis to provide
additional information and explanation of any material provided hereby.
Section 10.9 Contests.
SpinCo shall promptly forward any written notice of deficiency, claim or adjustment or any other written communication that any
member of the SpinCo Group receives from a taxing authority to the Company if such notice or communication may relate to any Company
Consolidated Return or any other matter for which the Company may be liable hereunder. The Company shall promptly forward any written
notice of deficiency, claim or adjustment or any other written communication that any member of the Company Group receives from
a taxing authority to SpinCo if such notice or communication may relate to a SpinCo Separate Return, a SpinCo Tax or any other
matter for which SpinCo may be liable hereunder. The Company shall allow, and shall cause its Affiliates to allow, SpinCo to participate
at its own expense in any Tax audit, examination or other claim or proceeding concerning a Company Consolidated Return or other
Tax Return to the extent such Tax Return relates to any member of the SpinCo Group or SpinCo Taxes. The Company shall not settle
such Tax audit, examination or other claim or proceeding without the prior written consent of SpinCo, which consent shall not be
unreasonably withheld or delayed.
Article
XI
FURTHER ASSURANCES
Section 11.1 Further
Assurances.
(a) In
addition to and without limiting the actions specifically provided in this Agreement, each of the Parties hereto shall use commercially
efforts, prior to, on and after the Closing Date, to take, or cause to be taken, all actions, and to do, or cause to be done, all
things, reasonably necessary, proper or advisable under applicable Law to consummate and make effective the transactions contemplated
by this Agreement and the Ancillary Agreements.
(b) Without
limiting the foregoing, prior to, on and after the Closing Date, each Party hereto shall cooperate with the other Party, and without
any further consideration, but at the expense of the requesting Party, to execute and deliver, or use its commercially reasonable
efforts to cause to be executed and delivered, all instruments, including instruments of conveyance, assignment and transfer, and
to make all filings with, and to obtain all consents, approvals or authorizations of, any Governmental Authority or any other Person
under any permit, license, agreement, indenture or other instrument (including any Consents or Governmental Approvals), and to
take all such other actions as such Party may reasonably be requested to take by the other Party hereto from time to time, consistent
with the terms of this Agreement and the Ancillary Agreements, in order to effectuate the provisions and purposes of this Agreement
and the Ancillary Agreements, including the assignment and transfer of the SpinCo Assets, the assignment and assumption of the
SpinCo Liabilities and the other transactions contemplated hereby and thereby.
(c) From
and after the Separation, if there is any asset that is used primarily in the OEM Solutions Business or the Symmetry Surgical Business
that is critical to operate the other, in the manner in which it was operated immediately prior to the Separation, the parties
shall work in good faith to make such asset or the benefit thereof available to the other pursuant to the Transition Services Agreement
or another mutually agreeable arrangement on commercially reasonable terms negotiated in good faith.
Section 11.2 Savings
Clause. To the extent any assignment of any contract, agreement or other instrument pursuant to the terms of this Agreement
would violate the terms of such contract, agreement or instrument, such assignment shall be voidable, and the Parties will endeavor
in good faith to subcontract to each other the benefits contemplated by such assignment, and/or seek the consent to such assignment
from the other party(ies) thereto, including entering into novation agreements as such other party(ies) may reasonably require.
To the extent any assigned or novated contract, agreement or other instrument has a useful benefit to the ongoing business of the
assignor of such contract, agreement or other instrument, the assignee thereof shall in good faith cooperate with the assignor
in seeking to retain such benefit on a non-exclusive basis whether by subcontract or contact with (and if necessary negotiation
with) the other party(ies) to such contract to retain such benefit by execution of a new or replacement contract, agreement or
other instrument.
Section 11.3 Schedules.
The schedules referenced in this Agreement shall be updated prior to the Closing Date as may be reasonably required due to apparent
error contained therein; provided, that Buyer shall have the right to review and consent to changes to the schedules with
reasonable advance notice, such consent not to be unreasonably withheld.
Article
XII
TERMINATION
Section 12.1 Termination.
Notwithstanding anything to the contrary herein, this Agreement (including ARTICLE V (Releases and Indemnification)
hereof) may be terminated and the Spinoff Plan may be amended, modified or abandoned, in each case, at any time prior to the Closing
Date by the Company; provided, that unless the Merger Agreement has been terminated in accordance with its terms prior to
the Effective Time, any such termination, amendment, modification or abandonment shall require the prior written consent of Buyer
in its sole discretion. In the event of such termination, no Party shall have any Liability to the other Party or any other Person.
After the Closing Date, this Agreement may not be terminated except by an agreement in writing signed by each of the Parties.
Article
XIII
MISCELLANEOUS
Section 13.1 Counterparts;
Entire Agreement.
(a) This
Agreement may be executed and delivered (including by facsimile transmission) in two or more counterparts, and by the different
parties hereto in separate counterparts, each of which when executed and delivered shall be deemed to be an original but all of
which taken together shall constitute one and the same agreement.
(b) This
Agreement, the Ancillary Agreements and the schedules hereto and thereto contain the entire agreement between the Parties with
respect to the subject matter hereof, supersede all previous agreements, negotiations, discussions, writings, understandings, commitments
and conversations with respect to such subject matter and there are no agreements or understandings between the Parties other than
those set forth or referred to herein or therein. In the event of any conflict between the terms and conditions of this Agreement
and the terms and conditions of any Ancillary Agreement, the terms and conditions of this Agreement (including amendments hereto)
shall control.
Section 13.2 Governing
Law. This Agreement and, unless expressly provided therein, each Ancillary Agreement, shall be governed by and construed and
interpreted in accordance with the Laws of the State of Delaware, irrespective of the choice of laws principles of the State of
Delaware as to all matters, including matters of validity, construction, effect, enforceability, performance and remedies.
Section 13.3 Assignability.
The provisions of this Agreement, each Ancillary Agreement and the obligations and rights hereunder shall be binding upon, inure
to the benefit of and be enforceable by (and against) the Parties and their respective successors and permitted transferees and
assigns. Notwithstanding the foregoing, this Agreement shall not be assignable, in whole or in part, by any Party without the prior
written consent of the other Party, and any attempt to assign any rights or obligations arising under this Agreement without such
consent shall be null and void.
Section 13.4 Third
Party Beneficiaries. Except for the indemnification rights under this Agreement of any Company Indemnitee or SpinCo Indemnitee
in their respective capacities as such, and except for Buyer, which is an intended third party beneficiary hereof, (a) the
provisions of this Agreement and each Ancillary Agreement are solely for the benefit of the Parties and are not intended to confer
upon any Person except the Parties any rights or remedies hereunder, and (b) there are no third party beneficiaries of this
Agreement or any Ancillary Agreement and neither this Agreement nor any Ancillary Agreement shall provide any third party with
any remedy, claim, liability, reimbursement, claim of action or other right in excess of those existing without reference to this
Agreement or any Ancillary Agreement.
Section 13.5 Notices.
All notices, requests, claims, demands or other communications under this Agreement or any Ancillary Agreement will be in writing
and will be given (and will be deemed to have been duly given): (a) when delivered, if delivered in person; (b) when sent by email;
provided, that receipt of the email is confirmed in writing (including by email); (c) three (3) Business Days after sending, if
sent by registered or certified mail (postage prepaid, return receipt requested); and (d) one (1) Business Day after sending, if
sent by overnight courier, in each case to the respective parties at the following addresses:
If to the Company, to:
0000 Xxxx Xx.
Xxxxxxx, Xxxxxxxxx 00000
Attention: Chief Executive
Officer
General Counsel
Email: xxx.xxxxxxxx@xxxxxxxxxxxxxxx.xxx
xxxxx.xxxxx@xxxxxxxxxxxxxxx.xxx
with a copy (if prior to the
Closing Date), which shall not constitute notice, to:
Ropes & Xxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx
Email:
Xxxxx.Xxxxxxx@xxxxxxxxx.xxx
with a copy (if after the Closing
Date), which shall not constitute notice, to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxx Xxxxxx Xxxxxxx
Xxxxxxx Xxxxxx, XX 00000
Attention: Xxxxx Xxxx
Email: xxxxx.xxxx@xxxx.xxx
If to SpinCo, to:
0000 Xxxx
Xx.
Xxxxxxx,
Xxxxxxxxx 00000
Attention: Chief Executive
Officer
General Counsel
Email: xxx.xxxxxxxx@xxxxxxxxxxxxxxx.xxx
xxxxx.xxxxx@xxxxxxxxxxxxxxx.xxx
with a copy, which shall not
constitute notice, to:
Ropes & Xxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx
Email:
Xxxxx.Xxxxxxx@xxxxxxxxx.xxx
Either Party may, by
notice to the other Party, change the address to which such notices are to be given by delivery of notice in accordance with this Section
13.5.
Section 13.6 Severability.
If any provision of this Agreement or any Ancillary Agreement or the application thereof to any Person or circumstance is determined
by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions hereof or thereof, or the application
of such provision to Persons or circumstances or in jurisdictions other than those as to which it has been held invalid or unenforceable,
shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby, so long as the economic
or legal substance of the transactions contemplated hereby or thereby, as the case may be, is not affected in any manner adverse
to any Party. Upon such determination, the Parties shall negotiate in good faith in an effort to agree upon such a suitable and
equitable provision to effect the original intent of the Parties.
Section 13.7 Publicity.
Prior to the Closing Date, each of SpinCo and the Company shall consult with each other prior to issuing any press releases or
otherwise making public statements with respect to the Separation, the Merger or any of the other transactions contemplated hereby
and prior to making any filings with any Governmental Authority with respect thereto. From and after the Closing Date, neither
the Company nor SpinCo (or any member of their respective Groups) shall issue any press release or otherwise make any public statements
with respect to the Separation, the Merger or any of the other transactions contemplated hereby, except as may be required by applicable
Law, court process or by obligations pursuant to any listing agreement with any national securities exchange or national securities
quotation system
Section 13.8 Expenses.
Whether or not the Separation or the Merger is consummated, and except as specifically provided to the contrary in any Ancillary
Agreement, all Third Party fees, costs and expenses paid or incurred in connection with the transactions contemplated by this Agreement
will be paid by SpinCo.
Section 13.9 Headings;
Interpretation. The article, section and paragraph headings contained in this Agreement and in the Ancillary Agreements are
for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement or any Ancillary Agreement.
When a reference is made in this Agreement to an Article, Section, or Schedule, such reference shall be to an Article, Section,
or Schedule of this Agreement, unless otherwise indicated. The table of contents and headings for this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Any reference in this Agreement
to β$β shall mean U.S. dollars. Whenever the words βinclude,β βincludesβ or βincludingβ
are used in this Agreement, they shall be deemed to be followed by the words βwithout limitation.β The words βhereof,β
βhereinβ and βhereunderβ and words of similar import when used in this Agreement shall refer to this Agreement
as a whole and not to any particular provision of this Agreement. The word βorβ as used in this Agreement shall not
be exclusive. All terms defined in this Agreement shall have the defined meanings when used in any certificate or other document
made or delivered pursuant hereto unless otherwise defined therein. The definitions contained in this Agreement are applicable
to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of
such term. Any statute defined or referred to herein or in any agreement or instrument that is referred to herein means such statute
as from time to time amended, modified or supplemented, including (in the case of statutes) by succession of comparable successor
statutes. References to a Person are also to its permitted successors and assigns. All schedules to this Agreement are hereby incorporated
and made a part hereof and are an integral part of this Agreement. Any capitalized terms used in any schedule but not otherwise
defined therein shall be defined as set forth in this Agreement.
Section 13.10 Survival
of Covenants. Except as expressly set forth in any Ancillary Agreement and subject to termination of this Agreement pursuant
to Section 12.1, all covenants, representations and warranties contained in this Agreement and each Ancillary Agreement,
and liability for the breach of any obligations contained herein, shall survive the Merger and remain in full force and effect
in accordance with their applicable terms.
Section 13.11 Waivers
of Default. The failure of either Party to require strict performance by the other Party of any provision in this Agreement
or any Ancillary Agreement will not waive or diminish such Partyβs right to demand strict performance thereafter of that
or any other provision hereof.
Section 13.12 Specific
Performance. The Parties agree that irreparable damage would occur in the event that the provisions of this Agreement were
not performed in accordance with their specific terms. Accordingly, it is hereby agreed that the Parties shall be entitled to (a) an
injunction or injunctions to enforce specifically the terms and provisions hereof in any arbitration in accordance with Article IX,
and any provisional or temporary injunctive relief in accordance therewith, (b) an injunction, restraining order or other equitable
relief in accordance with Section 6.7, and (c) enforcement of any award of an arbitral tribunal in any court of
the United States, or any other any court or tribunal sitting in any state of the United States or in any foreign country that
has jurisdiction, this being in addition to any other remedy or relief to which they may be entitled.
Section 13.13 Amendments.
This Agreement may be modified or amended by an agreement in writing signed by each of the Parties; provided, that unless
the Merger Agreement has been terminated in accordance with its terms prior to the Effective Time, any such modification or amendment
(including any amendment or modification to the Spinoff Plan or any other schedule hereto) shall require the prior written consent
of Buyer in its sole discretion.
Section 13.14 Waiver
of Jury Trial. SUBJECT TO ARTICLE 9 HEREIN, EACH OF THE PARTIES HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY COURT PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF AND
PERMITTED UNDER OR IN CONNECTION WITH THIS AGREEMENT. EACH OF THE PARTIES HEREBY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT
OR ATTORNEY OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION,
SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT, AS APPLICABLE,
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 13.14.
[Signature Page Follows]
IN WITNESS WHEREOF,
the Parties have caused this Separation Agreement to be executed by their duly authorized representatives as of the day and year
first above written.
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SYMMETRY MEDICAL INC. |
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By: |
/s/Xxxxxx X. Xxxxxxxx |
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Name: Xxxxxx X. Xxxxxxxx |
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Title: President and Chief Executive Officer |
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RACECAR SPINCO, INC. |
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By: |
/s/Xxxxxx X. Xxxxxxxx |
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Name: Xxxxxx X. Xxxxxxxx |
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Title: President |