{"id":43377,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/coordination-and-adjustment-agreement-st-jude-medical-inc-and.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"coordination-and-adjustment-agreement-st-jude-medical-inc-and","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/coordination-and-adjustment-agreement-st-jude-medical-inc-and.html","title":{"rendered":"Coordination and Adjustment Agreement &#8211; St. Jude Medical Inc. and Telectronics Pacing Systems Inc."},"content":{"rendered":"<pre>                                                                  EXECUTION COPY\n\n\n                      COORDINATION AND ADJUSTMENT AGREEMENT\n\n\n         COORDINATION AND ADJUSTMENT AGREEMENT (this 'Agreement') dated as of\nSeptember 24, 1996 by and among O Acquisition, Inc., a Delaware corporation\n('Buyer') and each of the parties set forth on the signature pages hereto under\nthe heading 'Sellers', together with any additional parties executing a\ncounterpart to this Agreement pursuant to Section 3.9 (each a 'Seller' and\ncollectively, the 'Sellers').\n\n                                 R E C I T A L S\n\n         A. Buyer, certain of its Affiliates and the Sellers have entered into,\nor will enter into, the individual asset and share purchase agreements described\non Exhibit A hereto (collectively, the 'Sale Agreements'), pursuant to which\neach of the respective Sellers has agreed to sell, and Buyer has agreed to\npurchase, various assets and capital shares owned by each such Seller\n(collectively, the 'Purchased Assets'), all on the terms and conditions set\nforth in such Sale Agreements.\n\n         B. In exchange for the Purchased Assets and subject to adjustment\npursuant to this Agreement, Buyer and certain of its Affiliates have agreed to\npay Sellers the Purchase Price provided for in each of the individual Sale\nAgreements, and to assume certain of the liabilities and obligations of the\nSellers (collectively, the 'Assumed Liabilities'), all on the terms and\nconditions set forth in the Sale Agreements.\n\n         C. Buyer desires to enter into this Agreement with Sellers so that the\nPurchase Price paid pursuant to each of the individual Sale Agreements may be\nadjusted as at the closing of the transactions contemplated by the Sale\nAgreements (the date upon which the transactions contemplated by all of the Sale\nAgreements has been consummated is referred to herein as the 'Closing Date'),\nwith such adjustments to be effected on a combined basis reflecting all of the\nPurchased Assets and all of the Assumed Liabilities in order to more efficiently\nand expeditiously carry out such adjustments in a fair and equitable manner.\n\n         D. In order to avoid unintended conflicts and inconsistencies among the\nindividual Sale Agreements, Buyer and Seller also desire to provide herein for\nthe uniform handling and treatment among themselves of certain matters including\ncooperation among all of them in defending against certain Litigation and in\nadministering any indemnity claims made by one against another.\n\n         NOW THEREFORE, in consideration of the mutual covenants and agreements\nhereinafter set forth, and in exchange for other good and valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged,\nBuyer and Sellers agree as follows:\n\n                        ARTICLE I. - NET WORTH ADJUSTMENT\n\n         1.1. Preparation of Closing Date Balance Sheet. No later than\nforty-five (45) days subsequent to the Closing Date, Sellers shall deliver to\nBuyer a Closing Date balance sheet audited by KPMG Peat Marwick, Sellers'\nindependent public accountants, in accordance with United States generally\naccepted accounting principles, which reflects only the Purchased Assets and the\nAssumed Liabilities as of the opening of business on the Closing Date as\npurchased and sold pursuant to each of the Sale Agreements. The Closing Date\nbalance sheet will be based on a roll forward from the Year End Balance Sheet of\nSellers and shall be prepared on a basis consistent with the Year End Balance\nSheet. Buyer shall cooperate with Sellers and their representatives in the\npreparation of the Closing Date balance sheet, and shall furnish such\ninformation as may be reasonably requested in connection therewith. Within\nfifteen (15) business days after delivery of the Closing Date balance sheet,\nBuyer shall notify Sellers in writing whether or not Buyer disputes any part of\nsuch Closing Date balance sheet. If no notification is received by Sellers\nwithin such fifteen (15) business day period, Buyer shall be deemed to have\naccepted such Closing Date balance sheet. If Buyer does dispute any aspect of\nthe Closing Date balance sheet, Buyer's dispute notice shall include reasonable\ndetail regarding the nature and reasons for such dispute, and the parties shall\nthereafter negotiate in good faith to reach a mutually acceptable resolution as\nsoon as reasonably possible. If Buyer and Sellers are unable to resolve such\ndispute within fifteen (15) business days after receipt by Sellers of Buyer's\nwritten dispute notice, then the determination of the Closing Date balance sheet\nshall be promptly submitted to a third party accounting firm of international\nstanding, which shall resolve any disputes regarding the Closing Date balance\nsheet. The terms of appointment and engagement of such third party accounting\nfirm shall be as agreed upon between the Sellers and Buyer. The determination of\nsuch third party accounting firm regarding the Closing Date balance sheet shall\nbe final and binding on Buyer and Sellers, and the expenses of such third party\naccounting firm in making such determination shall be borne equally by Buyer, on\nthe one hand, and Sellers, on the other hand. The Closing Date balance sheet as\nfinally agreed to by the parties or as determined by such third party accounting\nfirm pursuant to this section is referred to as the 'Closing Date Balance\nSheet.'\n\n         1.2. Calculation\/Payment of Adjustment. (a) The aggregate of the\nPurchase Price to be paid by Buyer and its affiliates to the Sellers under all\nof the Sale Agreements is equal to US$155 million, as adjusted as provided\nherein. The allocation of such amount among the various Sellers is as set forth\non Exhibit B hereto. If the Worldwide Net Worth as reflected on the Closing Date\nBalance Sheet is greater than the Worldwide Net Worth reflected on the Year End\nBalance Sheet, then the amount of such excess shall be paid by Buyer to Sellers\nas additional Purchase Price for the Purchased Assets. If the Worldwide Net\nWorth as reflected on the Closing Date Balance Sheet is less than the Worldwide\nNet Worth reflected on the Year End Balance Sheet, then the amount of such\nshortfall shall be paid by Sellers to Buyer, as a reduction in the Purchase\nPrice already paid. For purposes of this Agreement, 'Worldwide Net Worth' shall\nmean the difference between the aggregate dollar value of the Purchased Assets,\nless the Assumed Liabilities as set forth on the Closing Date Balance Sheet.\n\n         (b) All payments to be made pursuant to this section shall be made no\nlater than the fifth (5th) day after the Closing Date Balance Sheet has been\nfinalized, and shall be made in U.S. Dollars by wire transfer of immediately\navailable funds, in such amounts and to such accounts as the receiving party\nshall designate to the paying party, together with interest accruing after the\nClosing Date up to and including the date of payment at the prevailing prime\nrate reported from time to time in the WALL STREET JOURNAL.\n\n         1.3. Adjustment of Purchase Price Allocation. The amount of any\nadjustment to the Purchase Price payable pursuant to Section 1.2 hereof and due\nto an increase or decrease in value of one of the categories of Purchased Assets\nor Assumed Liabilities as to which the Purchase Price, as provided in any Sale\nAgreements, has been allocated (other than intangible assets) shall be allocated\nto or deducted from each such category of Purchased Assets or Assumed\nLiabilities in an amount equal to the actual increase or decrease occurring with\nrespect to that particular category of Purchased Asset or Assumed Liability. Any\ndifference between the total amount of the adjustment to the Purchase Price and\nthe amount of such adjustment due to changes in value of the tangible Purchased\nAssets or Assumed Liabilities as to which the Purchase Price has been otherwise\nallocated, shall be allocated to or deducted from intangible assets. Any such\nadjustments to the Purchase Price shall be allocated among the Sale Agreements\ncovering Sellers' Canadian and French operations in amounts equal to the actual\nchange in value of any of the Purchased Assets or Assumed Liabilities actually\ncovered by the particular Sale Agreement covering Sellers' Canadian and French\noperations, with the balance allocated to the operations covered by the U.S.\nAgreement, as defined below.\n\n                  ARTICLE II. - SALES AGREEMENT INCONSISTENCIES\n\n         2.1. Inconsistencies Among Sales Agreements. The parties recognize and\nacknowledge that due to, among other things, variations among local laws and\ncustoms in the jurisdictions in which the Sale Agreements are to apply and\npursuant to which the assignment, transfer and assumption of the Purchased\nAssets and Assumed Liabilities are to be effected, there may be inconsistencies\nor conflicts among the terms and conditions of the Sale Agreements\n(collectively, 'Inconsistencies'). Notwithstanding any such Inconsistencies, the\nparties acknowledge that the Sale Agreements are intended to provide for an\nintegrated purchase and sale among the parties hereto of the worldwide Business\ndescribed therein and the parties intend that the Sale Agreements, and the\nconstruction, interpretation and enforcement thereof, be uniform and consistent\n(except as the Sale Agreements may otherwise expressly provide or as the context\nmay otherwise require). Accordingly, in order to provide for and assure\nconsistency among the Sale Agreements, the parties hereby agree that the terms,\nprovisions, conditions, agreements, covenants, representations and warranties of\nthe parties contained in the Sale Agreements shall, in the case of any\nInconsistency, be governed, construed, interpreted and enforced solely in\naccordance with the Asset Purchase Agreement by and among Buyer, Telectronics\nPacing Systems, Inc. and TPLC, Inc. concerning the purchase and sale of the U.S.\nOperations as therein defined (the 'U.S. Agreement'), which U.S. Agreement\nshall, to such extent, supersede all of the other Sale Agreements; provided,\nhowever, that any such Inconsistency which has arisen on account of any\nrequirement of law of the jurisdiction in which one of the Sale Agreements is\nintended to apply (a 'Legally Required Inconsistency') shall not be superseded\nto the extent that such Legally Required Inconsistency is necessary for the\nlawful consummation of the transactions contemplated by such of the Sale\nAgreements. Without limiting the generality of the foregoing, the parties\nfurther agree as follows:\n\n         (a) No representation or warranty contained in any Sale Agreement shall\nbe the basis for any claim, action, cause of action, termination, or rescission\nright or other relief by any party against another party unless and to the\nextent any such claim, action, cause of action, termination or rescission right\nor other relief would be available to such party pursuant to the representations\nor warranties of the other parties contained within the U.S. Agreement (as if\nthe same were applicable to the Business covered by the other Sale Agreements).\n\n         (b) The provisions for indemnification contained within Article X of\nthe U.S. Agreement (including without limitation, those concerning the\ndefinition and extent of Buyer Claims or Seller Claims; those concerning the\ntime period during which any Buyer Claims or Seller Claims may be brought; the\nBuyer Threshold and the Liability Cap applicable to any Buyer Claims; the\nprocedure for indemnification and the method of the bringing of Buyer Claims or\nSeller Claims; Sellers' indemnity obligations with respect to the Litigation;\nBuyer's and Sellers' indemnity obligations with respect to the FDA Consent\nDecree; and the treatment of any indemnity payments as an adjustment to the\nPurchase Price paid for the Purchased Assets) shall be applicable to, and be\nconsidered limitations on, all Claims which may be brought under any of the Sale\nAgreements for indemnification or otherwise and, except as provided in the Sale\nAgreements, shall be the sole and exclusive remedy (in contract, tort or\notherwise) relating to any and all disputes, legal actions, suits or proceedings\narising out of or related to the Sale Agreements. The overall Liability Cap\napplicable to all of the Sale Agreements shall be the sum of the Purchase Prices\npaid under each of the Sale Agreements, as adjusted pursuant to this Agreement,\nand the Buyer Threshold defined in the U.S. Agreement shall be applicable to all\nBuyer Claims which may be brought under any of the Sale Agreements.\n\n         (c) The provisions concerning the financial statements, financial\nposition and financial results of operation relating to the Business contained\nin Sections 4.5 and 4.6 of the U.S. Agreement, those concerning litigation\ncooperation prior to closing contained in Section 6.5 of the U.S. Agreement and\nthose concerning the disposition of certain information contained in Section 7.7\nof the U.S. Agreement shall be applicable to all of the Sale Agreements and to\nthe transactions and Business covered by the other Sale Agreements as fully as\nif set forth therein in their entirety and shall supersede any similar provision\nin any of the other Sale Agreements in case of any Inconsistency.\n\n         (d) Attached hereto are various schedules (the 'Disclosure Schedules')\nwhich describe certain matters concerning Sellers' worldwide Business. Such\nDisclosure Schedules are hereby incorporated in each of the Sale Agreements as\nif fully set forth therein in their entirety, and the matters described therein\nshall be deemed to supplement and modify the representations, warranties,\ncovenants and agreement contained in the Sale Agreements to the extent so set\nforth in such Disclosure Schedules.\n\n         (e) Except as provided in Section 7.4 of the U.S. Agreement, on a\nworld-wide basis, all Taxes (as defined in the U.S. Agreement), recording fees,\npersonal property, title application fees, patent and trademark assignment\nregistration fees, and such other transfer taxes and fees arising by virtue of\nthe transfer of the Purchased Assets and the Business from Sellers and their\nAffiliates to Buyer or its Affiliates pursuant to the Sale Agreements (other\nthan Taxes based upon the net income or capital gain of Sellers or their\nAffiliates arising out of the transactions contemplated thereby) shall be paid\nby Buyer, provided that the parties shall cooperate with one another in all\nlawful and reasonable arrangements to minimize such Taxes and fees, and further\nprovided that Sellers or their Affiliates shall reimburse Buyer within 30 days\nfor one-half of the sales taxes, use taxes or similar transfer taxes imposed on\nthe transfer of the Purchased Assets to Buyer. Buyer and Seller agree that they\nwill prepare and agree before Closing a schedule identifying categories of\nassets located within each State and Territory of Australia and the agreed sale\nvalue of each such category within each such State and Territory of Australia.\n\n         (f) Solely for purposes of the Sale Agreements and the transactions\ncontemplated thereby, each of the parties hereby agrees that any and all\ndisputes, legal actions, suits, or proceedings arising out of or relating to the\nSale Agreements or the transactions contemplated thereby, whether legal or\nequitable in nature, or arising out of contract, tort or otherwise, may be\nbrought solely in a state or federal court located in the County of New Castle,\nState of Delaware. By their signature to this Agreement, the parties, regardless\nof their residence, each irrevocably submits to the jurisdiction of the courts\nlocated in the County of New Castle, State of Delaware, in any dispute, legal\naction, suit or proceeding arising out of or relating to the Sale Agreements or\nthe transactions contemplated thereby. Each of the parties acknowledges that it\nhas freely agreed to so submit to jurisdiction and venue, and that without such\nagreement the courts located in the County of New Castle, State of Delaware\nmight not otherwise have jurisdiction over each of such parties.\n\n         (g) Solely for purposes of the Sale Agreements and the transactions\ncontemplated thereby, each of the parties hereby irrevocably appoints The\nCorporation Trust Company, whose address is 1209 Orange Street, Wilmington,\nDelaware, 19801, as their designated agent for service of process in the State\nof Delaware upon whom may be served any notice, process or pleading in any\ndispute, legal action, suit or proceeding arising out of or relating to this\nAgreement or the transactions contemplated hereby, and each further consents\nthat service of process on such designated agent shall have the same effect as\nif they had lawfully been served personally with process in the State of\nDelaware; provided, that such appointment may be terminated after that date\nwhich is 6 years from the Closing Date.\n\n         (h) Solely for purposes of the Sale Agreements and the transactions\ncontemplated thereby, each of the parties hereby irrevocably waives all claims\nof immunity from jurisdiction or attachment, and waives all claims of immunity\nfrom jurisdiction, attachment and execution to which it might otherwise be\nentitled in any legal action or proceeding brought in any state or federal court\nlocated in the County of New Castle, State of Delaware, and further irrevocably\nwaives, to the fullest extent permitted by law, any objection which it may now\nor hereafter have to any dispute, legal action, suit or proceeding arising out\nof or relating to the Sale Agreements or the transactions contemplated thereby\nbeing brought in any federal or state court located in the County of New Castle,\nState of Delaware, and hereby further irrevocably waives any claim that any such\ndispute, legal action, suit, or proceeding brought in any such court has been\nbrought in an inconvenient forum.\n\n                          ARTICLE III. - MISCELLANEOUS\n\n         3.1. Notices. Any notice, request, instruction or other document to be\ngiven hereunder shall be in writing and delivered personally or sent by United\nStates registered or certified mail, postage prepaid, or by facsimile, according\nto the instructions set forth below. Such notices shall be deemed given: at the\ntime delivered by hand, if personally delivered; at the time received if sent by\nUnited States registered or certified mail; at the time when receipt is\nconfirmed by the receiving facsimile machine if sent by facsimile.\n\n                  If to Buyer, to:\n\n                  St. Jude Medical, Inc.\n                  One Lillehei Plaza\n                  St. Paul, Minnesota  55117\n                  Attention:  General Counsel\n                  Facsimile:  612-490-4333\n\n                  If to any Seller, to:\n\n                  Pacific Dunlop Limited\n                  Level 41, 101 Collins Street\n                  Melbourne, Victoria 3000\n                  Attention:  Managing Director\n                  Telecopy Number:  011-613-9270-7330\n\n                  With a copy to:\n\n                  Gardner, Carton &amp; Douglas\n                  321 N. Clark Street\n                  Suite 3400\n                  Chicago, Illinois 60610\n                  Attention:  Messrs. Robert J. Wilczek and Stephen M. Gatlin\n                  Facsimile:  312-644-3381\n\nor to such other address as such party may indicate by a notice delivered to the\nother parties hereto.\n\n         3.2. Successors and Assigns. The rights of Buyer and Sellers pursuant\nto this Agreement shall not be assignable by such party prior to the Closing\nDate without the prior written consent of the other parties, except that Buyer\nmay assign its rights hereunder to one or more of its Affiliates prior to the\nClosing Date, PROVIDED THAT Buyer shall not be released from any of its\nobligations hereunder by reason of such assignment. This Agreement shall be\nbinding upon and inure to the benefit of the parties hereto and their successors\nand assigns.\n\n         3.3. Entire Agreement; Amendments. This Agreement and the Sale\nAgreements contain the entire understanding of the parties hereto with regard to\nthe subject matter contained herein, and supersede all prior written or oral\nagreements, understandings or letters of intent between or among any of the\nparties hereto, with respect to the subject matter hereof. This Agreement shall\nnot be amended, modified or supplemented except by a written instrument signed\nby an authorized representative of each of the parties hereto. In the event of a\ndispute or inconsistency between any of the Sale Agreements and this Agreement,\nthe terms of this Agreement shall prevail. Capitalized terms used herein not\notherwise defined herein shall have the same meanings herein as ascribed to such\nterms in the U.S. Agreement.\n\n         3.4. Interpretation. Section headings are inserted for convenience of\nreference only and are not intended to be a part of or to affect the meaning or\ninterpretation of this Agreement.\n\n         3.5. Waivers. Any term or provision of this Agreement may be waived, or\nthe time for its performance may be extended, pursuant to a written action by\nthe party or parties entitled to the benefit thereof. The failure of any party\nhereto to enforce at any time any provision of this Agreement shall not be\nconstrued to be a waiver of such provision, nor in any way to affect the\nvalidity of this Agreement or any part hereof or the right of any party\nthereafter to enforce each and every such provision. No waiver of any breach of\nthis Agreement shall be held to constitute a waiver of any other or subsequent\nbreach.\n\n         3.6. Partial Invalidity. Wherever possible, each provision hereof shall\nbe interpreted in such manner as to be effective and valid under applicable law,\nbut in case any one or more of the provisions contained herein shall, for any\nreason, be held to be invalid, illegal or unenforceable in any respect, such\nprovision shall be ineffective to the extent, but only to the extent, of such\ninvalidity, illegality or unenforceability without invalidating the remainder of\nsuch invalid, illegal or unenforceable provision or provisions or any other\nprovisions hereof, unless such a construction would be unreasonable.\n\n         3.7. Execution in Counterparts. This Agreement may be executed in one\nor more counterparts, each of which shall be considered an original instrument,\nbut all of which shall be considered one and the same agreement, and shall\nbecome binding when one or more counterparts have been signed by each of the\nparties hereto and delivered to each Seller and Buyer.\n\n         3.8. Governing Law. This Agreement shall be governed by and construed\nin accordance with the internal laws of the State of Delaware, without giving\neffect to any choice of laws provisions which may direct the application of the\nlaws of another jurisdiction.\n\n         3.9. Additional Parties. Certain of the Sale Agreements will be\nexecuted subsequent to the date of this Agreement. The parties agree that upon\nexecution of such Sale Agreements, this Agreement shall be amended to add the\nparties to such Sale Agreements as parties hereto and to reference the\nadditional Sale Agreements on Exhibit A hereto, with such amendments to be\neffected and evidenced by the delivery to each party hereto of a revised Exhibit\nA together with a counterpart signature page to this Agreement, executed by such\nnew parties and reflecting such parties as 'Sellers' for purposes of this\nAgreement.\n\n\n                                   * * * * * *\n\n\n         IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be\nexecuted as of the day and year set forth on the first page hereto.\n\n\nBUYER:                                SELLERS:\n\nO Acquisition, Inc                    Telectronics Pacing Systems, Inc.\n\nBy:    \/s\/ S.L. Wilson                By:    \/s\/ James Dennis\n       -----------------------------         --------------------------------\nTitle: Vice President - Finance and   Title: President\n       Chief  Financial Officer              --------------------------------\n       -----------------------------\n\n                                      TPLC, Inc.\n\n                                      By:    \/s\/ James Dennis\n                                             --------------------------------\n                                      Title: President\n                                             --------------------------------\n\n\n                                      Telectronics Pty. Ltd.\n\n                                      By:    \/s\/ James Dennis\n                                             --------------------------------\n                                      Title: Attorney-in-Fact\n                                             --------------------------------\n\n\n                                      Medical Telectronics Pty. Ltd.\n\n                                      By:    \/s\/ James Dennis\n                                             --------------------------------\n                                      Title: Attorney-in-Fact\n                                             --------------------------------\n\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8909],"corporate_contracts_industries":[9436],"corporate_contracts_types":[9623,9622],"class_list":["post-43377","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-st-jude-medical-inc","corporate_contracts_industries-health__instruments","corporate_contracts_types-planning__asset","corporate_contracts_types-planning"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43377","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43377"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43377"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43377"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43377"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}