\n| \n 10.06<\/p>\n<\/td>\n | <\/td>\n | \n Purchaser Affiliate Assignments<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n v<\/p>\n
\nSALE AND PURCHASE AGREEMENT, dated as of October 28, 2010, between BOSTON
\nSCIENTIFIC CORPORATION, a Delaware corporation (“BSC<\/u>“), and STRYKER
\nCORPORATION, a Michigan corporation (the “Purchaser<\/u>“).<\/p>\n WHEREAS, BSC is directly, and indirectly through the Sellers (as hereinafter
\ndefined), engaged in the Business (as hereinafter defined);<\/p>\n WHEREAS, BSC desires to sell, and to cause the Sellers to sell, the Business
\nto the Purchaser, and the Purchaser desires to purchase the Business from BSC
\nand the Sellers; and<\/p>\n WHEREAS, in connection with the sale of the Business, BSC wishes to sell, and
\nto cause the Sellers to sell and assign, to the Purchaser, and the Purchaser
\nwishes to purchase and assume from BSC and the Sellers, the Purchased Assets and
\nAssumed Liabilities (each as hereinafter defined), upon the terms and subject to
\nthe conditions set forth herein.<\/p>\n NOW, THEREFORE, in consideration of the promises and the mutual agreements
\nand covenants hereinafter set forth, and intending to be legally bound hereby,
\nBSC and the Purchaser hereby agree as follows:<\/p>\n ARTICLE I<\/strong><\/p>\nDEFINITIONS<\/strong><\/p>\nSection 1.01<\/u> Certain Defined Terms<\/u>. For purposes of this
\nAgreement:<\/p>\n “Accounts Payable<\/u>” means all accounts payable and liabilities,
\nobligations and commitments, regardless of when asserted, billed or imposed.\n<\/p>\n “Accounts Receivable<\/u>” means all accounts receivable, notes receivable
\nand other indebtedness due and owed by any third party, including all trade
\naccounts receivable representing amounts receivable in respect of goods shipped,
\nproducts sold or services rendered, together with any unpaid financing charges
\naccrued thereon.<\/p>\n “Action<\/u>” means any claim, action, suit, arbitration, inquiry,
\nproceeding or investigation by or before any Governmental Authority.<\/p>\n “Affiliate<\/u>” means, with respect to any specified Person, any other
\nPerson that directly, or indirectly through one or more intermediaries,
\ncontrols, is controlled by, or is under common control with, such specified
\nPerson.<\/p>\n “Agreement<\/u>” or “this Agreement<\/u>” means this Sale and Purchase
\nAgreement between the parties hereto (including the Schedules hereto and the
\nDisclosure Schedule) and all amendments hereto made in accordance with the
\nprovisions of Section 10.07, as conformed through the Amendment to Sale and
\nPurchase Agreement dated as of January 3, 2011 between the parties hereto.<\/p>\n 6<\/p>\n
\n“Ancillary Agreements<\/u>” means the Assignments of Lease, the Assumption
\nAgreements, the Bills of Sale, the Cafeteria Agreement, the Cork Lease
\nAgreement, the Distribution Agreement, the IP Assignment, the OUS Transfer
\nAgreements, the Purchaser IP License Agreement, the Sales Agent Agreement, the
\nSeller IP License Agreement, the Separation Agreement, the Supply Agreement, the
\nTechnology Transfer Agreement and the Transition Services Agreement.<\/p>\n “Assignments of Lease<\/u>” means the Assignments of Lease to be executed
\nby BSC and the Sellers at the Closing with respect to the Fremont Building #4
\nFacility and the West Valley Facility, substantially in the forms attached
\nhereto as Exhibit 1.01(a)(i) and Exhibit 1.01(a)(ii), respectively.<\/p>\n “Assumption Agreements<\/u>” means the Assumption Agreements to be executed
\nby the Purchaser and one or more of BSC and the Sellers at the Closing,
\nsubstantially in the form attached hereto as Exhibit 1.01(b).<\/p>\n “Bills of Sale<\/u>” means the Bills of Sale and Assignment to be executed
\nby one or more of BSC and the Sellers at the Closing, substantially in the form
\nattached hereto as Exhibit 1.01(c).<\/p>\n “BSC Compensation Tax Items<\/u>” means items of loss, deduction or credits
\nin respect of the grant, exercise, vesting or disposition by a Transferred
\nEmployee of an option to acquire BSC capital stock.<\/p>\n “BSC153s Knowledge<\/u>” or “Knowledge of BSC<\/u>” or similar terms used
\nin this Agreement mean the actual (but not constructive or imputed) knowledge of
\nthe Persons listed on Schedule 1.01(a), after reasonable inquiry of the current
\nemployees of BSC and its Affiliates having primary responsibility for the
\nsubject matter of the inquiry.<\/p>\n “Business<\/u>” means the business of researching, developing,
\nmanufacturing, marketing, distributing and selling diagnostic and therapeutic
\nproducts for use in intra-cranial endovascular surgeries to treat vascular
\ndiseases of the brain; provided<\/u> that the Business does not include such
\nactivities with respect to devices for treatment of diseases of the carotid
\nartery, including within the internal or external carotid artery.<\/p>\n “Business Day<\/u>” means any day that is not a Saturday, a Sunday or other
\nday on which banks are required or authorized by Law to be closed in the City of
\nNew York.<\/p>\n “Business Intellectual Property<\/u>” means the Transferred Intellectual
\nProperty and the Licensed Intellectual Property.<\/p>\n “Cafeteria Agreement<\/u>” means the agreement to be executed by the
\nPurchaser and BSC relating to access and use of the cafeteria located in the
\nFremont Building #4 Facility.<\/p>\n “Cleanup<\/u>” means all actions required to: (i) cleanup, remove, treat or
\nremediate Hazardous Materials in the indoor or outdoor environment; (ii) prevent
\nthe Release of Hazardous Materials so that they do not migrate, endanger or
\nthreaten to endanger public health or welfare or the indoor or outdoor
\nenvironment; (iii) perform pre-remedial studies and investigations and<\/p>\n 7<\/p>\n
\npost-remedial monitoring and care; or (iv) respond to any government requests
\nfor information or documents in any way relating to cleanup, removal, treatment
\nor remediation or potential cleanup, removal, treatment or remediation of
\nHazardous Materials in the indoor or outdoor environment.<\/p>\n “Closing Transfer Employee<\/u>” means an employee of BSC or the Sellers
\nwho is (i) listed and identified (either by name or, to the extent disclosure by
\nname is prohibited by applicable Law, by description of function) as a Closing
\nTransfer Employee in Section 6.01 of the Disclosure Schedule, and (ii) any other
\nemployees employed by BSC or the Seller between the date hereof and the Closing
\nDate, and identified as a Closing Transfer Employee by mutual agreement of BSC
\nand the Purchaser (in each case, if such employee is still employed by BSC or
\nthe Sellers on the Closing Date).<\/p>\n “Code<\/u>” means the Internal Revenue Code of 1986, as amended.<\/p>\n “Contract<\/u>” means any binding contract, agreement, instrument, license,
\nsublicense, lease, sublease, commitment, sales and purchase order, bid and
\noffer.<\/p>\n “Contract Manufacturing Sites<\/u>” means the Real Property identified on
\nSchedule 1.01(b), at which BSC currently manufactures certain Products and
\nProduct components or performs certain services with respect to the
\nmanufacturing of certain Products.<\/p>\n “control<\/u>” (including the terms “controlled by<\/u>” and “under
\ncommon control with<\/u>“), with respect to the relationship between or among two
\nor more Persons, means the possession, directly or indirectly, of the power to
\ndirect or cause the direction of the affairs or management of a Person, whether
\nthrough the ownership of voting securities, by contract or otherwise, including
\nthe ownership, directly or indirectly, of securities having the power to elect a
\nmajority of the board of directors or similar body governing the affairs of such
\nPerson.<\/p>\n “Conveyance Taxes<\/u>” means any sales, use, transfer, conveyance, ad
\nvalorem, stamp, stamp duty, recording, real property transfer or gains Taxes or
\nother similar Taxes imposed by any Governmental Authority upon the sale,
\ntransfer or assignment of real, personal, tangible or intangible property or any
\ninterest therein, or upon the recording of any such sale, transfer or
\nassignment, together with any interest, additions or penalties in respect
\nthereof; but, for the avoidance of doubt, shall exclude VAT, any Taxes that are
\nimposed on BSC153s or any Seller153s income or gain, and any Taxes that are
\nRecoverable Taxes.<\/p>\n “Cork Facility<\/u>” means BSC153s manufacturing facilities located at
\nBusiness and Technology Park, Model Farm Road, Cork, Ireland.<\/p>\n “Cork Lease Agreement<\/u>” means the Lease Agreement to be executed by
\nBoston Scientific Cork Limited and the Purchaser or a Purchaser Affiliate at the
\nClosing, substantially in the form attached hereto as Exhibit 1.01(d) pursuant
\nto which Boston Scientific Cork Limited shall lease the Cork Purchaser Leased
\nFacility to the Purchaser or such Purchaser Affiliate effective as of the Cork
\nManufacturing Transfer Date.<\/p>\n “Cork Manufacturing Transfer Date<\/u>” has the meaning given to such term
\nin the Separation Agreement.<\/p>\n 8<\/p>\n
\n“Cork Purchaser Leased Facility<\/u>” means that portion of the Cork
\nFacility to be leased to the Purchaser pursuant to the Cork Lease Agreement.\n<\/p>\n “Cork Transfer Employee<\/u>” means an employee of BSC or the Sellers who
\n(i) is, with respect to salaried employees of the Business, set forth (either by
\nname or, to the extent disclosure by name is prohibited by applicable Law, by
\ndescription of function) in Section 6.01 of the Disclosure Schedule under the
\nheading Cork Transfer Employees, (ii) will be, with respect to hourly employees
\nof BSC or the Sellers, set forth by name in an update to Section 6.01 of the
\nDisclosure Schedule, which shall be provided to the Purchaser as soon as
\npracticable following the signing of this Agreement (and in no event later than
\nfifteen (15) Business Days following the signing of this Agreement) and shall
\ninclude all hourly labor employees of BSC or the Sellers located in the Cork
\nFacility who are primarily engaged in the Business on the date of this Agreement
\n(approximately 425 employees) and (iii) any other employee who is employed by
\nBSC or the Seller in accordance with the terms of the Separation Agreement
\nbetween the Closing Date and the Cork Manufacturing Transfer Date and identified
\nas a Cork Transfer Employee to the Purchaser (in each case, if such employee is
\nstill employed by BSC or the Sellers on the Cork Manufacturing Transfer Date).\n<\/p>\n “Corresponding Transfer Date Employees<\/u>” means, with respect to the
\nClosing Date, the Cork Manufacturing Transfer Date, the Fremont Manufacturing
\nTransfer Date, the West Valley Manufacturing Transfer Date, a Deferred Closing
\nDate and a Delayed Transfer Date, respectively, the Closing Transfer Employees,
\nthe Cork Transfer Employees, the Fremont Transfer Employees, the West Valley
\nTransfer Employees, the Deferred Closing Transfer Employees located in the
\napplicable Deferred Closing Country and the Delayed Transfer Employees.<\/p>\n “Deferred Closing Transfer Employee<\/u>” means, for each Deferred Closing
\nCountry, (i) an employee of BSC or the Sellers who is set forth (either by name
\nor, to the extent disclosure by name is prohibited by applicable Law, by
\ndescription of function) in Section 6.01 of the Disclosure Schedule under the
\nheading Deferred Closing Transfer Employees and (ii) any other employee who is
\nemployed by BSC or the Sellers between the Closing Date and the applicable
\nDeferred Closing Date, identified as a Deferred Closing Transfer Employee to the
\nPurchaser and agreed to be included as a Deferred Closing Transfer Employee by
\nthe Purchaser (in each case, if such employee is still employed by BSC or the
\nSellers on the Deferred Closing Date).<\/p>\n “Delayed Transfer Date<\/u>” means a date agreed upon by BSC and the
\nPurchaser on which the Purchaser shall offer employment to a Delayed Transfer
\nEmployee or the date on which such employment shall transfer automatically by
\noperation of Law.<\/p>\n “Delayed Transfer Employee<\/u>” means (i) an employee of BSC or the
\nSellers who is set forth (either by name or, to the extent disclosure by name is
\nprohibited by applicable Law, by description of function) in Section 6.01 of the
\nDisclosure Schedule under the heading Delayed Transfer Employees and (ii) any
\nother employee who is employed by BSC or the Sellers between the Closing Date
\nand the final Employee Transfer Date, identified as a Delayed Transfer Employee
\nto the Purchaser and agreed to be included as a Delayed Transfer Employee by the
\nPurchaser (in each case, if such employee is still employed by BSC or the
\nSellers prior to the final Employee Transfer Date).<\/p>\n 9<\/p>\n
\n“Disclosure Schedule<\/u>” means the Disclosure Schedule attached hereto,
\ndated as of the date hereof, delivered by BSC to the Purchaser in connection
\nwith this Agreement. Notwithstanding anything to the contrary contained in the
\nDisclosure Schedule or in this Agreement, the information and disclosures
\ncontained in any section of the Disclosure Schedule shall be deemed to be
\ndisclosed and incorporated by reference in any other section of the Disclosure
\nSchedule as though fully set forth in such other section for which the
\napplicability of such information and disclosure is reasonably apparent on the
\nface of such information or disclosure.<\/p>\n “Distribution Agreement<\/u>” means the Distribution Agreement to be
\nexecuted among one or more of BSC and its Affiliates and one or more of the
\nPurchaser and its Affiliates at the Closing, substantially in the form attached
\nhereto as Exhibit 1.01(n).<\/p>\n “Employee Transfer Date<\/u>” means, as applicable, (i) the Closing Date,
\nin respect of the Closing Transfer Employees, (ii) the Cork Manufacturing
\nTransfer Date, in respect of the Cork Transfer Employees, (iii) the Fremont
\nManufacturing Transfer Date, in respect of the Fremont Transfer Employees, (iv)
\nthe West Valley Manufacturing Transfer Date, in respect of the West Valley
\nTransfer Employees, (v) the applicable Deferred Closing Date, in respect of the
\nDeferred Closing Transfer Employees located in a Deferred Closing Country or
\n(vi) the Delayed Transfer Date, in respect of each Delayed Transfer Employee.\n<\/p>\n “Encumbrance<\/u>” means any security interest, charge, pledge,
\nhypothecation, mortgage, lien, encumbrance, option, restrictive covenant or
\nimperfection of title, other than any license of, option to license, or covenant
\nnot to assert claims or infringement, misappropriation or other violation with
\nrespect to, Intellectual Property.<\/p>\n “Environmental Claim<\/u>” means any Action alleging Liability arising out
\nof, based on or resulting from (a) the presence, Release or threatened Release
\nof any Hazardous Materials at any location, whether or not owned or operated by
\nBSC or any Seller, or (b) circumstances forming the basis of any violation, or
\nalleged violation, of any Environmental Law.<\/p>\n “Environmental Law<\/u>” means any Law relating to (a) pollution or
\nprotection of the environment, including natural resources, (b) human exposure
\nto Hazardous Materials, (c) the manufacture, processing, distribution, use,
\ntreatment, storage, Release or threatened Release, transport or handling of
\nHazardous Materials and (d) recordkeeping, notification, disclosure and
\nreporting requirements respecting Hazardous Materials.<\/p>\n “Environmental Liability<\/u>” means any claim, demand, order, suit,
\nobligation, Liability, cost (including the cost of any investigation, testing,
\ncompliance or remedial action), consequential damages, loss or expense
\n(including reasonable and incurred attorney153s and consultant153s fees and
\nexpenses) arising out of, relating to or resulting from any Environmental Law or
\nenvironmental, health or safety matter, violation or condition, including
\nnatural resources, and to the extent related in any way to or arising out of,
\ndirectly or indirectly, the operation of the Business or the ownership, control
\nor use of the Purchased Assets.<\/p>\n “Environmental Permits<\/u>” means any permit, approval, registration,
\nidentification number or license required under or issued pursuant to any
\napplicable Environmental Law.<\/p>\n 10<\/p>\n
\n“ERISA<\/u>” means the Employment Retirement Income Security Act of 1974,
\nas amended, and the regulations promulgated thereunder.<\/p>\n “ERISA Affiliate<\/u>” means any entity that, together with BSC, would be
\ndeemed a single employer within the meaning of Section 414 of the Code or
\nSection 4001 of ERISA.<\/p>\n “Escrow Agent<\/u>” means Wells Fargo Bank, National Association.<\/p>\n “Escrow Agreement<\/u>” means the Escrow Agreement to be executed among
\nBSC, the Purchaser and the Escrow Agent at the Closing, substantially in the
\nform attached hereto as Exhibit 1.01(o); provided<\/u> that if the Escrow
\nAgent does not execute the Escrow Agreement on the Closing Date, BSC and the
\nPurchaser agree to obtain the Escrow Agent153s signature promptly (and in no event
\nlater than three (3) Business Days) following the Closing Date.<\/p>\n “Excluded Taxes<\/u>” means all Liabilities for (i) Taxes imposed with
\nrespect to or relating to any Purchased Asset or the Business for any
\nPre-Closing Period, (ii) Taxes imposed with respect to or relating to any
\nPurchased Asset or the Business with respect to any Straddle Period that are
\nallocated to the portion of the Straddle Period ending on the Closing Date
\npursuant to Section 5.17, (iii) Taxes for which BSC or any Seller or predecessor
\nto BSC or any Seller is or may be liable for any taxable period that are not
\nimposed with respect to or relating to the Purchased Assets or the Business,
\n(iv) any Taxes related to or determined by reference to the Tax liability of BSC
\nor any Seller for which the Purchaser or any of its Affiliates may become liable
\nas a result of the failure of any party to comply with any bulk sale, bulk
\ntransfer or similar Laws and (v) Taxes imposed on the Purchaser or any of the
\nPurchaser Affiliates, as applicable, resulting from the amount of Taxes withheld
\nfrom the Initial Purchase Price and the Milestone Payments being less than the
\namount required to be so withheld under applicable Law. For the avoidance of
\ndoubt, “Excluded Taxes” shall include all income, franchise and similar Taxes of
\nBSC or any Seller arising as a result of the sale of the Purchased Assets
\npursuant to this Agreement (but shall not include any Conveyance Taxes).<\/p>\n “Facility Transfer Date<\/u>” means, as applicable, (i) the Cork
\nManufacturing Transfer Date, in respect of the Cork Purchaser Leased Facility,
\n(ii) the Fremont Manufacturing Transfer Date, in respect of the Fremont Building
\n#4 Facility or (iii) the West Valley Manufacturing Transfer Date, in respect of
\nthe West Valley Facility.<\/p>\n “FDA Laws<\/u>” means all applicable statutes, rules, regulations,
\nstandards, guidelines, policies and orders administered or issued by the FDA or
\nany comparable Governmental Authority.<\/p>\n “Federal Health Care Program<\/u>” has the meaning specified in Section
\n1128B(f) of the SSA and includes the Medicare, Medicaid and TRICARE programs.\n<\/p>\n “Federal Privacy and Security Regulations<\/u>” means the regulations
\ncontained in 45 C.F.R. Parts 160 and 164.<\/p>\n “Former Employee<\/u>” means an employee of BSC or any of its Affiliates
\nwith respect to the Business who has terminated employment for any reason
\n(including retirement and long-term disability) prior to the applicable Employee
\nTransfer Date.<\/p>\n 11<\/p>\n
\n“Fremont Building #4 Facility<\/u>” means Building #4 at BSC153s Fremont
\nmanufacturing facilities located at 47900 Bayside Parkway, Fremont, CA 94538,
\nwhich is subject to the Industrial Space Lease, dated January 1, 2007, between
\nJER BTP II, LLC and BSC.<\/p>\n “Fremont Manufacturing Transfer Date<\/u>” has the meaning given such term
\nin the Separation Agreement.<\/p>\n “Fremont Transfer Employee<\/u>” means an employee of BSC or the Sellers
\nwho (i) is, with respect to salaried employees of the Business, set forth
\n(either by name or, to the extent disclosure by name is prohibited by applicable
\nLaw, by description of function) in Section 6.01 of the Disclosure Schedule
\nunder the heading Fremont Transfer Employees, (ii) will be, with respect to
\nhourly employees of BSC or the Sellers, set forth by name in an update to
\nSection 6.01 of the Disclosure Schedule, which shall be provided to the
\nPurchaser as soon as practicable following the signing of this Agreement (and in
\nno event later than fifteen (15) Business Days following the signing of this
\nAgreement) and shall include all hourly employees who are either primarily
\nengaged in the Business or have the requisite degree of expertise and experience
\nto be useful to the Business (approximately 25 employees) and (iii) is any other
\nemployee who is employed by BSC or the Seller in accordance with the terms of
\nthe Separation Agreement between the Closing Date and the Fremont Manufacturing
\nTransfer Date and identified as a Fremont Transferred Employee to the Purchaser
\n(in each case, if such employee is still employed by BSC or the Sellers on the
\nFremont Manufacturing Transfer Date).<\/p>\n “Governmental Authority<\/u>” means any federal, national, supranational,
\nforeign, state, provincial, local or other government, governmental, regulatory
\nor administrative authority, agency or commission or any court, tribunal, or
\njudicial or arbitral body of competent jurisdiction.<\/p>\n “Governmental Order<\/u>” means any order, writ, judgment, injunction,
\ndecree, stipulation, ruling, determination or award entered by or with any
\nGovernmental Authority.<\/p>\n “Hazardous Materials<\/u>” means all substances defined as Hazardous
\nSubstances, Oils, Pollutants or Contaminants in the National Oil and Hazardous
\nSubstances Pollution Contingency Plan, 40 C.F.R. \u00a7 300.5, or defined as such by,
\nor regulated as such under, any Environmental Law, including any petroleum or
\npetroleum products, by-products or derivatives, radon, toxic mold, radioactive
\nmaterials, and asbestos or asbestos-containing materials.<\/p>\n “HSR Act<\/u>” means the Hart-Scott-Rodino Antitrust Improvements Act of
\n1976, as amended, and the rules and regulations promulgated thereunder.<\/p>\n “Indemnified Party<\/u>” means a Purchaser Indemnified Party or a Seller
\nIndemnified Party, as the case may be.<\/p>\n “Indemnifying Party<\/u>” means BSC pursuant to Section 8.02 and the
\nPurchaser pursuant to Section 8.03, as the case may be.<\/p>\n “Intellectual Property<\/u>” means any and all of the following throughout
\nthe world: (a) utility patents, design patents, industrial designs, and foreign
\nequivalents, (b) trademarks, service marks, trade names, trade dress and
\nInternet domain names, together with the goodwill<\/p>\n 12<\/p>\n
\nassociated exclusively therewith, (c) copyrights and all rights related
\nthereto, including copyrights in computer software, (d) registrations and
\napplications for registration of any of the foregoing in (a)-(c), and (e) trade
\nsecrets and other confidential and proprietary information.<\/p>\n “InZone132 Detachment System<\/u>” means the InZone132 Detachment System
\ndescribed in the 510(k) submission therefor, a copy of which was provided to the
\nPurchaser prior to the date hereof.<\/p>\n “IP Assignment<\/u>” means the IP Assignment to be executed among one or
\nmore of BSC or the Sellers and the Purchaser at the Closing, substantially in
\nthe form attached hereto as Exhibit 1.01(e).<\/p>\n “IRS<\/u>” means the Internal Revenue Service of the United States and any
\nsuccessor agency.<\/p>\n “Law<\/u>” means any federal, national, supranational, state, provincial,
\nforeign, local or similar statute, law, ordinance, regulation, rule, code,
\norder, requirement or rule of law (including common law).<\/p>\n “Leased Real Property<\/u>” means the real property leased by BSC, as
\ntenant, consisting of the Fremont Building #4 Facility and the West Valley
\nFacility, including all buildings and other structures, facilities or
\nimprovements currently or hereafter located thereon and together with, all
\nfixtures, systems, equipment and items of personal property of BSC or any Seller
\nwhich are attached to, or located at such real property or appurtenant thereto,
\nand all easements, licenses, rights and appurtenances relating to the foregoing.\n<\/p>\n “Liabilities<\/u>” means any and all debts, liabilities and obligations,
\nwhether accrued or fixed, absolute or contingent, matured or unmatured, known or
\nunknown or determined or determinable, including those arising under any Law,
\nAction or Governmental Order and those arising under any Contract, commitment or
\nundertaking.<\/p>\n “Licensed Intellectual Property<\/u>” means all Intellectual Property that
\nBSC or a Seller is licensed to use pursuant to the Transferred IP Agreements.\n<\/p>\n “Material Adverse Effect<\/u>” means any circumstance, change, effect,
\ndevelopment or condition that, individually or considered together with all
\nother circumstances, changes, effects, developments and conditions, (a) has had
\nor would reasonably be expected to have a material adverse effect on the
\nbusiness, results of operations, properties, assets or condition (financial or
\notherwise) of the Business, taken as a whole or (b) materially and adversely
\naffects or materially delays, or would be reasonably expected to materially and
\nadversely affect or delay, the ability of BSC and its Affiliates to carry out
\ntheir respective material obligations under, and to consummate the transactions
\ncontemplated by, this Agreement, the Separation Agreement, the Supply Agreement,
\nthe Technology Transfer Agreement, the Seller IP License Agreement, or the
\nTransition Services Agreement; provided<\/u> that none of the following,
\neither alone or in combination, shall be considered in determining whether there
\nhas been a “Material Adverse Effect”: (i) events, circumstances, changes or
\neffects that generally affect the industries in which the Business operates
\n(including legal and regulatory changes), (ii) general economic or political
\nconditions (or changes therein) or events, circumstances, changes or effects
\naffecting the<\/p>\n 13<\/p>\n
\nsecurities markets generally, (iii) changes arising from the announcement of
\nthe execution of this Agreement or the pendency of the transactions contemplated
\nhereby, (iv) any circumstance, change or effect that results from any action
\ntaken pursuant to or in accordance with Section 5.01 or at the written request
\nof the Purchaser, (v) changes caused by acts of terrorism or war (whether or not
\ndeclared) occurring after the date hereof, including any worsening thereof, (vi)
\nnatural disasters occurring in any country or region in the world and (vii) the
\nfailure by the Business to meet any estimates, expectations, projections or
\nbudgets (provided that, to the extent not the subject of any of the foregoing
\nclauses (i) through (vi) above, the underlying cause of such failure may be
\ntaken into account to determine whether a Material Adverse Effect has occurred),
\nexcept in the cases of (i), (ii), (v) and (vi) to the extent such circumstance,
\nchange, effect, development or condition has a materially disproportionate
\neffect on the Business, taken as a whole, compared with other Persons operating
\nin the industries in which the Business operates.<\/p>\n “OUS Transfer Agreements<\/u>” means the business transfer agreements to be
\nexecuted by the Purchaser or the applicable Purchaser Affiliates, on the one
\nhand, and BSC or the applicable Sellers, on the other hand, at the Closing, in
\nsubstantially the form attached hereto as Exhibit 1.01(f) and subject to Section
\n5.24(b).<\/p>\n “Permitted Encumbrances<\/u>” means (a) statutory liens for current Taxes
\nnot yet due or delinquent (or which may be paid without interest or penalties)
\nor the validity or amount of which is being contested in good faith by
\nappropriate proceedings diligently pursued, (b) mechanics153, carriers153, workers153,
\nrepairers153 and other similar liens arising or incurred in the ordinary course of
\nbusiness relating to obligations as to which there is no default on the part of
\nBSC or any of the Sellers, as the case may be, or the validity or amount of
\nwhich is being contested in good faith by appropriate proceedings diligently
\npursued, or pledges, deposits or other liens securing the performance of bids,
\ntrade contracts, leases or statutory obligations (including workers153
\ncompensation, unemployment insurance or other social security legislation), (c)
\nzoning, entitlement, conservation restriction and other land use and
\nenvironmental regulations by Governmental Authorities which do not, individually
\nor in the aggregate, materially interfere with the occupancy or current use of
\nany of the Purchased Assets or materially reduce the value of any of the
\nPurchased Assets, (d) all covenants, conditions, restrictions, easements,
\nnon-monetary charges, rights-of-way, other non-monetary Encumbrances and other
\nsimilar matters of record set forth in any state, local or municipal franchise
\nunder which the Business is conducted which do not, individually or in the
\naggregate, materially interfere with the occupancy or current use of any of the
\nPurchased Assets or materially reduce the value of any of the Purchased Assets
\nand (e) matters which would be disclosed by an accurate survey or inspection of
\nthe Real Property included in the Purchased Assets which do not, individually or
\nin the aggregate, materially impair the occupancy or current use of such Real
\nProperty which they encumber or materially reduce the value of any of the
\nPurchased Assets.<\/p>\n “Person<\/u>” means any individual, partnership, firm, corporation, limited
\nliability company, association, trust, unincorporated organization or other
\nentity, as well as any syndicate or group that would be deemed to be a person
\nunder Section 13(d)(3) of the Securities Exchange Act of 1934, as amended.<\/p>\n 14<\/p>\n
\n“Pre-Closing Period<\/u>” means any taxable period ending on or prior to
\nthe Closing Date, provided that (i) in the case of any Purchased Asset that
\nrelates to any of the Transferred Sites that is subject to a deferred transfer
\nunder the terms of this Agreement, and is actually transferred on a Facility
\nTransfer Date that occurs after the Closing Date, the term “Pre-Closing Period”
\nmeans any taxable period ending on or prior to the relevant Facility Transfer
\nDate with respect to such Purchased Asset; (ii) in the case of any Deferred
\nAsset or Deferred Liability, the term “Pre-Closing Period” means any taxable
\nperiod ending on or prior to the relevant Deferred Closing Date with respect to
\nsuch Deferred Asset or Deferred Liability and (iii) in the case of any
\nCorresponding Transfer Date Employees (other than a Closing Transfer Employee),
\nthe term “Pre-Closing Period” means any taxable period ending on or prior to the
\nrelevant Employee Transfer Date with respect to such Corresponding Transfer Date
\nEmployee.<\/p>\n “Product<\/u>” means each product that is or was manufactured, marketed,
\ndistributed or sold by BSC or any Seller in connection with the Business and any
\nproduct that is currently being developed by BSC or any Seller in connection
\nwith the Business, including the products identified on Schedules A through C of
\nthe Technology Transfer Agreement.<\/p>\n “Product Liabilities<\/u>” means, with respect to any Product, all
\nLiabilities resulting from actual or alleged personal injury, including death
\nand damage to property, irrespective of the legal theory asserted.<\/p>\n “Purchase Price Bank Account<\/u>” means a bank account in the United
\nStates to be designated by BSC in a written notice to the Purchaser at least
\nfive Business Days before the Closing.<\/p>\n “Purchaser IP License Agreement<\/u>” means the Purchaser IP License
\nAgreement to be executed among one or more of BSC or its Affiliates and the
\nPurchaser at the Closing, substantially in the form attached hereto as Exhibit
\n1.01(g).<\/p>\n “Real Property<\/u>” means all land and all buildings, any ground lease or
\nleasehold interests therein and any improvements and fixtures erected thereon
\nand all appurtenances related thereto.<\/p>\n “Recoverable Taxes<\/u>” means Taxes that would otherwise be considered
\nConveyance Taxes, but for the fact that the amount paid is refundable or
\ncreditable by the applicable Governmental Authority to the Purchaser, BSC or any
\nSeller regardless of whether such refund or credit is applied for by the party
\nthat is entitled to receive it. The term “Recoverable Taxes” shall also include
\nany VAT to the extent that it is refundable or creditable by the applicable
\nGovernmental Authority to the Purchaser, BSC or any Seller regardless of whether
\nsuch refund or credit is applied for by the party that is entitled to receive
\nit.<\/p>\n “Registrations<\/u>” means authorizations, approvals, clearances, licenses,
\npermits, certificates or exemptions issued by any Governmental Authority
\n(including 510(k) clearances, pre-market approval applications, pre-market
\nnotifications, investigational device exemptions, product recertifications,
\nmanufacturing approvals and authorizations, CE Marks, pricing and reimbursement
\napprovals, labeling approvals, registration notifications or their foreign
\nequivalent) held by BSC or any Seller relating to the Business, that are
\nrequired for the research,<\/p>\n 15<\/p>\n
\ndevelopment, manufacture, distribution, marketing, storage, transportation,
\nuse and sale of the Products.<\/p>\n “Regulations<\/u>” means the Treasury Regulations (including Temporary
\nRegulations) promulgated by the United States Department of Treasury with
\nrespect to the Code or other federal tax statutes.<\/p>\n “Release<\/u>” means any release, spill, emission, discharge, leaking,
\npumping, injection, deposit, disposal, dispersal, leaching or migration into the
\nindoor or outdoor environment (including ambient air, surface water, groundwater
\nand surface or subsurface strata) or within any building, structure, facility or
\nfixture, including the movement of Hazardous Materials through or in the air,
\nsoil, surface water, groundwater or property.<\/p>\n “Restricted Areas<\/u>” means the researching, developing, manufacturing,
\nmarketing, distributing and selling of diagnostic, preventative, monitoring or
\ntherapeutic products for the following anatomy or disease states, in each case,
\nexcluding the Business:<\/p>\n (a) all coronary functions and diseases, including heart failure and
\nhypertension;<\/p>\n (b) all arterial and venous systems;<\/p>\n (c) all pulmonary function;<\/p>\n (d) all gastrointestinal function and endoluminal access, including stomach,
\nliver, pancreas and colon;<\/p>\n (e) all diabetes and obesity solutions, excluding insulin pumps;<\/p>\n (f) all urinary tract, including kidneys, bladder and prostate;<\/p>\n (g) all women153s health function, including pelvic floor and reproductive
\nsystems; and<\/p>\n (h) all neuromodulation solutions, including deep brain stimulation.<\/p>\n “Sales Agent Agreement<\/u>” means the Independent Sales Agent Agreement to
\nbe executed between Boston Scientific Japan K.K. and the Purchaser or one of its
\nAffiliates at the Closing with respect to sales of BSC products in Japan,
\nsubstantially in the form attached hereto as Exhibit 1.01(h).<\/p>\n “Seller IP License Agreement<\/u>” means the Seller IP License Agreement to
\nbe executed among one or more of BSC or its Affiliates and the Purchaser at the
\nClosing, substantially in the form attached hereto as Exhibit 1.01(i).<\/p>\n “Sellers<\/u>” means all Affiliates of BSC engaged in the Business,
\nincluding the Persons set forth on Schedule 1.01(c).<\/p>\n 16<\/p>\n
\n“Separation Agreement<\/u>” means the Separation Agreement substantially in
\nthe form attached hereto as Exhibit 1.01(j).<\/p>\n “Straddle Period<\/u>” means any taxable period beginning on or prior to
\nthe Closing Date and ending after the Closing Date, provided that (i) in the
\ncase of any Purchased Asset that relates to any of the Transferred Sites that is
\nsubject to a deferred transfer under the terms of this Agreement, and is
\nactually transferred on a Facility Transfer Date that occurs after the Closing
\nDate, the term “Straddle Period” means any taxable period beginning on or prior
\nto the relevant Facility Transfer Date and ending after the relevant Facility
\nTransfer Date with respect to such Purchased Asset; (ii) in the case of any
\nDeferred Asset or Deferred Liability, the term “Straddle Period” means any
\ntaxable period beginning on or prior to the relevant Deferred Closing Date and
\nending after the relevant Deferred Closing Date with respect to such Deferred
\nAsset or Deferred Liability and (iii) in the case of any Corresponding Transfer
\nDate Employees (other than a Closing Transfer Employee), the term “Straddle
\nPeriod” means any taxable period beginning on or prior to the relevant Employee
\nTransfer Date and ending after the relevant Employee Transfer Date with respect
\nto such Corresponding Transfer Date Employee.<\/p>\n “Supply Agreement<\/u>” means the Supply Agreement substantially in the
\nform attached hereto as Exhibit 1.01(k).<\/p>\n “Target132 Detachable Coils<\/u>” means the Target132 Detachable Coils
\ndescribed in the 510(k) submission therefor, a copy of which was provided to the
\nPurchaser prior to the date hereof.<\/p>\n “Tax<\/u>” or “Taxes<\/u>” means (i) all income, profits, franchise,
\ngross receipts, capital, sales, use, withholding, value added, ad valorem,
\ntransfer, employment, social security, disability, occupation, asset, property,
\nseverance, documentary, stamp, estimated, payroll, license, premium, windfall
\nprofits, environmental, unemployment, registration, alternative or add-on
\nminimum, any amount owed in respect of any Law relating to unclaimed property or
\nescheat, excise and any other taxes, duties and similar charges or assessments
\nin the nature of a tax imposed by or on behalf of any Governmental Authority and
\nany interest, fines, penalties or additions relating to any such tax, duty or
\nsimilar charge or assessment in the nature of a tax and (ii) any liability for
\nor in respect of any amounts described in clause (i) as a transferee or
\nsuccessor, by contract, or as a result of having filed any Tax Return on a
\ncombined, consolidated, unitary, affiliated or similar basis with any other
\nPerson.<\/p>\n “Tax Returns<\/u>” means any and all returns, reports, forms and any other
\ndocument (including elections, declarations, amendments, schedules, information
\nreturns or attachments thereto) filed or required to be filed with a
\nGovernmental Authority with respect to Taxes.<\/p>\n “Technology Transfer Agreement<\/u>” means the Technology Transfer
\nAgreement substantially in the form attached hereto as Exhibit 1.01(l).<\/p>\n “Transfer Laws<\/u>” means those provisions of applicable local Laws
\nproviding for the automatic transfer of employment of employees on the sale of a
\nbusiness including local Laws implementing EC Directive 2001\/23\/EC (the Acquired
\nRights Directive).<\/p>\n 17<\/p>\n
\n“Transferred Sites<\/u>” means the Fremont Building #4 Facility, the West
\nValley Facility and the Cork Purchaser Leased Facility.<\/p>\n “Transition Services Agreement<\/u>” means the Transition Services
\nAgreement substantially in the form attached hereto as Exhibit 1.01(m).<\/p>\n “U.S. GAAP<\/u>” means United States generally accepted accounting
\nprinciples and practices in effect from time to time applied consistently
\nthroughout the periods involved.<\/p>\n “U.S. Plan<\/u>” means each Plan established or maintained in the United
\nStates of America for the benefit of Corresponding Transfer Date Employees of
\nBSC or the Sellers residing inside the United States of America.<\/p>\n “VAT<\/u>” means any value added tax imposed on the supply of goods and
\nservices under European Union Directive 2006\/112\/EC (or under any rules,
\nregulation, orders or instruments authorized by that Directive) and any similar
\nvalue added tax pursuant to the laws of any jurisdiction which is not a member
\nof the European Union (including Canadian GST and Quebec Sales Tax), and
\nincludes any interest or penalties in respect thereof.<\/p>\n “West Valley Facility<\/u>” means the manufacturing facility located at
\n2405 West Orton Circle, West Valley City, UT 84119, which is subject to the
\nLease, dated November 3, 2000, between H. W. Breinholt and BSC, as amended by
\nthe Extension of Lease, dated October 16, 2005, and as amended by Extension of
\nLease, dated October 15, 2010.<\/p>\n “West Valley Manufacturing Transfer Date<\/u>” has the meaning given such
\nterm in the Separation Agreement.<\/p>\n “West Valley Transfer Employee<\/u>” means an employee of BSC or the
\nSellers who is (i) set forth (either by name or, to the extent disclosure by
\nname is prohibited by applicable Law, by description of function) in Section
\n6.01 of the Disclosure Schedule under the heading West Valley Transfer Employees
\nand (ii) any other employee who is employed by BSC or the Seller in accordance
\nwith the terms of the Separation Agreement between the Closing Date and the West
\nValley Manufacturing Transfer Date and identified as a West Valley Transfer
\nEmployee to the Purchaser (in each case, if such employee is still employed by
\nBSC or the Sellers on the West Valley Manufacturing Transfer Date).<\/p>\n Section 1.02<\/u> Definitions<\/u>. The following terms have the meanings
\nset forth in the Sections set forth below:<\/p>\n\n\n\n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n Definition<\/u><\/p>\n<\/td>\n | <\/td>\n | \n Location<\/u><\/p>\n<\/td>\n<\/tr>\n\n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n “2010 Bonus Pool”<\/p>\n<\/td>\n | <\/td>\n | \n 6.02(b)(ii)<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Acquired Business”<\/p>\n<\/td>\n | <\/td>\n | \n 5.11(b)<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Aggregate Deferred Amount”<\/p>\n<\/td>\n | <\/td>\n | \n 2.07(b)<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Allocation Date”<\/p>\n<\/td>\n | <\/td>\n | \n 2.03(b)<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Allocation Statement”<\/p>\n<\/td>\n | <\/td>\n | \n 2.03(b)<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Allowed Requested Set-Off Payment”<\/p>\n<\/td>\n | <\/td>\n | \n 8.08(g)<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Antitrust Laws”<\/p>\n<\/td>\n | <\/td>\n | \n 5.04(a)<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n 18<\/p>\n
\n\n\n\n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n Definition<\/u><\/p>\n<\/td>\n | <\/td>\n | \n Location<\/u><\/p>\n<\/td>\n<\/tr>\n\n| \n “Assumed Liabilities”<\/p>\n<\/td>\n | <\/td>\n | \n 2.02(a)<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Assumed Portion”<\/p>\n<\/td>\n | <\/td>\n | \n 8.05(c)<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Audited Special Purpose Financial Statements”<\/p>\n<\/td>\n | <\/td>\n | \n 5.09<\/p>\n<\/td>\n<\/tr>\n | \n| \n “BSC”<\/p>\n<\/td>\n | <\/td>\n | \n Preamble<\/p>\n<\/td>\n<\/tr>\n | \n| \n “BSC153s 401(k) Plan”<\/p>\n<\/td>\n | <\/td>\n | \n 6.06(a)<\/p>\n<\/td>\n<\/tr>\n | \n| \n “BSC Other Businesses”<\/p>\n<\/td>\n | <\/td>\n | \n 2.02(b)(iv)<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Business Associate Agreement”<\/p>\n<\/td>\n | <\/td>\n | \n 3.18(e)<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Closing”<\/p>\n<\/td>\n | <\/td>\n | \n 2.05<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Closing Date”<\/p>\n<\/td>\n | <\/td>\n | \n 2.05<\/p>\n<\/td>\n<\/tr>\n | \n| \n “COBRA”<\/p>\n<\/td>\n | <\/td>\n | \n 6.05<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Confidentiality Agreement”<\/p>\n<\/td>\n | <\/td>\n | \n 5.03(a)<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Covers”<\/p>\n<\/td>\n | <\/td>\n | \n 5.26(a)<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Defense Strategy”<\/p>\n<\/td>\n | <\/td>\n | \n 8.05(c)<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Deferred Assets”<\/p>\n<\/td>\n | <\/td>\n | \n 2.08(a)<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Deferred Closing”<\/p>\n<\/td>\n | <\/td>\n | \n 2.08(b)<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Deferred Closing Countries”<\/p>\n<\/td>\n | <\/td>\n | \n 2.08(a)<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Deferred Closing Country Amount”<\/p>\n<\/td>\n | <\/td>\n | \n 2.07(b)<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Deferred Closing Date”<\/p>\n<\/td>\n | <\/td>\n | \n 2.08(b)<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Deferred Liabilities”<\/p>\n<\/td>\n | <\/td>\n | \n 2.08(a)<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Disallowed Requested Set-Off Payment”<\/p>\n<\/td>\n | <\/td>\n | \n 8.08(f)<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Excess Cost”<\/p>\n<\/td>\n | <\/td>\n | \n Schedule 5.05<\/p>\n<\/td>\n<\/tr>\n | \n| \n “End Date”<\/p>\n<\/td>\n | <\/td>\n | \n 9.01(a)<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Escrow Account”<\/p>\n<\/td>\n | <\/td>\n | \n 8.08(h)<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Excluded Assets”<\/p>\n<\/td>\n | <\/td>\n | \n 2.01(b)<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Excluded Liabilities”<\/p>\n<\/td>\n | <\/td>\n | \n 2.02(b)<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Existing Stock”<\/p>\n<\/td>\n | <\/td>\n | \n 5.06(b)<\/p>\n<\/td>\n<\/tr>\n | \n| \n “FDA”<\/p>\n<\/td>\n | <\/td>\n | \n 3.17(a)<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Federal Health Care Program Laws”<\/p>\n<\/td>\n | <\/td>\n | \n 3.18(c)<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Foreign Benefit Plan”<\/p>\n<\/td>\n | <\/td>\n | \n 3.14(k)<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Incentive Compensation Continuation Period”<\/p>\n<\/td>\n | <\/td>\n | \n 6.02(b)(i)<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Incentive Plans”<\/p>\n<\/td>\n | <\/td>\n | \n 6.02(b)(i)<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Initial Purchase Price”<\/p>\n<\/td>\n | <\/td>\n | \n 2.03(a)<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Loss”<\/p>\n<\/td>\n | <\/td>\n | \n 8.02<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Material Contracts”<\/p>\n<\/td>\n | <\/td>\n | \n 3.16(a)<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Milestone Payment”<\/p>\n<\/td>\n | <\/td>\n | \n 2.04<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Milestone Payment Date”<\/p>\n<\/td>\n | <\/td>\n | \n 8.08(c)<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Mixed Action”<\/p>\n<\/td>\n | <\/td>\n | \n 8.05(c)<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Mixed Contract”<\/p>\n<\/td>\n | <\/td>\n | \n 5.23<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Plans”<\/p>\n<\/td>\n | <\/td>\n | \n 3.14(a)<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Permits”<\/p>\n<\/td>\n | <\/td>\n | \n 3.08<\/p>\n<\/td>\n<\/tr>\n | \n| \n “PIP”<\/p>\n<\/td>\n | <\/td>\n | \n 6.02(b)(ii)<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Purchase Price”<\/p>\n<\/td>\n | <\/td>\n | \n 2.03(a)<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Purchased Assets”<\/p>\n<\/td>\n | <\/td>\n | \n 2.01(a)<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Purchaser”<\/p>\n<\/td>\n | <\/td>\n | \n Preamble<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Purchaser Affiliate”<\/p>\n<\/td>\n | <\/td>\n | \n 10.06<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n 19<\/p>\n
\n\n\n\n| <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| \n Definition<\/u><\/p>\n<\/td>\n | <\/td>\n | \n Location<\/u><\/p>\n<\/td>\n<\/tr>\n\n| \n “Purchaser Indemnified Party”<\/p>\n<\/td>\n | <\/td>\n | \n 8.02<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Purchaser153s 401(k) Plan”<\/p>\n<\/td>\n | <\/td>\n | \n 6.06(b)<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Purchaser153s Employment Contingencies”<\/p>\n<\/td>\n | <\/td>\n | \n 6.01(a)<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Recipient”<\/p>\n<\/td>\n | <\/td>\n | \n 5.16<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Request Notice”<\/p>\n<\/td>\n | <\/td>\n | \n 8.08(c)<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Requested Set-Off Payment”<\/p>\n<\/td>\n | <\/td>\n | \n 8.08(c)<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Retained Names and Marks”<\/p>\n<\/td>\n | <\/td>\n | \n 5.06(a)<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Seller Indemnified Party”<\/p>\n<\/td>\n | <\/td>\n | \n 8.03<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Set-Off Claim”<\/p>\n<\/td>\n | <\/td>\n | \n 8.08(b)<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Set-Off Dispute Notice”<\/p>\n<\/td>\n | <\/td>\n | \n 8.08(d)<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Severance Plan Continuation Period”<\/p>\n<\/td>\n | <\/td>\n | \n 6.02(c)<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Specified Representations and Warranties”<\/p>\n<\/td>\n | <\/td>\n | \n 8.01<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Supplier”<\/p>\n<\/td>\n | <\/td>\n | \n 5.16<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Tangible Personal Property”<\/p>\n<\/td>\n | <\/td>\n | \n 2.01(a)(iv)<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Third Party Claim”<\/p>\n<\/td>\n | <\/td>\n | \n 8.05(b)<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Third Party Firm”<\/p>\n<\/td>\n | <\/td>\n | \n 2.03(b)<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Transferred Contracts”<\/p>\n<\/td>\n | <\/td>\n | \n 2.01(a)(x)<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Transferred Employee”<\/p>\n<\/td>\n | <\/td>\n | \n 6.01(a)<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Transferred Intellectual Property”<\/p>\n<\/td>\n | <\/td>\n | \n 2.01(a)(vii)<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Transferred IP Agreements”<\/p>\n<\/td>\n | <\/td>\n | \n 2.01(a)(viii)<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Transferred Permits”<\/p>\n<\/td>\n | <\/td>\n | \n 2.01(a)(xii)<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Transferred Records”<\/p>\n<\/td>\n | <\/td>\n | \n 2.01(a)(vi)<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Transferred Sales Materials”<\/p>\n<\/td>\n | <\/td>\n | \n 2.01(a)(ix)<\/p>\n<\/td>\n<\/tr>\n | \n| \n “Unaudited Special Purpose Financial Statements”<\/p>\n<\/td>\n | <\/td>\n | \n 3.04(a)<\/p>\n<\/td>\n<\/tr>\n | \n| \n “WARN”<\/p>\n<\/td>\n | <\/td>\n | \n 6.04<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n Section 1.03<\/u> Interpretation and Rules of Construction<\/u>. In this
\nAgreement, except to the extent otherwise provided or that the context otherwise
\nrequires:<\/p>\n (a) when a reference is made in this Agreement to an Article, Section,
\nExhibit or Schedule, such reference is to an Article or Section of, or an
\nExhibit or Schedule to, this Agreement unless otherwise indicated;<\/p>\n (b) the table of contents and headings for this Agreement are for reference
\npurposes only and do not affect in any way the meaning or interpretation of this
\nAgreement;<\/p>\n (c) whenever the words “include,” “includes” or “including” are used in this
\nAgreement, they are deemed to be followed by the words “without limitation”;\n<\/p>\n (d) the words “hereof,” “herein” and “hereunder” and words of similar import,
\nwhen used in this Agreement, refer to this Agreement as a whole and not to any
\nparticular provision of this Agreement;<\/p>\n 20<\/p>\n
\n(e) all terms defined in this Agreement have the defined meanings when used
\nin any certificate or other document made or delivered pursuant hereto, unless
\notherwise defined therein;<\/p>\n (f) the definitions contained in this Agreement are applicable to the
\nsingular as well as the plural forms of such terms;<\/p>\n (g) references to a Person are also to its successors and permitted assigns;\n<\/p>\n (h) the use of “or” is not intended to be exclusive unless expressly
\nindicated otherwise; and<\/p>\n (i) references to any Action that has been initiated but with respect to
\nwhich process or other comparable notice has not been served on or delivered to
\nBSC or the Sellers shall be deemed to be “threatened” rather than “pending.”\n<\/p>\n ARTICLE II<\/strong><\/p>\nSALE AND PURCHASE<\/strong><\/p>\nSection 2.01<\/u> Sale and Purchase of Assets<\/u>. (a) Upon the terms
\nand subject to the conditions of this Agreement, effective as of the Closing (or
\nas of such later date as may be expressly provided in this Section 2.01(a),
\nSection 2.08 or in the Separation Agreement), BSC shall, and shall cause the
\nSellers to, sell, assign, transfer, convey and deliver to the Purchaser or its
\nPurchaser Affiliates, free and clear of all Encumbrances (other than Permitted
\nEncumbrances) and the Purchaser shall, and shall cause its Purchaser Affiliates
\nto, purchase from BSC and the Sellers, all the right, title and interest of BSC
\nand the Sellers in and to all of the assets, properties, rights and claims of
\nBSC and the Sellers primarily used in or primarily related to the Business,
\nother than the Excluded Assets or as expressly provided in this Section 2.01(a)
\nor in the Ancillary Agreements (the “Purchased Assets<\/u>“), including the
\nfollowing:<\/p>\n (i) the Business as a going concern;<\/p>\n (ii) the goodwill of BSC and the Sellers primarily related to the Business;\n<\/p>\n (iii) (A) all rights in respect of the Leased Real Property and (B) all
\nrights granted to the Purchaser with respect to the Cork Purchaser Leased
\nFacility pursuant to the Cork Lease Agreement;<\/p>\n (iv) all tangible personal property used or held for use primarily in the
\nconduct of the Business, including the tangible personal property identified on
\nSection 2.01(a)(iv) of the Disclosure Schedule and all machinery, equipment,
\nfurnishings, computer hardware, tangible copies of software or other code,
\ntools, furniture, fixtures and vehicles used primarily in the operation of the
\nBusiness, and all assets held for personal use such as cell phones, personal\n<\/p>\n 21<\/p>\n
\ncomputers, external storage devices and Blackberrys used by Transferred
\nEmployees (collectively, the “Tangible Personal Property<\/u>“);<\/p>\n (v) all finished goods inventory (including consigned inventory) and other
\nmerchandise used or held for use primarily in the conduct of the Business and
\nmaintained, held or stored by or for BSC or one or more of the Sellers, as of
\nthe Closing Date, and any prepaid deposits for any of the same;<\/p>\n (vi) all books of account, general, financial, personnel records and
\nnon-income Tax Returns (and supporting workpapers and other records), invoices,
\nshipping records, supplier lists, correspondence and other documents, records
\nand files of BSC and the Sellers, including filings with the FDA and other
\nGovernmental Authorities and quality control histories to the extent pertaining
\nto the Products, in each case primarily related to the Business or the Purchased
\nAssets, (the “Transferred Records<\/u>“); provided<\/u> that BSC may redact
\nany information from such Transferred Records not pertaining to the Products or
\nprimarily related to the Business prior to the delivery of such Transferred
\nRecords to the Purchaser (provided that such redaction shall not impair any
\ninformation pertaining to the Products or primarily related to the Business
\ncontained in the Transferred Records) and may retain a copy of any Transferred
\nRecords;<\/p>\n (vii) only the Intellectual Property identified in Section 2.01(a)(vii) of
\nthe Disclosure Schedule (the “Transferred Intellectual Property<\/u>“);<\/p>\n (viii) subject to Section 5.05, only the rights of BSC or the Sellers under
\nthe licenses of, and covenants not to assert with respect to, Intellectual
\nProperty identified in Section 2.01(a)(viii) of the Disclosure Schedule (the
\n“Transferred IP Agreements<\/u>“);<\/p>\n (ix) all sales, marketing and promotional literature and manuals, customer
\nand supplier lists, distribution lists, pre-clinical, clinical and marketing
\nstudies and other sales-related materials of BSC and the Sellers, in each case
\nprimarily related to the Products or the Business (the “Transferred Sales
\nMaterials<\/u>“); provided<\/u> that BSC may redact any information from such
\nTransferred Sales Materials not primarily related to the Products or the
\nBusiness prior to the delivery of such Transferred Sales Materials to the
\nPurchaser (provided that such redaction shall not impair any information
\nprimarily related to the Products or the Business contained in the Transferred
\nSales Materials) and may retain a copy of any Transferred Sales Materials;<\/p>\n (x) subject to Section 5.05, all rights of BSC or the Sellers under all
\nContracts exclusively related to the Business, other than the Transferred IP
\nAgreements (which are addressed in Section 2.01(a)(viii)) (and including all
\nreal property leases contemplated by Section 2.01(a)(iii)(A) but excluding any
\nother real property leases) (the “Transferred Contracts<\/u>“), including the
\nContracts set forth on Section 2.01(a)(x) of the Disclosure Schedule;<\/p>\n 22<\/p>\n
\n(xi) all prepayments, security deposits, refunds and prepaid expenses to the
\nextent primarily related to the Business;<\/p>\n (xii) all transferable licenses, Permits, Registrations, authorizations,
\norders and approvals from any Governmental Authority of BSC or the Sellers
\nrelating to any Transferred Site or primarily related to the Business, including
\nthose identified in Section 2.01(a)(xii) of the Disclosure Schedule (the
\n“Transferred Permits<\/u>“); and<\/p>\n (xiii) all claims, defenses, causes of action, choses in action, rights of
\nrecovery and rights of setoff or reimbursement of any kind (and rights under and
\npursuant to all warranties, representations and guarantees made by suppliers of
\nproducts, materials, or equipment, or components thereof) of BSC or any of the
\nSellers, primarily related to the Business or the Purchased Assets, including
\nrights to recover past, present and future damages in connection therewith.<\/p>\n (b) Notwithstanding anything in Section 2.01(a) to the contrary, the
\nPurchased Assets shall not include the right, title and interest of BSC and the
\nSellers in, to and under the following assets, properties, rights and claims
\n(the “Excluded Assets<\/u>“):<\/p>\n (i) the Purchase Price Bank Account;<\/p>\n (ii) all cash and cash equivalents, securities, and negotiable instruments of
\nBSC or any of the Sellers on hand, in lock boxes, in financial institutions or
\nelsewhere, including all cash residing in any collateral cash account securing
\nany obligation or contingent obligation of BSC, the Sellers or any of their
\nAffiliates;<\/p>\n (iii) all Accounts Receivable arising from the conduct of the Business prior
\nto 11:59 p.m. EST on the day immediately prior to the Closing Date;<\/p>\n (iv) all claims, defenses, causes of action, choses in action, rights of
\nrecovery for reimbursement, contribution, refunds, indemnity or other similar
\npayment recoverable by BSC or the Sellers from or against any third party to the
\nextent relating to any Excluded Liabilities;<\/p>\n (v) all assets, properties, rights and claims in respect of the Contract
\nManufacturing Sites, other than all rights of the Purchaser under the Ancillary
\nAgreements;<\/p>\n (vi) the company seal, minute books, charter documents, stock or equity
\nrecord books and such other books and records as pertain to the organization,
\nexistence or capitalization of BSC, the Sellers or any of their Affiliates, as
\nwell as any other records or materials relating to BSC generally and not
\nprimarily associated with or primarily employed by BSC or any of the Sellers in
\nthe conduct of the Business;<\/p>\n 23<\/p>\n
\n(vii) any capital stock of the Sellers;<\/p>\n (viii) any Plan and any assets of any such Plan;<\/p>\n (ix) except as set forth in Section 5.06, any and all rights in and to the
\nRetained Names and Marks;<\/p>\n (x) any asset, property, right or claim that is listed or described in
\nSection 2.01(b)(x) of the Disclosure Schedule;<\/p>\n (xi) all rights of BSC and the Sellers under this Agreement and the Ancillary
\nAgreements;<\/p>\n (xii) any rights to Tax refunds, credits or similar benefits to the extent
\nrelating to the Excluded Taxes (but only to the extent that such Excluded Taxes
\nwere paid by a Seller);<\/p>\n (xiii) non-income Tax Returns (and supporting work papers and other records)
\nof BSC and any of its Affiliates, other than those relating primarily to the
\nPurchased Assets or the Business, and income Tax Returns (and supporting work
\npapers and other records) of BSC and any of its Affiliates including the
\nSellers;<\/p>\n (xiv) all current and prior insurance policies of BSC and its Affiliates and,
\nexcept as set forth in Section 5.21, all rights of any nature with respect
\nthereto, including all insurance recoveries thereunder and rights to assert
\nclaims with respect to any such insurance recoveries; and<\/p>\n (xv) books of account, invoices, shipping records and other records to the
\nextent pertaining to Accounts Receivable referred to in Section 2.01(b)(iii) and
\nAccounts Payable referred to in Section 2.02(b)(i); provided<\/u>, that BSC
\nshall provide to the Purchaser copies of all such books of account, invoices,
\nshipping records and other records redacted to exclude any information not
\npertaining to such Accounts Receivable and such Accounts Payable.<\/p>\n Section 2.02<\/u> Assumption and Exclusion of Liabilities<\/u>. (a) Upon
\nthe terms and subject to the conditions set forth in this Agreement, the
\nPurchaser shall assume, effective as of the Closing (or as of such later date as
\nmay be expressly provided in Section 2.08, Section 5.23 or in the Separation
\nAgreement), and from and after the Closing (or such later date as may be
\nexpressly provided in Section 2.08, Section 5.23 or in the Separation Agreement)
\nthe Purchaser shall pay, perform and discharge when due, only the following
\nLiabilities of BSC and the Sellers relating to the Business or the Purchased
\nAssets, other than the Excluded Liabilities (the “Assumed Liabilities<\/u>“):\n<\/p>\n (i) the obligations of BSC and the Sellers arising under the Transferred IP
\nAgreements and Transferred Contracts, whether arising prior to, on or after the
\nClosing Date (including all Liabilities arising out of or relating to<\/p>\n 24<\/p>\n
\nany termination or announcement or notification of an intent to terminate any
\nsuch Contract as a result of the transactions contemplated by this Agreement),
\nother than any such Liabilities that are either the subject of an action, suit
\nor arbitration pending on the Closing Date or the subject of a claim with
\nrespect to which BSC or any of its Affiliates has received written notice on or
\nprior to the Closing Date;<\/p>\n (ii) all Liabilities for product warranty service claims and all Product
\nLiabilities, whether arising prior to, on or after the Closing Date, other than
\nLiabilities that are either the subject of an action, suit or arbitration
\npending on the Closing Date or the subject of a claim with respect to which BSC
\nor any of its Affiliates has received written notice on or prior to the Closing
\nDate;<\/p>\n (iii) all Liabilities arising out of or relating to any claim that the
\nmanufacture, use, importation, sale or offer for sale of Products sold by
\nPurchaser or its Affiliates on or after the Closing Date (regardless of whether
\nsuch Products existed prior to the Closing Date) infringes, misappropriates, or
\nviolates any Person153s Intellectual Property rights or that Products sold by
\nPurchaser or its Affiliates on or after the Closing Date (regardless of whether
\nsuch Products existed prior to the Closing Date) are falsely marked with patent
\nnumbers;<\/p>\n (iv) all Liabilities that the Purchaser expressly has assumed or agreed to
\npay, or be responsible for, pursuant to the terms of this Agreement or of any
\nAncillary Agreement;<\/p>\n (v) fifty percent (50%) of all Conveyance Taxes as provided in Section 5.15;
\nand<\/p>\n (vi) 100% of all Recoverable Taxes that are recoverable by the Purchaser
\nunder applicable Law.<\/p>\n Notwithstanding anything to the contrary contained herein, the Assumed
\nLiabilities set forth in Section 2.02(a)(i) shall not include and the Purchaser
\nshall not assume or have any responsibility for, and BSC shall, and shall cause
\nthe Sellers to, retain and be responsible for paying, performing and discharging
\nwhen due, any Excluded Liabilities set forth in Sections 2.02(b)(i) through
\n(xiv).<\/p>\n (b) BSC shall, and shall cause the Sellers to, retain and be responsible for
\npaying, performing and discharging when due, and the Purchaser shall not assume
\nor have any responsibility for, any Liability not expressly included in the
\nAssumed Liabilities (the “Excluded Liabilities<\/u>“), including the following
\nLiabilities:<\/p>\n (i) all Accounts Payable arising from the conduct of the Business prior to
\n11:59 p.m. EST on the day immediately prior to the Closing Date;<\/p>\n (ii) all Excluded Taxes;<\/p>\n 25<\/p>\n
\n(iii) all Liabilities for customs duties arising from the conduct of the
\nBusiness on or prior to the Closing Date;<\/p>\n (iv) all Liabilities to the extent relating to or arising out of assets or
\nbusinesses of BSC or any of its Affiliates that are not included in the
\nPurchased Assets (including the Excluded Assets) (the “BSC Other
\nBusinesses<\/u>“);<\/p>\n (v) all intercompany and intracompany receivables, payables, loans and
\ninvestments related to the Business;<\/p>\n (vi) (A) with respect to each of the Transferred Sites, all Environmental
\nLiabilities arising on or prior to the applicable Facility Transfer Date,
\nincluding (1) the presence or Release of any Hazardous Materials at, on, under
\nor from any of the Transferred Sites on or prior to the applicable Facility
\nTransfer Date; (2) the disposal, on or prior to the applicable Facility Transfer
\nDate, of any Hazardous Materials generated by BSC or any Seller or that relates
\nto, or arises out of, directly or indirectly, the operation of the Business or
\nBSC153s or any Seller153s ownership, control or use of the Purchased Assets; and (3)
\nthe violation of any Environmental Law on or prior to the applicable Facility
\nTransfer Date and (B) any other Liabilities under Environmental Law, including
\nany such Liabilities relating to any other facility used by BSC or any of its
\nAffiliates in connection with the Business, arising on or prior to the Closing
\nDate;<\/p>\n (vii) all Liabilities arising from (A) the matters listed in Section 3.07 of
\nthe Disclosure Schedule, (B) actions, suits or arbitrations pending on the
\nClosing Date, or (C) matters that are the subject of a claim with respect to
\nwhich BSC or any of its Affiliates has received written notice on or prior to
\nthe Closing Date and that would, in the case of clause (B) or (C), be required
\nto be listed on such section of the Disclosure Schedule if existing on the date
\nof this Agreement;<\/p>\n (viii) fifty percent (50%) of all Conveyance Taxes as provided in Section
\n5.15;<\/p>\n (ix) 100% of all Recoverable Taxes that are recoverable by BSC or any Seller
\nunder applicable Law;<\/p>\n (x) all Liabilities arising out of or relating to any claim that the
\nmanufacture, use, importation, offer for sale or sale of any Products sold by
\nBSC or its Affiliates prior to the Closing Date infringes, misappropriates, or
\nviolates any Person153s Intellectual Property rights or that Products sold by BSC
\nor its Affiliates prior to the Closing Date are falsely marked with patent
\nnumbers;<\/p>\n (xi) all Liabilities that BSC and the Sellers have expressly assumed or
\nagreed to pay, or be responsible for, pursuant to the terms of this Agreement or
\nany Ancillary Agreement;<\/p>\n 26<\/p>\n
\n(xii) except to the extent expressly assumed in Article VI, all Liabilities
\nin any way attributable to (A) any Corresponding Transfer Date Employee who does
\nnot become a Transferred Employee and all other employees of BSC or the Sellers,
\nincluding the Former Employees, in any case, whether arising prior to, on or
\nafter the applicable Employee Transfer Date, (B) the Transferred Employees to
\nthe extent arising or otherwise attributable to the period on or prior to the
\napplicable Employee Transfer Date, and (C) the Plans;<\/p>\n (xiii) all Liabilities arising (A) under the Agreement dated November 13,
\n1998, between the Industrial Development Agency (Ireland) and Boston Scientific
\nCork Limited (x) prior to the Cork Manufacturing Transfer Date in respect of the
\nCork Facility, or (y) after the Cork Manufacturing Transfer Date in respect of
\nthe portion of the Cork Facility that is not a Transferred Site, (B) prior to
\nthe West Valley Manufacturing Transfer Date under the Lease dated November 3,
\n2000, between H.W. Breinhold and BSC, as amended by the Extension of Lease,
\ndated October 16, 2005, in respect of the West Valley Facility, and (C) prior to
\nthe Closing Date under the Industrial Space Lease dated January 1, 2007, between
\nJER BTP II, LLC and BSC in respect of the Fremont Building #4 Facility; and<\/p>\n (xiv) all Liabilities arising from any failure by BSC or any of the Sellers
\nto comply with any FDA Laws, Federal Health Care Program Laws or the Foreign
\nCorrupt Practices Act of 1977, as amended, or any other federal, foreign, or
\nstate anti-corruption or anti-bribery Law or requirement in connection with the
\nBusiness or the Products on or prior to the Closing Date.<\/p>\n Section 2.03<\/u> Purchase Price; Allocation of Purchase Price<\/u>. (a)
\nThe purchase price for the Purchased Assets (the “Purchase Price<\/u>“) shall
\nconsist of $1,400,000,000 (the “Initial Purchase Price<\/u>“), (ii) the
\nMilestone Payments contemplated by Section 2.04 and (iii) the Assumed
\nLiabilities. To the extent that any amount of VAT is required to be paid with
\nrespect to any payment made by the Purchaser to BSC under this Section 2.03 or
\nunder Section 2.04, the amount of such payment shall be increased to include the
\namount of VAT so required to be paid.<\/p>\n (b) Within thirty (30) days after the date hereof, the Purchaser shall
\nprovide to BSC, for income Tax purposes, the Purchaser153s proposed allocation of
\nthe Purchase Price among the Purchased Assets (the “Allocation
\nStatement<\/u>“). BSC shall review the Allocation Statement and, to the extent
\nBSC in good faith disagrees with the content of the Allocation Statement, BSC
\nshall, within twenty-one (21) days after receipt of the Allocation Statement,
\nprovide written notice to the Purchaser of such disagreement, which notice shall
\ncontain specific items of disagreement and reasons therefor. If BSC does not
\nobject by written notice within such 21-day period, the Purchaser153s Allocation
\nStatement shall be final, binding and conclusive for all purposes hereunder and
\nfor all Tax purposes. If BSC notifies the Purchaser that it objects to the
\nAllocation Statement, the parties will attempt in good faith to resolve any such
\ndisagreement until the 90th day following the Closing Date (the “Allocation
\nDate<\/u>“). If the parties cannot resolve their differences at least five (5)
\ndays prior to the Closing Date, the Allocation Statement will become an
\nestimated allocation used for purposes of the<\/p>\n 27<\/p>\n
\nClosing. If the parties cannot resolve their differences by the Allocation
\nDate, the issues in dispute shall be referred to a third party firm that has
\nexpertise in valuation matters and that is mutually agreeable to the Purchaser
\nand BSC (the “Third Party Firm<\/u>“) and the decision of the Third Party Firm
\nwill be binding on the parties. The decision will be reflected in a revised
\nAllocation Statement which will be considered the final allocation. The costs of
\nthe Third Party Firm shall be borne equally by the Purchaser and BSC.<\/p>\n (c) The Purchaser and BSC each agree to file, and to cause their respective
\nAffiliates to file, their income Tax Returns and all other Tax Returns and
\nnecessary forms in such a manner as to reflect the allocation of the
\nconsideration as determined in accordance with Section 2.03(b), and shall take
\nno position inconsistent therewith in any audit, litigation or other proceeding.\n<\/p>\n Section 2.04<\/u> Milestone Payments<\/u>. No later than five (5)
\nBusiness Days after the occurrence of an event described in this Section 2.04,
\nthe Purchaser shall deposit in the Purchase Price Bank Account the applicable
\npayment associated with such event as specified below (any such payment, a
\n“Milestone Payment<\/u>“), less any withholding of Taxes required by
\napplicable Law (provided that the Purchaser and BSC shall cooperate in good
\nfaith to determine the amount of any such Taxes required to be withheld);
\nprovided<\/u> that if the event described in Section 2.04(a) occurs prior to
\nthe Closing Date, the Purchaser shall deposit in the Purchase Price Bank Account
\non the Closing Date the Milestone Payment applicable to such event:<\/p>\n (a) $50,000,000 if (i) the FDA provides written notification of clearance of
\nthe 510(k) submission for the TargetTM<\/sup> Detachable Coils provided to
\nthe Purchaser by BSC prior to the date of this Agreement; provided<\/u> that
\nthe parties agree that any deviations from such form in the written notification
\nof such clearance from the FDA shall be disregarded for purposes of this Section
\n2.04(a) to the extent such deviations would not change the indications for use
\ncontained in such 510(k) submission and otherwise would not materially and
\nadversely delay or affect the Purchaser153s ability to market and sell
\nTargetTM<\/sup> Detachable Coils (it being agreed that any requirement that
\npost-market clinical trials be conducted will not by itself constitute a
\nmaterial and adverse effect for this purpose), and (ii) BSC has at least 3,500
\nunits of TargetTM<\/sup> Detachable Coils in inventory that comply with, and
\nare available to be delivered pursuant to, the terms of the Supply Agreement;\n<\/p>\n(b) $15,000,000 following the completion of the Cork Separation Activities
\n(as such term is defined in the Separation Agreement) in accordance with the
\nterms of the Separation Agreement, which may occur prior to the Cork
\nManufacturing Transfer Date;<\/p>\n (c) $15,000,000 following the occurrence of the Cork Manufacturing Transfer
\nDate in accordance with the terms of the Separation Agreement;<\/p>\n (d) $10,000,000 following the occurrence of the Fremont Manufacturing
\nTransfer Date in accordance with the terms of the Separation Agreement; and<\/p>\n (e) $10,000,000 following the occurrence of the West Valley Manufacturing
\nTransfer Date in accordance with the terms of the Separation Agreement.<\/p>\n 28<\/p>\n
\nSection 2.05<\/u> Closing<\/u>. Subject to the terms and conditions of
\nthis Agreement, the sale and purchase of the Purchased Assets and the assumption
\nof the Assumed Liabilities contemplated by this Agreement shall take place at a
\nclosing (the “Closing<\/u>“) to be held at the offices of Shearman &
\nSterling LLP, 599 Lexington Avenue, New York, New York at 10:00 A.M. New York
\ntime on the fifth Business Day following the satisfaction or waiver of the
\nconditions to the obligations of the parties hereto set forth in Sections 7.01
\nand 7.02 (other than those conditions which, by their terms, are to be satisfied
\nat the Closing, but subject to the satisfaction or waiver of those conditions)
\nor at such other place or at such other time or on such other date as BSC and
\nthe Purchaser may mutually agree upon in writing. The day on which the Closing
\ntakes place being the “Closing Date<\/u>“.<\/p>\n Section 2.06<\/u> Closing Deliveries by BSC<\/u>. At the Closing, BSC
\nshall, and shall cause the Sellers to, deliver to the Purchaser:<\/p>\n (a) duly executed counterparts of each Ancillary Agreement to which one or
\nmore of BSC and the Sellers is a party and such other instruments, in form and
\nsubstance reasonably satisfactory to the Purchaser, as may be required to
\ntransfer the Purchased Assets to the Purchaser;<\/p>\n (b) a receipt for the Initial Purchase Price (and any Milestone Payment paid
\npursuant to Section 2.04(a)) less the Aggregate Deferred Amount;<\/p>\n (c) from BSC and each Seller that is transferring a U.S. real property
\ninterest within the meaning of Section 897(c) of the Code, a certificate of
\nnon-foreign status pursuant to Section 1.1445-2(b)(2) of the Regulations; it
\nbeing understood that notwithstanding anything to the contrary contained herein,
\nif BSC or any Seller fails to provide the Purchaser with such certification, the
\nPurchaser shall be entitled to withhold the requisite amount from the Initial
\nPurchase Price in accordance with Section 1445 of the Code and the applicable
\nRegulations and that any amount so withheld shall be considered to have been
\npaid by the Purchaser to BSC or any such Seller;<\/p>\n (d) the following documents in BSC153s or the Sellers153 possession: (i) patent
\nassignment documents demonstrating ownership by BSC or a Seller of the
\nTransferred Intellectual Property, and (ii) copies of all written opinions of
\noutside counsel to BSC or any Seller providing a legal opinion concerning the
\nnon-infringement or non-appropriation by a Product of any Person153s Intellectual
\nProperty, including whether such Intellectual Property is invalid or
\nunenforceable;<\/p>\n (e) a true and complete copy, certified by the Secretary or Assistant
\nSecretary of BSC or the Sellers, as the case may be, of the resolutions duly and
\nvalidly adopted by the Board of Directors of each such Person and (to the extent
\nnecessary to authorize due execution and delivery) the equity holders of each
\nSeller, evidencing their authorization of the execution and delivery of this
\nAgreement and any Ancillary Agreement to which such Person is, or will on the
\nClosing Date be, party and the consummation of the transactions contemplated
\nhereby and thereby; and<\/p>\n (f) the certificate referenced in Section 7.02(a)(iii).<\/p>\n 29<\/p>\n
\nSection 2.07<\/u> Closing Deliveries by the Purchaser<\/u>. At the
\nClosing, the Purchaser shall, and shall cause its Purchaser Affiliates to:<\/p>\n (a) deliver to BSC an amount equal to the Initial Purchase Price (and the
\nMilestone Payment, if any, due pursuant to Section 2.04(a)) less the sum of (x)
\nthe Aggregate Deferred Amount and (y) any withholding of Taxes required by
\napplicable Law (provided that the Purchaser and BSC shall cooperate in good
\nfaith to determine the amount of any such Taxes required to be withheld), by
\nwire transfer in immediately available funds to the Purchase Price Bank Account
\nor, in the event that a local payment of the relevant portion of the Initial
\nPurchase Price is required in a particular jurisdiction, such other bank
\naccounts to be designated by BSC in a written notice to the Purchaser at least
\nfive (5) Business Days before the Closing;<\/p>\n (b) deposit with the Escrow Agent an amount (the “Aggregate Deferred
\nAmount<\/u>“) equal to the aggregate amount of the Purchase Price allocable to
\neach Deferred Closing Country in U.S. dollars (each such amount, a “Deferred
\nClosing Country Amount<\/u>“), to be released in accordance with the terms of the
\nEscrow Agreement; provided<\/u> that if the Escrow Agreement is not executed
\nas of the Closing Date, the Purchaser shall withhold from the Initial Purchase
\nPrice the Aggregate Deferred Amount and deposit such amount with the Escrow
\nAgent concurrently with the execution and delivery of the Escrow Agreement and
\nthe establishment of the escrow account thereunder;<\/p>\n (c) deliver to BSC duly executed counterparts of each Ancillary Agreement to
\nwhich the Purchaser or any of its Affiliates is a party;<\/p>\n (d) deliver to BSC a true and complete copy, certified by the Secretary or
\nAssistant Secretary of the Purchaser, of the resolutions duly and validly
\nadopted by the Board of Directors of the Purchaser evidencing its authorization
\nof the execution and delivery of this Agreement and the Ancillary Agreements to
\nwhich it is, or will on the Closing Date be, party and the consummation of the
\ntransactions contemplated hereby and thereby;<\/p>\n (e) deliver to BSC a true and complete copy, certified by the Secretary or
\nAssistant Secretary of the applicable Purchaser Affiliate, of the resolutions
\nduly and validly adopted by the Board of Directors and (to the extent necessary
\nto authorize due execution and delivery) the equity holders of each of the
\nPurchaser Affiliates evidencing their authorization of the execution and
\ndelivery of the Ancillary Agreements to which such Purchaser Affiliate is, or
\nwill on the Closing Date be, party and the consummation of the transactions
\ncontemplated thereby; and<\/p>\n (f) deliver to BSC the certificate referenced in Section 7.01(a)(iii).<\/p>\n Section 2.08<\/u> Deferred Closings<\/u>. (a) Notwithstanding anything to
\nthe contrary contained in this Agreement, the sale, assignment, transfer,
\nconveyance, delivery and purchase of the Purchased Assets (the “Deferred
\nAssets<\/u>“) located in the jurisdictions listed on Schedule 2.08(a) (the
\n“Deferred Closing Countries<\/u>“), and the assumption of the Assumed
\nLiabilities (the “Deferred Liabilities<\/u>“) relating to the Business
\nconducted in the Deferred Closing Countries or relating to such Deferred Assets
\nshall not occur on the Closing Date.<\/p>\n 30<\/p>\n
\n(b) The sale, assignment, transfer, conveyance, delivery and purchase of the
\nDeferred Assets, and the assumption of the Deferred Liabilities with respect to
\na Deferred Closing Country shall take place at a closing on the Distribution
\nCountry Transition Date (as defined in the Distribution Agreement) for such
\nDeferred Closing Country (each such closing, a “Deferred Closing<\/u>“) to be
\nheld at the offices of Shearman & Sterling LLP, 599 Lexington Avenue, New
\nYork, New York at 10:00 a.m. New York time on such date, or at such other place
\nor on such other date or at such other time, as BSC and the Purchaser may
\nmutually agree upon in writing (each day on which a Deferred Closing takes
\nplace, being a “Deferred Closing Date<\/u>“); provided<\/u> that if the
\nDistribution Country Transition Date for any Deferred Closing Country is not
\nscheduled to occur prior to the termination of the Distribution Agreement, the
\nDeferred Closing for each such Deferred Closing Country shall occur on the End
\nDate (as defined in the Distribution Agreement).<\/p>\n (c) At each Deferred Closing, the parties hereto shall, and shall cause their
\nrespective Affiliates to, execute and deliver the applicable OUS Transfer
\nAgreement in respect of the applicable Deferred Closing Country and such other
\ndocuments and instruments, as may be reasonably necessary to transfer the
\nDeferred Assets and Deferred Liabilities in such Deferred Closing Country. The
\nforms of the OUS Transfer Agreements to be executed on each Deferred Closing
\nDate in respect of each Deferred Closing Country (other than China) are attached
\nhereto as Exhibit 2.08(c). The form of the OUS Transfer Agreement in respect of
\nChina shall be subject to Section 5.24(b).<\/p>\n (d) Notwithstanding anything contained herein to the contrary, but subject to
\nSection 2.08(b), other than the occurrence of the applicable Distribution
\nCountry Transition Date, there shall be no conditions required to be satisfied
\nor waived prior to a Deferred Closing in order to consummate the transactions
\ncontemplated by this Section 2.08 with respect to a Deferred Closing Country.\n<\/p>\n (e) During the period between the Closing Date and the applicable Deferred
\nClosing Date, the parties hereto shall, and shall cause their respective
\nAffiliates to, cooperate fully and use commercially reasonable efforts to take
\nsuch actions with respect to each Deferred Closing Country as may be reasonably
\nrequested by the other party hereto in order to permit the transfer of the
\nDeferred Assets and Deferred Liabilities in such Deferred Closing Country in
\naccordance with this Section 2.08.<\/p>\n (f) Between the Closing Date and the Deferred Closing Date, BSC (through its
\nAffiliates) shall be the distributor of Products for the Purchaser (or its
\napplicable Affiliate) in each of the Deferred Closing Countries in accordance
\nwith the terms of the Distribution Agreement. Prior to the occurrence of a
\nDeferred Closing, subject to the terms of the Distribution Agreement, all
\nDeferred Assets in a Deferred Closing Country shall be held for the account of
\nBSC and its Affiliates and all Deferred Liabilities shall be retained by BSC and
\nits Affiliates.<\/p>\n (g) From the Closing Date to the Deferred Closing Date, subject to the terms
\nof the Distribution Agreement, unless the context clearly requires otherwise and
\nexcept for purposes of Article V (other than Sections 5.02, 5.05, 5.06(b),
\n5.12(a), 5.14, 5.21, 5.22, 5.23 and 5.24(b)), Article VII, Article VIII and
\nArticle IX, all references in this Agreement to the<\/p>\n 31<\/p>\n
\n“Closing” or the “Closing Date” shall, with respect to any Deferred Closing
\nCountry, be deemed to refer to the Deferred Closing or the Deferred Closing Date
\nfor each such Deferred Closing Country, respectively, and the parties hereto
\nshall continue to comply with all covenants and agreements contained in this
\nAgreement that are required by their terms to be performed prior to the Closing
\nand are deemed to refer to a Deferred Closing in respect of the Deferred Closing
\nCountries.<\/p>\n (h) On the Deferred Closing Date for a Deferred Closing Country, the
\nPurchaser shall pay, or cause the applicable Purchaser Affiliate to pay, as
\napplicable, the relevant Deferred Closing Country Amount to the applicable
\nSeller on the Deferred Closing, less any withholding of Taxes required by
\napplicable Law (provided that the Purchaser and BSC shall cooperate in good
\nfaith to determine the amount of any such Taxes required to be withheld), by
\nwire transfer in immediately available funds to the Purchase Price Bank Account
\nor, in the event that a local payment of such amount is required in a particular
\njurisdiction, such other bank accounts to be designated by BSC in a written
\nnotice to the Purchaser at least five (5) Business Days before such Deferred
\nClosing.<\/p>\n Section 2.09<\/u> Other Transfers<\/u>. The parties acknowledge that the
\nsale, assignment, transfer, conveyance, delivery and purchase of the Purchased
\nAssets, and the assumption of the Assumed Liabilities, relating to the Business
\nconducted in the Philippines, Taiwan and Thailand shall not occur on the Closing
\nDate, but shall occur on a later date and in a manner as mutually agreed by the
\nparties within a reasonable time period after Closing.<\/p>\n ARTICLE III<\/strong><\/p>\nREPRESENTATIONS AND WARRANTIES
\nOF BSC<\/strong><\/p>\nSubject to such exceptions as disclosed in the Disclosure Schedule, BSC
\nhereby represents and warrants to the Purchaser as follows:<\/p>\n Section 3.01<\/u> Organization, Authority and Qualification of BSC and
\nthe Sellers<\/u>. Each of BSC and the Sellers is a corporation (or similar
\nentity) duly organized, validly existing and in good standing, (or, in each
\ncase, the equivalent concept in the applicable jurisdiction of organization)
\nunder the laws of the jurisdiction of its organization and has all necessary
\npower and authority to enter into and deliver this Agreement and the Ancillary
\nAgreements to which it is, or will on the Closing Date be, party, to carry out
\nits obligations hereunder and thereunder and to consummate the transactions
\ncontemplated hereby and thereby, except where failure to do so would not have a
\nMaterial Adverse Effect. The execution and delivery of this Agreement and the
\nAncillary Agreements to which it is, or will on the Closing Date be, party by
\nBSC and each Seller, the performance by BSC and each Seller of its obligations
\nhereunder and thereunder and the consummation by BSC and each Seller of the
\ntransactions contemplated hereby and thereby have been duly authorized by all
\nrequisite action on the part of BSC and each Seller. This Agreement and the
\nAncillary Agreements to which it is, or will on the Closing Date be, party have
\nbeen, or will, on the Closing Date, be duly executed and delivered by BSC and
\neach Seller and (assuming due authorization, execution and delivery<\/p>\n 32<\/p>\n
\nby the Purchaser) this Agreement and the Ancillary Agreements to which it is,
\nor will on the Closing Date be, party constitute, or will on the Closing Date
\nconstitute, the legal, valid and binding obligations of BSC and each Seller
\nenforceable against each such Person in accordance with their respective terms.\n<\/p>\n Section 3.02<\/u> No Conflict<\/u>. Assuming compliance with the
\npre-merger notification and waiting period requirements of the HSR Act and the
\nmaking and obtaining of all filings, notifications, consents, approvals,
\nauthorizations and other actions referred to in Section 3.03, and except as may
\nresult from any facts or circumstances relating solely to the Purchaser, the
\nexecution, delivery and performance of this Agreement and the Ancillary
\nAgreements to which it is, or will on the Closing Date be, party by BSC and each
\nSeller do not and will not (a) violate, conflict with or result in the breach of
\nthe certificate of incorporation or bylaws (or similar organizational documents)
\nof BSC or any Seller, (b) conflict with or violate any Law or Governmental Order
\napplicable to BSC or any Seller or any of their respective properties, assets or
\nbusinesses, including the Business or (c) conflict with, result in any breach
\nof, constitute a default (or event which with the giving of notice or lapse of
\ntime, or both, would become a default) under, require any consent under, result
\nin the creation of any Encumbrance upon any of the Purchased Assets, or give to
\nany Person any rights of termination, acceleration or cancellation of, any note,
\nbond, mortgage or indenture, Contract, permit, franchise or other instrument or
\narrangement (or right thereunder) related to the Business to which BSC or any
\nSeller is a party or by which any of them or any of their properties or assets
\nare bound, except, in the case of clauses (b) and (c), as would not have a
\nMaterial Adverse Effect.<\/p>\n Section 3.03<\/u> Governmental Consents and Approvals<\/u>. The
\nexecution, delivery and performance of this Agreement and each Ancillary
\nAgreement to which it is, or will on the Closing Date be, party by BSC and each
\nSeller do not and will not require any consent, approval, authorization or other
\norder of, action by, filing with or notification to, any Governmental Authority,
\nexcept (a) the pre-merger notification and waiting period requirements of the
\nHSR Act, (b) any additional consents, approvals, authorizations, filings and
\nnotifications required under any other applicable Antitrust Laws, (c) where
\nfailure to obtain such consent, approval, authorization or action, or to make
\nany such filing or notification would not have a Material Adverse Effect, or (d)
\nas may be necessary as a result of any facts or circumstances relating solely to
\nthe Purchaser or any of its Affiliates.<\/p>\n Section 3.04<\/u> Financial Information<\/u>. (a) True and complete
\ncopies of (i) the unaudited special purpose statement of assets to be acquired
\nand liabilities to be assumed of the Business for the fiscal years ended as of
\nDecember 31, 2008 and December 31, 2009 and for the six months ended June 30,
\n2010, and the related unaudited special purpose statements of revenue and direct
\nexpenses of the Business (collectively, the “Unaudited Special Purpose
\nFinancial Statements<\/u>“) have been delivered by BSC to the Purchaser.<\/p>\n (b) The Unaudited Special Purpose Financial Statements, except as may be
\nindicated in the notes thereto, if any, (i) were prepared from the books of
\naccount of BSC and the Sellers, (ii) present fairly in all material respects the
\nitems reflected thereon, as of the dates thereof or for the periods covered
\nthereby and (iii) were prepared in accordance with BSC policies consistently
\napplied (which are consistent with U.S. GAAP except as otherwise expressly set
\nforth therein). The books of account of BSC and the Sellers used for the
\nUnaudited<\/p>\n 33<\/p>\n
\nSpecial Purpose Financial Statements are correct in all material respects and
\nhave been maintained in accordance with sound business and accounting practices
\nand BSC153s internal control procedures.<\/p>\n (c) The Audited Special Purpose Financial Statements will, when furnished to
\nthe Purchaser, except as may be indicated in the notes thereto, (i) be prepared
\nfrom the books of account of BSC and the Sellers, (ii) present fairly in all
\nmaterial respects the items reflected thereon, as of the dates thereof or for
\nthe periods covered thereby and (iii) be prepared in accordance with BSC
\npolicies consistently applied (which are consistent with U.S. GAAP except as
\notherwise expressly set forth therein). The books of account of BSC and the
\nSellers that will be used for the Audited Special Purpose Financial Statements
\nare correct in all material respects and have been maintained in accordance with
\nsound business and accounting practices and BSC153s internal control procedures.\n<\/p>\n Section 3.05<\/u> Absence of Undisclosed Material Liabilities<\/u>. There
\nare no material Liabilities of BSC or the Sellers relating to the Business,
\nother than (a) Liabilities reflected or reserved against on the Unaudited
\nSpecial Purpose Financial Statements, (b) as set forth in Section 3.05 of the
\nDisclosure Schedule and (c) trade payables and accrued expenses incurred since
\nDecember 31, 2009 in the ordinary course of business consistent with past
\npractice.<\/p>\n Section 3.06<\/u> Conduct in the Ordinary Course<\/u>. Since December 31,
\n2009, (a) the Business has been conducted in the ordinary course consistent with
\npast practice, (b) there has not been any circumstance, change, effect,
\ndevelopment or condition, which has had a Material Adverse Effect and (c) none
\nof BSC and the Sellers (to the extent it relates to the Business) has taken any
\naction that, if taken after the date hereof, would constitute a violation of
\nSection 5.01(b)(i) through (xii).<\/p>\n Section 3.07<\/u> Litigation<\/u>. There is no material Action by or
\nagainst BSC or any of the Sellers (and relating to the operation or conduct of
\nthe Business or the ownership, sale or lease of any of the Purchased Assets or
\nwhich would otherwise be an Assumed Liability) pending or, to the Knowledge of
\nBSC, threatened, before any Governmental Authority.<\/p>\n Section 3.08<\/u> Compliance with Laws; Permits<\/u>. Except with respect
\nto Environmental Laws, Intellectual Property, Plans, Taxes, and certain matters
\nrelating to regulatory compliance (which are exclusively addressed in Sections
\n3.09, 3.10, 3.14, 3.15, 3.17 and 3.18, respectively), BSC and the Sellers have
\nconducted and continue to conduct the Business in accordance in all material
\nrespects with all Laws and Governmental Orders applicable to the Business and
\nthe Purchased Assets, and none of BSC or any of its Affiliates is in violation
\nof any such Law or Governmental Order. Except with respect to Registrations
\n(which are exclusively addressed in Section 3.17), BSC and the Sellers hold all
\nlicenses, permits, product registrations, authorizations, orders and approvals
\nfrom, and have made all filings, applications and registrations with, each
\nGovernmental Authority (collectively, the “Permits<\/u>“) necessary for the
\noperation of the Business as it is conducted as of the date hereof and as
\ncurrently proposed to be conducted, except where the failure to make such
\nfilings, applications or registrations would not have a Material Adverse Effect,
\nBSC and the Sellers have conducted and<\/p>\n 34<\/p>\n
\ncontinue to conduct the Business pursuant to and in compliance in all
\nmaterial respects with the terms of all such Permits. Section 3.08 of the
\nDisclosure Schedule sets forth each material Permit and such Permits (including
\nthe Transferred Permits) are valid and in full force and effect and neither BSC
\nnor any Seller is in or has been in material default under any such Permit, and
\nto the Knowledge of BSC, no condition exists that with the notice or lapse of
\ntime or both would constitute a material default under such Permits.<\/p>\n Section 3.09<\/u> Environmental Matters<\/u>. (a)(i) Each of BSC and the
\nSellers (to the extent it relates to the Business) is in material compliance
\nwith all applicable Environmental Laws (which compliance includes the possession
\nof all material Environmental Permits, and material compliance with the terms
\nand conditions thereof), and BSC and the Sellers have not received any
\nunresolved notice from any Governmental Authority that alleges that BSC is not
\nin such compliance with applicable Environmental Laws, (ii) there is no material
\nEnvironmental Claim pending or, to BSC153s Knowledge, threatened in writing,
\nagainst BSC or any of the Sellers (to the extent relating to the Business) or,
\nto BSC153s Knowledge, against any person or entity whose liability for any
\nEnvironmental Claim BSC or any of the Sellers (to the extent relating to the
\nBusiness) has or may have retained or assumed either contractually or by
\noperation of Law, and (iii) there are no past or present actions, activities,
\ncircumstances, conditions, events or incidents, including the Release,
\nthreatened Release or presence of any Hazardous Material by BSC or any Seller
\nwhich would reasonably be expected to form the basis of any material
\nEnvironmental Claim against BSC and the Sellers (to the extent it relates to the
\nBusiness).<\/p>\n (b) BSC and the Sellers have delivered for inspection to the Purchaser copies
\nof any reports, studies or analyses issued in the past five (5) years and
\npossessed or initiated by BSC or the Sellers, pertaining to Hazardous Materials
\nin, on, beneath or adjacent to any of the Transferred Sites, or regarding BSC153s
\nor any of the Sellers153 compliance with or liability under applicable
\nEnvironmental Laws.<\/p>\n Section 3.10<\/u> Intellectual Property<\/u>.<\/p>\n (a) The Business Intellectual Property, together with the Intellectual
\nProperty licensed under the Ancillary Agreements (assuming the receipt of the
\nconsents and approvals set forth on Section 3.02 of the Disclosure Schedule for
\nPurchaser to practice any Intellectual Property in the Transferred IP Agreements
\nand Third Party Licenses (as that term is defined in the Seller IP License
\nAgreement)), is all of the Intellectual Property owned by or licensed to BSC or
\nthe Sellers that is necessary to make, use, sell, offer to sell, import,
\ndistribute, market or otherwise exploit the Products, as such activities are
\nperformed by BSC or the Sellers in the Business as currently conducted,
\nincluding with respect to the commercialization of the Target132 Detachable Coil
\nand the InZone132 Detachment System.<\/p>\n (b) BSC or a Seller owns the entire right, title and interest in and to, each
\nitem of the Transferred Intellectual Property, free and clear of any
\nEncumbrances (other than Permitted Encumbrances). There is no Action pending or,
\nto the Knowledge of BSC, threatened in writing, by any Person contesting the
\nownership or validity of the Transferred Intellectual Property. To the Knowledge
\nof BSC, none of the Transferred Intellectual Property is now involved in any
\nreissue proceeding.<\/p>\n 35<\/p>\n
\n(c) Other than Transferred Intellectual Property abandoned in the ordinary
\ncourse of business consistent with past practice, BSC and each Seller have taken
\ncommercially reasonable and customary measures to protect and safeguard the
\nproprietary nature of the material Business Intellectual Property.<\/p>\n (d) To the Knowledge of BSC, the operation, manufacturing, testing,
\nmarketing, offer for sale, sale, importation or use of the commercialized
\nProducts and the Target132 Detachable Coil and the InZone132 Detachment System, does
\nnot infringe, misappropriate or violate any other Person153s valid and enforceable
\nIntellectual Property rights. There is no Action pending nor, to the Knowledge
\nof BSC, threatened in writing against BSC or the Sellers concerning the
\nforegoing. Neither BSC nor any Seller is asserting rights in any of the
\nTransferred Intellectual Property against any other Person in any pending or
\nthreatened Action concerning the infringement, misappropriation or violation of
\nthe Transferred Intellectual Property. Neither BSC nor any Seller has any
\nLiabilities under any Transferred IP Agreement or Transferred Contract arising
\nout of or related to the infringement, misappropriation or violation of any
\nPerson153s Intellectual Property to the extent based on events occurring or
\nactions taken prior to the Closing Date; provided<\/u> that the foregoing
\nshall not require BSC to indemnify any Purchaser Indemnified Party under Section
\n8.02 for any Assumed Liabilities described in Section 2.02(a)(iii) and shall not
\nexcuse the Purchaser from its obligation under Section 8.03 to indemnify the
\nSeller Indemnified Parties for such Assumed Liabilities.<\/p>\n (e) None of the Business Intellectual Property that is material to the
\nBusiness, including the patents marked on the labels of the Products
\ncommercialized by the Business as of the Closing Date, has been finally adjudged
\ninvalid or unenforceable by a Governmental Authority.<\/p>\n (f) To the extent that any material inventions, improvements, discoveries, or
\ninformation used in the Products has been conceived, developed or created for
\nBSC or the Sellers by another Person, BSC or the relevant Seller has, and
\n(assuming the receipt of the consents and approvals set forth on Section 3.02 of
\nthe Disclosure Schedule for the Purchaser to practice any Intellectual Property
\nin the Transferred IP Agreements and Third Party Licenses (as that term is
\ndefined in the Seller IP License Agreement)) will have assigned or licensed to
\nthe Purchaser pursuant to this Agreement or the Ancillary Agreements, sufficient
\nrights to use such inventions, improvements, discoveries, or information within
\nthe Business as currently conducted, including with respect to the
\ncommercialization of the Target132 Detachable Coil and the InZone132 Detachment
\nSystem.<\/p>\n (g) The Purchaser acknowledges and agrees that (i) the representations and
\nwarranties contained in Section 3.10(d) are the only representations and
\nwarranties being made by BSC in this Agreement with respect to infringement,
\nmisappropriation or other violation of Intellectual Property, (ii) no other
\nrepresentation or warranty contained in this Agreement shall apply to
\ninfringement, misappropriation or other violation of Intellectual Property and
\n(iii) no other representation or warranty, express or implied, is being made by
\nBSC with respect to infringement, misappropriation or other violation of
\nIntellectual Property.<\/p>\n (h) To the Knowledge of BSC, all of the registered trademarks identified in
\nSection 2.01(a)(vii) of the Disclosure Schedule are valid and enforceable.<\/p>\n 36<\/p>\n
\nSection 3.11<\/u> Real Property<\/u>. (a) Section 3.11 of the Disclosure
\nSchedule lists the street address of each parcel of Leased Real Property and the
\nCork Purchaser Leased Facility and the identity of the lessor, lessee and
\ncurrent occupant (if different from lessee) of each such parcel of such
\nproperty. BSC and the Sellers have delivered to the Purchaser true and complete
\ncopies of the leases (and all amendments, modifications and waivers thereto) in
\neffect as of the date hereof relating to the Leased Real Property and the Cork
\nPurchaser Leased Facility. BSC or a Seller, as applicable, has a good and valid
\nleasehold interest in, and the right to quiet enjoyment of, the Leased Real
\nProperty and the land which is included in the Cork Purchaser Leased Facility
\nand good and marketable title to the improvements located on the land which is
\nincluded in the Cork Purchaser Leased Facility, free and clear of all
\nEncumbrances other than Permitted Encumbrances. There is no sublease, license or
\nother use or occupancy agreement in place with respect to any Leased Real
\nProperty or the Cork Purchaser Leased Facility.<\/p>\n (b) Each of the Leased Real Property and the Cork Purchaser Leased Facility
\nis in good condition and repair and has been maintained in the ordinary course
\nof business consistent with past practice.<\/p>\n (c) The Leased Real Property, the Cork Purchaser Leased Facility and the
\nContract Manufacturing Sites constitute all of the land, buildings, structures
\nand other improvements and fixtures used primarily for the operation of the
\nBusiness as currently conducted and as currently proposed to be conducted.<\/p>\n Section 3.12<\/u> Title to Purchased Assets; Sufficiency<\/u>. (a) Except
\nwith respect to the Leased Real Property and the Cork Purchaser Leased Facility,
\nas of the date of this Agreement and as of the Closing Date, one or more of BSC
\nand the Sellers has good, valid and marketable title, legal right or license to
\nuse, or a valid leasehold interest in (in connection with the operation of the
\nBusiness as currently conducted and as currently proposed to be conducted), all
\nthe Purchased Assets, free and clear of all Encumbrances, except Permitted
\nEncumbrances. Following the consummation of the transactions contemplated by
\nthis Agreement and the execution of the instruments of transfer contemplated by
\nthis Agreement, subject, in the case of Purchased Assets described in clauses
\n(viii), (x) and (xii) of Section 2.01(a), to receipt of necessary third party
\nconsents and approvals including those set forth on Section 3.02 of the
\nDisclosure Schedule, and in respect of all other Purchased Assets, receipt of
\nthe consents and approvals set forth on Section 3.02 of the Disclosure Schedule,
\nthe Purchaser will own, with good, valid and marketable title, or lease, under
\nvalid and subsisting leases, or have legal right or license to use, or otherwise
\nacquire the interests of BSC and the Sellers in, the Purchased Assets, free and
\nclear of any Encumbrances, other than Permitted Encumbrances. No representation
\nor warranty, express or implied, is being made by BSC in this Section 3.12(a)
\nwith respect to issues of title to the Transferred Intellectual Property (which
\nis the subject of Section 3.10(b)).<\/p>\n (b) The Purchased Assets and the Cork Purchaser Leased Facility, together
\nwith the licenses, services and assets to be provided to the Purchaser under the
\nAncillary Agreements (subject to the terms and conditions thereof) are adequate
\nin all material respects to conduct the Business as currently conducted,
\nincluding with respect to the commercialization of the Target132 Detachable Coil
\nand the InZone132 Detachment System. At all times since<\/p>\n 37<\/p>\n
\nDecember 31, 2009, BSC and the Sellers have caused the Purchased Assets to be
\nmaintained in accordance with good business practices consistent with past
\npractice, and all the Purchased Assets are in all material respects in good
\noperating condition and repair, normal wear and tear excepted, and are suitable
\nin all material respects for the purposes for which they are currently used.\n<\/p>\n Section 3.13<\/u> Labor Matters<\/u>. (a) Neither BSC nor any of the
\nSellers is party to or bound by any collective bargaining agreement, work rules
\nor practices, or any other labor-related agreements or arrangements with any
\nlabor union, labor organization or works council in connection with the
\nBusiness; there are no such agreements, arrangements, work rules or practices
\nthat pertain to any Corresponding Transfer Date Employees in connection with the
\nBusiness; no Corresponding Transfer Date Employees are represented by any labor
\nunion, labor organization or works council with respect to their employment with
\nBSC or the Sellers in connection with the Business; from January 1, 2008, no
\nlabor union, labor organization, works council, or group of Corresponding
\nTransfer Date Employees has made a pending demand for recognition or
\ncertification in connection with the Business; and there are no representation
\nor certification proceedings or petitions seeking a representation proceeding
\npresently pending or threatened in writing to be brought or filed with the
\nNational Labor Relations Board or any other labor relations tribunal or
\nauthority in connection with the Business.<\/p>\n (b) From January 1, 2008, there has been no actual or, to the Knowledge of
\nBSC or the Sellers, threatened material arbitrations, material grievances, labor
\ndisputes, strikes, lockouts, slowdowns or work stoppages against or affecting
\nBSC or the Sellers in connection with the Business.<\/p>\n (c) BSC and the Sellers are in material compliance with all applicable Laws
\nrespecting employment and employment practices in connection with the Business,
\nincluding all Laws respecting terms and conditions of employment, health and
\nsafety, wages and hours, child labor, immigration, employment discrimination,
\ndisability rights or benefits, equal opportunity, plant closures and layoffs,
\naffirmative action, workers153 compensation, labor relations, employee leave
\nissues and unemployment insurance.<\/p>\n (d) With respect to the Business, BSC and the Sellers (i) have taken
\nreasonable steps to properly classify and treat all of their workers as
\nindependent contractors or employees, (ii) have taken reasonable steps to
\nproperly classify and treat all of their employees as “exempt” or “non-exempt”
\nfrom overtime requirements under applicable Law, and (iii) are not delinquent in
\nany payments to, or on behalf of, any current or former independent contractors
\nor employees for any services or amounts required to be reimbursed or otherwise
\npaid.<\/p>\n (e) Since January 1, 2008, neither BSC nor any of the Sellers has received
\n(i) notice of any charges, complaints, grievances or arbitration procedures
\npending or threatened before the National Labor Relations Board, Equal
\nEmployment Opportunity Commission, or any other Governmental Authority against
\nit in connection with the Business, or (ii) notice of the intent of any
\nGovernmental Authority responsible for the enforcement of labor, employment,
\nwages and hours of work, child labor, immigration, worker classification, or
\noccupational safety and health Laws to conduct an investigation with respect to
\nor relating to it or notice that such investigation is in progress, or notice of
\nany complaint, lawsuit or other<\/p>\n 38<\/p>\n
\nproceeding pending or threatened in any forum by or on behalf of any
\nCorresponding Transfer Date Employee alleging breach of any express or implied
\ncontract of employment, any applicable Law governing employment or the
\ntermination thereof or other discriminatory, wrongful or tortious conduct in
\nconnection with the employment relationship in connection with the Business.
\nSolely for purposes of this Section 3.13(e), “notice” shall mean written notice
\nor, with respect to any other form of notice, notice of which BSC has Knowledge.\n<\/p>\n Section 3.14<\/u> Employee Benefit Matters<\/u>. (a) Section 3.14(a) of
\nthe Disclosure Schedule lists, as of the date hereof, (i) all employee benefit
\nplans (as defined in Section 3(3) of ERISA) and all bonus, stock option, stock
\npurchase, restricted stock, incentive, deferred compensation, health, welfare,
\ndisability, retiree medical or life insurance, retirement, supplemental
\nretirement, profit sharing, pension, severance termination pay, retention
\npayments\/arrangements or other benefit plans, programs, policies or
\narrangements, and all employment, termination or severance contracts or
\nagreements, to which any of BSC and the Sellers is a party; provided<\/u>
\nthat any governmental plan or program requiring the mandatory payment of social
\ninsurance taxes or similar contributions to a governmental fund with respect to
\nthe wages of an employee shall not be considered a “Plan”; (ii) each employee
\nbenefit plan for which BSC or a Seller could incur liability under Section 4069
\nof ERISA in the event such plan has been or were to be terminated and (iii) any
\nplan in respect of which BSC or a Seller could incur liability under Section
\n4212(c) of ERISA, in the case of each plan described in (i), (ii) and (iii),
\nwith respect to which BSC or a Seller has any obligation in respect of any
\nCorresponding Transfer Date Employee or which are maintained, contributed to or
\nsponsored by BSC, a Seller or any of their respective ERISA Affiliates for the
\nbenefit of any Corresponding Transfer Date Employee (collectively, the
\n“Plans<\/u>“). Each U.S. Plan is in writing.<\/p>\n (b) With respect to each of the U.S. Plans, BSC or the Sellers have delivered
\nor made available to the Purchaser complete copies of each of the following
\ndocuments: (i) the Plan (including all amendments thereto); (ii) the annual
\nreport and actuarial report, if required under ERISA or the Code, for the most
\nrecent completed plan year; (iii) the most recent Summary Plan Description,
\ntogether with each Summary of Material Modifications, if required under ERISA;
\n(iv) if the U.S. Plan is funded through a trust or any third party funding
\nvehicle, the trust or other funding agreement (including all amendments thereto)
\nand the latest financial statements with respect to the most recently ended
\nreporting period; and (v) the most recent determination letter received from the
\nIRS with respect to each U.S. Plan that is intended to be qualified under
\nSection 401(a) of the Code.<\/p>\n (c) (i) Each Plan has been operated in all material respects in accordance
\nwith its terms and the requirements of all applicable Laws, (ii) each of BSC and
\nthe Sellers, as applicable, has performed all material obligations required to
\nbe performed by it under, is not in any material respect in default under or in
\nmaterial violation of, and BSC has no Knowledge of any material default or
\nviolation by any party to, any Plan, and (iii) no Action is pending or, to the
\nKnowledge of BSC, threatened by a Corresponding Transfer Date Employee with
\nrespect to any Plan (other than claims for benefits in the ordinary course) and,
\nto the Knowledge of BSC, no fact or event exists that could give rise to any
\nsuch Action.<\/p>\n (d) Each Plan that is intended to be qualified under Section 401(a) of the
\nCode or Section 401(k) of the Code has timely received a favorable determination
\nletter from<\/p>\n 39<\/p>\n
\nthe IRS covering all of the provisions applicable to the Plan for which
\ndetermination letters are currently available that the Plan is so qualified and
\neach trust established in connection with any Plan which is intended to be
\nexempt from federal income taxation under Section 501(a) of the Code has
\nreceived a determination letter from the IRS that it is so exempt, and no fact
\nor event has occurred since the date of such determination letter or letters
\nfrom the IRS to adversely affect the qualified status of any such Plan or the
\nexempt status of any such trust.<\/p>\n (e) The transactions contemplated by this Agreement will not, either alone or
\nin combination with any other event or events, cause the Purchaser to incur any
\nLiabilities under Title IV of ERISA. No Plan that is subject to Title IV of
\nERISA is a “multiemployer plan,” as defined in Section 3(37) or 4001(a)(3) of
\nERISA.<\/p>\n (f) The consummation of the transactions contemplated by this Agreement
\n(whether alone or together with any other event) will not, with respect to any
\nCorresponding Transfer Date Employee: (i) entitle such employee to severance
\npay, termination pay or any other payment or benefit of any nature or (ii)
\naccelerate the time of payment or vesting (other than the accelerated vesting of
\nemployee equity-based awards), or increase the amount of compensation due any
\nsuch employee, in each case except as otherwise required under applicable Law.\n<\/p>\n (g) Neither BSC nor any of the Sellers is a party to, or liable under, any
\nagreement, contract, arrangement or plan, including any Plan, that in any case
\ncould affect any Corresponding Transfer Date Employee, which has resulted or
\ncould reasonably be expected to result, separately or in the aggregate, in the
\npayment of (i) any “excess parachute payment” within the meaning of Section 280G
\nof the Code (or any corresponding provision of state or local Law) or (ii) any
\namount that will not be fully deductible by the Purchaser pursuant to Section
\n162(m) of the Code (or any corresponding provision of state, local or foreign
\nLaw).<\/p>\n (h) No U.S. Plan provides, or is obligated to provide, benefits, including
\ndeath or medical benefits (whether or not insured), with respect to any
\nCorresponding Transfer Date Employee beyond such employees153 retirement or other
\ntermination of service, other than coverage mandated solely by applicable Law.\n<\/p>\n (i) Within ninety (90) days prior to the applicable Employee Transfer Date,
\nor with respect to the Closing Transfer Employees only, as of the date hereof,
\nBSC or the Sellers shall provide or make available (or, in respect of Closing
\nTransfer Employees, has made available) to the Purchaser a list of each
\nCorresponding Transfer Date Employee, which list sets forth such employee153s name
\n(subject to applicable Law), current annual compensation (including, where
\napplicable, bonus, stock awards, retention payments\/arrangements, or incentive
\ncompensation opportunity), years of credited service, full or part time status,
\nexempt\/nonexempt status (where applicable), leave status (if applicable), hourly
\nor salaried status, date of hire, work location, job title and any other payroll
\nor individual tax information that may be necessary to effect the transfer in
\naccordance with applicable Law.<\/p>\n (j) Neither BSC nor any of the Sellers has any formal plan or commitment to
\ncreate any additional Plan, or modify or change any existing Plan, that would
\naffect any Corresponding Transfer Date Employee, other than such modifications
\nor changes<\/p>\n 40<\/p>\n
\nmade in the ordinary course of business that do not materially increase the
\nlevel of benefits under such Plan and that are consistent with those made in
\nrespect of Plans covering employees of BSC Other Businesses.<\/p>\n (k) With respect to each Plan established or maintained outside of the United
\nStates of America primarily for benefit of Corresponding Transfer Date Employees
\nof BSC or the Sellers residing outside the United States of America (a
\n“Foreign Benefit Plan<\/u>“): (i) a summary of all Foreign Benefit Plans has
\nbeen provided to or made available to the Purchaser; (ii) all employer and
\nemployee contributions to each Foreign Benefit Plan required by Law or by the
\nterms of such Foreign Benefit Plan have been made, or, if applicable, accrued,
\nin accordance with normal accounting practices; and (iii) each Foreign Benefit
\nPlan required to be registered has been registered and has been maintained in
\ngood standing with applicable regulatory authorities. A copy of each Foreign
\nBenefit Plan will be provided to the Purchaser as soon as possible following the
\nsigning of this Agreement, provided that each Foreign Benefit Plan sponsored,
\nmaintained or contributed to for the benefit of Closing Transfer Employees shall
\nbe provided no later than three (3) weeks following such signing.<\/p>\n Section 3.15<\/u> Taxes<\/u>. All material Tax Returns required to have
\nbeen filed with respect to the Purchased Assets or the Business have been timely
\nfiled (taking into account any extension of time to file granted or obtained)
\nand all material Taxes with respect to the Purchased Assets or the Business have
\nbeen paid or will be timely paid (regardless of whether having been shown as due
\non any Tax Return). All material Taxes required to have been withheld from
\namounts paid or owing to any Person and paid over to any Governmental Authority
\nin connection with the Business or any Purchased Asset have been duly and timely
\nwithheld and so paid. BSC has not received from any Governmental Authority any
\nmaterial written notice of proposed adjustment, deficiency or underpayment of
\nany Taxes relating to the Purchased Assets or the Business, other than a
\nproposed adjustment, deficiency or underpayment that has been satisfied by
\npayment or settlement, or withdrawn. There are no Tax liens on any of the
\nPurchased Assets (other than Permitted Encumbrances). No notice or inquiry has
\nbeen received from any jurisdiction in which Tax Returns have not been filed
\nwith respect to the Purchased Assets or the Business to the effect that the
\nfiling of Tax Returns may be required and no Seller that is not a U.S. person
\npursuant to Section 7701(a)(30) of the Code holds a Purchased Asset that is a
\nUnited States real property interest within the meaning of Section 897(c) of the
\nCode.<\/p>\n Section 3.16<\/u> Material Contracts<\/u>. (a) Section 3.16(a) of the
\nDisclosure Schedule lists each of the following Contracts of BSC and the Sellers
\nwith respect to the Business or by which any of the Purchased Assets may be
\nbound (such Contracts, whether listed or required to be listed, being the
\n“Material Contracts<\/u>“):<\/p>\n (i) any Contract for the distribution or sale of Products by the Business,
\nwhich involved consideration or payments in excess of $250,000 in the aggregate
\nduring the year ended December 31, 2009 or contemplates or involves
\nconsideration or payments in excess of $250,000 after the date of this
\nAgreement;<\/p>\n 41<\/p>\n
\n(ii) all Contracts with independent contractors or consultants (or similar
\narrangements) that involve annual payments in excess of $150,000, or in the case
\nof Contracts with U.S. health care professionals $75,000, and are not cancelable
\nwithout penalty or further payment and without more than 60 days153 notice;<\/p>\n (iii) any Contract for the purchase of materials, supplies, goods, services,
\nequipment or other assets providing for annual payments by BSC or any Seller of
\n$250,000 or more and is not cancelable without penalty or further payment and
\nwithout more than 60 days153 notice;<\/p>\n (iv) any employee collective bargaining Contract with any labor union, staff
\nassociation, works council or other body of employee representatives;<\/p>\n (v) any lease for personal property providing for annual rentals payable by
\nBSC or any Seller of $250,000 or more and is not cancelable without penalty or
\nfurther payment and without more than 60 days153 notice;<\/p>\n (vi) any Contract concerning the establishment or operation of a partnership,
\njoint venture or limited liability company or other similar agreement or
\narrangement;<\/p>\n (vii) all Transferred IP Agreements;<\/p>\n (viii) all leases in respect of the Leased Real Property and the Cork
\nPurchaser Leased Facility;<\/p>\n (ix) all Contracts that limit or purport to limit the ability of the Business
\nto compete in any line of business or with any Person or in any geographic area
\nor during any period of time;<\/p>\n (x) any Contract creating or granting a material Encumbrance (other than
\nPermitted Encumbrances) on any Purchased Asset;<\/p>\n (xi) any other Contract with respect to the Business not made in the ordinary
\ncourse of business which involved payments to or by BSC or any Seller in excess
\nof $250,000 in the aggregate during the year ended December 31, 2009 or
\ncontemplates or involves payments to or by BSC or any Seller in excess of
\n$250,000 in any 12 month period after the date of this Agreement; and<\/p>\n (xii) all material Contracts pursuant to which BSC or any of its Affiliates
\nprovides services in respect of the Business.<\/p>\n (b) BSC has delivered to Purchaser true and complete copies (including all
\namendments, modifications and waivers thereto) of each written Material
\nContract, and a description of each oral Material Contract (if any). Each
\nMaterial Contract (i) is legal, valid and binding on one or more of BSC and the
\nSellers and, to the Knowledge of BSC, the counterparties<\/p>\n 42<\/p>\n
\nthereto, and is in full force and effect and (ii) upon consummation of the
\ntransactions contemplated by this Agreement, except to the extent that any
\nconsents set forth in Section 3.02 of the Disclosure Schedule are not obtained,
\nshall continue in full force and effect without penalty or other adverse
\nconsequence. None of BSC or the Sellers is in breach of, or default under, any
\nMaterial Contract to which it is a party and, to the Knowledge of BSC, (i) no
\nother party to any Material Contract is in breach of, or default under, any
\nMaterial Contract and (ii) no event has occurred which with notice or lapse of
\ntime would constitute a breach or default, or would permit termination,
\nmodification or acceleration, under such Material Contract.<\/p>\n Section 3.17<\/u> FDA Regulatory Compliance<\/u>. (a) BSC and the Sellers
\nhave all material Registrations from the United States Food and Drug
\nAdministration (the “FDA<\/u>“) and any other comparable Governmental
\nAuthority required to conduct the Business as currently conducted, and Section
\n3.17 of the Disclosure Schedule sets forth a true and complete list of such
\nRegistrations. Each such Registration is valid and subsisting in full force and
\neffect. To the Knowledge of BSC, neither BSC nor the Sellers have received any
\nwritten notice from the FDA or any comparable Governmental Authority that the
\nFDA or such comparable Governmental Authority is considering limiting,
\nsuspending or revoking such Registrations or changing the marketing
\nclassification or labeling of the related Products. To the Knowledge of BSC,
\nthere is no false or misleading information or significant omission in any
\nproduct application or other submission to the FDA or any comparable
\nGovernmental Authority. BSC and the Sellers have, in all material respects,
\nfulfilled and performed their obligations under each such Registration, and no
\nevent has occurred or condition or state of facts exists which would constitute
\na material breach or material default or would cause revocation or termination
\nof any such Registration. To the Knowledge of BSC, any third party that is a
\nmanufacturer or contractor with respect to the Products is in material
\ncompliance with all such Registrations insofar as they pertain to the
\nmanufacture of Products or components for the Products for BSC or the Sellers.
\nEach Product that is subject to the jurisdiction of the FDA or any comparable
\nGovernmental Authority has been and is being developed, tested, investigated,
\nmanufactured, distributed, marketed, and sold in material compliance with all
\napplicable statutes, rules, regulations, standards, guidelines, policies and
\norders administered or issued by the FDA or any comparable Governmental
\nAuthority and any other applicable requirement of Law, including those regarding
\nclinical research, pre-market notification, good manufacturing practices,
\nlabeling, advertising, record-keeping, adverse event reporting and reporting of
\ncorrections and removals.<\/p>\n (b) Neither BSC nor any Seller has received, since January 1, 2008, any Form
\nFDA-483, notice of adverse finding, Warning Letters, notice of violation or
\n“untitled letters,” or notice of FDA action for import detentions or refusals
\nfor the FDA or other comparable Governmental Authority alleging or asserting
\nnoncompliance with any applicable Laws or Registrations with respect to the
\nBusiness. Neither BSC nor any Seller is subject to any obligation arising under
\nan administrative or regulatory action, FDA inspection, FDA warning letter, FDA
\nnotice of violation letter, or other notice, response or commitment made to or
\nwith the FDA or any comparable Governmental Authority with respect to the
\nBusiness. BSC and the Sellers have made all notifications, submissions and
\nreports required by any such obligation, and all such notifications, submissions
\nand reports were true, complete and correct in all material respects as of the
\ndate of submission to the FDA or any comparable Governmental Authority with
\nrespect to the Business.<\/p>\n 43<\/p>\n
\n(c) Since January 1, 2008, no Product has been seized, withdrawn, recalled,
\ndetained or subject to a suspension of manufacturing, and, to the Knowledge of
\nBSC, there are no facts or circumstances reasonably likely to cause (i) the
\nseizure, denial, withdrawal, recall, detention, field notification, field
\ncorrection, safety alert or suspension of manufacturing relating to any such
\nProduct; (ii) a change in the labeling of any such Product; or (iii) a
\ntermination, seizure or suspension of marketing of any such Product. No
\nproceedings in the United States or any other jurisdiction seeking the
\nwithdrawal, recall, correction, suspension, import detention or seizure of any
\nProduct are pending or, to the Knowledge of BSC, threatened.<\/p>\n Section 3.18<\/u> Healthcare Regulatory Compliance<\/u>. (a) None of BSC,
\nany Seller nor, to the Knowledge of BSC, any officer, director, managing
\nemployee, agent (as those terms are defined in 42 C.F.R. \u00a7 1001.1001), or any
\nother person described in 42 C.F.R. \u00a7 1001.1001(a)(1)(ii), is a party to, or
\nbound by, any order, individual integrity agreement, corporate integrity
\nagreement or other formal or informal agreement with any Governmental Authority
\nconcerning compliance with Federal Health Care Program Laws with respect to the
\nBusiness.<\/p>\n (b) None of BSC, any Seller nor, to the Knowledge of BSC, any officer,
\ndirector, managing employee, agent (as those terms are defined in 42 C.F.R. \u00a7
\n1001.1001), or any other person described in 42 C.F.R. \u00a7 1001.1001(a)(1)(ii):
\n(i) has been charged with or convicted of any criminal offense relating to the
\ndelivery of an item or service under any Federal Health Care Program in the
\nconduct of the Business; (ii) has been debarred, excluded or suspended from
\nparticipation in any Federal Health Care Program with respect to the Business;
\n(iii) has had a civil monetary penalty assessed against it, him or her under
\nSection 1128A of the SSA in the conduct of the Business; (iv) is currently
\nlisted on the General Services Administration published list of parties excluded
\nfrom federal procurement programs and non-procurement programs with respect to
\nthe Business; or (v) to the Knowledge of BSC, is the target or subject of any
\ncurrent or potential investigation relating to any Federal Health Care
\nProgram-related offense with respect to the Business.<\/p>\n (c) None of BSC, any Seller, nor, to the Knowledge of BSC, any officer,
\ndirector, managing employee, agent (as those terms are defined in 42 C.F.R. \u00a7
\n1001.1001), or any other person described in 42 C.F.R. \u00a7 1001.1001(a)(1)(ii):
\nhas engaged in any activity in the conduct of the Business that is in material
\nviolation of, or is cause for civil penalties or mandatory or permissive
\nexclusion under, the federal Medicare or federal or state Medicaid statutes,
\nSections 1128, 1128A, 1128B, 1128C or 1877 of the SSA (42 U.S.C. \u00a7 \u00a7 1320a-7,
\n1320a-7a, 1320a-7b, 1320a-7c and 1395nn), the federal TRICARE statute (10 U.S.C.
\n \u00a7 1071 et seq.), the civil False Claims Act of 1863 (31 U.S.C. \u00a7 3729 et seq.),
\ncriminal false claims statutes (e.g., 18 U.S.C. \u00a7 \u00a7 287 and 1001), the Program
\nFraud Civil Remedies Act of 1986 (31 U.S.C. \u00a7 3801 et seq.), the anti-fraud and
\nrelated provisions of the Health Insurance Portability and Accountability Act of
\n1996 (e.g., 18 U.S.C. \u00a7 \u00a7 1035 and 1347), or related regulations, or any other
\nLaws that govern the health care industry (collectively, “Federal Health Care
\nProgram Laws<\/u>“), including any activity that violates any state or federal
\nLaw relating to prohibiting fraudulent, abusive or unlawful practices connected
\nin any way with the provision of health care items or services or the billing
\nfor such items or services provided to a beneficiary of any Federal Health Care
\nProgram.<\/p>\n 44<\/p>\n
\n(d) To the Knowledge of BSC, no Person has filed or has threatened to file
\nagainst BSC or any Seller an action relating to the Business under any federal
\nor state whistleblower statute, including under the False Claims Act of 1863 (31
\nU.S.C. \u00a7 3729 et seq.).<\/p>\n (e) BSC has delivered to the Purchaser true and complete copies of all
\nagreements (each, a “Business Associate Agreement<\/u>“) under which BSC or
\nany Seller is a business associate, as such term is defined in 45 C.F.R. \u00a7
\n160.103, as amended, with respect to the Business. Neither BSC nor any Seller is
\nin material breach of any Business Associate Agreement or in material violation
\nof the administrative simplification provisions of HIPAA and the Federal Privacy
\nand Security Regulations with respect to the Business. To the Knowledge of BSC,
\nneither BSC nor any Seller is under investigation by any Governmental Authority
\nfor a material violation of HIPAA or the Federal Privacy and Security
\nRegulations with respect to the Business, including receiving any notices from
\nthe United States Department of Health and Human Services Office of Civil Rights
\nrelating to any such violations.<\/p>\n (f) To the extent BSC or any Seller provides to customers or others
\nreimbursement coding or billing advice regarding Products and procedures related
\nthereto, such advice is (i) in compliance with Medicare and other Federal
\nHealthcare Program Laws, (ii) conforms to the applicable American Medical
\nAssociation153s Current Procedural Terminology (CPT), the International
\nClassification of Disease, Ninth Revision, Clinical Modification (ICD 9 CM) and
\nother applicable coding systems and (iii) includes a disclaimer advising
\ncustomers to contact individual payers to confirm coding and billing guidelines.\n<\/p>\n (g) BSC and the Sellers have an operational healthcare compliance program
\nwith respect to the Business, including a code of ethics or have adopted a code
\nof ethics that governs all employees engaged in the Business, including sales
\nrepresentatives and their interactions with their physician and hospital
\ncustomers.<\/p>\n Section 3.19<\/u> Product Liability<\/u>. Since January 1, 2005, neither
\nBSC nor any Seller has received written notice of a material claim for or based
\nupon breach of product warranty or product specifications or any other
\nallegation of material Liability resulting from the sale of any Product or the
\nprovision of any services related thereto. The Products sold on or prior to the
\nClosing Date (including the features and functionality offered thereby) and
\nservices rendered by BSC or the Sellers related thereto comply in all material
\nrespects with all contractual requirements, covenants or express or implied
\nwarranties applicable thereto and are not subject to any term, condition,
\nguaranty, warranty or other indemnity beyond the applicable standard terms and
\nconditions of sale for such Products and services, true and complete copies of
\nwhich have previously been delivered to the Purchaser.<\/p>\n Section 3.20<\/u> Customers and Suppliers<\/u>. Section 3.20 of the
\nDisclosure Schedule sets forth a true and complete list of the ten (10) largest
\nsuppliers to and customers of the Business during (i) the fiscal year ended
\nDecember 31, 2009 and (ii) the six months ended June 30, 2010 (determined on the
\nbasis of the total dollar amount of purchases or sales, as the case may be)
\nshowing the total dollar number of purchases from or sales to, as the case may
\nbe, each such customer or supplier during such period. Since December 31, 2009,
\nthere has been no termination, cancellation or material curtailment of the
\nbusiness relationship of BSC or any Seller with respect to the Business with any
\nsuch customer or supplier or group of<\/p>\n 45<\/p>\n
\naffiliated customers or suppliers nor, to the Knowledge of BSC, has any such
\ncustomer, supplier or group of affiliated customers or suppliers indicated in
\nwriting an intent to so terminate, cancel or materially curtail its business
\nrelationship with BSC or any Seller with respect to the Business.<\/p>\n Section 3.21<\/u> Certain Business Practices<\/u>. Neither BSC nor any
\nSeller in the conduct of the Business, nor, to the Knowledge of BSC, any of
\ntheir respective directors, officers, agents or employees engaged in the
\nBusiness has, in respect of the Business, (i) used any funds for unlawful
\ncontributions, gifts, entertainment or other unlawful expenses relating to
\npolitical activity, or (ii) made any unlawful payment to foreign or domestic
\ngovernment officials or employees or to foreign or domestic political parties or
\ncampaigns or violated any provision of the Foreign Corrupt Practices Act of
\n1977, as amended, or any other federal, foreign, or state anti-corruption or
\nanti-bribery Law or requirement applicable to BSC or any Seller.<\/p>\n Section 3.22<\/u> Brokers<\/u>. Except for Bank of America Merrill Lynch,
\nno broker, finder or investment banker is entitled to any brokerage, finder153s or
\nother fee or commission in connection with the transactions contemplated by this
\nAgreement or the Ancillary Agreements based upon arrangements made by or on
\nbehalf of BSC. BSC is solely responsible for the fees and expenses of Bank of
\nAmerica Merrill Lynch.<\/p>\n Section 3.23<\/u> Disclaimer of BSC<\/u>. EXCEPT AS SET FORTH IN THIS
\nARTICLE III, NONE OF BSC, THE SELLERS, THEIR AFFILIATES OR ANY OF THEIR
\nRESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR REPRESENTATIVES MAKE OR HAVE MADE
\nANY OTHER REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AT LAW OR IN EQUITY,
\nIN RESPECT OF THE BUSINESS OR ANY OF THE PURCHASED ASSETS, INCLUDING WITH
\nRESPECT TO MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, THE OPERATION
\nOF THE BUSINESS BY THE PURCHASER AFTER THE CLOSING OR THE PROBABLE SUCCESS OR
\nPROFITABILITY OF THE BUSINESS AFTER THE CLOSING.<\/p>\n ARTICLE IV<\/strong><\/p>\nREPRESENTATIONS AND WARRANTIES
\nOF THE PURCHASER<\/strong><\/p>\nThe Purchaser hereby represents and warrants to BSC as follows:<\/p>\n Section 4.01<\/u> Organization and Authority of the Purchaser and its
\nAffiliates<\/u>. The Purchaser is a corporation duly organized, validly existing
\nand in good standing under the laws of the jurisdiction of its incorporation and
\nhas all necessary corporate power and authority to enter into and deliver this
\nAgreement and the Ancillary Agreements to which it is, or will on the Closing
\nDate be, party, to carry out its obligations hereunder and thereunder and to
\nconsummate the transactions contemplated hereby and thereby, except as would not
\nmaterially and adversely affect or materially delay or would reasonably be
\nexpected to materially and adversely affect or materially delay the ability of
\nthe Purchaser or its Affiliates to carry out its obligations under, and to
\nconsummate the transactions contemplated by<\/p>\n 46<\/p>\n
\nthis Agreement and the Ancillary Agreements to which they will on the Closing
\nDate be a party. Each Affiliate of the Purchaser that will be party to an
\nAncillary Agreement is a corporation duly organized, validly existing and in
\ngood standing under the laws of the jurisdiction of its incorporation and has
\nall necessary corporate power and authority to enter into and deliver the
\nAncillary Agreements to which it will on the Closing Date be party, to carry out
\nits obligations thereunder and to consummate the transactions contemplated
\nthereby. The execution and delivery by the Purchaser of this Agreement and the
\nexecution and delivery by the Purchaser and any of its Affiliates of an
\nAncillary Agreement to which it will on the Closing Date be party, the
\nperformance by the Purchaser of its obligations hereunder, and of the Purchaser
\nand its Affiliates thereunder and the consummation by the Purchaser of the
\ntransactions contemplated hereby have been, or will be, as applicable, duly
\nauthorized by all requisite corporate action on the part of the Purchaser and
\nsuch Affiliates. This Agreement has been, and upon their execution the Ancillary
\nAgreements to which the Purchaser or any of its Affiliates will be party shall
\nhave been, duly executed and delivered by the Purchaser and such Affiliates, and
\n(assuming due authorization, execution and delivery by BSC) this Agreement
\nconstitutes, and upon their execution the Ancillary Agreements to which the
\nPurchaser or any of its Affiliates shall be party shall constitute, legal, valid
\nand binding obligations of the Purchaser and such Affiliates, enforceable
\nagainst them in accordance with their respective terms.<\/p>\n Section 4.02<\/u> No Conflict<\/u>. Assuming compliance with the
\npre-merger notification and waiting period requirements of the HSR Act, the
\nexecution, delivery and performance by the Purchaser of this Agreement and of
\nthe Purchaser and its Affiliates of the Ancillary Agreements to which any of
\nthem will on the Closing Date be party do not and will not (a) violate, conflict
\nwith or result in the breach of any provision of the certificate of
\nincorporation or bylaws (or similar organizational documents) of the Purchaser
\nor any such Affiliate, (b) conflict with or violate any Law or Governmental
\nOrder applicable to the Purchaser, any such Affiliate or any of their respective
\nassets, properties or businesses or (c) conflict with, result in any breach of,
\nconstitute a default (or event which with the giving of notice or lapse of time,
\nor both, would become a default) under, require any consent under, or give to
\nany Person any rights of termination, acceleration or cancellation of, any note,
\nbond, mortgage or indenture, Contract, permit, franchise or other instrument or
\narrangement (or right thereunder) to which the Purchaser or any such Affiliate
\nis a party, except, in the case of clauses (b) and (c), as would not materially
\nand adversely affect or materially delay or would reasonably be expected to
\nmaterially and adversely affect or materially delay the ability of the Purchaser
\nor its Affiliates to carry out its obligations under, and to consummate the
\ntransactions contemplated by this Agreement and the Ancillary Agreements to
\nwhich they will on the Closing Date be a party.<\/p>\n Section 4.03<\/u> Governmental Consents and Approvals<\/u>. The
\nexecution, delivery and performance of this Agreement and each Ancillary
\nAgreement to which it is, or will on the Closing Date be, party by the Purchaser
\nand each Purchaser Affiliate do not and will not require any consent, approval,
\nauthorization or other order of, action by, filing with, or notification to, any
\nGovernmental Authority, except (a) the pre-merger notification and waiting
\nperiod requirements of the HSR Act, (b) any additional consents, approvals,
\nauthorizations, filings and notifications required under any other applicable
\nAntitrust Laws, or (c) where failure to obtain such consent, approval,
\nauthorization or action or to make any such filing or notification, would not
\nprevent or materially delay the consummation of the transactions<\/p>\n 47<\/p>\n
\ncontemplated by this Agreement and the Ancillary Agreements to which it or
\nany of them is, or will on the Closing Date be, party by the Purchaser and each
\nPurchaser Affiliate.<\/p>\n Section 4.04<\/u> Financing<\/u>. The Purchaser has cash and cash
\nequivalents, available lines of credit or other sources of immediately available
\nfunds to enable it to pay, in cash, the Initial Purchase Price and all other
\namounts payable pursuant to this Agreement and the Ancillary Agreements or
\notherwise necessary to consummate all the transactions contemplated hereby and
\nthereby.<\/p>\n Section 4.05<\/u> Litigation<\/u>. No Action by or against the Purchaser
\nor any Purchaser Affiliate is pending or, to the best knowledge of the
\nPurchaser, threatened, before any Governmental Authority that would affect the
\nlegality, validity or enforceability of this Agreement or any Ancillary
\nAgreement or that would reasonably be expected to hinder, impair or delay the
\nability of the Purchaser or any Purchaser Affiliate to consummate the
\ntransactions contemplated hereby or thereby.<\/p>\n Section 4.06<\/u> Brokers<\/u>. Except for Barclays Capital, Inc., no
\nbroker, finder or investment banker is entitled to any brokerage, finder153s or
\nother fee or commission in connection with the transactions contemplated by this
\nAgreement or the Ancillary Agreement based upon arrangements made by or on
\nbehalf of the Purchaser. The Purchaser shall be solely responsible for payment
\nof the fees and expenses of Barclays Capital, Inc.<\/p>\n Section 4.07<\/u> BSC153s Representations<\/u>. The Purchaser is purchasing
\nthe Purchased Assets and assuming the Assumed Liabilities based solely on the
\nresults of its inspections and investigations, and not on any representation or
\nwarranty of BSC or any Seller not expressly set forth in this Agreement. The
\nPurchaser hereby agrees and acknowledges that other than the representations and
\nwarranties made in Article III, none of BSC, the Sellers, their Affiliates, or
\nany of their respective officers, directors, employees or representatives make
\nor have made any representation or warranty, express or implied, at law or in
\nequity, with respect to the Purchased Assets or the Business including as to
\nmerchantability or fitness for any particular use or purpose, the operation of
\nthe Business by the Purchaser after the Closing or the probable success or
\nprofitability of the Business after the Closing. Based on the inspections and
\ninvestigations referred to above and the representations and warranties set
\nforth in Article III, the Purchaser is relinquishing any right to any claim
\nbased on any representation or warranty other than those specifically included
\nin Article III.<\/p>\n ARTICLE V<\/strong><\/p>\nADDITIONAL AGREEMENTS<\/strong><\/p>\nSection 5.01<\/u> Conduct of Business Prior to the Closing<\/u>.<\/p>\n (a) BSC covenants and agrees that between the date hereof and the Closing,
\nBSC shall, and shall cause each Seller to:<\/p>\n 48<\/p>\n
\n(i) conduct the Business in the ordinary course consistent with past practice
\nin all material respects;<\/p>\n (ii) use commercially reasonable efforts to preserve intact in all material
\nrespects the business organization of the Business; and<\/p>\n (iii) use commercially reasonable efforts to preserve the goodwill and
\nrelationships with customers, distributors, sales agents, suppliers, licensees
\nand licensors and others having business dealings with the Business.<\/p>\n (b) BSC covenants and agrees that between the date hereof and the Closing (or
\nin the case of clause (i) below, between the date hereof and the Deferred
\nClosing Date for the Deferred Assets, or in the case of clauses (xiii) and (xiv)
\nbelow, between the date hereof and the Deferred Closing Date, or in the case of
\nclauses (ii), (iii) and (vii) below, between the date hereof and the Closing
\nDate for the Closing Transfer Employees and between the Closing Date and the
\napplicable Employee Transfer Date for the Cork Transfer Employees, the Fremont
\nTransfer Employees, the West Valley Transfer Employees, the Deferred Closing
\nTransfer Employees and the Delayed Transfer Employees) without the prior written
\nconsent of the Purchaser (such consent not to be unreasonably withheld, delayed
\nor conditioned), BSC will not, and will not permit the Sellers to, with respect
\nto the Business:<\/p>\n (i) sell, lease, transfer or otherwise dispose (other than the sale of
\ninventories in the ordinary course consistent with past practice) of or permit
\nor allow all or any portion of any of the Purchased Assets or the Deferred
\nAssets (whether tangible or intangible) or any Leased Real Property or the Cork
\nPurchaser Leased Facility to be subjected to any Encumbrance, other than
\nPermitted Encumbrances or Encumbrances that will be released at or prior to the
\nClosing (or the Deferred Closing in the case of the Deferred Assets);<\/p>\n (ii) grant, implement or announce any increase or decrease in the salaries,
\nwage rates, bonuses or other benefits payable by BSC or any of the Sellers to
\nany of the employees of the Business that would be Corresponding Transfer Date
\nEmployees pursuant to Section 6.01, other than as required by Law, pursuant to
\nany plans, programs or agreements existing on the date hereof or other ordinary
\nincreases consistent with the past practices of BSC, including ordinary course
\nannual grants of equity-based awards or as set forth in Section 3.14(j) of the
\nDisclosure Schedule;<\/p>\n (iii) establish, adopt or amend in any material respect any Plan covering any
\nemployees of the Business that would be Corresponding Transfer Date Employees
\npursuant to Section 6.01, except for such establishments, adoptions or
\namendments that are consistent with those made in respect of Plans covering
\nemployees of BSC Other Businesses or those required by Law;<\/p>\n (iv) change any method of accounting or accounting practice or policy or
\ninternal control procedures used by BSC (as it relates to the Business), other
\nthan such changes required by U.S. GAAP or Law;<\/p>\n 49<\/p>\n
\n(v) fail to exercise any rights of renewal with respect to any Leased Real
\nProperty or with respect to any lease affecting the Cork Purchaser Leased
\nFacility that by its terms would otherwise expire;<\/p>\n (vi) settle or compromise any material claims of BSC or the Sellers (to the
\nextent relating to the Business), other than settlements of any claims against
\nBSC or any Seller solely for money damages payable prior to the Closing Date;\n<\/p>\n (vii) transfer any Corresponding Transfer Date Employee to another business
\nunit of BSC or terminate the employment of any Corresponding Transfer Date
\nEmployee other than for cause;<\/p>\n (viii) enter into, extend, materially amend, cancel or terminate other than
\nfor cause (except with respect to any lease for a Transferred Site) any Material
\nContract or agreement which if entered into prior to the date hereof would be a
\nMaterial Contract, other than customer or supplier contracts in the ordinary
\ncourse of business consistent with past practice;<\/p>\n (ix) acquire any material asset or property primarily related to the Business
\nother than in the ordinary course consistent with past practice;<\/p>\n (x) delay payment of any account payable or other Liability of the Business
\nbeyond its due date or the date when such Liability would have been paid in the
\nordinary course of business consistent with past practice;<\/p>\n (xi) materially amend the current insurance policies in respect of the
\nBusiness, except for such amendments that are consistent with those made in
\nrespect of insurance policies for BSC Other Businesses;<\/p>\n (xii) settle or compromise any material claims of BSC or the Sellers (to the
\nextent relating to the Business) that would constitute a Deferred Asset, other
\nthan settlements of any such claims against BSC or any Seller solely for money
\ndamages payable prior to the Deferred Closing Date;<\/p>\n (xiii) enter into any Contract that will be a Transferred Contract on the
\nDeferred Closing Date for a Deferred Closing Country or extend, materially
\namend, cancel or terminate other than for cause any Contract that will be a
\nTransferred Contract on the Deferred Closing Date for a Deferred Closing
\nCountry; or<\/p>\n (xiv) agree to take any of the actions specified in this Section 5.01(b),
\nexcept as expressly contemplated by this Agreement and the Ancillary Agreements.\n<\/p>\n 50<\/p>\n
\nSection 5.02<\/u> Access to Information<\/u>. (a) From the date hereof
\nuntil the Closing, upon reasonable notice, BSC shall, and shall cause its
\nofficers, directors, employees, agents, representatives, accountants and counsel
\nto, (i) afford the Purchaser and its officers, employees and authorized agents
\nand representatives reasonable access to the offices, properties and books and
\nrecords of BSC and the Sellers (to the extent relating to the Business) and (ii)
\nfurnish to the officers, employees, and authorized agents and representatives of
\nthe Purchaser such additional financial and operating data and other information
\nregarding the Business (or copies thereof) as the Purchaser may from time to
\ntime reasonably request (including, subject to the rights of any landlord,
\naccess to conduct an environmental site assessment of any Transferred Site,
\nprovided that such assessment shall not include any sampling or testing of any
\nsoil, groundwater, air or other environmental media, or building material,
\nwithout the express written consent of BSC, such consent to be withheld at the
\nsole discretion of BSC); provided<\/u> that any such access or furnishing of
\ninformation shall be conducted at the Purchaser153s expense, during normal
\nbusiness hours, under the supervision of BSC153s personnel and in such a manner as
\nnot to unreasonably interfere with the normal operations of the Business.
\nNotwithstanding anything to the contrary in this Agreement, BSC shall not be
\nrequired to disclose any information to the Purchaser if such disclosure would
\nbe reasonably likely to, (i) jeopardize any attorney-client or other legal
\nprivilege (provided that BSC shall, and shall cause the Sellers to, use
\ncommercially reasonable efforts to put in place an arrangement to permit such
\ndisclosure without loss of attorney-client privilege) or (ii) contravene any
\napplicable Laws, fiduciary duty or binding agreement entered into prior to the
\ndate hereof (provided that BSC shall, and shall cause the Sellers to, use
\ncommercially reasonable efforts to put in place an arrangement to permit such
\ndisclosure without violating such Law, duty or agreement).<\/p>\n (b) In order to facilitate the resolution of any claims made against or
\nincurred by BSC or the Sellers relating to the Business or for any other
\nreasonable purpose, for a period of seven years after the Closing or the
\nexpiration of the relevant period for the statutes of limitations, the Purchaser
\nshall (i) retain the books and records relating to the Business relating to
\nperiods prior to the Closing, and (ii) upon reasonable notice, afford the
\nofficers, employees, agents and representatives of BSC or the Sellers reasonable
\naccess (including the right to make, at BSC153s expense, photocopies), during
\nnormal business hours, to such books and records; provided<\/u> that the
\nPurchaser shall notify BSC at least 20 Business Days in advance of destroying
\nany such books and records in order to provide BSC the opportunity to copy such
\nbooks and records in accordance with this Section 5.02(b).<\/p>\n (c) In order to facilitate the resolution of any claims made by or against or
\nincurred by the Purchaser relating to the Business or for any other reasonable
\npurpose, for a period of seven years after the Closing or the expiration of the
\nrelevant period for the statutes of limitations, BSC shall (i) retain the books
\nand records relating to the Business relating to periods prior to the Closing
\nwhich shall not otherwise have been delivered to the Purchaser and (ii) upon
\nreasonable notice, afford the officers, employees, agents and representatives of
\nthe Purchaser reasonable access (including the right to make, at the Purchaser153s
\nexpense, photocopies), during normal business hours, to such books and records;
\nprovided<\/u> that BSC shall notify the Purchaser at least 20 Business Days in
\nadvance of destroying any such books and records in order to provide the
\nPurchaser the opportunity to copy such books and records in accordance with this
\nSection 5.02(c).<\/p>\n 51<\/p>\n
\n(d) Notwithstanding anything to the contrary in this Agreement, this Section
\n5.02 shall not apply to Tax Returns and related information (that are
\nexclusively addressed in Section 5.14).<\/p>\n Section 5.03<\/u> Confidentiality<\/u>. (a) The terms of the letter
\nagreement dated as of April 5, 2010 (the “Confidentiality Agreement<\/u>“)
\nbetween BSC and the Purchaser are hereby incorporated herein by reference and
\nshall continue in full force and effect until the Closing, at which time such
\nConfidentiality Agreement and the obligations of the Purchaser under this
\nSection 5.03 shall terminate; provided<\/u> that the Confidentiality Agreement
\nshall terminate only in respect of that portion of the Evaluation Material (as
\ndefined in the Confidentiality Agreement) relating to the Business. If this
\nAgreement is, for any reason, terminated prior to the Closing, the
\nConfidentiality Agreement shall nonetheless continue in full force and effect.\n<\/p>\n (b) Nothing provided to the Purchaser pursuant to Section 5.02(a) shall in
\nany way amend or diminish the Purchaser153s obligations under the Confidentiality
\nAgreement. The Purchaser acknowledges and agrees that any Evaluation Material
\nprovided to the Purchaser pursuant to Section 5.02(a) or otherwise by BSC, the
\nSellers or any officer, director, employee, agent, representative, accountant or
\ncounsel thereof shall be subject to the terms and conditions of the
\nConfidentiality Agreement.<\/p>\n Section 5.04<\/u> Regulatory and Other Authorizations<\/u>. (a) Each
\nparty shall use its reasonable best efforts to promptly obtain all
\nauthorizations, consents, orders and approvals of all Governmental Authorities
\nand officials that may be or become necessary for its execution and delivery of,
\nand the performance of its obligations pursuant to, this Agreement and the
\nAncillary Agreements and will cooperate fully with the other party in promptly
\nseeking to obtain all such authorizations, consents, orders and approvals,
\nincluding cooperation to enable the Purchaser to obtain, to the extent not
\nincluded in the Purchased Assets, all material Permits and Registrations
\nnecessary for the operation of the Business as currently conducted and as
\ncurrently proposed to be conducted and the ownership of the Purchased Assets.
\nEach party hereto agrees to make promptly (but in no event later than ten
\nBusiness Days of the date hereof) its respective filing, if necessary, pursuant
\nto the HSR Act with respect to the transactions contemplated by this Agreement
\nand to supply as promptly as practicable to the appropriate Governmental
\nAuthorities any additional information and documentary material that may be
\nrequested pursuant to the HSR Act. Each party hereto agrees to make as promptly
\nas practicable its respective filings and notifications, if any, under any other
\napplicable antitrust, competition, or trade regulation Law (together with the
\nHSR Act, the “Antitrust Laws<\/u>“), to supply as promptly as practicable to
\nthe appropriate Governmental Authorities any additional information and
\ndocumentary material that may be requested pursuant to the applicable Antitrust
\nLaw and not to enter into any transaction prior to the Closing that would
\nreasonably be expected to make it more difficult, or increase the time required,
\nto obtain any necessary consents or approvals under such Laws.<\/p>\n (b) Each party shall have the right to review in advance, and, to the extent
\nreasonably practicable, each will consult the other on, all information relating
\nto the other and each of their respective Affiliates that appears in any filing
\nmade with, or written materials submitted to, any Governmental Authority in
\nconnection with this Agreement and the<\/p>\n 52<\/p>\n
\ntransactions contemplated hereby; provided<\/u> that materials may be
\nredacted (x) to remove references concerning the valuation of the Purchased
\nAssets, (y) as necessary to comply with contractual arrangements, and (z) as
\nnecessary to address reasonable attorney-client or other privilege or
\nconfidentiality concerns.<\/p>\n (c) Without limiting the generality of the foregoing, the parties agree to
\nuse their reasonable best efforts to avoid or eliminate each and every
\nimpediment under any Antitrust Law that may be asserted by any antitrust or
\ncompetition Governmental Authority or any other party so as to enable the
\nparties hereto to close the transactions contemplated hereby as promptly as
\npracticable, and in any event prior to the End Date. In addition, the parties
\nshall use their reasonable best efforts to defend through litigation on the
\nmerits any claim asserted in court by any party in order to avoid entry of, or
\nto have vacated or terminated, any decree, order or judgment (whether temporary,
\npreliminary or permanent) that would prevent the Closing prior to the End Date.
\nNotwithstanding anything to the contrary in this Agreement, in connection with
\nthe receipt of any necessary approvals under the HSR Act or any other Antitrust
\nLaw, neither the Purchaser nor any of its Affiliates shall be required to divest
\nor hold separate any material assets or business.<\/p>\n (d) Each party to this Agreement shall promptly notify the other party of any
\ncommunication it or any of its Affiliates receives from any Governmental
\nAuthority relating to the transactions contemplated by this Agreement and permit
\nthe other party to review in advance (and to consider any comments made by the
\nother party in relation to) any proposed communication by such party to any
\nGovernmental Authority relating to such matters. Neither party to this Agreement
\nshall participate in or agree to participate in any substantive meeting,
\ntelephone call or discussion with any Governmental Authority in respect of any
\nfilings, investigation (including any settlement of the investigation),
\nlitigation or other inquiry relating to such matters unless it consults with the
\nother party in advance and, to the extent permitted by such Governmental
\nAuthority, gives the other party the opportunity to attend and participate in
\nsuch meeting, telephone call or discussion. The parties to this Agreement will
\ncoordinate and cooperate fully with each other in exchanging such information
\nand providing such assistance as the other party may reasonably request in
\nconnection with the foregoing and in seeking early termination of any applicable
\nwaiting periods, including under the HSR Act. Each party to this Agreement will
\nprovide the outside legal counsel for the other party with copies of all
\ncorrespondence, filings or communications between them or any of their
\nrepresentatives, on the one hand, and any Governmental Authority or members of
\nits staff, on the other hand, with respect to the transactions contemplated by
\nthis Agreement; provided<\/u> that materials may be redacted (x) to remove
\nreferences concerning the valuation of the Purchased Assets, (y) as necessary to
\ncomply with contractual arrangements, and (z) as necessary to address reasonable
\nattorney-client or other privilege or confidentiality concerns.<\/p>\n (e) Each party to this Agreement shall (i) subject to Section 5.04(d) above,
\nrespond as promptly as reasonably practicable to any inquiries or requests for
\nadditional information and documentary material received from any Governmental
\nAuthority in connection with any antitrust or competition matters related to
\nthis Agreement and the transactions contemplated by this Agreement, (ii) not
\nextend any waiting period or agree to refile under the HSR Act (except with the
\nprior written consent of the other party hereto, which consent shall not be
\nunreasonably withheld, conditioned or delayed) and (iii) not enter into any
\nagreement with<\/p>\n 53<\/p>\n
\nany Governmental Authority agreeing not to consummate the transactions
\ncontemplated by this Agreement.<\/p>\n Section 5.05<\/u> Consents<\/u>. (a) Each party hereto agrees to use
\ncommercially reasonable efforts to obtain any consents, approvals and
\nauthorizations not contemplated by Section 5.04 that may be required in
\nconnection with the transactions contemplated by this Agreement and the
\nAncillary Agreements. In furtherance of the foregoing, the parties further agree
\nas set forth in Schedule 5.05.<\/p>\n (b) Each party hereto agrees that, in the event that any consent, approval or
\nauthorization necessary to preserve for the Business any right or benefit under
\nany Contract to which BSC or any Seller is a party is not obtained prior to the
\nClosing, BSC will, and will cause the Sellers to, subsequent to the Closing,
\ncooperate with the Purchaser in attempting to obtain such consent, approval or
\nauthorization as promptly thereafter as practicable. If such consent, approval
\nor authorization cannot be obtained, BSC shall, and shall cause the Sellers to,
\nuse their commercially reasonable efforts to provide the Purchaser with the
\nrights and benefits of the affected Contract for the term of such Contract, and,
\nif BSC and the Sellers provide such rights and benefits, the Purchaser, as the
\ncase may be, shall assume the obligations and burdens thereunder to the same
\nextent provided in Schedule 2.02(a)(i) in respect of Transferred Contracts and
\nto the extent the obligations and burdens are not substantially different than
\nthe obligations and burdens on BSC or Sellers under such Contract as of the
\nClosing Date and do not include any Excluded Liabilities set forth in Sections
\n2.02(b)(i) through (xiv).<\/p>\n Section 5.06<\/u> Retained Names and Marks<\/u>. (a) The Purchaser hereby
\nacknowledges that all right, title and interest in and to the “BOSTON
\nSCIENTIFIC”, “BSCI” and “BSC” names, together with all names that resemble the
\nforegoing so as to be likely to cause confusion or mistake or to deceive, and
\nall trademarks, service marks, Internet domain names, tag lines, logos, trade
\nnames, trade dress, packaging designs, media branding designs, company names and
\nother identifiers of source or goodwill containing or incorporating any of the
\nforegoing (collectively, the “Retained Names and Marks<\/u>“) shall be
\nretained by BSC or any of its Affiliates, and that, except as expressly provided
\nbelow, any and all right of the Purchaser to use the Retained Names and Marks
\nhereunder shall terminate as of the Closing and shall immediately revert to BSC,
\nalong with any and all goodwill associated therewith. The Purchaser further
\nacknowledges that it is not acquiring any rights to use the Retained Names and
\nMarks, except as expressly provided herein.<\/p>\n (b) After the Closing Date, the Purchaser shall be entitled to use, solely in
\nconnection with the operation of the Business as operated in all material
\nrespects immediately prior to the Closing, all of its existing stocks of signs,
\nletterheads, invoice stock, advertisements and promotional materials, inventory,
\npackaging and other documents and materials (“Existing Stock<\/u>“) containing
\nthe Retained Names and Marks, provided that the Purchaser shall use commercially
\nreasonable efforts to remove, or cease using the Retained Names and Marks (or in
\nthe case of advertisements, promotional materials, inventory and packaging,
\nover-label or re-sticker such Existing Stock so as to conceal such Retained
\nNames and Marks) as promptly as practicable after the Closing. After the twelve
\n(12) month anniversary of the Closing Date (or until such Existing Stock is
\nexhausted in the case of the inventory of any Product for which the Retained
\nNames and Marks are embedded in such Product as part of the manufacturing
\nprocess<\/p>\n 54<\/p>\n
\nand not reasonably capable of being stickered or labeled), the Purchaser
\nshall have no right to use the Retained Names and Marks hereunder and shall have
\nremoved or obliterated all Retained Names and Marks from such Existing Stock or
\nceased using such Existing Stock (or in the case of advertisements, promotional
\nmaterials, inventory and packaging, shall have over-labeled or re-stickered such
\nExisting Stock so as to conceal such Retained Names and Marks).<\/p>\n (c) Except as expressly provided in this Section 5.06, no other right to use
\nthe Retained Names and Marks is granted by BSC to the Purchaser or its
\nAffiliates whether by implication or otherwise, and nothing hereunder permits
\nthe Purchaser or its Affiliates to use the Retained Names and Marks in any
\nmanner other than in connection with Existing Stock. The Purchaser shall ensure
\nthat all its uses of the Retained Names and Marks as provided in this Section
\n5.06 shall be only with respect to goods and services of a level of quality
\ncommensurate with the quality of goods and services with respect to which the
\nRetained Names and Marks were used in the Business prior to the Closing. Any and
\nall goodwill generated by the use of the Retained Names and Marks under this
\nSection 5.06 shall inure solely to the benefit of BSC. The Purchaser or its
\nAffiliates shall not use the Retained Names and Marks hereunder in any manner
\nthat may damage or tarnish the reputation of BSC or the goodwill associated with
\nthe Retained Names and Marks. For the avoidance of doubt, nothing in this
\nSection 5.06 shall preclude the Purchaser and its Affiliates from keeping
\nrecords and other historical or archived documents containing or referencing the
\nRetained Names and Marks or referring to the historical fact that the Business
\nwas previously conducted under the Retained Names and Marks, provided that with
\nrespect to any such reference, the Purchaser shall not use the Retained Names
\nand Marks to promote any products or services and the Purchaser shall make
\nexplicit that the Business is no longer affiliated with BSC, the Sellers or any
\nof their Affiliates.<\/p>\n (d) The Purchaser agrees that BSC shall have no responsibility for claims by
\nthird parties arising out of, or relating to, the use by the Purchaser of any
\nRetained Names and Marks after the Closing, except as provided under Article
\nVIII. In addition to any and all other available remedies, and except as
\nprovided pursuant to Article VIII, the Purchaser shall indemnify and hold
\nharmless BSC and its Affiliates, and their officers, directors, employees,
\nagents, successors and assigns, from and against any and all such claims that
\nmay arise out of the use of the Retained Names and Marks by the Purchaser (i) in
\naccordance with the terms and conditions of this Section 5.06, other than such
\nclaims that the Retained Names and Marks infringe the Intellectual Property
\nrights of any third party, or (ii) in violation of or outside the scope
\npermitted by this Section 5.06. Notwithstanding anything in this Agreement to
\nthe contrary, the Purchaser hereby acknowledges that in the event of any breach
\nor threatened breach of this Section 5.06, BSC, in addition to any other
\nremedies available to it, shall be entitled to seek a preliminary injunction,
\ntemporary restraining order or other equivalent relief restraining the Purchaser
\nand any of its Affiliates from any such breach or threatened breach.<\/p>\n Section 5.07<\/u> Notifications<\/u>. Until the Closing, each party
\nhereto shall promptly notify the other party in writing of any fact, change,
\ncondition, circumstance or occurrence or nonoccurrence of any event of which it
\nis aware that will or is reasonably likely to result in any breach of a
\nrepresentation or warranty or covenant of such party, which breach would
\nreasonably be expected to result in any of the conditions set forth in Article
\nVII of this Agreement becoming incapable of being satisfied. The delivery of
\nnotice pursuant to this Section 5.07 shall not limit or otherwise affect the
\nremedies available hereunder to the party<\/p>\n 55<\/p>\n
\nreceiving such notice or the representations or warranties of the parties or
\nthe conditions to the obligations of the parties hereto.<\/p>\n Section 5.08<\/u> Bulk Transfer Laws<\/u>. Each party hereby waives
\ncompliance by the other parties with any applicable bulk sale or bulk transfer
\nlaws of any jurisdiction in connection with the sale of the Purchased Assets to
\nthe Purchaser.<\/p>\n Section 5.09<\/u> Audited Special Purpose Financial Statements<\/u>. BSC
\nhas retained Ernst & Young LLP to audit the unaudited special purpose
\nstatement of assets to be acquired and liabilities to be assumed of the Business
\nfor the fiscal years ended as of December 31, 2008 and December 31, 2009 and the
\nrelated unaudited special purpose statements of revenue and direct expenses of
\nthe Business and prior to the Closing shall (i) deliver to the Purchaser such
\naudited special purpose financial statements (the “Audited Special Purpose
\nFinancial Statements<\/u>“) and (ii) after the execution by the Purchaser of such
\nreasonable acknowledgement or non-reliance letters as BSC153s auditors may
\nrequest, permit access to the work papers related thereto; provided<\/u> that
\nany information in such workpapers not pertaining to the Business shall be
\nredacted prior to access by the Purchaser of such workpapers (provided that such
\nredaction shall not impair any information pertaining to the Business).<\/p>\n Section 5.10<\/u> Non-Solicitation<\/u>. (a) BSC shall not, and shall
\ncause its Affiliates not to, without the prior written consent of the Purchaser
\nor except as expressly provided in any Ancillary Agreement, for a period of 18
\nmonths from the applicable Employee Transfer Date, directly or indirectly,
\nsolicit for employment or hire any Transferred Employee whose employment was
\ntransferred as of such Employee Transfer Date; provided<\/u> that (i) BSC and
\nits Affiliates are not prohibited from employing any such person who contacts
\nBSC or any such Affiliate on his or her own initiative and without any direct or
\nindirect solicitation by BSC or such Affiliate, and (ii) the term “solicit for
\nemployment” shall not be deemed to include general solicitations of employment
\nnot specifically directed toward any such Person.<\/p>\n (b) The Purchaser shall not, and shall cause its Affiliates not to, without
\nthe prior written consent of BSC or except as expressly provided in any
\nAncillary Agreement, for a period of (x) except as otherwise provided in clause
\n(y) below, 18 months from the Closing Date in the case of clause (I) below and
\n12 months from the Closing Date in the case of clause (II) below, directly or
\nindirectly, solicit for employment or hire any individual who is employed by BSC
\nor any of its Affiliates as of the date hereof (or at any time during such
\nperiod) and (I) becomes known to the Purchaser or any of its Affiliates or any
\nofficer, director, employee, agent or advisor of the Purchaser or its Affiliates
\nas a result of the transactions contemplated by this Agreement or the Ancillary
\nAgreements or (II) is recommended as a potential employee of the Purchaser or
\nany of its Affiliates (who, when hired, would be classified as a Manager or
\nabove in the Purchaser153s human resources system) by any of the individuals who
\nreceived a Special Retention Bonus Program Participation Notice as described in
\nSection 6.03 of the Disclosure Schedule, to the individual with responsibility
\nfor hiring decisions on behalf of the Purchaser or any of its Affiliates or (y)
\n18 months from the Cork Manufacturing Transfer Date, the Fremont Manufacturing
\nTransfer Date or the West Valley Manufacturing Transfer Date (as applicable),
\ndirectly or indirectly, solicit for employment or hire any individual (other
\nthan the Transferred Employees) who (A) is employed in the Cork Facility or the
\nFremont manufacturing facility by BSC or any of its Affiliates as of the Cork
\nManufacturing Transfer Date or the Fremont<\/p>\n 56<\/p>\n
\nManufacturing Transfer Date, respectively, or (B) was employed in the West
\nValley Facility prior to the West Valley Manufacturing Transfer Date and is
\nemployed elsewhere by BSC or any of its Affiliates as of the West Valley
\nManufacturing Transfer Date; provided<\/u> that (i) the Purchaser and its
\nAffiliates are not prohibited from employing any such person who contacts the
\nPurchaser or any such Affiliate on his or her own initiative and without any
\ndirect or indirect solicitation by the Purchaser or such Affiliate, and (ii) the
\nterm “solicit for employment” or “solicitation” shall not be deemed to include
\ngeneral solicitations of employment not specifically directed toward any such
\nperson.<\/p>\n Section 5.11<\/u> Non-Competition<\/u> (a) Except as otherwise
\nspecifically provided in any of the Ancillary Agreements, for a period of three
\nyears after the Closing Date, the Purchaser shall not, and shall cause its
\nAffiliates not to, directly or indirectly, anywhere in the world, use in the
\nRestricted Areas, except in those Restricted Areas described in clauses (d), (f)
\nand (h) of the definition of Restricted Areas, any of (i) the products set forth
\non Schedules A through C to the Technology Transfer Agreement, including as
\nimproved during such three year period, (ii) the Transferred Intellectual
\nProperty, (iii) the Intellectual Property provided under the Transferred IP
\nAgreements or (iv) the Transferred Products Know-how (which, as used in this
\nSection 5.11(a), has the meaning assigned to it in the Technology Transfer
\nAgreement) licensed under the Technology Transfer Agreement.<\/p>\n (b) Except as otherwise specifically provided in any of the Ancillary
\nAgreements, for either (x) a period of five years after the Closing Date or (y)
\na period of three years after the last Facility Transfer Date, whichever is
\nlonger, BSC shall not, and shall cause its Affiliates not to, directly or
\nindirectly, anywhere in the world, engage in the Business or, without the prior
\nwritten consent of the Purchaser, directly or indirectly, own an interest in,
\nmanage, operate, join, control or participate in or be connected with, as a
\nmember, agent, partner, stockholder or investor, any Person anywhere that
\nengages in the Business; provided<\/u> that, for the purposes of this Section
\n5.11(b), (i) the ownership of securities having no more than five percent of the
\noutstanding voting power of any such Person which are listed on any national
\nsecurities exchange shall not be deemed to be in violation of this Section
\n5.11(b) as long as BSC and its Affiliates have no other connection or
\nrelationship with such Person, (ii) the ownership of no more than ten (10)
\npercent of the outstanding ownership interest in any fund which invests in,
\nmanages or operates such Person shall not be deemed to be in violation of this
\nSection 5.11(b) so long as (A) the principal purpose of such fund is not to make
\ninvestments in Persons that engage in the Business, and (B) BSC or the Affiliate
\nthereof owning such interest does not control or exercise any influence over
\nsuch Person, and (ii) BSC and its Affiliates shall not be prohibited from
\nacquiring shares of capital stock or assets of any Person (an “Acquired
\nBusiness<\/u>“) that has operations that would otherwise be restricted under this
\nSection 5.11(b) or from continuing to operate such Acquired Business if (A) the
\nprimary purpose or effect of such acquisition shall not be for BSC or its
\nAffiliates to engage in the Business, (B) the Acquired Business is not primarily
\nengaged in any business that engages in the Business, and (C) either (x) the
\nannual net revenues of the portion of the Acquired Business that engages in the
\nBusiness do not exceed $30 million for the most recently completed fiscal year
\nof the Acquired Business prior to such acquisition or (y) if the annual net
\nrevenues of the portion of the Acquired Business that engages in the Business
\nexceed $30 million for the most recently completed fiscal year or in any twelve
\n(12) month period ending after the Closing Date (but prior to the expiration of
\nthe period set forth in the preceding sentence), BSC and its Affiliates shall
\nsell or otherwise dispose of that portion of<\/p>\n 57<\/p>\n
\nthe Acquired Business that engages in the Business no later than twelve (12)
\nmonths after either the date of such acquisition or the last day of the last
\nmonth of the twelve month period in which the aggregate net revenues of the
\nportion of the Acquired Business that engaged in the Business exceeded $30
\nmillion, as applicable. Notwithstanding anything to the contrary, nothing in
\nthis Section 5.11(b) shall apply to any Person or its Affiliates (other than BSC
\nand its Affiliates prior to the date of acquisition (and their respective assets
\nhowever held)) that acquires a majority of the capital stock of BSC and that
\nprior to such acquisition already was engaged in the Business.<\/p>\n (c) If any covenant in this Section 5.11 is found to be invalid, void or
\nunenforceable in any situation in any jurisdiction by a final determination of a
\ncourt or any other Governmental Authority of competent jurisdiction, the parties
\nagree that: (i) such determination will not affect the validity or
\nenforceability of (A) the offending term or provision in any other situation or
\nin any other jurisdiction or (B) the remaining terms and provisions of this
\nSection 5.11 in any situation in any jurisdiction; (ii) the offending term or
\nprovision will be reformed rather than voided and the court or Governmental
\nAuthority making such determination will have the power to reduce the scope,
\nduration or geographical area of any invalid or unenforceable term or provision,
\nto delete specific words or phrases, or to replace any invalid or unenforceable
\nterm or provision with a term or provision that is valid and enforceable and
\nthat comes closest to expressing the intention of the invalid or unenforceable
\nprovision, in order to render the restrictive covenants set forth in this
\nSection 5.11 enforceable to the fullest extent permitted by applicable Law; and
\n(iii) the restrictive covenants set forth in this Section 5.11 will be
\nenforceable as so modified.<\/p>\n (d) Nothing in this Section 5.11 shall prevent Purchaser or its Affiliates
\nfrom reprocessing any medical device for any purpose for use in any field;
\nprovided<\/u> that the foregoing shall not permit the Purchaser or any of its
\nAffiliates to market or promote any Product described in clause (i) of Section
\n5.11(a) in a manner that violates Section 5.11(a).<\/p>\n Section 5.12<\/u> Collection of Accounts Receivables; Inventory<\/u>.\n<\/p>\n (a) To the extent any amounts with respect to Accounts Receivable are
\nreceived by the Purchaser or any of its Affiliates that arise from the conduct
\nof the Business prior to 11:59 pm on the day immediately preceding the Closing
\nDate or by BSC or any of its Affiliates that arise from the conduct of the
\nBusiness after such time, the Purchaser or BSC, as the case may be, shall
\npromptly remit such amounts to the other.<\/p>\n (b) BSC covenants and agrees that the value of gross finished goods inventory
\nincluded in the Purchased Assets as of the Closing Date, determined in a manner
\nconsistent with the Unaudited Special Purpose Financial Statements, shall not be
\nless than the amount set forth on Schedule 5.12(b).<\/p>\n Section 5.13<\/u> Further Action<\/u>. The parties hereto shall use all
\nreasonable efforts to take, or cause to be taken, all appropriate action, to do
\nor cause to be done all things necessary, proper or advisable under applicable
\nLaw, the Transferred Contracts or otherwise, and to execute and deliver such
\ndocuments and other papers, as may be required to carry out the provisions of
\nthis Agreement and consummate and make effective the transactions contemplated
\nby this Agreement and the Ancillary Agreements.<\/p>\n 58<\/p>\n
\nSection 5.14<\/u> Tax Cooperation and Exchange of Information<\/u>. BSC
\nand the Purchaser will provide each other with such cooperation and information
\nas either of them reasonably may request of the other in filing any Tax Return,
\namended Tax Return or claim for refund, determining any liability for Taxes or a
\nright to a refund of Taxes or participating in or conducting any audit or other
\nproceeding in respect of Taxes relating to this Agreement, the Purchased Assets
\nor the Business. Such cooperation and information shall include providing copies
\nof relevant Tax Returns or portions thereof, together with accompanying
\nschedules and related work papers and documents relating to rulings or other
\ndeterminations by taxing authorities; provided<\/u> that in no event shall BSC
\nor the Purchaser or any of their respective Affiliates be required to provide
\naccess to or copies of any income Tax Returns of BSC, the Purchaser, or any such
\nAffiliate including the Sellers. BSC and the Purchaser will make themselves (and
\ntheir respective employees) available, on a mutually convenient basis, to
\nprovide explanations of any documents or information provided under this Section
\n5.14. Each of BSC and the Purchaser will retain all Tax Returns, schedules and
\nwork papers and all material records or other documents in its possession (or in
\nthe possession of its Affiliates) relating to Tax matters relevant to the
\nPurchased Assets for the taxable period first ending after the Closing and for
\nall prior taxable periods until the later of (i) the expiration of the statute
\nof limitations of the taxable periods to which such Tax Returns and other
\ndocuments relate, without regard to extensions, or (ii) six years following the
\ndue date (without extension) for such Tax Returns. After such time, before BSC
\nor the Purchaser shall dispose of any such documents in its possession (or in
\nthe possession of its Affiliates), the other party shall be given the
\nopportunity, after 90 days153 prior written notice, to remove and retain all or
\nany part of such documents as such other party may select (at such other party153s
\nexpense). Any information obtained under this Section 5.14 shall be kept
\nconfidential, except as may be otherwise necessary in connection with the filing
\nof Tax Returns or claims for refund or in conducting an audit or other
\nproceeding. Any out-of-pocket expenses incurred in furnishing such information
\nor assistance pursuant to this Section 5.14 shall be borne by the party
\nrequesting it.<\/p>\n Section 5.15<\/u> Conveyance Taxes<\/u>. Conveyance Taxes attributable to
\nthe sale of the Purchased Assets or the Business shall be borne fifty percent
\n(50%) by the Purchaser and fifty percent (50%) by BSC and the Sellers when due.
\nWithout limiting the foregoing, each party shall complete and execute a resale
\nor other exemption certificate with respect to inventory and similar items sold
\nhereunder, and shall provide the other party with an executed copy thereof. BSC,
\nthe Sellers and the Purchaser shall use reasonable efforts and cooperate in good
\nfaith to exempt the sale and transfer of the Purchased Assets from any such
\nConveyance Taxes. The Purchaser, BSC and the Sellers shall cooperate in the
\npreparation and filing of all necessary Tax Returns or other documents with
\nrespect to all such Conveyance Taxes; provided<\/u>, however, that in the
\nevent any such Tax Return requires execution by any Seller, the Purchaser shall
\nprepare and deliver to such Seller a copy of such Tax Return at least five (5)
\ndays before the due date thereof, and such Seller shall promptly execute such
\nTax Return and deliver it to the Purchaser, which shall cause it to be filed.
\nThe parties shall provide reimbursement for any Tax described in this Section
\n5.15 that is paid by the other parties as may be necessary such that the
\nPurchaser, on the one hand, and BSC and the Sellers, on the other each pay fifty
\npercent (50%) of such Conveyance Taxes.<\/p>\n Section 5.16<\/u> VAT and Recoverable Taxes<\/u>. Save as otherwise
\nprovided in this Agreement, Recoverable Taxes shall be borne entirely by the
\nparty entitled to<\/p>\n 59<\/p>\n
\nrecover such Taxes under applicable Law. VAT, to the extent not considered
\nRecoverable Taxes, shall be paid by the Purchaser on any supplies effected for
\nVAT purposes under or pursuant to the terms of this Agreement in accordance with
\nthe provisions of this Section 5.16. The Purchaser, BSC and the Sellers shall
\ncooperate to file any Tax Return relating to VAT or Recoverable Taxes, to the
\nextent necessary. To the extent that any VAT is chargeable on any Purchased
\nAssets transferred pursuant to this Agreement, the transferring person (the
\n“Supplier<\/u>“) shall deliver to the recipient (the “Recipient<\/u>“): (i)
\na valid VAT invoice where required by applicable Law or practice and (ii) any
\nother documentation as may be reasonably requested by the Recipient to assist it
\nto recover the VAT chargeable or payable, in each case, in such form and within
\nsuch timing as may be required by Law. An amount equal to the amount of VAT
\nchargeable or payable by the Supplier on the Purchased Assets transferred shall
\nbe paid in addition to the consideration provided in this Agreement, by the
\nRecipient to the Supplier within five (5) Business Days of receipt of a valid
\nVAT invoice (or where no invoice is required, within five (5) Business Days of
\ndemand) or, if later, two (2) Business Days before the date on which the
\nobligation to account for VAT would have had to be discharged in order to avoid
\nliability to interest or a charge or penalty. The Supplier shall account for all
\namounts in respect of VAT paid to it by the Recipient to the appropriate Tax
\nAuthorities in compliance with applicable Laws. The Supplier and the Recipient
\nshall use reasonable efforts and cooperate in good faith to determine the
\nappropriate rate of VAT and to exempt the transfer of the Purchased Assets from
\nany VAT and\/or, where available, to apply for a specific VAT-relief for a
\n“Transfer Of a Going Concern” (TOGC). This shall include, but not be limited to,
\ncooperation to ensure that the transfer of the Purchased Assets is treated as
\nthe transfer of a business or part thereof under Articles 19 and 29 of the VAT
\nDirective (2006\/112\/EC) and is not a supply of goods or the supply of services.
\nIn the event that VAT is incorrectly charged by the Supplier, and the Supplier
\nis entitled to recover the amount of incorrectly charged VAT, the Supplier shall
\nuse its reasonable best efforts to recover such amount and shall pay such
\nrecovered amount over to the Recipient within three (3) Business Days after
\nreceipt thereof.<\/p>\n Section 5.17<\/u> Proration of Taxes<\/u>. Except as provided in Section
\n5.15 or 5.16, the portion of any Tax payable with respect to a Straddle Period
\nthat is allocable to the portion of the Straddle Period ending on the Closing
\nDate or Facility Transfer Date applicable to the Purchased Asset or Transferred
\nEmployee (or, with respect to any Deferred Asset or Deferred Closing Transfer
\nEmployee, the applicable Deferred Closing Date) shall be (i) in the case of
\nproperty and similar ad valorem Taxes and any other Taxes not described in
\nclause (ii) below relating to the Purchased Assets or the Business, equal to the
\namount of such Taxes for the entire Straddle Period multiplied by a fraction,
\nthe numerator of which is the number of days during the Straddle Period that
\nfall on or prior to the Closing Date, Facility Transfer Date or Deferred Closing
\nDate, as applicable, and the denominator of which is the number of days in the
\nentire Straddle Period, and (ii) in the case of sales and similar Taxes,
\nemployment Taxes and other Taxes that are readily apportionable based on an
\nactual or deemed closing of the books relating to the Purchased Assets or the
\nBusiness, computed as if such taxable period ended as of the close of business
\non the Closing Date or Facility Transfer Date applicable to the Purchased Asset
\nor Transferred Employee or, with respect to any Deferred Asset or Deferred
\nClosing Transfer Employee, the applicable Deferred Closing Date. If any Taxes
\nsubject to proration pursuant to the preceding sentence are paid by the
\nPurchaser or its Affiliates, on the one hand, or BSC or its Affiliates, on the
\nother hand, then the proportionate amount of such Taxes for which the non-paying
\nparty is responsible under the terms of this<\/p>\n 60<\/p>\n
\nAgreement shall be promptly reimbursed to the paying party by the non-paying
\nparty after the payment of such Taxes. Any refunds, credits or similar benefits
\nrelating to such Taxes shall be allocated between the Purchaser and BSC in the
\nsame manner that the Taxes to which the refunds, credits or similar benefits
\nrelate were paid, and BSC shall promptly pay to the Purchaser, or the Purchaser
\nshall promptly pay to BSC, as the case may be, the portion of such refund,
\ncredit or similar benefit received or realized that is allocable to the other
\nparty hereunder.<\/p>\n Section 5.18<\/u> BSC Compensation Tax Items<\/u>. (a) BSC and the
\nPurchaser acknowledge and agree that BSC and its Affiliates will take into
\naccount any BSC Compensation Tax Items in computing liability for U.S. federal,
\nstate and local income Taxes (and shall be responsible for all withholding and
\ninformation reporting with respect to such amounts), and that neither the
\nPurchaser nor any of its Affiliates will take into account any such BSC
\nCompensation Tax Items in computing liability for such Taxes except as provided
\nin this Section 5.18 or as otherwise required by applicable Law. The same
\napproach shall be followed for purposes of computing liability for Taxes outside
\nthe United States, except to the extent the Laws of a particular jurisdiction
\nprovide to the contrary.<\/p>\n (b) If BSC determines that, under applicable Law, neither BSC nor any of its
\nAffiliates is permitted to take into account any BSC Compensation Tax Item, and
\nthe Purchaser or any of its Affiliates determines in good faith that it is
\npermitted or required to take into account such BSC Compensation Tax Item in
\ncomputing its income Tax liability, which determination shall be conclusive and
\nbinding on the parties, then the Purchaser shall calculate in good faith and pay
\nto BSC the amount of any actual income Tax savings realized in the year such BSC
\nCompensation Tax Item is taken into account as a result of the BSC Compensation
\nTax Item, it being understood that an actual income Tax saving shall only be
\ntreated as occurring in a year to the extent that the Purchaser153s actual income
\nTax payable in respect of such year without taking the BSC Compensation Tax Item
\ninto account is greater than the amount of actual income tax that would have
\nbeen payable in such year had such BSC Compensation Tax Item not been taken into
\naccount. The Purchaser shall make such payment, reduced by all expenses
\n(including any employment Taxes) incurred by the Purchaser or any of its
\nAffiliates in connection with this Section 5.18, to BSC, and provide BSC with
\ncopies of the calculations of such actual income Tax savings, within ninety (90)
\ndays following the filing of the Purchaser153s income tax Return for the year in
\nwhich such BSC Compensation Tax Item is realized. The Purchaser153s calculation of
\nsuch Tax savings shall be binding and conclusive on the parties in the absence
\nof manifest error. In the event that the Purchaser153s deduction of any BSC
\nCompensation Tax Item is disallowed by any Governmental Authority in any audit,
\nlitigation, proceeding or otherwise, BSC shall repay to Purchaser the amount
\nPurchaser determines it had previously paid to BSC in respect of such disallowed
\nBSC Compensation Tax Item, together with any penalty, interest or other charges
\nimposed by any Governmental Authority in connection with such disallowance and
\nany other out of pocket expenses incurred by the Purchaser or any of its
\nAffiliates.<\/p>\n (c) In connection with any BSC Compensation Tax Items, BSC and the Purchaser
\nagree to provide each other with such cooperation and information as either of
\nthem reasonably may request of the other, as provided under Section 5.14, which
\ncooperation shall include providing information with respect to information
\nreporting and withholding requirements applicable to the exercise by Transferred
\nEmployees and Former Employees of<\/p>\n 61<\/p>\n
\noptions to acquire BSC capital stock and the coordination of the responsible
\nparty for such reporting and withholding requirements.<\/p>\n Section 5.19<\/u> Tax Treatment of Deferred Transfers<\/u>. The parties
\nagree that (i) with respect to any Purchased Asset that is to be transferred to
\nthe Purchaser pursuant to the Separation Agreement and (ii) with respect to any
\nDeferred Asset that is to be transferred to the Purchaser on a Deferred Closing
\nDate, a completed sale shall not be treated as occurring for Tax purposes until
\nthe relevant Facility Transfer Date or Deferred Closing Date, as applicable, on
\nwhich legal title to the Purchased Asset passes to the Purchaser. Neither the
\nPurchaser nor BSC shall take (or cause any Affiliate to take) any position to
\nthe contrary in any Tax Return or other Tax filing, or in connection with a Tax
\naudit, litigation or other proceeding.<\/p>\n Section 5.20<\/u> Successor Employer<\/u>. BSC, the Sellers and the
\nPurchaser shall, to the extent possible, treat the Purchaser as a “successor
\nemployer” and BSC and the Sellers as “predecessors,” within the meaning of
\nSections 3121(a)(1) and 3306(b)(1) of the Code, with respect to Transferred
\nEmployees for purposes of Taxes imposed under the United States Federal
\nUnemployment Tax Act, as amended, or the United States Federal Insurance
\nContributions Act, as amended. Each of the Purchaser, BSC and the Sellers agrees
\nto adopt the “Standard Procedure” described in IRS Revenue Procedure 2004-53 and
\nfurnish a separate IRS Form W-2 to each Transferred Employee with respect to
\nwages paid by the Purchaser, on the one hand, and BSC and the Sellers, on the
\nother.<\/p>\n Section 5.21<\/u> Risk of Loss<\/u>. The risk of loss or damage by fire
\nor other casualty to any of the Transferred Sites or Tangible Personal Property
\nbefore the Closing is assumed by BSC. In the event that any of the Transferred
\nSites or Tangible Personal Property shall suffer any fire or casualty or any
\ninjury before the Closing, BSC agrees to (i) repair the damage (or cause the
\ndamage to be repaired by a landlord, as applicable) at its sole cost and expense
\nbefore the Closing Date, (ii) assign to the Purchaser the proceeds of all
\ninsurance coverage in respect of such loss so long as such proceeds are a
\nreasonable approximation of the cost of such repairs, or (iii) make an
\nappropriate reduction in the Initial Purchase Price based on a reasonable
\napproximation of the cost of such repair. Except as otherwise provided in the
\nSeparation Agreement, the risk of loss or damage by fire or other casualty to
\nany of the Transferred Sites or Tangible Personal Property after the Closing is
\nassumed by the Purchaser.<\/p>\n Section 5.22<\/u> Intercompany Arrangements<\/u>. Notwithstanding any
\nother provision of this Agreement to the contrary (other than pursuant to any
\nAncillary Agreement) as of the Closing, all services, commitments, agreements or
\nother arrangements that existed prior to the Closing between BSC and any Seller
\nor any other Affiliate of BSC with respect to the Business shall cease or be
\nterminated. Any such cessation or termination shall be without penalty to, and
\nshall not require any action by, the Purchaser or any of its Affiliates.<\/p>\n Section 5.23<\/u> Mixed Contracts<\/u>. Except as may otherwise be agreed
\nby the parties in writing, any Contract (other than any Transferred Contract) to
\nwhich BSC or any Seller is a party prior to the Closing, in each case, that
\ninures to the benefit or burden of each of the Business and the BSC Other
\nBusinesses, including those Contracts listed on Schedule 5.23 of the Disclosure
\nSchedule (a “Mixed Contract<\/u>“), shall, to the extent commercially
\nreasonable, be separated on or after the Closing so that each of the Purchaser
\nand BSC shall be entitled to the<\/p>\n 62<\/p>\n
\nrights and benefits and shall assume the related portion of any Liabilities
\ninuring to their respective businesses. If any Mixed Contract cannot be so
\nseparated, BSC and the Purchaser shall, and shall cause each of their respective
\nAffiliates to, take such other commercially reasonable efforts to cause (i) the
\nrights and benefits associated with that portion of each Mixed Contract that
\nrelates to the Business to be enjoyed by the Purchaser; (ii) the Liabilities
\nassociated with that portion of each Mixed Contract that relates to the Business
\nto be borne by the Purchaser; (iii) the rights and benefits associated with that
\nportion of each Mixed Contract that relates to the BSC Other Businesses to be
\nenjoyed by BSC; and (iv) the Liabilities associated with that portion of each
\nMixed Contract that relates to the BSC Other Businesses to be borne by BSC. The
\ncosts of such separation shall be borne by the parties in proportion to the
\nrights and benefits inuring to each of them under the Mixed Contract.
\nNotwithstanding anything to the contrary contained herein, the Liabilities to be
\nborne by the Purchaser under any Mixed Contracts hereunder shall not include and
\nthe Purchaser shall not assume or have any responsibility for, and BSC shall,
\nand shall cause the Sellers to, retain and be responsible for paying, performing
\nand discharging when due, any Excluded Liabilities set forth in Sections
\n2.02(b)(i) through (xiv).<\/p>\n Section 5.24<\/u> Schedules and Exhibits to Certain Ancillary
\nAgreements; OUS Transfer Agreements<\/u>. (a) The parties acknowledge that the
\nschedules and exhibits specified in Schedule 5.24(a) that are attached to the
\nforms of the Separation Agreement, the Transition Services Agreement, the Supply
\nAgreement and the Sales Agent Agreement are subject to modification between the
\ndate hereof and the Closing Date to the extent agreed by the parties, including
\nto provide for greater detail or specificity regarding the subject matter
\nthereof. The parties agree to negotiate in good faith any such modifications to
\nsuch schedules and exhibits prior to the Closing Date; provided<\/u> that the
\nparties hereby acknowledge and agree that, subject to their compliance with such
\nobligation to negotiate in good faith, failure to agree on any modifications to
\nsuch schedules and exhibits will not excuse either party from the performance of
\nany of its obligations hereunder, including its obligation to effect the Closing
\non the terms and subject to the conditions set forth in Article VII.<\/p>\n (b) BSC and the Purchaser agree to negotiate in good faith to make any
\nchanges necessary to the form of OUS Transfer Agreement attached hereto to
\nconform to applicable local Law, provided that the economic and legal substance
\nof the transactions contemplated by this Agreement are not affected by such
\nchanges. In the event of any inconsistency between this Agreement and any OUS
\nTransfer Agreement, the terms of this Agreement shall prevail; provided<\/u>
\nthat in the case of any inconsistency that relates solely to the timing and
\nspecific terms of the transfer of title to one or more Purchased Assets in a
\nparticular jurisdiction, the OUS Transfer Agreement in that particular
\njurisdiction shall prevail.<\/p>\n Section 5.25<\/u> IP Docket; Assignment Documents<\/u>. (a) Prior to the
\nClosing, BSC shall provide the Purchaser with a schedule that lists all of the
\nregistration, maintenance, annuity and renewal fees, and corresponding due
\ndates, that must be paid in order to maintain the Transferred Intellectual
\nProperty during the sixty (60) day period following the Closing. Within sixty
\n(60) days after the Closing Date, BSC shall also deliver to the Purchaser all
\ninformation and documents in its possession, including all reasonably available
\nelectronically stored information and documents, for the Purchaser to maintain
\ncontinuity of prosecution of all pending applications within the Transferred
\nIntellectual Property.<\/p>\n 63<\/p>\n
\n(b) Following the Closing Date and upon the written request of the Purchaser,
\nBSC hereby agrees, at its sole expense, to use and shall cause its Sellers to
\nuse commercially reasonable efforts to promptly obtain and deliver to Purchaser
\nany existing patent assignment or other documents demonstrating ownership by BSC
\nor a Seller of the Transferred Intellectual Property, to the extent not already
\nprovided pursuant to Section 2.06(d).<\/p>\n Section 5.26<\/u> Additional Patents<\/u>. (a) The Purchaser shall within
\nten (10) years following the Closing Date, notify BSC in writing of any patent
\nissued, or patent application filed, prior to the Closing Date owned by or
\nlicensed to BSC or the Sellers as of the Closing Date that: (x) is neither
\nincluded in the Business Intellectual Property, nor licensed to the Purchaser
\npursuant to the Seller IP License Agreement; and (y) the Purchaser determines
\nmay be infringed by the import, use, manufacture, offer to sell or sale of
\n(“Covers<\/u>“) a Transferred Product (which, as used in this Section 5.26,
\nhas the meaning assigned to it in the Technology Transfer Agreement), as such
\nTransferred Product exists in, or is used or made by, the Business as conducted
\nby BSC or the Sellers as of the Closing Date. The rights in any such patent or
\npatent issuing from such application, as between the Parties, shall be assessed
\nas follows:<\/p>\n (i) if any claim of such patent Covers a Transferred Product, or method of
\nusing or making a Transferred Product, as such Transferred Product exists in, or
\nis used or made by, the Business as conducted by BSC or the Sellers as of the
\nClosing Date, and does not also Cover another commercialized or development
\nphase device, or the using or making of such a device, of BSC or any of its
\nAffiliates existing on or before the Closing Date, then BSC and the Purchaser
\nshall promptly execute (1) an assignment transferring ownership of or the
\nlicense to such patent to the Purchaser, and (2) an amendment to the Purchaser
\nIP License Agreement adding such patent as a Licensed Patent or Third Party
\nLicensed Patent thereunder, as applicable, which assignment and amendment will
\nbe effective as of the Closing Date;<\/p>\n (ii) if any claim of such patent Covers a Transferred Product, or method of
\nusing or making a Transferred Product, as such Transferred Product exists in, or
\nis used or made by, the Business as conducted by BSC or the Sellers of the
\nClosing Date, and also Covers another commercialized or development phase
\ndevice, or the using or making of such a device, of BSC or any of its Affiliates
\nexisting on or before the Closing Date, then such patent will be added to
\nSchedule A or C of the Seller IP License Agreement, as applicable, and BSC and
\nthe Purchaser shall promptly execute an amendment to the Seller IP License
\nAgreement, which amendment will be effective as of the Closing Date; and<\/p>\n (iii) if no claim of such patent Covers a Transferred Product, or method of
\nusing or making a Transferred Product, as such Transferred Product exists in, or
\nis used or made by, the Business as conducted by BSC or the Sellers as of the
\nClosing Date, then BSC or the Seller shall retain the exclusive right, title and
\ninterest in any such patent.<\/p>\n 64<\/p>\n
\n(b) If a dispute arises under this Section 5.26, regarding (i) whether or not
\nthe patent or patent application identified by the Purchaser Covers a
\nTransferred Product, as such Transferred Product exists in, or is used or made
\nby, the Business as conducted by BSC or the Sellers as of the Closing Date; and,
\nif so, (ii) whether or not any claim of any such patent satisfies any one of
\nclauses (i) : (iii) of this Section 5.26, that dispute, as well as the selection
\nof a single arbitrator to arbitrate the dispute, will be arbitrated before the
\nAmerican Arbitration Association in Delaware under their Resolution of Patent
\nDisputes rules in a binding, non-appealable arbitration proceeding.<\/p>\n (c) If BSC or any of the Sellers chooses or is required by an arbitrator to
\nassign or license the rights to a patent or patent issuing from an application
\nto the Purchaser pursuant to this Section 5.26, then (i) BSC and the Sellers
\nshall have no liability (x) for failure of such identified patents or
\napplications to be so included in the Business Intellectual Property or licensed
\npursuant to the Seller IP License Agreement, or (y) arising out of BSC153s or the
\nSellers153 use or encumbering of such identified patents or applications prior to
\nreceipt of such written notice from the Purchaser, (ii) such assignment or
\nlicense shall only be granted to the fullest extent (if any) that BSC and the
\nSellers have the right to grant such assignment or (sub)license as of the date
\nof such assessment, and (iii) any royalties or fees paid or payable to BSC or
\nany of the Sellers by any third party following the Closing Date for a license
\nor transfer of any other interest, to the extent such royalties or fees are
\ndirectly attributable to the practice by such third party of a claim of or the
\ntransfer of, as applicable, any patent that is required to be assigned (but not
\nlicensed) to the Purchaser pursuant to this Section 5.26, shall be paid to the
\nPurchaser as of the date of notice given to BSC by the Purchaser.<\/p>\n ARTICLE VI<\/strong><\/p>\nEMPLOYEE MATTERS<\/strong><\/p>\nSection 6.01<\/u> Offers of Employment and Automatic Transfers<\/u>. (a)
\nExcept to the extent otherwise provided in the Transition Services Agreement,
\n(i) as of each applicable Employee Transfer Date, the Purchaser shall, solely as
\nrequired by applicable Transfer Law, automatically become the employer of the
\nCorresponding Transfer Date Employees and (ii) as of each applicable Employee
\nTransfer Date, and subject to (A) Purchaser153s satisfactory completion of
\nreasonable drug testing and reasonable criminal background check screening and
\n(B) OIG debar checking, sales representative credentialing and work
\nauthorization (including to Form I-9 documentation), as applicable and
\nreasonably necessary, (C) execution of non-compete\/confidentiality agreements
\nwith terms no more restrictive to the applicable employee than those currently
\nin effect with respect to similarly situated employees of the Purchaser and (D)
\nany other documents as required by applicable Law to effect employment
\n(collectively, the “Purchaser153s Employment Contingencies<\/u>“), the Purchaser
\nshall offer employment to the Corresponding Transfer Date Employees whose
\nemployment is not required to be transferred automatically pursuant to Transfer
\nLaw. In the event that the Purchaser intends not to offer employment to a
\nCorresponding Transfer Date Employee due to a purported failure by such
\nCorresponding Transfer Date Employee to satisfy the Purchaser153s Employment
\nContingencies, then the Purchaser shall promptly inform BSC in writing of such
\nintention and the specific grounds therefor, and shall consider in good faith
\nany objection BSC may have to the<\/p>\n 65<\/p>\n
\nPurchaser not offering employment to such Corresponding Transfer Date
\nEmployee. Such offer or transfer of employment initially shall be, subject to
\napplicable Law, at salary or other base compensation rate (including sales
\ncommission rates) that is no less favorable to such Employee than the rate in
\neffect immediately prior to such applicable Employee Transfer Date. In addition,
\nthe Purchaser shall offer employment at a location that is no more than
\nthirty-five (35) miles from the employee153s principal place of work immediately
\nprior to the applicable Employee Transfer Date. The Purchaser shall commence and
\nconclude all activities necessary to effectuate satisfaction of the Purchaser
\nEmployment Contingencies with respect to the Corresponding Transfer Date
\nEmployees whose employment is not required to be transferred automatically
\npursuant to Transfer Law at its own cost and within the sixty (60) days prior to
\nthe applicable Employee Transfer Date or, solely with respect to the Closing
\nTransfer Employees, within the period of time commencing on the date hereof and
\nconcluding on the Closing, provided that BSC and the Sellers shall have provided
\naccess to the applicable Corresponding Transfer Date Employees, and all
\nemployment records and files relating thereto, no later than sixty (60) days
\nprior to the applicable Employee Transfer Date and, solely with respect to the
\nClosing Transfer Employees, shall have provided to the Purchaser immediately
\nfollowing the date hereof, access to the Closing Transfer Employees, and all
\nemployment records and files relating thereto. BSC and the Sellers shall use
\ntheir reasonable best efforts to cause the Corresponding Transfer Date Employees
\nto accept such offers of employment that are required to be made by the
\nPurchaser pursuant to this Section 6.01(a). In the event that the Purchaser
\nfails to comply with any of the requirements of this Section 6.01(a), other than
\nto the extent such failure is attributable to the failure of BSC or its
\nAffiliates to comply with applicable Transfer Laws or the provisions of Section
\n6.01(b) or the Transition Services Agreement, the Purchaser shall be responsible
\nfor and indemnify, defend and hold harmless BSC and its Affiliates against any
\ncost, obligation or liability arising therefrom under WARN (or any comparable
\nnon-U.S. Law) and the BSC Severance Pay and Layoff Notification Plan, as Amended
\nand Restated, effective as of August 1, 2008, or any other applicable Plan;
\nprovided<\/u> that BSC and its Affiliates shall be responsible for and
\nindemnify, defend and hold harmless the Purchaser against any cost, obligation
\nor liability to the extent attributable to a failure of BSC or its Affiliates to
\ncomply with applicable Transfer Law or the provisions of Section 6.01(b) or the
\nTransition Services Agreement or arising from the inability of any applicant or
\nemployee to meet the Purchaser153s Employment Contingencies to the Purchaser153s
\nsatisfaction, including any claims brought by individuals for failure to become
\nemployed or continue in employment with the Purchaser153s Employment
\nContingencies. As used herein, “Transferred Employee<\/u>” means each
\nCorresponding Transfer Date Employee who accepts such offer or whose employment
\ntransfers automatically under applicable Transfer Laws and who, in either case,
\nactually commences employment with the Purchaser as of the applicable Employee
\nTransfer Date. With respect to any employee who is on short-term disability
\nleave, workers153 compensation leave, or other authorized leave of absence as of
\nthe date of the applicable Employee Transfer Date and who accepts such offer of
\nemployment with the Purchaser or whose employment transfers automatically, such
\nemployment with the Purchaser shall commence and such employee shall become a
\nTransferred Employee as of the date of such employee returns to active
\nemployment, subject to applicable Law.<\/p>\n (b) Cooperation<\/u>. The parties hereto agree to cooperate fully with each
\nother as may be or may become required, necessary, proper or advisable under
\nthis Agreement, the Transition Services Agreement or applicable Law, including
\napplicable Transfer Law, to consummate and make effective the transactions
\ncontemplated hereby, or as may be agreed to by<\/p>\n 66<\/p>\n
\nthe parties hereof, including assistance in any meeting with, filing with or
\nnotification to, or obtaining any consent, authorization, order or approval of,
\n(i) any Corresponding Transfer Date Employee, (ii) any works council, labor
\nunion, or employee representative, or (iii) any Governmental Authority. BSC and
\nthe Sellers shall cooperate with the Purchaser in the Purchaser153s recruitment of
\nthe Corresponding Transfer Date Employees, including (x) permitting the
\nPurchaser reasonable and prompt access to the Corresponding Transfer Date
\nEmployees to communicate to such employees any information concerning employment
\noffers and employment with the Purchaser in accordance with this Agreement, (y)
\nproviding on a timely basis any notices required of BSC or its Affiliates under
\napplicable Transfer Law and, to the extent such notice addresses matters
\neffective after the applicable Employee Transfer Date, consulting with Purchaser
\nin respect thereof and (z) subject to applicable Law, providing prompt access to
\npersonnel files, organizational succession planning, talent review and
\ndevelopment planning documents of such employees. BSC and the Sellers shall use
\nall reasonable efforts to maintain favorable relations with the Corresponding
\nTransfer Date Employees from the date hereof up to and including the applicable
\nEmployee Transfer Date, including taking all steps reasonably necessary to
\nretain the services and goodwill of each such employee, and shall refrain from
\ntaking any action that could harm or damage relations with the Corresponding
\nTransfer Date Employees or that could cause any such employee to terminate the
\nemployee153s service with BSC or any Seller prior to the applicable Corresponding
\nTransfer Date; provided<\/u> that nothing herein shall be construed as
\npreventing BSC from enforcing its employment policies against Corresponding
\nTransfer Date Employees in accordance with its customary practices.<\/p>\n Section 6.02<\/u> Employee Benefits<\/u>. (a) Except as contemplated by
\nSection 6.03 or the Transition Services Agreement, as of the applicable Employee
\nTransfer Date, each Transferred Employee shall cease to be covered under the
\nPlans. Except as otherwise set forth herein or in the Transition Services
\nAgreement, as of the applicable Employee Transfer Date, the Transferred
\nEmployees shall be covered by the employee benefit plans of the Purchaser. For a
\nperiod from the date of the applicable Employee Transfer Date until eighteen
\n(18) months following such date, the Purchaser shall provide the Transferred
\nEmployees (i) who are employed in the United States by the Purchaser with a
\nlevel of employee benefits substantially comparable in the aggregate to the
\nemployee benefits provided to similarly situated employees of the Seller, and
\n(ii) who are employed by the Purchaser outside the United States with a level of
\nemployee benefits substantially comparable in the aggregate to the employee
\nbenefits provided to similarly situated employees of Purchaser, provided that,
\nin the case of either (i) or (ii) for the avoidance of doubt, “employee
\nbenefits,” as used herein, shall not include any bonus or incentive compensation
\nbenefits.<\/p>\n (b) (i) Provided that BSC153s incentive and bonus plans applicable to the
\nTransferred Employees who will be employed by the Purchaser are listed in
\nSection 6.02(b)(i) of the Disclosure Schedule (the “Incentive Plans<\/u>“),
\nthe Purchaser shall honor the percentage of target amount for each Transferred
\nEmployee, under the terms of the Incentive Plans (A) with respect to Closing
\nTransfer Employees, through December 31, 2011, (B) with respect to the Cork
\nTransfer Employees, the Fremont Transfer Employees, the West Valley Transfer
\nEmployees, the Deferred Closing Transfer Employees and the Delayed Transfer
\nEmployees, if the applicable Employee Transfer Date has occurred on or prior to
\nSeptember 30 of a given calendar year, through the end of such calendar year,
\nand (C) with respect to the Cork Transfer Employees, the Fremont Transfer
\nEmployees, the West Valley Transfer Employees, the Deferred Closing<\/p>\n 67<\/p>\n
\nTransfer Employees and the Delayed Transfer Employees, if the applicable
\nEmployee Transfer Date has occurred on or following October 1 of a given
\ncalendar year, through the end of the calendar year following the calendar year
\nin which the applicable Employee Transfer Date occurred (in the case of each of
\n(A), (B) and (C) hereof, the “Incentive Compensation Continuation
\nPeriod<\/u>“). The Purchaser shall be responsible for payments that are earned by
\nthe applicable Transferred Employees pursuant to the terms of the Incentive
\nPlans during the Incentive Compensation Continuation Period, even if any such
\npayment is required to be made during the year following such Incentive
\nCompensation Continuation Period. Following such Incentive Compensation
\nContinuation Period, the applicable Transferred Employees shall be covered under
\na bonus or incentive plan of the Purchaser that is provided to similarly
\nsituated employees of the Purchaser to the extent applicable.<\/p>\n (ii) An amount equal to at least one hundred percent (100%) of the aggregate
\ntarget incentive pool for the Business as set forth in the The BSC 2010
\nPerformance Incentive Plan (the “PIP<\/u>“) for the 2010 fiscal year
\nattributable to each Closing Transfer Employee on Section 6.02(b)(ii) of the
\nDisclosure Schedule (the “2010 Bonus Pool”<\/u>) shall be paid to the Closing
\nTransfer Employees identified on Section 6.02(b)(ii) of the Disclosure Schedule.
\nBSC shall pay a percentage portion of the 2010 Bonus Pool equal to the greater
\nof (i) fifty percent (50%) and (ii) a percentage equal to the percentage of the
\n2010 Bonus Pool that would be earned by the Closing Transfer Employees based on
\nactual performance as determined in good faith following the end of the PIP
\nperformance year by BSC in its sole discretion, and, to the extent not paid by
\nBSC, on or before March 15, 2011, the Purchaser shall pay (or shall cause one of
\nits Affiliates to pay) the remainder, provided that, in no event shall Purchaser
\nbe responsible for paying in excess of fifty percent (50%) of the target bonus
\namount designated for each Closing Transfer Employee on Section 6.02(b)(ii) of
\nthe Disclosure Schedule. No later than March 2, 2011, BSC shall provide
\nPurchaser with a list of each Closing Transfer Employee on Section 6.02(b)(ii)
\nof the Disclosure Schedule and the corresponding amount of bonus that has been
\npaid by BSC to such Closing Transfer Employee and the amount of bonus to be paid
\nby Purchaser. For the avoidance of doubt, this Section 6.02(b)(ii) shall apply
\nonly to those Closing Transfer Employees identified on Section 6.02(b)(ii) of
\nthe Disclosure Schedule and no other Transferred Employees and shall apply in
\nrespect of 2010 only, and except as otherwise provided in this Section 6.02(b)
\nor the Transition Services Agreement, neither Purchaser nor its Affiliates shall
\nhave any obligation in respect of wage payments to Transferred Employees in
\nrespect of the period preceding the Closing.<\/p>\n (iii) With respect to payments due under any sales retention bonus program of
\nBSC or its Affiliates that is identified on Section 6.02(b)(iii) of the
\nDisclosure Schedule, the Purchaser shall make payments to Transferred Employees,
\nas and when they otherwise become due under such program following the Closing
\nDate, equal to the amount otherwise due under such program (exclusive of amounts
\nattributable to fringe or similar benefits) multiplied by a fraction, the
\nnumerator of which is the number of days in the applicable retention period
\nfollowing the Closing Date and the denominator of<\/p>\n 68<\/p>\n
\nwhich is the number of days in the retention period; provided<\/u> that in
\nno event shall the aggregate bonus amount on which Purchaser153s payment
\nobligation under this Section 6.02(b)(iii) is determined (before application of
\nthe proration fraction described in the preceding provisions of this Section
\n6.02(b)(iii)) exceed $2,150,000.<\/p>\n (c) For a period from the date of the applicable Employee Transfer Date until
\ntwelve (12) months following such date (the “Severance Plan Continuation
\nPeriod<\/u>“), the Purchaser shall honor the terms of the severance plans
\napplicable to the Transferred Employees who are employed by the Purchaser,
\nprovided that such plans are listed in Section 6.02(c) of the Disclosure
\nSchedule, and following such Severance Plan Continuation Period, the applicable
\nTransferred Employees shall be covered under a severance plan of the Purchaser
\nthat is provided to similarly situated employees of the Purchaser, to the extent
\napplicable.<\/p>\n (d) Each Transferred Employee shall (without prejudice to any rights under
\nrelevant Transfer Laws or other applicable Laws relating to deemed continuity of
\nservice) receive credit for services with BSC and its Affiliates and
\npredecessors under the Purchaser153s employee benefit plans to the extent of
\nparticipation therein for purposes of eligibility, vesting and benefit accrual
\nsolely to the extent such credit was provided to such Transferred Employee under
\nthe applicable Plan as of immediately prior to the applicable Employee Transfer
\nDate and provided<\/u> that in no event shall such service be credited to the
\nextent it would result in the duplication of benefits or the funding thereof, or
\ncause a Transferred Employee to receive any benefit whatsoever other than
\nadditional eligibility, vesting or benefit accrual service credits under
\nPurchaser153s employee benefit plans (to the extent of participation therein), to
\nthe extent applicable.<\/p>\n Section 6.03<\/u> Existing Agreements<\/u>. From and after the applicable
\nEmployee Transfer Date, the Purchaser hereby assumes and shall honor the
\nagreements listed in Section 6.03 of the Disclosure Schedule, subject to any
\namendment or modification agreed to between the Purchaser and the applicable
\nemployee who is a party to such agreement.<\/p>\n Section 6.04<\/u> WARN<\/u>. The Purchaser shall be responsible for any
\nobligation with respect to the Transferred Employees under the Worker Adjustment
\nRetraining and Notification Act of 1988 and any applicable state or local
\nequivalent arising or accruing after the applicable Employee Transfer Date
\n(collectively, “WARN<\/u>“) and any comparable non-U.S. Law. Except as
\notherwise provided in Section 6.01(a), BSC shall be responsible for any such
\nobligation arising or accruing before the applicable Employee Transfer Date. On
\nor before the Closing Date, BSC and the Sellers shall provide a list of the name
\nand site of employment of any and all employees of Seller who have experienced,
\nor will experience, an employment loss or layoff : as defined by WARN or any
\ncomparable non-U.S. law requiring notice to employees in the event of a closing
\nor layoff : within ninety (90) days prior to the Closing Date. BSC shall update
\nthis list up to and including the Closing Date. The parties hereto agree to
\ncooperate in good faith to determine whether any notification may be required
\nunder WARN as a result of the transaction contemplated by this Agreement.<\/p>\n Section 6.05<\/u> COBRA<\/u>. BSC shall be responsible for the
\nadministration of and shall retain any and all obligations and liabilities for
\ncontinuation coverage under the<\/p>\n 69<\/p>\n
\nConsolidated Omnibus Budget Reconciliation Act of 1985, as amended
\n(“COBRA<\/u>“), with respect to the Transferred Employees and their dependents
\nand beneficiaries for “qualifying events” occurring on or prior to the date on
\nwhich the Transferred Employee becomes a Transferred Employee (for purposes of
\nclarity, to the extent such Transferred Employees are covered under an employee
\nbenefit plan providing for such COBRA continuation benefits), and the Purchaser
\nshall be responsible for all obligations and liabilities for COBRA continuation
\ncoverage for Transferred Employees and their dependents and beneficiaries with
\nrespect to “qualifying events” occurring after the date on which the Transferred
\nEmployee becomes a Transferred Employee (for purposes of clarity, to the extent
\nsuch Transferred Employees are covered under an employee benefit plan providing
\nfor COBRA continuation benefits).<\/p>\n Section 6.06<\/u> 401(k) Plans<\/u>. (a) Effective as of the applicable
\nEmployee Transfer Date, no Transferred Employee shall actively participate in
\nBSC153s 401(k) Retirement Savings Plan (“BSC153s 401(k) Plan<\/u>“). On the date
\nof the applicable Employee Transfer Date, Transferred Employees who participate
\nin BSC153s 401(k) Plan shall immediately be 100% vested in their individual
\naccount balances under BSC153s 401(k) Plan.<\/p>\n (b) As soon as administratively practicable following the date of the
\napplicable Employee Transfer Date, BSC shall advise such Transferred Employees
\nwho participated in BSC153s 401(k) Plan of their right to elect to receive a
\ndistribution of, or to directly rollover, their individual account balances in
\nBSC153s 401(k) Plan. To the extent permitted by Law and provided that the
\nPurchaser is reasonably satisfied that BSC153s 401(k) Plan is qualified within the
\nmeaning of Section 401(a) of the Code, as soon as practicable following the date
\nof the applicable Employee Transfer Date, such account balances may be
\ntransferred by Transferred Employees to a defined contribution retirement plan
\nmaintained by the Purchaser (the “Purchaser153s 401(k) Plan<\/u>“) in a direct
\nrollover or rollover contribution. Service of each Transferred Employee prior to
\nthe applicable Employee Transfer Date which was recognized under BSC153s 401(k)
\nPlan shall be credited to such Transferred Employee for purposes of eligibility
\nand vesting under the Purchaser153s 401(k) Plan. Prior to the applicable Employee
\nTransfer Date, the Purchaser shall amend the Purchaser153s 401(k) Plan to the
\nextent necessary to accept direct rollovers from BSC153s 401(k) Plan and to permit
\nTransferred Employees to make rollover contributions to the Purchaser153s 401(k)
\nPlan.<\/p>\n Section 6.07<\/u> Accrued Vacation<\/u>. Except as otherwise required by
\napplicable Law, BSC shall pay to each Transferred Employee, as soon as
\nadministratively practicable, but no later than two (2) pay periods following
\nthe applicable Employee Transfer Date, a cash payment reflecting the value of
\nsuch employee153s unused accrued vacation and any other paid time off calculated
\nat the employee153s base hourly or salary rate in effect just prior to the
\napplicable Employee Transfer Date.<\/p>\n Section 6.08<\/u> No Guarantee of Continued Employment; No Third-Party
\nRights<\/u>. Notwithstanding anything contained in this Article VI or otherwise
\nin this Agreement, nothing in this Agreement shall confer upon any Transferred
\nEmployee the right to continue in employment with the Purchaser following the
\napplicable Employee Transfer Date, or is intended to interfere with the
\nPurchaser153s right or ability (i) to terminate the employment of any Transferred
\nEmployee for any reason or no reason following the applicable Employee Transfer
\nDate or (ii) subject to Section 6.02, to amend, modify or terminate any benefit
\nplan, program, agreement or<\/p>\n 70<\/p>\n
\narrangement in the sole discretion of the Purchaser. The parties hereto
\nacknowledge and agree that all provisions contained in this Article VI are
\nincluded for the sole benefit of the respective parties to this Agreement and
\nshall not create any right in any other Person, including any employees, former
\nemployees, any participant in any employee benefit plan, policy or arrangement
\nmaintained by Sellers or BSC or any beneficiary thereof.<\/p>\n Section 6.09<\/u> Compliance with Law<\/u>. BSC, Sellers and the
\nPurchaser agree to comply with all applicable Laws pertaining to the subject
\nmatter of this Article VI. Without limiting the generality of the foregoing, the
\nparties herein expressly acknowledge and agree that (i) any action ostensibly
\nrequired or permitted under this Article VI shall only be required or permitted
\nto the extent consistent with applicable Law; (ii) applicable Law may also
\nrequire a party herein to take actions in addition to those it is otherwise
\ncontractually obligated to take hereunder; and (iii) any failure of a party
\nhereto to abide by applicable Law pertaining to the subject matter of this
\nArticle VI shall be deemed a breach of this Agreement.<\/p>\n ARTICLE VII<\/strong><\/p>\nCONDITIONS TO CLOSING<\/strong><\/p>\nSection 7.01<\/u> Conditions to Obligations of BSC<\/u>. The obligations
\nof BSC to consummate the transactions contemplated by this Agreement shall be
\nsubject to the fulfillment or written waiver, at or prior to the Closing, of
\neach of the following conditions:<\/p>\n (a) Representations, Warranties and Covenants<\/u>. (i) The representations
\nand warranties of the Purchaser contained in this Agreement (disregarding all
\nqualifications set forth therein relating to “materiality”) shall be true and
\ncorrect in all respects both at and as of the date of this Agreement and at and
\nas of the Closing (except that those representations and warranties that are
\nmade as of another specified date need only be so true and correct as of such
\nspecified date), except where the failure of such representations and warranties
\nto be true and correct would not materially and adversely affect the ability of
\nthe Purchaser to carry out its obligations under, and to consummate, the
\ntransactions contemplated by this Agreement, the Purchaser IP License Agreement
\nand the Ancillary Agreements specified in the definition of “Material Adverse
\nEffect” (other than with respect to the representations and warranties contained
\nin Sections 4.01, 4.02(a) and (b), 4.03 and 4.04, which shall be true and
\ncorrect in all material respects); (ii) the covenants and agreements contained
\nin this Agreement to be complied with by the Purchaser on or before the Closing
\nshall have been complied with in all material respects; and (iii) BSC shall have
\nreceived a certificate of the Purchaser signed by a duly authorized
\nrepresentative thereof dated as of the Closing Date certifying the matters set
\nforth in clauses (i) and (ii) above;<\/p>\n (b) Governmental Approvals<\/u>. (i) Any waiting period (and any extension
\nthereof) under the HSR Act shall have expired or shall have been terminated; and
\n(ii) any consents, authorizations, orders, approvals, declarations and filings
\nrequired prior to the Closing under any applicable Antitrust Laws and identified
\nin Section 7.01(b) of the Disclosure Schedule will have been made or obtained;
\nand<\/p>\n 71<\/p>\n
\n(c) No Order<\/u>. No Governmental Authority shall have enacted, issued,
\npromulgated, enforced or entered any Law or Governmental Order (whether
\ntemporary, preliminary or permanent) that has the effect of making the
\ntransactions contemplated by this Agreement or the Ancillary Agreements illegal
\nor otherwise restraining or prohibiting the consummation of such transactions.\n<\/p>\n Section 7.02<\/u> Conditions to Obligations of the Purchaser<\/u>. The
\nobligations of the Purchaser to consummate the transactions contemplated by this
\nAgreement shall be subject to the fulfillment or written waiver, at or prior to
\nthe Closing, of each of the following conditions:<\/p>\n (a) Representations, Warranties and Covenants<\/u>. (i) The representations
\nand warranties of BSC contained in this Agreement (disregarding all
\nqualifications set forth therein relating to “materiality” or “Material Adverse
\nEffect”) shall be true and correct in all respects both at and as of the date of
\nthis Agreement and at and as of the Closing (except that those representations
\nand warranties that are made as of another specified date need only be so true
\nand correct as of such specified date), except where the failure of such
\nrepresentations and warranties to be true and correct would not have a Material
\nAdverse Effect (other than with respect to the representations and warranties
\ncontained in Sections 3.01, 3.02(a) and (b) and 3.03, which shall be true and
\ncorrect in all material respects); (ii) the covenants and agreements contained
\nin this Agreement to be complied with by BSC at or before the Closing shall have
\nbeen complied with in all material respects; and (iii) the Purchaser shall have
\nreceived a certificate of BSC signed by a duly authorized representative thereof
\ndated as of the Closing Date certifying the matters set forth in clauses (i) and
\n(ii) above;<\/p>\n (b) Governmental Approvals<\/u>. (i) Any waiting period (and any extension
\nthereof) under the HSR Act shall have expired or shall have been terminated, and
\n(ii) any consents, authorizations, orders, approvals, declarations and filings
\nrequired prior to the Closing under any applicable Antitrust Laws and identified
\nin Section 7.02(b) of the Disclosure Schedule will have been made or obtained;\n<\/p>\n (c) No Order<\/u>. No Governmental Authority shall have enacted, issued,
\npromulgated, enforced or entered any Law or Governmental Order (whether
\ntemporary, preliminary or permanent) that has the effect of making the
\ntransactions contemplated by this Agreement or the Ancillary Agreements illegal
\nor otherwise restraining or prohibiting the consummation of such transactions;\n<\/p>\n (d) No Proceeding or Litigation<\/u>. No proceeding or litigation initiated
\nby any Governmental Authority against BSC or any of the Sellers or the Purchaser
\nor their respective Affiliates seeking to prohibit the transactions contemplated
\nby this Agreement and the Ancillary Agreements shall be actually pending;<\/p>\n (e) Consents and Approvals<\/u>. Purchaser shall have obtained, each in
\nform and substance reasonably satisfactory to the Purchaser, the consents and
\napprovals set forth on Schedule 7.02(e);<\/p>\n 72<\/p>\n
\n(f) No Material Adverse Effect<\/u>. No Material Adverse Effect will have
\noccurred; and<\/p>\n (g) Audited Special Purpose Financial Statements<\/u>. The Purchaser shall
\nhave received from BSC at least five (5) Business Days prior to the Closing
\nDate, the Audited Special Purpose Financial Statements, which shall be, in all
\nmaterial respects, consistent with the Unaudited Special Purpose Financial
\nStatements provided to the Purchaser by BSC prior to the date hereof.<\/p>\n ARTICLE VIII<\/strong><\/p>\nINDEMNIFICATION<\/strong><\/p>\nSection 8.01<\/u> Survival of Representations and Warranties<\/u>. The
\nrepresentations and warranties of the parties hereto contained in this Agreement
\nshall survive the Closing for a period of two (2) years after the Closing Date;
\nprovided<\/u> that: (a) the representations and warranties contained in
\nSection 3.01, Sections 3.02(a) and (b), Section 3.03, Section 3.10(b), Section
\n3.12(a), Section 3.22, Section 4.01, Sections 4.02(a) and (b), Section 4.03,
\nSection 4.06 and Section 4.07 shall survive the Closing indefinitely (the
\nforegoing, other than Section 3.10(b), the “Specified Representations and
\nWarranties<\/u>“) and (b) in respect of (i) each Transferred Site, (ii) the
\nPurchased Assets at such site, and (iii) the Products manufactured at such site,
\nthe representations and warranties contained in Section 3.10(a) and Section
\n3.12(b) shall survive the Closing for a period of four (4) years after the
\napplicable Facility Transfer Date. Claims relating to the covenants contained in
\nSection 5.01 shall survive the Closing for a period of two (2) years after the
\nClosing Date, and all covenants and agreements contained herein that contemplate
\nperformance following the Closing shall survive the Closing indefinitely unless
\nthe covenant or agreement specifies a term, in which case such covenant or
\nagreement shall survive the Closing for such specified term. Any claim made by
\nthe party seeking to be indemnified within the time periods set forth in this
\nSection 8.01 shall survive until such claim is finally and fully resolved.<\/p>\n Section 8.02<\/u> Indemnification by BSC<\/u>. The Purchaser and its
\nAffiliates, officers, directors, employees, agents, successors and assigns
\n(each, a “Purchaser Indemnified Party<\/u>“) shall be indemnified and held
\nharmless by BSC for and against all losses, damages, claims, costs and expenses,
\ninterest, awards, judgments and penalties (including reasonable attorneys153 fees
\nand expenses) suffered or incurred by them (hereinafter, a “Loss<\/u>“),
\ndirectly or indirectly, arising out of or resulting from: (a) the breach of any
\nrepresentation or warranty made by BSC contained in this Agreement (it being
\nunderstood that for purposes of this Section 8.02(a) all “materiality” and
\n“Material Adverse Effect” qualifications and exceptions contained in such
\nrepresentations and warranties shall be disregarded); (b) the breach of any
\ncovenant or agreement by BSC contained in this Agreement; or (c) the Excluded
\nLiabilities. The Purchaser acknowledges and agrees that BSC shall not have any
\nliability under any provision of this Agreement (other than Section 8.02(a)) for
\nany Loss to the extent it relates solely to actions taken by the Purchaser and
\nits Affiliates after the Closing Date.<\/p>\n Section 8.03<\/u> Indemnification by the Purchaser<\/u>. BSC and its
\nAffiliates, officers, directors, employees, agents, successors and assigns
\n(each, a “Seller<\/u><\/p>\n 73<\/p>\n
\nIndemnified Party<\/u>“) shall be indemnified and held harmless by the
\nPurchaser for and against any and all Losses, directly or indirectly, arising
\nout of or resulting from: (a) the breach of any representation or warranty made
\nby the Purchaser contained in this Agreement (it being understood that for
\npurposes of this Section 8.03(a) all “materiality” qualifications and exceptions
\ncontained in such representations and warranties shall be disregarded); (b) the
\nbreach of any covenant or agreement by the Purchaser contained in this
\nAgreement; (c) the Assumed Liabilities or, with respect to a Deferred Closing
\nCountry, the Deferred Liabilities for such Deferred Closing Country from and
\nafter the applicable Deferred Closing Date; or (d) any claims by or in respect
\nof Transferred Employees to the extent arising or otherwise attributable to the
\nperiod after the applicable Employee Transfer Date, except in the case of
\nclauses (c) and (d) for Losses, directly or indirectly, arising out of or
\nresulting from (i) the breach of any representation or warranty made by BSC
\ncontained in this Agreement (it being understood that for purposes of this
\nSection 8.03 all “materiality” and “Material Adverse Effect” qualifications and
\nexceptions contained in such representations and warranties shall be
\ndisregarded), (ii) the breach of any covenant or agreement by BSC contained in
\nthis Agreement; (iii) the Excluded Liabilities or (iv) items for which BSC or
\nits Affiliates have agreed to indemnify any of the Purchaser Indemnified Parties
\nunder the Ancillary Agreements.<\/p>\n Section 8.04<\/u> Limits on Indemnification<\/u>. (a) No claim may be
\nasserted nor may any Action be commenced against either party hereto for breach
\nof any representation, warranty, covenant or agreement contained herein, unless
\nwritten notice of such claim or action is received by such party describing in
\nreasonable detail the facts and circumstances with respect to the subject matter
\nof such claim or Action on or prior to the date on which the representation,
\nwarranty, covenant or agreement on which such claim or Action is based ceases to
\nsurvive as set forth in Section 8.01.<\/p>\n (b) Notwithstanding anything to the contrary contained in this Agreement: (i)
\nno Indemnifying Party shall be liable for any claim for indemnification pursuant
\nto Section 8.02(a) or 8.03(a), as applicable, unless and until the aggregate
\namount of indemnifiable Losses which may be recovered from the Indemnifying
\nParty equals or exceeds, in the case where the Purchaser is the Indemnifying
\nParty, an amount equal to 1.5% of the Purchase Price and, in the case where BSC
\nis the Indemnifying Party, an amount equal to 1.5% of the Purchase Price less
\nthe amount of Excess Costs paid by the Purchaser pursuant to Section 5.05, after
\nwhich the Indemnifying Party shall be liable only for those Losses in excess of
\nsuch amount (except in the case of any Losses for any breach of any
\nrepresentation or warranty contained in Section 3.02(c), Section 3.10(a),
\nSection 3.10(b) or Section 3.12(b), in which case the Indemnifying Party shall
\nbe liable for all such Losses); (ii) no Losses may be claimed under Section
\n8.02(a) or 8.03(a) or shall be included in calculating the aggregate Losses set
\nforth in clause (i) above other than Losses in excess of $150,000 resulting from
\nany single claim or aggregated claims arising out of the same facts, events or
\ncircumstances; (iii) the maximum amount of indemnifiable Losses which may be
\nrecovered from an Indemnifying Party arising out of or resulting from the causes
\nset forth in Section 8.02(a) or 8.03(a), as applicable, shall be an amount equal
\nto 10% of the Purchase Price; and (iv) except (A) in the case of Third Party
\nClaims in which an Indemnified Party pays an amount to a third party in respect
\nof a Claim by a third party and (B) any breach of Section 5.06 (Retained Names
\nand Marks), Section 5.10 (Non-Solicitation) or 5.11 (Non-Competition), neither
\nparty hereto shall have any liability under this Article VIII for any punitive,
\nconsequential, special or indirect damages, including loss of future<\/p>\n 74<\/p>\n
\nrevenue or income, or loss of business reputation or opportunity;
\nprovided<\/u> that the foregoing limitations in clauses (i), (ii) and (iii)
\nabove shall not apply to any breach of Section 3.15 or the Specified
\nRepresentations and Warranties; provided<\/u> further<\/u> that clause (iii)
\nabove shall not apply to any breach of any representation or warranty contained
\nin Section 3.10(a), Section 3.10(b) and Section 3.12(b). In addition, no action
\ntaken by BSC or any Seller in compliance with Section 5.01(b) shall be deemed to
\nbe a breach of any representation or warranty or other covenant or agreement of
\nBSC or any Seller under this Agreement for any purpose hereunder.<\/p>\n (c) For all purposes of this Article VIII, “Losses” shall be net of any
\ninsurance recoveries actually paid to the Indemnified Party or its Affiliates
\nunder any insurance policy in connection with the facts giving rise to the right
\nof indemnification; provided<\/u>, the amount of such recovery shall be
\nreduced by any costs and expenses incurred in obtaining such recovery and by the
\namount of any increase in insurance premiums resulting from making the claim
\ngiving rise to such recovery.<\/p>\n Section 8.05<\/u> Notice of Loss; Third Party Claims; Mixed
\nActions<\/u>. (a) An Indemnified Party shall give the Indemnifying Party notice
\nof any matter which an Indemnified Party has determined has given or could give
\nrise to a right of indemnification under this Agreement, within 60 days of such
\ndetermination, stating the amount of the Loss, if known, and method of
\ncomputation thereof, and containing a reference to the provisions of this
\nAgreement in respect of which such right of indemnification is claimed or
\narises; provided<\/u>, that the failure to provide such notice shall not
\nrelease the Indemnifying Party from any of its obligations under this Article
\nVIII except to the extent that the Indemnifying Party is actually and materially
\nprejudiced by such failure.<\/p>\n (b) If an Indemnified Party shall receive notice of any Action, audit, claim,
\ndemand or assessment made by any Person who is not a party to this Agreement or
\nits Affiliates against it which may give rise to a claim for Losses under this
\nArticle VIII (each, together with any matter set forth in Section 2.02(b)(vii),
\na “Third Party Claim<\/u>“), within 60 days of the receipt of such notice, the
\nIndemnified Party shall give the Indemnifying Party notice of such Third Party
\nClaim; provided<\/u> that the failure to provide such notice shall not release
\nthe Indemnifying Party from any of its obligations under this Article VIII
\nexcept to the extent that the Indemnifying Party is actually and materially
\nprejudiced by such failure. The Indemnifying Party shall be entitled, at its
\noption, to assume and control the defense of such Third Party Claim at its
\nexpense and through counsel of its choice if it gives notice of its intention to
\ndo so to the Indemnified Party within 45 days of the receipt of such notice from
\nthe Indemnified Party. If the Indemnifying Party elects to undertake any such
\ndefense against a Third Party Claim the Indemnified Party may, upon giving prior
\nwritten notice to the Indemnifying Party, participate in such defense at its own
\nexpense. Notwithstanding the foregoing, (i) if the claim for indemnification is
\nwith respect to a criminal proceeding, action, indictment, allegation or
\ninvestigation against the Indemnified Party, then to the extent the Third Party
\nClaim relates to the foregoing, the Indemnified Party shall be entitled to
\nconduct and control the defense of such criminal proceeding, action, indictment,
\nallegation or investigation with counsel of its choosing, and the reasonable
\nattorneys153 fees and expenses incurred by the Indemnified Party shall be borne by
\nthe Indemnifying Party, or (ii) if the Indemnified Party has been advised by
\ncounsel that a reasonable likelihood exists of a conflict of interest between
\nthe Indemnifying Party and the Indemnified Party, then the Indemnified Party
\nshall be entitled to participate in the defense of<\/p>\n 75<\/p>\n
\nsuch action or claim with counsel of its choosing and the reasonable
\nattorneys153 fees and expenses incurred by the Indemnified Party shall be borne by
\nthe Indemnifying Party. The Indemnified Party shall cooperate with the
\nIndemnifying Party in such defense and make available to the Indemnifying Party,
\nat the Indemnifying Party153s expense, all witnesses, pertinent records, materials
\nand information in the Indemnified Party153s possession or under the Indemnified
\nParty153s control relating thereto as is reasonably required by the Indemnifying
\nParty. If the Indemnifying Party assumes the defense of any Third Party Claim,
\nthe Indemnified Party shall not settle such Third Party Claim unless the
\nIndemnifying Party consents in writing (such consent not to be unreasonably
\nwithheld or delayed). If the Indemnifying Party assumes the defense of any Third
\nParty Claim, the Indemnifying Party shall not, without the prior written consent
\nof the Indemnified Party (which may be withheld in the Indemnified Party153s sole
\ndiscretion), enter into any settlement or compromise or consent to the entry of
\nany judgment with respect to such Third Party Claim if such settlement,
\ncompromise or judgment (x) involves a finding or admission of wrongdoing by the
\nIndemnified Party or any of its Affiliates, (y) does not include an
\nunconditional written release by the claimant or plaintiff of the Indemnified
\nParty and its Affiliates from all liability in respect of such Third Party Claim
\nor (z) imposes equitable remedies or any obligation on the Indemnified Party or
\nany of its Affiliates other than solely the payment of money damages for which
\nthe Indemnified Party will be indemnified hereunder. If the Indemnified Party
\nassumes the defense of any Third Party Claim, the Indemnifying Party shall
\ncooperate with the Indemnified Party in such defense and make available to the
\nIndemnified Party all witnesses, pertinent records, materials and information in
\nthe Indemnifying Party153s possession or under the Indemnifying Party153s control
\nrelating thereto as is reasonably required by the Indemnified Party. If the
\nIndemnified Party assumes the defense of any Third Party Claim, the Indemnified
\nParty shall not settle such Third Party Claim without the prior written consent
\nof the Indemnifying Party (such consent not to be unreasonably withheld or
\ndelayed).<\/p>\n (c) Notwithstanding anything to the contrary contained herein, if a Third
\nParty Claim constitutes a Mixed Action, the parties shall jointly discuss in
\ngood faith a strategy for the conduct and control of a Mixed Action, including
\nthe selection of counsel (the “Defense Strategy<\/u>“); provided<\/u> that
\nif the parties cannot agree in writing on the Defense Strategy for such Mixed
\nAction within twenty (20) Business Days after delivery of the notice referred to
\nabove in respect of such Mixed Action, each party shall be entitled, subject to
\nclause (i) of Section 8.05(b), to assume and control the defense of the portion
\nof such Mixed Action for which it is responsible or otherwise may be obligated
\nto indemnify the other party (the “Assumed Portion<\/u>“); provided<\/u>
\nfurther that each such assuming party shall not, without the prior written
\nconsent of the other party (which may be withheld in the other party153s sole
\ndiscretion), enter into any settlement or compromise or consent to the entry of
\nany judgment with respect to such Assumed Portion if such settlement, compromise
\nor judgment (x) involves a finding or admission of wrongdoing by either party or
\nany of its Affiliates, (y) does not include an unconditional written release by
\nthe claimant or plaintiff of the other party and its Affiliates from all
\nliability in respect of such Assumed Portion, or (z) imposes equitable remedies
\nor any obligation on the other party or any of its Affiliates in respect of such
\nAssumed Portion other than solely the payment of money damages for which the
\nassuming party is responsible or the other party will be indemnified hereunder.
\nEach party to a Mixed Action may participate in the defense of the other party153s
\nAssumed Portion of such Mixed Action (including by having its representatives
\nand counsel appear at all hearings, depositions and settlement negotiations
\nrelated<\/p>\n 76<\/p>\n
\nthereto), regardless of whether the Mixed Action is subsequently bifurcated
\nor otherwise separately tried in part or whole, and will bear the costs and
\nexpenses incurred by it in connection with such participation, unless otherwise
\nagreed in accordance with the Defense Strategy. Each party shall also cooperate
\nwith the other party in the defense of the other party153s Assumed Portion and
\nmake available to the other party, at the other party153s expense, all witnesses,
\npertinent records, materials and information in such party153s possession or under
\nits control relating thereto as is reasonably required by the other party. For
\npurposes of this Agreement, a “Mixed Action<\/u>” means any Third Party Claim
\nthat a party believes is reasonably likely to include both (1) claims in respect
\nof which it will be the Indemnified Party under this Article VIII and (2) claims
\n(A) as to which no right of indemnification exists for such party under this
\nArticle VIII, or (B) as to which it is the Indemnifying Party under this Article
\nVIII.<\/p>\n Section 8.06<\/u> Tax Treatment<\/u>. To the extent permitted by Law, the
\nparties hereto agree to treat all payments made under this Article VIII, under
\nany other indemnity provision contained in this Agreement, and for any
\nmisrepresentations or breach of warranties or covenants, as adjustments to the
\nPurchase Price for all Tax purposes.<\/p>\n Section 8.07<\/u> Remedies<\/u>. The Purchaser and BSC acknowledge and
\nagree that, (a) following the Closing, the indemnification provisions of this
\nArticle VIII shall be the sole and exclusive remedies of the Purchaser and BSC
\nfor any claims under this Agreement, provided<\/u> that nothing in this
\nSection 8.07 shall restrict or prohibit any party bringing any action for fraud,
\nintentional misrepresentation, intentional and material breach or from seeking
\nspecific performance of any obligation hereunder, and (b) anything herein to the
\ncontrary notwithstanding, except in the case of actual fraud, no breach of any
\nrepresentation, warranty, covenant or agreement contained herein shall give rise
\nto any right on the part of the Purchaser or BSC, after the Closing Date, to
\nrescind this Agreement or any of the Ancillary Agreements or any of the
\ntransactions contemplated hereby or thereby. Each party hereto shall, and shall
\ncause its Affiliates to, take all reasonable steps to mitigate its Losses upon
\nand after becoming aware of any event that could reasonably be expected to give
\nrise to any Losses.<\/p>\n Section 8.08<\/u> Set-Off Rights<\/u>.<\/p>\n (a) Other than as expressly provided in this Section 8.08, neither party
\nhereto shall have any right to set-off any amounts determined to be owed under
\nthis Agreement (including by an Indemnifying Party to any Indemnified Party
\npursuant to this Article VIII) against any amount payable by such party or any
\nof its Affiliates pursuant to this Agreement, any of the Ancillary Agreements or
\notherwise.<\/p>\n (b) The Purchaser shall be entitled to withhold and set-off against the
\nMilestone Payments the amount of any Third Party Claim against a Purchaser
\nIndemnified Party that has been made in writing and in respect of which the
\nPurchaser has sought indemnification from BSC in accordance with Sections
\n8.04(a) and 8.05(b) or the amount of any payment due by BSC under Section 14.06
\nof the Separation Agreement (a “Set-Off Claim<\/u>“) subject to the terms of
\nthis Section 8.08.<\/p>\n (c) No set-off may be made unless the Purchaser has provided a written notice
\nof request (a “Request Notice<\/u>“) in respect of a Set-Off Claim at least
\nforty-five (45) days<\/p>\n 77<\/p>\n
\nprior to the date the Purchaser is required to make a Milestone Payment
\npursuant to Section 2.04 (a “Milestone Payment Date<\/u>“), unless the
\nPurchaser first receives notice of a Third Party Claim within such forty-five
\n(45) day period, in which case the Purchaser shall give a Request Notice in
\nrespect of such Set-Off Claim as promptly as practicable (but in no event later
\nthan five (5) Business Days) following receipt of such notice. The Request
\nNotice shall include (i) a description of the Purchaser153s good faith basis for
\ndetermining that such Set-Off Claim gives rise to a right of indemnification
\nunder Section 8.02, and (ii) the Purchaser153s good faith estimate of the amount
\nof Loss reasonably likely to be incurred by a Purchaser Indemnified Party in
\nrespect of such Set-Off Claim (the “Requested Set-Off Payment<\/u>“).<\/p>\n (d) If BSC does not deliver written notice to the Purchaser disputing a
\nSet-Off Claim or the amount of a Requested Set-Off Payment, which notice shall
\ndescribe the basis for BSC153s dispute of such Set-Off Claim (a “Set-Off
\nDispute Notice<\/u>“), by 5:00 p.m. New York time on the tenth (10th<\/sup>)
\nBusiness Day after BSC153s receipt of the Request Notice, then, as of the Business
\nDay following the end of such 10 Business Day period, the Purchaser shall be
\nentitled to withhold and set-off such Requested Set-Off Payment against the next
\nMilestone Payment in accordance with Section 8.08(h).<\/p>\n(e) If BSC delivers a Set-Off Dispute Notice in accordance with Section
\n8.08(d), BSC and the Purchaser will attempt in good faith to resolve their
\ndispute in respect of the Set-Off Claim. If they fail to resolve their dispute
\nfor any reason within ten (10) Business Days after BSC153s delivery of the Set-Off
\nDispute Notice to the Purchaser, the dispute shall be arbitrated in Wilmington,
\nDelaware by a single arbitrator in accordance with the Commercial Arbitration
\nRules of the American Arbitration Association and the expedited procedures
\nthereof (other than, to the extent possible, rule E-10-Compensation). BSC or the
\nPurchaser shall submit the dispute to arbitration as promptly as practicable
\n(but in no event later than ten (10) Business Days) after the ten Business Day
\nperiod referred to above, and shall instruct the arbitrator to determine only
\nwhether the Purchaser is entitled to set-off all or any portion of the amount of
\nthe Requested Set-Off Payment in accordance with this Section 8.08. The decision
\nof the arbitrator shall be rendered as promptly as practicable (if possible no
\nlater than thirty (30) days) after the appointment of the arbitrator, or as soon
\nthereafter as practicable. The decision and award of the arbitrator shall be
\ndeemed final and conclusive for purposes of whether the Purchaser shall be
\nentitled to set-off the amount of the Requested Set-Off Payment under this
\nSection 8.08, but not in respect of any other matter relating to such Set-Off
\nClaim, including whether any Purchaser Indemnified Party is ultimately
\ndetermined to be entitled to be indemnified in respect of such Set-Off Claim
\nunder Section 8.02. The decision and award of the arbitrator shall be final and
\nbinding on the parties for the purpose set forth above, and may be entered and
\nenforced in any court having jurisdiction.<\/p>\n (f) If the arbitrator rules that the Set-Off Claim is not a claim that
\nentitles the Purchaser to withhold and set-off all or any portion of the
\nRequested Set-Off Payment against the next Milestone Payment (the
\n“Disallowed Requested Set-Off Payment<\/u>“), the Purchaser shall have no
\nright to withhold or set-off the Disallowed Requested Set-Off Payment in respect
\nof such Set-Off Claim and, if the Requested Set-Off Payment in respect of such
\nSet-Off Claim has previously been deposited in the Escrow Account, BSC shall be
\nentitled to instruct the Escrow Agent to release an amount equal to the
\nDisallowed Requested Set-Off Payment (plus any interest earned on such
\nDisallowed Requested Set-Off Payment at a rate of interest<\/p>\n 78<\/p>\n
\nfrom time to time publicly announced by Bank of America, N.A. as its prime or
\nbase rate plus 2%) to BSC from the Escrow Account in accordance with the terms
\nof the Escrow Agreement.<\/p>\n (g) If the arbitrator rules that the Purchaser is entitled to set-off all or
\nany portion of the Requested Set-Off Payment in respect of such Set-Off Claim
\n(the “Allowed Requested Set-Off Payment<\/u>“), the Purchaser shall have the
\nright to withhold and set-off against the Milestone Payments the Allowed
\nRequested Set-Off Payment in respect of such Set-Off Claim, and the amount of
\nthe Allowed Requested Set-Off Payment may be deposited, or if the Requested
\nSet-Off Payment has previously been deposited, retained, in the Escrow Account
\nin accordance with the terms of the Escrow Agreement.<\/p>\n (h) If BSC has not delivered a Set-Off Dispute Notice in accordance with
\nSection 8.08(d), or if the amount of the Requested Set-Off Payment has not been
\ndetermined in accordance with this Section 8.08 prior to the date of the next
\nMilestone Payment Date, the Purchaser shall deposit an amount equal to the
\nRequested Set-Off Payment into an escrow account (the “Escrow Account<\/u>“)
\non the Milestone Payment Date in accordance with the terms of the Escrow
\nAgreement. Otherwise, the amount of the Allowed Requested Set-Off Payment shall
\nbe deposited by the Purchaser in the Escrow Account on such date. The Requested
\nSet-Off Payment or the Allowed Requested Set-Off Payment (as applicable) shall
\nbe released from the Escrow Account in accordance with the terms of the Escrow
\nAgreement.<\/p>\n Section 8.09<\/u> Information; Waiver<\/u>. The right to indemnification
\nor any other remedy based on representations, warranties, covenants and
\nobligations in this Agreement shall not be affected by any investigation
\nconducted with respect to, or any knowledge acquired (or capable of being
\nacquired) at any time, whether before or after the execution and delivery of
\nthis Agreement, with respect to the accuracy or inaccuracy of or compliance
\nwith, any such representation, warranty, covenant or obligation. The waiver of
\nany condition based on the accuracy of any representation or warranty, or on the
\nperformance of or compliance with any covenant or obligation, will not affect
\nthe right to indemnification or any other remedy based on such representations,
\nwarranties, covenants and obligations.<\/p>\n ARTICLE IX<\/strong><\/p>\nTERMINATION, AMENDMENT AND WAIVER<\/strong><\/p>\nSection 9.01<\/u> Termination<\/u>. This Agreement may be terminated at
\nany time prior to the Closing:<\/p>\n (a) by either BSC or the Purchaser if the Closing shall not have occurred on
\nor before the six (6) month anniversary of the date of this Agreement (the
\n“End Date<\/u>“); provided<\/u> that the right to terminate this Agreement
\nunder this Section 9.01(a) shall not be available to any party whose failure to
\nfulfill any obligation under this Agreement shall have been the cause of, or
\nshall have resulted in, the failure of the Closing to occur on or prior to such
\ndate;<\/p>\n 79<\/p>\n
\n(b) by either the Purchaser or BSC in the event that any Governmental Order
\nrestraining, enjoining or otherwise prohibiting the transactions contemplated by
\nthis Agreement shall have become final and nonappealable;<\/p>\n (c) by the Purchaser if BSC shall have breached any of its representations,
\nwarranties, covenants or agreements contained in this Agreement, which would
\ngive rise to the failure of a condition set forth in Article VII and which
\ncannot be or has not been cured within thirty (30) days following written notice
\nthereof by the Purchaser;<\/p>\n (d) by BSC if the Purchaser shall have breached any of its representations,
\nwarranties, covenants or agreements contained in this Agreement, which would
\ngive rise to the failure of a condition set forth in Article VII and which
\ncannot be or has not been cured within thirty (30) days following written notice
\nthereof by BSC; or<\/p>\n (e) by the mutual written consent of BSC and the Purchaser.<\/p>\n Section 9.02<\/u> Effect of Termination<\/u>. In the event of termination
\nof this Agreement as provided in Section 9.01, this Agreement shall forthwith
\nbecome void and there shall be no liability on the part of either party hereto
\nexcept (a) as set forth in Section 5.03 and Article X and (b) that nothing
\nherein shall relieve either party from liability for any breach of this
\nAgreement occurring prior to such termination.<\/p>\n ARTICLE X<\/strong><\/p>\nGENERAL PROVISIONS<\/strong><\/p>\nSection 10.01<\/u> Expenses<\/u>. Except as otherwise specified in this
\nAgreement, all costs and expenses, including fees and disbursements of counsel,
\nfinancial advisors and accountants, incurred in connection with this Agreement
\nand the transactions contemplated by this Agreement shall be paid by the party
\nincurring such costs and expenses, whether or not the Closing shall have
\noccurred.<\/p>\n Section 10.02<\/u> Notices<\/u>. All notices, requests, claims, demands
\nand other communications hereunder shall be in writing and shall be given or
\nmade (and shall be deemed to have been duly given or made upon receipt) by
\ndelivery in person, by an internationally recognized overnight courier service,
\nby facsimile or registered or certified mail (postage prepaid, return receipt
\nrequested) to the respective parties hereto at the following addresses (or at
\nsuch other address for a party as shall be specified in a notice given in
\naccordance with this Section 10.02):<\/p>\n (a) if to BSC:<\/p>\n Boston Scientific Corporation
\nOne Boston Scientific Place
\nNatick, MA 01760-1537
\nFacsimile: (508) 650-8960
\nAttention: General Counsel<\/p>\n 80<\/p>\n
\nwith a copy to:<\/p>\n Shearman & Sterling LLP
\n599 Lexington Avenue
\nNew York, NY 10022-6069
\nFacsimile: (212) 848-7179
\nAttention: Clare O153Brien<\/p>\n (b) if to the Purchaser:<\/p>\n Stryker Corporation<\/p>\n 2825 Airview Blvd.
\nKalamazoo, Michigan 49002 USA
\nFacsimile: (269) 385-2066
\nAttention: General Counsel<\/p>\n with a copy (which shall not constitute notice) to:<\/p>\n Skadden, Arps, Slate, Meagher & Flom LLP
\n155 North Wacker Drive
\nChicago, Illinois 60606
\nFacsimile: (312) 407-8518
\nAttention: Charles W. Mulaney, Jr.<\/p>\n Richard C. Witzel, Jr.<\/p>\n Section 10.03<\/u> Public Announcements<\/u>. Neither party to this
\nAgreement shall make, or cause to be made, any press release or public
\nannouncement in respect of this Agreement or the transactions contemplated by
\nthis Agreement or otherwise communicate with any news media without the prior
\nwritten consent of the other party unless otherwise required by Law or
\napplicable stock exchange regulation, and the parties to this Agreement shall
\ncooperate as to the timing and contents of any such press release, public
\nannouncement or communication.<\/p>\n Section 10.04<\/u> Severability<\/u>. If any term or other provision of
\nthis Agreement is invalid, illegal or incapable of being enforced by any Law or
\npublic policy, all other terms and provisions of this Agreement shall
\nnevertheless remain in full force and effect for so long as the economic and
\nlegal substance of the transactions contemplated by this Agreement are not
\naffected in any manner materially adverse to either party hereto. Upon such
\ndetermination that any term or other provision is invalid, illegal or incapable
\nof being enforced, the parties hereto shall negotiate in good faith to modify
\nthis Agreement so as to effect the original intent of the parties as closely as
\npossible in an acceptable manner in order that the transactions contemplated by
\nthis Agreement are consummated as originally contemplated to the greatest extent
\npossible.<\/p>\n 81<\/p>\n
\nSection 10.05<\/u> Entire Agreement<\/u>. This Agreement, the Ancillary
\nAgreements and the Confidentiality Agreement constitute the entire agreement of
\nthe parties hereto with respect to the subject matter hereof and thereof and
\nsupersede all prior agreements and undertakings, both written and oral, between
\nBSC and the Purchaser with respect to the subject matter hereof and thereof.\n<\/p>\n Section 10.06<\/u> Assignment<\/u>. This Agreement may not be assigned by
\noperation of law or otherwise without the express written consent of BSC and the
\nPurchaser (which consent may be granted or withheld in the sole discretion of
\nBSC or the Purchaser), as the case may be; provided<\/u> that the Purchaser
\nmay assign this Agreement or any of its rights and obligations hereunder to one
\nor more Affiliates of the Purchaser (a “Purchaser Affiliate<\/u>“) upon notice
\nto BSC but without the consent of BSC, so long as any such assignment (a) shall
\nnot release the Purchaser from any obligation or liability hereunder and (b) is
\nnot likely to delay the Closing, provided that BSC acknowledges and agrees that
\nthe Purchaser may, subject to its compliance with clause (a) above, assign
\ncertain of its rights and obligations hereunder to the Purchaser Affiliates
\nspecified in Schedule 10.06.<\/p>\n Section 10.07<\/u> Amendment<\/u>. This Agreement may not be amended or
\nmodified except (a) by an instrument in writing signed by, or on behalf of, BSC
\nand the Purchaser or (b) by a waiver in accordance with Section 10.08.<\/p>\n Section 10.08<\/u> Waiver<\/u>. Either party to this Agreement may (a)
\nextend the time for the performance of any of the obligations or other acts of
\nthe other party, (b) waive any inaccuracies in the representations and
\nwarranties of the other party contained herein or in any document delivered by
\nthe other party pursuant hereto or (c) waive compliance with any of the
\nagreements of the other party or conditions to such party153s obligations
\ncontained herein. Any such extension or waiver shall be valid only if set forth
\nin an instrument in writing signed by the party to be bound thereby. Any waiver
\nof any term or condition shall not be construed as a waiver of any subsequent
\nbreach or a subsequent waiver of the same term or condition, or a waiver of any
\nother term or condition of this Agreement. The failure of either party hereto to
\nassert any of its rights hereunder shall not constitute a waiver of any of such
\nrights. All rights and remedies existing under this Agreement are cumulative to,
\nand not exclusive of, any rights or remedies otherwise available.<\/p>\n Section 10.09<\/u> No Third Party Beneficiaries<\/u>. Except for the
\nprovisions of Article VIII relating to Indemnified Parties, this Agreement shall
\nbe binding upon and inure solely to the benefit of the parties hereto and their
\nrespective successors and permitted assigns and nothing herein, express or
\nimplied, is intended to or shall confer upon any other Person any legal or
\nequitable right, benefit or remedy of any nature whatsoever, including any
\nrights of employment for any specified period, under or by reason of this
\nAgreement.<\/p>\n Section 10.10<\/u> Currency and Exchange Rates<\/u>. Unless otherwise
\nspecified in this Agreement, all references to currency, monetary values and
\ndollars set forth herein shall mean United States (U.S.) dollars and all
\npayments hereunder shall be made in United States dollars. In the event that
\nthere is any need to convert U.S. dollars into any foreign currency, or vice
\nversa, for any purpose under this Agreement, the exchange rate shall be that
\npublished by the Wall Street Journal three (3) Business Days before the date on
\nwhich the<\/p>\n 82<\/p>\n
\nobligation is paid (or if the Wall Street Journal is not published on such
\ndate, the first date thereafter on which the Wall Street Journal is published),
\nexcept as otherwise required by applicable Law (in which case, the exchange rate
\nshall be determined in accordance with such Law).<\/p>\n Section 10.11<\/u> Specific Performance<\/u>. The parties hereto
\nacknowledge and agree that the parties hereto could be irreparably damaged if
\nany of the provisions of this Agreement are not performed in accordance with
\ntheir specific terms or are otherwise breached and that any non-performance or
\nbreach of this Agreement by any party hereto could not be adequately compensated
\nby monetary damages alone and that the parties hereto would not have any
\nadequate remedy at law. Accordingly, in addition to any other right or remedy to
\nwhich any party hereto may be entitled, at law or in equity (including monetary
\ndamages), such party shall be entitled to seek enforcement of any provision of
\nthis Agreement by a decree of specific performance and to seek temporary,
\npreliminary and permanent injunctive relief to prevent breaches or threatened
\nbreaches of any of the provisions of this Agreement without posting any bond or
\nother undertaking.<\/p>\n Section 10.12<\/u> Governing Law<\/u>. This Agreement shall be governed
\nby, and construed in accordance with, the laws of the State of Delaware, without
\nregard to choice or conflict of law principles that would result in the
\napplication of any laws other than the laws of the State of Delaware. Except as
\nprovided in Sections 2.03(b), 5.26 and 8.08(e), all Actions arising out of or
\nrelating to this Agreement shall be heard and determined exclusively in the
\nChancery Court of the State of Delaware and any state appellate court therefrom
\nwithin the State of Delaware (or, if the Chancery Court of the State of Delaware
\ndeclines to accept jurisdiction over a particular matter, any state or federal
\ncourt within the State of Delaware and any direct appellate court therefrom).
\nConsistent with the preceding sentence, the parties hereto hereby (a) submit to
\nthe exclusive jurisdiction of any such courts for the purpose of any Action
\narising out of or relating to this Agreement brought by either party hereto and
\n(b) irrevocably waive, and agree not to assert as a defense, counterclaim or
\notherwise, in any such Action, any claim that it is not subject personally to
\nthe jurisdiction of the above-named courts, that its property is exempt or
\nimmune from attachment or execution, that the Action is brought in an
\ninconvenient forum, that the venue of the Action is improper, or that this
\nAgreement or the transactions contemplated by this Agreement may not be enforced
\nin or by any of the above-named courts. Each of the parties hereto agrees that a
\nfinal judgment in any such Action may be enforced in other jurisdictions by suit
\non the judgment or in any other manner provided by Law. Each party agrees that
\nnotice or the service of process in any Action arising out of or relating to
\nthis Agreement shall be properly served or delivered if delivered in the manner
\ncontemplated by Section 10.02, provided that nothing in this Agreement shall
\naffect the right of any party hereto to serve process in any other manner
\npermitted by applicable Law.<\/p>\n Section 10.13<\/u> Waiver of Jury Trial<\/u>. EACH OF THE PARTIES HERETO
\nHEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY
\nHAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION BETWEEN THE PARTIES
\nDIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
\nAGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH OF THE
\nPARTIES HERETO HEREBY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF
\nTHE OTHER<\/p>\n 83<\/p>\n
\nPARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
\nNOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
\nACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE
\nTRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, AS APPLICABLE, BY, AMONG OTHER
\nTHINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.13.<\/p>\n Section 10.14<\/u> Counterparts<\/u>. This Agreement may be executed and
\ndelivered (including by facsimile or pdf transmission) in one or more
\ncounterparts, and by the different parties hereto in separate counterparts, each
\nof which when executed shall be deemed to be an original, but all of which taken
\ntogether shall constitute one and the same agreement.<\/p>\n 84<\/p>\n
\nIN WITNESS WHEREOF, each of BSC and the Purchaser has caused this Agreement
\nto be executed as of the date first written above by its respective officers
\nthereunto duly authorized.<\/p>\n \n\n\n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n BOSTON SCIENTIFIC CORPORATION<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n By:<\/p>\n<\/td>\n | <\/td>\n | \n \/s\/ J. Raymond Elliott<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Name:<\/p>\n<\/td>\n | <\/td>\n | \n J. Raymond Elliott<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Title:<\/p>\n<\/td>\n | <\/td>\n | \n President and Chief Executive Officer<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n STRYKER CORPORATION<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n By:<\/p>\n<\/td>\n | <\/td>\n | \n \/s\/ Stephen P. MacMillan<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Name:<\/p>\n<\/td>\n | <\/td>\n | \n Stephen P. MacMillan<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | \n Title:<\/p>\n<\/td>\n | <\/td>\n | \n Chairman, President and Chief<\/p>\n<\/td>\n<\/tr>\n | \n| <\/td>\n | <\/td>\n | <\/td>\n | <\/td>\n | \n Executive Officer<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table><\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6931],"corporate_contracts_industries":[9436],"corporate_contracts_types":[9623,9622],"class_list":["post-43562","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-boston-scientific-corp","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\/43562","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=43562"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43562"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43562"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43562"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}} | | | | | | | |