ASSET PURCHASE AGREEMENT
by and among
NMT NEUROSCIENCES (US), INC.
as "Seller"
NMT MEDICAL, INC.
as "Parent"
and
INTEGRA SELECTOR CORPORATION
as "Buyer"
Dated as of March ___, 2000
TABLE OF CONTENTS
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ARTICLE I DEFINITIONS............................................................................................1
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1.1 CERTAIN DEFINED TERMS. .......................................................................................1
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1.2 OTHER DEFINED TERMS. .........................................................................................4
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ARTICLE II PURCHASE AND SALE OF ASSETS...........................................................................5
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2.1 TRANSFER OF ASSETS............................................................................................5
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2.2 EXCLUDED LIABILITIES..........................................................................................5
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2.3 PURCHASE PRICE................................................................................................5
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2.4 POST-CLOSING ADJUSTMENT.......................................................................................6
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2.5 ALLOCATION OF PURCHASE PRICE..................................................................................7
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2.6 TRANSFER TAXES AND TRANSFER FEES. ............................................................................7
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ARTICLE III CLOSING..............................................................................................7
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3.1 CLOSING. .....................................................................................................7
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ARTICLE IV REPRESENTATIONS AND WARRANTIES OF SELLER AND PARENT...................................................7
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4.1 ORGANIZATION. ................................................................................................7
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4.2 AUTHORIZATION, ETC............................................................................................7
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4.3 NO CONFLICT OR VIOLATION. ....................................................................................8
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4.4 NO GOVERNMENTAL AND OTHER CONSENTS............................................................................8
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4.5 NO BROKERS....................................................................................................8
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4.6 FINANCIAL STATEMENTS..........................................................................................8
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4.7 PERMITS.......................................................................................................8
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4.8 TITLE AND CONDITION OF CERTAIN ASSETS.........................................................................8
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4.9 INTELLECTUAL PROPERTY.........................................................................................8
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4.10 LITIGATION...................................................................................................9
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4.11 INVENTORY....................................................................................................9
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4.12 CERTIFICATIONS; PRODUCT SAFETY; OTHER LAWS AND PERMITS.......................................................9
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4.13 CUSTOMERS, SUPPLIERS AND LICENSORS. ........................................................................10
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4.14 EXPORT......................................................................................................10
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4.15 PRODUCT LIABILITY CLAIMS....................................................................................10
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ARTICLE V REPRESENTATIONS AND WARRANTIES OF BUYER...............................................................10
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5.1 ORGANIZATION, ETC............................................................................................10
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5.2 NO CONFLICT OR VIOLATION.....................................................................................10
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5.3 GOVERNMENTAL CONSENTS........................................................................................11
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5.4 NO BROKERS...................................................................................................11
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ARTICLE VI PRE-CLOSING COVENANTS OF SELLER, PARENT AND BUYER....................................................11
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6.1 ACCESS.......................................................................................................11
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6.2 OPERATION OF THE BUSINESS....................................................................................11
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6.3 NOTIFICATION.................................................................................................11
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6.4 RISK OF LOSS.................................................................................................12
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6.5 BEST EFFORTS TO CAUSE CONDITIONS TO BE SATISFIED.............................................................12
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6.6 AGREEMENT ON ASSIGNMENT OF ASSETS............................................................................12
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6.7 OBTAINING TRANSFER OF PERMITS................................................................................12
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6.8 EXCLUSIVITY..................................................................................................12
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ARTICLE VII CONDITIONS TO SELLER'S AND PARENT'S OBLIGATIONS.....................................................12
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7.1 REPRESENTATIONS, WARRANTIES AND COVENANTS....................................................................12
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7.2 NO INJUNCTION................................................................................................13
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7.3 NONCOMPETITION AGREEMENT.....................................................................................13
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7.4 CLOSING DOCUMENTS............................................................................................13
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ARTICLE VIII CONDITIONS TO BUYER'S OBLIGATIONS..................................................................13
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8.1 REPRESENTATIONS, WARRANTIES AND COVENANTS....................................................................13
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8.2 NO ACTIONS WITH RESPECT TO TRANSACTIONS......................................................................13
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8.3 NONCOMPETITION AGREEMENT.....................................................................................13
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8.4 CLOSING DOCUMENTS............................................................................................13
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8.5 NO MATERIAL ADVERSE CHANGE...................................................................................13
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ARTICLE IX TERMINATION BEFORE CLOSING...........................................................................14
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9.1 TERMINATION..................................................................................................14
9.2 IN THE EVENT OF TERMINATION..................................................................................14
ARTICLE X ACTIONS BY THE PARTIES AFTER THE CLOSING..............................................................15
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10.1 STORAGE OF ASSETS; USE OF CERTAIN EQUIPMENT.................................................................15
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10.2 CUSTOMER SERVICE............................................................................................15
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10.3 COOPERATION.................................................................................................15
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10.4 AGREEMENT ON TRANSFER OF ASSETS.............................................................................15
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ARTICLE XI SURVIVAL AND INDEMNIFICATION.........................................................................15
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11.1 SURVIVAL OF REPRESENTATIONS ................................................................................15
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11.2 INDEMNIFICATION.............................................................................................16
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ARTICLE XII MISCELLANEOUS.......................................................................................18
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12.1 EMPLOYEES ..................................................................................................18
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12.2 PAYMENT OF EXPENSES.........................................................................................18
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12.3 MODIFICATIONS; WAIVERS. ....................................................................................18
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12.4 ASSIGNABILITY...............................................................................................18
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12.5 NO OTHER REPRESENTATIONS. ..................................................................................18
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12.6 NOTICES.....................................................................................................18
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12.7 CAPTIONS....................................................................................................19
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12.8 COUNTERPARTS................................................................................................19
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12.9 KNOWLEDGE...................................................................................................19
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12.10 GOVERNING LAW..............................................................................................20
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12.11 ENTIRE AGREEMENT...........................................................................................20
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12.12 INVALIDITY.................................................................................................20
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12.13 CUMULATIVE REMEDIES........................................................................................20
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12.14 PUBLICITY..................................................................................................20
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12.15 CONFIDENTIALITY. ..........................................................................................20
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12.16 USE OF "NMT" NAME..........................................................................................21
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EXHIBITS
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1.1(a) Financial Statements
1.1(b) Terms of Noncompetition Agreement
2.5 Allocation of Purchase Price
7.4 Closing Agenda
3
Disclosure Schedule
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4.4 Governmental and Other Consents
4.7 Permits (including assignability of Permits)
4.9 List of Intellectual Property
4.11 Locations and Ownership of Inventory
4.12(a) Certain Certifications
4.12(b) Notice re Certifications
4.14 Exports
This Asset Purchase Agreement (this "Agreement") is entered into
as of March ___, 2000, by and among Integra Selector Corporation, a Delaware
corporation ("Buyer"), NMT NeuroSciences (US), Inc., a Delaware corporation
("Seller"), and NMT Medical, Inc., a Delaware corporation ("Parent").
RECITALS
A. Seller owns certain assets used in the conduct of the Business
(as defined below). Parent owns all of the outstanding equity interest in
Seller.
B. Buyer desires to purchase from Seller, and Seller desires to
sell to Buyer, certain of such assets, upon the terms and subject to the
conditions contained in this Agreement.
AGREEMENT
NOW THEREFORE, in consideration of the mutual covenants and
representations contained in this Agreement and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties agree as follows:
ARTICLE I
DEFINITIONS
1.1 Certain Defined Terms. As used in this Agreement:
"Accounts Receivable" shall mean all accounts receivable, notes
receivable, rights to refunds, prepayments and deposits.
"Action" shall mean any action, claim (including product liability
claim), proceeding, dispute, audit or investigation.
"Affiliate" shall mean, with respect to any Person, a Person that
directly, or indirectly through one or more intermediaries, controls, was
controlled by, or was under common control with, such Person at December 31,
1999 or any time since such date.
"Assets" shall mean all right, title and interest in and to the
business, properties, assets and rights of any kind, whether tangible or
intangible, used in or related to the Business, consisting of all of Seller's
right, title and interest in and to the following (but excluding the Excluded
Assets):
(a) Equipment;
(b) Inventory;
(c) Books and Records;
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(d) Intellectual Property; and
(e) Permits, to the extent transferable.
"Books and Records" shall mean (i) all records of Seller and Parent
relating to the Assets, and (ii) all records of Seller and Parent used in or
relating to the Business or customers or suppliers of the Business, including in
each case (x) any records that are in electronic form, (y) any records relating
to quality assurance, and (z) all lists of vendors, lists of current customers,
lists of past customers, lists or other documents describing prospective
customers (such as sales leads), owned information describing marketing and
selling tactics and strategy, all quality system procedures, policies, orders,
complaints and other records, and all regulatory filings and submissions to the
United States Food and Drug Administration, but excluding in each case (A)
corporate minute books and stock records of Seller and Parent, and (B) records
relating to Seller's and Parent's employees.
"Business" shall mean the Ruggles(R) business of importing, developing,
manufacturing, customizing, marketing, selling and distributing surgical
instruments.
"Contract" shall mean all agreements, contracts, leases (including all
leases with respect to real property), obligations, nongovernmental licenses and
commitments to which Seller is a party or by which Seller is bound, whether oral
or written.
"Disclosure Schedule" shall mean the schedule attached to and
incorporated in this Agreement which sets forth the exceptions to the
representations and warranties contained in Article IV of this Agreement and
certain other information called for by Article IV; each reference in Article IV
of this Agreement to any numbered schedule is a reference to that numbered
section of the Disclosure Schedule.
"Encumbrance" shall mean any claim, lien, pledge, security interest,
restriction, easement, option or other preemptive right, possessory right,
encumbrance or other similar right.
"Equipment" shall mean all furnishings, machinery, supplies, equipment,
tools and other tangible personal property owned by Seller, Parent, or any of
their respective Affiliates, and used in or related to the Business, wherever
located, including all tools for modifying and repairing instruments.
"Excluded Assets," shall mean the following assets of Seller, Parent or
any of their respective Affiliates, which (even though used in or related to the
Business) are not to be acquired by Buyer:
(a) Owned Real Property;
(b) Contracts (other than those constituting Intellectual Property);
(c) cash and cash equivalents;
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(d) Accounts Receivable;
(e) Permits, to the extent not transferable; and
(f) the tradename "NMT".
"Financial Statements" shall mean (i) a statement of the revenue of
Seller for the twelve-month period ended December 31, 1999, and (ii) a statement
of the Inventory Amount as of the Reference Date, all attached to this Agreement
as Exhibit 1.1(a).
"GAAP" shall mean United States generally accepted accounting
principles as in effect from time to time.
"including" shall mean including without limitation.
"Intellectual Property" shall mean any and all Copyrights, Patents,
Know-How, and Trademarks, and all rights (including moral rights) vesting in
Seller, Parent, or any of their respective Affiliates pursuant to any Laws and
used in or related to the Business. For purposes of this definition:
(a) "Copyrights" shall mean all copyrights, assignments of
copyrights, design rights, rights to mask works and database rights,
and all registrations and applications for registration of any of the
foregoing;
(b) "Patents" shall mean patents and patent applications, if any,
all continuations, continuations-in-part, divisions, reissues,
reexaminations, extensions and foreign counterparts of such patents and
patent applications, and all invention disclosures and rights in
inventions;
(c) "Know-How" shall mean methods, devices, technology, trade
secrets, industrial designs, know-how, show-how, technical and training
manuals and documentation and other proprietary information, including
proprietary processes, designs and formulae; and
(d) "Trademarks" shall mean (i) registered trademarks and
registered service marks, applications for registration for
trademarks and service marks, renewal registrations and
applications for renewal registrations, extensions and foreign
counterparts of such registrations and applications for
registration; (ii) material unregistered trademarks and
service marks; (iii) corporate names, business names and trade
names, whether registered or unregistered; and (iv) Internet
domain names and associated addresses and URL's, in each case
including (A) any and all embodiments of the Ruggles mark and
(B) all goodwill associated therewith.
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"Inventory" shall mean (i) all inventory held for resale with respect
to the Business and owned by Seller or any Affiliate of Seller, including all
inventory on consignment, (ii) all promotional materials with respect to the
Business owned by Seller or any Affiliate of Seller, including all field
samples, demos, hospital loaners and prototypes, and (iii) all raw materials,
work in process, finished products, wrapping, supply and packaging materials and
similar items with respect to the Business owned by Seller or any Affiliate of
Seller, in each case wherever located.
"Inventory Amount" shall mean a calculation of the book value of the
Inventory as of any date in accordance with GAAP, applied in accordance with
Seller's past practice; provided, however, that in calculating the Inventory
Amount as of any date, reserves shall equal the reserves set forth in the
Financial Statements.
"Law" shall mean any federal, state, local or foreign statute, rule,
regulation, order, or judgment of any governmental authority applicable to the
Assets or the Business.
"Material Adverse Effect" or "Material Adverse Change" shall mean a
material adverse effect on, or change in, the Assets.
"Noncompetititon Agreement" shall mean a Noncompetition Agreement,
dated as of the Closing, among the parties hereto, containing the provisions set
forth in Exhibit 1.1(b).
"Owned Real Property" shall mean all real property owned in fee by
Seller, including all rights, easements and privileges appertaining or relating
to such real property and all buildings, fixtures and improvements located on
such real property.
"Permit" shall mean any license, permit, authorization, certificate or
order of any governmental authority used in or related to the Business.
"Person" shall mean any individual, corporation, general or limited
partnership, limited liability company, trust, governmental body or other
entity.
"Reference Date" shall mean December 31, 1999
"Representative" shall mean, with respect to any Person, any officer,
director, principal, attorney, agent, employee or other representative of such
Person.
"Tax" shall mean any federal, state, local or foreign tax, assessment
or other government charge, including any income, property, payroll, sales and
transfer tax, and any penalty in connection with any such tax.
1.2 Other Defined Terms. Each of the following terms shall have the
meanings given it in the Section set forth opposite such term below:
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Term Section
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Agreement Preamble
Base Inventory Amount 2.3(b)
Buyer Preamble
Closing 3.1
Closing Agenda 7.4
Closing Date 3.1
Closing Inventory Statement 2.4(a)
Closing Payment 2.3(b)
Dispute Notice 2.4(c)
Indemnified Party 11.2(c)
Indemnifying Party 11.2(c)
Liabilities 2.2
Losses 11.2(a)
Parent Preamble
Product Safety Regulations 4.12(a)
Purchase Price 2.3
Seller Preamble
Seller's Accountants 2.4(a)
ARTICLE II
PURCHASE AND SALE OF ASSETS
2.1 Transfer of Assets. At the Closing, Seller will sell, convey,
transfer, assign and deliver to Buyer, and Buyer will acquire from Seller, the
Assets, free and clear of all Encumbrances.
2.2 Excluded Liabilities. Buyer shall not assume, or otherwise be
responsible for, any liabilities or obligations of Seller, whether actual or
contingent, matured or unmatured, known or unknown, and whether arising out of
occurrences prior to, at or after the Closing Date (the "Liabilities").
2.3 Purchase Price. The purchase price for the Assets and Seller's and
Parent's entry into the Noncompetition Agreement (the "Purchase Price") shall
be:
(a) $2,000,000 (Two Million Dollars); plus
(b) the estimate of the Inventory Amount delivered to Buyer at
Closing (the "Base Inventory Amount"); ((a) and (b) being the
"Closing Payment"), plus or minus,
(c) the post-closing adjustment provided for in Section 2.4 of
this Agreement.
To the extent Buyer is required to withhold amounts from the Closing Payment to
satisfy any tax withholding obligation of any applicable Tax authority in
connection with or as a result of the transaction contemplated hereby, the
amount of the Closing Payment shall be reduced by such
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amounts to be withheld. At the Closing, Buyer shall pay to Seller the Closing
Payment (less any amounts set forth in the preceding sentence) by wire transfer
of immediately available funds to an account designated by Parent.
2.4 Post-Closing Adjustment.
(a) Closing Inventory Statement. No later than (15) days after the
Closing, Seller and Parent shall cause Arthur Andersen, Seller's independent
accounts ("Seller's Accountants"), to deliver to Buyer (i) an itemization of the
Inventory and (ii) a calculation of the Inventory Amount as of the Closing Date
(the "Closing Inventory Statement"). As part of the preparation of the Closing
Inventory Statement, Buyer may, at its option, conduct, or cause to be
conducted, its own physical inventory, which may be observed by Seller and/or
its Representatives.
(b) Review and Cooperation. Buyer, its independent accountants, and its
other Representatives shall have the right to review the Closing Inventory
Statement, and Parent and Seller will cooperate with them in the review process
and will provide them reasonable access to all information used in the
preparation of the Closing Inventory Statement.
(c) Dispute Resolution. Pursuant to such review, no later than (15)
days after its receipt of the Closing Inventory Statement, Buyer shall deliver
to Seller a notice (the "Dispute Notice") describing any item or amount in the
Closing Inventory Statement that is disputed by Buyer. If Buyer does not deliver
a Dispute Notice to Seller, then the Closing Inventory Statement shall be deemed
to be final and binding on the parties. The parties shall attempt to resolve any
such dispute, but if they cannot do so within (30) days after the date of
receipt of the Dispute Notice, then the parties shall jointly select an
independent accountant to do so. If the parties cannot agree on the appointment
of such independent accountant, such accountant shall be selected at random from
a list comprised of two firms chosen by Parent and two firms chosen by Buyer
(which firms shall not have been engaged by Parent, Buyer or any of their
Affiliates during the prior (3) years). The determination of the Inventory
Amount on the final Closing Inventory Statement made by such independent
accountant will be final and binding on the parties, and Buyer, on the one hand,
and Parent and Seller, on the other, will share equally the cost of retaining
such independent accountant.
(d) Adjustment Payment. No later than (10) days after the final
determination of the Inventory Amount pursuant to clause (c) above, the
following payments, as applicable, shall be made by wire transfer of immediately
available funds: (i) if the Inventory Amount on the final Closing Inventory
Statement is greater than the Base Inventory Amount, then Buyer will pay to
Seller the difference between the two; or (ii) if the Inventory Amount on the
final Closing Inventory Statement is less than the Base Inventory Amount, then
Parent will pay (or cause Seller to pay) to Buyer the difference between the
two; provided, however, that no payment will be required by any party unless the
difference between the Inventory Amount on the final Closing Inventory Statement
and the Base Inventory Amount is at least $20,000 (Twenty Thousand Dollars) (in
which case payment of the full amount of the difference will be required).
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2.5 Allocation of Purchase Price. The Purchase Price shall be allocated
among the Assets in accordance with Exhibit 2.5. Buyer and Seller each agree to
prepare and file Tax returns in a manner consistent with this allocation.
2.6 Transfer Taxes and Transfer Fees. Seller shall be responsible for
any documentary and transfer Taxes and any other Taxes imposed by reason of the
transfers of Assets provided for under this Agreement.
ARTICLE III
CLOSING
3.1 Closing. The Closing of the transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of Latham & Watkins,
Sears Tower, Suite 5800, Chicago, Illinois 60606, at 10:00 a.m. local time, on
March ___, 2000, or on such other date as the parties may agree (in any case,
the "Closing Date").
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLER AND PARENT
Seller and Parent, jointly and severally, represent and warrant to
Buyer as of the date of this Agreement and as of the Closing Date, as follows:
4.1 Organization.
(a) Seller. Seller is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware, with full
corporate power and authority to conduct the Business as it is presently being
conducted and to own and lease its properties and assets.
(b) Parent. Parent is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware. Parent is the sole
stockholder of Seller and, except for Parent, no Person holds any equity
interest in, or has any subscription right, preemptive right, warrant, option or
other right to acquire any equity interest in, Seller.
4.2 Authorization, Etc.
(a) Power and Actions Taken. Each of Seller and Parent has all
requisite corporate power and authority and has taken or will take all requisite
corporate action necessary, to execute and deliver this Agreement and the
Noncompetition Agreement, to consummate the transactions contemplated on its
part under this Agreement and each the Noncompetition Agreement, and to perform
its obligations under this Agreement and the Noncompetition Agreement.
(b) Due Execution, Delivery and Enforceability. Each of Seller and
Parent has duly executed and delivered or will duly execute and deliver this
Agreement and the Noncompetition Agreement, and this Agreement and the
Noncompetition Agreement is or will be a valid and
legally binding obligation of such party, enforceable against each such party in
accordance with its terms, except to the extent that enforceability may be
limited by applicable bankruptcy, insolvency, or similar laws affecting the
enforcement of creditors' rights generally and subject to general principles of
equity (regardless of whether such enforcement is considered in a proceeding in
law or at equity).
4.3 No Conflict or Violation. The execution, delivery and performance
of this Agreement and the Noncompetition Agreement will not: (i) violate or
conflict with any provision of the governing documents of Seller or Parent; (ii)
violate any Law; and (iii) violate, conflict with, or constitute a default (or
an event which, with notice or lapse of time or both, would constitute a
default) under, or result in the creation of any Encumbrance upon any of the
Assets or the Business pursuant to, any Contract to which Seller or Parent is a
party or to which any Assets are subject.
4.4 No Governmental or Other Consents. Except as set forth on Schedule
4.4, no consent or approval of, notice to, or filing with, any Person is
required to be obtained, given or made by Seller or Parent to permit Seller to
transfer any of the Assets to Buyer.
4.5 No Brokers. Seller, Parent and their respective agents have
incurred no obligation for brokerage fees or similar payments in connection with
the transactions contemplated by this Agreement.
4.6 Financial Statements. The Financial Statements: (i) are in
accordance with the Books and Records of Seller; and (ii) fairly present in all
material respects the revenues of Seller for the twelve-month period ended
December 31, 1999 and the Inventory Amount as of the Reference Date.
4.7 Permits. (a) Schedule 4.7 contains a complete and accurate list of
the Permits and (b) the Permits constitute all licenses, permits,
authorizations, certifications or orders of any governmental authority that are
required to operate the Business as it is now conducted. The Permits set forth
on Schedule 4.7 which are marked with an asterisk are transferable to Buyer at
the Closing.
4.8 Title and Condition of Certain Assets. Seller has, and will
transfer to Buyer at the Closing, good and marketable title to the Equipment,
the Inventory and the other Assets free and clear of any Encumbrances. The
Equipment is usable and operable in good working order and condition, and is in
a reasonable state of repair, subject only to ordinary wear and tear, and has
been subject to regular maintenance.
4.9 Intellectual Property. Schedule 4.9 contains a complete and
accurate list of the Intellectual Property. Except as set forth on Schedule 4.9:
(i) Seller's right, title and interest in the Intellectual Property as owner or,
subject to the terms of any applicable license, as licensee, is valid,
enforceable, and uncontested, and is free and clear of all Encumbrances (except
to the extent any of the Intellectual Property is licensed to Seller); (ii) to
Seller's and Parent's knowledge, there are no infringements, unlawful uses, or
defaults by any third party under any
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license or other agreement with respect to the Intellectual Property; and (iii)
Seller is not in default of any license or other agreement, or infringing upon
any rights of any third party, in its use of the Intellectual Property and
neither Seller nor Parent have received any notice alleging any such default or
infringement.
4.10 Litigation. There is no Action pending or, to Seller's or Parent's
knowledge, threatened: (i) relating to the Business or the Assets; or (ii)
seeking to delay, limit or enjoin any transaction contemplated by this
Agreement.
4.11 Inventory. Schedule 4.11 contains a complete and accurate list of
addresses at which Inventory is located. All Inventory reflected in the
Financial Statements and all other Inventory acquired by Seller since the
Reference Date was acquired in the ordinary course of business and in a manner
consistent with Seller's regular inventory practices. Except for demonstration
Inventory, all such Inventory is in good and saleable condition, except for
products in the development phase which have not been completed for offer or
sale to customers. Except as set forth on Schedule 4.11, none of Inventory is
held by any Person (including any Affiliates of Seller) on consignment or is
located outside of the locations shown on Schedule 4.11. Adequate reserves have
been established on Seller's Books and Records with respect to excessive and
obsolete Inventory (it being agreed that for the purposes of this Section 4.11,
the term "excessive and obsolete inventory" shall refer to any on-hand raw
materials, parts, supplies, or finished products which (a) cannot be sold at
current prices in the ordinary course of business, (b) which are not usable in
the production of current products, or (c) which consist of on-hand quantities
in excess of one year's historical usage).
4.12 Certifications; Product Safety; Other Laws and Permits.
(a) Except as set forth on Schedule 4.12(a), (i) all
operations of the Business have achieved and maintained the ISO 9001 and quality
certifications and are compliant with United States Food and Drug Administration
Quality System Regulations (collectively, the "Product Safety Regulations") in
all material respects, and (ii) there is no pending, and neither Parent nor
Seller has received any notice of, nor is aware of, any threatened, action to
audit, repeal, fail to renew or challenge any of such certification.
(b) Except as set forth on Schedule 4.12(b), none of Parent,
Seller, or their respective Affiliates has been required to file any
notification or other report with or provide information to any product safety
agency, commission, board or other governmental authority of any jurisdiction
concerning actual or potential hazards with respect to any product manufactured,
distributed, sold or leased or service rendered by Seller or the Business or any
employee or agent thereof. Each product manufactured, sold or leased, or service
rendered by Seller or the Business complies in all material respects with all
product safety standards of each applicable product safety agency, commission,
board or other governmental authority.
(c) Seller has not, in the conduct of the Business or the use
of the Assets, violated any Law or Permit (excluding the Product Safety
Regulations), except where such violation has not had and will not have a
Material Adverse Effect, and neither Seller nor Parent
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has received any notice to the effect that, or otherwise been advised that,
either the Business or the Assets are not in compliance with any Law or Permit.
4.13 Customers, Suppliers and Licensors. None of Parent, Seller or
their respective Affiliates has received written notice of or has knowledge that
any customers or distributors of, or suppliers or licensors to, the Business has
taken any action (or intends or could reasonably be expected to take any action
as a result of the transactions contemplated hereby), which could materially
adversely affect the business relationship of Seller or the Business with such
customer, distributor, supplier or licensor.
4.14 Export. Except as set forth on Schedule 4.14, neither Parent nor
Seller has sold at any time since July 8, 1998, or to the knowledge of Parent or
Seller, at any time prior thereto, directly or indirectly through any Affiliate,
or to its knowledge through a distributor or other Person, any products of the
Business in or to any of the following countries (or to any Person acting on
behalf of any of the following countries): Burma (Myanmar), Cuba, Libya, Iran,
Iraq, North Korea, Sudan, Syria, Yugoslavia, or the Taliban in Afghanistan or
UNITA in Angola.
4.15 Product Liability Claims. Seller has maintained product liability
insurance coverage in amounts of not less than $1,000,000 per occurrence and
$10,000,000 in the aggregate with respect to products of the Business
manufactured, sold, distributed or delivered by Seller. Such products liability
insurance is on a claims made basis.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller and Parent, as of the
date of this Agreement and as of the Closing Date, as follows:
5.1 Organization, Etc. Buyer is a corporation duly organized, validly
existing and in good standing under the laws of Delaware. Buyer has all
requisite corporate power and authority, and has taken or will take all
corporate action necessary, to execute and deliver this Agreement and the
Noncompetition Agreement, to consummate the transactions contemplated on its
part under this Agreement and the Noncompetition Agreement, and to perform its
obligations under this Agreement and the Noncompetition Agreement. This
Agreement and the Noncompetition Agreement have been or will be duly executed
and delivered by Buyer and each is or will be a valid and legally binding
obligation of Buyer, enforceable against Buyer in accordance with its terms,
except to the extent that enforceability may be limited by applicable
bankruptcy, insolvency, or similar laws affecting the enforcement of creditors'
rights generally and subject to general principles of equity (regardless of
whether such enforcement is considered in a proceeding in law or at equity).
5.2 No Conflict or Violation. The execution, delivery and performance
of this Agreement and the Noncompetition Agreement by Buyer: (i) will not
violate or conflict with any provision of the governing documents of Buyer; (ii)
will not violate any federal, state, local or foreign statute, rule, regulation,
order or judgment of any governmental authority applicable to Buyer; and (iii)
will not violate, conflict with, or constitute a default (or an event which,
with
10
notice or lapse of time or both, would constitute a default) under, any
contract, lease or agreement to which Buyer is a party, except for any such
violation, conflict or default which would not impair Buyer's ability to perform
its obligations under this Agreement or the Noncompetition Agreement.
5.3 Governmental Consents. No consent or approval of, notice to, or
filing with, any governmental authority is required to be made by Buyer to
permit Buyer to purchase the Assets from Seller.
5.4 No Brokers. Buyer and its agents have incurred no obligation for
brokerage fees or similar payments in connection with the transactions
contemplated by this Agreement.
ARTICLE VI
PRE-CLOSING COVENANTS OF SELLER, PARENT AND BUYER
Seller, Parent and Buyer covenant with each other as follows:
6.1 Access. From the date of this Agreement through the Closing Date,
Seller and Parent will (i) give Buyer and its Representatives full access,
during normal business hours and as often as reasonably requested, to the Assets
and the Business, including the Books and Records; and (ii) at Seller's expense,
provide to Buyer all information reasonably requested by Buyer or its
Representatives with respect to the Assets and the Business.
6.2 Operation of the Business. Between the date of this Agreement and
the Closing, Seller and Parent will:
(i) conduct the Business (including the collection of Accounts
Receivable) only in the ordinary course of business, consistent with past
practices;
(ii) use their best efforts to maintain existing positive
relations with suppliers, customers and others having business relationships
with the Business;
(iii) confer with Buyer concerning operational matters of material
nature; and
(iv) otherwise report periodically to Buyer concerning the status
of the Business.
6.3 Notification. Between the date of this Agreement and the Closing,
each party will promptly notify the other parties upon becoming aware of (a) any
breach, when made, of the representations and warranties contained in Article IV
or V of this Agreement, (b) any fact that would constitute such a breach if such
representations and warranties had been made as of the time of its awareness of
such fact, (c) any breach of a covenant contained in this Agreement, or (d) any
fact that makes the satisfaction of any condition contained in Article VII or
VIII of this Agreement impossible or unlikely.
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6.4 Risk of Loss. The parties acknowledge that Seller shall bear all
risk of loss, destruction or damage to any of the Assets, from any cause, until
the Closing, and thereafter Buyer shall bear all risk of loss.
6.5 Best Efforts To Cause Conditions To Be Satisfied. Between the date
of this Agreement and the Closing, each of Seller and Parent will use its best
efforts to cause to be satisfied the conditions contained in Articles VII and
VIII of this Agreement.
6.6 Agreement on Assignment of Assets. Prior to the Closing Date,
Seller shall cause all Assets owned by Parent, or an Affiliate of Parent or
Seller, to be assigned to Seller.
6.7 Obtaining Transfer of Permits. To the extent that Permits are
transferable by Seller to Buyer, Seller and Parent will promptly execute and
file with the appropriate governmental authorities applications for approval of
the transfer of all such Permits to Buyer. Each of Seller and Parent will use
its best efforts to:
(a) obtain all consents of governmental authorities required for
the transfer of such Permits to Buyer; and
(b) assist Buyer in obtaining all new Permits necessary for the
operation of the Business by Buyer following the Closing.
6.8 Exclusivity. Prior to the Closing Date or the date on which this
Agreement is terminated pursuant to Article IX, neither Parent, Seller, nor any
of their respective Affiliates nor any of their respective Representatives shall
directly, or indirectly through any other Person, encourage, solicit, initiate,
engage or participate in discussions or negotiations with any Person (other than
Buyer) concerning any merger, consolidation, sale, lease or licensing of assets,
sale of equity interests, or other business combination involving the Assets or
the Business, or (b) provide any non-public information concerning the Assets,
or the Business to any Person (other than Buyer). Parent and Seller shall
immediately notify Buyer of, and shall disclose to Buyer all details of, any
inquires, discussions or negotiations of the nature described in the first
sentence of this Section 6.8.
ARTICLE VII
CONDITIONS TO SELLER'S AND PARENT'S OBLIGATIONS
The obligations of Seller and Parent with respect to consummation of
the transactions provided for in this Agreement are subject, in the discretion
of Seller and Parent, to the satisfaction at or before the Closing of the
following conditions:
7.1 Representations, Warranties and Covenants. All representations and
warranties of Buyer contained in Article V of this Agreement shall have been
true and correct as of the date of this Agreement and shall be true and correct
in all material respects (without duplication of any materiality qualifier
contained therein) as of the Closing Date, and Buyer shall have performed in
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all material respects all covenants required by this Agreement to be performed
by it as of or before the Closing.
7.2 No Injunction. There shall not be in effect any injunction or other
requirement of a governmental authority that: (a) restrains or prohibits the
transfer of any Assets to Buyer; and (b) has become effective since the date of
this Agreement.
7.3 Noncompetition Agreement. Buyer shall have executed and delivered
to Seller and Parent the Noncompetition Agreement.
7.4 Closing Documents. Buyer shall have delivered to Seller the
documents shown in the Closing Agenda attached to this Agreement as Exhibit 7.4
(the "Closing Agenda") as being delivered by Buyer, and such other instruments
and documents as may be reasonably requested by Seller, all in form reasonably
satisfactory to Seller's counsel.
ARTICLE VIII
CONDITIONS TO BUYER'S OBLIGATIONS
The obligations of Buyer to consummate the transactions provided for in
this Agreement are subject, in the discretion of Buyer, to the satisfaction at
or before the Closing of the following conditions:
8.1 Representations, Warranties and Covenants. All representations and
warranties of Seller and Parent contained in Article IV of this Agreement shall
have been true and correct as of the date of this Agreement and shall be true
and correct in all material respects (without duplication of any materiality
qualifier contained therein) as of the Closing Date, and Seller and Parent shall
have performed in all material respects all covenants required by this Agreement
to be performed by any of them as of or before the Closing.
8.2 No Actions With Respect to Transactions. No Action shall have been
instituted or threatened by any governmental authority or other Person that
challenges, seeks damages in connection with, or seeks to restrain, any of the
transactions contemplated by this Agreement.
8.3 Noncompetition Agreement. Each of Seller and Parent shall have
executed and delivered to Buyer the Noncompetition Agreement.
8.4 Closing Documents. Seller and Parent shall have delivered to Buyer
the documents shown in the Closing Agenda as being delivered by them, and such
other instruments and documents as may be reasonably requested by Buyer, all in
form reasonably satisfactory to Buyer's counsel.
8.5 No Material Adverse Change. There shall have been no Material
Adverse Change since the Reference Date.
ARTICLE IX
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TERMINATION BEFORE CLOSING
9.1 Termination. This Agreement may be terminated by notice at any time
prior to Closing:
(a) By written consent of Buyer, Parent and Seller;
(b) By Buyer or Seller if the Closing shall not have occurred on or
before April 30, 2000; provided however, that this provision shall not be
available to Buyer if Seller has the right to terminate this Agreement under
clause (d) of this Section 9.1, and this provision shall not be available to
Seller if Buyer has the right to terminate this Agreement under clause (c) of
this Section 9.1;
(c) By Buyer if (i) there is a material breach of any covenant to be
performed by Parent or Seller under this Agreement which has not been waived by
Buyer, (ii) any of the conditions contained in Article VIII of this Agreement
has not been satisfied or waived by Buyer as of the Closing, or (iii)
satisfaction of any of the conditions contained in Article VIII of this
Agreement has become impossible (other than through a breach of a covenant
contained in this Agreement by Buyer) and Buyer has not waived such condition;
or
(d) By Seller if (i) there is a material breach of any covenant to be
performed by Buyer under this Agreement which has not been waived by Seller,
(ii) any of the conditions contained in Article VII of this Agreement has not
been satisfied or waived by Seller as of the Closing, or (iii) satisfaction of
any of the conditions contained in Article VII of this Agreement has become
impossible (other than through a breach of covenant contained in this Agreement
by Seller or Parent) and Seller has not waived such condition.
9.2 In the Event of Termination. In the event of termination of this
Agreement:
(a) Each party will redeliver all documents, work papers and other
material of any other party relating to the transactions contemplated by this
Agreement, whether so obtained before or after the execution of this Agreement,
to the party furnishing the same;
(b) The provisions of Section 12.15 (Confidentiality) shall continue in
full force and effect; and
(c) No party hereto shall have any liability to any other party to this
Agreement, except as stated in this Section 9.2 and except for any breach of a
covenant contained in this Agreement occurring prior to the proper termination
of this Agreement. The foregoing provisions shall not limit or restrict the
availability of specific performance or other injunctive relief to the extent
that specific performance or such other relief would otherwise be available to a
party hereunder.
ARTICLE X
ACTIONS BY THE PARTIES AFTER THE CLOSING
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10.1 Storage of Assets; Use of Certain Equipment. Seller and Parent
shall allow Buyer to store the Assets at their current location at no cost to
Buyer for a period of 60 days after the Closing Date. Seller and Parent shall
give Buyer and its Representatives reasonable access to Seller's and Parent's
facilities to allow Buyer to remove the Assets. In addition, Seller shall allow
Buyer to use Seller's bins and racks to assist in the storage and removal of the
Assets.
10.2 Customer Service. For a period of 30 days after the Closing,
Seller shall, at its expense, provide all assistance reasonably requested by
Buyer with transition customer service matters with respect to the Business.
10.3 Cooperation. From time to time after the Closing, Parent, Seller
and Buyer shall, and shall cause their respective Affiliates to, at the
reasonable request of Buyer or Parent, as the case may be, and without further
consideration, execute and deliver such further instruments of assignment,
transfer or license and take such further actions as Buyer or Parent may
reasonably request in order more effectively to transfer, reduce to possession,
vest in, and record title to any of the Assets more fully to Buyer, including
cooperation before and after the Closing on matters relating to identification
of the Assets, ordering and relocation of Inventory, and preservation of
relationships with customers, suppliers and distributors. The parties shall
render, at no additional cost or charge to the other, such cooperation to one
another with respect to such matters and with respect to such other matters
concerning the transition of control of the Business as reason and commercial
prudence dictate should be addressed before and after the Closing; provided,
however, that reasonable out of pocket expenses incurred in compliance with this
Section 10.3 by one party at the request of another party shall be promptly
reimbursed by the requesting party to the party incurring such expenses.
10.4 Agreement on Transfer of Assets. Within 60 days following the
Closing Date Seller shall and shall cause Parent and its Affiliates to, at no
cost to Buyer, transfer all of the Assets located in the United States to
Seller's facility in Atlanta, Georgia, provided however, this provision shall
not apply to demo equipment located at hospitals. Within 60 days following the
Closing Date, Seller shall and shall cause Parent and its Affiliates to, at no
cost to Buyer, transfer all of the Assets not located in the United States to
Seller's facility in Newbury Road, Hampshire, England, provided however, this
provision shall not apply to demo equipment located at hospitals.
ARTICLE XI
SURVIVAL AND INDEMNIFICATION
11.1 Survival of Representations. The representations and warranties of
the parties made in this Agreement shall survive the Closing for a period from
the Closing to the 18 month anniversary of the Closing Date (or until resolution
of any Indemnity Claim made on or before such date), except for the
representations and warranties made in Section 4.7 with respect to title, which
shall survive the Closing without limitation.
15
11.2 Indemnification.
(a) By Parent and Seller. Parent and Seller hereby jointly and
severally indemnify, save and hold harmless Buyer, its affiliates and
subsidiaries, and its and their respective Representatives, from and against any
and all costs, losses (including diminution in value), Taxes, liabilities,
obligations, damages, Actions, claims, costs of mitigation or remedial action,
and expenses, including attorneys' fees and all amounts paid in investigation,
defense or settlement of any of the foregoing ("Losses"), incurred in connection
with or arising out of:
(i) subject to Section 11.2(e)(i), any breach of any
representation or warranty made by Parent or Seller in this Agreement or in
documents delivered at the Closing (without regard, for purposes of this Section
11.2(a)(i), to any qualifications as to materiality, Material Adverse Change or
Material Adverse Effect);
(ii) any breach of any covenant by Parent or Seller in this
Agreement or the Noncompetition Agreement;
(iii) any Liability (including any Liability for Taxes);
(iv) any severance or other obligation due to any employee or
former employee of Seller and deemed to arise out of the Closing or as a
consequence of the execution and delivery of this Agreement and any Liability
resulting from Buyer's election not to hire any employee of Seller; or
(v) any noncompliance by Seller or Parent with applicable bulk
sales laws (whether such laws are UCC-based or Tax-related) in connection with
the transfer of the Assets or Buyer's nonwithholding of any amounts from the
Closing Payment to satisfy any Tax withholding obligation of any Tax authority
deemed to arise out of the Closing.
(b) By Buyer. Buyer hereby indemnifies, saves and holds harmless
Parent, Seller, their respective affiliates and subsidiaries, and their
respective Representatives, from and against any and all Losses incurred in
connection with or arising out of:
(i) Subject to Section 11.2(e)(ii), any breach of any
representation or warranty made by Buyer in this Agreement or in any documents
delivered at the Closing (without regard, for purposes of this Section
11.2(b)(i), to any qualifications as to materiality);
(ii) any breach of any covenant by Buyer in this Agreement or
the Noncompetition Agreement; or
(iii) the operation of the Business by Buyer after the
Closing.
(c) Claims for Indemnification. Whenever any claim shall arise for
indemnification hereunder, the party seeking indemnification (the "Indemnified
Party") shall promptly notify the party from whom indemnification is sought (the
"Indemnifying Party") of the claim and, when
known, the facts constituting the basis for such claim. For purposes of this
Section 11.2(c)(i), notice shall be deemed to be promptly made if it is given to
the Indemnifying Party within ten (10) days of receipt by the Indemnified Party
of any written notice of any third party claim. In the event of any claim for
indemnification under this Agreement resulting from or in connection with any
claim or legal proceedings by a third party, the notice to the Indemnifying
Party shall specify, if known, the amount or an estimate of the amount of the
Liability arising from such claim or legal proceeding. Except as provided in
Section 11.2(e) of this Agreement, the Indemnified Party shall not settle or
compromise any claim by a third party for which it may claim indemnification
under this Agreement without the prior written consent of the Indemnifying
Party.
(d) Defense by Indemnifying Party. In connection with any claim by any
Indemnified Party resulting from or arising out of any claim or legal proceeding
by a person who is not a party to this Agreement, the Indemnifying Party at its
sole cost and expense may, upon written notice to the Indemnified Party, assume
the defense of any such claim or legal proceeding if it acknowledges to the
Indemnified Party in writing its obligation to indemnify the Indemnified Party
with respect to all elements of such claim. The Indemnified Party shall be
entitled to participate in (but not control) the defense of any such action,
with its own counsel and at its own expense. If the Indemnifying Party does not
assume the defense of any such claim or litigation resulting therefrom within
thirty (30) days after the date of such claim is made, (a) the Indemnified Party
may defend against such claim or litigation, in such manner as it may deem
appropriate, including, but not limited to, settling such claim or litigation,
after giving notice of the same to the Indemnifying Party, on such terms as the
Indemnified Party may deem appropriate, and (b) the Indemnifying Party shall be
entitled to participate in (but not control) the defense of such action, with
its own counsel and at its own expense.
(e) Limits on Liability.
(i) Parent and Seller shall not be obligated to indemnify
Buyer under Section 11.2(a)(i) and Buyer shall not seek such indemnification
from Parent or Seller for Losses that arise out of the inaccuracy of any
representation or warranty under this Agreement unless such Losses aggregate
more than $20,000 (Twenty Thousand Dollars), in which event Parent and Seller
shall indemnify Buyer for the entire amount of such Losses up to a maximum
amount equal to the Purchase Price.
(ii) Buyer shall not be obligated to indemnify Parent and
Seller under Section 11.2(b)(i) and neither Seller nor Parent shall seek such
indemnification from Buyer for Losses that arise out of the inaccuracy of any
representation or warranty under this Agreement unless such Losses aggregate
more than $20,000 (Twenty Thousand Dollars), in which event Buyer shall
indemnify Parent and Seller for the entire amount of such Losses up to a maximum
amount equal to the Purchase Price.
ARTICLE XII
MISCELLANEOUS
17
12.1 Employees. Buyer shall have no obligation to hire any of Seller's
employees.
12.2 Payment of Expenses. Except as specifically set forth elsewhere in
this Agreement, expenses related to this Agreement and attendant transactions,
including the fees of counsel and accountants, shall be borne by the party
incurring such expenses.
12.3 Modifications; Waivers. This Agreement maybe modified and rights
hereunder may be waived only by a writing executed and delivered on behalf of
the party against whom such modification or waiver is asserted. In no case shall
any such modification or waiver be effective without the written consent of
Buyer.
12.4 Assignability. This Agreement and the rights and obligations
hereunder shall be binding upon and inure to the benefit of the parties hereto
and their respective successors (including successors by operation of law),
assigns and legal representatives. This Agreement shall not be assignable by any
party hereto, except that Buyer may assign its rights and obligations hereunder
to one or more of its Affiliates.
12.5 No Other Representations. Each of the parties acknowledges that in
entering into this Agreement it has not relied on any representation, warranty,
agreement of statement not set out in this Agreement or the Noncompetition
Agreement (or in any document, instrument or certificate contemplated hereby or
thereby), whether express or implied, and that (in the absence of fraud) it will
not have any right or remedy arising out of any such representation, warranty,
agreement or statement.
12.6 Notices. Any communication to be given hereunder by any parties to
the other party shall be in writing and delivered by messenger, sent by
overnight courier, or transmitted by facsimile or electronic mail (with
confirmation of receipt by the intended party), to the address or designation of
such party set forth below or as changed by such party by notice given
hereunder. A communication transmitted by facsimile shall be deemed effective
when transmitted; a communication sent by overnight courier shall be deemed
effective two business days after being sent; and a communication delivery by
messenger shall be deemed effective when delivered.
If to Parent
or Seller: c/o NMT Medical, Inc.
27 Wormwood Street
Boston, Massachusetts 02110-1625
Attention: Thomas M. Tully, President
Facsimile: (617) 737-0924
E-mail: tmt@nmtmedical.com
18
with a copy to: Hale and Dorr LLP
60 State Street
Boston, Massachusetts 02109
Attention: Steven D. Singer, Esq.
Facsimile: (617) 526-5000
E-mail: Steven.Singer@haledorr.com
If to Buyer: c/o Integra LifeSciences Corporation
311 Enterprise Drive
Plainsboro, New Jersey 08536
Attention: Stuart M. Essig and
John B. Henneman, III
Facsimile: (609) 275-1082
E-mail: Stuart_Essig@integra-ls.com
Jack_Henneman@integra-ls.com
with copies to: GoodSmith, Gregg & Unruh
300 S. Wacker Drive, Suite 3100
Chicago, Illinois 60606
Attention: Marilee C. Unruh
Facsimile: (312) 322-0056
E-mail: ggu1981@aol.com
and Latham & Watkins
Sears Tower
Suite 5800
Chicago, Illinois 60606
Attention: Michael D. Levin
Facsimile: (312) 993-9767
E-mail: Michel.Levin@lw.com
The foregoing is not intended to be exclusive; any written communication
actually received shall be effective when received.
12.7 Captions. The section captions used in this Agreement are for
reference and cross-reference purposes only and shall not otherwise affect the
meaning or interpretation of this Agreement.
12.8 Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed to be an original and all of which shall be deemed to
constitute the same Agreement.
12.9 Knowledge. Any statement in this Agreement qualified by the
expression "so far as Parent or Seller is aware" or "to the knowledge of Parent
or Seller" or any similar expression shall be deemed to include the knowledge of
the officers and directors of each of Parent and
Seller and, additionally, each employee of Parent and Seller whose
responsibilities include managerial decision making for the Business.
12.10 Governing Law. This Agreement shall be governed by and construed
in accordance with the Laws of the State of Delaware, without regard to the
conflict of laws principles thereof.
12.11 Entire Agreement. This Agreement (including the Exhibits,
Schedules and attachments hereto) constitutes the entire agreement between the
parties hereto and supersedes and cancels any prior agreements, representations,
warranties, or communications, whether oral or written, between the parties
hereto relating to the transactions contemplated hereby or the subject matter
herein. Neither this Agreement nor any provision hereof may be changed, waived,
discharged or terminated orally, but only by an agreement in writing signed by
the party against whom or which the enforcement of such change, waiver,
discharge or termination is sought.
12.12 Invalidity. In the event that any of the provisions contained in
this Agreement shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, then, to the maximum extent permitted by law, such
invalidity, illegality or unenforceability shall not affect any other provision
of this Agreement.
12.13 Cumulative Remedies. Except as otherwise specifically provided in
this Agreement, all rights and remedies of any party hereto are cumulative of
each other and of every other right or remedy such party may otherwise have at
law or in equity, and the exercise of one or more rights or remedies shall not
prejudice or impair the concurrent or subsequent exercise of other rights or
remedies.
12.14 Publicity. So long as this Agreement is in effect, Buyer and
Parent shall use all reasonable efforts to develop a joint communications plan
and each party shall use all reasonable efforts (a) to ensure that all press
releases and other public statements with respect to the transactions
contemplated hereby shall be consistent with such joint communications plan and
(b) unless otherwise required by applicable law or by obligations pursuant to
any listing agreement with or rules of any securities exchange, to consult with
each other before issuing any press release or otherwise making any public
statement with respect to this Agreement or the transactions contemplated
hereby.
12.15 Confidentiality. Prior to the Closing, the parties hereto, and
their Representatives and assignees shall hold confidential all information
obtained from each of the other parties and their respective Affiliates in
connection herewith and, if the Closing shall be abandoned as provided herein,
shall treat such information as confidential and where such information is in
documentary form, return such information to the party that provided it,
provided, however, each counsel may retain one copy of such information for its
files. The provisions of this Section 12.15 shall not apply to information
regarding Seller or Parent which is in the public domain due to no fault of
Buyer or its Representatives. The parties hereto, on their own behalf and on
behalf of their respective Representatives and assignees, agree that damages are
an inadequate remedy for breach of this provision and that the non-breaching
party shall, whether or not it is pursuing
20
any potential remedies at law, be entitled to equitable relief in the form of
preliminary and permanent injunctions without the posting of a bond or other
security upon any actual or threatened breach of this Section 12.15.
12.16 Use of "NMT" Name. Parent and Seller acknowledge and agree that,
while Buyer is not acquiring ownership of the acronym "NMT" (or any derivatives
thereof), Buyer (and its successors and assigns) shall have for a period of
three (3) years from Closing, a limited license to continue to use the acronym
"NMT" to the extent that the same appears or is used upon any promotional or
marketing materials, brochures, information, labels, packaging or similar
materials related to any of the products or used in connection with the
Business, in each case as existing on the Closing Date. Following the Closing
Date, Seller (directly or indirectly through an Affiliate) shall have the right
to monitor the quality of products bearing the acronym "NMT". The license to
acronym "NMT" granted in this Section 12.16 is subject to and conditioned on the
maintenance of product quality consistent with the quality of Seller's products
on the date hereof.
* * *
[SIGNATURE PAGE FOLLOWS]
21
IN WITNESS WHEREOF, the parties executed and delivered this
Agreement as of the day and year first above written.
"BUYER"
Integra Selector Corporation
By:
-------------------------------
Name:
-----------------------------
Title:
-----------------------------
"SELLER"
NMT Neurosciences (US), Inc.
By:
-------------------------------
Name:
-----------------------------
Title:
-----------------------------
"PARENT"
NMT Medical, Inc.
By:
-------------------------------
Name:
-----------------------------
Title:
-----------------------------
S-1