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ARTICLE I THE OFFER			2
	Section 1.1	The Offer	2
	Section 1.2	Company Actions	4
	Section 1.3	Directors	6
ARTICLE II THE MERGER			6
	Section 2.1	The Merger	6
	Section 2.2	Closing; Effective Time	6
	Section 2.3	Merger Without Meeting of Stockholders	7
	Section 2.4	Governing Documents; Directors and Officers	7
	Section 2.5	Conversion of Shares	7
	Section 2.6	Surrender of Certificates	7
	Section 2.7	Appraisal Rights	9
	Section 2.8	Treatment of Company Options; Restricted Shares; Stock Plans	10
	Section 2.9	Withholding	11
	Section 2.10	Further Action	11
ARTICLE III REPRESENTATIONS AND  WARRANTIES OF THE COMPANY			11
	Section 3.1	Qualification, Organization, etc	12
	Section 3.2	Capitalization, Subsidiaries	12
	Section 3.3	Corporate Authority Relative to this Agreement; No Violation; Governmental Authorizations	13
	Section 3.4	Reports and Financial Statements	14
	Section 3.5	Books and Records	15
	Section 3.6	No Undisclosed Liabilities	16
	Section 3.7	Off-Balance Sheet Arrangements	16
	Section 3.8	Compliance with Laws; Permits	16
	Section 3.9	Environmental Matters	16
	Section 3.10	Employee Benefit Plans	17
	Section 3.11	Absence of Certain Changes or Events	19
	Section 3.12	Title to Assets	19
	Section 3.13	Litigation; Orders	20
	Section 3.14	Tax Matters	20
	Section 3.15	Labor Matters	22
	Section 3.16	Intellectual Property	23
	Section 3.17	Real Property	26
	Section 3.18	Material Contracts	27
	Section 3.19	Insurance	29
	Section 3.20	Customers and Suppliers	29
	Section 3.21	Export Controls	30
	Section 3.22	Anti-Corruption Laws	31
	Section 3.23	Competition and Antitrust Compliance	31
	Section 3.24	FDA and Regulatory Matters	32
	Section 3.25	Products Liability	34
	Section 3.26	Data Security and Privacy	34

	Section 3.27	Government Grants and Incentives	34
	Section 3.28	Finders and Brokers	34
	Section 3.29	Fairness Opinion	35
	Section 3.30	Information Supplied	35
	Section 3.31	Inapplicability of Takeover Laws	35
	Section 3.32	Vote Required	35
	Section 3.33	No Other Representations	35
ARTICLE IV REPRESENTATIONS AND WARRANTIES  OF PARENT AND MERGER SUB			36
	Section 4.1	Qualification, Organization, Subsidiaries, etc.	36
	Section 4.2	Corporate Authority Relative to this Agreement; No Violation	36
	Section 4.3	Compliance with Law	37
	Section 4.4	Information Supplied	37
	Section 4.5	Financing; Solvency	37
	Section 4.6	Investigations; Litigation	39
	Section 4.7	Finders and Brokers	39
	Section 4.8	Stock Ownership	39
	Section 4.9	No Merger Sub Activity	39
	Section 4.10	No Other Representations	39
ARTICLE V COVENANTS RELATING TO CONDUCT  OF BUSINESS PENDING THE CLOSING			39
	Section 5.1	Conduct of Business by the Company Pending the Closing	39
	Section 5.2	No Solicitation	43
ARTICLE VI ADDITIONAL AGREEMENTS			46
	Section 6.1	Access; Confidentiality; Notice of Certain Events	46
	Section 6.2	Reasonable Best Efforts	47
	Section 6.3	Financing	48
	Section 6.4	Publicity	50
	Section 6.5	Directors’ and Officers’ Insurance and Indemnification	51
	Section 6.6	Takeover Statutes	51
	Section 6.7	Obligations of Merger Sub	52
	Section 6.8	Employee Benefits Matters	52
	Section 6.9	Security Holder Litigation	53
	Section 6.10	Delisting	53
	Section 6.11	Sections 16 and 14 Matters	53
	Section 6.12	Treatment of Company Indebtedness	53
ARTICLE VII CONDITIONS TO CONSUMMATION OF THE MERGER			54
	Section 7.1	Conditions to Each Party’s Obligations to Effect the Merger	54
	Section 7.2	Frustration of Conditions	54
ARTICLE VIII TERMINATION			54
	Section 8.1	Termination	54

	Section 8.2	Effect of Termination	56
ARTICLE IX MISCELLANEOUS			59
	Section 9.1	Amendment and Modification; Waiver	59
	Section 9.2	Non-Survival of Representations and Warranties	59
	Section 9.3	Expenses	59
	Section 9.4	Notices	59
	Section 9.5	Certain Definitions	61
	Section 9.6	Interpretation	72
	Section 9.7	Counterparts	73
	Section 9.8	Entire Agreement; Third-Party Beneficiaries	73
	Section 9.9	Severability	74
	Section 9.10	Governing Law; Jurisdiction	74
	Section 9.11	Waiver of Jury Trial	75
	Section 9.12	Assignment	75
	Section 9.13	Enforcement; Remedies	75
EXHIBIT A		FORM OF LETTER AGREEMENT
EXHIBIT B		CERTIFICATE OF INCORPORATION OF SURVIVING CORPORATION
EXHIBIT C		BYLAWS OF SURVIVING CORPORATION

ARTICLE IX

 

 

Section 9.1             Amendment and Modification; Waiver.

 

(a)           Subject to applicable Law and except as otherwise provided in this Agreement, prior to the Effective Time, this Agreement may be amended, modified and supplemented, by written agreement of each Party (as approved by action taken by its board of directors or a duly authorized committee thereof).  This Agreement may not be amended except by an instrument in writing signed on behalf of each of the Parties.

 

(b)          At any time prior to the Effective Time, to the extent permitted by applicable Law, the Parties may, by action taken or authorized by each Party’s board of directors, or a duly authorized committee thereof, (i) extend the time for the performance of any of the obligations or acts of the other Parties, (ii) waive any inaccuracies in the representations and warranties of the other Parties set forth in this Agreement or any document delivered pursuant hereto or (iii) subject to applicable Law, waive compliance with any of the agreements or conditions of the other Parties contained herein.  Any agreement on the part of a Party to any such waiver shall be valid only if set forth in a written instrument executed and delivered by a duly authorized officer on behalf of such Party.  No failure or delay of any Party in exercising any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such right or power, or any course of conduct, preclude any other or further exercise thereof or the exercise of any other right or power.  The rights and remedies of the Parties hereunder are cumulative and are not exclusive of any rights or remedies which they would otherwise have hereunder.

 

(c)           Notwithstanding anything to the contrary in this Agreement, neither this Section 9.1 nor any of Sections 8.2e), 9.8b), 9.10 and 9.11 may be amended, modified, waived or terminated in a manner adverse to the Debt Financing Sources without their prior written consent.

 

Section 9.2            Non-Survival of Representations and Warranties.  None of the representations and warranties in this Agreement or in any schedule, instrument or other document delivered pursuant to this Agreement shall survive the Effective Time.  This Section 9.2 shall not limit any covenant or agreement of the Parties which (a) by its terms contemplates performance, in whole or in part, after the Effective Time, (b) are contained in this Article IX or (iii) are contained in Section 8.2.  The Parties acknowledge and agree that, from and after the Effective Time, they shall not be permitted to make, and no Party shall have any liability with respect to, any claims for any breach of any representation or warranty set forth herein or any covenant or agreement herein that is to have been performed by another Party on or prior to the Closing.  For the avoidance of doubt, nothing herein shall impair Parent’s and the Surviving Corporation’s rights under any representations and warranties insurance policy that may be obtained by Parent in connection with this Agreement.

 

Section 9.3            Expenses.  Except as otherwise expressly provided in this Agreement, all Expenses incurred in connection with this Agreement and the Transactions shall be paid by the Party incurring such Expenses.

 

Section 9.4            Notices.  Any notice or other communication required or permitted to be delivered to any Party under this Agreement shall be in writing and shall be deemed properly delivered, given and received (a) if delivered by hand, when delivered, (b) if sent on a Business Day by email or facsimile transmission before 11:59 p.m. (recipient’s time) and receipt is confirmed, when transmitted, (c) if sent by email or facsimile transmission on a day other than a Business Day and receipt is confirmed, on the Business Day following the date on which receipt is confirmed, (d) if sent by email or facsimile transmission after 11:59 p.m. (recipient’s time) and receipt is confirmed, on the Business Day following the date on which receipt is confirmed, (e) if sent by registered, certified or first class mail, the third Business Day after being sent, and (f) if sent by overnight delivery via a national courier service, one Business Day after being sent, in each case to the address or facsimile telephone number set forth beneath the name of such Party below (or to such other address or facsimile telephone number as such Party shall have specified in a written notice given to the other Parties hereto):

 

(a)           If to Parent or Merger Sub:

 

LM US Parent, Inc.

c/o Laborie Medical Technologies Canada ULC

6415 Northwest Dr.

Mississauga, ON L4V 1X1

Canada

Attn.: Walter Stothers

E-Mail: wstothers@laborie.com

Facsimile:

 

With copies, which shall not constitute notice, to:

 

Patricia Industries

1177 Avenue of the Americas

47th Floor

New York, NY 10020

Attn.: Yuriy Prilutskiy

E-Mail: Yuriy.Prilutskiy@investorab.com

Facsimile: (212) 515-9000

and

K&L Gates LLP

599 Lexington Avenue

New York, NY 10022

Attn.:  James C.H. Lee

E-Mail:  james.lee@klgates.com

Facsimile:  (212) 536-3901

(b)           If to the Company:

 

Cogentix Medical, Inc.

5420 Feltl Road

Minnetonka, MN 55343

Attn.:

Darin Hammers

Brett Reynolds

E-Mail:

Darin.Hammers@cogentixmedical.com

Brett.Reynolds@cogentixmedical.com

Facsimile:  (952) 426-6152

 

With a copy, which shall not constitute notice, to:

 

Dorsey & Whitney LLP

50 South Sixth Street, Suite 1500

Minneapolis, MN 55402

Attn.:

Timothy S. Hearn

Jonathan A. Van Horn

E-Mail:

hearn.tim@dorsey.com

van.horn.jonathan@dorsey.com

Facsimile:  (612) 340-2868

 

Rejection or other refusal to accept or the inability to deliver a notice, request, demand, claim or other communication hereunder because of a changed address or changed facsimile number of which no notice was given as herein required shall be deemed to be receipt of the notice, request, demand, claim or other communication sent.  Any notice, request, demand, claim or other communication delivered, given or otherwise provided under this Agreement shall, if sent by electronic mail, expressly state in the subject line thereof, “NOTICE UNDER COGENTIX MERGER AGREEMENT.”

 

Section 9.5            Certain Definitions.  For the purposes of this Agreement, the term:

 

“Acceptable Confidentiality Agreement” means a confidentiality agreement that contains terms that are no less favorable in the aggregate to the Company or Parent, as applicable, than those contained in the Confidentiality Agreement and containing additional provisions that expressly permit the Company to comply with the terms of Section 5.2.

 

“Activities to Date” has the meaning set forth in Section 3.24(b).

 

“Agreement” has the meaning set forth in the Preamble.

 

“Anti-Corruption Laws” has the meaning set forth in Section 3.22.

 

“Book-Entry Shares” has the meaning set forth in Section 2.5(b).

 

“Business Days” has the meaning set forth in Rule 14d-1(g)(3) of the Exchange Act; provided, however, that a day on which banks in New York City are authorized or obligated by Law or executive order to close shall not be a “Business Day”.

 

“Certificate of Merger” has the meaning set forth in Section 2.2.

 

“Certificates” has the meaning set forth in Section 2.5(b).

 

“Closing” has the meaning set forth in Section 2.2.

 

“Closing Date” has the meaning set forth in Section 2.2.

 

“Code” means the Internal Revenue Code of 1986, as amended.

 

“Company” has the meaning set forth in the Preamble.

 

“Company 401(k) Plans” has the meaning set forth in Section 6.8(a).

 

“Company Balance Sheet” has the meaning set forth in Section 3.6.

 

“Company Benefit Plans” has the meaning set forth in Section 3.10(a).

 

“Company Board” has the meaning set forth in the Recitals.

 

“Company Board Recommendation” has the meaning set forth in Section 1.2(a).

 

“Company Business” has the meaning set forth in Section 3.24(a).

 

“Company Bylaws” means the bylaws of the Company, as amended and restated and in effect as of the date of this Agreement.

 

“Company Capitalization Date” has the meaning set forth in Section 3.2(a).

 

“Company Certificate” means the Certificate of Incorporation of the Company as amended, amended and restated and supplemented and in effect on the date of this Agreement.

 

“Company Change of Recommendation” has the meaning set forth in Section 5.2(d).

 

“Company Competing Proposal” means any inquiry, proposal or offer made by a Person or group (other than a proposal or offer by Parent or any of its Subsidiaries) at any time, including any amendment or modification to any inquiry, proposal or offer, with respect to any transaction or series of related transactions involving any direct or indirect (i) merger, consolidation, spin-off, share exchange (including a split-off) or business combination, joint venture or similar transaction involving the Company or any of the Company Subsidiaries representing 20% or more of the consolidated assets or annual revenues of the Company and the Company Subsidiaries, taken as a whole, (ii)  sale, lease, exchange, mortgage, transfer, license (other than licenses in the ordinary course of business), or other disposition of 20% or more of the consolidated assets (including the equity of the Company Subsidiaries) of the Company and the Company Subsidiaries, taken as a whole (measured by the lesser of book or fair market value thereof), (iii)  purchase or sale of shares of capital stock or other securities representing 20% or more of the voting power of the capital stock of the Company, including by way of a tender offer or exchange offer, (iv)  extraordinary dividend, reorganization, recapitalization, liquidation or dissolution of the Company or (v) other transaction having a similar effect to those described in clauses (i) through (iv).

 

“Company Disclosure Schedule” has the meaning set forth in Article III.

 

“Company Governing Documents” means the Company Bylaws and the Company Certificate.

 

“Company Intervening Event” means a material Effect (a) that becomes known to the Company Board after the date hereof, (b) that was not known to, and was not reasonably foreseeable by, the Company Board or a committee thereof that authorized the execution of this Agreement (as the case may be), as of the date of this Agreement and (c) that does not relate in any way to any Company Competing Proposal; provided, that (i) any changes in the Share price or trading volume, in and of itself, shall not be taken into account for purposes of determining whether a Company Intervening Event has occurred (it being understood, however, that the Effects giving rise or contributing to such changes in price or trading volume may be taken into account for purposes of determining whether a Company Intervening Event has occurred), (ii) the Company meeting, failing to meet or exceeding any internal or published projections, estimates or expectations of the Company’s revenue, earnings or other financial performance or results of operations for any period, in and of itself, shall not be taken into account for purposes of determining whether a Company Intervening Event has occurred (it being understood, however, that the Effects giving rise or contributing to such status may be taken into account for purposes of determining whether a Company Intervening Event has occurred) and (iii) the timing of any consents, registrations, approvals, permits, clearances or authorizations required to be obtained prior to the Effective Time by the Company or Parent or any of their respective Subsidiaries from any Governmental Entity in connection with this Agreement and the consummation of the Transactions shall not be taken into account for purposes of determining whether a Company Intervening Event has occurred.

 

“Company Leased Real Property” has the meaning set forth in Section 3.17(b).

 

 “Company Licenses” has the meaning set forth in Section 3.24(b).

 

“Company Material Adverse Effect” means (i) any Effect that, individually or in the aggregate, has a material adverse effect on the assets, liabilities, condition (financial or otherwise), business or results of operations of the Company and the Company Subsidiaries, taken as a whole; provided, however, that no Effects to the extent resulting or arising from the following shall be deemed to constitute a Company Material Adverse Effect or shall be taken into account when determining whether a Company Material Adverse Effect exists or has occurred:  (a) any changes in general United States or global economic conditions; (b) conditions (or changes therein) in any industry or industries in which the Company and the Company Subsidiaries operate; (c) general economic or political conditions (or changes therein), including any changes affecting financial, credit or capital market conditions; (d) any change or prospective changes in GAAP or FASB interpretations thereof; (e) any adoption, implementation, promulgation, repeal, modification, amendment, reinterpretation, change or proposal of any applicable Law of and by any Governmental Entity (including with respect to Taxes); (f) acts of terrorism or sabotage, war (whether or not declared), the commencement, continuation or escalation of a war, acts of terrorism or acts of armed hostility, or weather conditions or other natural disasters (including any material worsening of such conditions threatened or existing as of the date of this Agreement); (g) the execution and delivery of this Agreement or the consummation of the Transactions; (h) changes in the Share price, in and of itself (it being understood that the Effects giving rise or contributing to such changes that are not otherwise excluded from the definition of a “Company Material Adverse Effect” may be taken into account); (i) any failure by the Company to meet any internal or published projections, estimates or expectations of the Company’s revenue, earnings or other financial performance or results of operations for any period, in and of itself, or any failure by the Company to meet its internal budgets, plans or forecasts of its revenues, earnings or other financial performance or results of operations, in and of itself (it being understood that the Effects giving rise or contributing to such failure that are not otherwise excluded from the definition of a “Company Material Adverse Effect” may be taken into account); (j) the pendency or public announcement of the execution of this Agreement or the Transactions, including any resulting litigation; or (k) any action or failure to take any action that is expressly required by this Agreement (but, for the avoidance of doubt, excluding the Company and the Company Subsidiaries operating in the ordinary course of business) or expressly consented to or requested by Parent in writing; provided, further, however, that any Event referred to in clauses (a) through (f) shall be taken into account in determining whether there has been a Company Material Adverse Effect to the extent that such Effect has a disproportionate impact on the Company and the Company Subsidiaries, taken as a whole, relative to other entities operating in the same industry or industries in which the Company and the Company Subsidiaries operate; or (ii) any Effect that, individually or in the aggregate, would prevent, materially delay or materially impair the commencement of, or the purchase of or payment for Shares tendered pursuant to, the Offer, or the Company’s ability to consummate the Merger; provided, further, however, that the exceptions in clause (j) above shall not apply with respect to references to a Company Material Adverse Effect in those portions of the representations and warranties contained in Section 3.3(c) and Section 3.3(d) to the extent the purposes of such representations and warranties is to address the consequences resulting from the execution, delivery and performance of this Agreement by the Company or the consummation of the Transactions.

 

“Company Material Contracts” has the meaning set forth in Section 3.18(a).

 

“Company Options” has the meaning set forth in Section 2.8(a).

 

“Company Owned Real Property” has the meaning set forth in Section 3.17(a).

 

“Company Permits” has the meaning set forth in Section 3.8(b).

 

“Company Permitted Lien” means any Lien (i) that is for Taxes or governmental assessments, charges or claims of payment not yet due and payable, being contested in good faith or for which adequate accruals or reserves have been established on the Company Balance Sheet, (ii) that is a carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other similar Lien arising in the ordinary course of business, but not as a result of non-payment unless such Lien is being contested in good faith, (iii) that is in respect of deposits or pledges made in connection with, or to secure the payment of, workers’ compensation, unemployment insurance of similar programs mandated by applicable Law, (iv) that is statutory in nature and secures obligations to landlords or lessors under leases that have not been breached, (v) that constitutes an easement, license, lease, covenant, restriction or other encumbrance of record in the applicable real property records, (iv) that is in respect of a non-exclusive object code license of software by the Company or any Company Subsidiary or any reseller or distributor of the Company or any Company Subsidiary in the ordinary course of business, (v) zoning and other land use restrictions, (vi) created by an act or omission of Parent or Merger Sub, (vii) created or permitted with the written consent of Parent in its reasonable discretion, or (viii) securing liabilities which are reflected or reserved against on the face of the Company Balance Sheet.

 

“Company Products” has the meaning set forth in Section 3.24(a).

 

“Company SEC Documents” has the meaning set forth in Section 3.4(a).

 

“Company Stock Plans” has the meaning set forth in Section 2.8(a).

 

“Company Subsidiaries” means the Subsidiaries of the Company.

 

“Company Superior Proposal” means a bona fide written Company Competing Proposal (with references to 20% being deemed to be replaced with references to 50%) which (i) the Company Board or a duly authorized committee thereof, determines in good faith after consultation with the Company’s outside legal and financial advisors, and after taking into account all financial (including economic and financing terms (including certainty of financing)), legal, regulatory, and other aspects (including the form of consideration and the Person making the proposal) of such Company Competing Proposal, to be more favorable to the stockholders of the Company from a financial point of view than the Transactions, taking into account all relevant factors (including all the terms and conditions of such Company Competing Proposal and this Agreement (including any changes to the terms of this Agreement proposed by Parent in response to such Company Competing Proposal or otherwise), the expectation of obtaining required regulatory and other approvals, the likelihood and anticipated timing of consummation) and the form of consideration offered to the Company’s stockholders (including whether such consideration consists of cash or securities having a readily ascertainable value or some combination thereof)), and (ii) would reasonably be expected to be completed on the terms proposed by the Person making such Company Competing Proposal (taking into account all financial (including economic and financing terms (including certainty of financing)), legal, regulatory, and other aspects (including the form of consideration and the Person making the proposal) of such Company Competing Proposal).

 

“Company Termination Fee” has the meaning set forth in Section 8.2(b)(i).

 

“Competition Laws” has the meaning set forth in Section 3.23.

 

 

“Confidentiality Agreement” means the Mutual Nondisclosure Agreement, dated June 16, 2017, between Laborie Medical Technologies Canada ULC and the Company, as may be amended.

 

“Continuing Employees” has the meaning set forth in Section 6.8(a).

 

“Contract” means any written or oral agreement, contract, subcontract, purchase order, settlement agreement, lease, sublease, binding understanding, note, option, bond, mortgage, indenture, trust document, loan or credit agreement, license, sublicense, insurance policy or other legally binding commitment or undertaking of any nature, as in effect as of the date hereof or as may hereinafter be in effect.

 

“D&O Insurance” has the meaning set forth in Section 6.5.

 

“Debt Financing” means the debt financing, if any, provided to Parent and/or its affiliates in respect of the Transactions.

 

“Debt Financing Affiliate” means the Persons (including any lenders, agents and arrangers), other than the Parties hereto, that have committed to provide or otherwise entered into agreements in connection with any Debt Financing in connection with the Transactions, and any joinder agreements or credit agreements entered into pursuant thereto or relating thereto, together with their affiliates and their and their affiliates’ respective former, current and future officers, directors, employees, agents, advisors, general or limited partners, managers, members, stockholders and Representatives involved in any Debt Financing and any successors or assigns of any of the foregoing.  The Parties agree and acknowledge that none of Parent, Merger Sub or Guarantor is a Debt Financing Affiliate.

 

“Debt Financing Letter Agreement” has the meaning set forth in Section 4.5(e).

 

“Debt Financing Sources” means the entities that may, directly or indirectly, commit to provide or to cause to provide, or otherwise enter into agreements in connection with, any Debt Financing in connection with the Transactions, including the lender parties to any corresponding “debt commitment letter” and any related commitments to purchase any Debt Financing or any part thereof from such entities, and to any joinder agreements, credit agreements, purchase agreements or indentures (including the definitive agreements executed in connection with any such debt commitment letter (and any related fee letter) or any such related commitments) relating thereto, together with the respective affiliates of such entities, the respective officers, directors, employees, agents and other Representatives of such entities and their respective affiliates, and any successors or assigns of any of the foregoing.  The Parties agree and acknowledge that none of Parent, Merger Sub or Guarantor is a Debt Financing Source.

 

“DGCL” means the Delaware General Corporation Law, as amended.

 

“Dissenting Share” has the meaning set forth in Section 2.7(a).

 

“Divestiture Actions” has the meaning set forth in Section 6.2(c).

 

“DSOS” means the Secretary of State of the State of Delaware.

 

“Effect” means any change, effect, development, circumstance, condition, state of facts, event or occurrence.

 

“Effective Time” has the meaning set forth in Section 2.2.

 

“End Date” has the meaning set forth in Section 8.1(e).

 

“Enforceable” means, with respect to any Contract stated to be Enforceable by or against any Person, that such Contract is enforceable by or against such Person in accordance with its terms, except to the extent that enforcement of the rights and remedies created thereby is subject to (a) bankruptcy, insolvency, reorganization, moratorium and other similar Law of general application (b) to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at Law) or (c), with respect to any Contract with a Governmental Entity, the rights reserved to the Governmental Entity under applicable Law.

 

“Environmental Law” means any and all applicable Laws which (a) regulate or relate to the protection or clean-up of the environment; the use, treatment, storage, transportation, handling, disposal or Release of Hazardous Substances, the preservation or protection of waterways, groundwater, drinking water, air, wildlife, plants or other natural resources; or the health and safety of persons or property, including protection of the health and safety of employees; or (b) impose liability or responsibility with respect to any of the foregoing, including the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. § 9601 et seq.), the Clean Water Act (33 U.S.C. § 1251 et seq.), the Clean Air Act (42 U.S.C. § 7401 et seq.), the Resource Conservation and Recovery Act (42 U.S.C. § 6901 et seq.), the Federal Fungicide, Insecticide and Rodenticide Act (7 U.S.C. § 136 et seq.), or the Federal Food, Drug and Cosmetic Act (21 U.S.C. § 301 et seq., the Occupational Safety and Health Act of 1970, as amended, and the rules and regulations promulgated thereunder, or any other Law of similar effect.

 

“Environmental Permits” means any permit, license, authorization, approval or Regulatory Approval required or issued under applicable Environmental Laws.

 

“Equity Financing” has the meaning set forth in Section 4.5(a).

 

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the regulations promulgated and rulings issued thereunder.

 

“ERISA Affiliate” means, with respect to any entity, trade or business, any other entity, trade or business that is a member of a group described in Section 414(b), (c), (m) or (o) of the Code or Section 4001(b)(1) of ERISA that includes the first entity, trade or business, or that is a member of the same “controlled group” as the first entity, trade or business pursuant to Section 4001(a)(14) of ERISA.

 

“Exchange Act” means the United States Securities Exchange Act of 1934, as amended.

 

“Expenses” means all reasonable out-of-pocket expenses (including all fees and expenses of counsel, accountants, investment bankers, experts and consultants to a Party and its affiliates) incurred by a Party or on its behalf in connection with or related to the authorization, preparation, negotiation, execution and performance of this Agreement, the solicitation of equityholders and equityholder approvals, any filings with the SEC and all other matters related to the closing of the Merger and the other Transactions.

 

“Expiration Date” has the meaning set forth in Section 1.1(d).

 

“FDA Fraud Policy” has the meaning set forth in Section 3.24(h).

 

“FDCA” has the meaning set forth in Section 3.24(f).

 

“GAAP” has the meaning set forth in Section 3.4(b).

 

“Government Grants” has the meaning set forth in Section 3.27.

 

“Governmental Entity” means (a) any national, federal, state, county, municipal, local or foreign government or any entity exercising executive, legislative, judicial, regulatory, taxing or administrative functions of or pertaining to government, including any arbitral body, (b) any public international governmental organization, or (c) any agency, division, bureau, department or other political subdivision of any government, entity or organization described in the foregoing clauses (a) or (b) of this definition.

 

“Guarantor” has the meaning set forth in the Recitals.

 

“Hazardous Substances” means any pollutant, chemical, substance and any toxic, infectious, carcinogenic, reactive, corrosive, ignitable or flammable chemical, chemical compound, hazardous substance, material or waste, that is subject to regulation, control or remediation under any Environmental Laws, including any quantity of petroleum product or byproduct, solvent, flammable or explosive material, radioactive material, asbestos, lead paint, polychlorinated biphenyls (or PCBs), dioxins, dibenzofurans, heavy metals, radon gas, mold, mold spores and mycotoxins.

 

“Healthcare Laws” means the FDCA, Medicare (Title XVIII of the Social Security Act) and Medicaid (Title XIX of the Social Security Act), the federal Anti-Kickback Statute (42 U.S.C. § 1320-a7b(b)), the Stark Anti-Self-Referral Law (42 U.S.C. §§ 1395nn), the Anti-Inducement Law (42 U.S.C. § 1320a-7a(a)(5)), the Civil Monetary Penalties Law (42 U.S.C. § 1320-a7a), the civil False Claims Act (31 U.S.C. §§ 3729 et seq.), the administrative False Claims Law (42 U.S.C. § 1320a-7b(a)), all criminal laws relating to health care fraud and abuse including 18 U.S.C. §§ 286, 287, 1001 and 1347, the Health Insurance Portability and Accountability Act of 1996 (42 U.S.C. § 1320d et seq.), as amended by the Health Information Technology for Economic and Clinical Health Act (42 U.S.C. §§ 17921 et seq.), the Physician Payments Sunshine Law (42 U.S. § 1320-a7h), the exclusion laws (42 U.S.C. § 1320a-7), the European Medical Device Directives (Directive 93/42/EEC, 90/385/EEC, and 98/79/EC as amended) (the “Medical Device Directives”) and any European Economic Area Member State laws implementing the provisions of these directives, the Misleading and Comparative Advertising Directive (2006/114/EC), the Unfair Commercial Practices Directive (2005/29/EC), and any European Economic Area Member State laws implementing the provisions of these directives, all regulations promulgated pursuant to such Laws, and any other Law that regulates the design, development, testing, studying, manufacturing, processing, storing, importing or exporting, licensing, labeling or packaging, advertising, distributing, selling or marketing of pharmaceutical or medical device products, or that is related to fraud and abuse, kickbacks, false claims, patient or program charges, pricing, recordkeeping, claims process, documentation requirements, medical necessity, referrals, the hiring of employees or acquisition of services or supplies from those who have been excluded from government health care programs, quality, safety, privacy, security, licensure, accreditation or any other aspect of providing healthcare items and services.

 

HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder.

 

“Indebtedness” means, with respect to any Person,

 

(a)           all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;

 

(b)           all direct or contingent obligations of such Person arising under letters of credit (including standby and commercial), bankers’ acceptances, bank guarantees, surety bonds and similar instruments;

 

(c)           net obligations of such Person under any interest rate swap, currency swap, forward currency or interest rate contracts or other interest rate or currency hedging arrangements;

 

(d)          all obligations of such Person to pay the deferred purchase price of property or services (other than trade accounts payable in the ordinary course of business);

 

(e)           indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse;

 

(f)           all obligations of such Person as lessee under leases that have been or should be, in accordance with GAAP, recorded as capital leases;

 

(g)          synthetic lease obligations;

 

(h)          obligations outstanding under securitization facilities; and

 

(i)            any guarantee (other than customary nonrecourse carve-out or “badboy” guarantees) of any of the foregoing, whether or not evidenced by a note, mortgage, bond, indenture or similar instrument; provided, however, that Indebtedness shall not include any performance guarantee or any other guarantee that is not a guarantee of other Indebtedness.

 

“Indemnified Parties” has the meaning set forth in Section 6.5.

 

“Intellectual Property” means all rights in or to all U.S. or foreign (a) patented and patentable designs and inventions, all design, plant and utility patents, letters patent, utility models, pending patent applications and provisional applications and all issuances, divisions, continuations, continuations-in-part, reissues, extensions, reexaminations and renewals of such patents and applications, (b) trademarks, service marks, trade dress, logos, brand names, trade names and corporate names, whether registered or unregistered, and the goodwill associated therewith, together with any registrations and applications for registration thereof, (c) original works of authorship in any medium of expression, whether or not published, copyrights, whether registered or unregistered, and any registrations and applications for registration thereof, (d) trade secrets and confidential information, including know-how, concepts, methods, processes, designs, schematics, drawings, formulae, technical data, specifications, research and development information, technology, and business plans, (e) rights in databases and data collections (including knowledge databases, customer lists and customer databases), and (f) domain name registrations.

 

“Initial Expiration Date” has the meaning set forth in Section 1.1(d).

 

“Knowledge of the Company” means the knowledge, after due inquiry of Company or Company Subsidiary employees reasonably likely to have applicable knowledge, of the Persons set forth on Section 9.5 of the Company Disclosure Schedule.

 

“Law” means any federal, state, local, municipal, foreign or other law, statute, constitution, principle of common law, resolution, ordinance, code, edict, decree, rule, regulation, directive, ruling, judgment, order, injunction, arbitration award, agency requirement, license, permit or requirement issued, enacted, adopted, promulgated, implemented or otherwise put into effect by or under the authority of any Governmental Entity.

 

“Legal Proceeding” means any action, dispute, controversy, claim, suit, litigation, arbitration, proceeding (including any civil, criminal, administrative, investigative or appellate proceeding), hearing, inquiry, audit, examination or investigation commenced, brought, conducted or heard by or before, or otherwise involving, any court or other Governmental Entity or any arbitrator or arbitration panel.

 

“Letter Agreement” has the meaning set forth in the Recitals.

 

“liability” means any direct or indirect liability, indebtedness, obligation, commitment, expense, claim, loss, damage, deficiency, guaranty or endorsement, in each case, of any kind or nature, of or by any Person, known or unknown, asserted or unasserted, absolute or contingent, accrued or unaccrued, due or to become due, liquidated or unliquidated.

 

“License Agreements” has the meaning set forth in Section 3.16(c).

 

“Lien” means any lien, pledge, hypothecation, mortgage, security interest, claim, option, right of first refusal, preemptive right, community property interest or restriction on the voting of any security, any restriction on the transfer of any security or other asset, or any restriction on the possession, exercise or transfer of any other attribute of ownership of any asset.

 

“Loan Agreement” means that certain loan agreement, dated September 18, 2015, by and among the Company and certain of the Company Subsidiaries, on the one hand, and Venture Bank, a Minnesota banking corporation, on the other hand, as further amended or modified from time to time.

 

“Material Intellectual Property” has the meaning set forth in Section 3.16(a).

 

“Merger” has the meaning set forth in the Recitals.

 

“Merger Consideration” has the meaning set forth in Section 2.5(a)(iii).

 

“Merger Sub” has the meaning set forth in the Preamble.

 

“Minimum Condition” has the meaning set forth in Annex I.

 

“NASDAQ” means the Nasdaq Stock Market LLC.

 

“Offer” has the meaning set forth in the Recitals.

 

“Offer Acceptance Time” means the time Merger Sub, for the first time, irrevocably accepts for payment Shares validly tendered and not validly withdrawn pursuant to the Offer.

 

“Offer Conditions” has the meaning set forth in Section 1.1(b).

 

“Offer Documents” has the meaning set forth in Section 1.1(h).

 

“Offer Price” has the meaning set forth in the Recitals.

 

“Offer to Purchase” has the meaning set forth in Section 1.1(c).

 

“Order” has the meaning set forth in Section 3.13.

 

“Other Antitrust Law” means the antitrust and competition Laws of all jurisdictions other than the United States.

 

“Paying Agent” has the meaning set forth in Section 2.6(a).

 

“Payment Fund” has the meaning set forth in Section 2.6(a).

 

“Parent” has the meaning set forth in the Preamble.

 

“Parent Board” has the meaning set forth in the Recitals.

 

“Parent Disclosure Schedule” has the meaning set forth in Article IV.

 

“Parent Material Adverse Effect” means any Effect that, individually or in the aggregate, would prevent, materially delay or materially impair consummation of the Offer, payment for Shares tendered pursuant to the Offer or Parent’s ability to consummate the Merger.

 

“Parent Termination Fee” has the meaning set forth in Section 8.2(c)(i).

 

“Party” has the meaning set forth in the Preamble.

 

“Person” means a natural person, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture, Governmental Entity or other entity or organization.

 

“Pre-Closing Period” has the meaning set forth in Section 5.2(a).

 

“Real Property Leases” has the meaning set forth in Section 3.17(b).

 

“Regulatory Approval” means a written approval or other notification from an appropriate Government Entity pursuant to an applicable Environmental Law, including granting commercial use, export or import approval, or responding to a letter of inquiry regarding regulatory status under the Environmental Law.

 

“Reimbursement Obligations” has the meaning set forth in Section 6.3(c).

 

“Release” means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, placing, discarding, abandonment or disposing into the environment (including the placing, discarding or abandonment of any barrel, container or other receptacle containing any Hazardous Substance or other material).

 

“Removal, Remedial or Response” mean actions to remove, remedy or respond to (i) soil, groundwater or other contamination or (ii) a Release, in either case as those actions may be required by or arise under Environmental Laws or by Governmental Entities.

 

“Representatives” means, when used with respect to Parent, Merger Sub or the Company, the directors, officers, employees, consultants, financial advisors, accountants, legal counsel, investment bankers and other agents, advisors and representatives of Parent or the Company, as applicable, and its respective Subsidiaries.

 

“Restricted Shares” has the meaning set forth in Section 2.8(b).

 

“Restrictive Covenant Agreements” has the meaning set forth in the Recitals.

 

“Schedule 14D-9” has the meaning set forth in Section 1.2(b).

 

“Schedule TO” has the meaning set forth in Section 1.1(h).

 

“SEC” means the United States Securities and Exchange Commission.

 

“Section 262” has the meaning set forth in Section 2.7(a).

 

“Securities Act” means the United States Securities Act of 1933, as amended.

 

“Shares” has the meaning set forth in the Recitals.

 

“Software” means computer programs, including any and all software implementations of algorithms, models and methodologies, whether in source code or object code.

 

“Solvent” means, with respect to any Person, that (a) the fair saleable value of the property of such Person is, on the date of determination, greater than the total amount of liabilities (including contingent and unliquidated liabilities) of such Person as of such date, (b) as of such date, such Person is able to pay all of its liabilities as such liabilities mature, (c) such Person does not have unreasonably small capital for conducting the business theretofore or proposed to be conducted by such Person and its Subsidiaries and (d) such Person has not incurred nor does it plan to incur debts beyond its ability to pay as they mature.  The amount of any contingent or unliquidated liability at any time will be computed as the amount which, in light of all facts and circumstances existing at such time, can reasonably be expect to become an actual or mature liability.

 

“Subsidiary” or “Subsidiaries” means with respect to any Person, any corporation, limited liability company, partnership or other organization, whether incorporated or unincorporated, of which (a) at least a majority of the outstanding shares of capital stock of, or other equity interests, having by their terms ordinary voting power to elect a majority of the board of directors or others performing similar functions with respect to such corporation or other organization is directly or indirectly owned or controlled by such Person or by any one or more of its Subsidiaries, or by such Person and one or more of its Subsidiaries or (b) with respect to a partnership, such Person or any other Subsidiary of such Person is a general partner of such partnership.

 

“Superior Proposal Acquisition Agreement” shall mean a written definitive acquisition agreement providing for a Company Superior Proposal entered into by and between the Company and the Person making a Company Superior Proposal.

 

“Surviving Corporation” has the meaning set forth in the Recitals.

 

“Takeover Statutes” mean any “business combination,” “control share acquisition,” “fair price,” “moratorium” or other takeover or anti-takeover statute or similar Law.

 

“Tax” or “Taxes” means any and all taxes, levies, duties, tariffs, imposts and other similar charges and fees imposed by any Governmental Entity or domestic or foreign taxing authority, including, income, franchise, windfall or other profits, gross receipts, premiums, property, sales, use, net worth, capital stock, payroll, employment, social security, workers’ compensation, unemployment compensation, excise, withholding, ad valorem, stamp, transfer, value-added, gains tax and license, registration and documentation fees, severance, occupation, environmental, customs duties, disability, real property, personal property, registration, alternative or add-on minimum, estimated or other tax of any kind whatsoever, however denominated or computed, and any escheat amounts or other amounts due in respect of unclaimed property, and in respect of each and every of the foregoing, any interest, penalty, additions to tax or additional amounts imposed with respect thereto, whether disputed or not.

 

“Tax Return” means any report, return, certificate, claim for refund, election, estimated tax filing or declaration required to be filed with any Governmental Entity or domestic or foreign taxing authority with respect to Taxes, including any schedule or attachment thereto, and including any amendments thereof.

 

“Tender and Support Agreements” has the meaning set forth in the Recitals.

 

“Transactions” means all of the transactions contemplated by this Agreement, including the Offer and the Merger.

 

“U.S. Company Benefit Plans” has the meaning set forth in Section 3.10(a).

 

“WARN” has the meaning set forth in Section 3.15(k).

 

“Willful Breach” means (i) with respect to any breach of a representation or warranty contained in this Agreement, a material breach of such representation or warranty that has been made with the actual knowledge of the breaching Party, and (ii) with respect to any breaches or failures to perform any of the covenants or other agreements contained in this Agreement, an intentional and material failure to perform that is the consequence of an action or omission by the breaching Party with the actual knowledge that the taking of such act or failure to act would constitute a breach of any agreement or covenant in this Agreement.

 

Section 9.6            Interpretation.  When a reference is made in this Agreement to Sections, such reference shall be to a Section of this Agreement unless otherwise indicated.  Whenever the words “include,” “includes” or “including” are used in this Agreement they shall be deemed to be followed by the words “without limitation” or “but not limited to”.  As used in this Agreement, the term “affiliates” shall have the meaning set forth in Rule 12b-2 of the Exchange Act.  The table of contents and headings set forth in this Agreement are for convenience of reference purposes only and shall not affect or be deemed to affect in any way the meaning or interpretation of this Agreement or any term or provision hereof.  Any definition of or reference to any Contract herein shall be construed as referring to such Contract as from time to time amended, supplemented or otherwise modified (except for any Contracts required to be included on the Company Disclosure Schedule).  When reference is made herein to a Person, such reference shall be deemed to include all direct and indirect Subsidiaries, successors and assigns of such Person unless otherwise indicated or the context otherwise requires.  All references herein to the Subsidiaries of a Person shall be deemed to include all direct and indirect Subsidiaries of such Person unless otherwise indicated or the context otherwise requires.  The Parties agree that they have been represented by counsel during the negotiation and execution of this Agreement and, therefore, waive the application of any Law, holding or rule of construction providing that ambiguities in an agreement or other document shall be construed against the party drafting such agreement or document.  Prior drafts of this Agreement and the documents referred to herein or the fact that any clauses have been added, deleted or otherwise modified from any prior drafts of this Agreement or the documents referred to herein shall be deemed to not to provide any evidence as to the meaning of any provision hereof or the intent of the Parties with respect hereto, it being understood that none of the foregoing shall result in any presumption or burden of proof either favoring or disfavoring any Party by virtue of such prior drafts.  The words “hereof,” “herein,” “hereinafter” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, unless the context requires otherwise.  The term “or” has the inclusive meaning represented by the phrase “and/or”.  The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such terms.  References in this Agreement to specific laws or to specific provisions of laws shall include all rules and regulations promulgated thereunder, and any statute defined or referred to herein or in any agreement or instrument referred to herein shall mean such statute as from time to time amended, modified or supplemented, including by succession of comparable successor statutes.  The phrase “ordinary course of business” as used in this Agreement shall be deemed to mean the ordinary course of business consistent with past practice and custom (including, if applicable, with respect to quantity, frequency and amount).  The term “dollars” and character “$” shall mean United States dollars.  Any reference herein or in the Company Disclosure Schedule to documents having been furnished, delivered, made available or disclosed to Parent, Merger Sub or their respective Representatives, or words of similar import, shall be deemed to refer to such documents as were made available and accessible to Parent and Parent’s Representatives for their review by posting to the electronic data room hosted by IntraLinks no later than the day prior to the execution of this Agreement.  The listing of any matter on the Company Disclosure Schedule shall not be deemed to constitute an admission by the Company to any Person not a Party, or to otherwise imply to any Person not a Party, that any such matter is material, is required to be disclosed by the Company under this Agreement or falls within relevant minimum thresholds or materiality standards set forth in this Agreement.  No disclosure in the Company Disclosure Schedule relating to any possible breach or violation by the Company of any Contract or Law shall be construed as an admission or indication to any Person not a Party that any such breach or violation exists or has actually occurred.  In no event shall the listing of any matter in the Company Disclosure Schedule be deemed or interpreted to expand the scope of the Company’s representations, warranties or covenants set forth in this Agreement.  Unless expressly provided otherwise, the measure of a period of one month or year for purposes of this Agreement shall be the date of the following month or year corresponding to the starting date; provided, that if no corresponding date exists, then the end date of such period being measured shall be the next actual day of the month or year following that month or year in which no corresponding date exists (for example, one month following February 18 is March 18, and one month following March 31 is May 1).  With respect to the determination of any period of time, the words “from” and “since” mean “from and including” and “since and including,” respectively, and the words “to” and “until” each mean “to and including.”  In interpreting and enforcing this Agreement, each representation and warranty will be given independent significant of fact and will not be deemed superseded or modified by any other representation or warranty. If any Party has breached or violated, or if there is an inaccuracy in, any representation, warranty or covenant contained herein in any respect, the fact that there exists another representation, warranty or covenant relating to the same or similar subject matter (regardless of the relative levels of specificity) which the Party has not breached or violated, or in respect of which there is not an inaccuracy, will not detract from or mitigate the fact that the Party has breached or violated, or that there is an inaccuracy in, the first representation, warranty or covenant.

 

Section 9.7            Counterparts.  This Agreement may be executed in any number of counterparts, each of which shall be considered one and the same agreement and shall become effective when a counterpart hereof shall have been signed by each of the Parties and delivered to the other Parties.  Delivery of an executed counterpart of a signature page to this Agreement by facsimile transmission or by e-mail of a .pdf attachment shall be effective as delivery of a manually executed counterpart of this Agreement.

 

Section 9.8            Entire Agreement; Third-Party Beneficiaries.

 

(a)           This Agreement (including the Company Disclosure Schedule), the Confidentiality Agreement, the Tender and Support Agreements, the Restrictive Covenant Agreements and the Letter Agreement constitute the entire agreement among the Parties with respect to the subject matter hereof and thereof and supersede all other prior agreements (except that the Confidentiality Agreement shall be deemed amended hereby so that until the termination of this Agreement in accordance with Section 8.1 hereof, Parent and Merger Sub shall be permitted to take the actions contemplated by this Agreement) and understandings, both written and oral, among the Parties or any of them with respect to the subject matter hereof and thereof.

 

(b)          Except as provided in this Section 9.8(b) and Section 6.5 (with respect to the Indemnified Parties) and this Section 9.8(b) and Sections 9.1, 9.10 and 9.11 (with respect to the Debt Financing Sources), neither this Agreement (including the Company Disclosure Schedule) nor the Confidentiality Agreement are intended to confer upon any Person other than the Parties any rights or remedies hereunder.  Notwithstanding anything to the contrary in this Agreement, (i) the Indemnified Parties shall have the right to enforce the provisions of this Section 9.8(b) and Section 6.5, (ii) the Debt Financing Sources shall have the right to enforce the provisions of this Section 9.8(b) and 8.2e), 9.1, 9.10 and 9.11, and (iii) the Debt Financing Affiliates shall have the right to enforce the provisions of Section 8.2(e).  The representations and warranties in this Agreement are the product of negotiations among the Parties and are for the sole benefit of the Parties.  Any inaccuracies in such representations and warranties are subject to waiver by the Parties in accordance with Section 9.1 without notice or liability to any other Person.  In some instances, the representations and warranties in this Agreement may represent an allocation among the Parties of risks associated with particular matters regardless of the knowledge of any of the Parties.  Consequently, Persons other than the Parties may not rely upon the representations and warranties in this Agreement as characterizations of actual facts or circumstances as of the date of this Agreement or as of any other date.

 

Section 9.9            Severability.  If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by rule of Law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the Merger is not affected in any manner adverse to any Party.  Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner to the end that the Transactions are fulfilled to the extent possible.

 

Section 9.10          Governing Law; Jurisdiction.  This Agreement, and any Legal Proceeding arising out of, relating to, or in connection with this Agreement, shall be governed by, and construed in accordance with, the Law of the State of Delaware, regardless of the Law that might otherwise govern under applicable principles of conflicts of laws thereof.  In any Legal Proceeding between any of the Parties arising out of or relating to this Agreement or any of the Transactions each of the Parties (a) irrevocably and unconditionally consents and submits to the exclusive jurisdiction and venue of the Court of Chancery of the State of Delaware or, if (and only if) the Court of Chancery of the State of Delaware declines to accept jurisdiction over a particular matter, the Superior Court of the State of Delaware (Complex Commercial Division) or, if (and only if) the Superior Court of the State of Delaware (Complex Commercial Division) declines to accept jurisdiction over a particular matter, any federal court sitting in the State of Delaware, and any appellate courts therefrom, (b) irrevocably waives any objection that it may now or hereafter have to the venue of any such action, dispute or controversy in any such court or that such Legal Proceeding was brought in an inconvenient court and agrees not to plead or claim the same, (c) agrees that it shall not bring any Legal Proceeding relating to this Agreement or the Transactions in any court other than the aforesaid courts, and (d) irrevocably consents to service of process by first class certified mail, return receipt requested, postage prepaid, to the address at which such Party is to receive notice in accordance with Section 9.4, in addition to any other method to serve process permitted by applicable Law.  Notwithstanding anything in this Agreement to the contrary, each of the Parties agrees that (i) it will not bring or support any Legal Proceedings against the Debt Financing Sources arising out of or related to this Agreement, including any dispute arising out of or relating in any way to any Debt Financing or the performance thereof, in any forum other than a court of competent jurisdiction located within the Borough of Manhattan in the City of New York, whether a state or federal court and (ii) the provisions of Section 9.11 relating to the waiver of jury trial shall apply to any such Legal Proceedings.

 

Section 9.11          Waiver of Jury Trial.  EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THE MERGER AND OTHER TRANSACTIONS CONTEMPLATED HEREBY (INCLUDING ANY DEBT FINANCING).  EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE EITHER OF SUCH WAIVERS, (B) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (C) IT MAKES SUCH WAIVERS VOLUNTARILY, AND (D) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.11.

 

Section 9.12          Assignment.  This Agreement shall not be assigned by any of the Parties (whether by operation of Law or otherwise) without the prior written consent of the other Parties, except Merger Sub may assign, in its sole discretion and without the consent of any other Party, any or all of its rights, interests and obligations hereunder to (i) Parent, (ii) Parent and one or more direct or indirect wholly owned Subsidiaries of Parent, or (iii) one or more direct or indirect wholly owned Subsidiaries of Parent; provided, however, that no such assignment shall be permitted without the prior written consent of the other Parties if such assignment could increase the risk that any of the conditions set forth in Article VII may not be timely satisfied, result in a breach of any of covenants and agreements set forth in this Agreement or adversely affect the Company; provided, further, however, that no such assignment shall relieve Parent or Merger Sub of any liability under this Agreement.  Subject to the preceding sentence, but without relieving any Party of any obligation hereunder, this Agreement shall be binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and assigns.

 

Section 9.13          Enforcement; Remedies.

 

(a)           Except as otherwise expressly provided herein, any and all remedies herein expressly conferred upon a Party shall be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by Law or equity upon such Party, and the exercise by a Party of any one remedy shall not preclude the exercise of any other remedy.

 

(b)          Each Party to this Agreement agrees that, in the event of any breach or threatened breach by another Party of any covenant, obligation or other provision set forth in this Agreement (i) the non-breaching Party shall be entitled, without any proof of actual damages (and in addition to any other remedy that may be available to it) to (A) a decree or order of specific performance or mandamus to enforce the observance and performance of such covenant, obligation or other provision, and (B) an injunction restraining such breach or threatened breach, and (ii) such Party shall not be required to provide any bond or other security in connection with any such decree, order or injunction or in connection with any related action or Legal Proceeding.

 

(c)           Notwithstanding anything to the contrary contained in this Agreement, the Letter Agreement or otherwise, it is explicitly agreed that the Company shall not be entitled to specific performance of, or other equitable remedies in connection with enforcing, Parent’s and Merger Sub’s obligations to cause the Equity Financing to be funded (or to cause directly such Equity Financing to be Funded under the Letter Agreement) and to cause the Offer Acceptance Time to occur and to effect the Closing (but not the right of the Company to seek such specific performance or other equitable remedies for any other reason) unless (i) all conditions in Annex I were satisfied (other than those conditions that by their terms are to be satisfied at the Offer Acceptance Time, but subject to those conditions being able to be satisfied) or waived on the Expiration Date), (ii) Parent fails to complete the Closing by the date the Closing is required to have occurred pursuant to Section 2.2, and (iii) the Company has irrevocably confirmed in writing that it is prepared to consummate the Closing and stands ready, willing and able to consummate the Closing.

 

(d)           The Parties’ rights in this Section 9.13 are an integral part of the Transactions and each Party hereby waives any objections to any remedy referred to in this Section 9.13 (including any objection on the basis that there is an adequate remedy at Law or that an award of such remedy is not an appropriate remedy for any reason at Law or equity).  For the avoidance of doubt, each Party agrees that there is not an adequate remedy at Law for a breach of this Agreement by any Party.

 

(Remainder of Page Intentionally Left Blank)

 

IN WITNESS WHEREOF, Parent, Merger Sub and the Company have caused this Agreement to be signed by their respective officers thereunto duly authorized as of the date first written above.

 

 

 

[Signature Page to Agreement and Plan of Merger]

 

 

[Signature Page to Agreement and Plan of Merger]

 

ANNEX I

 

 

Notwithstanding any other terms or provisions of the Offer or this Agreement to which this Annex I is attached, Merger Sub shall not be obligated, and Parent shall not be obligated to cause Merger Sub, to accept for payment, and, subject to the rules and regulations of the SEC (including Rule 14e-l(c) promulgated under the Exchange Act), shall not be obligated to pay for, and may delay the acceptance for payment of or payment for, any validly tendered Shares pursuant to the Offer (and not theretofore accepted for payment or paid for), if:

 

(a)           there shall not have been validly tendered and not validly withdrawn pursuant to the Offer that number of Shares (not including any Shares tendered pursuant to guaranteed delivery procedures that have not yet been received by the depositary for the Offer in full settlement or satisfaction of such guarantee) that, when added to the Shares then owned by Merger Sub, would represent one Share more than one half of all Shares outstanding immediately prior to the Offer Acceptance Time (for the avoidance of doubt, including in the number of Shares outstanding immediately prior to the Offer Acceptance Time, (i) to the extent the Company has received a notice of exercise with respect to any Company Options prior to the Offer Acceptance Time, the Shares that the Company would be required to issue upon the exercise of such Company Options and (ii) any Restricted Shares) (the “Minimum Condition”);

 

(b)           immediately prior to the expiration of the Offer, any of the following conditions shall not have been satisfied (or, to the extent permitted under this Agreement and applicable Law, waived):

 

(i)            (1) the representations and warranties of the Company set forth in Section 3.2(a) of this Agreement shall be accurate in all respects as of the date of the Agreement, and shall be accurate in all respects at and as of the Expiration Date, as if made as of such Expiration Date (other than such inaccuracies as to the equity capitalization of the Company that do not, individually or in the aggregate, increase the aggregate consideration required to be paid by Parent or Merger Sub under Article II by more than a de minimis amount); (2) the representations and warranties of the Company set forth in Section 3.1, Section 3.2(b), Section 3.2(c), Section 3.3(a), Section 3.28 and Section 3.31 of this Agreement shall have been accurate, in all material respects, as of the date of the Agreement, and shall be accurate, in all material respects, at and as of the Expiration Date as if made on and as of such Expiration Date (it being understood that, for purposes of determining the accuracy of such representations and warranties, (A) all “Company Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded and (B) the truth and correctness of those representations or warranties that address matters only as of a specific date shall be measured only as of such date); and (3) the other representations and warranties of the Company set forth in this Agreement shall have been accurate in all respects as of the date of the Agreement, and shall be accurate in all respects at and as of the Expiration Date as if made on and as of such Expiration Date, except that any inaccuracies in such representations and warranties shall be disregarded if the circumstances giving rise to all such inaccuracies (considered collectively) do not constitute a Company Material Adverse Effect (it being understood that, for purposes of determining the accuracy of such representations and warranties, (A) all “Company Material Adverse Effect” qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded and (B) the truth and correctness of those representations or warranties that address matters only as of a specific date shall be measured only as of such date);

 

(ii)          the Company shall have performed or complied, in all material respects, with all covenants and obligations that the Company is required to comply with or to perform under the Agreement prior to the Expiration Date;

 

(iii)         Parent shall have received a certificate signed on behalf of the Company by the Chief Executive Officer or Chief Financial Officer of the Company to the effect that the conditions in clauses (b)(i) and (b)(ii) above have been satisfied;

 

(iv)         since the date of the Agreement, there shall not have occurred a Company Material Adverse Effect (whether or not Effects occurring prior to the execution and delivery of this Agreement cause or contributed to the occurrence of such Company Material Adverse Effect);

 

(v)          there shall not have been issued by any Governmental Entity of competent jurisdiction or remain in effect any temporary restraining order, preliminary or permanent injunction or other Order (A) preventing the acceptance for payment of, or payment for, Shares or the consummation of the Offer or the Merger, (B) restraining or prohibiting Parent’s or its affiliates’ ownership or operation of the business of the Company or any Company Subsidiary, or of Parent or its affiliates, or compelling Parent or any of its affiliates to dispose or hold separate all or any portion of the business or assets of the Company or any Company Subsidiary or of Parent or its affiliates or (C) imposing or confirming material limitations on the ability of Parent or any of its affiliates effectively to exercise full rights of ownership of the Shares;

 

(vi)         there shall not have been any Law or order promulgated, entered, enforced, enacted, issued or deemed applicable to the Offer or the Merger by any Governmental Entity, or any action by any Governmental Entity, other than the application to the Offer or the Merger of the applicable waiting periods under the HSR Act, which would have any of the effects referred to in clause (A) of paragraph (v) above;

 

(vii)        there shall not be pending any Legal Proceeding brought by a Governmental Entity having authority over Parent, Merger Sub or the Company wherein a judgment would have any of the effects referred to in paragraph (v) above;

 

(viii)       the waiting period under the HSR Act applicable to the Transactions shall have expired or been terminated;

 

(ix)          (A) a Company Change of Recommendation shall not have occurred, and (B) the Company shall not have approved, endorsed or recommended a Company Competing Proposal; or

 

(c)           the Agreement shall have been terminated in accordance with its terms and the Offer shall have been terminated in accordance with the terms of the Agreement.

 

The foregoing conditions are for the sole benefit of Parent and Merger Sub and may be waived by Parent and Merger Sub, in whole or in part at any time and from time to time, in the sole discretion of Parent and Merger Sub; provided, however, that the Minimum Condition may be waived by Parent and Merger Sub only with the prior written consent of the Company, which may be granted or withheld in the Company’s sole discretion.  The failure by Parent or Merger Sub at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time.

 

EXHIBIT A

FORM OF LETTER AGREEMENT

 

	Very truly yours,
	Laborie Medical Technologies Canada ULC
	By:	/s/ Michael Frzzette
	Name: Michael Frazzette
	Title: President and CEO

EXHIBIT B

CERTIFICATE OF INCORPORATION OF THE SURVIVING CORPORATION

 

EXHIBIT C

BYLAWS OF THE SURVIVING CORPORATION

 

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