EXHIBIT 10.52
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ASSET PURCHASE AGREEMENT
November 5, 1997
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by and among
Arrow Interventional, Inc.,
Boston Scientific Corporation,
and
IABP Corporation
TABLE OF CONTENTS
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1. PURCHASE AND SALE OF ACQUIRED ASSETS................................... 1
1.1. ACQUIRED ASSETS.................................................... 1
1.2. EXCLUDED ASSETS.................................................... 3
2. PURCHASE PRICE......................................................... 3
2.1. PURCHASE PRICE..................................................... 3
2.2. ALLOCATION OF PURCHASE PRICE....................................... 3
3. ASSUMPTION OF CERTAIN OBLIGATIONS...................................... 4
3.1. ASSUMED OBLIGATIONS................................................ 4
3.2. OBLIGATIONS NOT ASSUMED............................................ 4
4. CLOSING................................................................ 4
5. REPRESENTATIONS AND WARRANTIES OF THE SELLERS.......................... 5
5.1. ORGANIZATION OF SELLERS; AUTHORITY................................. 5
5.2. APPROVALS OF SELLERS; BINDING EFFECT............................... 5
5.3. NON-CONTRAVENTION.................................................. 5
5.4. GOVERNMENTAL CONSENTS; TRANSFERABILITY OF PERMITS.................. 6
5.5. LITIGATION......................................................... 6
5.6. EQUIPMENT.......................................................... 6
5.7. INVENTORIES........................................................ 6
5.8. CONTRACTS.......................................................... 6
5.9. TRADEMARKS, PATENTS, ETC........................................... 7
5.10. TITLE TO ACQUIRED ASSETS........................................... 7
5.11. CUSTOMERS, DISTRIBUTORS AND SUPPLIERS.............................. 7
5.12. SALES OF FINISHED GOODS INVENTORY.................................. 7
5.13. BROKERS............................................................ 8
5.14. NO OTHER WARRANTIES................................................ 8
6. REPRESENTATIONS AND WARRANTIES OF THE BUYER............................ 8
6.1. ORGANIZATION AND STANDING OF THE COMPANIES......................... 8
6.2. APPROVAL OF THE BUYER; BINDING EFFECT.............................. 8
6.3. NON-CONTRAVENTION.................................................. 8
6.4. LITIGATION......................................................... 9
6.5. BROKERS............................................................ 9
6.6. NO OTHER WARRANTIES................................................ 9
7. CONDITIONS PRECEDENT TO THE COMPANIES' OBLIGATIONS..................... 9
7.1. REPRESENTATIONS AND WARRANTIES TRUE AT CLOSING..................... 9
7.2. COMPLIANCE WITH AGREEMENT.......................................... 9
7.3. LICENSE AGREEMENT.................................................. 9
7.4. INTERIM SUPPLY AGREEMENT........................................... 9
7.5. NO RESTRAlNING ORDER............................................... 9
7.6. PROCEEDINGS AND DOCUMENTS SATISFACTORY............................. 9
7.7. INSURANCE CERTIFICATION............................................ 10
8. CONDITIONS PRECEDENT TO SELLERS' OBLIGATIONS.......................... 10
8.1. REPRESENTATIONS AND WARRANTIES TRUE AT CLOSING..................... 10
8.2. COMPLIANCE WITH AGREEMENT.......................................... 10
8.3. ASSUMPTION OF LIABILITIES.......................................... 10
8.4. LICENSE AGREEMENT.................................................. 10
8.5. INTERIM SUPPLY AGREEMENT........................................... 10
8.6. NO RESTRAINING ORDER............................................... 10
8.7. PROCEEDINGS AND DOCUMENTS SATISFACTORY............................. 10
8.8. APPROVAL OF BSC AND IABP BOARDS AND IABP STOCKHOLDERS.............. 11
8.9. INSURANCE CERTIFICATION............................................ 11
9. POST-CLOSING COVENANTS................................................ 11
9.1. CONFIDENTIAL INFORMATION........................................... 11
9.2. RISK OF LOSS....................................................... 12
9.3. RELABELLING OF CARDIAC ASSIST PRODUCTS MANUFACTURED PRE-CLOSING.... 12
9.4. MAINTENANCE OF PRODUCT COMPLAINT FILES............................. 12
9.5. MAINTENANCE OF INSURANCE........................................... 12
9.6. REMOVAL OF ASSETS.................................................. 12
9.7. NO SOLICITATION.................................................... 12
9.8. EMPLOYEE MATTERS................................................... 12
9.9. NON-COMPETITION.................................................... 13
9.10. DISTRIBUTION CONTRACTS............................................. 13
10. INDEMNIFICATION....................................................... 13
10.1. INDEMNITY BY THE SELLERS........................................... 13
10.2. INDEMNITY BY THE BUYER............................................. 14
10.3. CLAIMS............................................................. 14
11. USE OF NAME........................................................... 15
12. GENERAL............................................................... 15
12.1. SURVIVAL........................................................... 15
12.2. EXPENSES........................................................... 15
12.3. FURTHER ASSURANCES................................................. 16
12.4. SATISFACTION OF CONDITIONS PRECEDENT............................... 16
12.5. NO IMPLIED RIGHTS OR REMEDIES...................................... 16
12.6. PUBLIC STATEMENTS OR RELEASES...................................... 16
12.7. NOTICES............................................................ 16
12.8. ENTIRE AGREEMENT................................................... 17
12.9. ASSIGNS............................................................ 17
12.10. SECTIONS AND SECTION HEADINGS...................................... 17
12.11. COUNTERPARTS....................................................... 17
12.12. GOVERNING LAW...................................................... 18
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SCHEDULES
SCHEDULE 1.1(a) EQUIPMENT TRANSFERRED TO BUYER
SCHEDULE 1.1(b) IABP INTANGIBLES TRANSFERRED TO BUYER
SCHEDULE 1.1(c) INVENTORIES TRANSFERRED TO BUYER
SCHEDULE 1.1(d) PREPAID AMOUNTS TRANSFERRED TO BUYER
SCHEDULE 1.1(f) PERMITS TRANSFERRED TO BUYER
SCHEDULE 1.1(g) BSC INTANGIBLES TRANSFERRED TO BUYER
SCHEDULE 1.1(h) BSC PATENTS LICENSED TO BUYER
SCHEDULE 5.4 REPRESENTATIONS AND WARRANTIES OF SELLERS - GOVERNMENTAL
CONSENTS; TRANSFERABILITY OF PERMITS
SCHEDULE 5.5 REPRESENTATIONS AND WARRANTIES OF SELLERS - LITIGATION
SCHEDULE 5.6 REPRESENTATIONS AND WARRANTIES OF SELLERS - EQUIPMENT
SCHEDULE 5.7 REPRESENTATIONS AND WARRANTIES OF SELLERS - INVENTORIES
SCHEDULE 5.8 REPRESENTATIONS AND WARRANTIES OF SELLERS - CONTRACTS
SCHEDULE 5.9 REPRESENTATIONS AND WARRANTIES OF SELLERS - TRADEMARKS,
PATENTS, ETC.
SCHEDULE 5.10 ENCUMBRANCES
SCHEDULE 5.11 REPRESENTATIONS AND WARRANTIES OF SELLERS - CUSTOMERS,
DISTRIBUTORS & SUPPLIERS
SCHEDULE 6.5 REPRESENTATIONS AND WARRANTIES OF THE BUYER - LITIGATION
SCHEDULE 6.6 REPRESENTATIONS AND WARRANTIES OF THE BUYER - BROKERS
SCHEDULE 9.8 EMPLOYEES HIRED BY THE BUYER
SCHEDULE 9.10 DISTRIBUTION CONTRACTS TO BE TERMINATED BY BSC
EXHIBITS
EXHIBIT A LICENSE AGREEMENT
EXHIBIT B ASSUMPTION OF LIABILITIES AGREEMENT
EXHIBIT C INTERIM SUPPLY AGREEMENT
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ASSET PURCHASE AGREEMENT
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THIS AGREEMENT, dated as of the 5th day of November, 1997, is by and among
Arrow Interventional, Inc., a Delaware corporation (the "Buyer"), Boston
Scientific Corporation, a Delaware corporation ("BSC"), and IABP Corporation, a
Delaware corporation ("IABP") (BSC and IABP being hereinafter referred to
collectively as the "Sellers", and each individually as a "Seller").
WITNESSETH:
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WHEREAS, BSC desires to sell and the Buyer desires to purchase certain
assets currently owned by BSC constituting BSC's Cardiac Assist Division (the
"Cardiac Assist Division"), and IABP desires to sell and the Buyer desires to
purchase certain patents and trademarks currently licensed by IABP to BSC for
use by the Cardiac Assist Division; and
WHEREAS, the parties wish to enter into this Agreement to set forth their
rights and obligations in relation to the sale of assets described herein.
NOW, THEREFORE, in consideration of the mutual promises and agreements set
forth herein, the Buyer and the Sellers agree as follows:
1. PURCHASE AND SALE OF ACQUIRED ASSETS.
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1.1. Acquired Assets. Subject to the terms and conditions set forth in
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this Agreement, the Sellers hereby sell, assign, convey and transfer
to the Buyer, and the Buyer hereby purchases and, subject to the
provisions of an Interim Supply Agreement dated of even date
herewith, takes delivery of, all of the following assets (the
"Acquired Assets"):
(a) All machinery, equipment, furniture, tools, spare parts,
supplies, materials and other personal property described on
Schedule 1.1 (a) hereto, together with all other items of
personal property materially necessary to operate the Cardiac
Assist Division as it is conducted on the date hereof, except
such items listed on Schedule 5.6 hereto (collectively, the
"Equipment");
(b) All of IABP's right, title, and interest in and to (i) the
patents and patent applications described on Schedule 1.1 (b)
hereto, (ii) the trademarks and trademark applications set
forth in Schedule 1.1 (b) hereto, and (iii) all continuations,
substitutions, renewals, reissuances, and divisions of any of
the foregoing patents, trademarks and patent and trademark
applications (collectively, the "IABP Intangibles");
(c) All of the Cardiac Assist Division's inventories of intraaortic
balloon catheters and balloon pumps, including raw materials,
work in process and finished goods, described on Schedule 1.1
(c) hereto, which includes all of the finished goods inventory
of such Cardiac Assist Division products,
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wherever located, owned by BSC or any of its subsidiaries or
affiliates as of the Closing Date (the "Inventories");
(d) All of BSC's right, title, and interest in and to the deposits
and prepaid expenses described on Schedule 1.1 (d) hereto (the
"Prepaid Amounts");
(e) All of BSC's transferable rights under the purchase orders,
contracts and agreements for the purchase or sale of utilities,
goods (including, without limitation, for the purchase or sale
of catheters and catheter-related inventory), materials and
services relating solely to the Cardiac Assist Division, and
under all other contracts, commitments and agreements of the
Cardiac Assist Division entered into in the ordinary course of
business prior to the Closing, IN EACH CASE WHICH RELATE OR
PERTAIN EXCLUSIVELY TO THE CARDIAC ASSIST DIVISION (the
contracts and agreements referred to in this Section 1.1 (e)
are referred to collectively as the "Other Contracts");
(f) All of BSC's and its subsidiaries' and affiliates' transferable
rights under the licenses and permits relating exclusively to
BSC's operations constituting the Cardiac Assist Division,
including, without limitation, those licenses, permits, import
licenses and product registrations described on Schedule 1.1
(f) hereto (the "Permits");
(g) All of BSC's right, title and interest in and to (i) the
trademarks and trademark applications set forth in Schedule 1.1
(g) hereto, (ii) all continuations, substitutions, renewals,
reissuances and divisions of any of the foregoing trademarks
and trademark applications, and (iii) all other intangible
assets of BSC, other than the patents and patent applications
set forth in Schedule 1.1 (h) hereto, necessary to the
operation of the Cardiac Assist Division as it is conducted as
of the date hereof, IN EACH CASE WHICH RELATE OR PERTAIN
EXCLUSIVELY TO THE CARDIAC ASSIST DIVISION (the "BSC
Intangibles");
(h) An exclusive worldwide license in the field of intraaortic
balloon catheters in and to that patent application set forth
in Schedule 1.1 (h) hereto, together with all continuation,
divisional, substitution, continuation-in-part, or reissue
patent applications with respect to such patent application,
all unexpired patents issued on any such patent application,
all extensions or renewals of any such patents and all foreign
counterparts thereof, pursuant to the terms and conditions of a
license agreement (the "License Agreement") in the form
attached hereto as Exhibit A; and
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(i) Copies of all of the Sellers' documentation which relates or
pertains exclusively to the Cardiac Assist Division, including
without limitation, all regulatory files pertaining exclusively
to Cardiac Assist Division products.
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1.2. Excluded Assets. The Sellers shall not sell and the Buyer shall not
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purchase any tangible or intangible properties, assets or rights of
either of the Sellers not specifically included in the Acquired
Assets. Without limiting the foregoing, there shall not be sold or
transferred hereunder any of the following assets of the Sellers,
and the term "Acquired Assets" shall not include:
(a) Except as provided in the Interim Supply Agreement (as defined
below) or in Schedule 1.1 (a) hereto, any of the Sellers'
interests in real estate owned or leased by them, or any
buildings, plants and other structures and improvements
thereon, any rights and privileges pertaining thereto or to any
of such buildings, plants or other structures or improvements,
or, to the extent constituting real property, any fixtures,
machinery, installations, equipment and other property attached
thereto or located thereon;
(b) Those items of machinery and equipment set forth on Schedule
5.6 hereof,
(c) Except as provided in the License Agreement, all of BSC's
right, title and interest in and to Nitinol technology and the
supply of Nitinol tubing, including without limitation its
rights to the patents and patent applications set forth in
Schedule 1.1 (h) hereof,
(d) Any assets of BSC not exclusively related to the Cardiac Assist
Division and any assets of IABP other than the IABP
Intangibles;
(e) Any cash on hand or in banks or marketable securities owned by
the Sellers;
(f) Any trade accounts receivable, notes receivable or
miscellaneous receivables of the Sellers;
(g) All of the Sellers' right, title and interest in and to their
respective corporate names; and
(h) All of BSC's right, title and interest in and to the names
"Mansfield" and "Boston Scientific" and the Mansfield heart
logo.
2. PURCHASE PRICE.
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2.1. Purchase Price. The Buyer shall pay to the Sellers, as the
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aggregate cash purchase price for the Acquired Assets, an amount
equal to Seven Million Three Hundred Thousand Dollars
($7,300,000.00) (the "Purchase Price"). The Purchase Price shall be
payable by wire transfer of immediately available funds at Closing
to the Sellers at The First National Bank of Boston, Account No.
▇▇▇▇▇▇▇▇, ABA No. ▇▇▇-▇▇▇-▇▇▇, Reference: Boston Scientific
Corporation.
2.2. Allocation of Purchase Price. Within sixty (60) days of the
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Closing, Seller shall allocate the Purchase Price (and all other
capitalized costs) among the Acquired
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Assets. Such allocation shall be made in accordance with the
provisions of Section 1060 of the Internal Revenue Code of 1986, as
amended (the "Code"), and shall be binding upon the Buyer and the
Sellers for all purposes (including financial accounting purposes,
financial and regulatory reporting purposes and tax purposes). The
Buyer and the Sellers each also agree to file IRS Form 8594
consistently with the foregoing and in accordance with Section 1060
of the Code.
3. ASSUMPTION OF CERTAIN OBLIGATIONS.
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3.1. Assumed Obligations. At the Closing, as further consideration for
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the sale and transfer of the Acquired Assets, the Buyer shall assume
and agree to pay, perform, fulfill and discharge, (a) any and all of
the Seller's outstanding warranty, repair and service obligations
under the Other Contracts, (b) those obligations of the Sellers that
accrue after the Closing and that relate to events that transpire
subsequent to the Closing under the Other Contracts and the
Distribution Contracts, and (c) any and all other liabilities and
obligations relating to the Acquired Assets that arise after the
Closing. For purposes of this Agreement, the term "Assumed
Obligations" shall mean all of the obligations which the Buyer has
agreed to assume, pay, perform, fulfill and discharge pursuant to
this Section 3.1. In connection with this obligation, Buyer shall
execute an assumption of liabilities agreement in the form attached
hereto as Exhibit B (the "Assumption of Liabilities Agreement").
3.2. Obligations Not Assumed. Anything in this Agreement to the contrary
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notwithstanding, the Buyer shall not assume, and shall not be deemed
to have assumed, any liability of the Sellers whatsoever other than
as specifically set forth in Section 3.1 hereof, including without
limitation liabilities relating to litigation now pending or
hereafter instituted against the Sellers concerning matters arising
prior to the Closing Date. Without limiting the foregoing, the Buyer
shall not assume any liability for product liability claims with
respect to finished products manufactured by BSC prior to the
Closing Date or after the Closing Date pursuant to the terms of the
Interim Services Agreement, except to the extent such claims relate
to finished products ready for sale which were (i) shipped by Buyer
or its agents or affiliates to customers on or after the Closing
Date, to the extent that the sterile packaging of such products was
broken by Buyer or its agents or affiliates at any time prior to
delivery to such customers, (ii) altered by Buyer or its agents or
affiliates in any way, including without limitation, repackaged
(other than relabeled, except if such relabeling alters the product
in any manner), following the Closing Date, or (iii) sold or
promoted for use by Buyer or its agents or affiliates in violation
of applicable labeling and use instructions, including without
limitation, applicable expiration dates.
4. CLOSING.
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The closing of the transactions contemplated hereunder (the "Closing")
shall be held at 10:00 a.m. on the date hereof or at such other time as the
parties may agree, not to be later than November 7, 1997. The date on which
the Closing is actually held hereunder is referred to herein as the
"Closing Date". The Buyer and Sellers agree that all Cardiac
4
Assist Division sales and other transactions made on the Closing Date shall
be deemed to be made for the benefit of the Buyer.
5. REPRESENTATIONS AND WARRANTIES OF THE SELLERS.
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BSC and IABP jointly and severally represent and warrant to the Buyer as
follows:
5.1. Organization of Sellers, Authority. Each of the Sellers is a
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corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware. The Sellers have all
requisite power and authority to own and hold the Acquired Assets,
to carry on the business applicable to the Acquired Assets, and, as
of the Closing Date, to execute and deliver this Agreement and carry
out all actions required of them pursuant to the terms of this
Agreement.
5.2. Approvals of Sellers; Binding Effect. The Sellers have obtained all
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necessary authorizations and approvals from their respective Boards
of Directors and stockholders (if any) required for the execution
and delivery of this Agreement and the consummation of the
transactions contemplated hereby. This Agreement has been duly
executed and delivered by each of the Sellers and constitutes the
legal, valid and binding obligation of each Seller, enforceable
against each such Seller in accordance with its terms, subject only
to the effects of bankruptcy, insolvency, moratorium, reorganization
or other laws of general applicability relating to or affecting the
enforcement of creditors' rights and general principles of equity.
5.3. Non-Contravention. Subject to such exceptions, the effect of which
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in the aggregate would not be materially adverse to the Acquired
Assets or the business conducted with such Acquired Assets by the
Sellers, taken as a whole (a "Materially Adverse Effect"), neither
the execution and delivery of this Agreement by either Seller nor
the consummation by each Seller of the transactions contemplated
hereby will constitute a violation of, or be in conflict with, or
constitute or create a default under, or result in the creation or
imposition of any Encumbrance upon any of the Acquired Assets
pursuant to (a) the Certificate of Incorporation or By-Laws of
either Seller, each as amended to date, (b) any agreement or
commitment to which either Seller is a party or by which either
Seller or any of its Acquired Assets is bound or to which either
Seller or any of such properties is subject, or (c) any statute or
any judgment, decree, order, regulation or rule of any court or
governmental authority.
5.4. Governmental Consents; Transferability of Permits. Except as set
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forth on Schedule 5.4 hereto, and subject to such further exceptions
which, in the aggregate, would not have a Materially Adverse Effect,
no consent, approval or authorization of, or registration,
qualification or filing with any governmental agency or authority is
required for the execution and delivery of this Agreement by either
Seller or for the consummation by either Seller of the transactions
contemplated hereby. BSC's rights under all of its respective
Permits, both governmental and private, related to the operation of
the Acquired Assets are
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freely transferable to the Buyer, except as set forth in Schedule
5.4 and except where the failure to transfer the same would not have
a Materially Adverse Effect.
5.5. Litigation. Except as set forth on Schedule 5.5 hereto, and subject
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to such further exceptions which, in the aggregate, would not have a
Materially Adverse Effect, no action, suit, proceeding or
investigation is pending or, to the knowledge of any Seller,
threatened, except by the Buyer or its affiliates, (a) relating to
or affecting any of the Acquired Assets, (b) relating to or
affecting the activities of any Seller carried on with any of the
Acquired Assets, or (c) that questions the validity of this
Agreement or challenges any of the transactions contemplated hereby.
5.6. Equipment. Except as set forth on Schedule 5.6 hereto, and subject
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to such further exceptions which, in the aggregate, would not have a
Materially Adverse Effect, (a) Schedule 1.1 (a) hereto sets forth a
complete and accurate list of all of the Equipment necessary to the
operation of the Cardiac Assist Division as it is conducted as of
the date hereof, other than items having a value individually of
less than $5,000, and (b) all such Equipment is in good repair and
working order and has been well maintained.
5.7. Inventories. Except as set forth on Schedule 5.7 hereto, and
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subject to such further exceptions which, in the aggregate, would
not have a Materially Adverse Effect, the raw material and work in
process Inventories to be transferred to the Buyer hereunder are of
a quality and quantity consistent with the Cardiac Assist Division's
normal requirements. BSC further warrants that the finished goods
Inventories to be transferred to the Buyer hereunder shall be free
from defects in materials and workmanship for a period of one (1)
year following the Closing Date under normal use and service. During
the first month of the Interim Supply Agreement, BSC's obligation
under this warranty shall be limited to replacement of any finished
goods which are determined to be defective. Thereafter, BSC's
obligation under this warranty shall be limited to the replacement
cost of any defective product.
5.8. Contracts. Schedule 5.8 hereto sets forth a complete and accurate
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list of all contracts ("Contracts") to which BSC or its subsidiaries
(in respect of its Cardiac Assist Division) or IABP (in respect of
the IABP Intangibles) is a party or by which either (in respect of
its Cardiac Assist Division or the IABP Intangibles, as applicable)
is bound or to which BSC (in respect of the Cardiac Assist
Division), IABP (in respect of the IABP Intangibles) or the Acquired
Assets are subject, except (a) any purchase order or other contract
entered into in the ordinary course of business by either of the
Sellers which does not in any case involve payment by or to either
Seller of more than $25,000, (b) contracts listed in other Schedules
hereto, and (c) contracts which do not relate or pertain exclusively
to the Cardiac Assist Division and which are not being assumed by
Buyer. As used in this Section 5.8, the word "Contract" means and
includes every written agreement or understanding of any kind that
is legally enforceable by or against either of the Sellers in
respect of the matters referred to above, and specifically includes
the Other Contracts and the Distribution Contracts. The Sellers have
provided the Buyer access to true, correct and complete copies of
all such Contracts, together
6
with all modifications and supplements thereto. Each of the
Contracts listed on Schedule 5.8 hereto is in full force and effect,
and the Sellers have no reason to believe that any Contract is
invalid or that any breach or default, or event or condition that
with notice or the passage of time or both would constitute such a
breach or default, exists with respect thereto.
5.9. Trademarks, Patents, Etc. Except as set forth in Schedule 5.9
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hereto, and subject to such further exceptions which, in the
aggregate, would not have a Materially Adverse Effect, Schedule 1.1
(g) hereto sets forth a complete and accurate list of all trademarks
and trade names registered in the name of BSC or used or proposed to
be used by BSC, IN EACH CASE RELATING SOLELY TO THE CARDIAC ASSIST
DIVISION. Except as set forth in Schedule 5.9 hereto, and subject to
such further exceptions which, in the aggregate, would not have a
Materially Adverse Effect, Schedule 1.1 (i) hereto sets forth a
complete and accurate list of all patents and patent applications
registered in the name of BSC, IN EACH CASE WHICH RELATE TO THE
CARDIAC ASSIST DIVISION. Except as set forth in Schedule 5.9 hereto,
and subject to such further exceptions which, in the aggregate,
would not have a Materially Adverse Effect, Schedule 1.1 (b) hereto
sets forth a complete and accurate list of all patents, trademarks
and patent and trademark applications registered in the name of IABP
and licensed to BSC for use or proposed use only by its Cardiac
Assist Division. To the best knowledge of BSC or IABP, as
applicable, except as set forth in Schedule 5.9 hereto and except
for claims threatened or asserted by the Buyer and its affiliates,
no claims have been asserted, and Sellers have received no notice of
claims pending, by any person regarding the use of any such patents,
trademarks, trade names, technology, know-how or processes, or
challenging or questioning the validity or effectiveness of any
license or agreement.
5.10. Title to Acquired Assets. Except as described in Schedule 5.10, the
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Sellers own all right, title and interest in and to the Acquired
Assets, free and clear of all liens, licenses, security interests,
options, mortgages, or other encumbrances. Without limiting the
foregoing, any license of technology or trademarks between BSC and
IABP relating to the Cardiac Assist Division shall terminate as of
the Closing Date.
5.11. Customers, Distributors and Suppliers. Schedule 5.11 hereto sets
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forth a complete and accurate list of those customers or
distributors (whether pursuant to a commission, royalty or other
arrangement) each of whom accounted for more than ten percent (10%)
of the gross sales of the Cardiac Assist Division for the fiscal
year ended December 31, 1996 (the "Customers and Distributors").
Schedule 5.11 hereto also sets forth a complete and accurate list of
the suppliers of the Cardiac Assist Division to whom, during the
fiscal year ended December 31, 1996, the Cardiac Assist Division
made payments aggregating $25,000 or more, showing with respect to
each, the name, address and dollar volume involved (the
"Suppliers").
5.12. Sales of Finished Goods Inventory. BSC's sales of Cardiac Assist
---------------------------------
Division finished goods to independent distributors during the
period commencing
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September 1, 1997 through the Closing Date (but not including the
Closing Date) did not exceed the average sales volume to such
distributors during the comparable period ending August 31, 1997
5.13. Brokers. The Sellers have not retained, used, or been represented
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by any broker or finder in connection with the transactions
contemplated by this Agreement.
5.14. No Other Warranties. Except as otherwise expressly set forth in
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this Agreement or in the certificates or other written statements
furnished by or on behalf of the Sellers to the Buyer pursuant to
this Agreement, (a) THE SELLERS HEREBY EXPRESSLY DISCLAIM ALL
REPRESENTATIONS AND WARRANTIES EXPRESS OR IMPLIED WITH RESPECT TO
ANY AND ALL OF THE ACQUIRED ASSETS OR THE ASSUMED OBLIGATIONS,
INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS OF ANY ACQUIRED
ASSET FOR A PARTICULAR PURPOSE, AND (b) THE ACQUIRED ASSETS ARE
BEING SOLD "AS IS" AND "WHERE IS".
6. REPRESENTATIONS AND WARRANTIES OF THE BUYER.
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The Buyer represents and warrants to each of the Sellers as follows:
6.1. Organization and Standing of the Companies. The Buyer is a
------------------------------------------
corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware, and has all requisite power
and authority to own or lease and operate its properties and carry
on its business as now conducted. The Buyer has delivered to the
Sellers true, complete and correct copies of its Certificate of
Incorporation and By-Laws. The Buyer has all requisite power and
authority to execute and deliver this Agreement and to carry out all
actions required of it pursuant to the terms of this Agreement.
6.2. Approval of the Buyer, Binding Effect. The Buyer has obtained all
-------------------------------------
necessary authorizations and approvals from its Board of Directors
and stockholders required for the execution and delivery of this
Agreement and the consummation of the transactions contemplated
hereby. This Agreement has been duly executed and delivered by the
Buyer and constitutes the legal, valid and binding obligation of the
Buyer, enforceable against the Buyer in accordance with its terms,
subject only to the effects of bankruptcy, insolvency, moratorium,
reorganization or other laws of general applicability relating to or
affecting the enforcement of creditors' rights and general
principles of equity.
6.3. Non-Contravention. Subject to such exceptions, the effect of which
-----------------
in the aggregate would not have a material adverse effect on the
ability of the Buyer to purchase the Acquired Assets or consummate
the transactions contemplated hereby, neither the execution and
delivery of this Agreement by the Buyer nor the consummation by the
Buyer of the transactions contemplated hereby will constitute a
violation of, or be in conflict with, or constitute or create a
default under, or result in the creation or imposition of any liens
or other encumbrances upon any property of the Buyer pursuant to (a)
the Certificate of Incorporation or
8
By-Laws of the Buyer, each as amended to date, (b) any agreement or
commitment to which the Buyer or any of its material properties is
bound or to which the Buyer or any of its material properties is
subject, or (c) any statute or any judgment, decree, order,
regulation or rule of any court or governmental authority.
6.4. Litigation. Except as set forth on Schedule 6.5 hereto, no action,
----------
suit, proceeding or investigation is pending or, to the knowledge of
the Buyer, threatened (a) against the Buyer or its subsidiaries,
which could have a material adverse effect on the Buyer's ability to
purchase the Acquired Assets or consummate the transactions
contemplated by this Agreement, or (b) that questions the validity
of this Agreement or that challenges any of the transactions
contemplated hereby.
6.5. Brokers. Except as set forth in Schedule 6.6 hereto, Buyer has not
-------
retained, used, or been represented by any broker or finder in
connection with the by this Agreement.
6.6. No Other Warranties. Except as otherwise expressly set forth in
-------------------
this Agreement or other written statements furnished by or on behalf
of the Buyer to the Sellers pursuant to this Agreement, the Buyer
makes no representations or warranties to the Sellers.
7. CONDITIONS PRECEDENT TO THE BUYER'S OBLIGATIONS.
-----------------------------------------------
The obligation of the Buyer to consummate the Closing shall be
subject to the satisfaction, at or prior to the Closing, of each of the
following conditions (to the extent noncompliance is not waived in writing
by the Buyer):
7.1. Representations and Warranties True at Closing. The representations
----------------------------------------------
and warranties made by the Sellers in or pursuant to this Agreement
shall be true and correct at and as of the Closing.
7.2. Compliance With Agreement. Each of the Sellers shall have performed
-------------------------
and complied in all material respects with all of its obligations
under this Agreement to be performed or complied with by it on or
prior to the Closing.
7.3. License Agreement. BSC shall have duly executed and delivered to
-----------------
the Buyer the License Agreement.
7.4. Interim Supply Agreement. BSC shall have duly executed and
------------------------
delivered to the Buyer the Interim Supply Agreement.
7.5. No Restraining Order. No restraining order or injunction shall
--------------------
prevent the transactions contemplated by this Agreement.
7.6. Proceedings and Documents Satisfactory. All proceedings in
--------------------------------------
connection with the transactions contemplated by this Agreement and
all certificates and documents delivered to the Buyer or to be
executed in connection with the transactions
9
contemplated by this Agreement (including, without limitation, a
▇▇▇▇ of sale, an assignment of patents and an assignment of
trademarks) shall be reasonably satisfactory in all respects to the
Buyer and the Buyer's counsel; all Schedules and Exhibits required
by this Agreement (whether prepared by Buyer or the Seller) shall
have been prepared and/or completed to the entire satisfaction of
the Buyer and the Buyer's counsel; and the Buyer shall have received
the originals or certified or other copies of all such records and
documents as the Buyer may reasonably request.
7.7. Insurance Certification. BSC shall have delivered to the Buyer
-----------------------
certificates of insurance from reputable nationally recognized
insurance carriers evidencing coverage for personal injury, property
damage and products liability with limits of at least $2,000,000 per
occurrence and $5,000,000 in the aggregate (with self-insured
retention not to exceed $500,000 per occurrence and $1,000,000 in
the aggregate) naming the Buyer as an additional insured and
providing for notice to the Buyer of at least thirty (30) days prior
to cancellation or modification.
8. CONDITIONS PRECEDENT TO SELLERS'OBLIGATIONS.
-------------------------------------------
The obligation of the Sellers to consummate the Closing shall be
subject to the satisfaction, at or prior to the Closing, of each of the
following conditions (to the extent noncompliance is not waived in writing
by each of the Sellers):
8.1. Representations and Warranties True at Closing. The representations
----------------------------------------------
and warranties made by the Buyer in or pursuant to this Agreement
shall be true and correct in all material respects at and as of the
Closing.
8.2. Compliance with Agreement. The Buyer shall have performed and
-------------------------
complied in all material respects with all of its obligations under
this Agreement to be performed or complied with by it on or prior to
the Closing.
8.3. Assumption of Liabilities. The Buyer shall have duly executed and
-------------------------
delivered to the Sellers the Assumption of Liabilities Agreement.
8.4. License Agreement. The Buyer shall have duly executed and delivered
-----------------
to BSC the License Agreement.
8.5. Interim Supply Agreement. The Buyer shall have duly executed and
------------------------
delivered to BSC the Interim Supply Agreement.
8.6. No Restraining Order. No restraining order or injunction shall
--------------------
prevent the transactions contemplated by this Agreement.
8.7. Proceedings and Documents Satisfactory. All proceedings in
--------------------------------------
connection with the transactions contemplated by this Agreement and
all certificates and documents delivered to the Sellers or to be
executed in connection with the transactions contemplated by this
Agreement (including without limitation, a ▇▇▇▇ of sale, an
assignment of patents and an assignment of trademarks) shall be
reasonably
10
satisfactory in all respects to the Sellers and the Sellers'
counsel; all Schedules and Exhibits required by this Agreement
(whether prepared by the Buyer or the Sellers) shall have been
prepared and/or completed to the entire satisfaction of each Seller
and the Sellers' counsel; and the Sellers shall have received the
originals or certified or other copies of all such records and
documents as the Sellers may reasonably request.
8.8. Approval of BSC and IABP Boards and IABP Stockholders. BSC and IABP
-----------------------------------------------------
shall have received from their respective Boards of Directors, and
IABP shall have also received from its Stockholders, written
consents to the consummation of the transaction.
8.9. Insurance Certification. The Buyer shall have delivered to the
-----------------------
Sellers certificates of insurance from reputable nationally
recognized insurance carriers evidencing coverage for personal
injury, property damage and products liability with limits of at
least $2,000,000 per occurrence and $5,000,000 in the aggregate
(with self insured retention not to exceed $500,000 per occurrence
and $1,000,000 in the aggregate) naming the Sellers as additional
insureds and providing for notice to the Sellers of at least thirty
(30) days prior to cancellation or modification.
9. POST-CLOSING COVENANTS.
----------------------
9.1. Confidential Information. Any and all information disclosed by the
------------------------
Buyer to either Seller or by either Seller to the Buyer as a result
of the negotiations leading to the execution of this Agreement, or
in furtherance thereof ("Confidential Information"), shall remain
confidential to the Sellers and the Buyer and their respective
employees and agents for five (5) years after the Closing Date;
provided, that the foregoing confidentiality obligation shall not
apply as to any information that (a) can be shown by documentary
evidence to have been known to the recipient prior to its disclosure
by the disclosing party, (b) becomes part of the public domain
through no action (or failure to act) of the party subject to such
obligation, (c) can be shown by documentary evidence to have been
disclosed to the recipient by a third party who did not derive such
information, directly or indirectly, from the disclosing party, or
(d) was independently developed by the recipient without access to
such information. Confidential Information disclosed to a party
shall be used by such party only in connection with the transactions
contemplated hereby or by the License or Interim Supply Agreements.
Confidential Information intended to be protected hereby shall
include, but not be limited to, financial information, customer
lists, lists of sales representatives, intellectual property, know-
how, trade secrets and anything else having an economic or pecuniary
benefit to the Buyer or the Sellers, respectively.
9.2. Risk of Loss. The entire risk of loss or damage to all of the
------------
Acquired Assets shall belong to the Buyer from and after Sellers'
receipt of the Purchase Price from the Buyer, including, without
limitation, during any period of time in which such Acquired Assets
remain on BSC's premises pursuant to the Interim Supply Agreement.
BSC shall have no obligation to insure any of the Acquired Assets
from and after such time. The Buyer agrees to indemnify and hold
harmless BSC
11
from and against any liability, cost or damage suffered or incurred
by BSC as a result of the physical removal of the Acquired Assets,
except to the extent such liability, cost or damage is caused by the
negligence or willful misconduct of BSC or its agents, employees or
representatives.
9.3. Relabelling of Cardiac Assist Products Manufactured Pre-Closing.
---------------------------------------------------------------
Buyer agrees that it will not manufacture products labeled with the
names "Mansfield" or "Boston Scientific". Buyer further agrees that
it shall relabel all unsold Cardiac Assist Division Inventories and
Inventories supplied to Buyer pursuant to the Interim Supply
Agreement (which are labeled with the names "Mansfield" or "Boston
Scientific") on or before the expiration of thirty (30) days
following the Closing Date, or, in the case of Inventories supplied
to Buyer pursuant to the Interim Supply Agreement, on or before
selling such Inventories to customers or other third parties. Buyer
agrees that it shall be responsible for assuring that such new
labels comply with applicable FDA and other requirements.
9.4. Maintenance of Product Complaint Files. From and after the Closing
--------------------------------------
Date, the Buyer agrees to inform BSC promptly in writing of all
product complaints relating to Cardiac Assist Division products
manufactured by BSC prior to the Closing or after the Closing
pursuant to the Interim Supply Agreement.
9.5. Maintenance of Insurance. BSC and the Buyer shall each maintain the
------------------------
insurance coverage described in Sections 7.8 and 8.10 hereof,
respectively, (or similar coverage reasonably satisfactory to the
other) in full force and effect for five (5) years following the
Closing Date.
9.6. Removal of Assets. Subject to the terms of the Interim Supply
-----------------
Agreement, BSC shall allow Buyer access, during normal business
hours and upon reasonable notice, to its facilities at ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ in Mansfield, Massachusetts in order to remove the
Acquired Assets; provided that all such assets must be removed from
BSC's premises on or prior to May 1, 1998. BSC acknowledges that
nothing in the lease agreement covering ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ in
Mansfield, Massachusetts bars or otherwise prohibits the removal of
the Acquired Assets.
9.7. No Solicitation. Except with respect to those BSC employees
---------------
dedicated exclusively to the Cardiac Assist Division, the Buyer
shall not, without the prior written consent of BSC, solicit or hire
any BSC employees to work for the Buyer, or its affiliates, for one
(1) year after the Closing Date, except that the Buyer may hire a
BSC employee who responds to a bona fide general solicitation for
employment not directed toward one or more BSC employees.
9.8. Employment Matters. The Buyer has agreed to employ those employees
------------------
of BSC's Cardiac Assist Division listed on Schedule 9.8 hereof,
effective as of such time as the parties may mutually agree, subject
to such employees agreeing to such employment. BSC shall be
responsible for all compensation and other benefits (including,
without limitation, any unpaid pension liabilities) earned by such
employees prior to such date and the Buyer shall be responsible for
such compensation and other benefits earned on and following such
date. BSC shall be
solely responsible for all compensation and other benefits
(including, without limitation, any unpaid pension liabilities)
earned, or to be earned, by, and (except as provided in the Interim
Supply Agreements) all other liabilities relating to the employment
of, all other employees of BSC's Cardiac Assist Division prior, and
subsequent, to the Closing Date.
9.9. Non-Competition. Except as otherwise provided in the Interim Supply
---------------
Agreement, the Sellers agree, and shall cause their subsidiaries to
agree, not to manufacture or sell intraaortic balloon catheters and
pumps which are competitive with those manufactured or sold by BSC's
Cardiac Assist Division as of the Closing Date ("Competitive
Products") for a period of two (2) years following the Closing Date.
Notwithstanding the foregoing, BSC may acquire businesses which,
among other things, manufacture or sell Competitive Products
("Competitive Businesses") so long as less than forty percent (40%)
of any such Competitive Business' revenues (measured as of the most
recent fiscal year-end of the Competitive Business) are derived from
sales of Competitive Products.
9.10. Distribution Contracts. On or promptly after the Closing Date, BSC
----------------------
shall send letters seeking the termination of each of the
Distribution Contracts listed on Schedule 9.10. BSC shall send
letters terminating such contracts, or where applicable giving
notice of termination, as promptly as practicable and shall, upon
Buyer's request, provide copies of all such letters to Buyer.
10. INDEMNIFICATION.
---------------
10.1. Indemnity by the Sellers. Each of the Sellers agrees, jointly and
------------------------
severally, to indemnify and hold the Buyer and its officers, directors,
shareholders, employees, affiliates, agents, successors and assigns, harmless
from and with respect to any and all claims, liabilities, losses, damages, costs
and expenses, including without limitation reasonable attorneys' fees and court
costs, related to or arising directly or indirectly out of (a) any material
inaccuracies or omissions in any representation or warranty made by any Seller
in or pursuant to this Agreement or the agreements related hereto, (b) any
material failure or breach by any Seller of any covenant, agreement, obligation,
or undertaking made by such Seller in this Agreement or the agreements related
hereto, or (c) in the case of BSC, any product liability claims made with
respect to (i) products manufactured and sold by or for BSC prior to the Closing
Date and (ii) finished products ready for sale and manufactured by BSC (prior to
the Closing Date or pursuant to the terms of the Interim Supply Agreement) which
are shipped to customers on or after the Closing Date; provided, however, that
BSC shall have no obligation hereunder to indemnify the Buyer for any product
liability claims with respect to finished products ready for sale and
manufactured by BSC (prior to the Closing Date or pursuant to the terms of the
Interim Supply Agreement) which are (A) shipped to customers by Buyer or its
agents or representatives on or after the Closing Date, to the extent that the
sterile packaging of any such products has been broken at any time prior to
delivery to such customers, (B) altered by Buyer or its agents or
representatives or damaged in any way, including without limitation, repackaged
(other than relabeled, except if such relabeling alters the product in any
manner), following the Closing Date, or (C) sold or promoted for use by Buyer or
its agents or representatives in violation of applicable labeling and use
instructions, including without limitation, applicable expiration dates. The
collective liability of the Sellers under this Section 10.1(a) and (b) shall not
exceed One Million Five Hundred
13
Thousand Dollars ($1,500,000) and with respect to Section 10.1 (c) shall be
unlimited. Except as otherwise provided in Section 12.1, the Sellers'
obligations under Section 10.1 (a) and (b) shall expire one (1) year following
the Closing Date and under Section 10.1 (c) shall expire four (4) years
following the Closing Date.
10.2. Indemnity by the Buyer. The Buyer agrees to indemnify and hold each
----------------------
of the Sellers and their officers, directors, shareholders,
employees, affiliates, agents, successors and assigns, harmless from
and with respect to any and all claims, liabilities, losses,
damages, costs and expenses, including without limitation reasonable
attorneys' fees and court costs, related to or arising directly or
indirectly out of (a) any material inaccuracies or omissions in any
representation or warranty made by the Buyer in or pursuant to this
Agreement or the agreements related hereto, (b) any material failure
or breach by the Buyer of any covenant, agreement, obligation, or
undertaking made by the Buyer in this Agreement or the agreements
related hereto, or (c) any product liability claims made with
respect to (i) products and components manufactured by the Buyer on
or after the Closing Date, (ii) finished products ready for sale and
manufactured by BSC (prior to the Closing Date or pursuant to the
terms of the Interim Supply Agreement) which are shipped to
customers on or after the Closing Date, to the extent that the
sterile packaging of any such products has been broken at any time
prior to delivery to such customers, (iii) finished products ready
for sale and manufactured by BSC (prior to the Closing Date or
pursuant to the terms of the Interim Supply Agreement) which are
altered by Buyer or its agents or representatives or damaged in any
way, including without limitation repackaged (other than relabeled,
except if such relabeling alters the product in any manner),
following the Closing Date, or (iv) products sold or promoted for
use by Buyer or its agents or representatives in violation of
applicable labeling and use instructions, including without
limitation, applicable expiration dates. The collective liability of
the Buyer under this Section 10.2 (a) and (b) shall not exceed One
Million Five Hundred Thousand Dollars ($1,500,000) and with respect
to Section 10.2(c) shall be unlimited. Except as otherwise provided
in Section 12.1, the Buyer's obligations under Section 10.2 (a) and
(b) shall expire one (1) year following the Closing Date and under
Section 10.2 (c) shall expire four (4) years following the Closing
Date.
10.3. Claims. In the event that the Buyer or any Seller, as the case may
------
be (an "Indemnified Party") desires to make a claim against a Seller
or the Buyer, respectively (an "Indemnifying Party"), under this
Section 10 in connection with any action, suit, proceeding or demand
at any time instituted against or made upon an Indemnified Party for
which such Indemnified Party may seek indemnification hereunder (a
"Claim"), such Indemnified Party shall notify promptly the proper
Indemnifying Parties of such Claim and of such Indemnified Party's
claim of indemnification with respect thereto. Upon receipt of such
notice from such Indemnified Party, the appropriate Indemnifying
Party shall be entitled to defend against such Claim; provided that
such Indemnifying Party shall not have the authority to negotiate,
compromise and settle such Claim without the prior written consent
of the Indemnified Party, which consent shall not be unreasonably
withheld. The Indemnified Party shall retain the right to employ its
own counsel
14
and to participate in the defense of any Claim, the defense of which
has been assumed by one or more Indemnifying Parties pursuant
hereto, but such Indemnified Party shall bear and shall be solely
responsible for its own costs and expenses in connection with such
participation.
11. USE OF NAME.
-----------
Except as provided in this Section 11, neither the Buyer nor any of its
nominees shall be permitted to use the business and corporate names of
either Seller or variations thereof as corporate and business names, trade
names or titles at any time. From and after the Closing Date, the Buyer
and/or its nominee(s) may use the trade names of BSC, other than
"Mansfield" and "Boston Scientific", only to the extent that such names
relate solely to the Cardiac Assist Division of BSC, and BSC agrees that
from and after the Closing Date BSC will discontinue its use of all such
names, except as contemplated under the Interim Supply Agreement.
12. GENERAL.
--------
12.1. Survival. Unless otherwise expressly provided herein, the
--------
representations, warranties, covenants and agreements of the parties
hereto contained in this Agreement or otherwise made in writing in
connection with the transactions contemplated hereby shall survive
the Closing Date and the consummation of such transactions for a
period of one (1) year; provided, that if, prior to the expiration
of such one (1) year period, the Buyer or any Seller shall have
given notice of an indemnifiable claim relating to such
representations, warranties, covenants or agreements to any Seller
or the Buyer, respectively, then the rights of the Buyer or that
Seller to indemnification with respect to that liability shall
continue until the liability has been finally determined and
disposed of, and provided, further, that the foregoing one (1) year
limitation shall not apply in instances of fraud. Notwithstanding
the foregoing, the consummation of the Closing shall not terminate
the rights and obligations of the parties hereunder which by their
express terms are intended to survive for a longer period of time.
12.2. Expenses. All expenses of the preparation, execution and
--------
consummation of this Agreement and of the transactions contemplated
hereby, including, without limitation, attorneys', accountants' and
outside advisers' fees and disbursements, shall be borne by the
party incurring such expenses.
12.3. Further Assurances. From time to time, at the request of the Buyer
------------------
and without further consideration, the Sellers shall execute and
deliver such further instruments of conveyance and transfer and take
such other actions as the Buyer may reasonably require to more
effectively convey and transfer any of the Acquired Assets to the
Buyer. The Sellers and the Buyer shall also execute and deliver to
the appropriate other party such other instruments as may be
reasonably required in connection with the performance of this
Agreement and each shall take all such further actions as may be
reasonably required to carry out the transactions contemplated by
this Agreement.
15
12.4. Satisfaction of Conditions Precedent. The Sellers and the Buyer
------------------------------------
will each use their reasonable best efforts to cause the
satisfaction of the conditions precedent contained in this
Agreement; provided, however, that nothing contained in this Section
12.4 shall obligate any party hereto to waive any right or condition
under this Agreement.
12.5. No Implied Rights or Remedies. Except as otherwise expressly
-----------------------------
provided herein, nothing herein expressed or implied is intended or
shall be construed to confer upon or to give any person, firm or
corporation, other than the Sellers and the Buyer, any rights or
remedies under or by reason of this Agreement.
12.6. Public Statements or Releases. The parties hereto each agree that
-----------------------------
no party to this Agreement will make, issue or release any public
announcement, statement or acknowledgment of the existence of, or
reveal the status of, this Agreement or the transactions provided
for herein, without first obtaining the written consent of the other
parties hereto. Nothing contained in this Section 12.6 shall prevent
any party from making such public announcements as such party may
reasonably consider necessary, in order to satisfy such party's
legal obligations; provided that reasonable notice is given to the
other parties prior to the making of any such public announcement.
12.7. Notices. All notices, demands and other communications hereunder
-------
shall be in writing and shall be deemed to have been duly given if
delivered personally or if mailed by certified mail, return receipt
requested, postage prepaid, or sent by overnight courier (e.g.,
Federal Express), or facsimile (upon transmission and receipt of a
standard electronic facsimile confirmation) to the following
addresses, or to such other addresses as either party may specify by
notice to the other party pursuant hereto:
16
If to the Sellers, to:
Boston Scientific Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: President, with a copy to General Counsel
Fax#: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Buyer, to:
Arrow Interventional, Inc
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
Vice President, Finance
Fax #: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax #: (▇▇▇) ▇▇▇-▇▇▇▇
12.8. Entire Agreement. This Agreement, together with all other
----------------
agreements referred to herein, contains the entire understanding of
the parties, supersedes all prior agreements and understandings
relating to the subject matter hereof and shall not be amended
except by a written instrument signed by all of the parties hereto.
12.9. Assigns. This Agreement shall be binding upon and inure to the
-------
benefit of the parties hereto and their respective heirs, successors
and permitted assigns. Neither this Agreement nor the obligations of
any party hereunder shall be assignable or transferable by such
party without the prior written consent of the other parties hereto.
12.10. Sections and Section Headings. All enumerated subdivisions of this
-----------------------------
Agreement are herein referred to as "Sections" or "Subsections." The
headings of Sections and Subsections are for reference only and
shall not limit or control the meaning thereof.
12.11. Counterparts. This Agreement may be executed in multiple
------------
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
17
12.12. Governing Law. The validity and construction of this Agreement
-------------
shall be governed by the internal laws (and not the choice-of-law
rules) of The Commonwealth of Massachusetts.
IN WITNESS WHEREOF, and intending to be legally bound hereby, the parties
hereto have caused this Agreement to be duly executed and delivered by their
respective duly authorized officers as of the date and year first above written.
BSC:
----
BOSTON SCIENTIFIC CORPORATION
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Name:
Title:
IABP:
-----
IABP CORPORATION
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Name:
Title:
Buyer:
------
ARROW INTERVENTIONAL, INC.
By: /s/▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
--------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
Title: VP - Finance
18
SCHEDULE 1.1(A)
EQUIPMENT TRANSFERRED TO BUYER
CARDIAC ASSIST FIXED ASSETS
---------------------------
ASSET # DESCRIPTION
------- -----------
20045 Balloon Dipping Machine modifactions
20056 (1) Refrigerator, (1) Storage cabinet, (4) Mandrel racks, (4) Crock
pots, (6) Freon vessels
20059 Blood cuff mold. At vendor.
20062 Packaging molds at Universal Plastics. Packaging vendor.
20063 New production tools
20066 IABP fixtures at ▇▇▇▇▇▇▇▇▇ Plastics.
20244 Tooling - Packaging for 3800 series at Crystal Thermoplastics.
20286 IABP Misc. parts
20326 Dipping Machine and 10 Cavity Molds @ Transform Plastics
20375 Ice Cube Chiller
20411 Gelatin Mold Frame
20565 Gelatin Cooker
20566 RO Marker Tooling
20568 Reverse Osmosis ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ Mold Modification
21156 IABC Dipping Machine Software
21159 IABC Kontron Adaptor Mold
21174 IABC Mold Frame
21361 Moldmasters
21369 Portable Air Conditioner
21370 Auto Elec Steam Boiler
21371 UV Curing System
21372 Adhesive Dispenser
21432 IABC Introducer Tray Tooling (in service at vendor Crystal Therm.)
21433 IABC Introducer Tray Cover Tooling (in service at vendor Crystal
Therm.)
21546 Digital Dispenser
21547 Digital Dispenser
21548 UV Curing System
21549 UV Curing System
21550 Radio/Photo Meter
21551 Radio/Photo Meter
21552 UV Attach Station
21553 Temperature Controller
--- Bar Sealer
--- Label Making System
--- CPU
--- Printer
--- Monitor
--- Nitrogen Flushing System
--- Laminar Flow Hood
Miscellaneous tools, spare parts, materials
R&D FIXED ASSETS
----------------
ASSET # DESCRIPTION
------- -----------
20285 R&D Workstations. (1) Plug in Adapter, (4) 60x30 Electric
workstations, (8) 41 x20x5 Tier drawers, (8) cylinder locks.
20251 Recording System-▇▇▇▇▇▇
20563 Vectra 486/33N w/SVGA Monitor
20564 Laserjet 4 Printer
20567 Ductless Filtering Hood
▇▇▇▇▇ ▇-▇▇▇ ▇▇▇▇ memory card, Zenith Z-416-C Coprocessor, 13" Color monitor.
Viscometer- ▇/▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇#▇▇▇▇▇▇, Spindle Set, Viscocel
Spindle, 3" extension. Digital Storage Oscilloscope SN#87743, model
125MHZ, Waveform proc Firmwr, 8 pen digital plotter.
Zenith 248 Computer System SN#73944, Toshiba 3.5" 1.44 Floppy Disk,
Zenith
20819 Vectra 486/33N w/SVGA Monitor (Marketing)
20820 Misc. Software
21057 Laserjet 4 Printer (Marketing)
21059 Vectra 486/33N w/SVGA Monitor
21060 Super VGA 17" Monitor
21061 Vectra 486/33M
21062 Misc. Software
21063 AutoCad R12 for Windows
21066 Abrasion Tester
21067 Wheel Refacer
21068 Balance Scale
SCHEDULE 1.1(B)
IABP INTANGIBLES TRANSFERRED TO BUYER
PATENTS
-------
------------------------------------------------------------------------------------------
TITLE OF INVENTION COUNTRY PATENT ISSUE DATE STATUS EXPIRES
------------------ ------- ------ ---------- ------ -------
------------------------------------------------------------------------------------------
Instrument for Direct US 3,455,298 15-Jul-69 Expired
Mechanical Cardiac Massage
Mechanical Ventricular US 3,587,567 28-Jun-71 Expired
Assistance Assembly
Portable Mechanical Ventricular US 3,590,815 06-Jul-71 Expired
Assist Device
Mechanical Ventricular US 3,613,672 19-Oct-71 Expired
Assistance Cup
Pulsatile By-Pass Blood Pump US 3,656,873 18-Apr-72 Expired
Portable Mechanical Ventricular US 3,674,381 04-Jul-72 Expired
Assistance Device
Electronic Synchronizer-Monitor US 4,016,871 12-Apr-77 Expired
System For Controlling the Timing
of Mechanical Assistance and
Pacing of the Heart
Adapter for Intra-Aortic Balloons US 4,122,858 31-Oct-78 Expired
and the like
Electronic Synchronizer-Monitor US 4,175,264 20-Nov-79 Expired
System for Controlling the Timing
of Mechanical Assistance and
Pacing of the Heart
Cannula for Intra-Aortic Balloon US 4,287,892 08-Sep-81 Issued 3/3/2000
Devices and the like
Switching Apparatus for Closed US 4,308,559 29-Dec-81 Issued 5/14/99
Circuit Television Monitoring
Systems
Apparatus for Left Heart Assist US 4,407,271 04-Oct-83 Issued 10/4/2000
------------------------------------------------------------------------------------------
1
------------------------------------------------------------------------------------------
TITLE OF INVENTION COUNTRY PATENT ISSUE DATE STATUS EXPIRES
------------------ ------- ------ ---------- ------ -------
------------------------------------------------------------------------------------------
Percutaneous Balloon US 4,422,447 27-Dec-83 Issued 4/13/2001
Percutaneous Balloon US 4,467,790 28-Aug-84 Issued 8/28/2001
Introducer Assembly for Intra- US 4,473,067 25-Sep-84 Abandoned
Aortic Balloons and the Like
IAB Having Apparatus for US 4,515,587 07-May-85 Issued 2/14/2003
Assuring Proper Balloon Inflation
and Deflation
Apparatus for Left Heart Assist US 4,522,195 11-Jun-85 Issued 6/11/2002
Percutaneous Intra-Aortic Balloon US 4,522,127 12-Nov-85 Issued 4/l/2003
Having an EKG Electrode and a
Twisting Stylet for Coupling the
EKG Electrode to Monitoring
and/or Pacing Instrumentation
External to the Body
Method and Apparatus for US 4,569,332 11-Feb-86 Issued 4/13/2003
Treating a Heart Patient Through
the Coordinating Efforts of
Balloon Pumping and Dispensing
Catheters
Percutaneous Intra-Aortic Balloon US 4,576,142 18-Mar-86 Issued 3/18/2003
and Method for Using Same
Percutaneous Intra-Aortic Balloon US 4,644,936 24-Feb-87 Issued 2/24/2004
and Method for Using Same
Percutaneous Intra-Aortic Balloon US 4,697,573 06-Oct-87 Issued 3/18/2003
and Method for Using Same
Prepackaged Intra-Aortic Balloon US 4,901,707 20-Feb-90 Issued 2/20/2007
Assembly with Holder, and
Method of Using Same
Percutaneous Intra-Aortic Balloon CA 1291685 05-Nov-91 Issued 11/05/2008
and Method for Using Same
------------------------------------------------------------------------------------------
2
TRADEMARKS
Trademark Goods
--------- -----
SIDEWINDER/TM/ Intraaortic Balloon Catheter
TELEWIRE/TM/ Intraaortic Balloon Pump Accessory. Reg. No. 1,242,683,
June 21, 1983.
SCHEDULE 1.1(C)
INVENTORIES TRANSFERRED TO BUYER
As of September 1, 1997
-----------------------
European Finished Goods $ 45,652
Domestic Finished Goods $196,068
Raw Material $698,691
Work in Process $110,773
--------
TOTAL INVENTORY $1,051,184*
*Inventory amounts actually transferred to the Buyer may differ from the above
amounts due to normal additions and deletions made in the ordinary course of
business.
SCHEDULE 1.1(D)
PREPAID AMOUNTS TRANSFERRED TO BUYER
TRADE SHOWS VENDOR AMOUNT DATE TO AMORTIZE
----------- ------ ------ ----------------
AHA American Heart Association $8,900.00 Nov-97
SCHEDULE 1.1 (F)
PERMITS TRANSFERRED TO BUYER
Technology Transfer Agreement dated as of July 31, 1985 by and among ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇. ▇▇▇▇ ▇▇▇▇▇▇, IABP Corporation and Boston Scientific Corporation.
Listing of 510(k)'s attached hereto.
All of BSC's and its subsidiaries' and affiliates' transferable rights under
those import licenses and product registrations relating exclusively to the
Cardiac Assist Division.
BOSTON SCIENTIFIC/ CARDIAC ASSIST
510 (k) CURRENT LISTING
As of October 21, 1997
------------------------------------------------------------------------------------------
K SUBMISSION CLEARANCE
NUMBER DIVISION PRODUCT NAME DATE DATE
------------------------------------------------------------------------------------------
K971673 CA 40 cc SUMO (marketed as 5/7/97 8/5/97
40 cc Grande (NT/TM/)
------------------------------------------------------------------------------------------
K972113 CA 30 cc and 40 cc SUB-9 NT 6/5/97 9/2/97
30 cc and 40 cc SUB-9 SL
------------------------------------------------------------------------------------------
K963197 CA Modified labeling of Cardiac Assist 8/13/96 11/4/96
Intra-Aortic Balloon Catheters, Volume
I & Volume 2
AMENDMENT 1 Additional Information Requested 10/18/96
------------------------------------------------------------------------------------------
K954431 CA Modified 940 & 930 Intra-Aortic 9/19/95 1/11/96
Balloon Catheters, Volume I & 2
------------------------------------------------------------------------------------------
K952221 30cc Sensation/TM/, 40cc Sensation/TM/, 5/1/95 8/11/95
Model 930 & 940 on Bard H-8000
Final Labeling 9/26/95 9/26/95
------------------------------------------------------------------------------------------
K943919 CA 40cc Sensation Intra-Aortic Balloon 8/l/94 3/23/95
Catheter
AMENDMENT 12/23/94
ADDENDUM 4/12/95
------------------------------------------------------------------------------------------
K940298 CA Model 940 Intra-Aortic, Balloon Catheter 1/14/94 4/6/95
K940298/Al 6/28/94
K940298/A2 12/30/94
A2-
ADDENDUM 1 2/1/95
A2-
ADDENDUM 2 3/30/95
------------------------------------------------------------------------------------------
K936232 CA Model 930 & 30 cc Sidewire DL Intra- 12/29/93 10/14/94
K936232/Al Aortic Balloon Catheters 1/24/94
6/20/94
ADDENDUM 4/12/95
------------------------------------------------------------------------------------------
K926000 CA Modifieid Percutaneous Double-Lumen 11/27/92 8/30/93
Intra-aortic Balloon Catheter
K926000/Al 6/16/93
------------------------------------------------------------------------------------------
K914285 CA Series 3001 Intra-Aortic Balloon Pump 9/24/91 withdrawn
Addition of Patient Pressure Values,
Balloon Tirning Indicator, Messages &
Alarms
K914285/Al 3/10/94
K914285/A2 4/12/95
------------------------------------------------------------------------------------------
K904556 CA Mansfield Cardiac Assist Model 940 10/5/90 12/18/91
K904556/Al Percutaneous Double-Lumen Intra- 1/25/91
K904556/A2 Aortic Balloon catheter 9/27/91
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
K SUBMISSION CLEARANCE
NUMBER DIVISION PRODUCT NAME DATE DATE
------------------------------------------------------------------------------------------
K900291 CA Model 3001 Intra-Aortic Balloon Pump 1/22/90 4/19/90
with Conventional Timing Mode
------------------------------------------------------------------------------------------
K896920 CA Intra-aortic Balloon Catheter, 9.5.F 40cc 12/12/89 3/6/90
Double Lumen Sidewinder
------------------------------------------------------------------------------------------
K896597 CA Intra-aortic Balloon Catheter 40cc 11/21/89 2/12/90
Double Lumen Arics-Sidewinder
------------------------------------------------------------------------------------------
K894942 CA Sidewinder 40cc double Lumen Intra- 8/3/89 9/26/89
Aortic Balloon
------------------------------------------------------------------------------------------
K871893 Sidewinder Percutaneous IABC 5/8/87 withdrawn
------------------------------------------------------------------------------------------
K862245 Sidewinder Percutaneous IABC 6/9/86
------------------------------------------------------------------------------------------
K853306 SMEC Modification of Percutaneous Intra- 6/17/95 withdrawn
Artic Balloon Catheter
------------------------------------------------------------------------------------------
K852769 SMEC Intra-Aortic Ball on Datascope 6/27/85 withdrawn
------------------------------------------------------------------------------------------
K843526 SMEC SMEC Balloon Sys.Pacemaker - A&V 9/7/84
------------------------------------------------------------------------------------------
K840367 SMEC Pressure Trigger Modification SMEC 1/22/84 12/11/85
Intra-aortic Balloon Catheter System
------------------------------------------------------------------------------------------
K840037 SMEC Modified SMEC Percutaneous 1/5/84 2/l/85
Introducer
------------------------------------------------------------------------------------------
K832753 SMEC Improved Percutaneous Intra-Aortic 8/17/84 10/15/84
Balloon
------------------------------------------------------------------------------------------
K831035 SMEC SMEC Balloon Pacemaker 3/28/83
------------------------------------------------------------------------------------------
K823739 Intra-Aortic Balloon System 11/3/82 2/18/83
------------------------------------------------------------------------------------------
K823177 SMEC Balloon System 10/20/82 12/15/82
------------------------------------------------------------------------------------------
K822488 SMEC Modification of SMEC Balloon System
------------------------------------------------------------------------------------------
K813355 SMEC Modification of the SMEC Percutaneous 11/3/81 7/21/82
Balloon
------------------------------------------------------------------------------------------
K803112 SMEC SMEC Percutaneous Balloon
------------------------------------------------------------------------------------------
K790755 SMEC SMEC Balloon Cannula 4/17/79 5/14/80
------------------------------------------------------------------------------------------
SCHEDULE 1.1 (G)
BSC INTANGIBLES TRANSFERRED TO BUYER
Trademarks
----------
Trademark Goods
--------- -----
SENSATION/TM/ intraaortic balloon catheter and accessories
SENSATION 30/TM/ intraaortic balloon catheter
94O/TM/ intraaortic balloon catheter
93O/TM/ intraaortic balloon catheter
SERIES 3001/TM/ intraaortic balloon pumps
The following names were also filed in the U.S. as intent-to-use
applications:
▇▇▇▇ Goods Serial No. Filing Date
---- ----- ---------- -----------
NICATH/TM/ intraaortic balloon catheter 75/013,763 11-1-95
SUB 9/TM/ intraaortic balloon catheter 75/013,674 11-1-95
SUMO/TM/ intraaortic balloon catheter 75/013,686 11-1-95
Tradenames
----------
Cardiac Assist
Cardiac Assist Heart Logo
-------------------------
SCHEDULE 1.1 (H)
LICENSED TECHNOLOGY
TITLE APPLICATION/PUBLICATION NUMBER
----- ------------------------------
Intra-Aortic Balloon Catheter US SN 08/816,200 which is a FWC of
US SN 08/556,533 filed Nov. 13, 1995
Intra-Aortic Balloon Catheter US SN 08/819,879 which is a Cont. of
US SN 08/556,533 filed Nov. 13, 1995
Intra-Aortic Balloon Catheter PCT WO 97/18005 which claims priority to
US SN 08/556,533 filed Nov. 13, 1995
SCHEDULE 5.4
REPRESENTATIONS AND WARRANTIES OF SELLERS - GOVERNMENTAL CONSENTS;
TRANSFERABILITY OF PERMITS
Permits Not Transferrable by Sellers
------------------------------------
1. Seller's FDA Establishment Registration is not transferrable to Buyer.
A separate FDA Establishment Registration will need to be filed by
Buyer.
2. Seller's FDA Owner/Operation number is not transferrable to Buyer.
Buyer will need to obtain its own FDA Owner/Operator number in the
event it does not already have one.
3. Buyer will need to initiate a Device Listing with the FDA. Seller's
Device Listing is not transferrable to Buyer.
4. Buyer may need to obtain a BACT permit from the Massachusetts
Department of Environmental Protection, depending upon the levels of
its hazardous materials usage. Seller's BACT permit with the
Massachusetts Department of Environmental Protection is not
transferrable to Buyer.
5. Buyer will need to obtain an LIC number from the Health Industry Bar
Code Commission.
SCHEDULE 5.5
REPRESENTATIONS AND WARRANTIES OF SELLERS - LITIGATION
None.
SCHEDULE 5.6
REPRESENTATIONS AND WARRANTIES OF SELLERS - EQUIPMENT
Tubing Extruder
---------------
Compressed Air Gun
------------------
Information Services Systems and Equipment
------------------------------------------
SCHEDULE 5.7
REPRESENTATIONS AND WARRANTIES OF SELLERS - INVENTORIES
None.
SCHEDULE 5.8
REPRESENTATIONS AND WARRANTIES OF SELLERS - CONTRACTS
Technology Transfer Agreement dated as of July 31, 1985 by and between ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇. ▇▇▇▇ ▇▇▇▇▇▇, IABP Corporation and Boston Scientific Corporation.
International Distributorship Agreement between Boston Scientific International
B.V. and Heiwa ▇▇▇▇▇▇ Co., Ltd. dated as of July 1, 1997.
International Distributorship Agreement between Boston Scientific International
B.V. and ▇▇▇▇ Medical Distributors dated as of [July 1, 1996], and as amended by
that certain letter agreement between the parties dated June 24, 1997.
International Distributorship Agreement between Boston Scientific Far East B.V.
and ▇▇▇▇ ▇▇▇▇ Medical Ltd. dated as of [July 1, 1996], and as amended by that
certain letter agreement between the parties dated June 24, 1997.
International Distributorship Agreement between Boston Scientific Medizintechnik
GmbH and MEDOS Medizenische Produkte GmbH dated as of January 1, 1993.
International Distributorship Agreement between Boston Scientific International
B.V. and ▇▇▇▇▇▇▇ Medical Italia dated as of January 1, 1997.
International Distributorship Agreement between Boston Scientific International
B.V. and ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ Ltd. dated as of July 1, 1997, and as amended by
that certain letter agreement dated June 24, 1997.
International Distributorship Agreement between Boston Scientific International
B.V. and Bin Naeem Hospital Supplies Co. dated as of July 1, 1997, and as
amended by that certain letter agreement between the parties dated June 24,
1997.
International Distributorship Agreement between Boston Scientific International
B.V. and Hemoportugal LDA8 dated as of July 1, [ 1996], and as amended by that
certain letter agreement between the parties dated June 24, 1997.
International Distributorship Agreement between Boston Scientific International
B.V. and Elektra Biomedikal Engineering Ltd. dated as of July 1, 1997, and as
amended by that certain letter agreement between the parties dated June 24,
1997.
International Distributorship Agreement between Boston Scientific International
B.V. and Gulf Medical Co. Ltd. dated as of July 1, 1997, and as amended by that
certain letter agreement between the parties dated June 24, 1997.
International Distributorship Agreement between Boston Scientific International
B.V. and ADM for Medical Services dated as of [July 1, 1997], and as amended by
that certain letter agreement between the parties dated June 24, 1997.
SCHEDULE 5.9
REPRESENTATIONS AND WARRANTIES OF SELLERS - TRADEMARKS, PATENTS, ETC.
Sellers are not transferring to Buyer the names "Boston Scientific" and
"Mansfield" or the Mansfield heart logo.
SCHEDULE 5.10
ENCUMBRANCES
The patents and patent applications transferred to Buyer by IABP are subject to
the provisions of that certain Technology Transfer Agreement dated as of July
31, 1985 by and among ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇ ▇▇▇▇▇▇, IABP Corporation and Boston
Scientific Corporation. The Sellers have no obligation to make payments to any
one other than ▇▇▇▇▇ ▇▇▇▇▇▇ under the agreement, and no rights were exercised by
the Sellers under Section 3 of the agreement.
SCHEDULE 5.11
CUSTOMERS, DISTRIBUTORS AND SUPPLIERS
CUSTOMERS AND DISTRIBUTORS WHO ACCOUNTED FOR MORE THAN TEN PERCENT OF THE GROSS
SALES OF THE CARDIAC ASSIST DIVISION FOR THE YEAR ENDED DECEMBER 31, 1996.
Heiwa ▇▇▇▇▇▇
SUPPLIERS TO WHOM THE CARDIAC ASSIST DIVISION PAID IN EXCESS of $25,000 DURING
THE PERIOD FROM JANUARY 1, 1997 THROUGH OCTOBER 31, 1997.
Name Address Amount Paid Amount
---- ------- ----------- ------
Paid
----
Fiscal Year ▇▇▇▇ ▇▇▇
----------------------------------------------------------- -------------------
1997
▇. ▇▇▇▇▇ Medical, Inc. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ $ 2,350 $ 0
Poly Medica ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ 69,900 23,353
Argon Medical Corporation ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ 30,290 22,800
Jordi Associates ▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ 8,400 27,550
Mansfield Machinery Co. ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ 78,101 56,105
Lake Region Mfg. Co., Inc. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ 66,324 74,497
Merit Medical ▇▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇ 106,640 119,131
Thermotech, Inc. ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ 22,727 17,360
Crystal Thermoplastics ▇.▇. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ 18,325 16,230
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
* The Cardiac Assist Division also paid $93,828 to BSC's supplier of
Nitinol tubing during the year ended December 31, 1996, and $77,657 YTD 1997.
SCHEDULE 6.5
REPRESENTATIONS AND WARRANTIES OF THE BUYER - LITIGATION
None.
SCHEDULE 6.6
REPRESENTATIONS AND WARRANTIES OF THE BUYER - BROKERS
None.
SCHEDULE 9.8
EMPLOYEES TO BE HIRED BY BUYER
▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
SCHEDULE 9.10
DISTRIBUTION CONTRACTS TO BE TERMINATED BY BSC
International Distributorship Agreement between Boston Scientific International
B.V. and Heiwa ▇▇▇▇▇▇ Co., Ltd. dated as of July 1, 1997.
International Distributorship Agreement between Boston Scientific International
B.V. and ▇▇▇▇ Medical Distributors dated as of [July 1, 1996], and as amended by
that certain letter agreement between the parties dated June 24, 1997.
International Distributorship Agreement between Boston Scientific Far East B.V.
and ▇▇▇▇ ▇▇▇▇ Medical Ltd. dated as of July 1, 1996], and as amended by that
certain letter agreement between the parties dated June 24, 1997.
International Distributorship Agreement between Boston Scientific Medizintechnik
GmbH and MEDOS Medizenische Produkte GmbH dated as of January 1, 1993.
International Distributorship Agreement between Boston Scientific International
B.V. and ▇▇▇▇▇▇▇ Medical Italia dated as of January 1, 1997.
International Distributorship Agreement between Boston Scientific International
B.V. and ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ Ltd. dated as of July 1, 1997, and as amended by
that certain letter agreement dated June 24, 1997.
International Distributorship Agreement between Boston Scientific International
B.V. and Bin Naeem Hospital Supplies Co. dated as of July 1, 1997, and as
amended by that certain letter agreement between the parties dated June 24,
1997.
International Distributorship Agreement between Boston Scientific International
B.V. and Hemoportugal LDA8 dated as of July 1, [1996], and as amended by that
certain letter agreement between the parties dated June 24, 1997.
International Distributorship Agreement between Boston Scientific International
B.V. and Elektra Biomedikal Engineering Ltd. dated as of July 1, 1997, and as
amended by that certain letter agreement between the parties dated June 24,
1997.
International Distributorship Agreement between Boston Scientific International
B.V. and Gulf Medical Co. Ltd. dated as of July 1, 1997, and as amended by that
certain letter agreement between the parties dated June 24, 1997.
International Distributorship Agreement between Boston Scientific International
B.V. and ADM for Medical Services dated as of [July 1, 1997], and as amended by
that certain letter agreement between the parties dated June 24, 1997.
SCHEDULE 9.8
EMPLOYEES TO BE HIRED BY BUYER
▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
SCHEDULE 9.10
DISTRIBUTION CONTRACTS TO BE TERMINATED BY BSC
International Distributorship Agreement between Boston Scientific International
B.V. and Heiwa ▇▇▇▇▇▇ Co., Ltd. dated as of July 1, 1997.
International Distributorship Agreement between Boston Scientific International
B.V. and ▇▇▇▇ Medical Distributors dated as of [July 1, 1996], and as amended by
that certain letter agreement between the parties dated June 24, 1997.
International Distributorship Agreement between Boston Scientific Far East B.V.
and ▇▇▇▇ ▇▇▇▇ Medical Ltd. dated as of [July 1, 1996], and as amended by that
certain letter agreement between the parties dated June 24, 1997.
International Distributorship Agreement between Boston Scientific Medizintechnik
GmbH and MEDOS Medizenische Produkte GmbH dated as of January 1, 1993.
International Distributorship Agreement between Boston Scientific International
B.V. and ▇▇▇▇▇▇▇ Medical Italia dated as of January 1, 1997.
International Distributorship Agreement between Boston Scientific International
B.V. and ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ Ltd. dated as of July 1, 1997, and as amended by
that certain letter agreement dated June 24, 1997.
International Distributorship Agreement between Boston Scientific International
B.V. and Bin Naeem Hospital Supplies Co. dated as of July 1, 1997, and as
amended by that certain letter agreement between the parties dated June 24,
1997.
International Distributorship Agreement between Boston Scientific International
B.V. and Hemoportugal LDA8 dated as of July 1, [1996], and as amended by that
certain letter agreement between the parties dated June 24, 1997.
International Distributorship Agreement between Boston Scientific International
B.V. and Elektra Biomedikal Engineering Ltd. dated as of July 1, 1997, and as
amended by that certain letter agreement between the parties dated June 24,
1997.
International Distributorship Agreement between Boston Scientific International
B.V. and Gulf Medical Co. Ltd. dated as of July 1, 1997, and as amended by that
certain letter agreement between the parties dated June 24, 1997.
International Distributorship Agreement between Boston Scientific International
B.V. and ADM for Medical Services dated as of [July 1, 1997], and as amended by
that certain letter agreement between the parties dated June 24, 1997.
ASSUMPTION OF LIABILITIES AGREEMENT
-----------------------------------
KNOW ALL MEN BY THESE PRESENTS:
That pursuant to the terms of the Asset Purchase Agreement, dated as of
November 5, 1997 (the "Asset Purchase Agreement"), by and among Arrow
-
Interventional, Inc., a Massachusetts corporation (the "Buyer"), Boston
Scientific Corporation, a Delaware corporation ("BSC"), and IABP Corporation, a
Delaware corporation ("IABP") (BSC and IABP being hereinafter referred to
collectively as the "Sellers") and for good and valuable consideration as
recited in the Asset Purchase Agreement, the receipt and adequacy of which are
hereby acknowledged, the Buyer does hereby assume and agree to assume, pay,
perform, fulfill and discharge all of the Assumed Obligations (as defined in
Section 3.1 of the Asset Purchase Agreement). Anything in the Asset Purchase
Agreement or this Assumption of Liabilities Agreement to the contrary
notwithstanding, the Buyer is not assuming, and shall not be deemed to have
assumed, any liabilities of the Sellers, other than those set forth in Section
3.1 of the Asset Purchase Agreement.
This Assumption of Liabilities Agreement shall be subject to the terms and
conditions set forth in the Asset Purchase Agreement and nothing in this
Assumption of Liabilities Agreement shall be construed to limit, terminate or
expand the representations, warranties and covenants set forth in the Asset
Purchase Agreement.
IN WITNESS WHEREOF, the Buyer has caused this Assumption of Liabilities
Agreement to be duly executed by its officer this 5th day of November, 1997.
---
ARROW INTERVENTIONAL, INC.
By: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
---------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
Title: VP - Finance
LICENSE AGREEMENT
THIS LICENSE AGREEMENT (the "Agreement"), effective as of November 5, 1997,
-----------
is entered into by and between ARROW INTERVENTIONAL, INC., a Delaware
corporation, having its principal place of business at ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
------------------
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Licensee") and BOSTON SCIENTIFIC CORPORATION, a Delaware
-------------------
corporation, having its principal place of business at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ ("Licensor").
WHEREAS, Licensee, Licensor and IABP Corporation entered into an Asset
Purchase Agreement, dated as of November 5, 1997 (the "Asset Purchase
----------------
Agreement"); and
WHEREAS, as set out in the Asset Purchase Agreement, Licensee desires to
obtain from Licensor, and Licensor desires to grant to Licensee an exclusive,
worldwide, royalty-free license to make, use and sell the invention(s) disclosed
in the patent application set out in Schedule A solely for use in the field of
----------
intraaortic balloon catheters.
NOW THEREFORE, in consideration of the mutual promises and covenants
contained in this Agreement and the Asset Purchase Agreement, and for other good
and valuable consideration, the receipt and sufficiency of which the parties
acknowledge, the parties mutually covenant and agree as follows:
1. DEFINITIONS.
-----------
(a) "Affiliate" means any corporation or other business entity which,
directly or indirectly, controls or is controlled by, or is under common control
with a person or entity.
(b) "License Field" means the field of intraaortic balloon catheters.
(c) "License Rights" mean all rights to Patent Rights for use in the
License Field.
(d) "Patent Rights" mean all rights in the patent applications set
forth on Schedule A attached hereto, together with all continuation, divisional,
substitution, continuation-in-part, or reissue patent applications with respect
to any such patent applications, all unexpired patents issued on any such patent
applications, all extensions or renewals of any such patents, and all foreign
counterparts thereof.
(e) "Products" mean Nicath catheters and other intraaortic balloon
catheters that fall within the License Rights.
1
2. GRANT OF RIGHTS.
---------------
(a) Licensor grants to Licensee the sole and exclusive right, license,
and privilege to use (and to grant sublicenses to others to use) the License
Rights in the License Field including the right to make and manufacture, have
made and manufactured, use, sell, distribute and otherwise dispose of the
Products anywhere in the world. Licensor expressly retains the right to make,
have made, use, sell and license others to make, have made, use, sell and
sublicense the Patent Rights outside of the License Field.
(b) Licensee shall market and advertise the Products under Licensee's
name, trademarks, trade names, labels and other designations which shall remain
and be the sole property of Licensee.
3. ROYALTIES.
---------
Licensee shall not pay any further royalties or other fees to Licensor with
respect to the rights granted pursuant to this Agreement, except as set out in
the Asset Purchase Agreement. Licensor expressly acknowledges the receipt and
sufficiency of the consideration received from Licensee under the Asset Purchase
Agreement, that no further consideration is required hereunder, and that the
rights granted under Section 2 are irrevocable.
4. CONFIDENTIAL INFORMATION.
------------------------
It is contemplated that Licensor and Licensee may, from time to time in the
performance of this Agreement, disclose to each other certain confidential
information including technical information, and other know how, techniques and
processes, and trade secrets. To the extent it is deemed confidential, all such
information, know-how, techniques, processes and trade secrets shall remain
proprietary to Licensor and Licensee, as the case may be. Licensor and Licensee
mutually agree to keep such information in confidence to the same degree and
with the same protection by which they maintain their own proprietary
information confidential for five (5) years following the date hereof. Licensee,
subject to the above confidentiality requirements, and to the extent such
information relates directly to the License Field, may use such information
royalty-free during the term of this Agreement for any purpose in the
furtherance of the intent of this Agreement. For purposes of this Agreement,
information shall not be deemed confidential if (i) the receiving party can show
by its written records that, at the time of disclosure or thereafter, the
information is available in the public domain by publication or otherwise
through no breach of the receiving party; (ii) the receiving party can show, by
its written records, that the information was already in its possession at the
time of disclosure by the other party; (iii) the receiving party can show by its
written records that such information was independently developed without access
to such information; or (iv) the receiving party can show by its written records
that it acquired the information from a third party who had the legal right to
disclose it.
2
The termination of this Agreement shall not relieve Licensor or Licensee from
the obligation of maintaining the confidentiality of such information.
5. REPRESENTATIONS AND WARRANTIES OF LICENSOR.
------------------------------------------
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, LICENSOR MAKES NO
REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING
WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR
PURPOSE OR WITH RESPECT TO: (1) THE SCOPE OR VALIDITY OF THE PATENT RIGHTS; (2)
WHETHER THE PATENT RIGHTS MAY BE EXPLOITED BY LICENSEE WITHOUT INFRINGING THE
RIGHTS (INCLUDING PATENT RIGHTS) OF OTHERS; OR (3) THE RESULTS TO BE OBTAINED BY
USE OF THE PATENT RIGHTS OR THE PRODUCTS. THE RIGHTS GRANTED PURSUANT TO THIS
AGREEMENT ARE GRANTED "AS IS" IN EVERY RESPECT.
6. INDEMNIFICATION.
---------------
Subject to the indemnification limitations set forth in the Asset Purchase
Agreement, Licensee will indemnify and hold Licensor, its Affiliates, parent
companies, subsidiaries, divisions, officers, directors, shareholders,
employees, agents, successors and assigns harmless against all liabilities,
demands, claims, damages, expenses or losses (including reasonable attorneys'
fees and costs) arising out of any use, sale or other disposition by Licensee,
vendees or other transferees of Products manufactured or sold by or for Licensee
following the Closing Date (as defined in the Asset Purchase Agreement)
incorporating or made by use of any License Rights, including without limitation
third party infringement claims.
7. PATENT APPLICATIONS AND FOREIGN FILING.
--------------------------------------
(a) Licensor may, in its sole and absolute discretion, file,
prosecute, and maintain in force any and all patents and applications for
patents falling within the Patent Rights. All patent applications shall be
filed, prosecuted and maintained in the name of Licensor or such other applicant
designated by Licensor. In the event that Licensor elects to abandon the
prosecution or maintenance or filing (in Europe, Japan and Canada) of the
patents or patent applications falling within the Patent Rights, Licensor shall
promptly notify Licensee. Licensee may, but shall not be obligated to, file,
prosecute or maintain such patents or patent applications in Licensor's name and
at Licensee's sole expense; provided that Licensee must provide Licensor thirty
--------
(30) days prior written notice of its intent to file, prosecute or maintain any
of such patents or patent applications and that Licensor shall have the right to
file, prosecute or maintain such patents or patent applications in the event
that Licensor notifies Licensee of its intent to do so within such thirty (30)
day period. Licensor shall have the right to review all patent filings proposed
to be made by Licensee in connection with the Patent Rights at least ten (10)
days in advance of
3
their filing with the applicable patent office, and Licensee agrees to consider
in good faith all comments made thereto by Licensor.
(b) In the event that Licensor elects not to renew any of the patents
falling within the Patent Rights, Licensor shall promptly notify Licensee and
Licensee may, but shall not be obligated to, renew such patents in Licensor's
name and at Licensee's sole expense.
(c) Licensor shall provide Licensee the opportunity to review, on a
confidential basis, the patent prosecution history through the date hereof of
those patent applications set forth in Schedule A.
8. THIRD PARTY INFRINGEMENT.
------------------------
(a) If either party shall become aware of any infringement or
threatened infringement of any Patent Rights, the party having such knowledge
shall promptly give notice to the other of such infringement or threatened
infringement.
(b) In the event of any such infringement or threatened infringement,
Licensor may in the first instance, but shall not be obligated to, institute and
prosecute, at its own expense, any action in its name necessary to protect the
rights of Licensor and Licensee under this Agreement. In any such action, any
monetary settlement shall accrue solely to the benefit of Licensor. In any such
action, Licensee shall reasonably cooperate with Licensor and, at its own
expense, be entitled to noncontrolling participation through counsel of its own
selection.
(c) In the event that Licensor elects not to institute and prosecute
any such action, or fails to institute action within three (3) months of receipt
of notice of infringement from Licensee, Licensee may, but shall not be
obligated to, prosecute any action, at its own expense, for Licensee's benefit.
In any such action, any monetary settlement shall accrue solely to the benefit
of Licensee. In such action, Licensor shall reasonably cooperate with Licensee
and, at its own expense, be entitled to non-controlling participation through
counsel of its own selection.
9. THIRD PARTY RIGHTS.
-------------------
(a) If either party shall become aware of any action or suit, or
threat of action or suit, by a third party alleging that the manufacture, use or
sale of any Product infringes a patent, or violates any other proprietary rights
of such third party, the party aware shall promptly notify the other party of
the same.
(b) In such event, Licensee may in the first instance, but shall not
be obligated to, defend, at its own expense, any action in its name necessary to
protect the rights of Licensee under this Agreement. In any such action,
Licensor shall reasonably cooperate with Licensee and, at its own expense, be
entitled to noncontrolling participation through counsel of its own selection.
4
(c) In the event that Licensee elects not to defend any such action,
Licensor may, but shall not be obligated to, defend any action, at its own
expense, for Licensor's benefit. In any such action, Licensee shall reasonably
cooperate with Licensor and, at its own expense, be entitled to non-controlling
participation through counsel of its own selection.
10. TERM AND TERMINATION.
--------------------
(a) This Agreement shall remain in full force and effect until the
last to expire of the Patent Rights or the abandonment of the patent
application(s) set out in Schedule A. This Agreement may also be terminated by
----------
the parties by their mutual consent.
(b) In addition to any other right of termination, either party may
terminate this entire Agreement (i) for breach by the other party, upon sixty
(60) days' prior written notice to the breaching party of such breach, provided
the breach is not cured within such sixty (60) day period or the breaching party
has not taken reasonable steps during such sixty (60) day period to cure the
breach as promptly as possible; or (ii) upon five (5) days prior written notice,
if the other party becomes insolvent or a receiver is appointed for its business
or properties, or if a petition is filed by or against such party under any
provisions of any bankruptcy, insolvency or similar laws (and such petition
remains undismissed for thirty (30) days, in the case of a petition filed
involuntarily against a party).
11. ASSIGNMENT.
----------
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective permitted successors and assigns. This
Agreement may be freely assigned by Licensor without the consent of, but upon
notice to Licensee of, such assignment; provided that such assignee agree in
writing to be bound by the terms hereof and deliver proof of same to license.
This Agreement shall not be assigned by Licensee without the prior written
consent of Licensor, except to a parent corporation, affiliate or subsidiary of
Licensee or to a successor to substantially all of the business of Licensee in
the License Field.
12. MISCELLANEOUS.
-------------
(a) This Agreement shall be deemed to have been made in and shall be
construed under the laws of The Commonwealth of Massachusetts, without regard to
its principles on conflicts of law.
(b) This Agreement shall not be construed as creating the relationship
of master and servant, principal and agent, or a co-partnership or joint venture
between the parties.
(c) This instrument contains the entire Agreement between the parties
respecting the subject matter covered and supersedes any prior understanding
5
concerning such subject matter, except to the extent that any term or condition
hereof conflicts with a term or condition of the Asset Purchase Agreement, in
which case the Asset Purchase Agreement shall control.
(d) Any notice required to be given hereunder shall be given by
registered mail, return receipt requested, postage prepaid, by facsimile or by
overnight delivery through a nationally recognized courier, and if intended for
Licensor shall be addressed to Boston Scientific Corporation, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, Attn: General Counsel, fax no.
(▇▇▇) ▇▇▇-▇▇▇▇; or if intended for Licensee, addressed to Arrow Interventional,
Inc., ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, fax
no.(▇▇▇) ▇▇▇-▇▇▇▇ with a copy to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq., ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ Floor, ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇,
fax no. ▇▇▇-▇▇▇-▇▇▇▇ or at such other address as the parties hereto shall
designate by notice given as herein provided. The notice given, as aforesaid,
shall be deemed to be received by the party to whom it is addressed within the
time that would ordinarily be required for the receipt of registered or
overnight mail.
(e) No provision of or right under this Agreement shall be deemed to
have been waived by any act or acquiescence on the part of either party, its
agents or employees, except by an instrument in writing, signed by an authorized
officer of such party. No waiver by either party of any breach of this Agreement
by the other party shall be effective as to any other beach, whether of the same
or any other term or condition and whether occurring before or after the date of
such waiver.
(f) All of the provisions in this Agreement will be considered as
separate terms and conditions, and in the event that any one is held to be
illegal, invalid or unenforceable, that provision shall be interpreted to the
maximum extent enforceable and the other provisions hereof shall remain in full
force and effect.
(g) This Agreement may be executed and delivered in one or more
counterparts, each of which when executed and delivered shall be deemed to be an
original, but all of which when taken together shall constitute one and the same
Agreement.
(h) Captions and headings of the sections of this Agreement are for
reference purposes only and do not constitute terms or conditions of the
Agreement, and shall not limit or affect the terms and conditions hereof.
6
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the date first written above.
ARROW INTERVENTIONAL, INC.
By: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
-----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
---------------------------
Title: VP - Finance
--------------------------
BOSTON SCIENTIFIC CORPORATION
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------
Name:
---------------------------
Title:
--------------------------
7
SCHEDULE A
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Patent Applications
-------------------
Title Application/Publication Number
----- ------------------------------
Intra-Aortic Balloon Catheter US SN 08/816,200 which is a FWC of
US SN 08/556,533 filed Nov. 13, 1995
Intra-Aortic Balloon Catheter US SN 08/819,879 which is a Cont. of
US SN 08/556,533 filed Nov. 13, 1995
Intra-Aortic Balloon Catheter PCT WO 97/18005 which claims priority to
US SN 08/556,533 filed Nov. 13, 1995
8