(a)在收盘日期前不迟于五(5)个营业日,ICU Medical将准备并交付给OPF-US公司一份公司未经审计的资产负债表,根据GAAP按照预估值编制,截至收盘日期,并包含以下列示项目 附表1.3(a) (称为“预估收盘资产负债表”)。ICU Medical将连同预估收盘资产负债表一并交付一份声明,陈述ICU Medical根据预估收盘资产负债表的善意计算的预估收盘付款金额(称为“预估结算款项”)。预估收盘付款金额的示例计算详见 附表1.3(a). ICU Medical will permit OPF-US and its Representatives reasonable access to the personnel, properties, books and records of the Company for the purpose of evaluating the foregoing statements and calculations. If OPF-US raises any reasonable objections to the foregoing statements and calculations, OPF-US and ICU Medical will consider in good faith such objections prior to the Closing, and ICU Medical will make such revisions to such disputed items as may be mutually agreed between ICU Medical and OPF-US. No failure by OPF-US to raise any objection or dispute pursuant to this 第1.3(a)节 shall in any way prejudice OPF-US’s right to raise any matter pursuant to the remaining provisions of this 第1.3节 or otherwise. From and after delivery of the Estimated Closing Balance Sheet until the Closing, ICU Medical shall not (and shall cause the Company not to) take any action outside the ordinary course of business that would alter the Estimated Closing Payment.
(b)Within ninety (90) days after the Closing Date, OPF-US shall prepare and deliver to ICU Medical written notice (the “调整通知”) containing (i) the unaudited balance sheet of the Company as of the Closing Date and containing the line items set forth on 日程安排1.3(a) ("期末资产负债表)以及(ii)OPF-US对(A)来自收盘资产负债表的结算支付的计算,和(B)OPF-US对根据 第1.3(g)款 ("调整计算”) 提供, ,股东请求的特别股东会议的日期不得晚于有效股东特别大会请求提交给秘书(并且未被撤销)之日后的九十(90)天。尽管这些章程中可能有相反规定,董事会可以在股东请求的特别股东会议上提交其自己的提案或候选人。在本关于公司的截止前税款,不得根据第1.3(b)条款进行调整。
(e)如果ICU Medical及时向OPF-US发送争议通知书,那么OPF-US和ICU Medical将尽快诚信地,在向OPF-US交付该争议通知书之后的四十五(45)天内,就调整计算达成一致,以便 第1.3(g)条。在此四十五(45)天期间,OPF-US和ICU Medical就任何有争议的事项达成的任何解决方案,将对 第1.3(g)条来终局且对OPF-US和ICU Medical具有约束力。如果在向OPF-US发送争议通知书后的四十五(45)天结束时,OPF-US和ICU Medical未能解决所有有争议的事项,那么OPF-US和ICU Medical将向ICU Medical和OPF-US互相同意的一家全国认可的会计事务所提交一份其余有争议事项的清单(“未解决事项”及其相应的价值归因,该公司不得是OPF-US,ICU Medical或本公司的常规审计公司(“独立会计师事务所”) for resolution. OPF-US and ICU Medical will instruct the Independent Accounting Firm to render its determination with respect to the Unresolved Items in a written report that specifies the conclusions of the Independent Accounting Firm as to each Unresolved Item and the resulting Closing Payment and Adjustment Calculation, in each case based solely on the written reports submitted to the Independent Accounting Firm by OPF-US or ICU Medical (也就是., not on independent review and acting as an expert and not an arbitrator) and on the definitions and other terms included herein; provided, that in resolving an Unresolved Item, the Independent Accounting Firm may not assign a value to any particular item greater than the greatest value for such item claimed by either Party or less than the smallest value for such item claimed by either Party, in the written reports presented to the Independent Accounting Firm. OPF-US and ICU Medical will each use their commercially reasonable efforts to cause the Independent Accounting Firm to render its determination within thirty (30) days after referral of the items to such firm or as soon thereafter as reasonably practicable. The resolution of the Unresolved Items by the Independent Accounting Firm will be conclusive and binding on the Parties absent manifest error or fraud. ICU Medical will revise the Closing Balance Sheet and the Adjustment Calculation as appropriate to reflect the resolution of
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the issues in dispute pursuant to this 第1.3(e)节. The fees and expenses of the Independent Accounting Firm will be shared by OPF-US and ICU Medical, in inverse proportion to the relative amounts of the disputed amount determined to be for the account of OPF-US and ICU Medical, respectively.
(f)For purposes of complying with Section 1.3(e)OPF-US和ICU Medical将向彼此和独立会计师事务所提供与未解决事项相关的工作文件和其他文件和信息,独立会计师事务所可能请求并对该方可用(或其独立注册会计师)的工作文件和其他文件和信息,并将有机会向独立会计师事务所提供与未解决事项相关的任何重要材料并与其讨论事项,但(i)每一方应将提供给独立会计师事务所的所有材料以及与其的沟通提供给对方,并(ii)任何一方(或其关联公司代表)均不得随时就未解决问题与独立会计师事务所进行任何单方沟通。 OPF-US可能要求独立会计师事务所就根据本 第1.3节.
2.1组织情况;权限;协议的约束力;单位。 ICU MEDICAL 是根据特拉华州法律合法组建成立并保持良好地位的一家公司。ICU MEDICAL SALES 是根据特拉华州法律合法组建成立并保持良好地位的一家公司。ICU MEDICAL 实体具有必要的法人权力和权限拥有所购单位,且 ICU MEDICAL 和 ICU MEDICAL SALES 具有必要的法人权力和权限拥有和出资贡献被购资产。
(b)ICU MEDICAL 和 ICU MEDICAL SALES 各自具有必要的法人权力和权限订立、执行和履行各自在其中担任一方的交易协议下的各项义务(包括 ICU MEDICAL 实体根据本协议向 OPF-US 出售所购单位的义务);ICU MEDICAL 和 ICU MEDICAL SALES 订立、执行和履行的每一项其所在方的交易协议已得到,或在此日期之后签署的,将得到,ICU MEDICAL和其董事会以及 ICU MEDICAL SALES 和其董事会,适用的必要行动的授权,无论是 ICU MEDICAL 还是 ICU MEDICAL SALES 的其他公司程序是否需要授权交易协议,出资以及交易。
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对于 ICU MEDICAL 和 ICU MEDICAL SALES 而言,已授权各自董事会成员并无需进行任何其他公司程序以授权交易协议、出资和交易。
(c)ICU Medical和ICU Medical Sales已经履行并交付了本协议,并构成ICU Medical和ICU Medical Sales各自的合法、有效和具有约束力的义务,并依据其条款对ICU Medical和ICU Medical Sales具有可执行力,除非适用的破产、无力偿还债务或其他影响债权人权利执行的法律要求可能对可执行性产生限制,以及与可执行性相关的一般权益原则。在收盘时对入股协议和每个收盘协议的签署国的签署后,对于ICU Medical、ICU Medical Sales和Company是当事方的入股协议和每个相关收盘协议将构成ICU Medical、ICU Medical Sales和Company的法律、有效和具有约束力的义务,依据其各自的条款对ICU Medical、ICU Medical Sales和Company具有可执行性,除非适用的破产、无力偿还债务或其他影响债权人权利执行的法律要求可能对可执行性产生限制,以及与可执行性相关的一般权益原则。
(d)在收盘前立即,公司除了承担的责任外没有任何负债。在收盘前立即,(i) 公司的资本结构应包括10,000股授权单位,全部已发行并流通,(ii) ICU Medical实体将拥有所有权、标题和利益(法律和实质性的)10,000股单位,ICU Medical Sales将拥有不少于100股单位的所有权、标题和利益(法律和实质性的),(iii) 公司未授权、发行或向任何其他人发行任何其他单位或其他权益,并且(iv) 除了由ICU Medical和ICU Medical Sales持有的单位之外,任何人都不持有公司的任何权益、任何转换为公司任何股权的证券或其它购买或获得公司任何股权的权利。在收盘前立即,ICU Medical实体将对购买的单位拥有有效的、可营销的所有权,除了适用证券法规定的限制以外,不受任何除了根据适用的证券法规的限制之外的任何负担,并且有权出售购买的单位给OPF-US,不需要获得任何尚未获得的人的同意。在收盘后立即,(i) OPF-US将对购买的单位拥有有效的、可营销的所有权,除了适用于购买的单位的限制如在修订后的经营协议的附件A中所述或根据适用的证券法规定的限制以外的任何负担,并且(ii) 公司的资本结构将如修订后的经营协议的附件A中所示。
2.2Tangible Assets. ICU Medical owns, and has, and immediately following the Contribution the Company will own and have, good and valid title to, all of the Contributed Assets. Except as set forth in Part 2.2(a) of the Disclosure Schedule, all of the Contributed Assets owned by ICU Medical and ICU Medical Sales as of the date hereof, and immediately following the Contribution owned by the Company will be, free and clear of any Encumbrances, other than Permitted Encumbrances. The Contribution Agreement sets forth an accurate and reasonably complete description of any of the Contributed Assets that will be leased or licensed to ICU Medical following the Contribution. All Tangible Personal Property is in good operating
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condition and repair in all material respects, subject to normal wear and tear. ICU Medical does not have any agreement with any other Person to sell or otherwise transfer any of the Contributed Assets or any line of business or asset required for the performance of ICU Medical’s obligations under the Transaction Agreements. The Tangible Personal Property, collectively with any tangible personal property owned by ICU Medical and to be used in the provision of services to be provided to the Company pursuant to the Commercial Agreements and the Services Agreement, constitute all of the tangible personal property used by ICU Medical in the ordinary course of its conduct of the Business. Since September 30, 2024, except (i) as otherwise set forth in Part 2.2(b) of the Disclosure Schedule, (ii) in connection with the Contribution and (iii) for sales of Existing Products, ICU Medical has not sold, transferred or conveyed any material tangible personal property used in the ordinary course of its conduct of the Business.
2.3Inventory. The Inventory is of such quality and quantity as to be usable and saleable by ICU Medical in the ordinary course of business, and is free of any material defect or deficiency. Except as set forth in Part 2.3 of the Disclosure Schedules, the levels of Inventory maintained by ICU Medical (i) are not excessive in light of ICU Medical’s normal operating requirements for the Business and (ii) are adequate for the conduct of the Business as presently conducted by ICU Medical in the ordinary course of business.
2.4合同。
(a)The Transferred Contracts listed in Exhibit E to the Contribution Agreement constitute all Contracts to which an ICU Medical Entity is a party and that exclusively relate to the Business. Each Business Contract is a valid and binding agreement of the ICU Medical Entity party thereto, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency or other similar Legal Requirements affecting the enforcement of creditors’ rights generally and by general principles of equity relating to enforceability. Except as set forth in Part 2.4(a) of the Disclosure Schedule, the Business Contracts may be assigned to the Company, in whole or in part, as part of the Contributed Assets pursuant to the Contribution Agreement and without the consent of any other Person, except where the failure to obtain such consent would not reasonably be expected to be materially adverse to the Business. Prior to the Closing, ICU Medical will have made available to OPF-US accurate and complete copies of all Contracts listed in Exhibit E and Exhibit H of the Contribution Agreement, including all amendments thereto. There are no material deviations in the terms of any Business Contracts that have not been made available to OPF-US as of the date hereof, as compared to the terms of the Contracts listed in Exhibit E and Exhibit H of the Contribution Agreement, that would be materially adverse to the Business. There are no oral Contracts with respect to the Business. Except as set forth in Part 2.4(a) of the Disclosure Schedule: (i) the ICU Medical Entities have not and, to the Knowledge of ICU Medical, no other Person has materially violated or breached, or declared or committed any material default under, any Business Contracts; (ii) to the Knowledge of ICU Medical, no event has occurred that has or would reasonably be expected to (A) result in a material violation or breach of any of the provisions of any Business Contracts, (B) give any Person the right to declare a default or exercise any remedy under any Business Contracts, (C) give any Person the right to accelerate the maturity or performance of any Business Contracts, or (D) give any Person the right to cancel, terminate or modify any Business Contracts, except in each case of (A) through (D), for any such events which would not reasonably be expected to adversely impact the Business; (iii) none of the ICU Medical Entities have received any written notice or, to the Knowledge of ICU
2.6遵守法律要求。 除非根据[公司披露记录]中的规定,在估值日之后,涉及业务在所有重要方面均按照过去的惯例,在正常情况下进行。 Part 2.6 of the Disclosure Schedule: (a) ICU Medical and its Affiliates are, and at all times during the past three (3) years have been, in compliance with each Legal Requirement applicable to the Business or any of the Contributed Assets except in each case where non-compliance with such Legal Requirement would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (b) no event has occurred that would be reasonably likely to result in a violation by ICU Medical or any of its Affiliates of, or a failure on the part of ICU Medical or any of its Affiliates to comply with, any Legal Requirement related to the Business or the Contributed Assets, except in each case where non-compliance with such Legal Requirement (including Environmental Laws) would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and (c) neither ICU Medical nor any of its Affiliates has received any notice from any Governmental Body regarding any violation of, or failure to comply with, any Legal Requirement related to the Business or the Contributed Assets, except in each case where non-compliance with such Legal Requirement (including Environmental Laws) would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. ICU Medical has made available to OPF-US an accurate and complete copy of each report, study, survey, letter, or other document or communication received by ICU Medical within the last two (2) years that addresses or otherwise relates to the compliance by ICU Medical or any of its Affiliates with, or the applicability to ICU Medical or any of its Affiliates of, any Legal Requirement related to the Business or the Contributed Assets. To the Knowledge of ICU Medical, no Governmental Body has proposed in writing any Legal Requirement that, if adopted or otherwise put into effect prior to Closing, (i) would reasonably be expected to have an adverse effect on the current Business or the ownership of the Contributed Assets, or on the ability of ICU Medical to comply with or perform any covenant or obligation under any of the Transaction Agreements, or (ii) would reasonably be expected to have the effect of preventing, delaying, making illegal, or otherwise interfering with any of the Transactions. Neither ICU Medical nor its Affiliates have during the past two (2) years, conducted or caused to be conducted any internal investigation with respect to the Business concerning any actual or alleged violation of any Legal Requirements by ICU Medical, its Affiliates, or any of ICU Medical’s and its Affiliates’ officers, directors or employees in connection with the conduct of the Business.
(a)Except as set forth in Part 2.11(a) of the Disclosure Schedule, neither the execution and delivery by ICU Medical and ICU Medical Sales of any of the Transaction Agreements nor the consummation or performance by ICU Medical and ICU Medical Sales of any of the Transactions (including the consummation of the Contribution), will:
(i)contravene, conflict with or result in a violation of, or give any Governmental Body the right to challenge any of the Transactions or to exercise any remedy or obtain any relief under, any Legal Requirement or any Order to which ICU Medical, any of its Affiliates, the Business, or any of the Contributed Assets is subject, except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(ii)contravene, conflict with or result in a violation of any of the terms or requirements of, or give any Governmental Body the right to revoke, withdraw, suspend, cancel, terminate, modify, or fail to renew in the ordinary course, any Operations Permit
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included in the Contributed Assets, except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(iii)violate or conflict with any provision of the certificate of incorporation, bylaws or other organizational documents of ICU Medical or ICU Medical Sales;
2.14Suppliers; Customers. Part 2.14(a) of the Disclosure Schedule sets forth a complete and accurate list of the names of all suppliers that provide services or materials to the Business involving consideration in excess of $500,000 for fiscal year 2023 and 2024 year to date as of June 30, 2024. ICU Medical has not received any written notice from any supplier named on Part 2.14(a) of the Disclosure Schedule of any intention to terminate or materially reduce supplies to ICU Medical in respect of the Business.
(b)Part 2.14(b) of the Disclosure Schedule sets forth a list of the names of the top fifty (50) customers of the Business by revenue (the “Material Customers”). Neither ICU Medical nor ICU Medical Sales has received any written notice from any Material Customer of any intention to terminate or materially reduce purchases of Existing Products.
2.15税务。
(a)Except as set forth in Part 2.15(a) of the Disclosure Schedule, (i) all income and other material Tax Returns required to be filed with respect to the Company, the Business or the Contributed Assets have been or will be timely filed, (ii) all Taxes that are due and payable by the Company before the Closing Date have been timely paid in full, (iii) all income and other material Taxes due and payable by ICU Medical and its Affiliates in respect of the Contributed Assets, the Business Employees, or the Business for Pre-Closing Tax Periods (determined in accordance with the definition of Excluded Taxes) have been or will be timely paid in full, (iv) there are no Encumbrances for Taxes on any of the Contributed Assets or other assets of the Company (other than Encumbrances for current Taxes not yet due and payable), (v) there is no pending audit controversy with respect to any Taxes that directly relate to the Company, the Business or the Contributed Assets and there is no Tax deficiency or claim assessed that relates directly to the Company, the Business or the Contributed Assets that has not
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been settled, and (vi) none of the Contributed Assets or other assets of the Company constitute “Section 197(f)(9) intangibles” within the meaning of Treasury Regulations Section 1.197-2(h)(1)(i).
第2.17部分。 of the Disclosure Schedule lists all real property owned by ICU Medical or its Affiliates and primarily used in the Business (the “不动产”). There are no written or oral leases, subleases or other contractual obligations granting to any Person the right of use or occupancy of the Real Property or any portion thereof. ICU Medical and its Affiliates are not party to any leases or subleases in connection with the Business. ICU Medical or its Affiliates, as applicable, have good, valid and marketable title to all of the Real Property, free and clear of any Encumbrances, except Permitted Encumbrances, and except for the Deed of Trust, Security Agreement, Assignment of Rents and Leases and Fixture Filing dated as of April 6, 2022 and recorded among the land records of Travis County, Texas as Instrument No. 2022064448 (the “Deed of Trust”), which secures the Credit Agreement. There is no pending or to ICU Medical’s Knowledge, threatened condemnation or eminent domain proceedings that affect any of the Real Property. ICU Medical and its Affiliates have not received any written notice of the Real Property or the improvements located on the Real Property not being in compliance with applicable Legal Requirements. To the Knowledge of ICU Medical, ICU Medical and its Affiliates have received all approvals of Governmental Bodies, including without limitation, building, zoning, administrative, occupational safety and health authorities approvals, or such other approvals, including licenses, under any applicable Legal Requirement that is required to be obtained in connection with the current use and operation of the Real Property. No Persons other than ICU Medical are in possession of the Real Property, and there are no known disputes with respect to the Real Property. The representations and warranties set forth in Section 2.2
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shall not apply to the Real Property. The Real Property is not subject to any options or other agreements that provide any other Person with the right to purchase or otherwise acquire any of the Real Property.
3.2Non‑Contravention; Consents. Assuming compliance with Antitrust Laws, neither the execution and delivery by OPF-US of any of the Transaction Agreements to which it is a party, nor the consummation or performance by OPF-US of any of the Transactions, will directly or indirectly (with or without notice or lapse of time): (i) contravene, conflict with or result in a violation of, or give any Governmental Body the right to challenge any of the Transactions or to exercise any remedy or obtain any relief under, any Legal Requirement or any Order to which OPF-US or any of its Affiliates is subject; or (ii) result in or impose any material Encumbrance (other than Permitted Encumbrances) upon or with respect to the Purchased Units. Except as may be required by the HSR Act or any other applicable Antitrust Laws, OPF-US is not and will not be required to make any filing with or obtain any Consent from, any Person in connection with the execution and delivery of any of the Transaction Agreements, the purchase by OPF-US of the Purchased Units or the consummation or performance of any of the Transactions. Assuming compliance with Antitrust Laws, there is no Order and no Proceeding pending or, to the knowledge of OPF-US, threatened in writing that (i) relates to OPF-US’ ability to comply with or perform any of its covenants or obligations under any of the Transaction Agreements to which it is a party, or (ii) if issued or determined, would be reasonably likely to have the effect of preventing, delaying, making illegal or otherwise interfering with any of the Transactions.
3.3Financial Ability to Perform.
OPF-US will have sufficient cash on hand as of Closing to pay the Estimated Closing Payment and to otherwise comply with its obligations under this Agreement. Notwithstanding anything to the contrary in this Agreement, in no event shall the receipt or availability of any
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funds or financing by or to OPF-US or any of its Affiliates or any other financing or other transaction be a condition to any of the obligations of OPF-US hereunder.
如果假定(i)第2节中所述的陈述和保证准确,(ii)ICU Medical Entities履行本协议项下的义务,(iii)在交割前立即关闭时公司是正常的,那么在交割后立即给予根据本协议和其他交易协议所规定的交易以及其他交易中OPF-US及其子公司将在合并基础上是正常的。在本协议或其他交易协议规定的交易中不进行财产转让,也不进行任何旨在阻碍、延迟或欺骗OPF-US现有或将来债权人的义务。
自本协议日期开始至(a)结束日期或(b)根据第7条终止本协议的较早日期,期间Pre-Closing Period”), the ICU Medical Entities, shall conduct, and shall cause the Company to conduct, except as expressly contemplated by this Agreement, or as consented to in writing by OPF-US (which consent will not be unreasonably withheld or delayed) the Business in the ordinary course of business, and substantially in accordance with past practice. Without limiting the generality of the foregoing, the ICU Medical Entities shall not, and shall cause the Company and each of their respective Affiliates not to, except (i) as set forth on 卖方披露信函表格4.1, (ii) as specifically contemplated by this Agreement, (iii) as consented to in writing by OPF-US (which consent will not be unreasonably withheld or delayed, including with respect to the Contribution), or (iv) except to the extent unrelated to the Company, the Business or the Contributed Assets:
(a)extend, materially modify, terminate or renew any Transferred Contract with a value exceeding $1,000,000 in any twelve (12) month period, except for extensions, material modifications or renewals entered into in the ordinary course of business;
(b)amend the Original Operating Agreement, issue any equity interests in the Company to any Person or cause the Company to engage in any business or incur any Liability;
(c)sell, assign, transfer, convey, lease, mortgage, pledge or otherwise dispose of or encumber any material Contributed Asset, or any interests therein, except (i) sales of Inventory in the ordinary course of business, (ii) in connection with any accounts receivable factoring program of ICU Medical carried out in the ordinary course of business, or (iii) such Encumbrances to the extent required pursuant to the provisions of the Credit Agreement;
(d)except as otherwise required by applicable Legal Requirements, take any action with respect to the grant of any bonus, severance or termination pay of any Business Employee with total compensation or annual salary as of the date of this Agreement in excess of $100,000, other than pursuant to written policies or agreements of ICU Medical or its Affiliates in effect on the date hereof, or with respect to any increase of benefits payable to such Business Employees under its written severance or termination pay policies or agreements in effect on the date hereof, or increase in any material respect the compensation or fringe benefits of any such
4.2信息披露. 在结束前阶段,ICU Medical和ICU Medical Sales应且应促使其各自的高管、董事及员工在正常营业时间内,并在ICU Medical和ICU Medical Sales合理的通知后,并以不会不合理干扰或严重干涉业务运营的方式,为OPF-US及其代表提供合理时间内进入被贡献资产进行检查的权利,此次进入应由OPF-US独家承担费用,并对ICU Medical和ICU Medical Sales的高管和管理层员工提供,并应根据OPF-US合理的要求,提供OPF-US及其授权代表有关业务或被贡献资产相关的财务、运营及其他数据和信息,但若此次进入违反ICU Medical、ICU Medical Sales、其各自员工或被贡献资产所受的任何法律要求,则除外。尽管可能有相反的规定,协议中规定,ICU Medical及其关联公司不应向OPF-US、其关联公司或代表透露任何信息,如果(i)根据ICU Medical的法律顾问合理判断,这样做将构成ICU Medical或其关联公司持有的律师-客户或其他特权的放弃,或(ii)如果ICU Medical或其任何关联公司一方和OPF-US及其关联公司另一方在诉讼中为对立方,且此信息与OPF-US或其关联公司在其中提出的索赔或抗辩合理相关。
(b)Unless this Agreement shall have been validly terminated in accordance with “第7, OPF-US and ICU Medical shall (i) within twenty (20) Business Days after the date hereof file with the U.S. Federal Trade Commission (the “联邦贸易委员会”) and the Antitrust Division of the U.S. Department of Justice Notification and Report Forms relating to the Transactions as required by the HSR Act and (ii) promptly submit with the applicable Governmental Body any additional filings required pursuant to Antitrust Laws as may be mutually agreed between ICU Medical and OPF-US. Each of OPF-US and ICU Medical shall reasonably cooperate in such filings and promptly supply the other Party with any information which may be reasonably required in order to effectuate such filings. Each of OPF-US and ICU Medical shall use reasonable best efforts to cause the prompt expiration or termination of any applicable waiting periods under the HSR Act and other applicable Antitrust Laws, provided that (X) nothing herein shall require OPF-US or ICU Medical to propose, negotiate, agree to, accept the imposition of, commit to or effect, by agreement, consent decree, hold separate order or other order or otherwise, to sell, divest, hold separate, lease, license, transfer, dispose of, otherwise encumber, limit, restrict or impair or otherwise take any other action with respect to its ability to own or operate any assets, properties, businesses or product lines or its ability to own or operate any assets, properties, business or product lines (including of the Business), and (Y) if either OPF-US or ICU Medical receives a request for additional information or documentary material from any Governmental Body with respect to the Transactions, then such party will use reasonable best efforts to make, or cause to be made, promptly and after consultation with the other party, an appropriate response. Each of OPF-US and ICU Medical will notify the other Party promptly upon the receipt of (i) any comments from any Governmental Body in connection with any filings made pursuant hereto or in connection with the Transactions and (ii) any request by any Governmental Body for amendments or supplements to any filings made pursuant to, or information provided to comply in all material respects with, any Legal Requirement with respect to the Transaction, including the requirements of the HSR Act; and (iii) any request for additional information or documentary material from any Governmental Body with respect to the Transactions, and if in writing, furnish the other party with copies of (or in the case of oral
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communications, advise the other party orally of) any material communications with or from any Governmental Body regarding the Transactions, and permit the other party to review and discuss in advance, and consider in good faith the views of the other party in connection with, any such governmental filing, submission, or other document or communication with any such Governmental Body. Whenever any event occurs that is required to be set forth in an amendment or supplement to any filing made pursuant to this 第4.3(c)条, the Party required to make such amendment or supplement will promptly inform the other Party of such occurrence and file with the applicable Governmental Body such amendment or supplement. Each of OPF-US and ICU Medical shall give one another prompt notice of the commencement or known threat of commencement of any Proceeding by or before any Governmental Body with respect to the proposed acquisition by OPF-US of the Purchased Units, keep one another informed as to the status of any such proceeding or threat, and in connection with any such proceeding, to the extent permitted by Legal Requirement, permit Representatives of the other Party to be present at each meeting or conference relating to any such proceeding and to have access to and be consulted in connection with any document, opinion or proposal made or submitted to any Governmental Body in connection with any such proceeding. Upon the terms and conditions set forth herein (including the third sentence of this Section 4.3(b)), each of OPF-US and ICU Medical shall use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things, necessary, proper or advisable to obtain approval as required by any Governmental Body and expiration or termination of applicable waiting periods under the HSR Act. All filing fees incurred in connection with the filings contemplated by this Section 4.3(b) shall be paid and borne 100% by OPF-US, but each Party shall be responsible for any other fees or expenses (including legal costs) that it incurs in connection with such filings.
(c)Notwithstanding the foregoing, OPF-US and ICU Medical may, as each deems advisable and necessary, reasonably designate any competitively sensitive or business confidential material provided to the other under this 第4.3节 as “outside counsel/corporate in-house antitrust counsel only” or “outside counsel” only. Such materials and the information contained therein shall be given only to the outside legal counsel or outside legal counsel and corporate inhouse antitrust counsel of the recipient and will not be disclosed by such outside counsel and corporate in-house antitrust counsel to employees (other than corporate in-house antitrust counsel), officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (OPF-US and ICU Medical, as the case may be) or its legal counsel. Materials provided pursuant to this Section 4.3 may be redacted (i) to remove personally sensitive information, (ii) to remove references concerning the valuation of the Business or any other business of ICU Medical or the process in which ICU Medical has engaged in connection with a sale of the Business, (iii) as necessary to comply with contractual obligations, (iv) as necessary to comply with applicable Legal Requirements, (v) to remove business confidential information unrelated to the Transaction, and (vi) as necessary to avoid waiver of privilege. Notwithstanding anything to the contrary in this Agreement, OPF-US shall have the right, following good faith consultation and consideration of the views of ICU Medical, to direct the strategy for obtaining any necessary approval in connection with the filings contemplated by this Section 4.3(b).
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4.4禁止招揽. During the period (the “禁止征求期自本协议生效之日起至本协议终止日期或交割日(以最早者为准),ICU Medical应确保自身及ICU Medical的代表不直接或间接进入、征求、发起或继续与他人进行任何讨论或谈判,或鼓励或响应任何询问或提议,或参与任何谈判,或向他人提供任何信息,或以其他方式与任何非ICU Medical及其代表有关的人进行合作,涉及业务或贡献资产全部或重大部分的出售、出租或许可,或(ii)对任何与第(i)款所述提案有关的对非公开贡献资产或业务信息作出及时通知。ICU Medical应及时通知OPF-US有关禁止征求期内ICU Medical收到与收购、租赁、许可或转让贡献资产或业务全部或重要部分有关的任何个人(非公司或ICU Medical)提出的询问、提案或交易条款,包括但不限于潜在购买方或征求方的身份,但如任何此类通知可能违反ICU Medical的任何现有协议,则除外。
》,根据《条例》第743(b)、751、755和1060条以及根据其制定的财政部法规(“ 第9.1节 分配”). Within thirty (30) days after the final determination of the Final Closing Payment under 第1.3节, OPF-US will deliver to ICU Medical a proposed Allocation (excluding, for the avoidance of doubt, any Milestone Payment). ICU Medical shall notify OPF-US in writing of any objections to the proposed Allocation within thirty (30) days after ICU Medical receives such proposed Allocation. If ICU Medical does not notify OPF-US of any objections to the proposed Allocation within that thirty (30)-day period, the proposed Allocation shall be construed as final. If ICU Medical notifies OPF-US of an objection to any item in the Allocation by the end of the thirty (30)-day period, OPF-US and ICU Medical shall attempt in good faith to resolve the item in dispute. The Parties agree that, for all Tax purposes if
and to the extent the Parties agree on the Allocation, the transactions contemplated in this Agreement will be reported in a manner that is consistent with such final Allocation, and none of them (nor any of their respective Affiliates) will take any position inconsistent therewith on any Tax Return or otherwise unless otherwise required by Legal Requirement.
(c)Within ninety (90) days after the Closing, ICU Medical shall deliver to the Company: (i) a complete and correct list of the income tax basis of each item of tangible and intangible property included in the Contributed Assets, (ii) the year of acquisition of each such item of tangible or intangible property, (iii) the depreciable life of each such item of tangible or intangible property, and (iv) the amount and method of depreciation with respect to each such item of tangible or intangible property.
(d)The Parties agree to retain, and to cause the Company to retain, all records relating to the Taxes of the Business or the Contributed Assets for all taxable periods ending on or prior to the Closing Date or which include the Closing Date until ninety (90) days after the expiration of the applicable statute of limitations (including any extensions thereof) for the taxable period or periods to which such records relate. Consistent with 第9节 of this Agreement, OPF-US and ICU Medical agree to provide each other, and to cause the Company to provide to OPF-US and ICU Medical, such information and assistance as is reasonably necessary, including access to records and personnel, for the preparation of any Tax Returns or for the defense of any Tax claim or assessment that relates to the Business or the Contributed Assets, whether in connection with an audit or otherwise.
(e)On or prior to the Closing Date, ICU Medical shall deliver to OPF-US a properly completed and duly executed IRS Form W-9. On or prior to the date of the Contribution Agreement, each of ICU Medical and ICU Medical Sales shall have delivered to the Company a properly completed and duly executed IRS Form W-9.
(f)Within thirty (30) days after the filing of all Tax Returns (excluding any Flowthrough Tax Return) required to be filed by the Company for any Pre-Closing Tax Periods (including, for the avoidance of any doubt, any Straddle Tax Periods), OPF-US shall prepare and deliver to ICU Medical written notice containing OPF-US’s calculation of the excess of (i) the aggregate amount of the Pre-Closing Taxes shown as due on such Tax Returns (excluding any Flowthrough Tax Return) over (ii) the amount of Pre-Closing Taxes taken into account in calculating the Estimated Closing Payment (such calculation, the “Tax Adjustment Calculation”
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and such amount, the “Tax Adjustment Amount”). The provisions set forth in Sections 1.3(c)-(e) shall apply 在必要的情况下改变一些事项 根据本第4.8(f)条最终确定的税务调整金额如为正数,则ICU医疗应在确认最终税务调整金额后的五(5)个工作日内,通过电汇将该金额支付给OPF-US,支付资金即时到账,支付至OPF-US指定的银行账户。如果根据本第4.8(f)条最终确定的税务调整金额为负数,则OPF-US应在确认最终税务调整金额后的五(5)个工作日内,通过电汇将该金额支付给ICU医疗,支付资金即时到账,支付至ICU医疗指定的银行账户。在公司的财务状况定义中未将Closing Date当日的税收资产纳入债务或净流动资产以抵消税务责任时,以及公司(i)能够利用该税收资产抵消Closing Date之后的一个纳税期内的税款,或(ii)与该税收资产相关获得税务退款时,公司应及时将该金额的60%在利用该税收资产或获得税务退款后的十五(15)天内支付给ICU医疗。
8.1陈述、担保和合约的存续;赔偿程序. ICU医疗实体做出的陈述和保证 Section 2 和OPF-US做出的 Section 3 将在结束之日起二十四(24)个月内持续生效;前提是ICU医疗实体在(i) 第2.1节 (正式组织;权限;协议的约束力;单位) 第2.11(a)节 (非违反; 同意) (仅适用第(i)和(iii)款) 第2.16节 (没有经纪人) 将在结束之日起六(6)年内保持有效,而第(ii)款 第2.15节 (税收) 将在适用诉讼时效届满后六十(60)天之内保持有效(统称为第(i)和(ii)款的陈述和保证,"基本陈述") 本协议中包含的契约和协议将持续有效,直至根据其条款执行完毕,但不得根据 第8条规定要求获得赔偿的权利 in respect of any indemnification claim based upon any breach of a covenant or agreement shall be affected by the expiration of such covenant or agreement. If a Claim Notice (as defined below) is given to the appropriate party on or prior to the expiration of the applicable survival period, then, notwithstanding anything to the contrary contained in this Section 8.1, such survival period shall not expire, but rather shall remain in full force and effect until such time as such indemnification claims has been fully and finally resolved.
(b)An Indemnitee shall give written notice (a “索赔通知”) to the indemnifying party of any indemnification claim made by or on behalf of any Indemnitee, reasonably promptly, but in any event, if such indemnification claim relates to the assertion against an Indemnitee of any third party claim, within fifteen (15) days after receipt by such Indemnitee of written notice of a Proceeding relating to such third party claim, except that the failure to so notify the indemnifying party within such time period shall not relieve the
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indemnifying party of any obligation or liability to the Indemnitee, except to the extent that the indemnifying party demonstrates that its ability to resolve such indemnification claim is materially and adversely affected thereby. The Claim Notice will specify in reasonable detail (based on the information then-possessed by the Indemnitee) the nature of the indemnification claim and the amount of Damages associated therewith, if known, and otherwise a reasonable estimate of the amount of the anticipated Damages associated therewith, if capable of being estimated.
(c)Unless the indemnifying party contests the indemnification claim in writing delivered to the Indemnitee within thirty (30) days after receipt of a Claim Notice and describing in reasonable detail the basis for contesting the indemnification claim, the Indemnitee shall, subject to the other terms of Section 8, be paid the amount of Damages related to such indemnification claim or the uncontested portion thereof. If the indemnifying party has delivered a timely written notice disputing an indemnification claim, then the Indemnitee and the indemnifying party shall attempt in good faith for a thirty (30)-day period following the Indemnitee’s receipt of such written notice to resolve such disputed indemnification claim. Any disputed indemnification claim shall be resolved either (i) in a written agreement signed by the indemnifying party and the Indemnitee or (ii) in accordance with 第10.16节.
(b)ICU Medical不需要根据第(i)款进行任何赔偿支付 第8.2(a)条 (other than with respect to Fundamental Representations) (i) for any individual claim for Damages not exceeding $50,000 and (ii) until such time as the total amount of all Damages (including the Damages arising from such breach and all other
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Damages arising from any other breaches of any representations or warranties) that have been suffered or incurred by the Company Indemnitees and the OPF-US Indemnitees exceeds $3,000,000, in which case the Company Indemnitees and the OPF-US Indemnitees shall be entitled to be indemnified against and compensated and reimbursed only for that portion of such Damages that exceed $3,000,000. The total amount of Damages which ICU Medical shall be obligated to pay to the Company Indemnitees or ICU Medical Indemnitees pursuant to clause (i) of Section 8.2(a) of this Agreement (other than with respect to Fundamental Representations) shall not exceed $24,000,000 in the aggregate, and the total amount of Damages which ICU Medical shall be obligated to pay to the Company Indemnitees or ICU Medical Indemnitees with respect to Fundamental Representations pursuant to clause (i) of Section 8.2(a) of this Agreement shall not exceed $300,000,000; provided, however任何OPF-US受赔偿方或任何公司受赔偿方可就上述限制所不限制的损害赔偿进行追偿 第8.2(a)(ii)条款 或 Section 第8.2(a)(iii)条款或者在欺诈情况下。
(a)From and after the date of this Agreement, OPF-US shall hold harmless and indemnify the ICU Medical Indemnitees from and against, and shall compensate and reimburse the ICU Medical Indemnitees for, any Damages that are suffered or incurred, directly or indirectly, by the ICU Medical Indemnitees (regardless of whether or not such Damages relate to any third‑party claim) that arise from:
(i)any breach of any of the representations or warranties made by OPF-US in Section 3 of this Agreement or the failure of any such representations or warranties to be true and correct as of the Closing Date; or
(ii)any breach of any covenant or obligation of OPF-US contained in this Agreement.
(b)OPF-US shall not be required to make any indemnification payment pursuant to clause (i) of 第8.3 (a)条款 until such time as the total amount of all Damages (including the Damages arising from such breach and all other Damages arising from any other breaches of any representations or warranties) that have been suffered or incurred by the ICU Medical Indemnitees exceeds $3,000,000, in which case the ICU Medical Indemnitees shall be entitled to be indemnified against and compensated and reimbursed only for that portion of such Damages that exceed $3,000,000. The total amount of Damages which OPF-US shall be obligated to pay to the ICU Medical Indemnitees pursuant to clause (i) of 第8.3(a)节 不得超过总额2400万美元; 但是任何ICU Medical受益人因违反 Section 3.1,在 第8.3(a)(ii)节 或者在欺诈事件中,上述限制不会以任何方式限制任何ICU Medical受益人可以获得的损害赔偿。
“Material Adverse Effect” means (i) a material adverse effect on the results of operations or condition (financial or otherwise) of the Business taken as a whole or (ii) a material adverse effect on the ability of ICU Medical or its Affiliates to consummate the Transactions or perform their obligations under this Agreement or any of the other Transaction Agreements; 提供的例外是, that none of the following matters shall be deemed, either alone or in combination, to constitute, or be taken into account in determining the occurrence or existence of, a Material Adverse Effect, unless, in the case of clauses (a), (b) and (g), they disproportionately affect the Business as compared to other similarly situated Persons or businesses that operate in the industry in which the Business operates, but only to the extent of such disproportionate effect: (a) any adverse change or effect that is the result of any war, riot, act of terrorism, revolution, civil commotion, act of public enemies, embargo or any adverse changes that result in a general decline in the economy or financial markets or any conditions generally affecting the industry in which the Business operates or competes, (b) earthquakes, hurricanes, tsunamis, typhoons, lightning, hail storms, blizzards, tornadoes, droughts, floods, cyclones, arctic frosts, mudslides and wildfires, pandemics (including SARS-CoV-2 or COVID-19, and any evolutions or mutations thereof or related or associated epidemics, pandemics or disease outbreaks (“COVID-19”)), epidemics or other outbreaks of diseases, weather developments or other natural or manmade disasters, acts of God or force majeure events (or the escalation or worsening of any such events or occurrences), (c) any failure of the financial or operating performance of ICU
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Medical, or the Business to meet internal, OPF-US or analyst projections, forecasts or budgets for any period (provided that this clause (c) shall not be construed as implying that ICU Medical is making any representation or warranty herein with respect to any internal, OPF-US or analyst projections, forecasts or budgets and no such representations or warranties are being made), (d) any adverse change or effect resulting from or arising out of actions ICU Medical or its Affiliates are expressly required to take or prohibited from taking under this Agreement or that ICU Medical or any of its Affiliates takes at the written request of OPF-US or its Affiliates, (f) any adverse effect solely attributable to the announcement or pendency of the Transactions, including the loss of customers, suppliers, vendors or employees as a result thereof, or (g) any change or proposed change to Legal Requirements applicable to the Business.
“允许的抵押权“担保”指:(i) 有关税收的担保 (x)尚未到期和应付的或 (y)正在通过适当程序诚实争议的,并且在中期财务信息的资产负债表上已设立充足准备金的;(ii) 与区域规划、建筑法规、土地使用、规划、资格或类似法律有关的抵押,只要它们在合法影响捐赠资产时依法使用和运营的适用房地产上生效,且不会对适用房地产的价值产生重大减值的;(iii) 关于出租设备的抵押,根据捐赠资产中包含的任何设备租赁的明确条款产生的;(iv) 在《由First American Title Insurance Company准备的标明GF No. NCS-1228760-AUSt,并于2024年8月8日日期的某个产权报告中详细列明的褒奖、契约、条款、过路权、限制和其他类似担保一览》上所述。
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协议,租金和租约转让以及固定装置备案日期为2022年4月6日,并记录在得克萨斯州特拉维斯县的土地记录中,编号为2022064448的工具,这不构成允许的负担),以及First American Title Insurance Company准备的特定Title Report,标识为GF No. NCS-1228759-AUSt,日期为2024年8月8日,每种情况均合法影响贡献资产,以及(v)由OPF-US或其继承人,关联公司和受让人创建的负担。