CALDERWOOD & HARKNESS LLP Attorneys at Law 590 Lexington Avenue, 35th Floor New York, New York 10022 Telephone: (212) 541-7800 Facsimile: (212) 541-7801 www.calderwoodharkness.com
MEMORANDUM
CONFIDENTIAL / ATTORNEY-CLIENT PRIVILEGED
1. Purpose and Background
This memorandum is submitted for the purpose of transmitting and compiling the certificates of good standing (and equivalent certificates of status) that have been obtained on behalf of Meridian Surgical Technologies, Inc. ("Meridian," "MST," or the "Company") in connection with the closing occurring today, October 31, 2024 (the "Closing" or the "Closing Date"), of the transactions contemplated by that certain Stock Purchase Agreement dated as of August 20, 2024 (as amended, supplemented, or otherwise modified from time to time, the "SPA"), by and among Solstice Biomedical, Inc., a Delaware corporation and an indirect wholly-owned subsidiary of Solstice Biomedical Devices Ltd. (collectively, "Buyer" or "Solstice"), the individual and institutional sellers identified on Schedule I thereto (collectively, the "Sellers"), and Dr. Marcus Ellsworth, in his capacity as the representative of the Sellers (the "Sellers' Representative").
As Patrick and Helena are aware, one of the conditions precedent to Buyer's obligation to consummate the Closing under the SPA was the delivery by the Company (or the Sellers on its behalf) of certificates of good standing, or equivalent certificates of status, from each jurisdiction in which Meridian is incorporated or organized, as well as from each jurisdiction in which Meridian is registered, qualified, or otherwise authorized to transact business as a foreign corporation. The delivery of such certificates forms a material component of the Sellers' closing deliverables, and the purpose of this memorandum is to confirm that such deliverables have been obtained and are being transmitted herewith.
By way of background, Meridian Surgical Technologies, Inc. is a corporation duly incorporated and existing under the laws of the State of Delaware, bearing Delaware Division of Corporations File Number 5819734. The Company's principal executive offices are located at 780 Keystone Boulevard, Suite 200, King of Prussia, Pennsylvania 19406, and the Company additionally maintains a manufacturing and production facility at 45 Forge Creek Road, Exton, Pennsylvania 19341. Meridian is registered and qualified to do business as a foreign corporation in the Commonwealth of Pennsylvania, where both its headquarters and its manufacturing operations are situated. As discussed more fully in Section 4 below, no additional states or foreign jurisdictions were identified during the course of due diligence as jurisdictions in which Meridian was required to be qualified or authorized to transact business.
Accordingly, certificates of good standing have been obtained from (i) the Delaware Secretary of State (with respect to Meridian's state of incorporation) and (ii) the Pennsylvania Department of State (with respect to Meridian's foreign qualification in its state of principal operations). Each certificate is described in detail below and is enclosed with this memorandum as the applicable Exhibit.
2. Enclosed Certificates
Set forth below is a summary description of each certificate of good standing enclosed with this memorandum, including the issuing authority, the entity name as reflected on the face of the certificate, the date of issuance, and the specific confirmations provided therein.
2.1 Certificate of Good Standing — State of Delaware
Issuing Authority: Office of the Secretary of State of the State of Delaware, Division of Corporations
Entity Name as Reflected on Certificate: Meridian Surgical Technologies, Inc.
Delaware File Number: 5819734
Date of Certificate: October 28, 2024
Description and Confirmation: The enclosed certificate, issued by the Delaware Secretary of State on October 28, 2024, confirms that Meridian Surgical Technologies, Inc. is a corporation duly incorporated and in good standing under the laws of the State of Delaware as of the date of such certificate. The certificate further reflects that the Company's certificate of incorporation was originally filed with the Delaware Secretary of State and that the Company has not been dissolved, merged out of existence, or otherwise terminated. In addition, the certificate confirms that all franchise taxes required to be paid by the Company to the State of Delaware have been assessed and paid through the Company's most recent annual assessment period, and that no franchise tax delinquency exists as of the date of issuance. The certificate was obtained through expedited processing by the Delaware Division of Corporations and bears the official seal and authentication of the Secretary of State.
The certificate was procured within the customary three-to-five business day window in advance of the anticipated Closing Date of October 31, 2024, in order to ensure that the certificate would be contemporaneous with, and reflective of, the Company's status as near to the Closing as practicable.
Attached as: Exhibit A to this memorandum.
2.2 Certificate of Good Standing (Certificate of Subsistence / Registration) — Commonwealth of Pennsylvania
Issuing Authority: Department of State of the Commonwealth of Pennsylvania, Bureau of Corporations and Charitable Organizations
Entity Name as Reflected on Certificate: Meridian Surgical Technologies, Inc.
Date of Certificate: October 29, 2024
Description and Confirmation: The enclosed certificate, issued by the Pennsylvania Department of State on October 29, 2024, confirms that Meridian Surgical Technologies, Inc. is a foreign corporation duly registered and authorized to transact business in the Commonwealth of Pennsylvania and that it is in good standing as of the date of such certificate. The certificate reflects that the Company has complied with all applicable registration and reporting requirements under the Pennsylvania Business Corporation Law of 1988, as amended, and that no revocation, suspension, or administrative dissolution proceedings are pending with respect to the Company's authority to do business in the Commonwealth. The certificate bears the official seal and authentication of the Secretary of the Commonwealth.
As with the Delaware certificate described in Section 2.1 above, this certificate was obtained through expedited processing within the customary timeframe in advance of the anticipated Closing Date, in order to provide the most current confirmation of good standing that was practicable to obtain prior to the Closing.
Attached as: Exhibit B to this memorandum.
3. SPA Cross-Reference
The requirement that the Company deliver certificates of good standing from each jurisdiction in which it is incorporated or qualified to do business is set forth in Article VII of the SPA, which contains the conditions precedent to Buyer's obligation to consummate the Closing. Specifically, Section 7.2(d) of the SPA provides, in relevant part, that it shall be a condition to the obligation of Buyer to consummate the transactions contemplated by the SPA that the Sellers shall have delivered, or caused to be delivered, to Buyer at or prior to the Closing:
"certificates of good standing (or the equivalent) for the Company, dated not earlier than ten (10) Business Days prior to the Closing Date, from the Secretary of State (or equivalent Governmental Authority) of (i) the Company's jurisdiction of incorporation and (ii) each other jurisdiction in which the Company is qualified, licensed, or authorized to do business as a foreign corporation."
The delivery of such certificates also serves to corroborate the representations and warranties made by the Sellers and the Company pursuant to Section 3.1 of the SPA (Organization, Good Standing, and Qualification), in which the Company represented that it is a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware, and that it is duly qualified or licensed to do business and is in good standing in each jurisdiction in which the nature of its business or the ownership or leasing of its properties makes such qualification or licensing necessary, except where the failure to be so qualified or licensed would not reasonably be expected to have a Material Adverse Effect (as defined in the SPA).
Based on the foregoing, it is our view that the certificates enclosed herewith, taken together, satisfy the condition precedent set forth in Section 7.2(d) of the SPA with respect to the delivery of good standing certificates for the Company. Both certificates are dated within ten (10) Business Days prior to the Closing Date of October 31, 2024, and collectively cover the Company's jurisdiction of incorporation (Delaware) and each jurisdiction in which the Company is qualified or authorized to transact business as a foreign corporation (Pennsylvania). No additional jurisdictions required coverage, as discussed further in Section 4 below.
4. Scope and Limitations
In connection with the delivery of the enclosed certificates, we wish to bring the following matters to your attention:
Certificates Speak as of Date of Issuance. Each certificate of good standing speaks only as of its respective date of issuance and does not purport to confirm the good standing of the Company as of any subsequent date, including the Closing Date itself. The Delaware certificate is dated October 28, 2024 (three calendar days prior to Closing), and the Pennsylvania certificate is dated October 29, 2024 (two calendar days prior to Closing). While neither certificate expressly covers the Closing Date of October 31, 2024, both were obtained sufficiently close to the Closing Date to provide reasonable assurance of the Company's continued good standing as of the Closing. This approach is consistent with customary market practice in transactions of this nature, and with the requirements of Section 7.2(d) of the SPA, which permits certificates dated not earlier than ten (10) Business Days prior to the Closing Date.
Reliance on Governmental Records. The certificates enclosed herewith have been issued by the applicable governmental authorities — the Delaware Secretary of State and the Pennsylvania Department of State, respectively — and are based solely on the records maintained by those authorities. Calderwood & Harkness LLP has reviewed each certificate and confirmed that it appears on its face to be regular and complete; however, this firm makes no independent representation or warranty regarding the accuracy, completeness, or currency of the underlying governmental records upon which the certificates are based. Our review of the certificates has been limited to confirming that they identify the correct legal entity (Meridian Surgical Technologies, Inc.), reflect the correct file or registration number, bear the appropriate governmental seal and authentication, and confirm the Company's good standing status as of the date of issuance.
Jurisdictional Scope. During the course of legal due diligence conducted in connection with the SPA, including review of the Company's corporate records, tax filings, commercial lease agreements, employee census data, and state regulatory filings, no additional states or foreign jurisdictions were identified in which Meridian was required to be qualified, licensed, or otherwise authorized to do business as a foreign corporation, beyond (i) the State of Delaware, as the Company's state of incorporation, and (ii) the Commonwealth of Pennsylvania, as the state in which the Company's principal executive offices, primary manufacturing facility, and substantially all of its employees and tangible assets are located. Accordingly, certificates of good standing have been obtained from these two jurisdictions only. Should any additional qualification requirements come to light following the Closing, we would recommend that such matters be addressed promptly in accordance with the applicable state's foreign qualification procedures, although we do not have any present basis to believe that any such additional qualifications are required.
5. Filing and Record-Keeping Instructions
In order to ensure the proper preservation and accessibility of the enclosed certificates, we respectfully recommend that the following filing and record-keeping procedures be observed:
1.  Closing Binder. Original copies of both the Delaware Certificate of Good Standing (Exhibit A) and the Pennsylvania Certificate of Good Standing (Exhibit B) should be retained in the official closing binder for the transaction. The closing binder is currently being assembled by our office, and a comprehensive Closing Binder Index and Transmittal Letter is being prepared separately and will be circulated to all parties upon completion. The certificates described herein will be indexed and tabbed in the closing binder in accordance with the order of the Sellers' closing deliverables as set forth in Article VII of the SPA.
2.  Calderwood & Harkness Matter Files. Copies of the certificates, together with this transmittal memorandum, will be maintained in Calderwood & Harkness's matter files under Matter No. 1037-00006. Electronic copies will be uploaded to the firm's secure document management system and will be available to authorized personnel upon request.
3.  Copies to Buyer. Copies of the enclosed certificates, together with this transmittal memorandum, should be forwarded promptly to:
Solstice Biomedical, Inc. 1200 Innovation Drive, Suite 400 Wilmington, Delaware 19801
Attention: Legal Department
We will coordinate with Buyer's outside counsel to ensure that copies are transmitted in a timely manner and that all closing deliverables are accounted for on both sides of the transaction.
6. Contact Information
Should you have any questions regarding the enclosed certificates of good standing, the status of any other closing deliverables, or any other matter relating to the Closing of the transactions contemplated by the SPA, please do not hesitate to contact any of the following members of the Calderwood & Harkness deal team:
Tiffany Rosenthal Lead Associate Calderwood & Harkness LLP 590 Lexington Avenue, 35th Floor New York, New York 10022 Telephone: (212) 541-7844
Email: trosenthal@calderwoodharkness.com
Natasha Grier Paralegal, Corporate Transactions Group Calderwood & Harkness LLP 590 Lexington Avenue, 35th Floor New York, New York 10022 Telephone: (212) 541-7862
Email: ngrier@calderwoodharkness.com
Beatrice Holloway Partner (Responsible Attorney) Calderwood & Harkness LLP 590 Lexington Avenue, 35th Floor New York, New York 10022 Telephone: (212) 541-7810
Email: bholloway@calderwoodharkness.com
We appreciate the opportunity to assist Solstice Biomedical Devices Ltd. and its affiliates in connection with this transaction, and we look forward to the successful completion of the remaining post-closing matters.
Respectfully submitted,
CALDERWOOD & HARKNESS LLP
By: ________
Name: Tiffany Rosenthal
Title: Lead Associate
Date: October 31, 2024
ENCLOSURES / EXHIBITS
Exhibit A: Certificate of Good Standing — Meridian Surgical Technologies, Inc. — Delaware Secretary of State (dated October 28, 2024)
Exhibit B: Certificate of Good Standing — Meridian Surgical Technologies, Inc. — Pennsylvania Department of State (dated October 29, 2024)
This memorandum and the enclosures hereto are confidential and subject to the attorney-client privilege. They are intended solely for the use of the addressees identified above and should not be disclosed, distributed, or reproduced, in whole or in part, to any third party without the prior written consent of Calderwood & Harkness LLP. If you have received this memorandum in error, please notify the sender immediately and destroy all copies in your possession.
Date: | October 31, 2024
To: | Solstice Biomedical Devices Ltd.
Attention: Patrick Lennox, General Counsel & Company Secretary
Solstice House, 14 Fitzwilliam Place
Dublin 2, D02 YF82, Ireland
and
Helena Byrne
Executive Vice President, Corporate Development & Strategy
From: | Tiffany Rosenthal, Calderwood & Harkness LLP
Re: | Certificates of Good Standing — Meridian Surgical Technologies, Inc.; Closing Deliverables in Connection with the Stock Purchase Agreement dated August 20, 2024
Matter No.: | 1037-00006