EXCLUSIVITY AGREEMENT
May 20, 2024
This EXCLUSIVITY AGREEMENT (this "Agreement") is made and entered into as of May 20, 2024 (the "Effective Date"), by and between:
SOLSTICE BIOMEDICAL DEVICES LTD., a private limited company organized and existing under the laws of Ireland (Companies Registration Office Number 648217), with its registered office at Solstice House, 14 Fitzwilliam Place, Dublin 2, D02 YF82, Ireland ("Solstice" or the "Potential Buyer");
and
MERIDIAN SURGICAL TECHNOLOGIES, INC., a corporation organized and existing under the laws of the State of Delaware (Delaware Division of Corporations File Number 5819734), with its principal offices at 780 Keystone Boulevard, Suite 200, King of Prussia, Pennsylvania 19406 (the "Company").
Solstice and the Company are each individually referred to herein as a "Party" and collectively as the "Parties."
RECITALS
WHEREAS, Solstice is a global medical devices and biotechnology company engaged in the development, manufacture, and worldwide distribution of surgical devices, implantable biomedical devices, and biotech-enabled therapeutic platforms, with approximate consolidated annual revenue of three billion one hundred million U.S. dollars ($3,100,000,000) for the fiscal year ended December 31, 2023 ("FY2023"), and maintains operations across North America, Europe, the Middle East, and the Asia-Pacific region;
WHEREAS, the Company is engaged in the design, development, manufacture, and commercialization of minimally invasive surgical instruments for orthopedic procedures, including proprietary single-use arthroscopic blades, powered shaver systems, and related disposables, and is actively developing a robotic-assisted arthroscopy platform currently known internally as "ArthroNav," which platform is expected to enter first-in-human clinical testing in the second half of calendar year 2025;
WHEREAS, Solstice desires to explore and negotiate a potential acquisition of one hundred percent (100%) of the issued and outstanding capital stock of the Company (on a fully diluted basis, including shares issuable upon exercise of outstanding options and warrants) in a stock purchase transaction (the "Proposed Transaction"), at an anticipated aggregate base purchase price of approximately two hundred twenty million U.S. dollars ($220,000,000) in cash, subject in all respects to further negotiation, due diligence, and execution of definitive documentation;
WHEREAS, in connection with the evaluation and negotiation of the Proposed Transaction, the Company will provide Solstice and its advisors with access to confidential and proprietary information, business records, financial data, intellectual property records, regulatory filings, and key members of the Company's management team, in order for Solstice to conduct customary confirmatory due diligence;
WHEREAS, as a material condition to Solstice's willingness to devote substantial time, resources, and expense to the evaluation, due diligence, and negotiation of the Proposed Transaction, Solstice has requested, and the Company has agreed to provide, an exclusive negotiation period during which the Company will not solicit, entertain, or engage in discussions regarding alternative acquisition proposals, on the terms and subject to the conditions set forth herein;
WHEREAS, the Parties have previously entered into that certain Mutual Non-Disclosure Agreement, dated as of March 8, 2024 (the "Confidentiality Agreement"), which Confidentiality Agreement shall remain in full force and effect in accordance with its terms and is hereby incorporated by reference to the extent applicable; and
WHEREAS, the Parties now desire to memorialize their respective obligations during the exclusivity period contemplated herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth, the substantial time and resources to be devoted by Solstice to the evaluation and negotiation of the Proposed Transaction, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
SECTION 1: DEFINITIONS
As used in this Agreement, the following terms shall have the meanings set forth below:
1.1 "Acquisition Proposal" shall mean any proposal, offer, indication of interest, term sheet, letter of intent, or inquiry (whether written or oral, and whether or not solicited) from any Person (other than Solstice or any of its Affiliates) relating to (i) any merger, consolidation, share exchange, business combination, recapitalization, reorganization, or similar transaction involving the Company, (ii) any acquisition, directly or indirectly, of twenty percent (20%) or more of the consolidated total assets of the Company and its subsidiaries (based on fair market value as of the date of such proposal), (iii) any acquisition, directly or indirectly, of twenty percent (20%) or more of any class of equity securities or voting power of the Company, whether through purchase, subscription, exchange, or otherwise, (iv) any tender offer or exchange offer that, if consummated, would result in any Person beneficially owning (within the meaning of Section 13(d) of the Securities Exchange Act of 1934, as amended) twenty percent (20%) or more of any class of equity securities or voting power of the Company, or (v) any other transaction or series of related transactions that is similar in form, substance, or effect to any of the foregoing.
1.2 "Affiliate" shall mean, with respect to any Person, any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with such Person. For purposes of this definition, "control" (including, with correlative meanings, the terms "controlled by" and "under common control with") means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise, and shall be interpreted in accordance with the General Corporation Law of the State of Delaware.
1.3 "Company Board" shall mean the Board of Directors of the Company, as constituted from time to time, which as of the date hereof consists of Dr. Marcus Ellsworth (Chairman), Catherine Pryor, Gregory Ashford, and Diana Whitfield, serving as directors, together with any observers entitled to attend meetings of the Company Board, including Samuel Nakamura, a designee of Arch Hill Ventures Fund II, LLC, who serves as a board observer pursuant to the terms of the Amended and Restated Stockholders Agreement of the Company.
1.4 "Company Stockholders" shall mean all holders of outstanding shares of capital stock of the Company (including common stock and any preferred stock) as of the date hereof, including the following:
(a) Dr. Marcus Ellsworth, individually holding approximately thirty-eight and two-tenths percent (38.2%) of the issued and outstanding capital stock of the Company;
(b) Pennfield Growth Partners, LP, a Delaware limited partnership, holding approximately thirty percent (30.0%) of the issued and outstanding capital stock of the Company;
(c) Arch Hill Ventures Fund II, LLC, a Delaware limited liability company, holding approximately twenty percent (20.0%) of the issued and outstanding capital stock of the Company;
(d) Catherine Pryor, individually holding approximately five percent (5.0%) of the issued and outstanding capital stock of the Company; and
(e) other members of the Company's management team and employees holding, in the aggregate, approximately six and eight-tenths percent (6.8%) of the issued and outstanding capital stock of the Company,
together with holders of vested and unvested options to purchase shares of the Company's common stock granted under the Meridian Surgical Technologies, Inc. 2019 Equity Incentive Plan (under which 550,000 shares of common stock have been reserved for issuance).
1.5 "Exclusivity Period" shall mean the period commencing on the Effective Date (May 20, 2024) and ending on the earliest to occur of:
(a) 11:59 p.m. Eastern Time on August 23, 2024 (the "Initial Expiration Date"), which date represents a period of ninety-five (95) calendar days from the Effective Date;
(b) the date of execution and delivery by all parties thereto of a definitive Stock Purchase Agreement for the Proposed Transaction;
(c) the date on which Solstice delivers written notice to the Company that Solstice has terminated negotiations regarding the Proposed Transaction in accordance with Section 7; or
(d) such later date as the Parties may mutually agree in writing pursuant to Section 6 hereof.
1.6 "Person" shall mean any individual, corporation (including any non-profit corporation), limited liability company, general or limited partnership, joint venture, association, trust, estate, unincorporated organization, or other entity or organization of any kind, including any governmental authority, department, agency, commission, bureau, or instrumentality thereof.
1.7 "Representatives" shall mean, with respect to any Party, such Party's directors, officers, employees, agents, financial advisors, legal counsel, accountants, consultants, and other advisors and representatives acting on behalf of or at the direction of such Party. Without limiting the generality of the foregoing:
(a) With respect to Solstice, "Representatives" includes Calderwood & Harkness LLP (buyer's legal counsel), Bancroft Sloane & Co., LLC (financial advisor), and Brindoval & Albright LLP (tax advisor), together with any other advisors retained by Solstice in connection with the Proposed Transaction from time to time; and
(b) With respect to the Company, "Representatives" includes Whitmore Crane & Pfeiffer LLP (legal counsel to the Company), Dunfield & Associates, P.C. (the Company's independent auditors), and any other advisors retained by or on behalf of the Company or any of the Company Stockholders in connection with the Proposed Transaction from time to time.
SECTION 2: EXCLUSIVITY COVENANT
2.1 Company's Exclusivity Obligations. During the Exclusivity Period, the Company shall not, and shall cause its officers, directors, employees, stockholders (to the extent within the Company's control), and Representatives not to, directly or indirectly:
(a) solicit, initiate, facilitate, knowingly encourage, or induce the making, submission, or announcement of any Acquisition Proposal, including by way of furnishing information, providing access to the Company's properties or records, or making available any officer, director, or employee of the Company for the purpose of encouraging or facilitating an Acquisition Proposal;
(b) participate or engage in any discussions or negotiations with, furnish any non-public information relating to the Company or its business, operations, financial condition, assets, liabilities, technology, or intellectual property to, or afford access to the business, properties, assets, books, records, or personnel of the Company to, any Person (other than Solstice and its Representatives) in connection with, in furtherance of, or for the purpose of encouraging or facilitating any Acquisition Proposal;
(c) approve, execute, enter into, or consummate any letter of intent, memorandum of understanding, term sheet, merger agreement, acquisition agreement, stock purchase agreement, asset purchase agreement, joint venture agreement, or any other agreement, arrangement, or understanding (whether binding or non-binding) relating to or contemplating any Acquisition Proposal; or
(d) otherwise cooperate with, assist, or participate in, or knowingly facilitate or encourage any effort or attempt by any Person (other than Solstice and its Representatives) to make, submit, or consummate any Acquisition Proposal.
For the avoidance of doubt, the restrictions set forth in this Section 2.1 shall apply to any actions taken by or on behalf of the Company, any member of the Company Board, any Company Stockholder (in its capacity as a stockholder of the Company), or any Representative of the Company, whether acting in such Person's individual capacity, in a fiduciary capacity, or otherwise.
2.2 Cessation of Existing Discussions. The Company hereby represents and warrants to Solstice that, as of the Effective Date:
(a) the Company has ceased and terminated any and all existing discussions, negotiations, and communications with any Person (other than Solstice and its Representatives) with respect to, or that could reasonably be expected to lead to, any Acquisition Proposal, and has informed any such Person that the Company is no longer able to continue such discussions, negotiations, or communications;
(b) the Company has requested in writing the prompt return or destruction of all confidential and proprietary information of the Company (including all copies, summaries, analyses, and compilations thereof) previously provided to any such Person or its representatives in connection with any potential Acquisition Proposal, in accordance with the terms of any applicable confidentiality or non-disclosure agreements; and
(c) the Company has terminated and revoked access to any physical or electronic data rooms, document repositories, management presentations, or other information-sharing facilities that were made available to any such Person or its representatives in connection with any potential Acquisition Proposal.
2.3 Notification Obligation. During the Exclusivity Period, the Company shall promptly, and in any event within forty-eight (48) hours, notify Solstice in writing (which notice may be delivered by email to the persons designated in Section 12 hereof) if the Company or any of its directors, officers, employees, stockholders, or Representatives receives, becomes aware of, or is contacted with respect to:
(a) any Acquisition Proposal, whether solicited or unsolicited;
(b) any request for non-public information relating to the Company or its business, operations, financial condition, assets, liabilities, technology, or intellectual property by any Person (other than Solstice or its Representatives) that could reasonably be expected to lead to or be in connection with an Acquisition Proposal; or
(c) any inquiry, expression of interest, or request for discussions or negotiations that could reasonably be expected to lead to an Acquisition Proposal.
Each such notification shall include the identity of the Person making or submitting such Acquisition Proposal, inquiry, or request, the material terms and conditions thereof (including any proposed purchase price, form of consideration, and structure), and copies of any written proposals, term sheets, or other materials received by the Company in connection therewith (to the extent permitted by applicable law and any pre-existing contractual obligations, provided that the Company shall use reasonable best efforts to obtain the consent of any relevant counterparty to provide such materials to Solstice). The Company shall keep Solstice reasonably informed of any material developments with respect to any such Acquisition Proposal, inquiry, or request.
2.4 Stockholder Obligations. The Company shall use its reasonable best efforts to cause each of the Company Stockholders, including without limitation Pennfield Growth Partners, LP and Arch Hill Ventures Fund II, LLC (each in its respective capacity as a stockholder of the Company), and their respective directors, officers, partners, members, managers, employees, agents, and other Representatives, to comply with the exclusivity obligations and restrictions set forth in this Section 2 as if each such Company Stockholder were directly bound hereby. Without limiting the foregoing, the Company shall promptly (and in any event within two (2) business days of the Effective Date) advise each member of the Company Board and each board observer of the existence and terms of this Agreement and the obligations of the Company and the Company Stockholders hereunder. The Company shall take all actions reasonably necessary to enforce compliance with the foregoing, including by providing written notice to each Company Stockholder holding five percent (5%) or more of the outstanding capital stock of the Company of the exclusivity obligations set forth in this Section 2 and the consequences of any breach thereof.
SECTION 3: ACCESS AND COOPERATION; DUE DILIGENCE
3.1 Due Diligence Access. During the Exclusivity Period, the Company shall, and shall cause its officers, employees, and Representatives to, provide Solstice and its Representatives with reasonable access to the following, in each case for the purpose of conducting customary legal, financial, tax, commercial, operational, regulatory, environmental, intellectual property, and other due diligence in connection with Solstice's evaluation of the Proposed Transaction:
(a) Properties and Facilities. The Company's properties, facilities, and offices, including the Company's principal office at 780 Keystone Boulevard, Suite 200, King of Prussia, Pennsylvania 19406, and the Company's manufacturing and assembly facility located at 45 Forge Creek Road, Exton, Pennsylvania 19341, together with any leased warehouse, storage, or laboratory space utilized by the Company in its business operations.
(b) Management and Personnel. The Company's management team and key employees, including without limitation Dr. Marcus Ellsworth (Chief Executive Officer), Catherine Pryor (President and Chief Operating Officer), David Hensley (Chief Financial Officer), Dr. Raj Subramanian (Chief Technology Officer), and Linda Fontaine (Vice President, Quality & Regulatory Compliance), and such other personnel as Solstice may reasonably request, for purposes of conducting management interviews, operational reviews, and diligence discussions.
(c) Books, Records, and Information. The Company's books and records, financial statements (including audited and unaudited financial statements), tax returns, material contracts, customer and supplier agreements, intellectual property records (including patents, patent applications, and trade secret documentation relating to the ArthroNav platform and other proprietary technologies), regulatory filings and correspondence (including FDA 510(k) clearances, quality system records, and any pending or contemplated premarket submissions), litigation files, insurance policies, employee benefit plans, real property leases, and such other documents, data, and information as Solstice or its Representatives may reasonably request in connection with the evaluation of the Proposed Transaction.
All such access shall be provided during normal business hours and upon reasonable advance notice (which shall be no less than two (2) business days' written or email notice, except in exigent circumstances where shorter notice may be mutually agreed). All access to and use of confidential information of the Company obtained through such due diligence shall be subject to the terms and conditions of the Confidentiality Agreement.
The Company shall use commercially reasonable efforts to establish, populate, and maintain a virtual data room (hosted by a reputable third-party data room provider) for the purpose of making available documents and information responsive to the due diligence requests of Solstice and its Representatives. The Company shall use commercially reasonable efforts to respond promptly and substantively to written diligence requests submitted by Calderwood & Harkness LLP or other Solstice Representatives, and shall designate David Hensley (Chief Financial Officer) and Linda Fontaine (Vice President, Quality & Regulatory Compliance) as the primary points of contact for purposes of coordinating the due diligence process on behalf of the Company. Solstice agrees that it and its Representatives shall conduct due diligence in a manner that does not unreasonably interfere with the normal business operations of the Company.
3.2 Good Faith Negotiation. During the Exclusivity Period, the Parties shall negotiate diligently and in good faith the terms and conditions of a definitive Stock Purchase Agreement and related ancillary agreements for the Proposed Transaction, including without limitation any employment or consulting agreements, escrow agreements, transition services agreements, stockholder support agreements, and any other agreements reasonably necessary or customary for a transaction of the type contemplated hereby. The Parties hereby acknowledge the preliminary due diligence request list circulated by Calderwood & Harkness LLP to Whitmore Crane & Pfeiffer LLP and the Company, dated May 13, 2024 (the "Diligence Request List"), and the Company agrees to cooperate in good faith in responding to the items set forth therein and any supplemental requests. Each Party shall cause its respective legal counsel and financial advisors to work cooperatively and in a timely manner to advance the drafting, negotiation, and finalization of the definitive documentation contemplated hereby. The Parties acknowledge and agree that, as of the date hereof, the targeted timeline for execution of a definitive Stock Purchase Agreement is on or before the Initial Expiration Date, subject in all respects to the satisfactory completion of due diligence and agreement on definitive terms.
SECTION 4: NON-BINDING NATURE OF PROPOSED TRANSACTION
4.1 No Binding Obligation to Consummate. Notwithstanding anything in this Agreement to the contrary, this Agreement does not constitute, and shall not be deemed to constitute, a binding commitment, obligation, or agreement of either Party (or any of their respective Affiliates, stockholders, or Representatives) to consummate the Proposed Transaction or to enter into a definitive Stock Purchase Agreement or any other agreement relating to the Proposed Transaction. Neither Party shall have any obligation to consummate the Proposed Transaction, or any liability to the other Party for failing to consummate the Proposed Transaction, unless and until a definitive Stock Purchase Agreement has been executed and delivered by all parties thereto in accordance with its terms. The specific terms and conditions of the Proposed Transaction, including without limitation the final purchase price, any earnout or contingent consideration mechanisms, working capital adjustment provisions, indemnification provisions and limitations, escrow arrangements and holdback amounts, representations and warranties, pre-closing covenants, closing conditions (including any required regulatory approvals), and post-closing obligations, remain subject to negotiation and mutual agreement of the Parties and their respective advisors.
4.2 Reservation of Rights. Except for the specific binding obligations of the Parties expressly set forth in Section 2 (Exclusivity Covenant), Section 3 (Access and Cooperation; Due Diligence), Section 5 (Confidentiality), Section 7 (Termination), Section 8 (Remedies), Section 9 (Expenses), Section 10 (Governing Law; Jurisdiction; Waiver of Jury Trial), Section 11 (Miscellaneous Provisions), and Section 12 (Notices), each of which is intended to be and shall be a binding and enforceable obligation of the Parties, this Agreement is non-binding and shall not create any obligations of the Parties with respect to the Proposed Transaction or any related matter. Each Party expressly reserves all of its rights, privileges, and defenses under applicable law, and nothing in this Agreement shall be construed as creating, or shall be deemed to create, any fiduciary duty, duty of loyalty, duty of care, or similar duty (whether at law or in equity) of either Party to the other Party, any stockholder, or any other Person in connection with the Proposed Transaction or otherwise.
SECTION 5: CONFIDENTIALITY
5.1 All information (whether written, oral, electronic, or otherwise) exchanged between the Parties or their respective Representatives in connection with this Agreement, the Proposed Transaction, or the due diligence contemplated hereby shall be deemed "Confidential Information" (as such term is defined in the Confidentiality Agreement) and shall be subject to the terms and conditions of the Confidentiality Agreement, which is hereby incorporated by reference.
5.2 Without limiting the foregoing, the existence of this Agreement, the identity of the Parties hereto, the nature and terms of the Proposed Transaction (including the anticipated purchase price), the status of negotiations, and the substance of any discussions between the Parties or their respective Representatives shall be treated as Confidential Information under the Confidentiality Agreement and shall not be disclosed by either Party to any Person (other than such Party's respective Representatives who have a need to know and who are bound by obligations of confidentiality no less protective than those set forth in the Confidentiality Agreement) without the prior written consent of the other Party, except to the extent that disclosure is required by applicable law, regulation, legal process, or the rules of any applicable stock exchange, in which case the disclosing Party shall, to the extent legally permissible and practicable, provide the other Party with prompt written notice of such required disclosure and cooperate with the other Party in seeking a protective order or other appropriate remedy to limit or prevent such disclosure.
5.3 Each Party shall inform its Representatives who receive Confidential Information of the confidential nature of such information and the terms and obligations of this Agreement and the Confidentiality Agreement, and shall be responsible for any breach of confidentiality obligations by its Representatives.
SECTION 6: EXTENSION OF EXCLUSIVITY PERIOD
6.1 The Exclusivity Period may be extended beyond the Initial Expiration Date of August 23, 2024 by mutual written agreement of the Parties, signed by a duly authorized officer or representative of each Party.
6.2 Either Party may request in writing an extension of the Exclusivity Period no later than five (5) business days prior to the then-current expiration date of the Exclusivity Period (as may have been previously extended). Any such request shall specify the proposed duration of the extension and the reasons for the extension. The other Party shall respond to any such request within three (3) business days of receipt thereof.
6.3 Any extension of the Exclusivity Period shall be on such terms, conditions, and for such duration as the Parties may mutually agree in writing, and shall be documented by a written amendment or letter agreement signed by both Parties. For the avoidance of doubt, neither Party shall have any obligation to agree to any extension of the Exclusivity Period, and the failure to agree upon an extension shall not constitute a breach of this Agreement by either Party.
SECTION 7: TERMINATION
7.1 Termination Events. This Agreement shall automatically terminate, without any further action by either Party, upon the earliest to occur of:
(a) the expiration of the Exclusivity Period (as the same may be extended in accordance with Section 6 hereof), without the execution and delivery of a definitive Stock Purchase Agreement;
(b) the execution and delivery of a definitive Stock Purchase Agreement between the Parties (or their respective designees or Affiliates) with respect to the Proposed Transaction;
(c) the delivery by Solstice of written notice to the Company that Solstice has elected to terminate negotiations regarding the Proposed Transaction, such notice to be effective upon delivery in accordance with Section 12 hereof; or
(d) the delivery by the Company of written notice to Solstice that the Company has elected to terminate negotiations regarding the Proposed Transaction, such notice to be effective upon delivery in accordance with Section 12 hereof; provided, however, that such termination by the Company shall not relieve the Company of any liability for any breach of this Agreement (including any breach of the exclusivity obligations set forth in Section 2) occurring prior to the effective date of such termination.
7.2 Effect of Termination. Upon termination of this Agreement in accordance with Section 7.1:
(a) This Agreement shall be of no further force and effect, and the rights and obligations of the Parties hereunder shall terminate, except that:
(i) Section 5 (Confidentiality), Section 8 (Remedies), Section 9 (Expenses), Section 10 (Governing Law; Jurisdiction; Waiver of Jury Trial), Section 11 (Miscellaneous Provisions), and Section 12 (Notices) shall survive termination of this Agreement and shall continue in full force and effect in accordance with their respective terms;
(ii) the Confidentiality Agreement shall remain in full force and effect in accordance with its terms, and the obligations of the Parties thereunder shall not be affected by the termination of this Agreement; and
(iii) no Party shall be relieved of any liability for any breach of this Agreement that occurred prior to the effective date of termination, and the terminating Party's rights and remedies with respect to any such pre-termination breach shall survive termination.
SECTION 8: REMEDIES
8.1 Each Party acknowledges and agrees that the covenants and obligations of the Company set forth in Section 2 (Exclusivity Covenant) are reasonable and necessary to protect the legitimate interests of Solstice, and that a breach by the Company (or any of its directors, officers, employees, stockholders, or Representatives) of any of the exclusivity covenants or obligations contained in Section 2 would cause immediate and irreparable harm and injury to Solstice for which monetary damages would be an inadequate remedy.
8.2 Accordingly, in the event of an actual or threatened breach of any provision of Section 2 by the Company or any Person subject to the restrictions thereof, Solstice shall be entitled to seek and obtain specific performance, temporary and permanent injunctive relief, and any other equitable remedy as may be appropriate to restrain or prevent any such breach or threatened breach, in addition to any and all other remedies available to Solstice at law or in equity, without the necessity of (a) proving actual damages or the inadequacy of monetary damages, (b) posting any bond, surety, or other security, or (c) giving notice or satisfying any other condition precedent to the issuance of such relief, to the maximum extent permitted by applicable law. The Company hereby waives any requirement for the posting of any bond or other security in connection with any such proceeding.
8.3 The remedies set forth in this Section 8 shall not be deemed to be the exclusive remedies for any breach or threatened breach of this Agreement but shall be in addition to all other rights and remedies available to Solstice at law or in equity, including the right to recover monetary damages for any breach hereof. No exercise of any right or remedy hereunder shall be deemed to be an election of remedies or a waiver of any other right or remedy.
SECTION 9: EXPENSES
9.1 Each Party shall be solely responsible for and shall bear all of its own costs and expenses (including without limitation the fees and disbursements of its legal counsel, financial advisors, accountants, consultants, and other advisors and representatives) incurred in connection with this Agreement, the Proposed Transaction, and the due diligence, evaluation, negotiation, and documentation contemplated hereby, whether or not the Proposed Transaction is ultimately consummated.
9.2 For the avoidance of doubt, there shall be no break-up fee, termination fee, expense reimbursement obligation, or similar payment payable by either Party to the other Party under this Agreement, whether upon termination of this Agreement, termination of negotiations, or failure to consummate the Proposed Transaction, regardless of the reason therefor.
SECTION 10: GOVERNING LAW; JURISDICTION; WAIVER OF JURY TRIAL
10.1 Governing Law. This Agreement shall be governed by, and construed and enforced in accordance with, the internal laws of the State of Delaware, without giving effect to any choice or conflict of laws provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.
10.2 Jurisdiction. Each Party hereby irrevocably and unconditionally submits to the exclusive jurisdiction of the Court of Chancery of the State of Delaware (or, in the event that the Court of Chancery declines to accept jurisdiction over a particular matter, the Superior Court of the State of Delaware or the United States District Court for the District of Delaware) for any action, suit, or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby, and each Party irrevocably waives, and agrees not to assert, by way of motion, defense, counterclaim, or otherwise, any claim (a) that it is not personally subject to the jurisdiction of such courts, (b) that such action, suit, or proceeding is brought in an inconvenient forum, or (c) that the venue of such action, suit, or proceeding is improper. Each Party agrees that service of process in any such action, suit, or proceeding may be made by delivery of a copy thereof in accordance with the notice provisions set forth in Section 12 hereof, without prejudice to the right of any Party to serve process in any other manner permitted by applicable law.
10.3 Waiver of Jury Trial. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING, CLAIM, OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT, OR ATTORNEY OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) EACH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS CONTAINED IN THIS SECTION 10.3.
SECTION 11: MISCELLANEOUS PROVISIONS
11.1 Entire Agreement. This Agreement, together with the Confidentiality Agreement, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes and replaces all prior and contemporaneous discussions, negotiations, understandings, proposals, term sheets, letters of intent, agreements, and communications (whether written or oral) between the Parties with respect to such subject matter. No representation, warranty, inducement, promise, or understanding of any kind not expressly set forth in this Agreement has been made by either Party or relied upon by either Party in entering into this Agreement.
11.2 Amendments and Waivers. No amendment, modification, supplement, or waiver of any provision of this Agreement shall be valid or effective unless made in writing and signed by duly authorized representatives of both Parties. No waiver by either Party of any breach or default of any provision of this Agreement shall be deemed a waiver of any subsequent breach or default of the same or any other provision, nor shall any delay or omission by either Party to exercise any right or remedy hereunder operate as a waiver thereof or of any other right or remedy.
11.3 Assignment. Neither Party may assign, delegate, or otherwise transfer any of its rights, interests, or obligations under this Agreement without the prior written consent of the other Party, which consent may be withheld in such Party's sole discretion; provided, however, that Solstice may, without the prior consent of the Company, assign any or all of its rights (but not its obligations) under this Agreement to any wholly owned subsidiary of Solstice, including Solstice Biomedical, Inc., a corporation organized under the laws of the State of Delaware with offices at 1200 Innovation Drive, Suite 400, Wilmington, Delaware 19801, so long as Solstice remains fully liable for all of its obligations hereunder. Any purported assignment in violation of this Section 11.3 shall be null and void and of no force or effect.
11.4 No Third-Party Beneficiaries. This Agreement is entered into solely for the benefit of the Parties hereto and their respective successors and permitted assigns. Nothing in this Agreement, express or implied, is intended to or shall confer upon any Person other than the Parties hereto (and their respective successors and permitted assigns) any right, benefit, remedy, claim, or cause of action of any kind under or by reason of this Agreement.
11.5 Severability. If any term, provision, covenant, or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, void, or unenforceable in any respect, the remaining terms, provisions, covenants, and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired, or invalidated thereby, so long as the remaining terms, provisions, covenants, and restrictions, taken as a whole, continue to reflect the essential intent of the Parties as of the date hereof. The Parties shall endeavor in good faith to replace any invalid, illegal, void, or unenforceable provision with a valid and enforceable provision that achieves, to the greatest extent possible, the economic, business, and other purposes of the invalid, illegal, void, or unenforceable provision.
11.6 Counterparts and Electronic Signatures. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Agreement by facsimile or electronic transmission (including portable document format (PDF), Brightwater Software, or other electronic signature technology) shall be effective as delivery of a manually executed counterpart and shall be legally binding upon the Party so delivering.
SECTION 12: NOTICES
All notices, requests, consents, demands, and other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given: (a) when delivered in person to the recipient, (b) when sent by nationally recognized overnight courier service (with next-business-day delivery requested and tracking confirmation), or (c) when sent by email (with confirmation of receipt by the recipient, which may include a delivery receipt, a read receipt, or a responsive email from the recipient). All notices shall be addressed as follows:
If to Solstice:
Solstice Biomedical Devices Ltd. Solstice House, 14 Fitzwilliam Place Dublin 2, D02 YF82, Ireland
Attention: Helena Byrne, EVP, Corporate Development & Strategy
Email: h.byrne@solsticebiomed.com
with a copy to:
Patrick Lennox, General Counsel & Company Secretary Solstice Biomedical Devices Ltd. Solstice House, 14 Fitzwilliam Place Dublin 2, D02 YF82, Ireland
Email: p.lennox@solsticebiomed.com
with a copy (which shall not constitute notice) to:
Calderwood & Harkness LLP 590 Lexington Avenue, 35th Floor New York, New York 10022
Attention: Beatrice Holloway, Partner
Email: bholloway@calderwoodharkness.com
If to the Company:
Meridian Surgical Technologies, Inc. 780 Keystone Boulevard, Suite 200 King of Prussia, Pennsylvania 19406
Attention: Dr. Marcus Ellsworth, Chief Executive Officer
Email: mellsworth@meridiansurgtech.com
with a copy to:
David Hensley, Chief Financial Officer Meridian Surgical Technologies, Inc. 780 Keystone Boulevard, Suite 200 King of Prussia, Pennsylvania 19406
Email: dhensley@meridiansurgtech.com
with a copy (which shall not constitute notice) to:
Whitmore Crane & Pfeiffer LLP One Liberty Place 1650 Market Street, Suite 3600 Philadelphia, Pennsylvania 19103
Attention: Jonathan Whitmore, Partner
Email: jwhitmore@whitmorecrane.com
Either Party may change the address to which notices are to be delivered by giving the other Party written notice in the manner herein set forth at least five (5) business days prior to the effective date of such change.
[Signature Page Follows]
IN WITNESS WHEREOF, the Parties have caused this Exclusivity Agreement to be executed and delivered by their respective duly authorized representatives as of the date first written above.
SOLSTICE BIOMEDICAL DEVICES LTD.
By: ________
Name: Helena Byrne
Title: Executive Vice President, Corporate Development & Strategy
Date: ________
MERIDIAN SURGICAL TECHNOLOGIES, INC.
By: ________
Name: Dr. Marcus Ellsworth
Title: Chief Executive Officer
Date: ________
(Acting with the prior approval of the Board of Directors of the Company)
This Exclusivity Agreement has been executed in two (2) counterparts as of the date first written above.