Exhibit
10.1


 


ASSET
PURCHASE AGREEMENT


 


between


 


AMERICAN MEDICAL SYSTEMS, INC.


 


and


 


CONCEPTUS,
INC.


 


Dated as of September 30,
2009


 

















 


TABLE OF
CONTENTS


 


	
   

  	
   

  	
   

  	
  PAGE

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 1
  DEFINITIONS AND TERMS

  	
   

  	
  1

  
	
  1.1

  	
  Certain Definitions

  	
   

  	
  1

  
	
  1.2

  	
  Other Terms

  	
   

  	
  5

  
	
  1.3

  	
  Other Definitional Provisions

  	
   

  	
  6

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 2
  PURCHASE AND SALE

  	
   

  	
  6

  
	
  2.1

  	
  Purchase and Sale of Conveyed Assets and Assumption of Liabilities

  	
   

  	
  6

  
	
  2.2

  	
  Purchase Price

  	
   

  	
  8

  
	
  2.3

  	
  Allocation of Purchase Price; Withholding

  	
   

  	
  8

  
	
  2.4

  	
  Closing; Delivery and Payment

  	
   

  	
  9

  
	
  2.5

  	
  License Grant

  	
   

  	
  10

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 3
  REPRESENTATIONS AND WARRANTIES OF PARENT

  	
   

  	
  10

  
	
  3.1

  	
  Organization

  	
   

  	
  10

  
	
  3.2

  	
  Authority; Binding Effect

  	
   

  	
  10

  
	
  3.3

  	
  Noncontravention

  	
   

  	
  11

  
	
  3.4

  	
  Governmental Consents and Approvals

  	
   

  	
  11

  
	
  3.5

  	
  Litigation and Claims

  	
   

  	
  11

  
	
  3.6

  	
  Compliance with Laws

  	
   

  	
  12

  
	
  3.7

  	
  Product Registrations; Regulatory Compliance

  	
   

  	
  12

  
	
  3.8

  	
  Material Contracts

  	
   

  	
  12

  
	
  3.9

  	
  Intellectual Property

  	
   

  	
  13

  
	
  3.10

  	
  Assets

  	
   

  	
  15

  
	
  3.11

  	
  Taxes

  	
   

  	
  16

  
	
  3.12

  	
  Brokers

  	
   

  	
  16

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 4
  REPRESENTATIONS AND WARRANTIES OF PURCHASER

  	
   

  	
  16

  
	
  4.1

  	
  Organization and Qualification

  	
   

  	
  16

  
	
  4.2

  	
  Corporate Authorization

  	
   

  	
  16

  
	
  4.3

  	
  Binding Effect

  	
   

  	
  16

  
	
  4.4

  	
  Noncontravention

  	
   

  	
  16

  
	
  4.5

  	
  Consents and Approvals

  	
   

  	
  17

  
	
  4.6

  	
  Brokers

  	
   

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 5
  COVENANTS AND OTHER AGREEMENTS

  	
   

  	
  17

  
	
  5.1

  	
  Further Assurances

  	
   

  	
  17

  
	
  5.2

  	
  Purchaser’s Investigation; No Additional Representations

  	
   

  	
  18

  
	
  5.3

  	
  Bulk Transfer Laws

  	
   

  	
  18

  
	
  5.4

  	
  Litigation Support

  	
   

  	
  18

  
	
  5.5

  	
  Tax Matters

  	
   

  	
  19

  
	
  5.6

  	
  Trademarks; Names

  	
   

  	
  19

  
	
  5.7

  	
  Non-Compete

  	
   

  	
  20

  
	
  5.8

  	
  Assignment and Assumption of the Settlement and License Agreement

  	
   

  	
  20

  



 


i

















 


	
  ARTICLE 6
  SURVIVAL AND INDEMNIFICATION

  	
   

  	
  21

  
	
  6.1

  	
  Survival

  	
   

  	
  21

  
	
  6.2

  	
  Indemnification by Purchaser

  	
   

  	
  21

  
	
  6.3

  	
  Indemnification by Parent

  	
   

  	
  22

  
	
  6.4

  	
  Indemnification Procedures

  	
   

  	
  22

  
	
  6.5

  	
  Exclusive Remedy; Limitation of Remedy

  	
   

  	
  24

  
	
  6.6

  	
  Characterization of Indemnification Payments

  	
   

  	
  24

  
	
  6.7

  	
  Computation of Losses Subject to Indemnification

  	
   

  	
  24

  
	
  6.8

  	
  Limitations on Liability

  	
   

  	
  24

  
	
  6.9

  	
  Mitigation

  	
   

  	
  24

  
	
  6.10

  	
  Waiver of Conditions; Indemnity

  	
   

  	
  24

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 7
  MISCELLANEOUS

  	
   

  	
  25

  
	
  7.1

  	
  Notices

  	
   

  	
  25

  
	
  7.2

  	
  Specific Performance

  	
   

  	
  26

  
	
  7.3

  	
  Amendment; Waiver

  	
   

  	
  26

  
	
  7.4

  	
  Assignment

  	
   

  	
  26

  
	
  7.5

  	
  Entire Agreement

  	
   

  	
  26

  
	
  7.6

  	
  Fulfillment of Obligations

  	
   

  	
  26

  
	
  7.7

  	
  Parties in Interest

  	
   

  	
  26

  
	
  7.8

  	
  Public Disclosure; Confidential Information

  	
   

  	
  27

  
	
  7.9

  	
  Expenses

  	
   

  	
  28

  
	
  7.10

  	
  Schedules

  	
   

  	
  28

  
	
  7.11

  	
  Governing Law

  	
   

  	
  28

  
	
  7.12

  	
  Waiver of Jury Trial

  	
   

  	
  28

  
	
  7.13

  	
  Counterparts

  	
   

  	
  29

  
	
  7.14

  	
  Headings

  	
   

  	
  29

  
	
  7.15

  	
  Severability

  	
   

  	
  29

  



 


ii

















 


List of
Schedules


 


	
  1.1(a)

  	
   

  	
  Excluded Names,
  Logo and Marks

  
	
  1.1(b)

  	
   

  	
  Other Excluded
  Assets

  
	
  1.1(c)

  	
   

  	
  Knowledge of
  Parent

  
	
  1.1(d)

  	
   

  	
  Permitted
  Encumbrances

  
	
  2.1(a)(i)

  	
   

  	
  Assumed
  Contracts

  
	
  2.1(a)(ii)

  	
   

  	
  Purchased IP
  Rights

  
	
  2.3

  	
   

  	
  Allocation of
  Purchase Price

  
	
  3.3

  	
   

  	
  Required Third
  Party Consents

  
	
  3.4

  	
   

  	
  Required
  Governmental Consents

  
	
  3.5

  	
   

  	
  Pending or
  Threatened Litigation

  
	
  3.6

  	
   

  	
  Compliance with
  Laws

  
	
  3.7

  	
   

  	
  Product
  Registrations

  
	
  3.8(a)

  	
   

  	
  Material
  Contracts

  
	
  3.9

  	
   

  	
  Intellectual
  Property

  
	
  3.11

  	
   

  	
  Taxes

  
	
  4.5

  	
   

  	
  Purchaser
  Required Governmental Consents

  



 


List of Exhibits


 


	
  A

  	
   

  	
  Form of
  Bill of Sale

  
	
  B

  	
   

  	
  Form of
  Assignment and Assumption Agreement

  



 


iii

















 


ASSET
PURCHASE AGREEMENT


 


THIS ASSET PURCHASE AGREEMENT (this “Agreement”) is dated as of September 30,
2009, by and between American Medical Systems, Inc., a Delaware
corporation (“Parent”), and Conceptus, Inc., a Delaware corporation
(“Purchaser”).


 


RECITALS:


 


WHEREAS, the Asset Selling Corporations (as defined below) own the
Conveyed Assets (as defined below); and


 


WHEREAS, the parties hereto desire that the Asset Selling Corporations
shall sell and transfer to Purchaser, and Purchaser shall purchase from the
Asset Selling Corporations all of the Conveyed Assets and assume all of the
Assumed Liabilities (as defined below), upon the terms and subject to the conditions
set forth herein;


 


AGREEMENT


 


NOW, THEREFORE, in consideration of the above recitals, which are
hereby incorporated by reference herein, of the mutual covenants and
undertakings contained herein, and subject to and on the terms and conditions
herein set forth, the parties hereto agree as follows:


 


ARTICLE 1

DEFINITIONS AND TERMS


 


1.1           Certain Definitions.  As used in
this Agreement, the following terms shall have the meanings set forth or as
referenced below:


 


“Affiliate” shall mean, with respect to any Person, any other
person directly or indirectly controlling, controlled by, or under common
control with, such Person specified.  The
term “control” as used in the immediately preceding sentence, means the
ownership of more than 50% of the shares of stock entitled to vote for the
election of directors in the case of a corporation and more than 50% of the
voting power in the case of a business entity other than a corporation.


 


“Agreement” shall mean this Agreement, as the same may be
amended or supplemented from time to time in accordance with the terms hereof,
and all Exhibits and Schedules hereto.


 


“Ancillary Agreements” shall mean the Assignment and Assumption
Agreement, Bill of Sale and the assignments of patents and trademarks delivered
by the Asset Selling Corporations at the Closing.


 


“Allocation” shall have the meaning set forth in Section 2.3
hereof.


 


“Asset Selling Corporation” shall mean, individually, Parent,
AMS Research Corporation, a Delaware corporation and Ovion Inc., a Delaware
corporation (collectively referred to herein as the “Asset Selling
Corporations”).


 


1

















 


“Assignment and Assumption Agreement” shall have the meaning set
forth in Section 2.4(b)(ii) hereof.


 


“Assumed Contracts” shall have the meaning set forth in Section 2.1(a)(i) hereof.


 


“Assumed Liabilities” shall have the meaning set forth in Section 2.1(c) hereof.


 


“Bill of Sale” shall have the meaning set forth in Section 2.4(b)(i) hereof.


 


“Claim” shall have the meaning set forth in Section 6.4
hereof.


 


“Claim Notice” shall have the meaning set forth in Section 6.4
hereof.


 


“Closing” shall mean the closing of the transactions
contemplated by this Agreement.


 


“Closing Date” shall have the meaning set forth in Section 2.4(a) hereof.


 


“Code” shall mean the United States Internal Revenue Code of
1986, as amended.


 


“Confidentiality Agreement” shall mean that certain letter
agreement regarding confidential materials, dated June 16, 2009 between
Parent and Purchaser.


 


“Contract” means any contract, agreement, license, instrument,
lease, or commitment, whether oral or written.


 


“Conveyed Assets” shall have the meaning set forth in Section 2.1(a) hereof,
it being understood that the Conveyed Assets do not include the Excluded
Assets.


 


“Disclosure Schedules” shall have the meaning set forth in the
preamble to Article 3 hereof.


 


“Excluded Assets” shall mean, with respect to any Asset Selling
Corporation, (i) all cash and cash equivalents, (ii) all intercompany
accounts receivable, (iii) all losses, loss carryforwards and rights to
receive refunds, credits and credit carryforwards with respect to any and all
Taxes, to the extent attributable to a taxable period ending on or prior to the
Closing Date, including interest thereon, (iv) its corporate books and
records, (v) all insurance recoveries due to it and relating to periods
prior to the Closing Date, (vi) all assets of any of its employee benefit
plans, (vii) the “American Medical Systems” name and logo and the other
names, logos and marks listed on Schedule 1.1(a) hereto,
(viii) stock, shares, units, interests and other ownership and/or equity
or debt securities held by an Asset Selling Corporation in another entity, (ix) control
of the attorney-client privilege with respect to any Asset Selling Corporation
or its Affiliates except as related exclusively to the Purchased IP Rights, (x) all
rights existing under all contracts to which any Asset Selling Corporation is a
party, except for any Assumed Contracts, (xi) any Asset Selling Corporation’s
rights under or pursuant to this Agreement and agreements entered into pursuant
to this Agreement, (xii) any assets listed on Schedule 1.1(b) hereto,
and (xiii) any


 


2

















 


other assets not
specifically listed and identified on Schedule 2.1(a) or
described in Section 2.1(a)(iii).


 


“Excluded Liabilities” shall have the meaning set forth in Section 2.1(d) hereof.


 


“Governmental Authority” shall mean any supranational, national,
federal, state or local judicial, legislative, executive or regulatory
authority.


 


“Governmental Authorization” shall mean all licenses, permits,
certificates and other authorizations and approvals required to own the
Conveyed Assets as owned as of the date of this Agreement under applicable Law.


 


“Governmental Order” shall mean any order, writ, judgment,
injunction, decree, stipulation, determination or award entered by or with any
Governmental Authority.


 


“Income Tax” or “Income Taxes” shall mean all Taxes based
upon, measured by, or calculated with respect to (i) gross or net income
or gross or net receipts or profits (including, but not limited to, any capital
gains, minimum taxes and any Taxes on items of tax preference, but not
including sales, use, real or personal property transfer or other similar
Taxes), (ii) multiple bases (including, but not limited to, corporate
franchise, doing business or occupation Taxes) if one or more of the bases upon
which such Tax may be based, measured by, or calculated with respect to is
described in clause (i) above, or (iii) withholding taxes measured
by, or calculated with respect to, distributions (other than wages).


 


“Indemnified Parties” shall have the meaning set forth in Section 6.3(a) hereof.


 


“Indemnifying Party” shall have the meaning set forth in Section 6.4
hereof.


 


“Intellectual Property”
shall mean (i) national and multinational statutory invention
registrations, patents and patent applications, including all renewals,
reissues, divisions, substitutions, continuations, continuations-in-part,
extensions and reexaminations and all foreign counterparts thereof, registered
or applied for in the United States and all other nations throughout the world
(“Patents”), (ii) trademarks, service
marks, trade dress, logos, slogans, 800 numbers, domain names, URLs, trade
names, service names and corporate names (whether or not registered) in the
United States and all other nations throughout the world, including all
variations, derivations, and combinations thereof, and all registrations and
applications for registration or renewals of the foregoing and all goodwill
associated therewith (“Trademarks”), (iii) copyrights
and rights under copyrights (whether or not registered) and registrations and
applications for registration or renewals thereof in the United States and all
other nations throughout the world, including all derivative works, regardless
of the medium of fixation or means of expression (“Copyrights”),
(iv) trade secrets and, whether or not confidential, business information
(including pricing and cost information, business and marketing plans and
customer and supplier lists), know-how (including manufacturing and production
processes and techniques and research and development information), inventions,
whether or not patentable, reduced to practice or made the subject of one or
more pending patent applications, and all improvements thereto (“Trade Secrets”), (v) industrial designs (whether or not
registered), (vi) rights in


 


3

















 


databases and data collections (including knowledge
databases, customer lists and customer databases) in the United States and all
other nations throughout the world, whether registered or unregistered, and any
applications for registration therefor, (vii) all rights in all of the
foregoing provided by treaties, conventions and common law, (viii) all
rights to sue or recover and retain damages and costs and attorneys’ fees for
past, present and future infringement or misappropriation of any of the
foregoing, and (ix) any other proprietary or intellectual property rights
now known or hereafter recognized in any jurisdiction.


 


“IRS” shall mean the Internal Revenue Service of the United
States.


 


“Knowledge of Parent” shall mean, and shall be restricted to,
the actual knowledge of only those Persons that are listed on Schedule 1.1(c) hereto, and the knowledge of facts of
which such Persons have received notice in writing.


 


“Laws” shall include any federal, state, foreign or local law,
statute, ordinance, rule, regulation, order, injunction, judgment or decree.


 


“Liabilities” shall mean any and all debts, liabilities and
obligations, whether accrued or fixed, known or unknown, absolute or
contingent, matured or unmatured or determined or determinable.


 


“Liens” shall mean any lien, security interest, mortgage, charge
or similar encumbrance.


 


“Losses” shall have the meaning set forth in Section 6.2
hereof.


 


“Material Contracts” shall have the meaning set forth in Section 3.8(a) hereof.


 


“Notice Period” shall have the meaning set forth in Section 6.4
hereof.


 


“Parent” shall have the meaning set forth in the heading of this
Agreement.


 


“Permits” shall have the meaning set forth in Section 3.6(b) hereof.


 


“Permitted Encumbrances” shall mean (i) all liens, security
interests, mortgages, charges or encumbrances set forth on Schedule 1.1(d) hereto,
(ii) such liens, charges or encumbrances and other imperfections of title
as do not individually or in the aggregate materially detract from the value or
impair the use of the property subject thereto, or (iii) liens for Taxes
not yet due or which are being actively contested in good faith by appropriate
proceedings.


 


“Person” shall mean an individual, a corporation, a partnership,
an association, a trust or other entity or organization.


 


“Pre-Closing Taxable Period” shall mean any Tax period ending on
or before the Closing Date and that portion of any Straddle Taxable Period
ending on the Closing Date.


 


“Product Registrations” shall have the meaning set forth in Section 3.7
hereof.


 


4

















 


“Purchase Price” shall have the meaning set forth in Section 2.2
hereof.


 


“Purchased IP Rights” shall have the meaning set forth in Section 2.1(a)(ii) hereof.


 


“Purchaser” shall have the meaning set forth in the heading of
this Agreement and shall include its Affiliates.


 


“Purchaser Indemnified Parties” shall have the meaning set forth
in Section 6.3(a) hereof.


 


“Restricted Business” shall have the meaning set forth in Section 5.7
hereof.


 


“Restricted Period” shall have the meaning set forth in Section 5.7
hereof.


 


“Seller Indemnified Parties” shall have the meaning set forth in
Section 6.2(a) hereof.


 


“Settlement and License Agreement” shall have the meaning set
forth in Section 5.8 hereof.


 


“Straddle Taxable Period” shall have the meaning set forth in Section 5.5(b) hereof.


 


“Tax” or “Taxes” shall mean all taxes, charges, duties,
fees, levies or other assessments, including but not limited to, income,
excise, property, sales, value added, profits, license, withholding (with respect
to compensation or otherwise), payroll, employment, net worth, capital gains,
transfer, stamp, social security, environmental, occupation and franchise
taxes, imposed by any Governmental Authority, and including any interest,
penalties and additions attributable thereto.


 


“Tax Return” or “Tax Returns” shall mean any return,
report, declaration, information return or claim for refund filed or required
to be filed with any Governmental Authority in connection with the
determination, assessment or collection of any Tax or the administration of any
Laws relating to any Tax, including any schedule or attachment thereto and any
amendment thereof.


 


“Technology” shall mean copies and tangible embodiments of
Intellectual Property, whether in electronic, written or other media, including
software, technical documentation, specifications, designs, bills of material,
build instructions, test reports, schematics, algorithms, formulae, databases,
lab notebooks, invention disclosures, processes, prototypes, samples, studies,
or other know-how and other works of authorship contained therein.


 


“Treasury Regulations” means the Income Tax Regulations
promulgated under the Code, as such regulations may be amended from time to
time (including corresponding provisions of succeeding regulations).


 


1.2           Other Terms.  Other terms
may be defined elsewhere in the text of this Agreement and, unless otherwise
indicated, shall have such meaning throughout this Agreement.


 


5
















 


1.3           Other Definitional Provisions.


 


(a)           The
words “hereof,” “herein,” “hereto” and “hereunder” and words of similar import,
when used in this Agreement, shall refer to this Agreement as a whole and not
to any particular provision of this Agreement.


 


(b)           The
terms defined in the singular shall have a comparable meaning when used in the
plural, and vice versa.


 


(c)           The
terms “dollars” and “$” shall mean United States dollars.


 


(d)           The
terms “include” and “including” and variations thereof are not limiting and
shall be deemed to be followed by the words “without limitation.”


 


(e)           References
to statutes shall include all regulations promulgated thereunder and references
to statues or regulations shall be construed as including all statutory and
regulatory provisions, consolidating, amending or replacing the statute or
regulations.


 


(f)            References
to “license” or “licenses” shall include “sublicense” or “sublicenses” as
applicable.


 


(g)           The
parties participated jointly in the negotiation and drafting of this Agreement
and the language used in this Agreement shall be deemed to be the language
chosen by the parties to express their mutual intent.  If an ambiguity or question of intent or
interpretation arises, then this Agreement will accordingly be construed as drafted
jointly by the parties to this Agreement, and no presumption or burden of proof
will arise favoring or disfavoring any party to this Agreement by virtue of the
authorship of any of the provisions of this Agreement.


 


(h)           The
schedules and exhibits to this Agreement are a material part hereof and shall
be treated as if fully incorporated into the body of this Agreement.


 


ARTICLE 2

PURCHASE AND SALE


 


2.1           Purchase and Sale of Conveyed Assets and Assumption of
Liabilities.


 


(a)           On
the terms and subject to the conditions set forth herein, at the Closing,
Parent agrees to sell, convey, assign and transfer, and agrees to cause the
Asset Selling Corporations to sell, convey, assign and transfer, to Purchaser,
and Purchaser agrees to purchase, acquire and accept from the Asset Selling
Corporations, free and clear of all Liens, other than Permitted Encumbrances,
all of the right, title and interest of the Asset Selling Corporations in and
to the assets, properties and rights identified and listed on Schedule 2.1(a) for each of the categories set forth in
the following clauses but with the exception of the Excluded Assets
(collectively, the “Conveyed Assets”):


 


(i)            the contracts, licenses, agreements and
commitments set forth on Schedule 2.1(a)(i) (“Assumed
Contracts”); provided, however, notwithstanding anything


 


6

















 


herein to the
contrary, with regard to the conveyance, assignment and transfer of that
certain Agreement between Parent and Steve Tremulis dated July 29, 2005
(the “Tremulis Agreement”) and that certain Agreement between Parent and
Jeff Callister dated July 29, 2005 (the “Callister Agreement”),
such conveyance, assignment and transfer shall only apply with respect to
Parent’s rights under Sections 8, 9(b) and 9(c) of such agreements
and only to the extent such rights relate to the Conveyed Assets identified in Section 2.1(a)(ii) and
Section 2.1(a)(iii) (for purposes of clarification, Parent is
not conveying, assigning or transferring (A) any obligations or liabilities
under such agreements, or (B) any rights under Sections 8, 9(b) and 9(c) of
such agreements with respect to matters unrelated to the Conveyed Assets
identified in Section 2.1(a)(ii) and Section 2.1(a)(iii));


 


(ii)           all rights to the Intellectual Property
and Technology owned by the Asset Selling Corporations set forth on Schedule
2.1(a)(ii), and all of the Asset Selling Corporations’ rights to the
Intellectual Property and Technology licensed to the Asset Selling Corporations
set forth on Schedule 2.1(a)(ii) (collectively, the “Purchased IP
Rights”);


 


(iii)          all tangible and electronic copies of the
Technology listed in to Schedule 2.1(a)(ii) and included in the Purchased
IP Rights, all patent prosecution files relating to the Purchased IP Rights, all
business and financial records, files, books and documents (whether in hard
copy or computer format), in each case in the possession of or within the
control of the Asset Selling Corporations, only to the extent relating
exclusively to the Conveyed Assets; provided, however, that the Asset Selling
Corporations may redact any information not exclusively related to the Conveyed
Assets.


 


(b)           Notwithstanding
anything to the contrary contained in this Agreement or in any other agreement
described herein, all risk of loss or damage with respect to the Conveyed
Assets shall pass to Purchaser and Purchaser’s Affiliates upon the Closing, and
Parent and the Asset Selling Corporations shall not be liable for any loss or
injury to the Conveyed Assets thereafter, except as explicitly provided in Article 6
hereof.  Purchaser shall, on a date
mutually agreed to by Purchaser and Parent, and in any event within thirty (30)
days following the Closing, retrieve any tangible Conveyed Assets from Parent’s
facility located at 10700 Bren Road West, Minnetonka, MN.  Parent shall be permitted to retain a copy of
all tangible Conveyed Assets for evidentiary purposes.


 


(c)           Parent
shall continue to pay and cause to be paid, and perform and discharge when due
or cause to be performed and discharged when due, all Liabilities of Parent and
the Asset Selling Corporations to the extent relating to or arising from the
Conveyed Assets, arising prior to the Closing and whether accrued or fixed,
known or unknown, absolute or contingent, matured or unmatured or determined or
determinable as of the Closing; provided  however that Purchaser (and not the Asset Selling
Corporations) hereby assumes and agrees to pay and be responsible, except as
explicitly provided otherwise in Article 6 hereof, for (i) all
lawsuits or other proceedings arising after the Closing, solely to the extent
resulting exclusively from the use or ownership of the Conveyed Assets on or
after the Closing, and (ii) all Liabilities arising from the


 


7

















 


development, manufacture, distribution or sale of any product by or on
behalf of Purchaser, including warranty obligations (the “Assumed
Liabilities”).


 


(d)           Notwithstanding
any provision in this Agreement or any other writing to the contrary, other
than the Assumed Liabilities, Purchaser is not assuming any Liabilities of the
Asset Selling Corporations, and Parent and/or the other applicable Asset
Selling Corporations shall be responsible for the satisfaction or discharge of
such Liabilities, including the following (collectively, the “Excluded
Liabilities”):  (i) Liabilities
resulting from indebtedness for borrowed money; (ii) Liabilities for which
the Asset Selling Corporations expressly have responsibility pursuant to the
terms of this Agreement; (iii) Liabilities associated with the Excluded
Assets; (iv) intercompany Liabilities; (v) except for any Taxes
specifically allocated to Purchaser pursuant to Sections 5.5(a) and
5.5(b), any Liability for Taxes of the Asset Selling Corporations, or
otherwise imposed on the Conveyed Assets with respect to any Pre-Closing
Taxable Period, including any Liability of the Asset Selling Corporations for
the Taxes of any other Person under Treasury Regulation Section 1.1502-6
(or any similar provision of state, local or foreign law), as a transferee or
successor, by contract or otherwise; (vi) Liabilities to Employees (it
being understood that Purchaser is not hiring any Employees in connection with
this Agreement) of or consultants to the Asset Selling Corporations; (vii) Liabilities
of the Asset Selling Corporations to vendors and suppliers in respect of
clinical studies or other activities relating to the Conveyed Assets; (viii) any
Liability of the Asset Selling Corporations to McAndrews, Held &
Malloy, Ltd. (the “McAndrews Firm”) pursuant to (A) the Fee
Agreement by and among the McAndrews Firm, Ovion, Inc., William S.
Tremulis and Jeffrey P. Callister dated August 16, 2002 and (B) the
Termination and Release Agreement by and among the McAndrews Firm, Ovion Inc.
and Parent dated September 17, 2009; (ix) any Liabilities of the
Asset Selling Corporations arising under the Agreement and Plan of Merger by
and among Parent, Oak Merger Corp., Ovion Inc., William S. Tremulis and Jeffrey
P. Callister, dated June 3, 2005 (the “Merger Agreement”); and (x) any
Liabilities of the Asset Selling Corporations arising under the Settlement,
Waiver and Release Agreement by and among Parent, Ovion Inc., W. Stephen
Tremulis, Jeffrey P. Callister, Denise S. Harges, and the Stockholders dated September 1,
2009 (the “September 2009 Settlement Agreement”).  For the avoidance of doubt, Purchaser is
acquiring solely the Conveyed Assets and is not acquiring any business,
operations or product lines from the Asset Selling Corporations.


 


2.2           Purchase Price.  In
consideration of the sale and transfer of the Conveyed Assets, Purchaser shall
pay to Parent (for itself and as agent for the benefit of the Asset Selling
Corporations) at Closing, in accordance with the provisions of this Agreement,
Twenty-Three Million Six Hundred Thirty-Four Thousand Dollars ($23,634,000) in cash (the “Purchase Price”),
by wire transfer of immediately available funds to an account or accounts
designated by Parent, which shall be allocated among the Conveyed Assets as
described in Section 2.3 below.


 


2.3           Allocation of Purchase Price; Withholding. 
Parent, the Asset Selling Corporations, and Purchaser have agreed to the
allocation of the Purchase Price among the Conveyed Assets as set forth in Schedule 2.3 (the “Allocation”).  Each of Parent and the Asset Selling
Corporations on the one hand and Purchaser on the other shall (a) be bound
by the Allocation for purposes of determining any Taxes, (b) prepare and
file, and cause its Affiliates to


 


8

















 


prepare and file, its Tax Returns on a basis
consistent with the Allocation, and (c) take no position, and cause its
Affiliates to take no position, inconsistent with the Allocation on any
applicable Tax Return or in any proceeding before any taxing authority or
otherwise; provided, however, that nothing contained herein shall prevent
Purchaser or the Asset Selling Corporations from settling any proposed
deficiency or adjustment by any taxing authority based upon or arising out of
the Allocation, and neither Purchaser nor any Asset Selling Corporation shall
be required to litigate before any court any proposed deficiency or adjustment
by any taxing authority challenging such Allocation.  In the event that the Allocation is disputed
by any taxing authority, the party receiving notice of the dispute shall
promptly notify the other party hereto concerning resolution of the
dispute.  Parent, each of the Asset
Selling Corporations, and Purchaser acknowledge that the Allocation was done at
arm’s length based upon a good faith estimate of fair market values in
accordance with the requirements of the Code.


 


2.4           Closing;
Delivery and Payment.


 


(a)           The
Closing shall take place at the offices of Fredrikson & Byron, P.A. in
Minneapolis, Minnesota at 10:00 A.M., Central time, as of the date first
set forth above, or at such other time and place as the parties shall mutually
agree.  The date on which the Closing
occurs is called the “Closing Date.” 
The Closing shall be deemed to occur and be effective as of the close of
business on the Closing Date.


 


(b)           At
the Closing, Parent shall, and, as applicable, shall cause the Asset Selling
Corporations to, deliver to Purchaser:


 


(i)            a bill of sale for the Conveyed Assets
that are tangible personal property, in the form attached hereto as Exhibit A (the “Bill of Sale”), executed by the
Asset Selling Corporations;


 


(ii)           an assignment agreement for the Conveyed
Assets that are intangible personal property, in the form attached hereto as Exhibit B, which assignment shall also contain
Purchaser’s undertaking and assumption of the Assumed Liabilities (the “Assignment
and Assumption Agreement”), executed by the Asset Selling Corporations;


 


(iii)          assignments of Purchased IP Rights, each
executed by the applicable Asset Selling Corporations in a form provided by
Purchaser prior to Closing;


 


(iv)          copies of the resolutions (or local
equivalent) of the board of directors (or local equivalent) of each Asset
Selling Corporation authorizing and approving the transactions contemplated
herein; and


 


(v)           copies of releases pursuant to UCC-3’s,
as applicable, or otherwise, of all Liens held by CIT Healthcare LLC, as
Collateral Agent, with respect to the Conveyed Assets.


 


(c)           At
the Closing, Purchaser shall deliver to the Parent (for itself and as agent for
the benefit of the Asset Selling Corporations):


 


9

















 


(i)            the Purchase Price and the Royalty
Payment by wire transfer in immediately available funds to one or more accounts
specified in writing by Parent on or prior to the Closing Date;


 


(ii)           the Assignment and Assumption Agreement,
executed by Purchaser; and


 


(iii)          copies of the resolutions of the board of
directors or committee thereof of Purchaser authorizing and approving the
transactions contemplated herein.


 


2.5           License Grant.  Parent, on
behalf of itself and its Affiliates, hereby grants Purchaser the non-exclusive,
perpetual, irrevocable, non-transferable (except as specifically set forth
below), fully-paid, royalty-free right and license, without the right of
sublicense, to the Licensed Patents to use, make, have made, offer to sell,
sell and import products (including stents and stent-like devices) for
transcervical sterilization, and to perform procedures for transcervical
sterilization.  Purchaser may not
transfer or assign the license granted in this Section 2.5, in whole or in
part, by operation of law, or otherwise, without the prior written consent of
Parent, such consent to be granted or withheld in its sole discretion.  Notwithstanding the foregoing, Purchaser may
assign or transfer this license, in whole but not in part, to an acquiror in
any merger, or acquisition or sale of all or substantially all of the assets,
of Purchaser, without the prior written consent of Parent.  Purchaser shall provide prompt written notice
to Parent of any such assignment or transfer. 
For the avoidance of doubt, Parent and its Affiliates make no
representations or warranties, express or implied, regarding the Licensed
Patents, and Parent shall have no obligation or duty to disclose any Licensed
Patent to Purchaser, or provide Purchaser with a copy of any Licensed
Patent.  For purposes of this Section 2.5,
“Licensed Patents” means Patents: (a) that are owned by Parent or
its Affiliates on the Closing Date; (b) that have a first effective filing
date on or before the Closing Date; (c) that contain claims that cover
products (including stents and stent-like devices) for transcervical
sterilization, or procedures for transcervical sterilization; (d) that are
not included in the Conveyed Assets; and (e) for which Parent or its
Affiliate has, as of the Closing Date, the right to grant to Purchaser the
license set forth in this Section.  Also,
for purposes of this Section 2.5, Affiliate shall not include any Person
that was not an Affiliate of Parent as of the Closing Date.


 


ARTICLE 3

REPRESENTATIONS AND WARRANTIES OF PARENT


 


Parent
hereby represents and warrants to Purchaser that the statements contained in
this Article 3 are true, correct and complete, subject to and
except as otherwise expressly set forth in this Article 3 or in
Parent’s Disclosure Schedules attached hereto and incorporated herein by
reference (the “Disclosure Schedules”), as of the date hereof.


 


3.1           Organization.  Each Asset Selling
Corporation is duly organized, validly existing and in good standing under the
Laws of the jurisdiction of its organization.


 


3.2           Authority; Binding Effect.


 


(a)           Each
Asset Selling Corporation has full organizational power and organizational
authority to carry on their respective businesses as they are now being


 


10

















 


conducted and to own the Conveyed Assets owned by it, and, with respect
to Parent, to execute and deliver this Agreement and the Ancillary Agreements
to which it is a party and to perform its obligations hereunder and
thereunder.  The execution and delivery
by Parent of this Agreement and the Ancillary Agreements to which it is a
party, and the performance by Parent and the other Asset Selling Corporations
of their respective obligations hereunder and under Ancillary Agreements to
which each is a party, have been duly authorized by all requisite corporate or
organizational action, and no other corporate proceedings are required in
connection with their respective execution, delivery and performance of this
Agreement and the Ancillary Agreements, as applicable.


 


(b)           This
Agreement and the Ancillary Agreements each constitutes a valid and legally
binding obligation of Parent (and of each other Asset Selling Corporation that
is a party thereto), enforceable against it in accordance with its terms,
except to the extent that such enforceability may be subject to applicable
bankruptcy, insolvency, reorganization, moratorium and similar laws affecting
the enforcement of creditors’ rights generally or by general equitable
principles.  Notwithstanding any contrary
provision herein, no representation or warranty is made regarding the
non-compete obligations hereunder or the reasonableness thereof.


 


3.3           Noncontravention.  Except as set
forth on Schedule 3.3 of the Disclosure
Schedules, the execution, delivery and performance of this Agreement and the
Ancillary Agreements by Parent and each other Asset Selling Corporation to the
extent it is a party thereto, and the consummation of the transactions
contemplated hereby and thereby do not and will not (a) violate any
provision of the certificate of incorporation, bylaws or other comparable
organizational documents of such Asset Selling Corporation, (b) subject to
obtaining the consents, waivers, approvals and authorizations referred to in Schedule 3.3, conflict with, or result in the breach of, or
constitute a default under, or result in the termination, cancellation or
acceleration (whether after the giving of notice or the lapse of time or both)
of any material right or obligation of such Asset Selling Corporation with
respect to the Conveyed Assets under, any agreement, contract, understanding,
or other instrument to which such Asset Selling Corporation is a party or to
which its material assets are subject, (c) assuming compliance with the
matters set forth in Sections 3.4 and 4.5, materially violate or result
in a material breach of or constitute a material default under any Law or other
restriction of any court or Governmental Authority to which such Asset Selling
Corporation is subject, including any Governmental Authorization, or (d) result
in the creation or imposition of any Lien on any Conveyed Asset, other than
Permitted Encumbrances.


 


3.4           Governmental Consents and Approvals. 
Except as set forth in Schedule 3.4 of
the Disclosure Schedules, the execution, delivery and performance of this
Agreement and the Ancillary Agreements by Parent and the other Asset Selling
Corporations that are parties to such agreements, as applicable, do not require
any material consent or approval of any Governmental Authority.


 


3.5           Litigation and Claims.  Except for
matters arising in connection with Product Registrations (which are the subject
of Section 3.7), Schedule 3.5 of
the Disclosure Schedules sets forth a true, correct and complete list of every
civil, criminal or administrative action, suit, hearing, proceeding or
investigation pending or, to the Knowledge of Parent, threatened in


 


11

















 


writing against any Asset Selling Corporation with
respect to the Conveyed Assets or the transactions contemplated hereby.


 


3.6           Compliance with Laws.


 


(a)           Except
for matters arising in connection with Product Registrations (which are the subject
of Section 3.7) and except as listed on Schedule 3.6
of the Disclosure Schedules, to the Knowledge of Parent there are,
and during the three years preceding the date of this Agreement, there have
been, no material violations by any Asset Selling Corporation of applicable
Laws or Governmental Orders relating to the Conveyed Assets.


 


(b)           To
the Knowledge of Parent, each Asset Selling Corporation possesses all material
permits, licenses, authorizations, certificates, exemptions and approvals of
Governmental Authorities (collectively, “Permits”) necessary for the
ownership of the Conveyed Assets as they are currently owned, and all such
Permits are being complied with by each Asset Selling Corporation in all
material respects.


 


3.7           Product Registrations; Regulatory Compliance.  Schedule 3.7 of the Disclosure Schedules sets forth, as of
the date hereof, a list of all licenses and approvals granted to the Asset
Selling Corporations with respect to the Conveyed Assets by or pending with any
Governmental Authority to market any product (the “Product Registrations”).  Except as set forth in Schedule 3.7
of the Disclosure Schedules, an Asset Selling Corporation is the sole and
exclusive owner of the Product Registrations and has not granted any material
right of reference with respect thereto.


 


3.8           Material
Contracts.


 


(a)           Schedule 3.8(a) of the Disclosure Schedules lists each of the
following Contracts to which Parent and any other Asset Selling Corporation is
a party, in each case relating primarily or exclusively to the field of
transcervical sterilization or to the Conveyed Assets (such contracts and
agreements being “Material Contracts”):


 


(i)            each Contract for the purchase of
inventory, or other personal property with any supplier or for the furnishing
of services extending beyond twelve (12) months or the terms of which provide
for purchases thereunder in excess of $10,000 on an annual basis;


 


(ii)           all broker, distributor, dealer,
manufacturer’s representative, franchise and agency Contracts;


 


(iii)          all Contracts relating to indebtedness
for borrowed money, factoring arrangements, sale and leaseback transactions,
deferred purchase price of property and other similar financing transactions
with respect to which an Asset Selling Corporation is an obligor;


 


(iv)          all licenses and other Contracts relating
to the Purchased IP Rights that require the payment of a royalty or a license
fee, as well as all research and development Contracts pursuant to which any
Person has been granted any license under,


 


12

















 


or otherwise has
received or acquired any right (whether or not currently exercisable) or
interest in, any Purchased IP Rights;


 


(v)           all Contracts limiting the freedom of any
Asset Selling Corporation to own or use the Conveyed Assets;


 


(vi)          all Contracts with a Governmental
Authority;


 


(vii)         each joint venture or similar agreement;
and


 


(viii)        all Contracts entered into since January 1,
2009 providing for the acquisition or disposition of any Conveyed Assets.


 


(b)           Except
as disclosed in Schedule 3.8(b) of the
Disclosure Schedules, (i) the Termination and Release Agreement by and
among the McAndrews Firm, Ovion Inc. and Parent dated September 17, 2009
and the September 2009 Settlement Agreement are valid and binding on each
Asset Selling Corporation that is a party thereto, and, to the Knowledge of
Parent, on each other party thereto, and are in full force and effect; and (ii) no
such Asset Selling Corporation is in material breach of, or default under, such
agreements to which it is a party.


 


(c)           Notwithstanding
anything in this Agreement to the contrary, none of the Asset Selling
Corporations makes any representation or warranty regarding the effectiveness
of any assignment or partial assignment, as applicable, or enforceability by
Purchaser or its Affiliates, of any Assumed Contract.


 


3.9           Intellectual Property.


 


(a)           The
Purchased IP Rights listed on Schedule 3.9(a) constitute
all patents, patent applications, registered trademarks, trademark
applications, trademark registrations, registered copyrights, copyright
applications and copyright registrations that are owned (whether exclusively,
jointly with another Person, or otherwise) by an Asset Selling Corporation, or
for which an Asset Selling Corporation has a belief that it has an ownership
interest in, and which: (i) were licensed to the Purchaser under the
Settlement and License Agreement by and among Ovion Inc., William S. Tremulis
and Jeffrey P. Callister and Conceptus, Inc., effective October 23,
2003 (the “Settlement and License Agreement”); (ii) were acquired
by Parent under the Agreement and Plan of Merger by and among American Medical
Systems, Inc., Oak Merger Corp., Ovion Inc., William S. Tremulis and
Jeffrey P. Callister, dated June 3, 2005; or (iii) have been developed
or acquired by an Asset Selling Corporation or any other Affiliate of Parent
for use primarily in stents for transcervical sterilization or stent-like
devices for transcervical sterilization (collectively, the “Registered IP”).  For each such listed item of Registered IP, Schedule 3.9(a) shall specify the jurisdiction in which
such item of intellectual property has been registered or filed, if applicable,
and the applicable application, registration or serial number.  Parent has provided to Purchaser complete and
accurate copies (either physical or via access) of all non-published patent
applications included in the Registered IP.


 


13
















 


(b)           Schedule 3.9(b) accurately identifies as of the date of this Agreement
(i) all Intellectual Property or Technology licensed to the Asset Selling
Corporations and relating primarily to the Conveyed Assets (other than any
non-customized software that (A) is so licensed solely in executable or
object code form pursuant to a nonexclusive, internal use software license, (B) is
not used directly in the development or manufacturing of the products of the
Business, and (C) is generally available on standard terms for less than
$15,000), (ii) the corresponding Contract or Contracts pursuant to which
such Intellectual Property or Technology is licensed to the Asset Selling
Corporations, and (iii) whether the licenses granted are exclusive.  Except pursuant to the licenses listed in Schedule 3.9(b), the Asset Selling Corporations do not have
any obligation to compensate or account to any Person for the use of any of the
Purchased IP Rights. No Person who has licensed Intellectual Property or
Technology to the Asset Selling Corporations for use in the Conveyed Assets has
ownership rights or license rights to improvements made by the Asset Selling
Corporations in such Intellectual Property or Technology.


 


(c)           Schedule 3.9(c) accurately identifies as of the date of this Agreement
each Contract pursuant to which any Person has been granted any license under,
or otherwise has received or acquired any right (whether or not currently
exercisable) or interest in, any Purchased IP Rights.  The Asset Selling Corporations are not bound
by, and no Purchased IP Rights are subject to, any Contract containing any
covenant or other provision that in any way limits or restricts the ability of
the Asset Selling Corporations to use, exploit, assert, or enforce any
Purchased IP Rights anywhere in the world. 
The Asset Selling Corporations have not transferred ownership of
(whether a whole or partial interest), or granted any exclusive right to use,
any of the Purchased IP Rights to any Person.


 


(d)           The
Asset Selling Corporations exclusively own all right, title, and interest to
and in the Registered IP free and clear of any Liens, other than Permitted
Encumbrances.


 


(e)           The
Asset Selling Corporations exclusively own all right, title, and interest to
and in, or have the transferable right to use in stents for transcervical
sterilization or stent-like devices for transcervical sterilization, all
Technology included in the Purchased IP Rights free and clear of any Liens,
other than Permitted Encumbrances.  Each
Person who is or was an employee, officer, director or contractor of the Asset
Selling Corporations and who is or was involved in the creation or development
of any Purchased IP Rights has signed an enforceable agreement containing an
assignment to the Asset Selling Corporations of all Intellectual Property in
such individual’s or entity’s contribution to the Purchased IP Rights.  Without limiting the foregoing, the Purchased
IP Rights have been:  (i) developed
by employees of the Asset Selling Corporations within the scope of their employment;
(ii) developed by independent contractors who have assigned their rights
in the Purchased IP Rights to the Asset Selling Corporations pursuant to
enforceable written agreements; or (iii) otherwise acquired by the Asset
Selling Corporations from a third party who has assigned all ownership of all
Purchased IP Rights it has developed on the Asset Selling Corporation’s behalf
to the Asset Selling 


 


14

















 


Corporations.  Without limiting
the foregoing, William S. Tremulis and Jeffrey P. Callister have each assigned
all right, title and interest in and to the Purchased IP Rights.


 


(f)            The
Registered IP has the status indicated on Schedule3.9(a).  Schedule 3.9(f) sets
forth a listing of all registrations, filings and payment obligations for the
Registered IP due to be made to any Governmental Authority within sixty (60)
days following the Effective Date.  The
Asset Selling Corporations and, to the knowledge of the Asset Selling
Corporations, their patent counsel, have complied with their duty of candor and
disclosure to the applicable Governmental Authorities with respect to all
Patents included in the Purchased IP Rights and have made no material
misrepresentations in the applicable patent filings.


 


(g)           No
funding, facilities, or personnel of any governmental entity or educational
institution were used, directly or indirectly, to develop or create, in whole
or in part, any of the Purchased IP Rights that would impair an Asset Selling
Corporation’s control of the Purchased IP Rights or would grant licenses to
such entity or institution.  The Asset
Selling Corporations have not made any submission or suggestion to, and are not
subject to any agreement with, any standards bodies or other entities that
would obligate the Asset Selling Corporations to grant licenses to or otherwise
impair its control of the Purchased IP Rights.


 


(h)           No
proceedings, claims or actions have been instituted or are pending against the
Asset Selling Corporations, or, to the Knowledge of Parent, are threatened,
that challenge the right of the Asset Selling Corporations with respect to the
use or ownership of the Purchased IP Rights. 
Without limiting the foregoing, no interference, opposition, reissue or
reexamination proceeding is pending, or to the Knowledge of Parent threatened,
in which the scope, validity, or enforceability of any of Purchased IP Rights
is being contested or challenged.  The
Asset Selling Corporations have not received any written notice alleging (i) the
invalidity of any of the Purchased IP Rights, or (ii) the infringement,
misappropriation or breach of any Intellectual Property rights of others by the
Asset Selling Corporations relating to stents for transcervical sterilization
or stent-like devices for transcervical sterilization.  The Purchased IP Rights are not subject to
any outstanding judgment, decree, order, writ, award, injunction or
determination of an arbitrator or court or other Governmental Authority (other
than the U.S. or other national patent office) affecting the rights of the
Asset Selling Corporations with respect thereto.


 


(i)            Neither
the execution, delivery, or performance of this Agreement nor the consummation
of any of the transactions or agreements contemplated by this Agreement will,
with or without notice or the lapse of time, result in, or give any other
Person the right or option to cause or declare, (i) a loss of, or Lien on,
any Purchased IP Rights; or (ii) a breach of, termination of, or
acceleration or modification of any right or obligation under any Contract
listed in Schedules 3.9(b); or (iii) the
grant, assignment, or transfer to any other Person of any license or other
right or interest under, to, or in any of the Purchased IP Rights.


 


3.10        Assets.  Each Asset
Selling Corporation owns, leases or has the legal right to use all of its
Conveyed Assets.  Each Asset Selling
Corporation has good and marketable title to (or


 


15

















 


in the case of leased Conveyed Assets, valid leasehold
interests in) all its Conveyed Assets except for Permitted Encumbrances.


 


3.11        Taxes.  Except as set
forth in Schedule 3.11 of the Disclosure
Schedules, (a) all Tax Returns that are required to be filed on or before
the date hereof by or on behalf of the Asset Selling Corporations with respect
to the Conveyed Assets have been filed, (b) all Taxes (whether or not
shown to be due and payable on such Tax Returns) have been paid and (c) no
Asset Selling Corporation is currently the beneficiary of any extension of time
within which to file any such Tax Returns. 
There are no Tax Liens upon any of the Conveyed Assets, except for
Permitted Encumbrances.  Except as set
forth on Schedule 3.11 of the Disclosure
Schedules, no Tax Return that includes any of the Asset Selling Corporations
with respect to the Conveyed Assets is currently being examined by any taxing
authority, and there are no outstanding agreements or waivers extending the
statute of limitations applicable to any such Tax Return.


 


3.12        Brokers.  No broker,
finder or investment banker is entitled to any brokerage, finder’s or other fee
or commission in connection with the transactions contemplated by this
Agreement based upon arrangements made by or on behalf of Parent or its
Affiliates.


 


ARTICLE 4


REPRESENTATIONS AND WARRANTIES OF PURCHASER


 


Purchaser
hereby represents and warrants to Parent that the statements contained in this Article 4
are true, correct and complete, except as otherwise expressly set forth in this
Article 4 or in the referenced schedules attached hereto and
incorporated herein by reference, as of the date hereof.


 


4.1          Organization and Qualification. 
Purchaser is a corporation duly organized, validly existing and in good
standing under the Laws of the jurisdiction of its incorporation.


 


4.2          Corporate Authorization.  Purchaser has
full corporate power and authority to execute and deliver this Agreement and
the Ancillary Agreements to which it is a party, and to perform its obligations
hereunder and thereunder.  The execution,
delivery and performance by Purchaser of this Agreement and the Ancillary
Agreements to which it is a party have been duly authorized by all requisite
corporate action on the part of Purchaser and no other corporate proceedings on
the part of Purchaser are required in connection with the execution, delivery
and performance by Purchaser of this Agreement and the Ancillary Agreements, as
applicable.


 


4.3          Binding Effect.  This
Agreement and Ancillary Agreements to which it is a party, constitute a valid
and legally binding obligation of Purchaser, enforceable against Purchaser in
accordance with its terms, except to the extent that such enforceability may be
subject to applicable bankruptcy, insolvency, reorganization, moratorium and
similar laws affecting the enforcement of creditors’ rights generally or by
general equitable principles.


 


4.4          Noncontravention.  The
execution, delivery and performance by Purchaser of this Agreement and the
Ancillary Agreements, and the consummation of the transactions contemplated
hereby and thereby, do not and will not (a) violate any provision of the
certificate of incorporation, bylaws or other organizational documents of
Purchaser, or (b) assuming compliance with the matters set forth in Sections
3.4 and 4.5, violate or result in a breach of or


 


16

















 


constitute a default under any Law or other
restriction of any court or Governmental Authority to which Purchaser is
subject, including any Governmental Authorization.


 


4.5          Consents and Approvals.  Other than as
set forth in Schedule 4.5, the execution and
delivery of this Agreement and the Ancillary Agreements by Purchaser do not and
will not, require any material consent or approval of any Governmental
Authority.


 


4.6          Brokers.  No broker,
finder or investment banker is entitled to any brokerage, finder’s or other fee
or commission in connection with the transactions contemplated by this
Agreement and the Ancillary Agreements based upon arrangements made by or on
behalf of Purchaser or its Affiliates, and in no way will any such fees or
expenses be deemed an Excluded Asset or Excluded Liability.


 


ARTICLE 5


COVENANTS AND OTHER AGREEMENTS


 


5.1          Further Assurances.


 


(a)           Subject
and in addition to Section 2.1(b), at any time after the Closing
Date, Parent shall, and, as applicable shall cause the other Asset Selling
Corporations to, execute, acknowledge and deliver any further deeds,
assignments, conveyances and other assurances and documents and instruments of
transfer reasonably requested by Purchaser and necessary for Parent to comply
with its covenants contained herein and, at Purchaser’s expense, will take any
action consistent with the terms of this Agreement that may reasonably be
requested by Purchaser for the purpose of assigning, transferring, granting,
conveying, vesting and confirming ownership in or to Purchaser, or reducing to
Purchaser’s possession, any or all of the Conveyed Assets.


 


(b)           If,
after the Closing Date, Parent determines that any Technology (for use
primarily in (i) stents for transcervical sterilization, or (ii) stent-like
devices for transcervical sterilization) that it owned on the Closing Date was
not included in the Conveyed Assets, then Parent shall promptly notify
Purchaser of such determination, and, subject to Section 5.1(d),
amend Schedule 2.1(a)(ii) to include
such Technology, assign any rights in such Technology to Purchaser, and
promptly deliver such Technology to Purchaser (in a manner consistent with the
assignment and delivery at Closing). 
Subject to Section 5.1(a), the amendment of Schedule 2.1(a)(ii) and delivery of the Technology (and
assignment of rights in such Technology) as set forth above shall be Purchaser’s
sole remedy with respect to the omission of any such Technology from the
Conveyed Assets.


 


(c)           If,
after the Closing Date, Parent determines that any Registered IP owned by the
Asset Selling Corporations on the Closing Date that should have been included
in the Conveyed Assets because it complied with the definition of Registered IP
set forth in Section 3.9(a) was not included in the Conveyed Assets
at the Closing, or if Purchaser notifies Parent that any such Registered IP
should have been included in the Conveyed Assets and the parties following good
faith, reasonable discussions agree that such Registered IP should have been
included in the Conveyed Assets, then, subject to Section 5.1(d),
the parties shall promptly amend Schedule 2.1(a)(ii) and Schedule 3.9(a) to


 


17

















 


include such Registered IP and Parent shall assign any rights in such
Registered IP to Purchaser and promptly deliver all applicable documentation
and files in its possession or control relating to such Registered IP (in a
manner consistent with the assignment and delivery at Closing).  Subject to Section 5.1(a), the
amendment of Schedule 2.1(a)(ii) as set
forth above, assignment of ownership, and delivery of documentation and files
shall be Purchaser’s sole remedy with respect to the omission of any such
Registered IP from the Conveyed Assets.


 


(d)           If
the amendment, assignment or delivery described in this Section 5.1
requires the release or waiver of Liens or restrictions encumbering the assets
to be so assigned or delivered, Parent shall use its commercially reasonable
efforts to obtain such release or waiver as soon as practicable, and such
amendment, assignment and/or delivery shall occur promptly after such release
or waiver is obtained.


 


5.2          Purchaser’s Investigation; No Additional
Representations.
Purchaser acknowledges and agrees that, except as specifically set forth in Article 3
of this Agreement, Parent has not made and shall have no Liability for any
representation or warranty, express or implied, in connection with the
transactions contemplated by this Agreement, including any representation or
warranty as to the accuracy or completeness of any information regarding the
Conveyed Assets and/or the Asset Selling Corporations furnished to Purchaser or
its representatives in connection with Purchaser’s due diligence review of the
Conveyed Assets and/or the Asset Selling Corporations.  Without limiting the generality of the
foregoing, except as specifically set forth in Article 3 of this
Agreement, neither Purchaser nor any Purchaser Indemnified Parties shall have
any claim or right to recovery pursuant to Article 6 or otherwise,
and none of Parent, the Seller Indemnified Parties or any other Person shall
have or be subject to any liability to Purchaser, any of the Purchaser
Indemnified Parties or any other person, with respect to (i) any
information, documents or materials furnished, delivered or made available by
the Asset Selling Corporations or their Affiliates, officers, directors,
employees, agents or advisors to Purchaser or its Affiliates, in certain “data
rooms,” management presentations or any other form in contemplation of the
transactions contemplated hereby, including the confidential memoranda and/or
other information prepared or delivered by Parent and any of its advisors, or (ii) any
projections, forecasts, estimates, plans or budgets of future revenue, expenses
or expenditures, future results of operations (or any component thereof),
future cash flows (or any component thereof) or future financial condition (or
any component thereof) of the Conveyed Assets or the future business,
operations or affairs of the Conveyed Assets heretofore or hereafter delivered
to or made available to Purchaser or its representatives or Affiliates.


 


5.3          Bulk Transfer Laws.  Purchaser
acknowledges that the Asset Selling Corporations have not taken, and do not
intend to take, any action required to comply with any applicable bulk sale or
bulk transfer Laws or similar Laws and Purchaser waives the Asset Selling
Corporations’ compliance with such Laws.


 


5.4          Litigation Support.  Purchaser and
its Affiliates on the one hand and Parent and its Affiliates on the other hand
will cooperate with each other in the defense or settlement of any lawsuit
involving the Conveyed Assets for which they have responsibility by providing
the other party and such other party’s legal counsel and other Persons
reasonable access to then current employees, records, documents, data,
equipment, facilities, products, parts, prototypes and other


 


18

















 


information regarding the Conveyed Assets or the status
of material litigation issues as such other party may reasonably request, to
the extent maintained or under the possession or control of the requested
party.  The parties shall use their
reasonable best efforts to seek confidentiality agreements with respect to any
settlements of such lawsuits if reasonably requested hereunder.  The requesting party shall reimburse the
other party for its reasonable expenses in performing its obligations under
this Section 5.4.


 


5.5          Tax Matters.


 


(a)           Notwithstanding
any other provisions of this Agreement to the contrary, all transfer,
documentary, recording, sales, use, registration, stamp, value-added and other
similar Taxes (including all applicable real estate transfer Taxes, but
excluding any Income Taxes) together with any notarial and registry fees and
recording costs imposed by any Tax authority or other Governmental Authority in
connection with the transfer of the Conveyed Assets will be shared equally
between Purchaser and Parent, regardless of what Person is obligated to pay
such Taxes under applicable Law.  The
parties and their respective Affiliates will cooperate in timely preparing and
filing all Tax Returns that may be required to comply with Law relating to such
Taxes.  To the extent that one party
claims any exemptions from any such Taxes (it being understood that each party
shall claim any such exemptions available to it), such party shall provide to
the other party the appropriate exemption certificates.  For clarity, Purchaser shall be solely
responsible for any and all fees associated with the recording of the
assignment of the Purchased IP Rights in any national patent or trademark
office.


 


(b)           The
parties will make payments to each other to the extent necessary so that the
Asset Selling Corporations shall bear the cost of personal property and other
similar Taxes imposed on the Conveyed Assets which are due and payable during
the Tax periods ending prior to or on the Closing Date (and, with respect to
any Straddle Taxable Period, on a per diem basis up to and including the
Closing Date) and Purchaser shall bear the cost of real property, personal
property, and other similar Taxes imposed on the Conveyed Assets which are due
and payable during Tax periods ending after the Closing Date (and, with respect
to any Straddle Taxable Period, on a per diem basis following the Closing
Date), such payments to be made as soon as practicable after the Closing in
each case after the amount of such Taxes has been determined.  For purposes of this Agreement, “Straddle
Taxable Period” means any Taxable period beginning before the Closing Date
and ending on or after the Closing Date.


 


(c)           Each
of the parties and their Affiliates shall provide the other party with such
information and records and make such of its officers, directors, employees and
agents available as may reasonably be requested by such other party in
connection with the preparation of any Tax Return or any audit or other
proceeding that relates to the Conveyed Assets.


 


5.6          Trademarks; Names.  From and
after the Closing, Purchaser shall not, and shall ensure that its employees and
representatives do not, represent itself or themselves as Parent or as
employees or representatives of any of the Asset Selling Corporations.  Purchaser shall take appropriate action to
remove, cease to use and/or cover the “American Medical Systems” name


 


19

















 


and logo, and those certain names, logos and marks
listed on Schedule 1.1(a) hereto, from all
materials (including invoices, packaging and other promotional material),
signage, telephone listings, letterhead, and other similar materials and
documentation used in connection with the Conveyed Assets. The Asset Selling
Corporations shall take appropriate action to remove, cease to use and/or cover
the “Ovion” name and logo from all of its materials (including invoices,
packaging and other promotional material), signage, telephone listings,
letterhead, and other similar materials and documentation.


 


5.7          Non-Compete.


 


(a)           For
a period of five (5) years from the Closing Date (the “Restricted
Period”), Parent shall not, and shall cause its Affiliates not to, directly
or indirectly, own, manage, operate, control or significantly participate in
the ownership, management, operation, or control of any business endeavor
engaged in the research, development, testing, manufacturing, marketing or
selling of products in the field of permanent female sterilization (the “Restricted
Business”).


 


(b)           For
a period of four (4) years after the Restricted Period, Parent shall not,
and shall cause its Affiliates not to, directly or indirectly, own, manage,
operate, control or significantly participate in the ownership, management,
operation, or control of any business endeavor engaged in the research,
development, testing, manufacturing, marketing or selling of permanent
female sterilization products consisting of a stent-like device delivered
transcervically using a catheter.


 


(c)           Notwithstanding
the foregoing, if at any time all or substantially all of Parent’s business is
acquired by, sold, or otherwise transferred, regardless of the legal form of
such transaction or series of transactions, the restrictions contained in this Section 5.7
shall not apply to or in any way restrict the purchaser or transferee, Parent
or their respective Affiliates with respect to the products that such Person is
researching, developing, testing, manufacturing, marketing or selling
immediately prior to the consummation of the acquisition, sale or other
transfer of Parent’s business; provided, however, that nothing in this Section 5.7
shall be interpreted as granting any Asset Selling Corporation or any successor
entity a license in or to any of the Purchased IP Rights.


 


5.8          Assignment and Assumption of the Settlement and
License Agreement.  Pursuant to Section 11.4 of the
Settlement and License Agreement, Parent shall cause Ovion Inc. to assign its
rights and delegate its duties under the Settlement and License Agreement to
Purchaser, and the parties hereby agree that all rights to receive royalties,
and other rights granted to Ovion Inc., a wholly-owned subsidiary of Parent,
are hereby immediately and automatically terminated and of no further force or
effect.  Notwithstanding the foregoing, (a) the
releases contained in Sections 4.1 and 4.2 of the Settlement and License
Agreement are unaffected by this Section 5.8 and remain in full
force and effect; and (b) Purchaser shall pay to Ovion Inc. at the Closing
a royalty payment in the amount of Eight Hundred Sixty Six Thousand Dollars
($866,000) in cash (the “Royalty Payment”) by wire transfer of
immediately available funds to an account or accounts designated by
Parent.  Ovion Inc.’s duties under the
Settlement and License Agreement shall be Assumed Liabilities hereunder and the
Settlement and License Agreement shall be an


 


20

















 


Assumed Contract hereunder.  Parent, on its own behalf and on behalf of
its Affiliates, expressly acknowledges and agrees that this Agreement
(including Purchaser’s payment of the Royalty Payment at the Closing) satisfies
any and all payment obligations of Purchaser under the Settlement and License
Agreement, including any obligation of Purchaser to make any royalty payment
for the period ended September 30, 2009. 
Parent, on its own behalf and on behalf of its Affiliates, hereby
irrevocably, perpetually and forever releases and discharges Purchaser and its
Affiliates from any and all claims and Liabilities of any nature, in each case
whether known or unknown, arising out of the Settlement and License
Agreement.  Purchaser, on its own behalf
and on behalf of its Affiliates, hereby irrevocably, perpetually and forever
releases and discharges Parent and its Affiliates from any and all claims and
Liabilities of any nature, in each case whether known or unknown, arising out
of the Settlement and License Agreement. 
In connection with the foregoing, Parent and Purchaser, each on its own
behalf and on behalf of its respective Affiliates, each expressly waives and relinquishes all rights
and benefits, if any, arising under the provisions of Section 1542 of the
California Civil Code, which provides as follows:


 


“A general release does not extend to claims which
the creditor does not know or suspect to exist in his or her favor at the time
of executing the release, which if known by him or her must have materially
affected his or her settlement with the debtor.”


 


ARTICLE 6


SURVIVAL AND INDEMNIFICATION


 


6.1          Survival.  The
representations and warranties contained in this Agreement shall survive the
Closing until the date eighteen (18) months following the Closing Date, and no
party may first raise a claim based thereon for any Losses (defined below)
after the expiration of such eighteen (18)-month period not directly related to
or arising out of a claim asserted by such party in writing and received by the
other party prior to the expiration of such eighteen(18)-month period.  Any breach of a representation or warranty in
respect of which indemnity may be sought pursuant to the terms of this
Agreement shall survive the time at which it would otherwise terminate pursuant
to the preceding sentence, if written notice, in the manner provided for
herein, of the inaccuracy thereof giving rise to such right of indemnity shall
have been given to the party against whom such indemnity is sought hereunder
prior to such time.


 


6.2          Indemnification by Purchaser.


 


(a)           Purchaser
hereby agrees that it shall indemnify, defend (as provided herein) and hold
harmless the Asset Selling Corporations, their Subsidiaries, Affiliates, and,
if applicable, their respective directors, officers, shareholders, partners,
attorneys, accountants, agents and employees and their heirs, successors and
assigns (the “Seller Indemnified Parties”) from, against and in respect
of any damages, claims, losses, charges, actions, suits, proceedings,
deficiencies, interest, penalties, and reasonable costs and expenses (including
reasonable attorneys’ and consultants’ fees) (collectively, “Losses”)
imposed on, sustained, incurred or suffered by or asserted against any of the
Seller Indemnified Parties by reason of (i) any breach of any
representation or warranty made by Purchaser contained in this Agreement; (ii) the
breach of any covenant or


 


21

















 


agreement of Purchaser contained in this Agreement; (iii) the
Assumed Liabilities and (iv) the ownership of and activities involving the
Conveyed Assets from and after the Closing.


 


(b)           Notwithstanding
the provisions of this Article 6, Purchaser shall not be liable to
the Seller Indemnified Parties for any Losses with respect to the matters
contained in Section 6.2(a)(i) except to the extent the Losses
therefrom exceed $470,000, in which event Purchaser shall be liable to the
Seller Indemnified Parties for all such Losses in excess of such amount, up to
an aggregate amount equal to $3,550,000; it being understood that (i) the
foregoing limitations shall not apply to (x) Losses under Section 6.2(a)(ii),
(iii) or (iv) or (y) Losses to the extent resulting from
fraud and (ii) the cap for Losses arising from breaches of Section 4.2
shall be the Purchase Price instead of $3,550,000.  In no event shall Purchaser be liable to the
Seller Indemnified Parties for Losses exceeding, in the aggregate, the Purchase
Price.


 


6.3          Indemnification by Parent.


 


(a)           Parent
hereby agrees that it shall indemnify, defend (as provided herein) and hold
harmless Purchaser, its Affiliates and, if applicable, their respective
directors, officers, shareholders, partners, attorneys, accountants, agents and
employees and their heirs, successors and assigns (the “Purchaser
Indemnified Parties” and, collectively with the Seller Indemnified Parties,
the “Indemnified Parties”) from, against and in respect of any Losses
imposed on, sustained, incurred or suffered by or asserted against any of the
Purchaser Indemnified Parties by reason of (i) any breach of any
representation or warranty made by Parent contained in this Agreement; (ii) the
breach of any covenant or agreement of an Asset Selling Corporation made in
this Agreement; and (iii) the Excluded Liabilities; provided, however,
that, notwithstanding the foregoing, the Purchaser Indemnified Parties’ sole
remedy with respect to the omission of any Technology or Registered IP from the
Conveyed Assets shall be as set forth in Section 5.1.


 


(b)           Notwithstanding
the provisions of this Article 6, Parent shall not be liable to the
Purchaser Indemnified Parties for any Losses with respect to the matters
contained in Section 6.3(a)(i) except to the extent the Losses
therefrom exceed $470,000, in which event Parent shall be liable to the
Purchaser Indemnified Parties for all such Losses in excess of such amount, up
to an aggregate amount equal to $3,550,000; it being understood that (i) the
foregoing limitations shall not apply to (x) Losses under Section 6.3(a)(ii) or
(iii) or (y) Losses to the extent resulting from fraud and (ii) the
cap for Losses arising from breaches of Sections 3.2(a) and 3.9(d) shall
be the Purchase Price instead of $3,550,000. 
In no event shall Parent be liable to the Purchaser Indemnified Parties
for Losses exceeding, in the aggregate, the Purchase Price.


 


6.4          Indemnification Procedures. 
In the event that any claim or demand by a third party for which an
indemnifying party, Parent or Purchaser, as the case may be (an “Indemnifying
Party”), may be liable to any Indemnified Party hereunder (a “Claim”)
is asserted against or sought to be collected from any Indemnified Party by a
third party, such Indemnified Party shall as promptly as practicable notify the
Indemnifying Party in writing of such Claim and


 


22

















 


the amount or the estimated amount thereof and such
notice shall state with reasonable specificity the basis, if known, under which
the claim is made (the “Claim Notice”). 
The failure on the part of the Indemnified Party to give any such Claim
Notice in a reasonably prompt manner shall not relieve the Indemnifying Party
of any indemnification obligation hereunder unless, and only to the extent
that, the Indemnifying Party is materially prejudiced thereby.  The Indemnifying Party shall have forty-five
(45) days from the delivery of the Claim Notice (the “Notice Period”) to
notify the Indemnified Party (a) whether or not the Indemnifying Party
disputes the liability of the Indemnifying Party to the Indemnified Party
hereunder with respect to such Claim and (b) whether or not it desires to
defend the Indemnified Party against such Claim; any failure to so notify the
Indemnified Party within such 45-day period shall be deemed an agreement that
the Indemnified Party shall have the sole power to direct and control the
defense of such Claim.  Except as
hereinafter provided, in the event that the Indemnifying Party notifies the
Indemnified Party within the Notice Period that it desires to defend the
Indemnified Party against such Claim, the Indemnifying Party shall have the
right to defend the Indemnified Party by appropriate proceedings and shall have
the sole power to direct and control such defense.  Notwithstanding the foregoing, the
Indemnified Party, during the period the Indemnifying Party is determining
whether to elect to assume the defense of a matter covered by this Section 6.4,
may take such reasonable actions as it deems necessary to preserve any and all
rights with respect to the matter, without such actions being construed as a
waiver of the Indemnified Party’s rights to defense and indemnification
pursuant to this Agreement.  The
Indemnified Party shall not settle a Claim for which it is indemnified by the
Indemnifying Party without the prior written consent of the Indemnifying Party,
unless the Indemnifying Party elects not to defend the Indemnified Party
against such Claim.  In any event, the
Indemnified Party shall have the sole right to defend, settle or compromise any
Claim with respect to which it has agreed in writing to waive its right to
indemnification pursuant to this Agreement with respect to attorneys’ and
consultants’ fees and 50% of the amount of any settlement or judgment in
connection with such Claim.  To the
extent the Indemnifying Party shall direct, control or participate in the
defense or settlement of any third party Claim or demand, the Indemnified Party
will give the Indemnifying Party and its counsel access to, during normal
business hours, the relevant business records and other documents, and shall
permit them to consult with the employees and counsel of the Indemnified
Party.  The Indemnified Party shall use
its commercially reasonable best efforts in the defense of all claims
hereunder.  Any dispute regarding the
obligation of a party hereto to indemnify, defend and hold harmless another
party with respect to a claimed Loss shall be resolved by appropriate legal
proceedings, which may remain pending during or after the defense of such
claimed Loss.  Notwithstanding any of the
foregoing, with respect to any Claims regarding the ownership, validity, or
scope of the Purchased IP Rights for which Purchaser seeks indemnification
under this Agreement: (y) Purchaser shall control all correspondence with,
and any legal or other proceedings before, any Governmental Authority (other
than judicial authority), such as by way of example only, the United States
Patent and Trademark Office, and Parent’s indemnification obligations in
connection with such Claim shall be limited to 50% of the amount of attorneys’
and consultants’ fees incurred by Purchaser in such proceedings; and (z) in
the course of Parent’s defense or settlement of such Claims by third parties
with respect to which Parent is controlling the defense hereunder, Parent may
not settle or compromise any Claim, or make any admission or stipulation, that
affects the scope, validity, ownership, license or control of any Purchased IP
Rights, without the specific prior written consent of Purchaser on a
case-by-case basis, such


 


23

















 


consent not to be unreasonably conditioned, delayed or
withheld; provided, that if Purchaser conditions or withholds consent,
Purchaser shall assume control with respect to such Claim, and Parent’s
indemnification obligations in connection with such Claim shall be limited to
50% of the amount of further attorneys’ and consultants’ fees incurred by
Purchaser in such action and 50% of the amount of any settlement or judgment in
connection with such Claim.  In any
event, the Indemnifying Party’s liability hereunder shall be subject to the
limitations set forth in Sections 6.2(b) and 6.3(b).


 


6.5          Exclusive Remedy; Limitation of Remedy. 
The parties agree that the sole and exclusive remedy with respect to any
and all claims relating to the subject matter of this Agreement, except to the
extent set forth in Sections 5.1 and 7.2, and the transactions
contemplated hereby shall be pursuant to the indemnification provisions set
forth in this Article 6, whether arising in contract, tort or
otherwise.


 


6.6          Characterization of Indemnification Payments. 
All amounts paid by Parent or Purchaser to the other under this Article 6
shall be treated for all Tax purposes as adjustments to the Purchase Price.


 


6.7          Computation of Losses Subject to Indemnification. 
The amount of any Loss for which indemnification is provided under this Article 6
or otherwise in this Agreement shall be computed net of any insurance proceeds
when actually received by the Indemnified Party (less its reasonable costs of
enforcing the insurance) from the Indemnifying Party’s insurance carrier(s);
provided that such indemnification amounts shall be paid when due pursuant to
the terms hereof and the Indemnified Party, upon receipt of such proceeds,
shall transfer to the Indemnifying Party the entire amount of such proceeds.


 


6.8          Limitations on Liability. 
Notwithstanding any provision herein, neither Parent and/or any of the
Asset Selling Corporations, on the one hand, nor Purchaser, on the other hand,
shall in any event be liable to the other party or such party’s Affiliates,
officers, directors, employees, stockholders, agents or representatives on
account of any indemnification obligation set forth in this Article 6
for any indirect, consequential, special, incidental or punitive damages
(including, lost profits, damage to goodwill or loss of business) except if
held responsible for such by third parties.


 


6.9          Mitigation.  An
Indemnified Party will use commercially reasonable efforts to mitigate the
Losses to which it may become entitled to indemnification hereunder.


 


6.10        Waiver of Conditions; Indemnity. 
The parties acknowledge and agree that if Purchaser has actual knowledge
of any breach by Parent of any representation, warranty or covenant contained
in this Agreement, and Purchaser proceeds with the Closing, Purchaser shall be
deemed to have waived such breach and Purchaser and any and all of the
Purchaser Indemnified Parties shall not be entitled to be indemnified by Parent
under Section 6.3 above, to sue for damages or to assert any other
right or remedy for losses arising from any matters relating to such breach,
notwithstanding anything to the contrary contained in this Agreement or in any certificate
delivered pursuant hereto.


 


24
















 


ARTICLE 7


MISCELLANEOUS


 


7.1           Notices.  All notices
or other communications hereunder shall be deemed to have been duly given and
made if in writing and if served by personal delivery upon the party for whom
it is intended, if delivered by registered or certified mail, return receipt
requested, or by a national courier service, or if sent by facsimile, provided
that the facsimile is promptly confirmed by confirmation of transmission
thereof, to the person at the address set forth below, or such other address as
may be designated in writing hereafter, in the same manner, by such person:


 


To Parent:


 


American Medical Systems, Inc.


10700 Bren Road West


Minnetonka, MN 55343


 


with separate copies thereof
addressed to:


 


Attention: Chief Executive
Officer


Facsimile: (952) 930-5737


 


and


 


Attention: Senior Vice
President — Law Department


Facsimile: (952) 930-6496


 


With a copy to:


 


Fredrikson &
Byron, P.A.


200 South Sixth Street


Minneapolis, MN  55402-1425


Attn:  James H. Snelson


Facsimile: (612) 492-7077


 


To Purchaser:


 


Conceptus, Inc.


331 East Evelyn


Mountain View, CA 
94041


Attn.:  Greg
Lichtwardt, Chief Financial Officer


Facsimile: 
(650) 691-4737


 


25

















 


With a copy to:


 


Latham & Watkins
LLP


140 Scott Drive


Menlo Park, CA  94025


Attn:  Ora T. Fisher, Esq.


Facsimile: (650) 463-2600


 


A
notice shall be deemed given on the day when actually delivered as provided
above (if delivered personally, by courier or by facsimile) or on the day shown
on the return receipt (if delivered by mail).


 


7.2           Specific Performance.  In the event
of any breach by an Asset Selling Corporation of Sections 5.1 or 5.7
hereof, or any breach by either party of Sections 5.6 or 7.8 (or the
control of defense provisions of Section 6.4) hereof, the breaching
party, on behalf of itself and its Affiliates, hereby agrees that the
non-breaching party may be irreparably harmed and unable to be made whole by
monetary damages and that the non-breaching party, in addition to any other
remedy to which it may be entitled at law or in equity, shall be entitled to
seek specific performance of such provisions.


 


7.3           Amendment; Waiver.  Except as
described in Section 6.10 above, any provision of this Agreement
may be amended or waived if, and only if, such amendment or waiver is in
writing and signed, in the case of an amendment, by Purchaser and Parent, or in
the case of a waiver, by the party against whom the waiver is to be
effective.  Except as described in Section 6.10
above, no failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege.


 


7.4           Assignment.  No party to
this Agreement may assign any of its rights or obligations under this Agreement
without the prior written consent of the other party hereto.


 


7.5           Entire Agreement.  This
Agreement (including all Schedules and Exhibits hereto) contains the entire agreement
between the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and understandings, oral or written, with
respect to such matters, except for the Confidentiality Agreement, which will
remain in full force and effect with respect to any confidential information
not included within the Conveyed Assets for the term provided for therein, and
any written agreement of the parties that expressly provides that it is not
superseded by this Agreement.


 


7.6           Fulfillment of Obligations. 
Any obligation of any party to any other party under this Agreement,
which obligation is performed, satisfied or fulfilled by an Affiliate of such
party, shall be deemed to have been performed, satisfied or fulfilled by such
party.


 


7.7           Parties in Interest.  This
Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective successors and permitted assigns.  Except with respect to the Asset Selling
Corporations, nothing in this Agreement, express or implied, is


 


26

















 


intended to confer upon any Person other than
Purchaser, Parent, or their successors or permitted assigns, any rights or
remedies under or by reason of this Agreement.


 


7.8           Public Disclosure; Confidential Information.


 


(a)           Notwithstanding
anything herein to the contrary, each of the parties to this Agreement hereby
agrees with the other party hereto that no press release or similar public
announcement or communication shall be made or caused to be made concerning the
execution or performance of this Agreement unless the parties shall have agreed
in advance as to the contents thereof, except as such release or announcement
may be required by Law or the rules or regulations of any applicable
United States securities exchange or Governmental Authority to which the
relevant party is subject or submits, in which case the party required to make
the release or announcement shall use its reasonable best efforts to allow each
other party reasonable time to comment on such release or announcement in
advance of such issuance, it being understood that the final form and content
of any such release or announcement, to the extent so required, shall be at the
final discretion of the disclosing party.


 


(b)           For
purposes of this Section 7.8, “Confidential Information”
means confidential information in the possession or control of an Asset Selling
Corporation that relates to the Conveyed Assets, including technical,
manufacturing or marketing information, ideas, methods, developments,
inventions, improvements, business plans, trade secrets, scientific or
statistical data, diagrams, drawings, specifications or other proprietary
information relating thereto, together with all notes, analyses, compilations,
forecasts, studies or other documents, records or data prepared by an Asset
Selling Corporation or its directors, officers, employees, Affiliates,
representatives (including attorneys, accountants, consultants, bankers and
financial and other advisors) or agents (collectively, “Representatives”)
which contain or otherwise reflect or are generated from such information.  The term “Confidential Information” does not
include information which (i) is or becomes generally available to the
public other than as a result of a disclosure by an Asset Selling Corporation
or its Representatives, or (ii) is or becomes available to an Asset
Selling Corporation on a non-confidential basis from a source that is not bound
by a confidentiality agreement with, or other contractual, legal or fiduciary
obligation of confidentiality to, Purchaser or any other person with respect to
such information.


 


(c)           Each
Asset Selling Corporation shall treat all Confidential Information as
confidential, preserve the confidentiality thereof and not disclose any
Confidential Information, except in connection with the transactions
contemplated hereby and by the Ancillary Agreements, or in connection with the
exercise of rights or the satisfaction of obligations hereunder or thereunder.  Each Asset Selling Corporation shall use all
reasonable efforts to cause its Representatives to treat all Confidential
Information as confidential, preserve the confidentiality thereof and not
disclose any Confidential Information, as provided herein.  Each Asset Selling Corporation shall be
responsible for any breach of this Agreement by any of its
Representatives.  If, however, an Asset Selling Corporation is made aware
that Confidential Information has been disclosed as prohibited


 


27

















 


herein by it or its Representatives, Parent shall immediately notify
Purchaser in writing and take all reasonable steps required to prevent further
disclosure.


 


(d)           If
an Asset Selling Corporation or any of its Representatives is requested or
required (by oral questions, interrogatories, requests for information or
documents in legal proceedings, subpoena, civil investigative demand or other
similar process) or is required by operation of law to disclose any
Confidential Information, Parent shall provide Purchaser with prompt written
notice of such request or requirement, which notice shall, if practicable, be
at least 48 hours prior to making such disclosure, so that Purchaser may seek a
protective order or other appropriate remedy and/or waive compliance with the
provisions of this Agreement.  If, in the
absence of a protective order or other remedy or the receipt of such a waiver,
an Asset Selling Corporation or any of its Representatives are nonetheless, in
the opinion of counsel, legally compelled to disclose Confidential Information,
then such Asset Selling Corporation may disclose that portion of the
Confidential Information which such counsel advises is legally required to be
disclosed, provided such Asset Selling Corporation uses its reasonable efforts
to preserve the confidentiality of the Confidential Information, whereupon such
disclosure shall not constitute a breach of this Agreement.


 


7.9           Expenses.  Except as
otherwise expressly provided in this Agreement, whether or not the transactions
contemplated by this Agreement are consummated, all costs and expenses incurred
in connection with this Agreement and the transactions contemplated hereby
shall be borne by the party incurring such expenses.


 


7.10         Schedules.  The
disclosure of any matter in any Schedule to this Agreement shall be deemed to
be a disclosure for all purposes of this Agreement to which such matter could
reasonably be expected to be pertinent, but shall expressly not be deemed to
constitute an admission by any Asset Selling Corporation or Purchaser, or to
otherwise imply, that any such matter is material for the purposes of this
Agreement.


 


7.11         Governing Law.  This
Agreement shall be governed by the laws of the State of New York, its rules of
conflict of laws notwithstanding.


 


7.12         Waiver of Jury Trial.  Each party
hereby waives its rights to a jury trial of any claim or cause of action based
upon or arising out of or related to this Agreement or the subject matter
hereof.  The scope of this waiver is
intended to be all-encompassing of any and all disputes that may be filed in
any court and that relate to the subject matter of the transactions
contemplated hereby, including, contract claims, tort claims, breach of duty
claims, and all other common law and statutory claims.  This Section 7.12 has been fully
discussed by each of the parties and these provisions shall not be subject to
any exceptions.  Each party hereby
further warrants and represents that such party has reviewed this waiver with
its legal counsel and that such party knowingly and voluntarily waives its jury
trial rights following consultation with legal counsel.  This waiver is irrevocable, meaning that it
may not be modified either orally or in writing, and this waiver shall apply to
any subsequent amendments, supplements or modifications to (or assignments of)
this Agreement.  In the event of
litigation, this Agreement maybe filed as a written consent to a trial (without
a jury) by the court.


 


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7.13         Counterparts.  This Agreement
may be executed in two or more counterparts, all of which shall be considered
one and the same agreement and shall become effective when one or more
counterparts have been signed by each of the parties and delivered to
the other party, it being understood that all parties need not sign the same
counterpart.  A facsimile or PDF
signature of this Agreement shall be valid and have the same force and effect
as a manually signed original.


 


7.14         Headings.  The heading
references herein and the table of contents hereto are for convenience purposes
only, do not constitute a part of this Agreement and shall not be deemed to
limit or affect any of the provisions hereof.


 


7.15         Severability.  In the event
that any provision of this Agreement or the application thereof, becomes or is
declared by a court of competent jurisdiction to be illegal, void or
unenforceable, the remainder of this Agreement will continue in full force and
effect and the application of such provision to other Persons or circumstances
will be interpreted so as reasonably to effect the intent of the parties
hereto.  The parties further agree to
replace such void or unenforceable provision of this Agreement with a valid and
enforceable provision that will achieve, to the greatest extent possible, the
economic, business and other purposes of such void or unenforceable provision.


 


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IN WITNESS WHEREOF, the parties have executed or caused this Asset
Purchase Agreement to be executed as of the date first written above.


 


 


	
  PARENT:

  	
   

  	
  PURCHASER:

  
	
   

  	
   

  	
   

  
	
  American Medical
  Systems, Inc.,

  	
   

  	
  Conceptus, Inc.,

  
	
  a Delaware
  corporation 

  	
   

  	
  a Delaware
  corporation

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Anthony P.
  Bihl III

  	
   

  	
  By:

  	
  /s/ Mark M.
  Sieczkarek

  
	
  Name:

  	
  Anthony P. Bihl
  III

  	
   

  	
  Name:

  	
  Mark M. Sieczkarek

  
	
  Title:

  	
  President and
  CEO

  	
   

  	
  Title:

  	
  CEO and
  President