Exhibit 10.2


 


ASSET PURCHASE AGREEMENT


 


By and Among


 


SYMMETRY MEDICAL NEW BEDFORD, LLC


and


SYMMETRY NEW BEDFORD REAL ESTATE, LLC


(Collectively the Purchaser)


 


and


 


DEPUY ORTHOPAEDICS, INC.


(Seller)


 


DATED: December 14, 2007


 

















 


ASSET PURCHASE AGREEMENT


 


ASSET PURCHASE AGREEMENT (“Agreement”),
dated as of December 14, 2007, between Symmetry Medical New Bedford, LLC,
a Delaware limited liability company and Symmetry New Bedford Real Estate, LLC,
a Delaware limited liability company (collectively, the “Purchaser”), and DePuy
Orthopaedics, Inc., an Indiana corporation (“Seller”).


 


WITNESSETH:


 


WHEREAS, Seller is
in the business of developing, designing, manufacturing, marketing,
distributing and selling orthopaedic implants, instruments and related
accessories and products in the United States and worldwide through itself, its
subsidiaries and affiliates;


 


WHEREAS, Purchaser
wishes to purchase or acquire from Seller, and Seller wishes to convey, sell,
assign and transfer or cause to be conveyed, sold, assigned and transferred to
Purchaser, all of the assets (excluding assets in the GIC area), real estate
and properties solely related to Seller’s New Bedford, Massachusetts facility
(the “Division”), all for the purchase price and upon the term and subject to
the conditions hereinafter set forth;


 


NOW, THEREFORE, in
consideration of the mutual covenants, representations and warranties made
herein, and of the mutual benefits to be derived hereby, the parties hereto
agree as follows:


 


ARTICLE 1


 


DEFINITIONS


 


The terms defined in this Article 1, whenever used in this
Agreement (including in the Schedules), shall have the respective meanings
indicated below for all purposes of this Agreement unless otherwise indicated. All
references herein to a Section, Article or Schedule are to a Section, Article
or Schedule of or to this Agreement, unless otherwise indicated.


 


“Affiliate”
means, with respect to a given party, any entity that, directly or indirectly,
controls, is controlled by or is under common control with such party. For
purposes of this paragraph, “control” shall mean the ownership or interest in
50% or more of such entity or possession of the power to direct or cause the
direction of management or policies of such entity whether through ownership of
voting securities, by contract or otherwise.


 


“Applicable Law” means all applicable provisions of all (i)
constitutions, treaties, statutes, laws (including the common law and Real
Property Laws), rules, regulations, ordinances, codes or orders of any
Governmental Authority, (ii) Governmental Approvals and (iii) orders,
decisions, injunctions, judgments, awards and decrees of or agreements with any
Governmental Authority.


 


“Assets” shall mean collectively the equipment and other items as
defined in Section 2.1 as well as the Real Property as defined below and
described on Schedule 2.1.


 

















 


“Business Day” shall mean a day other than a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required to
close.


 


“Closing” as defined in Section 3.1.


 


“Closing Date” as defined in Section 3.1.


 


“Code” means the Internal Revenue Code of 1986, as amended from time to
time and the regulations promulgated thereunder.


 


“Collateral Agreements” mean the agreements and other documents and
instruments described in Section 6.4.


 


“Commercial Software” means the Software utilized by Seller in
connection with the Division that is not owned by Seller.


 


“Comparable Employment” means a position that has a substantially
similar job description and substantially similar base rate of pay.


 


“Confidentiality Agreement” means the confidentiality agreement entered
into between Seller and Symmetry Medical Inc. dated March 16, 2007.


 


“Consent” means any consent, approval, authorization, waiver, permit,
grant, franchise, concession, agreement, license, exemption or order of,
registration, certificate, declaration or filing with, or report or notice to,
any Person, including but not limited to any Governmental Authority.


 


“Contract” as defined in Section 4.1.10(a).


 


“Continuing Employee” shall mean any individual identified pursuant to
Section 7.1.


 


“Damages” shall mean losses, Liabilities, deficiencies, costs and
expenses directly incurred by a party (and if applicable, reasonable attorneys’
fees associated therewith).


 


“Division” means that certain manufacturing plant located on the Real
Property.


 


“Dollars” or “$” means lawful money of the United States of America.


 


“Employee” means a full time employee of the Seller who is located at
the Division.


 


 “Environmental Assessment” as
defined in Section 5.2.4.


 


“Environmental Laws” means all Applicable Laws relating to the
protection of the environment, to human health and safety, or to the
preservation or reclamation of natural resources or to the management,
handling, use, generation, treatment, storage, transportation, disposal,
manufacture, distribution, formulation, packaging, labeling, whether now
existing or subsequently amended or enacted,


 


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“Environmental Liabilities” means all (i) losses arising out of the
ownership or operation of the Division by the Seller on, under, above, or about
the Real Property; and (ii) expenditures necessary to cause the Real Property
to be in compliance with any and all material Environmental Laws as of the
Closing Date as a result of any act or omission of Seller.


 


“Environmental Permits” means any federal, state and local permit,
license, registration, consent, order, administrative consent order,
certificate, approval or other authorization of Seller exclusively related to
the Division.


 


“ERISA” means the Employee Retirement Income Security Act of 1974, as
amended.


 


“Excluded Assets” as defined in Section 2.2.


 


“Excluded Liabilities” shall have the meaning set forth in Section 3.5.


 


“Financial Statements” means those statements set forth at Schedule
4.1.22(a).


 


“GAAP” means
generally accepted accounting principles as in effect in the United States.


 


“GIC” means
Global Instrument Center of Seller, which support Seller’s product development
at the Division.


 


“GIC Employees”
means the group of Seller employees at the Division who support the Global
Instrument Center product development efforts.


 


“Governmental Approval” means any Consent of, with or to any
Governmental Authority.


 


“Governmental Authority” means any nation or government, any state or
other political subdivision thereof, any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.


 


“Indemnified Party” as defined in Section 9.2.


 


“Indemnifying Party” as defined in Section 9.2.


 


“Intellectual Property” means all United States and foreign (a)
copyrights and similar rights, (b) the United States and foreign letters patent
(including docketed patent disclosures awaiting filing, provisionals, reissues,
revisions, divisions, continuations, continuations-in-part, extensions and
re-examinations), patent disclosures awaiting filing determination, and
improvements thereto, inventions (whether patentable or unpatentable and
whether or not reduced to practice), and improvements thereto, processes,
designs, formulae, trade secrets, know-how ideas, research and development,
manufacturing and production processes and techniques, technical data,
copyrightable works, engineering notebooks, databases, customer lists,
confidential information, (c) Software, firmware, Internet Web sites (including
the content thereof), (d) mask works and other semiconductor chip rights and
applications, registrations and renewals thereof, (e) all similar intellectual
property rights and know-how (including moral rights), (f) all rights to sue
for and remedies against past, present and future infringements of any 


 


4

















 


or all of the foregoing, (g) rights of priority and protection of
interests therein under the laws of any jurisdiction, and tangible embodiments
of any of the foregoing (in any medium including electronic media), and (h)
licenses of any of the foregoing.


 


“Intellectual
Property Know How” means the manufacturing process know how to enable Purchaser
to manufacture products under the Supply Agreement after the Closing.


 


“Inventories” shall mean finished goods inventory located at the
Division, work-in-process inventory and raw material(s) inventory and all other
inventory located at the Division.


 


“IRS” means the Internal Revenue Service.


 


“Key Employee” shall mean a member of the current management group
located on site at the Division.


 


“Leased Property” means all leased personal property, including office
equipment and machinery, located at the Division.


 


“Leases” means the real property lease between the Purchaser and the
Seller related to the GIC area.


 


“Liability” or “Liabilities” means any and all debts,
liabilities and/or obligations of any type, nature or description (whether
known or unknown, asserted or unasserted, secured or unsecured, absolute or
contingent, accrued or unaccrued, liquidated or unliquidated and whether due or
to become due).


 


“Lien” means any mortgage, pledge, hypothecation, right of others,
claim, security interest, encumbrance, lease, sublease, license, occupancy
agreement, adverse claim or interest, easement, covenant, encroachment, burden,
title defect, title retention agreement, voting trust agreement, conditional
sale or other title retention agreement, interest, equity, option, lien, right
of first refusal, charge or other restrictions or limitations of any nature
whatsoever, whether caused or permitted by act, failure to act, operation of
law or otherwise, including but not limited to such as may arise under any
Contracts.


 


“Material Adverse Effect” means any event, occurrence, fact, condition,
change or effect that has a materially adverse change or effect, respectively,
on the Division, Assets, Assumed Liabilities, operations or results of
operations of the Division, prospects, or condition (financial or otherwise) of
the Division, taken as a whole, except any such change or effect resulting from
or arising in connection with (i) this Agreement or the transactions contemplated
hereby, (ii) changes in economic, regulatory or political conditions generally;
or (iii) changes or conditions affecting the medical device industry or market
for such medical device products generally; or (iv) changes or effects that are
the result of actions taken by Purchaser that have an effect on the Division.


 


“Material Contracts” shall mean each written contract, agreement or
commitment of Seller currently in effect which is related to the operation of
the Division, which (i) has an unexpired term greater than twelve (12) months
or (ii) requires aggregate future payments in 


 


5

















 


excess of  $50,000 by Seller or
the other party thereto or (iii) a license agreement in effect with respect to
any portion of the Intellectual Property Know How that is material to the
Division.


 


“Ordinary Course” means an action taken by a Person only if:


 


(i)            such action is consistent with the past
practices of such Person or is taken in the ordinary course of the normal day-to-day
operations of such Person; and


 


(ii)           such action is not required to be authorized
by the board of directors of such Person (or by any Person or group of Persons
constituting a governing body of a Person exercising similar authority).


 


“Permitted Encumbrances” shall mean (i) easements, encroachments,
rights of way and other such restrictions of record which are disclosed by the
Title Commitment (as hereinafter defined) and the Survey (as hereinafter
defined); provided that such matters, if any, do not individually or in the
aggregate, (a) materially detract from the value or interfere with the current
use of the Assets in a significant manner, (b) substantially interfere with or
impair the operation or value of the Division or current use or occupancy of
the Real Property; or (c) render title unmarketable; and (ii) building, zoning
or subdivision laws or ordinances and other similar laws or governmental rules
and regulations applicable to and having jurisdiction over the Real Property.


 


“Permitted Liens” shall mean  (i)
all statutory liens for current Taxes or assessments not yet due and payable or
delinquent or the validity of which are being contested in good faith and by
appropriate proceedings, (ii) mechanics’, materialsmen’s, warehousemen’s’ and
similar liens attaching by operation of law, incurred in the Ordinary Course of
business and securing payments not delinquent or payments which are being
contested in good faith; (iii) such other liens incurred or deposits made in
the Ordinary Course of business in connection with worker’s compensation,
unemployment insurance, social security and other similar laws where the
underlying obligations are not yet delinquent; or (iii) such other liens, which
individually and in the aggregate, are not material to the Division.


 


“Person” means any natural person, firm, partnership, association,
corporation, company, trust, business trust, joint venture, limited liability
company, or other entity whether incorporated or not.


 


“Plan” or “Plans” as defined in Section 4.1.18.


 


“Purchase Price” as defined in Section 3.2.


 


“Purchase Price Adjustment” as defined in Section 3.3.


 


“Purchaser” as defined in the first paragraph of this Agreement.


 


“Purchaser Indemnities” as defined in Section 9.1(a).


 


“Purchaser’s Accountants” means Ernst & Young LLP.


 


6

















 


“Purchaser’s Knowledge” means the actual knowledge of Purchaser,
Purchaser’s Affiliates, Purchaser’s employees and/or Affiliate’s employees
involved directly in the transaction contemplated by this Agreement.


 


“Real Property” means the real property located at 61 John Vertente
Boulevard, New Bedford, Massachusetts, as more particularly described on
Schedule 2.1, owned by Seller or Seller’s Affiliate Codman & Shurtleff,
Inc., together with all other structures, facilities, improvements, signage,
fixtures and systems and all easements, licenses, options, permits, rights and
appurtenances relating to the foregoing.


 


“Real Property Laws” as defined in Section 4.1.15(e).


 


“Release” means any releasing, disposing, discharging, injecting,
spilling, leaking, leaching, pumping, dumping, emitting, escaping, emptying,
seeping, dispersal, migration, transporting, placing or other releasing into
the environment, whether intentional or unintentional.


 


“Remedial Action” means all actions required to (i) clean up, remove,
treat or in any other way remediate any failure to comply with any
Environmental Laws.


 


“Salaried Employee” means an employee who receives a predetermined
amount of pay per pay period regardless of the number of hours worked or the
amount of work performed.


 


“Seller” as defined in the first paragraph of this Agreement.


 


“Seller’s Knowledge” means the actual knowledge of the Worldwide Vice
President of Operations, Edward Mackey, US Director of Purchasing, Rod
Wilson,  and does not include any other
directors, officer, employee, agent or representative of Seller or any
Affiliate of Seller.


 


“Software” means all computer software, including but no limited to,
application software and system software, including all source code and object
code versions thereof, in any and all forms and media, whether recorded on
paper, magnetic media or other electronic or non-electronic media (including
data and related documentation, user manuals, training materials, flow charts,
diagrams, descriptive tests and programs, computer print-outs, underlying
tapes, computer databases and similar terms), integrated circuits, embedded
systems, and other electro-mechanical or processor based systems.


 


“Subsidiaries” means each corporation or other Person in which a Person
owns or controls, directly or indirectly, capital stock or other equity
interests representing at least 50% of the outstanding voting stock or other
equity interests.


 


“Supply Agreement” as defined in Section 6.4(a).


 


“Taxes” means, all present or future (i) real and personal property
taxes, (ii) value added, sales or use taxes, and (iii) payroll, withholding
and/or social security taxes, imposed by any federal, state, county, or local
government, or a subdivision, agency or taxing district thereof and is limited
to Taxes associated with the Assets sold under this Agreement.


 


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“Treasury Regulations” means the regulations prescribed pursuant to the
Code.


 


ARTICLE 2


 


SALE AND PURCHASE OF THE ASSETS


 


2.1.         Assets.


 


(a)           On
the Closing Date and subject to and upon the terms and conditions set forth in
this Agreement, Seller will sell, transfer, convey, assign and deliver or will
cause to be sold, assigned, transferred or delivered to Purchaser all of the
right, title and interest in and to the assets solely related to the Division
(the “Assets”), a list of which Assets is set forth on Schedule 2.1. Such
Assets shall not include Excluded Assets as set forth in Schedule 2.2.


 


(b)           Such
transfers, except as provided herein, will be effected by transferring to
Purchaser such good and sufficient instruments of conveyance, transfer and
assignment (the “Asset Transfer Documents”) as shall be necessary to transfer
to Purchaser good and valid title to the Assets, free and clear of all Liens
except Permitted Encumbrances and Permitted Liens. Purchaser and Seller shall
execute on or prior to the Closing Date, such Asset Transfer Documents and
other documents as may be necessary to affect the transfer of the Assets.


 


2.2.         Excluded Assets. Seller
will retain and not transfer the following assets of the Division;


 


(a)           the assets listed on Schedule 2.2;


 


(b)           the name, marks and logos “DePuy
Orthopaedics” and all variations thereof;


 


(c)           Seller’s and Seller’s Affiliates’ names,
logos, trade names and trademarks;


 


(d)           all Intellectual Property associated with
specific DePuy product designs;


 


(e)           all Intellectual Property including know-how relating to
the Codman Cranial Perforator manufacturing process;


 


(f)            all Intellectual Property including know-how  relating
to the Type II Anodization process for Trauma Screws and Orthopaedic bone
screws;


 


(g)           all Intellectual Property including know-how  relating
to Di-electric insulating Kynar coating for bi-polar forceps; and


 


(h)           all cash and tax refunds; and


 


(i)            Software licenses used by Seller in
connection with the Assets or Division that cannot be transferred to a third
party (collectively, the “Excluded Assets”).


 


8

















 


ARTICLE 3


 


THE CLOSING


 


3.1.         Place and Date. The
closing of the sale and the purchase of the Assets (the “Closing”) shall take
place at 9:00 A.M. on the 25th day of January, 2008 at the
offices of Barrett & McNagny, LLP, 215 East Berry Street, Fort
Wayne, Indiana, or such other time and place upon which the parties may agree
in writing prior to the scheduled Closing Date. The day on which the Closing
actually occurs is herein sometimes referred to as the “Closing Date.”


 


3.2.         Purchase Price. On
the terms and subject to the conditions set forth in this Agreement, Purchaser
agrees to pay Seller an aggregate of $45,000,000 in cash, subject to any
adjustment required by Section 3.3 (the “Purchase Price”). The Purchase
Price shall be payable by wire transfer to such bank account or accounts per
written instructions of Seller and given to Purchaser at least five (5)
business days prior to the Closing to which such payment relates.


 


3.3.         Purchase Price Adjustment.
The Purchase Price will be adjusted,
dollar for dollar, for any difference exceeding the amount of $25,000 between
the value of the Inventory at Closing, as determined in accordance with Seller’s
accounting practices at the Division, consistently applied, and the average
monthly sum of such Inventory for the twelve (12) months ending immediately
preceding the month that includes the Closing Date using the same practices. If
the Closing Inventory discloses a positive net change, then the amount of such
positive change shall be added on a dollar-for-dollar basis to the Purchase
Price. If the Closing Inventory discloses a negative net change, then the
Purchase Price shall be reduced on a dollar-for-dollar basis by the amount of
such negative net change.


 


3.4.         Allocation of Purchase
Price.


 


(a)           The parties
will make reasonable efforts, prior to Closing, to agree on an allocation of
the Purchase Price (“the Allocation”) among the Assets based upon an initial
proposal submitted by Purchaser. If an initial agreement is reached, the final
allocation will take into account any purchase price adjustment. The final
allocation will be submitted by Purchaser to Seller for Seller’s review within
60 days after the Closing. If a final agreement is reached, Purchaser and
Seller will (i) act in accordance with the Allocation in the preparation of
financial statements and the filing of all Tax returns (including, without
limitation, filing Form 8594 with its federal income Tax return for the taxable
year that includes the date of the Closing) and (ii) take no position
inconsistent with the Allocation for all Tax purposes.


 


(b)           In
connection with the determination of the foregoing Allocation, the parties
shall cooperate with each other and provide such information as any of them
shall reasonably request. In the event of any disagreement between the parties
as to such allocation, the parties will seek the advice of a third party
regional or national accounting firm to assist in resolution of the
disagreement. The parties will each report the federal, state and local and
other Tax consequences of the purchase and sale contemplated hereby (including
the filing of Internal Revenue Service Form 8594) in a manner consistent
with such Allocation.


 


3.5.         Excluded Liabilities. Notwithstanding
any provision hereof or any Schedule or Exhibit hereto to the contrary, and
regardless of any disclosure to Purchaser, Purchaser shall not 


 


9

















 


assume any Liabilities, obligations or commitments of the Seller
relating to or arising out of the operation of the Division or the ownership of
the Assets prior to the Closing, provided that Purchaser shall assume all
liability including product liability claim arising from products sold by
Purchaser after the Closing Date (regardless of whether such products are
finished goods or work in process) or components of products manufactured by or
at the Division prior to the Closing Date (the “Excluded Liabilities”).


 


3.6.         Consent of Third Parties.
Notwithstanding anything to the contrary in this Agreement, this Agreement
shall not constitute an agreement to assign or transfer any interest in any
Governmental Approval, instrument, contract, lease, permit or other agreement
or arrangement or any claim, right or benefit arising thereunder or resulting therefrom
if an assignment or transfer or an attempt to make such an assignment or
transfer without the consent of a third party would constitute a breach or
violation thereof or affect adversely the rights of Purchaser or Seller
thereunder; and any transfer or assignment to Purchaser by Seller of any
interest under any such instrument, contract, lease, permit or other agreement
or arrangement that requires the consent of a third party shall be made subject
to such consent or approval being obtained. In the event any such Consent or
approval is not obtained on or prior to the Closing Date, each party shall
continue to use all reasonable efforts to obtain any such approval or Consent
after the Closing Date until such time as such Consent or approval has been obtained
in a lawful and economically feasible arrangement so as to provide that
Purchaser shall receive the interest of Seller, as the case may be, in the
benefits under any such instrument, contract, lease or permit or other
agreement or arrangement, including performance by Seller, as the case may be,
as agent, if economically feasible, provided that to the extent the foregoing
shall require any action by Seller that would, or would continue to, affect the
Division after the Closing, such action shall require the prior written consent
of the Purchaser, which consent shall not be unreasonably withheld and provided
Purchaser shall undertake to pay or satisfy the corresponding Liabilities for
the enjoyment of such benefit to the extent Purchaser would have been
responsible therefore hereunder if such Consent or approval had been obtained.


 


3.7.         Real Property Prorations.
The following provisions shall govern the apportionment of income and
expenses with respect to the Real Property:


 


3.7.1.      Utilities. Seller shall
attempt to arrange for final meter readings on all utilities at the Real
Property to be taken prior to the Closing Date. Seller shall be responsible for
the payment of utilities used through the day preceding the Closing Date and
Purchaser shall be responsible for the payment of utilities used on or after
the Closing Date. With respect to any utility for which there is no meter, the
expenses for such utility shall be prorated between Seller and Purchaser at
Closing based upon the most current bill for such utility. Purchaser shall use
commercially reasonable efforts to cause the transfer of utility company
accounts from Seller to Purchaser as of the Closing Date. All deposits with
utility companies will be returned to Seller upon Purchaser’s receipt of the
same. Should Seller receive any bills or statements for utility services
provided on or after the Closing Date, it shall promptly inform the utility it
has sold the Division and give the bill or statement to the Purchaser.


 


3.7.2.      Taxes. Real Property taxes
and special assessments (and charges in the nature of or in lieu of such
assessments) on the Real Property for all fiscal years prior to 


 


10

















 


the year of Closing shall be assumed and paid by Seller at or prior to
Closing. The Real Property taxes and special assessments (and charges in the
nature of or in lieu of such assessments) for and due in the 2008 fiscal year(1)
on the Real Property shall be prorated through the Closing Date based on the
last available tax bill records, and Purchaser shall receive a credit at
Closing for all unpaid amounts owed by Seller for the time period beginning
July 1, 2007 and ending on and including the Closing Date. Purchaser shall be
responsible for all taxes and special assessments (and charges in the nature of
or in lieu of such assessments) attributable to the Real Property after the
Closing Date. If Seller has prepaid any taxes and special assessments (and
charges in the nature of or in lieu of such assessments) attributable to the
Real Property for a period extending beyond the Closing Date, Seller shall be
reimbursed by Purchaser at Closing or promptly thereafter if Purchaser later
becomes aware of such prepaid tax or assessment.


 


3.7.3.      Timing. The prorations
described in this Section 3.7 shall be made on the Closing Date, as if
Purchaser were vested with title to the Real Property during the entire day
upon which Closing occurs. All prorations described in this Section shall be
effectuated by increasing or decreasing, as the case may be, the amount of cash
to be paid by Purchaser to Seller at Closing.


 


3.7.4.      Survival. The provisions
of this Section 3.7 shall expressly survive Closing.


 


ARTICLE 4


 


REPRESENTATIONS AND WARRANTIES


 


4.1.         Seller’s Representations
and Warranties. Buyer acknowledges and agrees that the Assets are sold on
an “as is, where is” basis and Buyer agrees to accept the Assets in the
condition they are in at the place they are located on the Closing Date based
on its own inspection, examination and determination with respect to all
matters and without reliance upon any express or implied representations or
warranties of any nature, except as expressly set forth in this Agreement. Without
limiting the generality of the foregoing and except for the Minimum Purchases
as defined in the Supply Agreement, Seller makes no representation or warranty
with respect to any forecasts, projections, estimates or budgets delivered or
made available to buyer of future revenues, future results of operations,
future cash flows or future financial conditions of the Division. Subject to
the foregoing Seller represents and warrants to Purchaser as the date hereof as
follows:


 


4.1.1.      Authorization. Seller
has the corporate power and authority to execute and deliver the Agreement, the
Asset Transfer Documents and the Collateral Agreements and other agreements
related to this transaction to which it is a party, to perform fully its
obligations thereunder, and to consummate the transactions contemplated thereby.
The execution and delivery by Seller of this Agreement, and the consummation of
the transactions contemplated hereby, have been duly authorized by all
requisite corporate 






(1) Seller and Purchaser acknowledge that the 2008 fiscal year for real
estate tax purposes commenced on July 1, 2007 and ends on June 30, 2008, and
that the real estate taxes owing for the 2008 fiscal year are payable in four
(4) equal installments in August of 2007, in November of 2007, in February of
2008 and in May of 2008.


 


11

















 


action of Seller and its parent company. Seller has duly executed and
delivered this Agreement and Seller will have duly executed and delivered each
of the Asset Transfer Documents and Collateral Agreements to which it is a
party. This Agreement is, and on the Closing Date each of the Asset Transfer
Documents and Collateral Agreements to which Seller is a party will be, legal,
valid and binding obligations of Seller, enforceable against it in accordance
with their respective terms. On the Closing Date each of the Asset Transfer
Documents and Collateral Agreements to which Seller is a party will be legal,
valid and binding obligations of Seller executing such agreements, enforceable
against it in accordance with their respective terms.


4.1.2.      Corporate Status.


 


(a)           Seller is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation or organization, with full corporate power and authority to carry
on its business and to own or lease and to operate its properties as and in the
places where such business is conducted and such properties are owned, leased
or operated.


 


(b)           Seller is duly qualified or licensed to do
business and is in good standing in Massachusetts.


 


4.1.3.      No Conflicts, etc. The
execution, delivery and performance by Seller of this Agreement and each of the
Collateral Agreements to which it is a party, and the consummation of the
transactions contemplated thereby, do not and will not conflict with,
contravene, result in a violation or breach of or default under (with or
without the giving of notice or the lapse of time or both), give rise to a
right or claim of termination, amendment, modification, vesting, acceleration
or cancellation of any right or obligation or loss of any material benefit
under, or result in the creation of any Lien (or any obligation to create any
Lien) upon any of the Assets under (i) any Applicable Law applicable to
Seller  thereof or any of the properties
or assets of  Seller (including but not
limited to the Assets), (ii) the certificate of incorporation or bylaws or
other organizational documents of Seller or (iii) except as set forth in
Schedule 4.1.3, any Contract or other contract, agreement or other
instrument to which  Seller  thereof is a party or by which  Seller or any of their properties or assets,
including but not limited to the Assets, may be bound or affected; provided,
however, that no contravention detailed above shall be deemed a conflict unless
or until it would have Material Adverse Effect on the Division. Except as
specified in Schedule 4.1.3, no Governmental Approval or other Consent is
required to be obtained or made by Seller in connection with the execution and
delivery of this Agreement and the Collateral Agreements or the consummation or
performance of the transactions contemplated thereby.


 


4.1.4.      Absence of Undisclosed
Liabilities. To Seller’s Knowledge, Seller has no Liabilities, whether
known or threatened, arising out of or relating to the Division or the Assets,
except (a) as set forth in Schedule 4.1.4, and (b) for Liabilities and
obligations that (i) were incurred after the date of this Agreement in the
Ordinary Course of business consistent with prior practice and (ii) will not
have or result in, a Material Adverse Effect.


 


12

















 


4.1.5.      Absence of Certain Changes
and Events. Except as set forth in Schedule 4.1.5, since the date of
October 26, 2007 (the fiscal month end for October 2007 in the Financial
Statements), Seller has conducted the Division only in the Ordinary Course of
business consistent with prior practice and has not, on behalf of, in
connection with or relating to the Division or the Assets:


 


(a)           suffered any Material Adverse Effect;


 


(b)           incurred any obligation or Liability,
absolute, accrued, contingent or otherwise, whether due or to become due,
except current Liabilities for trade or business obligations incurred in
connection with the purchase or goods or services in the Ordinary Course of business
consistent with prior practice, none of which Liabilities, in any case or in
the aggregate, could have a Material Adverse Effect;


 


(c)           discharged or satisfied any Lien other than
those then required to be discharged or satisfied, or paid any obligation or
Liability, absolute, accrued, contingent or otherwise, whether due or to become
due, other than current Liabilities shown on the Balance Sheet and current
Liabilities incurred since the date thereof in the Ordinary Course of business
consistent with prior practice;


 


(d)           assigned, mortgaged, pledged or otherwise
subjected to Lien, any property, business or assets, tangible or intangible, of
the Division;


 


(e)           sold, transferred, leased to others or
otherwise disposed of any of the Assets, except for Inventory sold in the
Ordinary Course of business, or forgiven, canceled or compromised any debt or
claim, or waived or released any right of substantial value;


 


(f)            received any notice of termination of any
contract, lease or other agreement or suffered any damage, destruction or loss
(whether or not covered by insurance) which has had a Material Adverse Effect;


 


(g)           except in the Ordinary Course, made any
change in the rate of compensation, commission, bonus or other direct or
indirect remuneration payable, or paid or agreed or orally promised to pay,
conditionally or otherwise, any bonus, incentive, retention or other
compensation, retirement, welfare, fringe or severance benefit or vacation pay,
to or in respect of any Employee;


 


(h)           failed to replenish the Division’s
Inventories and supplies in a normal and customary manner consistent with its
prior practice and prudent business practices prevailing in the industry, or
made any purchase commitment in excess of the normal, ordinary and usual
requirements of its business or at any price in excess of the then current
market price or upon terms and conditions more onerous than those usual and
customary in the industry.


 


(i)            except in the Ordinary Course of business,
increased the compensation or promoted any Key Employee; or


 


13

















 


(j)            made any capital expenditure or capital
additions or improvements regarding the Division or Assets in excess of
$50,000, without the prior written Consent of Purchaser; or


 


(k)           taken any action or omitted to take any
action that would result in the occurrence of any of the foregoing.


 


4.1.6.      Litigation. Except as
set forth on Schedule 4.1.6, there is no action, claim, demand, suit,
proceeding, arbitration, grievance, citation, summons, subpoena, inquiry or
investigation of any nature, civil, criminal, regulatory or otherwise, in law
or in equity, pending or to Seller’s Knowledge threatened against Seller in
connection with the Assets or the Division relating to or arising out of the
transactions contemplated by this Agreement, and Seller knows of no reason to
be aware of any basis for the same.


 


4.1.7.      Compliance with Laws;
Governmental Approvals and Consents; Governmental Contracts.


 


(a)           Except as disclosed in
Schedule 4.1.7(a) Seller has complied in all material respects with all
Applicable Laws applicable to the Division and the Assets.


 


(b)           Schedule 4.1.7(b) sets forth all
material Governmental Approvals and other Consents necessary for, or otherwise
material to, the operation of the Division. Except as set forth in
Schedule 4.1.7(b), all such Governmental Approvals and Consents have been
duly obtained and are in full force and effect, and Seller is in compliance
with each of such Governmental Approvals and Consents held by it with respect
to the Assets and the Division.


 


(c)           To Seller’s Knowledge, there are no proposed
laws, rules, regulations, ordinances, orders, judgments, decrees, governmental
takings, condemnations or other proceedings which would be applicable to the
Division or the Assets and which would have a Material Adverse Effect before
the Closing Date.


 


4.1.8. [Deliberately
left blank]


 


4.1.9. Assets. Except
as disclosed in Schedule 4.1.9, title to all the Assets will be conveyed
or transferred free and clear of any and all Liens other than Permitted Liens
and/or Permitted Encumbrances. The Assets, other than the Excluded Assets and
all Intellectual Property Rights of Seller not used solely in the Division,
together with the services and arrangements described in Section 4.1.9,
comprise all assets and services primarily required for the continued operation
of the Division.


 


4.1.10. Contracts.


 


(a)           Schedule 4.1.10(a) contains a complete
and correct list of all material written agreements, contracts, commitments and
other instruments and arrangements of Seller (x) by which any of the Assets are
bound or affected or (y) which are solely related to the Division or the Assets
other than purchase orders and other agreements worth less than $100,000 (the “Contracts”):


 


14

















 


(i)            leases, licenses, permits, franchises,
insurance policies, Governmental Approvals and other contracts concerning or
relating to the Real Property;


 


(ii)           employment, consulting, agency, collective
bargaining or other similar contracts, agreements, and other instruments and
arrangements relating to or for the benefit of current, future or former
employees, officers or directors;


 


(iii)          licenses, licensing arrangements and other
contracts providing in whole or in part for the use of, or limiting the use of,
any Intellectual Property Know How;


 


(iv)          any agreements relating to the acquisition,
sale, lease or disposal of the Division or any Assets (other than sales of
inventory in the Ordinary Course of business) or involving continuing indemnity
or other obligations;


 


(v)           orders and other contracts for the purchase
or sale of materials, supplies, products or services;


 


(vi)          lease agreements providing for the leasing of
personal property primarily used in, or held for use primarily in connection
with, the Division ;


 


(vii)         contracts, agreements or commitments with any
employee of Seller;


 


(viii)        As related to the Division,  contracts
containing covenants that in any way purport to restrict Seller’s business
authority or limit the freedom of Seller to engage in any line of business or
compete with any Person; and


 


(ix)           any other contracts, agreements or
commitments that are material to the Division.


 


(b)           Seller has delivered to Purchaser complete
and correct copies of all written Contracts, together with all amendments
thereto set forth or required to be set forth in Schedule 4.1.10(a).


 


(c)           Except as set forth in
Schedule 4.1.10(c), all Contracts are in full force and effect and
enforceable against each party thereto.


 


4.1.11. Inventories. All
Inventories are of good, usable and merchantable quality in all material
respects and, except as set forth on Schedule 4.1.11, do not include
obsolete or discontinued items as determined by Seller’s accounting practices
at the Division. In addition,


 


a) all Inventories are of such quality as to
meet the quality control standards of the Seller, and


 


b) all Inventories are located at the
division.


 


15

















 


4.1.12. Suppliers; Raw Materials. Schedule 4.1.12
sets forth (a) the names and addresses of all material suppliers from which the
Division ordered raw materials, supplies, merchandise and other goods and
services with an aggregate purchase price for each such supplier of $25,000 or
more during the twelve (12) month period ended July 31, 2007 and (b) the
amount for which each such supplier invoiced the Seller relating to the
Division during such period. Seller has not received any notice or has any
reason to believe that there has been any material adverse change in the price
of such raw materials.


 


4.1.13. [Deliberately left blank]


 


4.1.14. Intellectual Property.


 


(a)           Title. For purposes of clarification only,
no Intellectual Property is being sold in connection with the Division.


 


(b)           Seller agrees to take any and all
commercially reasonable actions necessary under Applicable Law to ensure that
Purchaser has use of and rights to the Intellectual Property Know How in
connection with Purchaser’s obligations under the Supply Agreement. Seller also
agrees to perform such other acts as Purchaser may reasonably require to enable
Purchaser to perform its obligations pursuant to the Supply Agreement.


 


4.1.15. Real Property.


 


(a)           Real Property. Seller on the Closing Date
will convey or cause to be conveyed to Symmetry New Bedford Real Estate, LLC
good and marketable fee simple title to the Real Property described on
Schedule 4.1.15(a) as being owned by Seller or an Affiliate, free and
clear of any and all Liens other than Permitted Liens and/or Permitted Encumbrances.
There are no outstanding options or rights of first refusal to purchase the
Real Property, or any portion thereof or interest therein.


 


(b)           Fee and Leasehold
Interests, etc. The Real Property constitutes all the fee interests in real
property which will be transferred to Purchaser pursuant to this Agreement.


 


(c)           No Proceedings. To Seller’s Knowledge, there
are no condemnation, eminent domain or other similar proceedings, suits or
actions, pending or threatened affecting any portion of the Real Property. To
Seller’s Knowledge, there is no writ, injunction, decree, order or judgment
outstanding, nor any action, claim, suit or proceeding, pending or threatened,
relating to the ownership, lease, use, occupancy or operation by any Person of
the Real Property.


 


(d)           Current Use. The use and operation of the
Real Property in the conduct of the Division does not violate in any material
respect any instrument of record or agreement affecting the Real Property. To
Seller’s Knowledge, there is no violation of any covenant, condition,
restriction, easement or order of any Governmental Authority having
jurisdiction over such property or of any other Person entitled to enforce the
same 


 


16

















 


affecting the Real Property or the use or occupancy thereof. No damage
or destruction has occurred with respect to the Real Property that would,
individually or in the aggregate, have a Material Adverse Effect.


 


(e)           Compliance with Real Property Laws. To
Seller’s Knowledge, the Real Property as presently used and operated complies
in all material respects with all applicable building, zoning, subdivision and
other land use and similar laws, requirements and conditions affecting the Real
Property (collectively, the “Real Property Laws”), and Seller has not received
any notice of violation or claimed violation of any Real Property Law. To
Seller’s Knowledge, there is no pending or anticipated change in any Real
Property Law that will have or result in a Material Adverse Effect upon the ownership,
alteration, use, occupancy or operation of the Real Property or any portion
thereof.


 


4.1.16. Environmental Matters.


 


(a)           Permits. All
Environmental Permits are identified in Schedule 4.1.16(a), and Seller
currently holds, and at all times has held, all such Environmental Permits
necessary for the Division. Except as set forth in Schedule 4.1.16(a), Seller
has not been notified by any relevant Governmental Authority that any
Environmental Permit will be modified, suspended, canceled or revoked, or cannot
be renewed in the Ordinary Course of business.


 


(b)           No Violations. Seller
has at all times complied, and Seller is in compliance in all material
respects, with all Environmental Permits and all applicable Environmental Laws
pertaining to the Real Property (and the use, ownership or transferability
thereof) and the Division, except such violations as would not have a Material
Adverse Affect. Seller has not received any written notice of, and to Seller’s
Knowledge, no Person has otherwise alleged, any violation by Seller of any
Environmental Permits or any applicable Environmental Law relating to the
conduct of the Division or the use, ownership or transferability of the Real
Property.


 


(c)           No Actions. Except
as set forth in Schedule 4.1.16(c), Seller has not caused or taken any
action that has resulted or is reasonably likely to result in, or has been or
is subject to, any Liability or obligation relating to the environmental
conditions on, under, or about any Real Property, except for any Liabilities and
obligations that, individually and in the aggregate, are not material to the
Division and have not had or resulted in, and will not have or result in, a
Material Adverse Effect.


 


(d)           Other. Except
as set forth in Schedule 4.1.16(d):


 


(i)            Seller has not received any written notice,
and Seller does not otherwise have any knowledge, that any of the Assets and
the Real Property is related to or subject to any investigation or evaluation
by any Governmental Authority, as to Environmental Liabilities.


 


(ii)           Seller is not subject to any outstanding
order, judgment, injunction, decree or writ from, or contractual or other
obligation to or with, any 


 


17

















 


Governmental Authority or other Person in respect of which Purchaser
may be required to incur any material Environmental Liabilities arising from
the Real Property or otherwise generated from the operation of the Division.


 


(e) Full Disclosure. Seller has disclosed and
made available to Purchaser all material information about the Real Property.


 


4.1.17. Employees, Labor Matters, Etc. Except
as set forth in Schedule 4.1.17, Seller is not a party to or bound by any
collective bargaining agreement and there are no labor unions or other
organizations representing, purporting to represent or attempting to represent
any employees employed in the operation of the Division. Since April 1, 2004,
there has not occurred or, to Seller’s Knowledge, been threatened any material
strike, slowdown, picketing, work stoppage, concerted refusal to work overtime
or other similar labor activity with respect to any employees employed by the
Division. Seller has complied with all provisions of Applicable Laws pertaining
to the employment of employees except for any failure so to comply that, individually
or together with all such other failures, has not and will not result in a
Material Adverse Effect.


 


4.1.18. Employee Benefit Plans and Related
Matters. Seller
is transferring no Employee Benefit Plans in connection with this Agreement. Except
as set forth on Schedule 4.1.18, Seller has provided Purchaser with a summary
of each material employee benefit or fringe benefit plan or agreement including
without limitation forms of employment agreements and severance agreements
(such plans and/or agreements, the “Plans”) covering Employees.


 


4.1.19. No Guarantees. None of
the obligations or Liabilities of the Division incurred in connection with the
operation of the Division is guaranteed by or subject to a similar contingent
obligation of any other Person.


 


4.1.20. Books and Records. The
books of account and other financial records of Seller, insofar as they relate
solely to or affect the Division and the Assets, have been made available to
Purchaser, are complete and correct in all material respects and represent
actual bona fide transactions and have been maintained in accordance with sound
business practices, including the maintenance of an adequate system of internal
controls.


 


4.1.21. Brokers, Finders, etc. All
negotiations relating to this Agreement and the transactions contemplated
hereby have been carried on without the participation of any Person acting on
behalf of Seller in such manner as to give rise to any valid claim against
Purchaser for any brokerage or finder’s commission, fee or similar compensation
in connection with the contemplated transaction.


 


18

















 


4.1.22. Financial Statements. Seller
has provided the Purchaser unaudited cost accounting schedules related to the
Division for the Fiscal Years 2005 and 2006 and the Fiscal Year through October
2007 set forth in Schedule 4.1.22(a) (“Financial Statements”). The Financial
Statements are to Seller’s knowledge based on GAAP except for those items
listed in the notes to Schedule 4.1.22(a).


 


4.1.23. Taxes.


 


(a)           Except as set forth on Schedule 4.1.23,
there are no claims pending against Seller for past due Taxes, and to Seller’s
Knowledge there are no threatened claims related to the Division. Further,
there are not now any matters under discussion with Federal, state, local or
foreign authorities with respect to any additional Taxes related to the
Division. All Taxes which Seller is or has been required by law to pay,
withhold, or to collect related to the Division have been duly paid, withheld
and collected.


 


(b)           All federal, state, local and foreign Tax
returns required to be filed by Seller related to the Division have been filed
on a timely basis and all such returns are in all material respects correct and
complete. Except for Taxes set forth on Schedule 4.1.23, which are being
contested in good faith and by appropriate proceedings, all Taxes related to
the Division due and payable on or before the date hereof by Seller have been
paid.


 


(c)           Except as set forth on Schedule 4.1.23,
all Taxes required to be withheld by or on behalf of Seller in connection with
amounts paid or owing to any employee, independent contractor, creditor,
shareholder or other person with respect to the Division or the Assets have
been withheld and such withheld taxes have either been duly and timely paid to
the proper Governmental Authorities or set aside in accounts for such purpose.


 


(d)           Except as set forth on Schedule 4.1.23,
no Taxes with respect to the Division, are currently under audit by any
Governmental Authority and no issue has been raised in writing by any
Governmental Authority in the course of any audit with respect to Taxes.


 


(e)           Except as set forth on Schedule 4.1.23,
there is no action, audit, litigation or administrative appeal pending or, to
Seller’s Knowledge, proposed or threatened against or relating to Seller with
respect to the Division or Assets in connection with Taxes.


 


4.1.24. [Deliberately left blank]


 


4.1.25. Insurance. Schedule
4.1.25 contains a complete and correct Schedule of Insurance maintained by
Seller in connection with the Assets or the Division.


 


4.2.         Purchaser’s
Representations and Warranties. As of the date hereof and as of the Closing
Date, Purchaser represents and warrants to Seller as follows:


 


4.2.1. Corporate Status; Authorization, etc. Each
Purchaser is a limited liability company, duly organized, validly existing and,
in good standing, under the laws 


 


19

















 


of Delaware with full power and authority to execute and deliver the
Agreement and the Collateral Agreements to which it is a party, to perform its
obligations thereunder and to consummate the transactions contemplated thereby.
The execution and delivery of this Agreement and the Collateral Agreements to
which each Purchaser is a party, and the consummation of the transactions
contemplated hereby and thereby have been, duly authorized by all requisite
action of each Purchaser. Each Purchaser has duly executed and delivered this
Agreement and each Purchaser will have duly executed and delivered the
Collateral Agreements to which it is a party. This Agreement is, and on the
Closing Date each of the Collateral Agreements to which each Purchaser is a
party will be, valid and legally binding obligations of Purchaser, enforceable
against such Purchaser in accordance with their respective terms. On the
Closing Date, each of the Collateral Agreements to which each Purchaser is a
party will be legal, valid and binding obligations of such Purchaser,
enforceable against it in accordance with their respective terms.


 


4.2.2. No Conflicts, etc. The
execution, delivery and performance by each Purchaser of the Agreement and each
of the Collateral Agreements to which it is a party, and the consummation of
the transactions contemplated thereby, do not and will not conflict with or
result in a violation of or under (with or without the giving of notice or the
lapse of time or both) (i) the certificate of organization or operating
agreement or other organizational documents of Purchaser, (ii) any Applicable Law
applicable to Purchaser or its Affiliates or any of its or their properties or
assets or (iii) any contract, agreement or other instrument applicable to
Purchaser or any of its Affiliates or any of its or their properties or assets,
except, in the case of clause (iii), for violations and defaults that,
individually and in the aggregate, have not and will not materially impair the
ability of Purchaser to perform its obligations under the Agreement or under
any of the Collateral Agreements to which it is a party. Except as specified in
Schedule 4.2.2, no Governmental Approval or other Consent is required to
be obtained or made by Purchaser in connection with the execution and delivery
of the Agreement or the Collateral Agreements or the consummation of the
transactions contemplated thereby.


 


4.2.3. Litigation. There
is no action, claim, suit or proceeding pending, or to Purchaser’s Knowledge
threatened, by or against or affecting Purchaser that challenges, or may have
the effect of preventing, delaying, making illegal or otherwise interfering
with the transactions contemplated by this Agreement or of any action taken or
to be taken in connection herewith or the consummation of the transactions
contemplated hereby.


 


4.2.4. Brokers, Finders, etc. All
negotiations relating to this Agreement and the transactions contemplated
hereby have been carried on without the participation of any Person acting on
behalf of Purchaser or its Affiliates in such manner as to give rise to any
valid claim against Seller for any brokerage or finder’s commission, fee or
similar compensation in connection with the contemplated transaction.


 


20
















 


ARTICLE 5


 


COVENANTS


 


5.1.         Covenants of Seller.


 


5.1.1.      Conduct of Division. From
the date hereof to the Closing Date, except as expressly permitted or required
by this Agreement or as otherwise consented to by Purchaser in writing, Seller
will:


 


(a)           carry on the operation of the Division
including maintaining the Real Property in, and only in, the Ordinary Course of
business, in substantially the same manner as heretofore conducted, and use all
reasonable efforts to (i) preserve the Assets in good operating condition and
repair; (ii), keep available the services of its present Key Employees, and
(iii) preserve its relationship with suppliers and others having business
relationships with it;


 


(b)           pay accounts payable and other obligations
of the Division when they become due and payable in the Ordinary Course of
business consistent with prior practice;


 


(c)           perform in all material respects all of its
obligations under all Contracts and other agreements and instruments relating
to or affecting the Division or the Assets, and comply in all material respects
with all Applicable Laws applicable to it, the Assets or the Division;


 


(d)           not grant (or commit to grant) any increase
in the compensation (including incentive or bonus compensation) of any Employee
employed in the operation of the Division except for normal merit and/or
retention bonuses;


 


(e)           not enter into or assume any material
agreement, contract or instrument relating to the Division, or enter into or
permit any material amendment, supplement, waiver or other modification in
respect thereof except in the Ordinary Course of business or as is necessary
and appropriate in Seller’s reasonable determination to maintain the Assets or
any part of the Assets;


 


(f)            not take any action or omit to take any
action, which action or omission would result in a breach of any of the
representations and warranties set forth in Section 4.1.5; and


 


(g)           purchase Inventories only in the Ordinary
Course of business.


 


5.1.2.      Covenant
Not to Solicit Continuing Employees.


 


(a)           For a period of two (2) years after the
Closing Date, Seller shall not directly solicit, recruit or divert any
Continuing Employees or recommend or otherwise suggest that any Continuing
Employees terminate their employment with Symmetry.


 


21

















 


(b)           For a period of 18 months in addition to the
restriction in (a) above, Seller shall not through general advertisement or
otherwise indirectly solicit any Key Employee.


 


(c )          For a period of one (1) year in addition to
the restriction in (a) above, Seller shall not through general advertisement or
otherwise indirectly solicit any Continuing Employee.


 


5.1.3.      Access and Information.


 


(a)           So long as this Agreement remains in effect,
Seller will afford Purchaser, Purchaser’s prospective lenders and their
respective accountants, counsel, consultants, employees and agents, full and
free access during normal business hours to, and furnish them with all
documents, records, work papers and information solely related to the Division
and the Assets, as Purchaser shall from time to time reasonably request.


 


(b)           Seller will retain all books and records
solely relating to the Division in accordance with Seller’s record retention
policies as presently in effect.


 


5.1.4.      Financial Statements. From
the date hereof, and to the Closing Date, Seller agrees to provide to Purchaser
on a monthly basis financial information consistent with, and containing the
same detail as, the Financial Statements.


 


5.1.5.      Further Actions.


 


(a)           Seller agrees to use all commercially
reasonable efforts to consummate the transactions contemplated by the expected
Closing Date.


 


(b)           Seller, as promptly as practicable, will use
all commercially reasonable efforts to obtain, or cause to be obtained, all
Consents necessary to be obtained by Seller in order to consummate the sale and
transfer of the Assets pursuant to the Agreement and the consummation of the
other transactions contemplated thereby.


 


(d)           At all times prior to the Closing, Seller
shall promptly notify Purchaser in writing of any fact, condition, event or
occurrence that will or may result in the failure of any of the conditions
contained in Sections 6.1 and 6.2 to be satisfied, promptly upon either of
them becoming aware of the same.


 


5.1.6.      Further Assurances. For
a period of up to eighteen (18) months after the Closing Date, if either the
Purchaser or the Seller becomes aware that any material asset that is
exclusively related to the Division has not been transferred to the Purchaser,
or that any asset, right or other property which is not exclusively related to
the Division has been transferred to the Purchaser, it shall promptly notify
the other and the parties hereto shall, as soon as reasonably practicable,
ensure that such asset is transferred to the correct party at each party’s
expense, subject to any necessary prior third party Consent or approval, to:


 


22

















 


(a)           the Purchaser, in the case of an asset,
right, benefit or other property which is exclusively related to the Division
and which was not transferred at the Closing Date (provided Seller, at its
option, may elect to pay cash in lieu of transferring such asset, right,
benefit or other property to the Purchaser); or


 


(b)           the Seller, in the case of an asset, right,
benefit or other property transferred at Closing that is not exclusively
related to the Division.


 


5.1.7.      Liability for Transfer Taxes.
The parties shall be jointly responsible for the timely payment of all
transfer taxes (including, without limitation, bulk sales), use, value added,
documentary, stamp, gross receipts, registration, transfer, conveyance, excise,
recording, firearm, ammunition, license and other similar taxes and fees (“Transfer
Taxes”), arising out of or in connection with or attributable to the
transactions effected pursuant to this Agreement. Seller shall prepare and
timely file all tax returns required to be filed in respect of Transfer Taxes
(including, without limitation, all notices required to be given with respect
to bulk sales taxes), provided that Purchaser shall be permitted to prepare any
such tax returns for which filing is the primary responsibility of Purchaser
under applicable law. Purchaser’s preparation of any such tax return shall be
subject to Seller’s approval, which approval shall not be withheld
unreasonably.


 


5.2.         Covenants of Purchaser.


 


5.2.1.      Further Actions.


 


(a)           Purchaser agrees to use all reasonable good
faith efforts to take all actions and to do all things necessary, proper or
advisable to consummate the transactions contemplated hereby by the expected
Closing Date.


 


(b)           Purchaser will, as promptly as practicable,
file or supply, or cause to be filed or supplied, all applications,
notifications and information required to be filed or supplied by Purchaser
pursuant to Applicable Law in connection with this Agreement, the Collateral
Agreements, Purchaser’s acquisition of the Assets pursuant to this Agreement,
and the consummation of the other transactions contemplated thereby, including
but not limited to filings pursuant to the HSR Act, if any.


 


(c)           Purchaser will coordinate and cooperate with
Seller in exchanging such information and supplying such reasonable assistance
as may be reasonably requested by Seller in connection with the filings and other
actions contemplated by this Agreement.


 


(d)           At all times prior to the Closing, Purchaser
shall promptly notify Seller in writing of any fact, condition, event or
occurrence that will or may result in the failure of any of the conditions
contained in Sections 6.1 and 6.3 to be satisfied, promptly upon becoming
aware of the same.


 


5.2.2.      Further Assurances. Following
the Closing, Purchaser shall, and shall cause its Affiliates to, from time to
time, execute and deliver such additional instruments, documents, conveyances
or assurances and take such other actions as shall be reasonably 


 


23

















 


necessary, or otherwise reasonably requested by Seller, to confirm and
assure the rights and obligations provided for in this Agreement, and in the
Collateral Agreements and render effective the consummation of the transactions
contemplated thereby.


 


5.2.3.      Publicity; Tax Disclosure.


 


(a)           No party to this Agreement shall originate
any publicity, news release or other public announcement, written or oral,
whether relating to this Agreement or the existence of any arrangement between
the parties, without the prior written consent of the other party whether named
in such publicity, news release or other public announcement or not, except
where such publicity, news release or other public announcement is required by
law; provided that in such event, the party issuing same shall still be
required to consult with the other party whether named in such publicity, news
release or public announcement or not, a reasonable time prior to its release
to allow the other party to comment thereon and, after its release, shall
provide the other party with a copy thereof. If Purchaser, based on the advice of its counsel, determines that this
Agreement, or any of the other documents executed in connection herewith, must
be filed with the Securities and Exchange Commission (“SEC”), then
Purchaser, prior to making any such filing, shall provide Seller and its
counsel with a redacted version of this Agreement (or any other related
documents) which it intends to file, and will give due consideration to any
comments provided by Seller or its counsel and use its best efforts to ensure
the confidential treatment by the SEC of those sections specified by Seller or
its counsel.


 


(b)           The
foregoing provisions on confidentiality and restricted use shall not apply to
information relating to possible tax treatments or tax structures to the extent
any transaction contemplated by this Agreement would otherwise be classified
with respect to Seller or its Affiliates as a reportable transaction pursuant
to Treasury Reg.1.6011-4 (2003).


 


5.2.4.      Environmental Assessment. Purchaser
shall retain environmental consultants to conduct an environmental assessment
of the Real Property and the other assets, equipment and facilities owned,
leased, operated or used by Seller in the Division (the “Environmental
Assessment”), to include physical inspections of the Real Property and such
assets, equipment and facilities, review of all relevant records in the
possession or custody or under the control of Seller, review of relevant
governmental agency records and contact with governmental agency personnel,
conduct of sampling activities and any other investigatory activities of a
scope satisfactory to Purchaser. Purchaser shall provide five (5) days prior
written notice of the date or dates proposed for such consultants’ inspection.
Such inspection shall be undertaken at reasonable times agreed to by the
parties and shall not interfere unduly with the Seller’s operation of the
Division or use of or access to the Real Property. The costs of the
Environmental Assessment shall be borne by Purchaser. Purchaser shall provide
to Seller a copy of all reports issued by its environmental consultants as part
of the Environmental Assessment and shall provide reasonable opportunities for
Seller or its environmental consultants to discuss with Purchaser any questions
Seller may have regarding such reports.


 


24

















 


5.2.5.      No
Undue Interference. From the date
hereof to the Closing Date, Purchaser shall not interfere with the Assets, the
Division, the Key Employees or the Employees.


 


ARTICLE 6


 


CONDITIONS PRECEDENT


 


6.1.         Conditions to Obligations
of Each Party. The obligations of the parties to consummate the
transactions contemplated hereby shall be subject to the fulfillment on or
prior to the Closing Date of the following conditions:


 


6.1.1.      No Injunction, etc. Consummation
of the transactions contemplated hereby shall not have been restrained,
enjoined or otherwise prohibited by any Applicable Law, including any order,
injunction, decree or judgment of any court or other Governmental Authority. No
court or other Governmental Authority shall have construed any Applicable Law
to make illegal the consummation of the transactions contemplated hereby or by
the Asset Transfer Documents or the Collateral Agreements, and no proceeding
with respect to the legality of the transactions contemplated hereby under any
Applicable Law shall be pending.


 


6.2.         Conditions to Obligations
of Purchaser. All of the obligations of Purchaser hereunder are subject to
fulfillment, prior to or at the Closing, of the following conditions
(compliance with which or the occurrence of which may be waived in whole or in
part by Purchaser in writing):


 


6.2.1.      All  representations and warranties of Seller contained herein
shall be accurate, true and correct in all material respects at and as of the
Closing Date, except for: (i) representations and warranties made as of a
specified date, which shall be accurate, true and correct in all material
respects as of the date specified; or (ii) breaches and inaccuracies that do
not have a Material Adverse Effect, and Purchaser shall have received a “bring
down” certificate of an officer of Seller, dated the Closing Date, to such
effect.


 


6.2.2.      Seller shall have performed and
complied in all material respects with all the terms, provisions and conditions
of this Agreement to be complied with and performed by Seller at or before the
Closing, except for terms, provisions and conditions that do not have a
Material Adverse Effect.


 


6.2.3.      Seller shall have delivered to
Purchaser a certificate of a Secretary or an Assistant Secretary of Seller
enclosing a copy of (i) its certificate of incorporation, as amended,
certified by the Secretary of State of the State of Indiana, (ii) its
by-laws, and (iii) Board resolutions authorizing Seller to enter into this
Agreement and to consummate the transactions contemplated hereby.


 


6.2.4.      No law, governmental
regulations, rule, directive, or proceeding shall be pending, which would
prevent or restrain completion of the transactions contemplated hereunder.


 


25

















 


6.2.5.      As of the Closing Date, the
condition of the Division or the Assets taken as a whole shall not have changed
in a material adverse way from their condition on the Effective Date.


 


6.2.6.      The
Purchaser shall have received a Special Warranty Deed dated as of the Closing
Date, conveying good, marketable and fee simple title to Purchaser with respect
to each parcel of Real Property, subject only to Permitted Liens and such
documents as may be reasonably required by the Title Company to issue each
title policy required to be delivered hereunder, together with any necessary
transfer declarations or other filings or documents required for the
recordation of said warranty deed.


 


6.2.7.      Lender Approval. Purchaser
shall have obtained sufficient funding approval to consummate the transactions
contemplated by this Agreement pursuant to financing arrangements consistent
with those set forth in the Commitment Letter from Wachovia Bank dated November
20, 2007, except that Section 2.G. of such letter shall be deemed deleted.


 


6.3.         Conditions Precedent
to Seller’s Obligations. All
of the obligations of Seller hereunder are subject to the fulfillment, prior to
or at the Closing, of the following conditions (compliance with which or the
occurrence of which may be waived in whole or in part by Seller in writing):


 


6.3.1.      All  representations and warranties made by Purchaser in this
Agreement shall be true in all material respects at and as of the Closing as
though such representations and warranties were made at and as of said time
(except to the extent, if any, Seller shall have waived the same in writing);


 


6.3.2.      Purchaser shall have performed
and complied in all material respects with all the terms, provisions and
conditions of this Agreement to be complied with and performed by Purchaser at
or before the Closing; and Seller shall have received a certificate of an
officer of Purchaser dated the Closing Date, certifying to such effect;


 


6.3.3.      Purchaser shall have delivered
to Seller a certificate of a Secretary or an Assistant Secretary of Purchaser
enclosing a copy of (i) its articles of incorporation, as amended,
certified by the Secretary of State of the State of Delaware, (ii) its
by-laws, and (iii) Board resolutions authorizing Purchaser to enter into this
Agreement and to consummate the transactions contemplated hereby;


 


6.3.4.      No law, governmental
regulations, rule, directive, or proceeding shall be pending, proposed or
threatened which would prevent or restrain completion of the transactions
contemplated hereunder; and


 


6.3.5.      Seller shall have received the
Purchase Price in accordance with Section 3.2.


 


6.4.         Collateral Agreements. Purchaser
and/or Seller shall have entered into or received copies of each of the
following Collateral Agreements:


 


26

















 


(a)           A Supply Agreement, in the form attached
hereto as Exhibit A;


 


(b)           A Transitional Services Agreement, in the
form attached hereto as Exhibit B;


 


(c)           A Lease to Seller for space for a Global
Instrument Center within the Division and a portion of the Real Property for a
period of at least one (1) year, in the form attached as Exhibit C;


 


(d).          Environmental Assessment.
Purchaser shall have received the Environmental Assessment, which it shall
obtain pursuant to Section 5.2.4 above, which shall be in form and substance
satisfactory to Purchaser in the exercise of reasonable commercial judgment.


 


(e).          Title Insurance. Purchaser
shall have received, at its cost, from a nationally recognized title insurance
company (the “Title Company”) satisfactory to Purchaser an irrevocable
commitment (the “Title Commitment”) to issue a fee owner’s title insurance
policy (American Land Title Association (“ALTA”) Owner’s Policy form 1992) to
Purchaser and a mortgagee’s title insurance policy to the lender designated by
Purchaser, with respect to the Real Property, together with any title
endorsements reasonably requested by Purchaser and/or its lender, showing that
the Seller or an Affiliate can convey to Purchaser good, marketable and fee
simple title to the Real Property, subject only to Permitted Liens and/or
Permitted Encumbrances, with extended coverage over all general exceptions. Seller
shall have delivered to the Title Company any affidavits or other documents
required by the Title Company in connection with the delivery of the owner’s
title insurance policy and mortgagee’s title insurance policy.


 


(f).           Survey. Purchaser
shall have received, at its sole option and cost, a survey (the “Survey”) of
the Real Property, which Purchaser will order and obtain, dated within thirty
(30) days of the Closing Date, prepared by a surveyor (the “Surveyor”) duly
licensed by and registered in the state where the Real Property is located,
reasonably acceptable to Purchaser and the Title Company and certified to
Purchaser, the Title Company and Purchaser’s lender and counsel, in form and
substance satisfactory to Purchaser, the Title Company and Purchaser’s lender
and counsel, prepared in accordance with and complying with the current minimum
detail requirements for land title surveys as most recently adopted by the
ALTA, the American Congress on Surveying and Mapping, and the National Society
of Professional Surveyors (2005), including the following Table A optional
requirements: 1, 2, 3, 4, 6, 7(a), 7(b)(1), 7(c), 8, 9, 10, 11(a), 13, 16, 17
and 18, and without limiting the foregoing, is in form satisfactory to enable
the Title Company to delete the standard survey exception from the Title
Commitment. Seller shall provide reasonable access to the Real Property to
allow Purchaser and the Surveyor to prepare the Survey.


 


(g).          FIRPTA Certificate. Purchaser shall have
received a certificate of Seller dated the Closing Date and sworn to under
penalty of perjury, setting forth the name, address and federal tax
identification number of Seller and stating that Seller is not a “foreign
person” within the meaning of Section 1445 of the Code and stating further
that 


 


27

















 


Seller is not a disregarded entity as defined in Section
1.1445-2(b)(2)(iii), such certificate to be in the form set forth in the
Treasury Regulations thereunder.


 


6.5          Software Licenses. Notwithstanding
Section 2.2(i), Seller shall assist Purchaser to obtain, at Seller’s own cost
and expense, such software licenses for applications software identified in
Schedule 6.5 necessary to allow the Purchaser to manufacture the products to be
supplied under the Supply Agreement. Such software licenses shall be in the
name of Purchaser or one of its designated Affiliates and will be delivered or
made available to Purchaser promptly after Closing, unless otherwise agreed to
by the parties.


 


ARTICLE 7


 


EMPLOYEES AND EMPLOYEE BENEFIT PLANS


 


7.1.         Offer of
Comparable Employment. Seller
has provided to Purchaser, prior to execution of this Agreement, a list of
Employees, attached hereto as Schedule 7.1, that Seller proposes that Purchaser
employ and be given Comparable Employment, and prior to Closing, Purchaser
shall strike any Employee to whom it will not offer employment after Closing. All
individuals who accept Purchaser’s offer of employment shall be referred to as “Continuing
Employees.”


 


7.2          Continuing
Employment. Prior
to the Closing Date, Seller shall retain the right to continue its compensation
practices in the Ordinary Course of business consistent with past practice. After
the Closing Date, Purchaser agrees to maintain and continue such generally
Comparable Employment for each Continuing Employee for a period of at least one
(1) year following the Closing Date, except for any such Employee whose
employment is terminated for failure to perform or otherwise “for cause.”
Notwithstanding the foregoing, Purchaser may terminate a Continuing Employee in
the period between the Closing Date and the one (1) year anniversary of the
Closing Date (the “Notice Period”); provided that; in each case, Purchaser
provides notice to Seller prior to termination of any Continuing Employee
during the Notice Period, and obtains Seller’s approval, which will not be
unreasonably withheld. Such terminated Continuing Employees shall receive the
standard severance benefits offered by Purchaser at the time of termination.


 


7.3.         Benefits. Unless otherwise specified in
this Article 7, each Continuing Employee will be covered under the employee
benefit plans of Purchaser available to other employees of Purchaser who are
employed in similar categories of employment. Purchaser shall offer each
Continuing Employee the opportunity, as of the Closing Date, to participate in
all of Purchaser’s employee benefit plans for which each such Employee would be
eligible under the terms for such plans. Nothing contained in this Article 7
shall be construed as requiring Purchaser to adopt or continue any specific
employee benefit plans or to offer employment to any Employee. Within the
30-day period prior to the Closing Date, Purchaser shall, to the extent
practical, provide to Seller, at Seller’s option, with copies of either
Purchaser’s employee benefit plans (including, but not limited to, medical and
dental insurance plans, life insurance plan, pension plan, savings plan,
short-term and long-term disability plans, tuition reimbursement plans,
employee stock ownership plan, vacation plan and severance or termination plan)
or summary 


 


28

















 


plan descriptions of
such employee benefit plans. For vesting and eligibility purposes under all of
Purchaser’s employee benefit plans entities and agencies, all Continuing
Employees shall be given full credit for all service with Seller, Seller’s
Affiliates or Seller’s former Affiliates. In addition to such recognition of
all such prior service for purposes of vesting and eligibility, all Continuing
Employees shall be given credit for such prior service for purposes of (i)
accrual of severance benefits and (ii) accrual of vacation benefits. Schedule
7.3 hereto lists all periods of service of a Continuing Employee with Seller,
Seller’s Affiliates or Seller’s former Affiliates, and Purchaser shall be
entitled to rely on such Schedule 7.3 for the purposes of determining periods
of prior service under this Section 7.3.


 


7.4.         Medical
Benefits Requirements. Purchaser
agrees that in complying with the benefit requirements set forth in this
Article 7: (a) Purchaser shall cause its employee benefit plans to waive (i)
any pre-existing condition or restriction which was waived under the terms of
any analogous Plan of Seller immediately prior to the Closing and (ii) any
waiting period limitation which would otherwise be applicable to a Continuing
Employee on or after the Closing, to the extent such Continuing Employee had
satisfied any similar waiting period limitation under an analogous Plan of
Seller prior to the Closing and (b) all expenses incurred by Continuing
Employees in 2008 prior to the Closing Date for deductible amounts or maximum
out-of-pocket amounts for 2008 under Seller’s comprehensive medical/dental
benefit plan will be applied towards and reduce, on a dollar for dollar basis,
any such amounts under Purchaser’s analogous plan(s).


 


7.5.         2008 Vacation. If after deduction of vacation
time actually taken by a Continuing Employee in 2008, such Employee would be
entitled to more vacation time in 2008 under Seller’s vacation policy, such
Employee shall be entitled to the lesser of: (i) such excess vacation time; or
(ii) one week, and in either case, without pay. Seller shall provide Purchaser
with Employee vacation accrual information in a timely manner and in no event
later than thirty (30) days prior to Closing. Seller agrees to pay each
Employee for all accrued and unused vacation through the Closing Date as set
forth in Schedule 7.5 hereto.


 


7.6.         Seller
Obligations for Pre-existing Benefits Claims. Employees who have vested rights
or entitlement to benefits under any of the benefit plans of Seller or its
Affiliates shall remain entitled to receive such benefits from Seller or its
Affiliates in accordance with the terms of such plans (“Covered Employees”). Seller
remains responsible for death claims based on death occurring on or before the
Closing Date and for medical and dental claims for services rendered to Covered
Employees and their eligible dependents on or before the Closing Date. Covered
Employees receiving short- or long-term disability benefits as of the Closing
Date shall, to the extent provided under the benefit plans of Seller, remain
the responsibility of Seller until the end of their disability period.


 


7.7.         Seller
Responsibility for Pension Plans. It is understood and agreed that except as expressly set
forth in this Article 7, Purchaser shall not assume (a) any Liability for
Pension Plan benefits or under any employee benefit plan sponsored by Seller
that may be owing to any Employee as a result of his or her employment with
Seller or (b) any other obligation or Liability of Seller (i) to any present or
former employee of Seller arising as a result of his employment with Seller,
including, without limitation, compensation, vacation, severance or
termination pay or (ii) otherwise arising from Seller’s employer-employee
relationship with the Employees.


 


29

















 


7.8          Employment
Taxes.


 


(a)           Seller
and Purchaser will, and Purchaser will cause its Affiliates to, (i) treat
Purchaser as a “successor employer” and Seller as a “predecessor,” within the
meaning of sections 3121(a)(1) and 3306(b)(1) of the Code, with respect to
Continuing Employees who are employed by the Purchaser for purposes of taxes
imposed under the United States Federal Unemployment Tax Act (“FICA”) or the
United States Federal Insurance Contributions Act (“FUTA”) and (ii) cooperate
with each other to avoid, to the extent possible, the filing of more than one
IRS Form W-2 with respect to each such Continuing Employee for the calendar
year within which the Closing Date occurs.


 


(b)           At
the request of Purchaser with respect to any particular applicable tax law
relating to employment, unemployment insurance, social security, disability,
workers’ compensation, payroll, health care or other similar tax other than
taxes imposed under FICA and FUTA, Seller and Purchaser will, and Purchaser
will cause its Affiliates to, (i) treat Purchaser or Purchaser’s Affiliate as a
successor employer and Seller as a predecessor employer, within the meaning of
the relevant provisions of such tax law, with respect to Continuing Employees
who are employed by Purchaser or its Affiliates and (ii) cooperate with each
other to avoid, to the extent possible, the filing of more than one individual
information reporting form pursuant to each such tax law with respect to each
such Continuing Employee for the calendar year within which are Closing Date
occurs.


 


ARTICLE 8


 


TERMINATION


 


8.1.         Purchaser
Termination. This
Agreement may be terminated by Purchaser: (a) at any time prior to the Closing,
if Seller shall have (i) failed to comply with any of its covenants,
conditions, or agreements contained in this Agreement, or (ii) if any one or
more of the representations or warranties of Seller contained in this Agreement
shall prove to have been inaccurate in any material respect when made and such
failure or such representation or warranty has a Material Adverse Effect as of
the Closing, and Purchaser shall have given Seller a reasonable opportunity to
cure any such failure to so comply before the Closing; (b) at the Closing, if
any of the conditions precedent to the performance of Purchaser’s obligations
at the Closing shall not have been fulfilled; or (c) if the Closing shall not
have occurred on or before March 28, 2008, or such later date as the parties
may mutually agree.


 


8.2.         Seller
Termination. This
Agreement may be terminated by Seller: (a) at any time prior to the Closing, if
(i) Purchaser shall have failed to comply with any of its covenants,
conditions, or agreements contained in this Agreement, or (ii) if any one or
more of the representations or warranties of Purchaser contained in this
Agreement shall prove to have been inaccurate in any material respect when
made; and such failure would adversely affect the ability of Purchaser in any
material respect to consummate the transactions contemplated hereby and Seller
shall have given Purchaser a reasonable opportunity to cure any such failure to
so comply before the Closing; (b) at the Closing, if any of the conditions
precedent to the performance of Seller’s obligations at the Closing shall not
have been fulfilled; or (c) if the Closing shall not have occurred on or before
March 28, 2008, or such later date as the parties may mutually agree.


 


30

















 


8.3.         Effect of Termination. In
the event of the termination of this Agreement pursuant to the provisions of
Section 8.1 and/or 8.2, this Agreement shall become void and have no
effect, without any Liability to any Person in respect hereof or of the
transactions contemplated hereby on the part of any party hereto, or any of its
directors, officers, employees, agents, consultants, representatives, advisers,
stockholders or Affiliates, except as specified in Section 10.1 and except for
any Liability resulting from such party’s breach of this Agreement.


 


ARTICLE 9


 


INDEMNIFICATION


 


9.1.         Indemnification.


 


(a)           By Seller. Seller covenants and agrees to defend, indemnify
and hold harmless Purchaser, its officers, directors, employees, agents,
representatives and Affiliates (collectively, the “Purchaser Indemnitees”) from
and against, and pay or reimburse Purchaser Indemnitees for, any and all
Damages, including out-of-pocket expenses and reasonable attorneys’, resulting
from or arising out of:


 


(i)            any material uncured breach of any
representation or warranty made by Seller in this Agreement;


 


(ii)           any material failure of Seller to perform
any covenant or agreement hereunder or fulfill any other obligation in respect
thereto;


 


(iii)          any Excluded Liabilities or Excluded Assets;


 


(iv)          any and all Taxes of Seller not relating to
or arising out of the Division and any Pre-Closing Taxes related to the
Division;


 


(vi)          all Environmental Liabilities incurred prior
to the Closing;


 


(vii)         any product returns with
respect to products sold prior to the Closing;


 


Seller shall not be required to indemnify any Purchaser Indemnitee with
respect to any claim for indemnification unless and until the aggregate amount
of all claims against Seller exceeds $100,000 (“Indemnification Deductible”)
and then only until such aggregate amount reaches $10,000,000 (“Indemnification
Cap”). Seller shall have no liability or obligation to indemnify Purchaser with
respect to a breach of any representation or warranty based on any facts or
circumstances within Purchaser’s Knowledge. The Indemnification Cap shall not
apply to any Damages resulting from or arising out of any fraudulent act by
Seller. In addition, neither the Indemnification Deductible nor the
Indemnification Cap shall apply to Seller’s indemnification obligations under
Section 9.1(a)(iii).


 


(b)           By Purchaser. Purchaser covenants and agrees to defend,
indemnify and hold harmless Seller and its officers, directors, employees,
agents, advisers, representatives and Affiliates (collectively, the “Seller
Indemnitees”) from and against any and all Damages resulting from or arising
out of:


 


31

















 


(i)            any inaccuracy of any representation or
warranty made by Purchaser in this Agreement or in connection therewith;


 


(ii)           any material failure of Purchaser to perform
any covenant or agreement hereunder or fulfill any other obligation in respect
thereto; or


 


(iii)          any and all claims by any third party arising
out of the conduct of the Division by Purchaser or Purchaser’s ownership,
operation or use of the Assets following the Closing Date, or


 


(iv)          any and all actions, suits, proceedings,
demands, assessments, judgments, reasonable costs and expenses, including
reasonable attorney’s and accountant’s fees incurred in the investigation and
defense of the foregoing or in asserting any of Seller’s Indemnities respective
rights under this Article 9.1(b);


 


(v)           any action or omission by or on behalf of
Purchaser or an Affiliate that increase any amounts payable by Purchaser under
Paragraph (a) of this Section.


 


Purchaser shall not be required to indemnify any Seller Indemnitee with
respect to any claim for indemnification unless and until the aggregate amount
of all claims against Seller exceeds the Indemnification Deductible and then
only until such aggregate amount reaches the Indemnification Cap; provided,
however, neither the Indemnification Deductible nor the Indemnification Cap
shall apply to Purchaser’s indemnification obligations under Section
9.1(b)(iii).


 


(c)           Notwithstanding
anything in this Agreement to the contrary, the Purchaser’s post-closing
Indemnification provisions contained in this Article 9 shall survive Closing.


 


(d)           Except
for claims alleging fraud or actions for injunctive relief, this Article 9
provides the exclusive means by which any Party may assert or bring any claim
for Damages or Loss or other relief against the other party for any breach of
or default under this Agreement.


 


9.2.         Claims. Any Purchaser Indemnitee or
Seller Indemnitee claiming it may be entitled to indemnification under this
Article 9 (the “Indemnified Party”) shall give prompt notice to the
other party (the “Indemnifying Party”) of each matter, action, cause of
action, claim, demand, fact or other circumstances upon which a claim for
indemnification (a “Claim”) under this Article 9 may be based. Such
notice shall contain, with respect to each Claim, such facts and information as
are then reasonably available, and the specific basis for indemnification
hereunder. Failure to give prompt notice of a claim hereunder shall not affect
the Indemnifying Party’s obligations under this Section, except to the extent
the Indemnifying Party is prejudiced by such failure.


 


(a)           Defense of Actions. The Indemnified Party shall permit the
Indemnifying Party, at the Indemnifying Party’s option and expense, to assume
the complete defense of any Claim based on any action, suit, proceeding, claim,
demand or assessment by any third party with full authority to conduct such
defense and to settle or otherwise dispose of the same and the Indemnified
Party will fully cooperate in such defense; provided the Indemnifying Party
will not, in defense of any such action, suit, proceeding, claim, 


 


32

















 


demand or assessment, except with the consent
of the Indemnified Party (which consent will not be unreasonably withheld),
consent to the entry of any judgment or enter into any settlement which
provides for any relief other than the payment of monetary Damages and which
does not include as an unconditional term thereof the giving by the claimant or
plaintiff to the Indemnified Party of a release from all Liability in respect
thereof. After notice to the Indemnified Party of the Indemnifying Party’s
election to assume the defense of such action, suit, proceeding, claim, demand
or assessment, the Indemnifying Party shall be liable to the Indemnified Party
for such legal or other expenses subsequently incurred by the Indemnified Party
in connection with the defense thereof at the request of the Indemnifying Party.
As to those actions, suits, proceedings, claims, demands or assessments with
respect to which the Indemnifying Party does not elect to assume control of the
defense, the Indemnified Party will afford the Indemnifying Party an
opportunity to participate in such defense, at its cost and expense, and will
consult with the Indemnifying Party prior to settling or otherwise disposing of
any of the same. Notwithstanding anything to the contrary herein, with respect
to any Claim asserted by a governmental entity relating to Taxes, the
Indemnifying Party shall be entitled to participate in the defense, but the
Indemnified Party shall control such defense. The Indemnified Party will not
settle any such Claim without the prior consent of the Indemnifying Party, such
consent not to be unreasonably withheld.


 


(b)           Limitation, Exclusivity. No Claim shall be made or have any
validity unless the Indemnified Party shall have given written notice of such
Claim to the Indemnifying Party prior to the date set forth in Section 9.4 for
such claim. If full recovery under any such Claim is not had within three (3)
months of such written notice, arbitration must be commenced within thirty (30)
days following the end of such three-month period or such Claim shall be
invalidated. This Article 9 provides the exclusive means by which a party may
assert Claims and the Arbitration and Dispute Resolution provisions of this
Agreement, as set forth below, provide the exclusive means by which a Party may
bring actions against the other Party with respect to such breaches


 


9.3.         Indemnification for
Brokerage Claims. Seller and Purchaser shall mutually indemnify the other
against any claim for brokerage or like commission arising from its conduct or
alleged conduct.


 


9.4.         Survival of
Representations and Warranties, etc. The representations and
warranties contained in this Agreement shall survive the execution and delivery
of this Agreement, any examination by or on behalf of the parties hereto and
the completion of the transactions contemplated herein, but only to the extent
specified below:


 


(a)           except as set forth in clause (b) below, the
representation and warranties contained in Section 4.1 (Seller’s
Representations and Warranties) and Section 4.2 (Purchaser’s Representations
and Warranties) shall survive for a period of two (2) years following the
Closing Date;


 


(b)           the representations and warranties contained
in Sections 4.1.1 (Authorization), 4.1.2 (Seller’s Corporate Status), 4.1.3
(Conflicts) and 4.2.1 (Purchaser’s Corporate Status), shall survive without
limitation.


 


33

















 


ARTICLE 10


 


MISCELLANEOUS


 


10.1.       Expenses. Except as
otherwise provided in this Agreement, Seller, on the one hand, and Purchaser,
on the other hand, shall bear their respective expenses, costs and fees
(including attorneys’, auditors’ and financing commitment fees) in connection
with the transactions contemplated hereby, including the preparation, execution
and delivery of this Agreement and compliance herewith (the “Transaction
Expenses”), whether or not the transactions contemplated hereby shall be
consummated.


 


10.2.       Severability. If any
provision of this Agreement, including any phrase, sentence, clause, Section or
subsection is inoperative or unenforceable for any reason, such circumstances
shall not have the effect of rendering the provision in question inoperative or
unenforceable in any other case or circumstance, or of rendering any other
provision or provisions herein contained invalid, inoperative, or unenforceable
to any extent whatsoever.


 


10.3.       Notices. All notices,
requests, demands, waivers and other communications required or permitted to be
given under this Agreement shall be in writing and shall be deemed to have been
duly given if (a) delivered personally, (b) mailed by first-class, registered
or certified mail, return receipt requested, postage prepaid, or (c) sent by
next-day or overnight mail or (d) telecopy.


 


(i)            if
to Purchaser,


 


Symmetry Medical New Bedford, LLC


Attn: Fred L. Hite, Chief Financial Officer


220 W. Market Street


Warsaw, Indiana 46580


 


with a copy to:


 


Barrett & McNagny, LLP


Attn: Samuel J.
Talarico, Jr., Esq.


215 East Berry Street


Fort Wayne, Indiana 46802


 


(ii)           if
to Seller,


 


DePuy Orthopaedics, Inc.


700 Orthopaedic Drive


Warsaw, IN 46580


Attn: President


 


34

















 


with a copy to:


 


Vice President, Law and Secretary


DePuy Orthopaedics, Inc.


700 Orthopaedic Drive


Warsaw, IN 46580


Fax No. (574) 372-7596


 


or, in each case, at such other address as ay be specified in writing
to the other parties hereto.


 


All such notices, requests, demands, waivers and other communications
shall be deemed to have been received and effective when actually received of
refused by the addressee.


 


10.4.       Headings. The headings
contained in this Agreement are for purposes of convenience only and shall not
affect the meaning or interpretation of this Agreement.


 


10.5.       Entire Agreement. Before
signing this Agreement the parties have had numerous conversations including,
without limitation, preliminary discussions, formal negotiations and informal
conversations at meals and social occasions, and have generated correspondence
and other writings, in which the parties discussed the transaction which is the
subject of this Agreement and their aspirations for success. In such
conversations and writings, individuals representing the parties may have
expressed their judgments and beliefs concerning the intentions, capabilities,
and practices of the parties, and may have forecasted future events. The
parties recognize that such conversations and writings often involve an effort
by both sides to be positive and optimistic about the prospects for the
transaction. However, it is also recognized that all business transactions
contain an element of risk, as does the transaction contemplated by this
Agreement, and that it is normal business practice to limit the legal
obligations of contracting parties to only those promises and representations
which are essential to their transaction so as to provide certainty as to their
respective future rights and remedies. Accordingly, other than the
Confidentiality Agreement entered into between the parties, this Agreement and
the Collateral Agreements are intended to define the full extent of the legally
enforceable undertakings and representations of the parties hereto, and no
promise or representation, written or oral, which is not set forth explicitly
in such Agreements is intended by either party to be legally binding. Each of
the parties acknowledge that in deciding to enter into this Agreement and to
consummate the transaction contemplated hereby none of them has relied upon any
statements or representations, written or oral, other than those explicitly set
forth herein or therein. The language of this Agreement shall for all purposes
be construed as a whole, according to its fair meaning, not strictly for or
against either party, and without regard to the identity or status of any
person who drafted all or any part of it.


 


10.6.       Counterparts. This
Agreement may be executed in several counterparts, each of which shall be
deemed an original and all of which shall together constitute one and the same
instrument.


 


10.7.       Governing Law, etc. This
Agreement shall be governed in all respects, including as to validity,
interpretation and effect, by the internal laws of the State of Indiana,
without giving effect to the conflict of laws rules thereof to the extent that
the application of the law of 


 


35

















 


another jurisdiction would be required thereby. Purchaser and Seller
hereby irrevocably submit to the exclusive jurisdiction of the courts of the
State of Indiana and the Federal courts of the United States of America located
in the State of Indiana, City of Fort Wayne and County of Allen solely in
respect of the interpretation and enforcement of the provisions of this
Agreement and of the documents referred to in this Agreement, and hereby waive,
and agree not to assert, as a defense in any action, suit or proceeding for the
interpretation or enforcement hereof or of any such document, that is not
subject thereto or that such action, suit or proceeding may not be brought or
is not maintainable in said courts or that the venue thereof may not be
appropriate or that this Agreement or any of such document may not be enforced
in or by said courts, and the parties hereto irrevocably agree that all claims
with respect to such action or proceeding shall be heard and determined in such
an Indiana State or Federal court.


 


10.8.       Binding Effect. This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective heirs, successors and permitted assigns.


 


10.9.       Assignment and Recording. This
Agreement shall not be assignable or otherwise transferable by any party hereto
without the prior written consent of the other party hereto, provided that
either party may assign this Agreement to any wholly owned Subsidiary or
Affiliate of the assignor or to any lender to Purchaser or any Subsidiary or
Affiliate thereof as security for obligations to such lender in respect of the
financing arrangements entered into in connection with the transactions
contemplated hereby and any refinancings, extensions, refundings or renewals
thereof, provided, further, that no assignment to any such lender shall in any
way affect Purchaser’s obligations or Liabilities under this Agreement. Neither
this Agreement nor any memorandum regarding this Agreement shall be recorded
without the prior written consent of the parties.


 


10.10.     No Third Party Beneficiaries.
Except as provided in Section 9 with respect to indemnification of
Indemnified Parties hereunder, nothing in this Agreement shall confer any
rights upon any person or entity other than the parties hereto and their
respective heirs, successors and permitted assigns.


 


10.11.     Amendment; Waivers, etc. No
amendment, modification or discharge of this Agreement and no waiver hereunder,
shall be valid or binding unless set forth in writing and duly executed by the
party against whom enforcement of the amendment, modification, discharge or
waiver is sought. Any such waiver shall constitute a waiver only with respect
to the specific matter described in such writing and shall in no way impair the
rights of the party granting such waiver in any other respect or at any other
time. Neither the waiver by any of the parties hereto of a breach of or a
default under any of the provisions of this Agreement, nor the failure by any
of the parties, on one or more occasions, to enforce any of the provisions of
this Agreement or to exercise any right or privilege hereunder, shall be
construed as a waiver of any other breach or default of a similar nature, or as
a waiver of any of such provisions, rights or privileges hereunder. The rights
and remedies herein provided are cumulative and are not exclusive of any rights
or remedies that any party may otherwise have at law or in equity. The rights
and remedies of any party based upon, arising out of or otherwise in respect of
any inaccuracy or breach of any representation, warranty, covenant or agreement
or failure to fulfill any condition shall in no way be limited by the fact that
the act, omission, occurrence or other state of facts upon which any claim of
any such inaccuracy or breach is based may also be the 


 


36

















 


subject matter
of any other representation, warranty, covenant or agreement as to which there
is no inaccuracy or breach. The representations and warranties of Seller shall
not be affected or deemed waived by reason of any investigation made by or on
behalf of Purchaser (including but not limited to by any of its advisors,
consultants or representatives) or by reason of the fact that Purchaser or any
of such advisors, consultants or representatives knew or should have known that
any such representation or warranty is or might be inaccurate. At any time and
from time to time prior to the Closing, the parties hereto may by written
agreement signed by both parties, (a) extend the time for, or waive in whole or
in part, the performance of any obligation of any party hereto under this
Agreement, or (b) waive any inaccuracy in any representation, warranty or
statement of any party hereto.


 


10.12.     Forward Looking
Statements and Projections


 


(a)           In connection with Purchaser’s investigation of the
Division, Purchaser has received from Seller various forward-looking statements
regarding the Division (including the estimates, assumptions, projections,
forecasts and plans furnished to it collectively, the “Forward-Looking
Statements”). Purchaser acknowledges and agrees (i) there are inherent
uncertainties inherent in attempting to make the Forward-Looking Statements;
(ii) Purchaser is familiar with such uncertainties; (iii) Purchaser is taking
full responsibility for making its own investigation, examination and
evaluation of the Division and has employed outside professionals to assist it
with the foregoing; (iv) Purchaser is taking full responsibility for making its
own evaluation of the adequacy and accuracy of all Forward-Looking Statements;
(v) it is not relying on any Forward-Looking Statement in any manner
whatsoever, and (vi) with respect to the foregoing, Purchaser shall have
no claim against Seller with respect thereto.


 


(b)           Seller makes no representation or warranty with respect to the
reasonableness of the assumptions underlying any Forward-Looking Statement. In
addition, Seller makes no representation or warranty with respect to any
Forward-Looking Statement made (i) in the Data Room (iii) any presentation by
Seller to Purchaser, (iii) in any supplemental due diligence information
provided to Purchaser, (iv) in connection with Purchaser’s discussions with
management of the Division, (v) in negotiations leading to this agreement, or
(vi) in any other circumstance.


 


10.13      Dispute Resolution.


 


(a)           Negotiation.  The parties shall
attempt to resolve any dispute arising out of or relating to this Agreement,
whether with respect to a breach, indemnification or otherwise (each a “Dispute”),
promptly by good faith negotiation among representatives who have authority to
resolve the controversy.  Any party shall give the other party written
notice of any Dispute not resolved in the normal course of business. 
Within fifteen (15) business days after delivery of such notice, the receiving
party shall submit to the other party a written response.  The notice and
the response shall include (i) a statement of the party’s concerns and
perspectives on the Dispute, (ii) a summary of supporting facts and
circumstances, and (iii) the identity of the representative who will
represent such party.  Within thirty (30) calendar days after delivery of
the original notice, the representatives of the parties shall meet at a
mutually acceptable time and 


 


37

















 


place, and
thereafter as often as they reasonably deem necessary, to attempt to resolve
the Dispute.  All negotiations pursuant to this subsection and
subsection (b) below are confidential and shall be treated as compromise
and settlement negotiations for purposes of applicable rules of evidence.


 


(b)           Mediation.  If a Dispute is not
resolved by discussion between the parties, either party may by notice to the
other party require mediation of such Dispute, which notice shall identify the
names of no fewer than three (3) potential mediators.  Each party agrees
to participate in mediation of the Dispute and will in good faith attempt to
agree upon a mediator.  If the parties are unable to agree upon a mediator
within fifteen (15) business days after such notice, or if such Dispute shall
not have been resolved by mediation within sixty (60) days after such notice,
then either party may file for arbitration pursuant to subsection (c)
below.  All expenses of the mediator shall be equally shared by the
parties.


 


(c)           Binding Arbitration.


 


(i)            Any Dispute with respect to
which a party files for arbitration in accordance with subsection (b) above, or
that has not been resolved by mediation within forty-five (45) days of the
initiation of such procedure, or that has not been resolved prior to the
termination of mediation, shall be resolved by arbitration in accordance with
the Commercial Arbitration Rules of the American Arbitration Association (“AAA”)
in effect on the date of this Agreement.


 


(ii)           The AAA shall suggest a panel of
arbitrators, each of whom shall be knowledgeable with respect to the subject
matter of the Dispute.  Arbitration shall be before a sole arbitrator if
the parties agree on the selection of a sole arbitrator.  If not,
arbitration shall be before three independent and impartial arbitrators, all of
whom shall be appointed by the AAA in accordance with its rules.


 


(iii)          The place of arbitration shall be Warsaw, Indiana.


 


(iv)          The award rendered by the arbitrators shall be in writing
and shall include a statement of the factual bases and the legal conclusions
relied upon by the arbitrators in making such award.  The arbitrators
shall decide the Dispute in compliance with the applicable substantive law and
consistent with the provisions of this Agreement, including limits on
damages.  The award rendered by the arbitrators shall be final and
binding, and judgment upon the award may be entered by any court having
jurisdiction.


 


(v)           All matters relating to the enforceability of the
arbitration provisions of this Agreement and any arbitration award rendered
pursuant to this Agreement shall be governed by the Federal Arbitration Act, 9
U.S.C. § 1-16.  The arbitrators shall apply the substantive law of
the State of Indiana, exclusive of any conflict of law rules.


 


38

















 


(vi)          Nothing in this Section 10.13 shall limit the rights of the
parties to obtain provisional, ancillary or equitable relief from a court of
competent jurisdiction.


 


(vii)         Expenses.  Each party shall pay its
own expenses of arbitration and the fees, costs and expenses of the arbitrators
and the arbitration shall be equally shared; provided, however, if in the
opinion of the arbitrators any claim by either party hereunder or any defense
or objection thereto by the other party was unreasonable and not made in good
faith, the arbitrators may assess as part of the award, all or any part of the
arbitration expense (including, without limitation, reasonable attorneys’ fees)
of the non-offending party and of the arbitrators against the party raising
such unreasonable claim, defense or objection.  Nothing herein shall
prevent the parties from settling the Dispute by mutual agreement at any time.


 


39

















 


IN WITNESS WHEREOF,
the parties have caused their duly executed officer to sign this Agreement as
of the date first above written.


 


	
   

  	
  SYMMETRY MEDICAL NEW BEDFORD, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
    /s/ Fred L. Hite

  	
   

  
	
   

  	
  Title:

  	
   Chief Financial Officer

  	
   

  
					



 


 


	
   

  	
  SYMMETRY NEW BEDFORD REAL 

  ESTATE, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
    /s/ Fred L. Hite

  	
   

  
	
   

  	
  Title:

  	
   Chief Financial Officer

  	
   

  
					



 


 


	
   

  	
  DEPUY ORTHOPAEDICS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Mark T. Piazza

  	
   

  
	
   

  	
  Title:

  	
    Vice President

  	
   

  
						



 


40

















 


EXHIBITS AND DISCLOSURE SCHEDULES


TO THE


PURCHASE AGREEMENT


BY AND AMONG


SYMMETRY MEDICAL NEW BEDFORD, LLC


and


SYMMETRY NEW BEDFORD REAL ESTATE, LLC


(Collectively the Purchaser)


and


DEPUY ORTHOPAEDICS, INC.


(Seller)


DATED: December 14, 2007


 


Exhibits


 


Exhibit
A – Form of Supply Agreement


 


Exhibit
B – Form of Transition Services Agreement


 


Exhibit
C – Form of Lease Agreement


 


Schedules


Schedule
2.1 – Asset Listing


 


Schedule
2.2 – Excluded Assets


 


Schedule
4.1.3 – No Conflict


 


Schedule
4.1.5 – Changes and Events


 


Schedule
4.1.6 – Litigation


 


Schedule
4.1.7(a) – Exceptions to Compliance


 


Schedule
4.1.7(b) – Gov. Approvals & Consents


 


Schedule
4.1.9 – Assets with Liens


 


Schedule
4.1.10(a) – Agreements, Contracts, Commitments & Other Instruments


 


Schedule
4.1.10(c) – Defaults and Consent


 


Schedule
4.1.11 – Inventories


 


Schedule
4.1.12 – Suppliers of Raw Material and Suppliers Greater than $25,000 Annually


 


Schedule
4.1.15(a) – Real Property


 


Schedule
4.1.16(a) – Environmental Permits


 

















 


Schedule
4.1.16(c) – Actions Resulting or likely to Result in Liability or Obligation
Related to Environmental Conditions or Hazardous Substances


 


Schedule
4.1.16(d) – Other Conditions Related to Environmental or Hazardous Substances


 


Schedule
4.1.17 – Employees, Labor Matters


 


Schedule
4.1.18 – Employee Benefit Plans and Related Matters


 


Schedule
4.1.22 – Financial Statements


 


Schedule
4.1.23 – Taxes


 


Schedule
4.1.25 – Schedule of Insurance


 


Schedule
4.2.2 – Government Approval or other Consent required in Connection with the
Execution and Delivery of the Agreement or the Collateral Agreements


 


Schedule
6.2.5 – Software Applications


 


Schedule
7.1 – Comparable Employment to Employees


 


Schedule
7.3 – Periods of Service of Continuing Employees


 


Schedule
7.5 – Vacation Accrual