exv10w4



 







Exhibit 10.4




ASSET PURCHASE AGREEMENT




     This Asset Purchase Agreement (the “Agreement”), is entered into as of May 17, 2006, by and
between Mentor Corporation, a Minnesota corporation (“Seller”), and Rochester Medical Corporation,
a Minnesota corporation (“Purchaser”).



     WHEREAS, Seller has entered into that certain purchase agreement with Coloplast A/S, a Danish
Corporation (“Coloplast”), dated May 17, 2006 pursuant to which Seller will sell certain of its
assets to Coloplast, and Coloplast will assume certain liabilities, in each case relating to
Seller’s surgical urology and consumer and clinical healthcare operating segments (the “Coloplast
Purchase Agreement”);



     WHEREAS, the Parties are parties to an arbitration proceeding, filed by Purchaser with the
American Arbitration Association (the “AAA”) on November 29, 2005, case No. AAA 65 133 M 00317 05
(the “Arbitration”);



     WHEREAS, the Parties have executed a binding Memorandum of Understanding dated as of April 2,
2006 (the “MOU”) pursuant to which, the Parties agreed, among other things, that, subject to the
satisfaction of certain conditions, the Arbitration would be dismissed with prejudice, the Parties
would execute a mutual settlement and release and Seller would sell, and Purchaser would purchase,
the Assets;



     WHEREAS, the MOU provides that the Parties shall use all reasonable efforts to negotiate
definitive agreements containing the terms set forth in the MOU and other commercially reasonable
terms; and



     WHEREAS, this Agreement is being executed by the Parties to supersede the MOU in its entirety
and effect the sale by Seller, and purchase by Purchaser, of the Assets upon the terms and
conditions hereinafter set forth;



     NOW, THEREFORE, in consideration of the foregoing premises and the mutual promises herein
made, and in consideration of the covenants, representations, warranties, conditions and agreements
contained herein, the Parties hereto agree as follows:



ARTICLE 1.




DEFINITIONS




     The following terms shall have the following respective meanings for all purposes of this
Agreement:



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



 









 





     “Cause” means (a) a Transferred Employee’s breach of any trade secret or any confidential
information agreement with Purchaser (or a Subsidiary thereof), or written policy of Purchaser or a
Subsidiary thereof, (b) willful misconduct by a Transferred Employee, which is injurious to the
business of Purchaser, (c) the conviction of, or entry of a guilty plea by, a Transferred Employee
for the commitment of, a crime of moral turpitude, (d) substance abuse, including alcohol, (e)
taking an action for the purpose of harming the Purchaser or its business, (f) noncompliance with
applicable Law in a manner that is injurious to the business of Purchaser, (g) fraud or intentional
misrepresentation, or (h) continual, significant absenteeism.



     “Change of Control” means, with respect to a Party, a transaction or series of related
transactions that would directly or indirectly: (a) result in or have the effect of a third Person
obtaining legal or beneficial ownership of more than 50% of the voting shares (or other voting
interests) of such Party (even if such Party is the surviving entity, such as in the case of a
reverse triangular merger); or (b) result in the sale, transfer, assignment, exclusive license or
other disposition of all or substantially all of the Party’s assets; other than, in the case of
(a), a transaction pursuant to which the shareholders of such Party immediately prior to the
relevant transaction continue to beneficially own at least 50% of the voting shares (or other
voting interests) of such Party or its direct or indirect parent entity immediately following such
transaction.



     “COBRA” shall mean the Consolidated Omnibus Budget Reconciliation Act of 1985.



     “Code” means the Internal Revenue Code of 1986 and the Treasury Regulations promulgated
thereunder.



     “Confidentiality Agreement” means the Confidentiality Agreement between Purchaser and Seller,
dated January 25, 2006.



     “Constructive Termination” shall mean only a resignation of a Transferred Employee’s
employment submitted within forty-five (45) days after the occurrence of any of the following
events: (i) a material reduction in the Transferred Employee’s responsibilities, provided that a
change of title shall not constitute such a material reduction; (ii) a reduction in the Transferred
Employee’s base salary, other than a one-time reduction that applies to substantially all other
employees of Purchaser; or (iii) a relocation of the Transferred Employee’s principal office to a
location more than fifty (50) miles from the Anoka Facility; and provided in all the above cases
the Purchaser has failed to cure the facts and circumstances giving rise to the Constructive
Termination within fifteen (15) days after receipt of notice of such resignation.



     “Contracts” means all contracts, binding agreements, options, leases, licenses, sales, binding
commitments and other similar instruments.



     “Covenant Breach” means with respect to a Party, a breach of, nonfulfillment or failure to
comply with a covenant or agreement made or to be performed pursuant to this Agreement by such
Party or a Subsidiary thereof.



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     “Derivative Works” shall have the meaning ascribed to it under the United States Copyright
Law, Title 17 U.S.C. Sec. 101 et. seq.



     “Employee Benefits Plan” means, whether written or oral: (a) any plan, fund, agreement or
program which provides health, medical, surgical, hospital, vision or dental care or other welfare
benefits, or benefits in the event of sickness, accident or disability, or death benefits,
apprenticeship or other training programs, or day care centers, scholarship funds, or prepaid legal
services; (b) any plan, fund, agreement or program which provides retirement income to employees or
results in a deferral of income by employees for periods extending to the termination of covered
employment or beyond; (c) any plan, fund, agreement, practice or program which provides severance,
unemployment, vacation or fringe benefits (including dependent and health care accounts); (d) any
incentive compensation plan, deferred compensation plan, stock option or stock-based incentive or
compensation plan, or stock purchase plan; (e) any other “employee pension benefit plan” (as
defined in Section 3(2) of ERISA), any other “employee welfare benefit plan” (as defined in Section
3(1) of ERISA); and (f) any other written or oral plan, agreement or arrangement involving direct
or indirect compensation including insurance coverage, severance benefits, disability benefits,
fringe benefits, pension or retirement plans, profit sharing, deferred compensation, bonuses
(including any sale bonuses), stock options, stock purchase, phantom stock, stock appreciation or
other forms of incentive compensation or post-retirement compensation, as well as any change in
control agreements, managing director agreements and other retention arrangements.



     “ERISA” means the Employee Retirement Income Security Act of 1974 and the regulations
thereunder.



     “Encumbrance” means any lien, claim, charge, license, security interest, mortgage, pledge,
easement, conditional sale or other title retention agreement, defect in title, covenant or other
restrictions of any kind, other than a Permitted Encumbrance.



     “End Date” shall mean the End Date as defined in the Coloplast Purchase Agreement, as the same
may be extended pursuant to the terms thereof.



     “Governmental Authority” means any national, supranational, local or foreign court,
governmental or administrative agency or commission or other governmental agency, authority,
instrumentality, notified body, competent authority, third party governmental designate or
regulatory body having appropriate jurisdiction worldwide.



     “HIPAA” means the Health Insurance Portability and Accountability Act of 1996 and any
regulations promulgated thereunder.



     “Intellectual Property Rights” or “IPR” means all rights associated with any of the following:
(a) United States and foreign patents and applications therefor, including any patent or
application that is a provisional application, reissue, re-examination, renewal, extension or
continuation of a patent or patent application (“Patents”); (b) know-how, trade secret rights and
all other rights in or to confidential business or technical information (“Trade Secrets”); (c) copyrights,



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copyright registrations and applications therefor and all other
rights corresponding thereto throughout the world (“Copyrights”); (d) trademarks, service marks,
logos, trade dress rights and similar designation of origin and rights therein, registrations and
applications for registration therefor (“Marks”); (e) industrial design rights and any
registrations and applications therefor; (f) URLs, WWW address, and domain names (“Internet
Properties”); (g) databases and data collections, (including knowledge databases, customer lists
and customer databases (such customer lists and customer databases, the “Customer Information”);
and (h) any similar, corresponding or equivalent rights to any of the foregoing anywhere in the
world. Intellectual Property Rights specifically excludes contractual rights, including license
grants, and the tangible embodiment of any of the foregoing.



     “Knowledge” means the actual knowledge of a Party’s executive officers.



     “Laws” means any applicable laws, statutes, ordinances, regulations, rules, interpretations,
or orders of any Governmental Authority anywhere in the world.



     “Liabilities” means any and all debts, liabilities, obligations and duties (whether known or
unknown, whether asserted or unasserted, whether absolute or contingent, whether accrued or
unaccrued, whether liquidated or unliquidated, whether latent or patent, whether determined or
undetermined, and whether due or to become due).



     “Licensed Field” means the manufacture of SMECs.



     “Licensed IPR” means all IPR owned or licensable by Seller as of the Closing that absent a
license would be infringed by the manufacture of SMECs by Purchaser immediately after the Closing;
provided however that “Licensed IPR” shall not include any Patents, Marks, Internet Properties or
Customer Information.



     “Losses” means any and all losses, costs, obligations, Liabilities, settlement payments,
awards, judgments, fines, penalties, damages, expenses, deficiencies or other charges.



     “Operative Agreements” means the Bill of Sale, the Release, the Lease, the Dismissal and the
Termination.



“Parties” means Seller and Purchaser, and each individually a “Party.”




     “Permitted Encumbrance” means any or all of the following: (a) licenses or other non-exclusive
Intellectual Property Rights granted prior to the date of this Agreement by Seller to any third
Person; and (b) Encumbrances which do not materially detract from the use of the Assets other than
liens recorded pursuant to UCC-1 financing statements filed in the State of Minnesota.



     “Person” means any individual, corporation, partnership, limited liability company, trust,
unincorporated organization, association, firm, joint venture, joint stock company, Governmental
Authority or other entity.



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     “Purchase Price” has the meaning set forth on Schedule 1.1.



     “Purchaser Benefits Plans” means the Employee Benefits Plans of Purchaser (or a Subsidiary
thereof).



     “Purchaser Material Adverse Effect” means any change that is materially adverse to the net
assets or financial condition of Purchaser and its Subsidiaries taken as a whole or to the ability
of Purchaser to consummate the transactions contemplated hereby and by the Operative Agreements.



     “Purchaser SMECs” means all inventory of SMECs, including unpackaged SMECs, owned by the
Seller as of the Closing that were produced by Purchaser at its facility located at 1 Rochester
Medical Drive, Stewartville, Minnesota and that are in substantially the same condition as when
received by the Seller from Purchaser (the “Purchaser SMECs”).



     “Registered IPR” means (i) issued Patents and Patent applications, (ii) registered Copyrights
and applications to register Copyrights, (iii) registered Marks and applications to register Marks,
and (iv) other formal registrations or applications to register Intellectual Property Rights with
any Governmental Authority.



     “Seller Benefits Plans” means the Employee Benefits Plans of Seller (or a Subsidiary thereof)
under which some or all of the Transferred Employees are eligible to participate immediately prior
to the date of this Agreement.



     “Seller Material Adverse Effect” means any change that is materially adverse to the net assets
or financial condition of Seller and its Subsidiaries taken as a whole or to the ability of Seller
to consummate the transactions contemplated hereby and by the Operative Agreements.



     “Seller SMEC” means an SMEC produced by Seller at the Anoka Facility.



     “SMEC” means a Silicone Male External Catheter.



     “Subsidiary” means with respect to a Party, any other corporation, limited liability company,
general or limited partnership, unincorporated association or other business entity of which (a) if
a corporation, a majority of the total voting power of shares of stock entitled (without regard to
the occurrence of any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such Party, or one or more
of the other Subsidiaries of such Party or a combination thereof, or (b) if a limited liability
company, partnership, association or other business entity, a majority of the partnership or other
similar ownership interest thereof is at the time owned or controlled, directly or indirectly, by
such Party, or one or more Subsidiaries of such Party or a combination thereof.



     “Warranty Breach” means with respect to a Party, an inaccuracy or breach of a representation
or warranty expressly made by such Party in the Agreement.



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     “Years of Service” means, with respect to any Transferred Employee’s prior service as an
employee of either Seller or a Subsidiary of Seller, fully completed calendar years plus the pro
rated time described in the following sentence. Not fully completed calendar years shall be
counted towards Years of Service at the rate of 1/12th for each full calendar month of
service.



     1.1 Other Definitions. The following terms are defined in the sections indicated:



	 	 	 
	Term	 	Section
	AAA

	 	Recitals
	Agreement

	 	Preamble
	Anoka Facility

	 	Section 2.2
	Arbitration

	 	Recitals
	Assets

	 	Section 2.1(f)
	Bill of Sale

	 	Section 3.2(a)
	Cash Consideration

	 	Section 3.3(b)
	Closing

	 	Section 3.1
	Closing Date

	 	Section 3.1
	Coloplast

	 	Recitals
	Coloplast Purchase Agreement

	 	Recitals
	Copyrights

	 	Definitions
	Dismissal

	 	Section 3.2(c)
	Evaluation Material

	 	Section 9.5(a)
	Finished Goods

	 	Section 2.1(d)
	Internet Properties

	 	Definitions
	Lease

	 	Section 3.2(d)
	Licensee Party

	 	Section 4.3
	Licensor Party

	 	Section 4.3
	Marks

	 	Definitions
	MEC Agreement

	 	Section 3.2(e)
	MOU

	 	Recitals
	Offered Employee

	 	Section 8.1
	Patents

	 	Definitions
	Purchaser

	 	Preamble
	Purchaser Employment Liabilities

	 	Section 8.8
	Raw Materials

	 	Section 2.1(b)
	Release

	 	Section 3.2(b)
	Residuals

	 	Section 4.2
	Seller

	 	Preamble
	Seller Employment Liabilities

	 	Section 8.9
	Selling Subsidiary

	 	Section 5.1
	Tangible Assets

	 	Section 2.1(a)
	Trade Secrets

	 	Definitions






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	Term	 	Section
	Transferred Employee

	 	Section 8.1
	Transferred IPR

	 	Section 2.1(f)
	Transfer Taxes

	 	Section 3.4
	Transition Marks

	 	Section 4.7(e)
	Transition Products

	 	Section 4.7(e)
	WIP

	 	Section 2.1(c)






ARTICLE 2.




PURCHASE AND SALE OF THE ASSETS




     2.1 Purchase and Sale of the Assets. At the Closing, upon the terms and subject to the
conditions contained herein, Seller shall sell to Purchaser, effective as of the Closing, free and
clear of all Encumbrances, and Purchaser shall purchase and acquire from Seller, all of Seller’s
and its Subsidiaries right, title and interest in and to the following:



          (a) The tangible assets listed on Schedule 2.1(a) (the “Tangible Assets”);




          (b) All reasonably useable raw materials owned by Seller as of the Closing held for use in,
and that are useable for, the production of Seller SMECs that are practicably capable of becoming
SMECs that will be useable and acceptable to Coloplast (the “Raw Materials”);




          (c) All work-in-progress Seller SMECs (the “WIP”) owned by the Seller as of the Closing, that
are practicably capable of becoming SMECs that are useable and acceptable to Coloplast;




          (d) All finished goods inventory of Seller SMECs (the “Finished Goods”), owned by the Seller
as of the Closing, that are useable and acceptable to Coloplast;




          (e) The Purchaser SMECs; and




          (f) The IPR owned by Seller that: (i) is not (A) Registered IPR, (B) IPR transferred to
Coloplast pursuant to the Coloplast Purchase Agreement, or (C) Patents, Marks, Internet Properties
or Customer Information; and (ii) is used exclusively, as of the Closing, in connection with the
manufacture of SMECs (the “Transferred IPR” and, collectively with the Tangible Assets, the Raw
Materials, the WIP, the Finished Goods and the Purchaser SMECs, the “Assets”).




     2.2 Excluded Assets. Notwithstanding anything contained in this Agreement to the
contrary, for the avoidance of doubt, the Parties agree that Seller is not selling and Purchaser is
not purchasing the real property with all improvements now or hereafter located thereon commonly



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known as 800 Lund Boulevard, Anoka, Minnesota, including the land and the building located thereon
(collectively, the “Anoka Facility”) or any other assets (including IPR) of Seller other than the
Assets.



     2.3 Bulk Sales. Purchaser hereby waives compliance with the provisions of any applicable
laws which relate to the sale of property in bulk in connection with the sale of the Assets to the
Purchaser.



     2.4 Retained Liabilities. The parties specifically acknowledge that Purchaser is not
agreeing to assume any Liabilities of Seller, whether related to the Assets or otherwise, other
than the Purchaser Employment Liabilities, and that nothing in this Agreement, including this
Section 2.4, will be construed as an agreement otherwise.



ARTICLE 3.




CLOSING




     3.1 Closing. The transactions contemplated by this Agreement shall be consummated (the
“Closing”) at the offices of Wilson Sonsini Goodrich & Rosati, Professional Corporation, at 650
Page Mill Road, Palo Alto, California, no later than two Business Days after all of the conditions
set forth in Article 7 shall have been satisfied or waived (other than those conditions
that by their terms are not capable of being satisfied or waived until the Closing), or such other
time, place or date as Seller and Purchaser may mutually agree in writing. The time and date on
which the Closing is actually held is sometimes referred to herein as the “Closing Date.”



     3.2 Deliveries by Seller. At the Closing, Seller will deliver or cause to be delivered to Purchaser (unless
previously delivered) the following:



          (a) a duly executed counterpart of the Bill of Sale for the Tangible Assets, the Raw
Materials, the WIP, the Finished Goods and the Purchaser SMECs in the form attached hereto as
Exhibit A (the “Bill of Sale”);




          (b) a duly executed counterpart of the Mutual Settlement and Release in the form attached
hereto as Exhibit B (the “Release”);




          (c) a duly executed counterpart of the Stipulation of Dismissal to be filed by Purchaser with
the AAA in the form attached hereto a Exhibit C (the “Dismissal”);




          (d) a duly executed counterpart of the lease for the Anoka Facility in the form attached as
Exhibit D (the “Lease”); and




          (e) A duly executed counterpart of the termination in the form attached as Exhibit E
(the “Termination”) which provides for the termination of (i) the Male External Catheter
License,




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Sales and Distribution Agreement (including the Patent License, the Technology License and
the Confidential Information thereunder), between Purchaser and Seller dated as of April 24, 1991,
as amended by the Settlement Agreement between Purchaser and Seller with an effective date of
September 8, 1995 (the “MEC Agreement”), pursuant to which termination, among other things, Seller
will relinquish its right to use any IPR or confidential information of Purchaser licensed
thereunder; (ii) the Supply Agreement between Purchaser and Seller dated October 1, 2001; and (iii)
the Foley Catheter Sales and Distribution Agreement between Purchaser and Seller dated as of April
24, 1991. Notwithstanding the foregoing, and for the avoidance of doubt, the Termination shall not
restrict or limit in any way the covenants made and licenses granted pursuant to Article 4
hereof.




     3.3 Deliveries by Purchaser. At the Closing, Purchaser will deliver or cause to deliver
to Seller (unless previously delivered) the following:



          (a) $750,000 in cash representing the aggregate purchase price for the Tangible Assets and the
Transferred IPR by wire transfer of immediately available federal funds to an account specified by
Seller;




          (b) an amount of cash equal to the aggregate Purchase Price for the Purchaser SMECs, the Raw
Materials, the WIP and the Finished Goods by wire transfer of immediately available federal funds
to an account specified by Seller (together with (a) above, the “Cash Consideration”);




          (c) a duly executed counterpart of the Bill of Sale;




          (d) a duly executed counterpart of the Release;




          (e) a duly executed counterpart of the Dismissal;




          (f) a duly executed counterpart of the Lease; and




          (g) a duly executed counterpart of the Termination.




     3.4 Transfer Taxes. Purchaser shall be responsible for and shall pay when due any sales, use, value-added,
gross receipts, excise, registration, stamp duty, transfer or other similar taxes or governmental
fees (including any interest or penalties related thereto) that may be payable in connection with
the transactions contemplated by this Agreement (the “Transfer Taxes”). The Parties hereto shall
cooperate, to the extent reasonably requested and permitted by applicable law, in minimizing any
such Transfer Taxes. The Party required by law to file a tax return with respect to such Transfer
Taxes shall do so within the time period prescribed by law, and Purchaser shall promptly pay Seller
for any Transfer Taxes so payable by Seller upon receipt of notice that such Transfer Taxes have
become payable.



     3.5 Delivery; Further Assurances.



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          (a) On the Closing Date, Seller shall deliver to Purchaser at the Anoka Facility, all of the
Assets with the exception of Assets delivered by electronic means. All Assets capable of being
delivered by electronic means shall be delivered by electronic means as mutually agreed upon by
Purchaser and Seller.




          (b) Seller shall, at any time and from time to time after the Closing, upon the request of
Purchaser and at the expense of Purchaser, do, execute, acknowledge and deliver, and cause to be
done, executed, acknowledged or delivered, all such further acts, deeds, assignments, transfers,
conveyances, powers of attorney or assurances as may be reasonably required, or to vest in
Purchaser all of the Seller’s right, title and interest in the Assets. Each of the Parties hereto
will cooperate with the other and execute and deliver to the other such other instruments and
documents and take such other actions as may be reasonably requested from time to time by the other
Party hereto as necessary to carry out, evidence and confirm the intended purposes of this
Agreement. Purchaser shall be solely responsible for the filing and recordation of any transfer
documents following the Closing.




ARTICLE 4.




INTELLECTUAL PROPERTY LICENSES




     4.1 Seller License. Subject to the terms and conditions of this Agreement, effective as of the Closing, Seller
and its Subsidiaries hereby grant to Purchaser and its Subsidiaries a worldwide, perpetual,
irrevocable, fully paid-up, non-exclusive right and license under all of Seller’s rights in the
Licensed IPR, to use, copy, create Derivative Works from, sell, and distribute the Assets, or any
products and provide any services, in the Licensed Field.



     4.2 Purchaser License and Covenant.



          (a) Subject to the terms and conditions of this Agreement, effective as of the Closing,
Purchaser and its Subsidiaries hereby grant Seller and its Subsidiaries, and Seller and its
Subsidiaries retain, under the Transferred IPR, a worldwide, perpetual, fully paid-up,
non-exclusive right and license to use, copy, create Derivative Works from, sell and distribute
products, and provide services, based upon the Residuals. “Residuals” means any IPR provided under
or relating to the MEC Agreement (including Confidential Information as defined thereunder) or any
Transferred IPR that is retained in the unaided memory of employees of Seller or its Subsidiaries
following the Closing.




          (b) Without limiting Section 4.2(a), Purchaser agrees, effective commencing as of the
Closing, that neither it nor any of its Subsidiaries will bring any action or assert any claim
against Seller, its Subsidiaries, their successors, or Coloplast based upon or alleging that any
trade secrets or other information or materials in the possession of, known to, or used by Seller,
as of the date hereof or transferred or disclosed by Seller to Coloplast in connection with the
Coloplast Purchase Agreement was or is misappropriated by Seller (or Coloplast) from Purchaser,
violates




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Purchaser’s trade secret rights, or infringes Purchaser’s copyrights, in each case outside
the Licensed Field. Coloplast shall be deemed an express third party beneficiary with rights of
enforcement under this Section 4.2(b) to the extent this Section 4.2(b) relates to
any assets acquired by Coloplast from Seller.




     4.3 Existing Licenses. All licenses granted by a Party (“Licensor Party”) to the other Party or its Subsidiaries,
as applicable (“Licensee Party”) under this Article 4 are subject to any and all Contracts
between the Licensor Party and any third Person entered into prior to the Closing.



     4.4 Reservation of Rights. Each of the Licensor Parties hereby reserves all rights not expressly granted hereunder.
No implied licenses are granted by Seller or Purchaser with respect to any of the Assets or
pursuant to any term of this Agreement.



     4.5 Trade Secret Protection and Use. Notwithstanding the retention of ownership of any Trade Secrets by Seller (and the license
granted thereto to Purchaser), or transfer of ownership of Trade Secrets to Purchaser (with a
license retained thereto by Seller) hereunder, each Party agrees (i) nothing set forth herein shall
limit either Party’s rights to enforce its rights with respect to any misappropriation following
the Closing by third parties of such Trade Secrets or to protect the confidentiality of such Trade
Secrets regardless of whether such Trade Secrets are licensed to, or owned by such Party, and (ii)
each Party shall treat the Trade Secrets of the other with at least the same degree of care, as its
does its own like Trade Secrets, but in no event with less than reasonable care; provided that each
Party may use and disclose the Trade Secrets of the other within the scope of the licenses granted
hereunder.



     4.6 Transfer and Sublicensing. Except with respect to the license granted to Purchaser pursuant to Section 4.7,
the Licensee Party may transfer, assign or sublicense the licenses granted to it hereunder;
provided, however, that with respect to the license to Residuals granted to Seller pursuant to
Section 4.2(a) hereof, such license may not be transferred, assigned or sublicensed by Seller (i)
to Coloplast or (ii) to any other person except pursuant to a Change of Control of Seller.



     4.7 License to Transition Marks.



          (a) Seller hereby grants to Purchaser, effective as of the Closing, a non-exclusive,
non-transferable license under the Transition Marks (as defined below) to use such Transition Marks
in connection with the sale and distribution of Transition Products (as defined below) in the U.K.
in substantially the same manner that such Transition Marks were used by Seller or Mentor Medical
Limited in the U.K. prior to the Closing. All goodwill associated with the use of such Transition
Marks shall inure to the benefit of Seller.




          (b) Purchaser shall maintain the quality of the goods with which such Transition Marks are
used at least at the same level maintained by Seller prior to the Closing. Without limiting the
foregoing, Purchaser shall not (i) use the Transition Marks in a manner that detracts from the
goodwill associated with such Transition Marks or in a manner contrary to the reasonable
instructions of Seller, (ii) co-brand the Transition Products with any other Marks without the
prior




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written consent of Seller, or (iii) sell any Transition Product beyond its shelf life or in
any other improper manner. Purchaser shall not make any warranty, express or implied, to any third
party on behalf of Seller with respect to the Transition Products and except as may be otherwise
provided under this Agreement shall be solely responsible for all Transition Products sold by it.




          (c) Purchaser will use reasonable commercial efforts, subject to regulatory requirements, to
cease using the Transition Marks as promptly as practicable following the Closing, and replace such
Transition Marks with new Marks owned by Purchaser. Without limiting the generality of the
foregoing, in no event may Purchaser market, package, sell or promote any product
under or bearing a Transition Mark after the last day of the ninth (9th) month
following the Closing Date.




          (d) Purchaser will sell Transition Products in inventory on a first-in-first-out (FIFO) basis
in advance of any other products that are reasonable substitutes for the Transaction Products but
which other products do not bear the Transition Marks.




          (e) For the purposes of this Section 4.7, (i) “Transition Products” means all SMECs in
Mentor Medical Limited’s inventory that are purchased by Purchaser from Coloplast under the MML
Purchase Agreement, and (ii) “Transition Marks” means all Marks used by Seller or Mentor Medical
Limited in the U.K. that use or contain the letter string “MENTOR” prior to the Closing in
connection with the distribution and sale of SMECs by Mentor Medical Limited which are affixed as
of the Closing to the Transition Products.




ARTICLE 5.




REPRESENTATIONS AND WARRANTIES OF SELLER




     Seller hereby represents and warrants to Purchaser that:



     5.1 Organization and Qualification/Ownership of Seller. Seller is a corporation duly organized, validly existing and in good standing under the
laws of the State of Minnesota and has all requisite corporate power and authority to own, lease
and operate the Assets. Each of Seller’s Subsidiaries which owns Assets (each, a “Selling
Subsidiary”) is an entity duly organized, validly existing and in good standing (where applicable)
under the laws of its jurisdiction of organization and has all requisite corporate (or similar)
power and authority to own, lease and operate the Assets. Seller and the Selling Subsidiaries are
each duly qualified to do business as a foreign corporation and are in good standing in each
jurisdiction where such qualification is necessary, except for those jurisdictions where failure to
be so qualified would not, individually or in the aggregate, have a Seller Material Adverse Effect.



     5.2 Due Authorization. Seller has all requisite corporate power and authority to execute and deliver this
Agreement and the Operative Agreements to which it is a party, to perform its obligations hereunder
and thereunder and to consummate the transactions contemplated hereby and thereby. The execution
and delivery by Seller of this Agreement and the Operative Agreements, the



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performance by Seller of
its obligations hereunder and thereunder and the consummation of the transactions contemplated
hereby and thereby have been duly and validly authorized by all necessary corporate action on the
part of Seller. This Agreement has been duly and validly executed by Seller, and this Agreement
and each Operative Agreement to which Seller is a party are, upon execution and delivery hereof and
thereof by Seller, valid and binding obligations of Seller, enforceable against it in accordance
with the terms hereof and thereof (except as the enforceability hereof and thereof may be limited by any
applicable bankruptcy, insolvency or other laws affecting creditors’ rights generally or by general
principles of equity, regardless of whether such enforceability is considered in equity or at law).




     5.3 No Conflict. Except as set forth in Schedule 5.3, neither the execution and delivery by Seller
of this Agreement or any of the Operative Agreements, nor the consummation by Seller of the
transactions contemplated hereby or thereby, nor compliance by Seller with any of the provisions
hereof or thereof, will: (a) conflict with, result in a breach or violation of or constitute (or
with notice or lapse of time or both constitute) a default under, (i) the Articles of Incorporation
or Bylaws of Seller or the like organizational documents of each Selling Subsidiary, (ii) any
order, judgment, decree, writ or injunction expressly applicable by its terms to any of the Assets
(but not including an order, judgment, decree, writ or injunction of general applicability), (iii)
to the Knowledge of Seller, any Law or other order, judgment, decree, writ or injunction applicable
to any of the Assets, or (iv) any of the terms, conditions or provisions of any Contract to which
Seller or its Subsidiaries is a party or by which Seller or its Subsidiaries (or any of the Assets)
is subject or bound which conflict, breach, violation or default would have a Seller Material
Adverse Effect; or (b) require Seller or, to the Knowledge of Seller, Purchaser to obtain any
authorization, consent, approval or waiver from, or to notify or to make any filing with, any
Governmental Authority.



     5.4 Title to Assets. Seller has good and marketable title to the Assets (other than
the Transferred IPR), free and clear of all Encumbrances. Seller owns all right, title and
interest in and to all of the Transferred IPR and/or has the right and authority to transfer such
Transferred IPR to Purchaser in accordance with the terms hereof free and clear of all
Encumbrances.



     5.5 Brokers. Seller and its Subsidiaries has not paid or become obligated to pay any fee or commission
to any broker, finder, investment banker or other intermediary in connection with the transactions
contemplated by this Agreement that is not the sole obligation of Seller.



     5.6 Employees. As of the date hereof, none of the Offered Employees are on an
approved leave of absence from work with Seller nor as of the date hereof has any such Offered
Employee provided written notice to Seller’s human resources department in accordance with Seller’s
human resource policies that he or she intends to take an approved leave of absence from work after
the date hereof.



     5.7 Exclusive Warranties. Except as set forth in this Article 5, Seller does not make any representations or
warranties, expressly or impliedly, with respect to the Assets, which are being sold “AS IS” in all
respects with all faults and without any other warranties of any kind. EXCEPT AS SPECIFICALLY
CONTAINED IN THIS ARTICLE 5, SELLER EXPRESSLY DISCLAIMS



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ALL OTHER
EXPRESS, STATUTORY AND IMPLIED WARRANTIES AND CONDITIONS, INCLUDING THE IMPLIED WARRANTY OR
CONDITION OF MERCHANTABILITY, SATISFACTORY QUALITY, NON-INFRINGEMENT, VALIDITY, ENFORCEABILITY OR
SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OF PURCHASER’S, WHETHER OR NOT SELLER HAS BEEN
MADE AWARE OF ANY SUCH PURPOSE.



ARTICLE 6.




REPRESENTATIONS AND WARRANTIES OF PURCHASER




     Purchaser hereby represents and warrants to Seller as follows:



     6.1 Organization. Purchaser is a corporation, duly organized, validly existing and in good standing under the
laws of the State of Minnesota and has all requisite corporate power and authority to purchase the
Assets in accordance with the terms of this Agreement.



     6.2 Due Authorization. Purchaser has all requisite corporate power and authority to execute and deliver this
Agreement and the Operative Agreements to which it is a party, to perform its obligations hereunder
and thereunder and to consummate the transactions contemplated hereby and thereby. The execution
and delivery by Purchaser of this Agreement and the Operative Agreements, the performance by
Purchaser of its obligations hereunder and thereunder and the consummation of the transactions
contemplated hereby and thereby have been duly and validly authorized by all necessary corporate
action on the part of Purchaser. This Agreement has been duly and validly executed by Purchaser,
and this Agreement and each Operative Agreement to which Purchaser is a party are, upon execution
and delivery hereof and thereof by Purchaser, valid and binding obligations of Purchaser,
enforceable against Purchaser in accordance with the terms hereof and thereof (except as the
enforceability hereof and thereof may be limited by any applicable bankruptcy, insolvency or other
laws affecting creditors’ rights generally or by general principles of equity, regardless of
whether such enforceability is considered in equity or at law).



     6.3 No Conflict. Neither the execution and delivery by Purchaser of this Agreement or any of the other
documents contemplated hereby, nor the consummation by Purchaser of the transactions contemplated
hereby or thereby, nor compliance by Purchaser with any of the provisions hereof or thereof, will:
(a) conflict with, result in a breach or violation of or constitute (or with notice or lapse of
time or both constitute) a default under, (i) the Articles of Incorporation or Bylaws of Purchaser,
(ii) any order, judgment, decree, writ or injunction expressly applicable by its terms to
Purchaser (but not including an order, judgment, decree, writ or injunction of general
applicability), (iii) to the Knowledge of Purchaser, any Law or other order, judgment, decree, writ
or injunction of general applicability that is applicable to the Purchaser or (iv) any of the terms, conditions or
provisions of any Contract to which Purchaser is a party or by which Purchaser is bound which
conflict, breach, violation or default would have a Purchaser Material Adverse Effect; or (b)
require Purchaser, or to the Knowledge of Purchaser, Seller, to obtain any authorization,



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consent,
approval or waiver from, or to notify or to make any filing with, any Governmental Authority.




     6.4 Sufficiency of Funds. The Purchaser has available, and will have available at the Closing, sufficient funds to
enable it to consummate the transactions contemplated hereby and by the other Operative Agreements.



     6.5 Brokers. Purchaser has not paid or become obligated to pay any fee or commission to any broker,
finder, investment banker or other intermediary in connection with the transactions contemplated by
this Agreement that is not the sole obligation of Purchaser.



     6.6 Exclusive Warranties. Purchaser acknowledges that, except for the express representations and warranties set
forth in Article 5, Seller does not make any representations or warranties, expressly or
impliedly, with respect to the Assets, which are being sold “AS IS” in all respects with all faults
and without any other warranties of any kind. PURCHASER ACKNOWLEDGES THAT EXCEPT AS SPECIFICALLY
CONTAINED IN ARTICLE 5, SELLER EXPRESSLY DISCLAIMS ALL OTHER EXPRESS, STATUTORY AND IMPLIED
WARRANTIES AND CONDITIONS, INCLUDING THE IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY,
SATISFACTORY QUALITY, NON-INFRINGEMENT, VALIDITY, ENFORCEABILITY OR SUITABILITY OR FITNESS FOR ANY
PARTICULAR PURPOSE OF PURCHASER’S, WHETHER OR NOT SELLER HAS BEEN MADE AWARE OF ANY SUCH PURPOSE.



ARTICLE 7.




CONDITIONS




     7.1 Conditions to Obligations of Purchaser and Seller. All obligations of Purchaser and Seller to effect the Closing hereunder are subject to the
satisfaction at or prior to the Closing of the conditions precedent that follow, any one or more of
which may be waived in writing, in whole or in part, by Seller and Purchaser acting jointly:



          (a) No Injunction or Restraints; Illegality. No provision of any applicable Law shall
have been enacted, entered, promulgated or enforced by any Governmental Authority that
prohibits, restrains, enjoins, or restricts the consummation of the transactions contemplated
hereby in any material respect and no litigation or proceeding shall be pending by any Governmental
Authority seeking to prohibit, restrain, enjoin or restrict the consummation of the transactions
contemplated hereby in any material respect which would reasonably be expected to succeed.




          (b) Governmental Approvals. All material consents, approvals and actions of, filings
with and notice to any Governmental Authority necessary to permit Purchaser and Seller to perform
their obligations under this Agreement and to consummate the transactions contemplated hereby shall
have been duly obtained, made or given, and all terminations or expirations of waiting





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periods
imposed by any Governmental Authority necessary for the consummation of the transactions
contemplated by this Agreement shall have occurred.




          (c) Coloplast Closing. The “Closing” as defined in the Coloplast Purchase Agreement
shall have occurred or shall occur simultaneously with the Closing.




          (d) Purchaser-Coloplast Agreements. Purchaser and Coloplast shall have entered into:
(i) that certain Agreement by and among Purchaser, Coloplast, Mentor Medical Limited, Coloplast
Limited and Rochester Medical Limited dated as of the date hereof pursuant to which, among other
things, Purchaser will purchase from Coloplast, and Coloplast will sell to Purchaser, certain
assets and liabilities pertaining to the sale of SMECs in the United Kingdom (the “MML Purchase
Agreement”); (ii) that certain Private Label Distribution Agreement dated as of the date hereof;
and (iii) that certain Patent Cross-License Agreement dated as of the date hereof.




     7.2 Conditions to Obligations of Purchaser. All obligations of Purchaser to effect the Closing hereunder are subject to the
satisfaction at or prior to the Closing of the conditions precedent that follow, any one or more of
which may be waived in writing, in whole or in part, exclusively by Purchaser in its sole
discretion:



          (a) Closing Deliverables. Seller shall have made all the deliveries required to be
made by Seller pursuant to Section 3.2.




          (b) Representations and Warranties. The representations and warranties set forth in
Article 5 shall be true and correct in all material respects on date hereof and as of the
Closing Date as though such representations and warranties were made on and as of the Closing Date.




          (c) Performance. Seller and/or its Subsidiaries shall have performed and complied in
all materials respects with each of the agreements, covenants and conditions contained in this
Agreement that are required to be performed or complied with by Seller and/or its Subsidiaries at
or prior to the Closing.




          (d) Officer’s Certificate. Purchaser shall have received at the Closing, with respect
to Seller, a certificate, dated as of the Closing Date, of an appropriate officer of Seller
certifying that the conditions set forth in Section 7.2(b) and Section 7.2(c) have
been satisfied.




     7.3 Conditions to Seller’s Obligations. All obligations of Seller to effect the Closing hereunder are subject to the satisfaction
at or prior to the Closing of the conditions precedent that follow, any one or more of which may be
waived in writing, in whole or in part, exclusively by Seller in its sole discretion:



          (a) Closing Deliverables. Purchaser shall have made all the deliveries required to be
made by Purchaser pursuant to Section 3.3.




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          (b) Representations and Warranties. The representations and warranties set forth in
Article 6 shall be true and correct in all material respects on date hereof and as of the
Closing as though such representations and warranties were made on and as of the Closing.




          (c) Performance. Purchaser and/or its Subsidiaries shall have performed and complied
in all materials respects with each of the agreements, covenants and conditions contained in this
Agreement that are required to be performed or complied with by Purchaser and/or its Subsidiaries
at or prior to the Closing.




          (d) Officer’s Certificate. Seller shall have received at the Closing, with respect to
Purchaser, a certificate, dated as of the Closing Date, of an appropriate officer of Purchaser
certifying that the conditions set forth in Section 7.3(b) and Section 7.3(c) have
been satisfied.




ARTICLE 8.




EMPLOYEE MATTERS




     8.1 Employee Offers. On a date or dates to be mutually agreed upon by Purchaser and Seller, which shall be no
later than the tenth (10th) Business Day after the date Seller delivers Schedule 8.1 to
Purchaser, Purchaser will extend an offer of employment to each employee of Seller listed on
Schedule 8.1 (each, an “Offered Employee”), which schedule will provide with respect to
each Offered Employee his or her current position/title, base salary, benefits and time of
service.. Each such offer shall provide for employment by Purchaser effective only as of and after
the Closing Date and at a job responsibility level and title that is substantially similar to or
higher than such Offered Employee’s employment with Seller for the year prior to the date of the
offer. Effective only as of the Closing and after the Closing Date, Purchaser will hire each
Offered Employee who accepts the offer of employment extended to such individual by Purchaser
(each, a “Transferred Employee”). Notwithstanding the foregoing, any Offered Employee who is, at
the time an offer of employment is required under this Section 8.1 to be made, on a
Seller’s (or a Subsidiary’s thereof) approved leave of absence from work, shall not become an
employee of Purchaser (and shall not be considered a Transferred Employee) unless and until such
employee becomes eligible to return to active employment within one year after the Closing Date in
accordance with Seller’s human resource policies and applicable Laws and actually commences
employment with Purchaser.



     8.2 Service Credit; Waivers; Credits. Provided Seller provides Purchaser at the Closing with a certificate of credible coverage
under HIPAA for all Transferred Employees, Purchaser shall provide each Transferred Employee with
credit for purposes of eligibility, vesting and benefit accrual under the Purchaser Benefits Plans
for Years of Service on and prior to the Closing Date with Seller and its Subsidiaries credited
under the comparable Seller Benefits Plans, including recognition of such service for purposes of
determining Transferred Employees’ amount of paid time off or vacation and severance benefits;
provided, however, that, except as provided in Section 8.6 or Section 8.7, in no
event shall Purchaser be required to provide any service credit to any Transferred Employee to the
extent the provision of such credit would result in any duplication of benefits or



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would cause one
of the Purchaser Benefit Plans to fail to satisfy the nondiscrimination requirements under federal
law (including the Code). Purchaser shall cause any pre-existing conditions or limitations and
eligibility waiting periods (to the extent that such waiting periods would be inapplicable under
Seller Benefits Plans) under any Purchaser Benefits Plans to be waived with respect to Transferred
Employees and their eligible dependents, provided that if required by Purchaser such employees
present a certificate of creditable coverage. Purchaser shall provide the Transferred Employees
and their eligible dependents with credit for any deductibles and annual out-of-pocket limits for
medical, dental and vision expenses paid during the applicable period under any Purchaser Benefits
Plans in satisfying any deductibles and annual out-of-pocket limits for medical, dental and vision
expenses for the corresponding period under the Purchaser Benefits Plans.



     8.3 401(k) Plan. To the extent permitted under Section 401(k) of the Code and regulations issued thereunder,
Transferred Employees who participate in Seller’s 401(k) plan shall be eligible to receive, at
their election, a distribution of their account balance from Seller’s 401(k) plan after the Closing
Date. Purchaser shall use reasonable efforts to cause its 401(k) plan to accept eligible rollovers
of such distributions, provided that Purchaser determines that receipt of any such rollover will
not result in a disqualification of Purchaser’s 401(k) plan. Rollovers relating to any Transferred
Employee may include participant loans, provided that it is permitted by Purchaser’s 401(k) plan
(it being expressly understood that Purchaser is not obligated to amend Purchaser’s 401(k) plan to
accept rollovers).



     8.4 FSA. Promptly after the Closing Date, Seller shall transfer and Purchaser shall accept the
flexible spending account elections, liabilities and accounts (maintained pursuant to Code Sections
105 and 129) of the Transferred Employees under Seller’s Section 125 plan flexible spending
arrangement. Promptly after the Closing Date, Seller shall cause to be transferred to Purchaser
the aggregate net cash amount (determined immediately prior to the Closing) for contributions paid
(but not yet reimbursed) by or on behalf of the Transferred Employees under Seller’s Section 125 plan
flexible spending arrangement.



     8.5 Vacation. Seller shall allow Transferred Employees to transfer any accrued but unused vacation time
(which vacation time was accrued in accordance with Seller’s policies consistent with past
practice) to Purchaser. Only Transferred Employees who submit a vacation consent form, prior to
the Closing Date, are eligible to transfer vacation time to Purchaser. To the extent permitted by
law, Purchaser shall assume such accrued but unused vacation time and allow each Transferred
Employee to use such accrued vacation time after the Closing Date. The transfer of vacation time
shall not affect each Transferred Employee’s accrual of vacation under Purchaser’s vacation
policies. Seller shall be liable for and pay in cash an amount equal to any accrued but unused
vacation time to any (i) Transferred Employee who has not executed a vacation consent form or (ii)
any Offered Employee who declines to accept Purchaser’s offer of employment made in accordance with
Section 8.1, and whose employment terminates prior to the Closing.



     8.6 Compensation and Benefits. Purchaser will compensate each Transferred Employee (so long as any such Transferred
Employee remains employed by Purchaser or any Subsidiary



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thereof, and subject to Purchaser’s
termination rights and resulting severance obligations under Section 8.7) for at least one
year after the Closing as follows:



          (a) Each Transferred Employee shall receive a rate of total cash compensation, including base
salary rate and target bonus opportunity, which shall be at least substantially similar to the
total cash compensation opportunity provided to the Transferred Employee by Seller immediately
prior to the date of this Agreement;




          (b) Each Transferred Employee shall participate in Purchaser’s health and welfare benefit
plans, which shall provide for benefits that are at least substantially similar to the health and
welfare benefits provided under those Seller Benefits Plans in effect immediately prior to the
Closing, or if a Transferred Employee is not eligible to participate in Purchaser’s health plans
and the Transferred Employee elects COBRA under Seller’s health plan, then Purchaser shall pay the
Transferred Employee’s COBRA premiums for up to 12 months; and




          (c) Each Transferred Employee shall participate in Purchaser’s other benefit plans provided to
employees of Purchaser of a similar level of job responsibility as the Transferred Employee.




     Following the 12-month period immediately after the Closing Date and thereafter, Transferred
Employees shall participate in the Purchaser’s severance program provided to similarly situated
Purchaser employees and be provided credit for years of service under such severance program for
their service with Seller and Purchaser.



     8.7 Severance. Purchaser shall provide any Transferred Employee whose employment is terminated by
Purchaser (other than employees terminated for Cause) or who resigns as a result of a Constructive
Termination, in each case within the 12-month period immediately following the Closing Date, with
severance payments and benefits, such Transferred Employee shall be provided the following
exclusive severance benefits: (i) 2 weeks pay for each full year of service at Seller and
Purchaser, subject to a minimum of 8 weeks pay, (ii) 30 days notice of termination, or if less than
30 days notice is provided, payment for each scheduled working day during the period from the time
of termination until the 30th day after notice was given, and (iii) COBRA benefits as
required by Law.



     8.8 Employment-Related Assumed Liabilities. Purchaser, to the exclusion of Seller, assumes, accepts and shall be fully responsible for
any and all Losses, Liabilities or claims to the extent arising out of or relating to: (a)
Purchaser’s alleged failure to make, or failure to make, offers of employment to Offered Employees
in keeping with its obligations under Section 8.1; (b) the employer-employee relationship,
or Purchaser’s employment or termination of employment, of any Transferred Employee, in each case,
on or after the Closing Date; (c) any Purchaser Benefits Plans; and (d) workers’ compensation
claims of any Transferred Employee arising out of conditions with a date of injury (or, in the case
of a claim relating to occupational illness or disease, the last significant exposure) that begins
prior to but continues after the Closing Date (collectively referred to herein as “Purchaser
Employment Liabilities”). Notwithstanding the preceding sentence, Purchaser shall retain
responsibility for and continue to pay all medical, life insurance, disability and other welfare



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plan expenses and benefits for each Transferred Employee with respect to claims incurred by such
Transferred Employees or their covered dependents on or after the Closing Date. Purchaser shall
reimburse, indemnify and hold harmless Seller and each of its Subsidiaries and their respective
Employee Benefits Plans from and against any and all Losses incurred by any of them in connection
with any Purchaser Employment Liabilities.



     8.9 Employment-Related Excluded Liabilities. Seller, to the exclusion of Purchaser, assumes, accepts and shall be fully responsible for
any and all Losses, Liabilities or claims to the extent arising out of or relating to: (a) the
employer-employee relationship, or Seller’s employment of, or the termination of employment of any
Transferred Employee, in each case, on or before the Closing Date; (b) any Seller Benefits Plans;
and (c) workers compensation claims of Transferred Employees arising out of conditions with a date
of injury, (or in the case of a claim relating to occupational illness or disease, the last
significant exposure) that begins and ends on or before the Closing Date (collectively referred to
herein as “Seller Employment Liabilities”). Notwithstanding the preceding sentence, Seller shall
retain responsibility for and continue to pay all medical, life insurance, disability and other
welfare plan expenses and benefits for each Transferred Employee with respect to claims incurred by
such Transferred Employees or their covered dependents prior to the Closing Date. Seller shall
reimburse, indemnify and hold harmless Purchaser and each of its
Subsidiaries and their respective Employee Benefits Plans from and against any and all Losses
whenever asserted or incurred by any of them in connection with any Seller Employment Liabilities.



     8.10 Timing of Claims Incurred. For purposes of Section 8.8 and Section 8.9, a claim is deemed incurred
when all facts and circumstances giving rise to the claim have occurred and specifically: in the
case of medical or dental benefits, when the services that are the subject of the claim are
performed; in the case of life insurance, when the death occurs; in the case of long term
disability benefits, when the disability occurs; in the case of workers compensation benefits, as
described in Section 8.8 and Section 8.9 above; and otherwise, at the time the
Transferred Employee or covered dependent becomes entitled to payment of a benefit (assuming that
all procedural requirements are satisfied and claims applications properly and timely completed and
submitted).



     8.11 No Modification of At-Will Employment; Other Positions. Nothing contained herein is intended as a guarantee of employment for any of the
Transferred Employees for any specified period of time or to limit in any way (i) the Transferred
Employees’ status as “at-will” employees or (ii) Purchaser’s right to terminate the employment of
any Transferred Employee (following the offer of employment required pursuant to Section
8.1 and subject to the severance provision in Section 8.7). Nothing contained herein
is intended to limit Purchaser and any Transferred Employee from mutually agreeing at any time
following the Closing to a new position at Purchaser, other than the position offered by Purchaser
to the Transferred Employee pursuant to this Article 8, upon such terms and conditions as
the Transferred Employee and Purchaser may mutually agree, including at a level of compensation,
benefits or responsibility different from the initially offered employment pursuant to this
Article 8.



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ARTICLE 9.




OTHER AGREEMENTS




     9.1 Conduct of Business. From the date hereof until the Closing Date, Seller shall use commercially reasonable
efforts to maintain the Assets in the condition of such Assets as of the date hereof, normal wear
and tear and conversion of Raw Materials and WIP into Finished Goods in the ordinary course
excepted, and shall not transfer any of the Assets except for sales of finished goods in the
ordinary course of business.



     9.2 Stay of Arbitration. The Parties agree the Arbitration shall be stayed until the earlier to occur of (i) the
Closing and (ii) the termination of this Agreement in accordance with its terms. The Parties shall
take any action necessary to notify the AAA of such stay and will not make any filing with the AAA
during the stay other than such notification.



     9.3 Purchase Requirements Under the Supply Agreement. The Parties hereby acknowledge and agree that as of April 1, 2006 and thereafter, the
Annual Minimum Purchases requirements and provisions set forth in Section 1.2 of the MEC Agreement
shall not be applicable to or enforceable against Seller with respect to all periods beginning on
or after April 1, 2006; provided, however, that if this Agreement terminates prior to Closing,
Seller shall be obligated to satisfy its Annual Minimum Purchases requirements set forth in Section
1.2 of the MEC Agreement for the period on and after April 1, 2006 which would have otherwise been
required without reference to the foregoing for the entire period beginning on April 1, 2006 and
ending upon the expiration or termination of the MEC Agreement, but without penalty to Seller for
failure to timely make any required minimum purchases during the period from April 1, 2006 until
the termination of this Agreement. Except as provided in the preceding sentence, the remaining
provisions of the MEC Agreement shall remain in effect until the delivery of the Termination at
Closing.



     9.4 Public Announcement. The Parties shall consult with each other before issuing any press release or making any
other public announcement with respect to this Agreement or the transactions contemplated hereby
and, except as required by any applicable Laws, regulatory requirement or the rules of any national
stock exchange or over the counter trading market upon which their respective securities are listed
for trading, neither of them shall issue any such press release or make any such public
announcement without the prior written consent of the other.



     9.5 Confidentiality



          (a) Confidentiality Agreement. The Confidentiality Agreement shall continue in full
force and effect and survive the execution of this Agreement, the Closing, the consummation of the
transactions contemplated hereby and by the Operative Agreements and/or the termination of this
Agreement for seven (7) years. The Parties hereby agree that the term “Evaluation Material,” as
used in the Confidentiality Agreement shall be deemed to include (i) all exhibits, schedules,
certificates and other documents executed or delivered in connection with this Agreement, the other




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Operative Agreements and the consummation of the transactions contemplated hereby and thereby, (ii)
all proprietary and confidential information concerning Seller and its Subsidiaries, which includes
all proprietary and confidential information of Seller and its Subsidiaries with respect to SMECs,
and (iii) all documents and materials contained in Seller’s data room, or otherwise furnished or
made available (directly or indirectly) to Purchaser or its Subsidiaries; provided, however, that
after the Closing, with respect to Purchaser, the foregoing shall not apply to such information
that (1) is embodied exclusively in the Assets and (2) is not also related to any business or
assets of Seller (or a Subsidiary thereof) not transferred to Purchaser under this Agreement. In
addition, notwithstanding any other provision of the Confidentiality Agreement, and this Agreement,
Purchaser and its Subsidiaries and Seller and its Subsidiaries may include this Agreement
(excluding schedules thereto) and the other Operative Agreements in or as an exhibit to any report,
form or registration statement filed with or furnished to the SEC to the extent required under the
Securities Act of 1933 or the Securities Exchange Act of 1934 and the rules and regulations of the
Securities and Exchange Commission promulgated thereunder. Seller agrees to treat and hold
confidential any information concerning the Assets that is not (other than by virtue of Seller’s
violation of this Section 9.5(a)) generally available to the public; provided, however,
that nothing in this Section 9.5(a) shall prohibit Seller or any of its Subsidiaries from
complying with applicable Laws or the rules and regulations of any national or foreign stock
exchange or over the counter trading market upon which their respective securities are listed for
trading.




          (b) Release of Certain Confidentiality Obligations. Effective as of the Closing,
Seller shall, or shall cause its applicable Subsidiary to, release the Transferred Employees from
any confidentiality obligations they may have to Seller (or a Subsidiary thereof) with respect to
trade secret, confidential and other information that relates to the Assets, but only to the extent
such information does not also relate to any business or assets of Seller (or a Subsidiary thereof)
not transferred to Purchaser (or a Subsidiary thereof) under this Agreement.




     9.6 Return of Non-Transferred Assets. If at any time within 12 months following the Closing Date, Purchaser becomes aware of any
assets that were delivered to Purchaser in connection with this Agreement that are not Assets,
Purchaser shall promptly notify Seller of such assets in its possession, and shall return (or at
Seller’s discretion, destroy) such assets, including all copies thereof. In any case, Purchaser
agrees to keep and treat all such assets as Evaluation Material in accordance with the terms of the
Confidentiality Agreement.



     9.7 Mail Handling. Following the Closing Date, to the extent that Purchaser and/or any of its Subsidiaries
receives any mail or packages addressed to Seller or any of its Subsidiaries and delivered to
Purchaser and/or any of its Subsidiaries, Purchaser shall promptly deliver such mail or packages to
Seller. Following the Closing, to the extent Seller or any of its Subsidiaries receives any mail
or packages addressed and delivered to Seller but relating to the Assets, Seller shall, or shall
cause such Subsidiaries to, promptly deliver such mail or packages to Purchaser.



     9.8 Commercially Reasonable Efforts. Subject to the terms and conditions hereof, each of the Parties to this Agreement shall use
commercially reasonable efforts to effect the transactions



-22-









 




contemplated hereby and to fulfill and
cause to be fulfilled the conditions precedent to this Agreement, set forth in Article 7.




     9.9 Raw Materials, WIP and Finished Goods.



          (a) Following the execution hereof, Seller shall allow Purchaser and Coloplast reasonable
access to inspect the Raw Materials, WIP and Finished Goods. The inspection shall occur at a time
mutually agreed by the Parties, and in any event shall occur not later than the third Business Day
prior to the Closing Date. If prior to the Closing, Coloplast concludes and notifies Seller or
Purchaser that:




               (i) any of the Raw Materials or WIP proposed by Seller to be transferred hereunder are not
practicably capable of becoming SMECs that will be useable and acceptable by Coloplast, or



               (ii) any of the Finished Goods proposed by Seller to be transferred hereunder are not useable
and acceptable to Coloplast, then Purchaser shall not be obligated to purchase such Raw Materials, WIP or Finished Goods, as the
case may be, and the Cash Consideration will be adjusted accordingly.



          (b) If on or before the 30th day after the Closing Date, Coloplast concludes and
notifies Purchaser or Seller in writing that




               (i) any of the Raw Materials transferred hereunder are not practicably capable of becoming
SMECs that will be useable and acceptable by Coloplast and such Raw Materials are returned to
Seller in substantially the same condition as delivered to Purchaser by Seller pursuant to the
terms hereof, or



               (ii) any of the Finished Goods transferred hereunder are not useable and acceptable to
Coloplast and such Finished Goods are returned to Seller in substantially the same condition as
delivered to Purchaser by Seller pursuant to the terms hereof,


then following the return thereof Seller will refund to Purchaser an amount of Cash Consideration
equal to the amount paid by Purchaser for such returned Raw Materials or Finished Goods, as the
case may be.




          (c) In the event Coloplast provides a written notice to either Party pursuant to subsection
(a) or (b) above, such Party shall promptly notify the other of such notice from Coloplast.




     9.10 Access to Records. Following the Closing, each party will provide the other party and such other party’s
independent registered public accountants reasonable access during normal business hours to (and
use commercially reasonable efforts to cause the party’s independent registered public accountants
to provide the other party and the other party’s registered independent



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public accountants
reasonable access to) such books, records, workpapers and data as may be reasonably requested by
such other party to allow such other party and its independent registered public accountants to conduct
an audit or review of the Assets for such periods as such other party may require for their
financial reporting purposes required in connection with any report required to be filed with the
Securities and Exchange Commission under the Securities Exchange Act of 1934. The parties mutually
agree to reasonably assist each other and their respective independent registered public
accountants in conducting any such audit or review; provided, that each party shall be responsible
for the cost of its own audit and shall pay to the other party the reasonable out of pocket costs
actually incurred by such party to provide the requested assistance. The parties mutually agree to
use their commercially reasonable efforts to cause their independent registered public accountants
to provide each other with any consents of their independent registered public accountants
necessary for such party to satisfy the financial reporting requirements under applicable
accounting rules of the Securities and Exchange Commission.



     9.11 Payment of Outstanding Invoices The Parties agree that nothing herein shall affect the obligation of Seller (or the
Subsidiaries of Seller, if applicable) to pay all outstanding invoices from Purchaser related to
Purchaser SMECs that have been shipped to Seller or its Subsidiaries prior to the date hereof.



ARTICLE 10.




TERMINATION




     10.1 Term. Unless terminated pursuant to Section 10.2 or as otherwise expressly set forth
herein, this Agreement shall continue in full force and effect until full and final performance of
all of the terms herein.



     10.2 Termination. Anything contained in this Agreement to the contrary notwithstanding, this Agreement may be
terminated at any time prior to the Closing Date:



          (a) by the mutual signed written consent of Purchaser and Seller;




          (b) by either Party if:




               (i) a Law is in effect having the effect of permanently restraining, enjoining or otherwise
prohibiting, in a material respect, the consummation of the transactions contemplated by this
Agreement, which Law is final and nonappealable; or



               (ii) the Closing shall not have occurred on or before the End Date; provided, however, that
the failure of the Closing to occur is not due to a material breach hereof by the Party seeking
termination;



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          (c) by Purchaser: in the event of a Warranty Breach or Covenant Breach by Seller such that the
conditions set forth in Section 7.2(b) or Section 7.2(c), as applicable, would not
be satisfied; provided, however, that Seller is given notice to cure such breach and does not cure
such breach within 30 days after receipt of notice from Purchaser requesting such breach be cured;
or




          (d) by Seller: in the event of a Warranty Breach or Covenant Breach by Purchaser such that the
conditions set forth in Section 7.3(b) or Section 7.3(c), as applicable, would not
be satisfied; provided, however, that Purchaser is given notice to cure such breach and does not
cure such breach within 30 days after receipt of notice from Seller requesting such breach be
cured.




     10.3 Notice of Termination. Any Party desiring to terminate this Agreement pursuant to Section 10.2 shall give
written notice of such termination to the other Party.



     10.4 Effect of Termination. In the event that this Agreement shall be validly terminated pursuant to Section
10.2, this Agreement shall forthwith terminate and be of no further force and effect; provided,
however, that (a) any agreements contained herein that expressly provide for survival after
termination of this Agreement and Section 9.5(a) and Article 11 (other than
Section 11.1) shall survive the termination hereof unless otherwise agreed by the Parties
in writing, and (b) nothing herein shall relieve any Party from Liability for any breach of this
Agreement or fraud arising prior to such valid termination. Termination of this Agreement will not
be an election of remedies and shall not limit the Liability of any Party for breach of this
Agreement.



ARTICLE 11.




MISCELLANEOUS




     11.1 Survival of Representations. Other than the exclusive warranties contained in Section 5.7 and Section
6.6, which shall survive indefinitely, the representations and warranties of the Parties
contained in this Agreement, or any instrument delivered pursuant to this Agreement, shall
terminate on the date that is twelve (12) months after the Closing Date.



     11.2 Notices.



          (a) Any notice or other communication required or permitted to be given hereunder shall be in
writing and shall be delivered in person, transmitted by facsimile (with acknowledgment of complete
transmission together with notice by telephone (either to a person or by voice mail message) to the
confirmatory telephone numbers below, provided that such confirmatory telephone numbers shall allow
for voice mail messages to be left 24 hours per day, seven days per week) or sent by registered or
certified mail, or recognized overnight courier, charges prepaid, addressed as follows




	 	 	 
	     If to Seller:

	 	Mentor Corporation






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	 	201 Mentor Drive
	 

	 	Santa Barbara, California 94311
	 

	 	Attention: General Counsel
	 

	 	Facsimile No.: (805) 879-6008
	 

	 	Phone: (805) 879-6000 (for confirmation purposes only)
	 
	 	 
	     with a copy to:

	 	Wilson Sonsini Goodrich & Rosati
	 

	 	Professional Corporation
	 

	 	650 Page Mill Road
	 

	 	Palo Alto, California 94304
	 

	 	Attention: Bradley L. Finkelstein, Esq.
	 

	 	Facsimile No.: 650-493-6811
	 

	 	Phone: (650) 493-9300 (for confirmation purposes only)
	 
	 	 
	     If to Purchaser:

	 	Rochester Medical Corporation
	 

	 	One Rochester Medical Drive
	 

	 	Stewartville, Minnesota 55976
	 

	 	Attention:Anthony J. Conway, President
	 

	 	Facsimile No.: (507) 533-9725
	 

	 	Phone: (507) 533-9600 (for confirmation purposes only)
	 
	 	 
	     With a copy to:

	 	Dorsey & Whitney LLP
	 

	 	50 South Sixth Street
	 

	 	Minneapolis, Minnesota 55402
	 

	 	Attention: Robert A. Kuhns, Esq.
	 

	 	Facsimile No.: (612) 340-8738
	 

	 	Phone: (612) 340-2600 (for confirmation purposes only)






          (b) Any such notice or other communication shall be deemed to have been given and received on
the day on which it was personally delivered or transmitted by facsimile, receipt of complete
transmission confirmed (or, if such day is not a Business Day, on the next following
Business Day) or, if mailed, by registered or certified mail, on the third Business Day
following the date of mailing or, if couriered overnight, on the next following Business Day;
provided, however, that if at the time of mailing or within three Business Days thereafter, there
is or occurs a labor dispute or other event that might reasonably be expected to disrupt the
delivery of documents by mail, any notice or other communication hereunder shall be delivered or
transmitted by means of overnight courier as set forth above.




          (c) Either Party may change its address for service and/or notice at any time by giving notice
to the other Party in accordance with this Section 11.2.




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     11.3 Currency. All dollar amounts referred to in this Agreement are expressed in United States dollars.



     11.4 Sections and Headings. Unless otherwise specified herein, any reference in this Agreement to an Article, Section,
paragraph, Schedule or Exhibit refers to the specified Article, Section or paragraph of, or
Schedule or Exhibit to, this Agreement. In this Agreement, the terms “this Agreement”, “hereof”,
“herein”, “hereunder” and similar expressions refer to this Agreement and not to any particular
part, Article, Section, paragraph or other provision hereof. The headings contained in this
Agreement are intended solely for convenience and shall not affect the rights of the Parties to
this Agreement.



     11.5 Rules of Construction. Unless the context otherwise requires, in this Agreement:



          (a) words importing the singular number only shall include the plural and vice versa and words
importing the masculine gender shall include the feminine and neuter genders and vice versa;




          (b) the word “or” may be conjunctive or disjunctive, as the context may require;




          (c) the words “include”, “includes”, “including” and “particularly” means “include”,
“includes” or “including”, in each case, “without limitation”;




          (d) reference to any agreement or other instrument referred to herein shall mean such
agreement or other instrument as amended, modified, replaced or supplemented from time to time to
the extent permitted by applicable provisions thereof and by this Agreement;




          (e) reference to any statute shall be deemed to be a reference to such statute as amended, re
enacted or replaced from time to time;




          (f) if there is any conflict or inconsistency between the provisions contained in the body of
this Agreement and those of any Schedule hereto or the Bill of Sale, the provisions contained in
the body of this Agreement shall prevail;




          (g) time periods within which a payment is to be made or any other action is to be taken
hereunder shall be calculated excluding the day on which the period commences and including the day
on which the period ends; and




          (h) whenever any payment to be made or action to be taken hereunder is required to be made or
taken on a day other than a Business Day, such payment shall be made or action taken on the next
following Business Day.




     11.6 Construction. The Parties acknowledge that their respective legal counsel have reviewed and participated
in settling the terms of this Agreement and that any rule of construction to



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the effect that any
ambiguity is to be resolved against the drafting party, shall not be applicable in the
interpretation of this Agreement.




     11.7 Entire Agreement. This Agreement, together with the Operative Agreements and the schedules and exhibits
hereto and thereto, constitutes the entire agreement between the Parties with respect to the
subject matter hereof and supersedes all prior agreements and understandings, written and oral,
with respect to the subject matter hereof (including the MOU but excluding the Confidentiality
Agreement). There are no conditions, covenants, agreements, representations, warranties or other
provisions, express or implied, collateral, statutory or otherwise, relating to the subject matter
hereof except as herein provided or as provided in the other documents executed and delivered by
the Parties in connection herewith.



     11.8 Governing Law. This Agreement shall be governed by, and construed in accordance with, the Laws of the
State of Minnesota, without regard to any conflicts of law principles.



     11.9 Jurisdiction and Venue. Except with respect to the matters subject to arbitration proceedings set forth in
Section 11.12 hereof, the Parties hereto irrevocably submit to the exclusive jurisdiction
of any state or federal court located in Minneapolis, Minnesota for the purposes of any suit,
action or other proceeding arising out of this Agreement or any transaction contemplated hereby.
Each of the Parties hereto, further agrees that service of any process, summons, notice or document
by U.S. registered mail to such Party’s respective address set forth in Section 11.2 shall
be effective service of process for any action, suit or proceeding in Minneapolis, Minnesota with
respect to any matters
to which it has submitted to jurisdiction as set forth above in the immediately preceding
sentence. Each of the Parties hereto irrevocably and unconditionally waives any objection to the
laying of venue of any action, suit or proceeding set forth above arising out of this Agreement or
the transactions contemplated hereby, and hereby further irrevocably and unconditionally waives and
agrees not to plead or claim in any such court that any such action, suit or proceeding brought in
any such court has been brought in an inconvenient forum.



     11.10 Waiver of Jury Trial. EACH PARTY HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS, ANY RIGHT IT
MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. Each Party
hereby (a) certifies that no representative, agent or counsel of the other Party has represented,
expressly or otherwise, that the other Party would not, in the event of litigation, seek to enforce
the foregoing waiver, and (b) acknowledges that it and the other Party have been induced to enter
into the Agreement by, among other things, the mutual waivers and certifications contained in this
Section 11.10.



     11.11 Attorney’s Fees. Except with respect to the matters subject to arbitration proceedings set forth in
Section 11.12 hereof, in the event that either Party institutes any litigation proceeding
under Section 11.9 to interpret or to enforce this Agreement or any of the Operative
Agreements or the rights of the Parties hereunder, the non-prevailing Party shall reimburse the
prevailing Party in



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any such proceeding for the prevailing Party’s attorneys’ fees and all other
reasonable costs and expenses incurred in such action or suit.



     11.12 Arbitration. Any controversy, dispute or claim between the Parties arising out of a breach or alleged
breach of the covenants and licenses granted pursuant to Article 4 shall be submitted to
mandatory binding arbitration. Such arbitration proceedings shall be held in Minneapolis,
Minnesota, in accordance with the rules then obtaining of the American Arbitration Association,
except that: (i) the arbitrators shall furnish the parties with a written decision setting forth
findings of fact, conclusions of law and an order; (ii) the arbitration panel shall be composed of
persons who are knowledgeable in matters of technology licensing; and (iii) a stenographic record
shall be made of the arbitration proceedings. Each arbitrator shall be neutral, impartial and
independent of the parties and others having any known interest in the outcome, shall abide by the
Canons of Ethics of the American Bar Association for neutral, independent arbitrators, and shall
have no ex parte communications about the case. In addition to any monetary award that may be
given, the arbitrators may order or direct either party to do any act required of it by this
Agreement or to refrain from the doing of any act or practice that is contrary to this Agreement.
This Agreement to arbitrate shall be specifically enforceable. Each Party shall bear its own costs
and expense in any such proceedings, but the
arbitrators may, in their discretion and consistent with this Agreement without regard to
Section 11.11, award costs and attorneys’ fees to either or both of the Parties. Any award
rendered by the arbitrators shall be conclusive, final and binding upon the Parties hereto, and
nonappealable to any court or forum. Judgment upon such award may be entered in any court of
competent jurisdiction.



     11.13 Expenses. Except as otherwise provided herein, each Party shall be responsible for all costs and
expenses incurred by it and its Subsidiaries, respectively, in connection with the negotiation of
this Agreement and the completion of the transactions contemplated hereby, whether or not the
transactions hereby shall have been consummated.



     11.14 Exclusion of Certain Damages. EXCEPT IN THE CASE OF FRAUD, NEITHER PURCHASER (INCLUDING PURCHASER’S SUBSIDIARIES) NOR
SELLER (INCLUDING SELLER’S SUBSIDIARIES) SHALL BE RESPONSIBLE FOR ANY INCIDENTIAL, SPECIAL,
PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING LOSS OF PROFITS OR GOODWILL, IN CONNECTION
WITH ANY ASPECT OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. IN NO EVENT SHALL
SELLER’S OR PURCHASER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE
AMOUNT OF THE CASH CONSIDERATION, IT BEING EXPRESSLY UNDERSTOOD THAT LIABILITY FOR CLAIMS FOR
INFRINGEMENT OF THE IPR THAT IS THE SUBJECT OF THE LICENSES GRANTED PURSUANT TO ARTICLE 4
HEREOF SHALL NOT BE SO LIMITED TO THE CASH CONSIDERATION.



     11.15 Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be
invalid, illegal or unenforceable in any respect, such determination shall not impair or affect the
validity, legality or enforceability of the remaining provisions hereof, and



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each provision is
hereby declared to be separate, severable and distinct. To the extent that any such provision is
found to be invalid, illegal or unenforceable, the Parties shall act in good faith to substitute
for such provision, to the extent possible and as necessary, a new provision with content and
purpose as close as possible to the provision so determined to be invalid, illegal or
unenforceable.



     11.16 Successors and Assigns; No Third Party Beneficiaries. This Agreement shall inure to the benefit of and shall be binding on and enforceable by the
Parties and their respective successors and permitted assigns. Neither Party may assign any of its
rights or obligations hereunder, by operation of law or otherwise, without the prior written
consent of the other Party; provided, that either Party may assign any of its rights or obligations
under this Agreement pursuant to a Change of Control of such Party, provided that the assignee
agrees to be bound by the terms and provisions of this Agreement; provided further that the
covenants, licenses,
rights and obligations set forth in Article 4 hereof shall be assignable only as and
to the extent specifically provided in Section 4.6. Except with respect to the covenants,
licenses, rights and obligations set forth in Article 4 hereof which shall be assignable only as
and to the extent specifically provided in Section 4.6, each Party and its Subsidiaries
shall have the right without consent of the other Party to assign their rights under this Agreement
as collateral to their respective lenders after reasonable prior notice to the other Party. Any
purported assignment in violation of this Section 11.16 shall be void and no assignment by
Purchaser or Seller will relieve Purchaser or Seller from any of their respective obligations
hereunder. Nothing herein expressed or implied is intended or should be construed to confer upon
or give to any Person other than the Parties hereto and their respective successors and permitted
assigns any rights or remedies under or by reason of this Agreement; provided that Coloplast shall
be deemed an express third party beneficiary of Section 4.2(b) hereof with rights of
enforcement. Except with respect to Coloplast’s rights pursuant to Section 4.2(b) hereof
and with respect to the Parties’ respective successors and permitted assigns, third party
enforcement of this Agreement is barred.



     11.17 Amendments and Waiver. No amendment, modification or waiver of, or supplement to, any provision of this Agreement
shall be binding on any Party unless consented to in writing by such Party. No waiver of any
provision of this Agreement shall constitute a waiver of any other provision, and no waiver shall
constitute a continuing waiver unless otherwise provided.



     11.18 Counterparts. This Agreement may be executed in counterparts, each of which shall constitute an original
and all and all such counterparts together shall be deemed an original of this Agreement.



[The remainder of this page intentionally left blank.]




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     IN WITNESS WHEREOF, each of Purchaser and Seller has caused this Agreement to be executed by
its duly authorized representative as of the date and year first written above.



	 	 	 	 	 	 	 	 	 
	MENTOR CORPORATION	 	 	 	ROCHESTER MEDICAL CORPORATION
	 
	 	 	 	 	 	 	 	 
	By:

	 	/s/ Joshua H. Levine
	 	 	 	By:
	 	/s/ Anthony J. Conway
	 

	 	 
	 	 	 	 	 	 
	Print name: Joshua H. Levine	 	 	 	Print name: Anthony J. Conway
	Title: President & CEO	 	 	 	Title: CEO






Signature Page to Asset Purchase Agreement