AND WARRANTIES OF SELLERS HEREUNDER OR RELIEVE SELLERS OF
ANY OBLIGATION HEREUNDER.
BUYERS AND SELLERS WILL USE COMMERCIALLY REASONABLE
EFFORTS AFTER THE DATE HEREOF AND PRIOR TO CLOSING TO DEVELOP AN ARRANGEMENT
THAT WILL FACILITATE THE MARKETING AND SALE OF PRODUCTS BY BUYERS OR THEIR
AFFILIATES IN EUROPE AS OF CLOSING.
33
4.4
CONSENTS; THIRD PARTY ARRANGEMENTS.
(A)
SELLERS SHALL USE COMMERCIALLY REASONABLE
EFFORTS TO OBTAIN, PRIOR TO THE CLOSING, ALL CONSENTS NECESSARY FOR THE
CONSUMMATION OF THE TRANSACTIONS IN A FORM REASONABLY SATISFACTORY TO BUYERS,
INCLUDING ALL CONSENTS NECESSARY FOR THE ASSIGNMENT AND TRANSFER TO BUYERS OF
THE ACQUIRED CONTRACTS AND THE CONSENTS DESCRIBED IN SCHEDULE 7.3(B).
ALL SUCH
CONSENTS, WAIVERS AND APPROVALS SHALL BE IN WRITING AND EXECUTED COUNTERPARTS
THEREOF SHALL BE DELIVERED TO BUYERS.
ALL FEES OR COSTS (INCLUDING ATTORNEY
FEES) RELATED TO OBTAINING ANY CONSENT PURSUANT TO THIS SECTION 4.4 SHALL BE
PAID BY SELLERS, EXCEPT THAT ANY FEES OR COSTS (INCLUDING ATTORNEY FEES) RELATED
TO OBTAINING CONSENTS NECESSARY FOR THE ASSIGNMENT AND TRANSFER TO BUYERS OF THE
MANUFACTURING AGREEMENT SHALL BE SHARED EQUALLY BY BUYERS, ON THE ONE HAND, AND
SELLERS, ON THE OTHER HAND.
NOTWITHSTANDING THE FOREGOING, NO PARTY SHALL BE
REQUIRED TO MAKE ANY PAYMENT TO A THIRD PARTY IN OBTAINING ANY CONSENT RELATING
TO ACQUIRED CONTRACTS IN EXCESS OF THE AGGREGATE AMOUNT SET FORTH ON
SCHEDULE 4.4(A).
(B)
TO THE EXTENT THAT THE ASSIGNMENT OF ANY
ACQUIRED CONTRACT TO BUYERS PURSUANT TO THIS AGREEMENT WOULD REASONABLY BE
EXPECTED TO PROHIBIT, IMPEDE OR MATERIALLY DELAY SELLERS' ABILITY TO FULFILL
THEIR RESPECTIVE OBLIGATIONS UNDER THE ANCILLARY AGREEMENTS, SELLERS SHALL, AT
SELLERS' SOLE EXPENSE, USE COMMERCIALLY REASONABLE EFFORTS TO ENTER INTO ANY
COMMERCIALLY REASONABLE AND LAWFUL ARRANGEMENT WITH ANY PERSON WHO IS A PARTY TO
ANY SUCH ACQUIRED CONTRACT AS MAY BE NECESSARY IN ORDER TO ENSURE THAT, FROM AND
AFTER THE CLOSING, SELLERS SHALL HAVE THE ABILITY TO PERFORM THEIR OBLIGATIONS
UNDER THE ANCILLARY AGREEMENTS.
SELLERS SHALL KEEP BUYERS APPRISED OF THE
STATUS OF ANY DISCUSSIONS WITH THIRD PARTIES PURSUANT TO THIS SECTION 4.4(B) ON
A TIMELY BASIS.
4.5
NON-COMPETE.
(A)
IN ORDER THAT BUYERS MAY HAVE AND ENJOY THE
FULL BENEFIT OF OWNERSHIP OF THE BUSINESS, SELLERS AGREE THAT, FOR A PERIOD OF
THREE (3) YEARS AFTER THE CLOSING DATE (WITH RESPECT TO EUROPEAN JURISDICTIONS)
AND FIVE (5) YEARS AFTER THE CLOSING DATE (WITH RESPECT TO ALL OTHER
JURISDICTIONS), NEITHER SELLERS NOR ANY OF THEIR AFFILIATES WILL:
(I)
DIRECTLY OR INDIRECTLY, EITHER AS
PRINCIPAL, MANAGER, AGENT, CONSULTANT, OFFICER, STOCKHOLDER, PARTNER, MEMBER,
INVESTOR OR LENDER OR IN ANY OTHER CAPACITY, CARRY ON, BE ENGAGED IN OR HAVE ANY
FINANCIAL INTEREST IN, OR WILLFULLY ASSIST ANY OTHER PERSON IN ENGAGING IN, ANY
BUSINESS ACTIVITY OF THE TYPE CARRIED OUT BY THE BUSINESS AS OF THE DATE OF THIS
AGREEMENT OR THE CLOSING DATE AND THE DEVELOPMENT OF PERIPHERAL PTA BALLOONS,
COVERED PERIPHERAL STENTS AND STENT GRAFTS (OTHER THAN (A) DEVICES OR METHODS
FOR THE TREATMENT OF STRUCTURAL HEART DISEASE OR (B) DEVICES OR METHODS