SUBJECT
TO THE IMMEDIATELY FOLLOWING SENTENCE, THE PROHIBITIONS IN THIS SECTION 6.04(A)
SHALL NOT APPLY TO ANY PERSON OR ENTITY ACQUIRED UNDER CLAUSE (I) ABOVE OR ANY
ACQUIRING PERSON OR ENTITY UNDER CLAUSE (II) ABOVE
(EACH, AN "EXEMPTED
PERSON").
FOR PURPOSES OF CLARITY, AFTER ANY TRANSACTION REFERRED TO IN THE
PRECEDING SENTENCE, SELLER AND ITS PRESENT AFFILIATES (AS WELL AS ANY ENTITY
SELLER ACQUIRES AFTER THE DATE HEREOF THAT IS, AT THE TIME OF SUCH TRANSACTION,
BOUND BY THIS SECTION 6.04(A)) SHALL CONTINUE TO BE BOUND BY THIS SECTION
6.04(A).
A "COMPETITIVE BUSINESS" SHALL MEAN ANY BUSINESS OR VENTURE THAT
DESIGNS, DEVELOPS, CREATES, MARKETS, DISTRIBUTES, OR LICENSES OR SELLS
PERCUTANEOUSLY DELIVERED IMPLANTS WITHIN THE LEFT ATRIAL APPENDAGE FOR
PREVENTION OF EMBOLI MIGRATION OUT OF THE APPENDAGE.
THE PARTIES AGREE AND
ACKNOWLEDGE, THAT NEITHER WARBURG PINCUS, L.P. NOR ANY OF ITS AFFILIATES (EXCEPT
FOR EV3 INC. AND ITS DIRECT AND INDIRECT SUBSIDIARIES)
SHALL BE CONSIDERED
AFFILIATES OF THE SELLER FOR PURPOSES OF THIS AGREEMENT (INCLUDING THIS SECTION
6.04).
(B)
SELLER WILL NOT DIRECTLY OR INDIRECTLY, INDUCE ANY EMPLOYEE OF
SELLER OR ITS AFFILIATES (OTHER THAN EMPLOYEES OF AN EXEMPTED PERSON) OR BUYER
TO CARRY OUT ANY ACTIVITY DESCRIBED IN SECTION 6.03 OR 6.04(A) DURING THE TIME
IN WHICH SELLER IS RESTRICTED FROM ENGAGING IN SUCH ACTIVITIES.
11
(C)
SELLER AGREES THAT THE RESTRICTIONS AND AGREEMENTS CONTAINED IN
SECTIONS 6.03 OR 6.04 ARE REASONABLE AND NECESSARY TO PROTECT THE LEGITIMATE
INTERESTS OF BUYER AND THAT ANY VIOLATION OF SECTIONS 6.03 OR 6.04 WILL CAUSE
SUBSTANTIAL AND IRREPARABLE HARM TO BUYER THAT WOULD NOT BE QUANTIFIABLE AND FOR
WHICH NO ADEQUATE REMEDY WOULD EXIST AT LAW AND ACCORDINGLY INJUNCTIVE RELIEF
SHALL BE AVAILABLE FOR ANY VIOLATION OF SECTIONS 6.03 OR 6.04.
(D)
IF THE DURATION OR EXTENT OF BUSINESS ACTIVITIES COVERED BY
SECTIONS 6.03 OR 6.04 ARE IN EXCESS OF WHAT IS VALID AND ENFORCEABLE UNDER
APPLICABLE LAW, THEN SUCH PROVISIONS SHALL BE CONSTRUED TO COVER ONLY THE
GREATEST DURATION OR ACTIVITIES THAT ARE VALID AND ENFORCEABLE.
SELLER
ACKNOWLEDGES THE UNCERTAINTY OF THE LAW IN THIS RESPECT AND EXPRESSLY STIPULATES
THAT THIS AGREEMENT BE GIVEN THE CONSTRUCTION WHICH RENDERS ITS PROVISIONS VALID
AND ENFORCEABLE TO THE MAXIMUM EXTENT (NOT EXCEEDING ITS EXPRESS TERMS) POSSIBLE
UNDER APPLICABLE LAW.
THE PARTIES INTEND THESE PROVISIONS TO BE DEEMED TO BE A
SERIES OF SEPARATE COVENANTS, ONE FOR EACH AND EVERY STATE OF THE UNITED STATES
OF AMERICA, AND EACH AND EVERY POLITICAL SUBDIVISION OF EACH AND EVERY COUNTRY
OUTSIDE THE UNITED STATES OF AMERICA WHERE THESE PROVISIONS IS INTENDED TO BE IN
EFFECT.
6.05.
Cooperation and Exchange of Information.
(A)
EXCEPT WITH RESPECT TO THE APPLICABLE DATA AND THE APPLICABLE
REGULATORY RECORDS, BUYER SHALL HAVE THE RIGHT FOR A PERIOD OF SEVEN YEARS
FOLLOWING THE CLOSING DATE TO HAVE REASONABLE ACCESS TO SUCH BOOKS, RECORDS AND
ACCOUNTS, INCLUDING FINANCIAL AND TAX INFORMATION, CORRESPONDENCE, PRODUCTION
RECORDS, AND OTHER RECORDS OF SELLER RELATING TO THE TRANSFERRED INTELLECTUAL
PROPERTY FOR THE LIMITED PURPOSES OF COMPLYING WITH ITS OBLIGATIONS