OPKO Health, Inc. (solely for the purposes of Sections 2.1, 8.3 and 11.16)

This Asset Purchase Agreement is dated as of June 16, 2021, among OPKO Health, Inc., a Delaware corporation (“Parent”) (solely for the purposes Sections 2.1, 8.3 and 11.16) and EirGen Pharma Limited, a private limited company incorporated under the laws of Ireland registered with the Irish Companies Office under company number 398605 (“Seller”), and Horizon Therapeutics Ireland DAC, a designated activity company incorporated under the laws of Ireland registered with the Irish Companies Office under company number 376554 (“Purchaser”) (each, a “Party” and collectively, the “Parties”). Capitalized terms used in this Agreement shall have the meanings indicated in Section 1.1.

A.    Seller, among other things, is engaged in the business of owning and operating a manufacturing and R&D facility used for sterile fill finish of biologics pharmaceutical products;

B.    Seller owns certain Assets used in the operation of the Facility;

C.    contemporaneously with the execution of this Agreement, Purchaser and Seller entered into that certain Transition Services Agreement in the form of Exhibit F (the “Transition Services Agreement”); and

D.     Purchaser desires to purchase and assume, and Seller desires to sell, transfer, convey, assign and deliver the Transferred Assets and the Transferred Liabilities to Purchaser, upon the terms and subject to the conditions specified in this Agreement.

NOW, THEREFORE, in consideration of the mutual representations, warranties, covenants and agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1.1    Definitions. Unless otherwise provided herein, capitalized terms used in this Agreement shall have the following meanings:

    “Accrued PTO Amount” shall have the meaning set forth in Section 6.6(k).

“Affiliate” of a Person means a Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned Person. For purposes of this definition, “control,” when used with respect to any specified Person, means the power to direct or cause the direction of the management and policies of such Person, directly or indirectly, whether through ownership of voting securities or by contract or otherwise, and the terms “controlling” and “controlled by” have meanings correlative to the foregoing.

“Affiliate Agreement” shall mean all Contracts (x) between members of the Seller Group or (y) between a member of the Seller Group, on the one hand, and any directors or officers of any member of the Seller Group, on the other hand, excluding employment agreements and indemnity agreements.

“Agreement” shall mean this Asset Purchase Agreement, as amended from time to time in accordance with its terms.

“AIB” shall mean Allied Irish Banks plc., a public limited company incorporated in Ireland, with company registration number 24173, having its registered address at 10 Molesworth Street, Dublin 2, Ireland.

“AIB Charges” shall mean the security granted in favor of Allied Irish Banks plc pursuant to (a) the charge, dated 29 May 2018, between (i) Seller and (ii) AIB and (b) the related PRA Form 52, dated 29 May 2018, between (i) Seller and (ii) AIB.

“AIB Loan” shall mean the loan advanced by AIB pursuant to the letter of sanction, dated 2 May 2018, between (a) Seller and (b) AIB.

“Anti-Corruption Laws” shall mean all applicable U.S. and non-U.S. Laws relating to the prevention of corruption and bribery, including the FCPA and the UK Bribery Act of 2010 and the Irish Criminal Justice (Corruption Offences) Act 2018 (as amended).

“Assets” shall mean, with respect to any Person, all assets, properties, rights and claims of every nature, kind and description, tangible and intangible, owned or leased or licensed, wheresoever located and whether or not carried or reflected on the books or records of such Person.

“Assignment and Assumption Agreement” shall have the meaning set forth in Section 8.2(a).

“Assumed Employee-Related Liabilities” shall have the meaning set forth in Section 6.6(j)(ii).

“Benefit Plan” shall mean each “employee benefit plan” and each other employment, change in control, retention, bonus, commission, defined benefit or defined contribution, pension, profit sharing, deferred compensation, stock ownership, stock purchase, stock option, stock appreciation, restricted stock, restricted stock unit, phantom stock or other equity-based compensation, retirement, vacation, severance, redundancy, termination, disability, death benefit, medical, dental, or other employee compensation and benefit plan, policy, program, agreement or arrangement, in each case, that Seller or its Subsidiaries sponsor, maintain or contribute to (or are required to contribute to) with respect to any Business Employees or have any Liability with respect to, for the benefit of Business Employees and their beneficiaries and dependents.

“Books and Records” shall have the meaning set forth in Section 6.5(c).

“Business” shall mean the business of drug product manufacturing, and related laboratory operations, as currently conducted or proposed to be conducted by Seller in respect of sterile drug products at the Facility, except that Business does not include any Excluded Business, Excluded Contracts or any Contracts with any third parties or any Seller Group members to manufacture any sterile drug products or Contracts with any third parties to provide research and development services.

“Business Acquisition Proposal” means an indication of interest, offer or proposal to acquire, directly or indirectly, (i) the Business or (ii) all or any substantial portion of the Transferred Assets, in each case, in a single transaction or series of related transactions (whether such acquisition is structured as a sale of stock, sale of assets, merger, recapitalization or otherwise, other than the transactions contemplated by this Agreement).

“Business Day” shall mean any day other than a Saturday, a Sunday or a day on which banks in New York City, United States of America or Dublin, Ireland are permitted or required by Law to be closed.

“Business Employee” shall mean (i) each employee of Seller who is engaged wholly or predominantly in the provision of services to the Business, (ii) each other employee of Seller or any of its Subsidiaries whose transfer to Purchaser and its Affiliates is required in connection with the transactions contemplated hereby under applicable local Laws, (iii) any employee who would be entitled to transfer to Purchaser in connection with the transactions contemplated hereby under applicable local Laws but who refuses to do so and (iv) each other employee of Seller or any of its Subsidiaries who Seller and Purchaser have, prior to the Closing Date, mutually agreed will transfer to Purchaser and its Affiliates; in the case of each of clauses (i), (ii) and (iii), each of whom is listed in Section 1.1(a) of the Disclosure Schedules.

“Business Employee List” shall have the meaning set forth in Section 6.6(a).

“Business Portion” shall have the meaning set forth in Section 6.12.

“Business Software” shall have the meaning set forth in Section 4.11(g).

“CGT Clearance Certificate” shall mean a tax clearance certificate issued pursuant to Section 980 of the Taxes Consolidation Act 1997 (as amended).

“Closing” shall have the meaning set forth in Section 8.1.

“Closing Date” shall have the meaning set forth in Section 8.1.

“Collateral Warranty Assignment Deed” shall mean the deed of assignment in respect of certain collateral warranties related to the Facility, substantially in the form attached hereto as Exhibit I and subject to finalization of the scope of collateral warranties to be assigned.

“Companies Act” shall mean the Irish Companies Act 2014 and every other enactment which is to be read together with the Companies Act.

“Consent” shall have the meaning set forth in Section 6.3.

“Contract” shall mean any agreement, contract, subcontract, license, sublicense, lease, indenture, purchaser order or other legally binding commitment or undertaking of any nature.

“Contract for Sale” means the contract for the sale of the Property by the Seller to the Purchaser, to include the Law Society of Ireland General Conditions for Sale 2019 substantially in the form attached hereto as Exhibit J.

“Data Room” shall mean the “Orbit” virtual data room operated by Parent.

“Data Subject” shall have the meaning set forth in the GDPR.

“Deductible” shall have the meaning set forth in Section 9.4(b).

“Deferred Asset” shall have the meaning set forth in Section 2.3(a).

“Direct Claim” shall have the meaning set forth in Section 9.5(b).

“Disclosure Schedules” shall have the meaning set forth in the first sentence of Article IV.

“Dollars” or “$”, when used in this Agreement or any other Transaction Document, shall mean United States dollars unless otherwise stated.

“Effect” shall mean any change, effect, event, occurrence, state of facts or development.

“Effective Time” shall have the meaning set forth in Section 8.1.

“Employee Representative” shall have the meaning set forth in Section 4.16(a).

“Environmental Claim” shall mean any written claim, proceeding, suit, complaint, or notice of violation alleging violation of, or liability under, any Environmental Laws.

“Environmental Laws” shall mean any applicable Laws, Permits, decrees, orders or common law relating to, or imposing standards regarding the protection of the environment.

“Excluded Assets” shall mean the Assets set forth in Exhibit A.

“Excluded Business” shall mean (i) sales operations of all kinds and any commercial manufacturing business conducted by the Seller with or for members of the Seller Group and/or its customers, and (ii) the research and development activities relating to oral solid dose product manufacturing and related laboratory operations relating to oral solid dose product manufacturing, conducted by Seller at the Facility through the use of the Excluded Business Assets.

“Excluded Business Assets” shall mean all plant, machinery, equipment and other tangible personal property located at the Facility that is specifically listed in Exhibit H hereto.

“Excluded Contracts” shall have the meaning set forth in Exhibit A.

“Excluded Employee-Related Liabilities” shall have the meaning set forth in Section 6.6(j).

“Excluded Liabilities” shall mean the Liabilities set forth in Exhibit B.

“Facility” shall have the meaning set forth in Exhibit C.

“FCPA” means the U.S. Foreign Corrupt Practices Act of 1977, as amended.

“Fraud” shall mean intentional misrepresentation with respect to the representations and warranties set forth in this Agreement or in any other Transaction Document that constitutes common law fraud under Irish law.

“GDPR” shall mean (as the context permits) the EU General Data Protection Regulation (EU 2016/679) or the General Data Protection Regulation as adopted in the UK pursuant to the European Union (Withdrawal Act) 2018.

“Good and Marketable Title” means a title commensurate with prudent standards of correct and current conveyancing practice in Ireland.

“Governmental Authority” shall have the meaning set forth in Section 4.3(a).

“Hazardous Materials” shall mean any natural or artificial substance or combination of substances (whether in solid, liquid, gas, vapor or other form whatsoever) capable of causing harm to the environment or human health including any hazardous, toxic or dangerous substance or article or element, petroleum, petroleum products and asbestos.

“Held Asset” shall have the meaning set forth in Section 6.10(a).

“holding company” has the meaning given to it in section 8 of the Companies Act;

“Indemnification Claim Notice” shall have the meaning set forth in Section 9.5(a).

“Indemnified Party” shall have the meaning set forth in Section 9.4.

“Indemnifying Party” shall have the meaning set forth in Section 9.4.

“Intellectual Property” shall mean all rights associated with the following: (a) patents and applications therefor, utility models and applications therefor and statutory invention registrations (including any continuations, continuations-in-part, divisionals, reissues, renewals, foreign counterparts or modifications for any of the foregoing); (b) trade secret rights, rights in know-how and all other rights in or to confidential business or technical information (“Trade Secrets”); (c) copyrights in works of authorship of any type (including copyrights in software), mask work rights and design rights, whether or not registered, and registrations and applications for registration thereof, and all rights therein provided by applicable international treaties or conventions, all moral and common law rights thereto; (d) trademarks, trade names, service marks, service names, trade dress rights, domain names, social media identifiers, URLs, IP addresses, IP address ranges and websites and similar designation of origin, in each case whether registered or unregistered, and all goodwill symbolized thereby and associated therewith; and (e) any similar, corresponding or equivalent rights to any of the foregoing anywhere in the world.

“Interim Period” shall have the meaning set forth in Section 6.1(a).

“IHPRA” shall have the meaning set forth in Section 4.9(c).

“Initial Press Releases” has the meaning set forth in Section 6.4.

“Labor Contract” shall have the meaning set forth in Section 4.16(a).

“Law” shall mean any law, treaty, statute, EU Directive, EU Regulation, enactment, ordinance, rule, decree, code, statutory instrument or regulation of a Governmental Authority.

“Liabilities” shall mean any liabilities, obligations, guarantees (including lease guarantees), commitments, damages, losses, debts, judgments or settlements of any nature or kind, whether known or unknown, fixed, accrued, absolute or contingent, liquidated or unliquidated, matured or unmatured.

“Liens” shall mean any mortgage, easement, lease, sublease, right of way, trust or title retention agreement, pledge, lien (including any lien for unpaid Taxes), charge, security interest, adverse claim, option, assignment, hypothecation, title retention or any restriction or other encumbrance or security agreement of any kind.

“Losses” shall mean any and all losses, damages (including consequential damages), liabilities, costs (including reasonable out-of-pocket costs of investigation) and expenses, including interest,

“Non-Business Portion” shall have the meaning set forth in Section 6.12.

“Omitted Asset” shall have the meaning set forth in Section 6.10(b).

“Order” shall mean any judgment, decree, order, writ, award, assessment, ruling or injunction of a court or other Governmental Authority of competent jurisdiction.

“ordinary course of business” shall mean in the ordinary course of the operation of the Business.

“Outside Date” shall have the meaning set forth in Section 10.1(b).

“Party” and “Parties” shall have the respective meanings set forth in the Recitals to this Agreement.

“Permits” shall have the meaning set forth in Exhibit C.

“Permitted Liens” shall mean mechanics’, workmen’s, repairmen’s, warehousemen’s, carriers’ or other similar Liens, including all statutory Liens, or notices of commencement or similar filings, arising or incurred in the ordinary course of business with respect to any amounts not yet due and payable or which are being contested in good faith through (if then appropriate) appropriate proceedings.

“Person” shall mean an individual, corporation, partnership, limited liability company, association, trust, incorporated organization, other entity or group.

“Personal Data” shall have the meaning set forth in the GDPR.

“Proceeding” shall mean any claim, action, arbitration, audit, hearing, inquiry, examination proceeding, litigation or suit (whether civil, criminal or administrative) commenced, brought, conducted, or heard by or before, or otherwise involving any Governmental Authority or arbitrator.

“Processed/Processing” shall have the meaning set forth in the GDPR.

“Property” shall mean all that and those the properties comprised in Folio 6899L County Waterford held under lease dated 3 March 2017 between Industrial Development Agency (Ireland) and Seller for a term of 999 years and Folio 6900L County Waterford held under lease dated 3 March 2017 between Industrial Development Agency (Ireland) and Seller for a term of 999 years.

“Publicly Available Software” shall mean each of: (i) any software that contains, or is derived in any manner (in whole or in part) from, any software that is distributed as free software, “copyleft,” open source software (e.g. Linux), or similar licensing and distribution models; and (ii) any software that requires as a condition of use, modification, or distribution of such software that such software or other software or technology incorporated into, derived from, or distributed with such software: (a) be disclosed or distributed in source code form; (b) be licensed for the purpose of making derivative works; or (c) be redistributable at no or minimal charge (such licenses under this clause (ii) being “Hereditary Licenses”). Publicly Available Software includes software licensed or distributed under any of the following licenses or distribution models similar to any of the following: (a) GNU General Public License (GPL) or Lesser/Library GPL (LGPL), (b) the Artistic License (e.g. PERL), (c) the Mozilla Public License, (d) the

“Purchase” shall mean the purchase and sale of the Transferred Assets and the assumption of the Transferred Liabilities on the terms set forth in this Agreement and the other Transaction Documents.

“Purchase Price” shall have the meaning set forth in Section 3.1.

“Purchase Price Allocation” shall have the meaning set forth in Section 3.2.

“Purchaser” shall have the meaning set forth in the Recitals to the Agreement.

“Purchaser Fundamental Representations” means the representations and warranties of Purchaser set forth in Sections 5.1, 5.2(a) and 5.6.

“Purchaser Group” shall mean the Purchaser and any other company which is or becomes, directly or indirectly, a subsidiary or holding company of the Purchaser or a subsidiary of such holding company.

“Purchaser Indemnified Persons” shall have the meaning set forth in Section 9.2.

“Purchaser Material Adverse Effect” shall mean a material adverse effect on the ability of Purchaser and/or its Affiliates, as applicable, to perform their respective obligations under this Agreement in a timely manner or to consummate the transactions contemplated by this Agreement.

“Redemption Payment” shall have the meaning set forth in Section 8.2.

“Representative” shall mean, with respect to any Person, any officer, director, principal, partner, manager, member, attorney, accountant, agent, employee, consultant, financial advisor or other authorized representative of such Person.

“Restricted Employee(s)” shall have the meaning set forth in Section 6.7(b).

“Retained Business” means any and all of the businesses conducted by members of the Seller Group (other than the Business).

“Retained Employee” shall mean each individual employed or engaged by the Seller or any of its Affiliates as of the date of this Agreement, or between the date of this Agreement and the Closing Date (including any such employee who is on sick leave, military leave, vacation, holiday, disability or other similar leave of absence), who is not a Transferred Employee.

“Sanctioned Country” shall mean a country or territory which is itself the subject of or target of comprehensive Sanctions (at the time of this Agreement Crimea, Cuba, Iran, North Korea, Syria, Venezuela and Turkey).

“Sanctioned Person” shall mean a Person (i) listed on any Sanctions-related list of designated Persons maintained by a Governmental Authority, (ii) located, organized, or resident in a Sanctioned Country, or (iii) greater than 50% owned or controlled by one or more Persons described in clauses (i) or (ii) above.

“Sanctions” shall mean any Laws in any part of the world related to import transactions, export transactions, or economic or trade sanctions or restrictions; the economic sanctions rules and regulations implemented under statutory authority or the U.S. President’s Executive Orders and administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or U.S. Department of State; European Union Council Regulations on sanctions; United Nations sanctions policies and Laws; economic sanctions administered by Her Majesty’s Treasury of the United Kingdom, the European Union or other relevant sanctions authority; and all relevant Laws made under any of the foregoing.

“Seller” shall have the meaning set forth in the Recitals to this Agreement.

“Seller Fundamental Representations” means the representations and warranties of Seller set forth in Sections 4.1, 4.2, 4.5(a), 4.11(a), 4.18, 4.21 and 11.16(b).

“Seller Group” shall mean the Seller, Parent and any other company which is or becomes, directly or indirectly, a subsidiary or holding company of the Seller or a subsidiary of such holding company.

“Seller Group Indemnified Persons” shall have the meaning set forth in Section 9.3.

“Seller Pension Scheme” shall mean Eirgen Pharma Defined Contribution Pension Plan operated by the Seller.

“Severance Obligations” shall mean any statutory, contractual, common law or other severance or redundancy payments or other separation benefits, whether pursuant to applicable Law, any applicable plan or policy, any applicable individual employment agreement or arrangement, or otherwise and the employer portion of any Taxes payable in connection therewith. For the avoidance of doubt, Severance Obligations shall not include any severance compensation or benefits not required to be paid by applicable Law, or an applicable Benefit Plan or corresponding plan, policy, program, agreement or arrangement of Purchaser and its Affiliates.

“Subsidiary” or “Subsidiaries” shall have the meaning given to it in section 7 of the Companies Act.

“Tax” or “Taxes” shall mean any federal, state, local or non-U.S. tax of any kind whatsoever, including income, alternative, minimum, accumulated earnings, personal holding company, franchise, unincorporated business, capital stock, net worth, capital, profits, windfall profits, gross receipts, value added, sales, use, excise, custom duties, transfer, conveyance, mortgage, registration, stamp, documentary, recording, premium, severance, environmental, real and personal property, ad valorem, intangibles, rent, occupancy, license, occupational, employment, unemployment insurance, social security (including both employee and employer social security contributions), disability, workers’ compensation, payroll, health care, escheat, withholding, estimated or other similar tax, duty, or other charge or assessment in the nature of a tax or deficiencies thereof (including amounts imposed for failure to file or provide correct or timely information to any Governmental Authority or third parties) and any interest, penalties (including promoter penalties), additions to tax and additional amounts imposed, whether disputed or not, and including any obligations to indemnify or otherwise assume or succeed to the Tax liability of any other Person.

“Tax Return” shall mean any return, declaration, report, election, disclosure, form, estimated return and information statement relating to Taxes, including any schedule or attachment thereto, and including any amendment thereof.

“TCA” shall mean the Taxes Consolidation Act 1997, as amended.

“the knowledge of” a Party shall mean, with respect to Seller, the knowledge of Damien Burke, Bill Murphy and Ann Marie Slattery after conducting a due inquiry.

“Title Leases” means lease dated 3 March 2017 between Industrial Development Agency (Ireland) and Seller for a term of 999 years (in respect of the property now comprised in Folio 6899L County Waterford) and lease dated 3 March 2017 between Industrial Development Agency (Ireland) and Seller for a term of 999 years (in respect of the property now comprised in Folio 6900L County Waterford).

“Third-Party Claim” shall have the meaning set forth in Section 9.5(e)(i).

“Transaction Documents” shall mean this Agreement, the Assignment and Assumption Agreement, the Contract for Sale, the Transfer, the Transition Services Agreement, the certificates and documents contemplated by Sections 7.2(c), 7.3(c) and 7.3(d) and all other documents to be executed in connection with the transactions contemplated by this Agreement.

“Transfer” shall mean the deed of assurance substantially in the form attached hereto as Exhibit G.

“Transfer Taxes” shall have the meaning set forth in Section 6.8(a).

“Transferred Assets” shall mean the Assets set forth in Exhibit C.

“Transferred Books and Records” shall mean originals and all copies of all Books and Records primarily used in connection with the Transferred Assets or otherwise in the Business, including as defined in Exhibit C.

“Transferred Contracts” shall have the meaning set forth in Exhibit C.

“Transferred Employees” shall mean Business Employees whose employment is automatically transferred to the Purchaser or its designated Affiliate in connection with the transactions contemplated hereby under TUPE but excluding any employee who has rejected or opted out of automatic transfer under TUPE.

“Transferred IP” shall have the meaning set forth in Exhibit C.

“Transferred Liabilities” shall mean the Liabilities set forth in Exhibit D.

“Transferred Personal Property” shall have the meaning set forth in Exhibit C.

“Transition Services Agreement” shall have the meaning set forth in the Recitals.

“TUPE” shall mean the Transfer of Undertakings (Protection of Employment) Regulations 2003 or predecessor or amending legislation thereto.

“VAT” shall mean value added tax as provided for in and appropriately charged in accordance with the Value-Added Tax Consolidation Act 2010 and legislation (whether delegated or otherwise) supplemental thereto or in any primary or subordinate legislation promulgated by the European Union and

“VAT Act” shall mean the Value-Added Tax Consolidation Act 2010 and all associated regulations.

1.2    Rules of Construction.

2.1    Purchase and Sale of the Transferred Assets.

2.2    Transferred Liabilities; Retention by Seller of Excluded Liabilities.

2.3    Consent to Assignment.

(a)    Notwithstanding anything in this Agreement to the contrary, but subject to Section 6.3, this Agreement shall not constitute a sale, assignment, transfer, conveyance or delivery of any Transferred Asset (including any Contract or Permit or any claim, right or benefit arising thereunder or resulting therefrom, in each case, included in the Transferred Assets) if any attempted sale, assignment, transfer, conveyance or delivery of such Transferred Asset (i) would constitute a breach or violation of any applicable Law (whether by operation of law or otherwise), (ii) would adversely affect the rights of Purchaser and its Affiliates thereunder or (iii) if such Transferred Asset cannot be sold, assigned, transferred, conveyed or delivered without any Consent that has not been obtained (or does not remain in full force and effect at) the Closing (any such Transferred Asset, a “Deferred Asset”), unless and until (A) such Deferred Asset can be sold, assigned, transferred, conveyed or delivered in accordance with Section 2.1 without such breach, violation of Law or adverse effect on Purchaser’s rights thereunder or (B) such Consent is obtained at or prior to Closing (and remains in full force and effect at the Closing), at which time, in the case of clauses (A) and (B), and without the payment of any further consideration by any Person, such Deferred Asset and related Transferred Liability shall be deemed to be sold, assigned, transferred, conveyed or delivered in

accordance with Section 2.1 and assumed in accordance with Section 2.3(a) and shall cease to be a Deferred Asset. With respect to any such Deferred Asset, (A) from the Closing Date to the twelve (12)-month anniversary thereof, Seller and Purchaser shall, and shall cause their respective Affiliates to, reasonably cooperate and use commercially reasonable efforts to obtain, or cause to be obtained, all Consents required to assign or transfer such Deferred Asset to Purchaser (or its Affiliate) and (B) upon obtaining the requisite Consents, Seller shall sell, assign, transfer, convey and deliver all rights associated with such Deferred Asset to Purchaser (or its Affiliate), in each case, without the payment of any further consideration by any Person or agreement by any Person to any amendments, modifications or waivers of any terms of any Deferred Assets that would adversely affect the rights of Purchaser and its Affiliates thereunder in order to obtain such Consents. Subject to Section 6.3, neither Seller nor any of its Affiliates shall have any liability for failure to obtain any Consent (provided, that Seller has complied with its obligations under this Section 2.3) and neither Seller, Purchaser nor their respective Affiliates (or any of their respective designees) shall be obligated to pay (or cause to be paid) (x) fees, costs or expenses in connection with such Consents (other than immaterial administrative or legal costs and expenses) or (y) any consideration to any third party with respect to such Consents.

3.1    Purchase Price.

The purchase price in respect of the purchase and sale transactions hereunder shall be (i) $65,000,000.00 less Accrued PTO Amount and (ii) the assumption of the Transferred Liabilities, which comprises the respective purchase price to be paid for the Transferred Assets (the “Purchase Price”).

3.2    Allocation of Purchase Price.

Purchaser shall determine the allocation of the Purchase Price among the Transferred Assets, which allocation may be amended from time to time (the “Purchase Price Allocation”) and shall deliver to Seller a copy of the Purchase Price Allocation at or prior to Closing for informational purposes only. Seller and Purchaser agree that the Purchase Price Allocation may be adjusted by Purchaser within 12 months after the Closing if required for Purchaser’s accounting compliance; provided that (a) Purchaser shall provide prompt notice to Seller of any such adjustment to the Purchase Price Allocation and (b) such adjusted Purchase Price Allocation shall not be binding upon Seller for Tax reporting purposes.

3.3    Withholding.

ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLER

Seller represents and warrants to Purchaser, subject to the disclosures and exceptions set forth in the disclosure schedules delivered by Seller to Purchaser concurrently herewith (the “Disclosure Schedules”), as follows:

4.1    Corporate Existence and Solvency.

4.2    Corporate Authority.

4.3    No Conflicts; Governmental Approvals and Consents.

(a)    The execution and delivery of this Agreement and the other Transaction Documents by Seller, the performance by Seller of its obligations hereunder and thereunder and the consummation by Seller of the transactions contemplated hereby and thereby do not and will not (A) violate or conflict with any provision of the respective certificate of incorporation or by-laws or similar organizational documents of Seller, (B) result in any violation or breach of, or constitute any default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation or a loss of a benefit under, any Transferred Contract, (C) result in the creation of any Lien (except for any Permitted Lien) upon, or (D) violate, conflict with or result in any breach under any provision of any Law or Order applicable to Seller (to the extent it relates to the transactions contemplated by this Agreement), the Business or the Transferred Assets, except, in the case of clauses (B), (C) and (D), to the extent that any such breach, default, termination, cancellation, acceleration, loss, Lien, violation, conflict, breach or loss would not be material to the Business and/or the Transferred Assets, taken as a whole.

(b)    No Consent, order, or license from, notice to or registration, declaration or filing with, any Ireland, European Union, United States, supranational or foreign, federal, state, provincial, municipal or local government agency, court of competent jurisdiction, administrative agency or commission or other governmental or regulatory authority or instrumentality (“Governmental Authority”), is required on the part of Seller in connection with the execution, delivery or performance of this Agreement or any of the other Transaction Documents or the consummation of the transactions contemplated hereby and thereby, except for (a) such Consents, orders, licenses, filings or notices that have been or will be obtained as of the Closing Date and remain in full force and effect, and (b) those with respect to which the failure to have been so obtained or to remain in full force and effect would not be material to the Business and/or the Transferred Assets, taken as a whole.

4.4    Sufficiency of Assets.

Except (i) for services and other rights that are to be made available pursuant to the Transition Services Agreement and the other Transaction Documents and (ii) as set forth in Section 4.4 of the Disclosure Schedules, the Transferred Assets collectively constitute all of the assets, properties and rights of the Seller Group that are necessary for, or used in connection with, the conduct of the Business as currently conducted, and in carrying on the Business, Seller does not depend on any assets owned, or services provided, by any member of the Seller Group which will not be transferred to Purchaser on Closing.

4.5    Title to Transferred Assets.

4.6    Real Estate.

4.7    Transferred Contracts.

(a)    Section 4.7 of the Disclosure Schedules lists each of the Transferred Contracts.

4.8    Litigation.

4.9    Compliance with Laws; Permits; Regulatory Compliance.

(b)    (i) The Permits listed on Section 4.9(b) of the Disclosure Schedule constitute all Permits that are necessary to conduct the Business as currently conducted, (ii) all such Permits are in full force and effect, (iii) the Business is not being conducted in violation or default of such Permits, (iv) the Seller is not in receipt of any written notification that any Governmental Authority is threatening to revoke any such Permit and (v) all such Permits were lawfully obtained, other than, in each of the foregoing clauses (i) through (v), any exceptions as would not be material to the Business and/or the Transferred Assets, taken as a whole.

(c)    The operations of the Facility and Business as currently conducted are in compliance, in all material respects, with all applicable Laws. There are no, and there have been in the last three years no, recalls, corrective actions, or seizures initiated or other adverse regulatory actions taken by the Irish Health Products Regulatory Authority (“IHPRA”) or any other Governmental Authority with respect to the Facility. There has been no material deficiencies, material risks or any area requiring material improvement identified in any investigation or inspection of the Facility. Seller has made

(f)    During the past three years, the Seller with respect to the Business has received the audits or inspections by the IHPRA or any other Governmental Authority set forth on Section 4.9(f) of the Disclosure Schedule and the Seller has made available to Purchaser all notices and material documentation relating to the results of such audits or inspections. The Seller has not received any notice of adverse finding, warning letters, untitled letters or other correspondence or notice from the IHPRA or any other Governmental Authority, alleging or asserting material noncompliance with any applicable Laws or any Permits required by any applicable Laws.

4.10    Anti-Corruption; International Trade.

4.11    Intellectual Property.

(g)    The Business Software listed in Section 4.11(g) of the Disclosure Schedule is in the operation of the Business. Except for the custom software identified on 4.11(g), which is included in the Transferred Assets, all of the Business Software is available for license on commercial terms from third parties.

(i)    Seller has implemented and maintained (or, where applicable, has required its vendors to maintain), materially consistent with commercially reasonable and standard industry practices and complying with its contractual obligations to other Persons in all material respects, reasonable security measures designed to protect all computers, networks, software and systems used in connection with the operation of the Business (the “Business Software”), from viruses and similar malware, and the Business Software and all confidential information, including Personal Data relating to the Business, from unauthorized physical or virtual access, use, modification, acquisition, disclosure or other misuse, including as required by applicable Laws. To the knowledge of the Seller, there has been no unauthorized access to or use of the Business Software, nor has there been any unscheduled downtime or unavailability of the Business Software due to unauthorized access to or use of Business Software either of which resulting in a material disruption of the Business.

4.12    Privacy and Data Security.

4.13    Product Liability.

4.14    Tax Matters.

4.15    Benefit Plans.

(a)    Section 4.15(a) of the Disclosure Schedules sets forth a list of each material Benefit Plan.

4.16    Labor Matters.

(a)    Except as set forth on Section 4.16(a) of the Disclosure Schedules, the Seller has not been (a) a party to or bound by any collective bargaining agreement, works council agreement (including with any European Works Council or staff body or group thereof), trade union agreement, or other similar agreement (including any such agreement applicable on a national and/or industry-wide basis) (each of the foregoing, a “Labor Contract”) in respect of the Business, (b) subject to a legal duty to bargain with or be party to a practice of engaging with (exclusive of any of the change-in-control-related notification and consultation obligations listed on Section 4.16(a) of the Disclosure Schedules), or in recognition of, any labor union, works council, trade union or similar employee representative group (each, an “Employee Representative”) on behalf of the Business Employees; (c) to the knowledge of Seller, the object of any attempt to

(b)    Other than as set forth in Section 4.16(b) of the Disclosure Schedules, there are no other employees of Seller or any of its subsidiaries who are wholly or mainly assigned to the Business or whose transfer to Purchaser and its Affiliates is required under applicable Law.

(c)    Except as set forth on Section 4.16(c) of the Disclosure Schedules and as required by any applicable Law, no consent or consultation of, requirement to provide information to, or the rendering of or receipt of an opinion or formal advice by, any Employee Representative, group of employees, or any Governmental Authority with jurisdiction over labor matters is required for Seller to enter into this Agreement or to consummate the transactions contemplated by this Agreement. Since January 1, 2019, Seller has complied in all material respects with their respective obligations to inform and/or consult which are similar to the type described in the immediately preceding sentence.

4.17    Environmental Matters.

4.18    Affiliate Agreements.

4.19    Powers of Attorney.

4.20    Business Records.

4.21    Brokers and Other Advisors.

ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PURCHASER

5.1    Corporate Existence.

5.2    Corporate Authority.

5.3    Governmental Approvals and Consents.

Except as set forth on Schedule 5.3, no Consent, approval, order or authorization of, license or permit from, notice to or registration, declaration or filing with, any Governmental Authority, is required on the part of Purchaser in connection with the execution, delivery or performance of this Agreement or any of the other Transaction Documents or the consummation of the transactions contemplated hereby and thereby except for such consents, approvals, orders or authorizations of, licenses or permits, filings or notices which have been obtained and remain in full force and effect and those with respect to which the failure to have obtained or to remain in full force and effect would not have or reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect.

5.4    Litigation.

5.5    Financial Capacity.

5.6    Brokers and Other Advisors.

ARTICLE VI
AGREEMENTS OF PURCHASER AND SELLER

6.1    Conduct of the Business.

(a)    During the period from the date hereof until the Closing or earlier termination of this Agreement in accordance with Article X (such period, the “Interim Period”), except (a) as expressly contemplated or required by this Agreement, (b) as consented to in writing by Purchaser, (c) as set forth in Section 6.1(a) of the Disclosure Schedules or (d) as required by applicable Law, Seller (x) shall, and shall cause Parent to, conduct the Business in all material respects in the ordinary course of business and use commercially reasonable efforts to preserve the Business intact, including existing relations and goodwill with Governmental Authorities, vendors and suppliers of the Business and Business Employees and (y) shall not, and shall cause Parent not to, to the extent relating to the Business:

Notwithstanding anything in this Section 6.1, Seller shall not be required to take any action or non-action that in the reasonable and good faith judgment of counsel to Seller would violate any Law applicable to Seller.

6.2    Investigation of Business.

During the Interim Period, and subject to applicable Laws, the terms of any confidentiality restrictions under Contracts to which a member of the Seller Group is a party as of the date hereof and Section 6.4, Purchaser shall be entitled, including through its Representatives, to have such reasonable access to the properties, businesses, operations, personnel and books and records of, or pertaining to, the Transferred Assets and the Business as it reasonably requests in connection with Purchaser’s efforts to consummate the transactions contemplated by this Agreement. Any such access and examination shall be at Purchaser’s expense and shall be conducted on reasonable advance written notice, during regular business hours and shall be subject to restrictions under applicable Law. Seller shall use its commercially reasonable efforts to cause the Representatives of Seller to reasonably cooperate with Purchaser and its Representatives in connection with such access and examination, and Purchaser and its Representatives shall reasonably cooperate with Seller and its respective Representatives and shall minimize any unreasonable disruption to the Business and the Retained Business. Notwithstanding anything herein to the contrary, no such access or examination shall be permitted to the extent that it would (i) unreasonably disrupt the operations of Seller or (ii) require Seller to disclose information subject to attorney-client privilege or conflict with any confidentiality or privacy obligations to which

Seller is bound solely on the basis that the disclosure of such information would, in the reasonable and good faith judgment of counsel to Seller, violate such attorney-client privilege or conflict with such confidentiality obligations or Laws; provided, however, that Seller shall promptly notify Purchaser thereof and use commercially reasonable efforts to seek alternative means to disclose such information as nearly as possible without adversely affecting such attorney-client privilege or confidentiality obligations. All requests for information made pursuant to this Section 6.2 shall be directed to an executive officer of Seller or such other person as designated by Seller.

6.3    Necessary Efforts; No Inconsistent Action.

Subject to the other terms and conditions of this Agreement, Seller and Purchaser agree to use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to consummate and make effective the transactions contemplated by the Transaction Documents and to use their respective reasonable best efforts to cause the conditions to each Party’s obligation to close the transactions contemplated hereby as set forth in Article VII to be satisfied, including all actions necessary to obtain all (a) all licenses, certificates, permits, approvals, clearances, expirations, waivers or terminations of applicable waiting periods, authorizations, qualifications and orders (each a “Consent”) of any Person (including all required Consents under Transferred Contracts or the Title Leases), necessary or desirable in connection with the consummation of the transactions contemplated by the Transaction Documents and (b) novations of the Transferred Contracts, it being understood that (x) neither Party nor any of their respective Subsidiaries shall be required to expend any money other than for filing fees or expenses or immaterial administrative or legal costs or expenses, (y) the prior written consent of Purchaser shall be required with respect to any amendment, waiver or modification to any Transferred Contract for the purpose of obtaining any such Consent that is adverse to Purchaser or the Business and (z) in no event shall any Party be required to seek a novation of any Transferred Contract unless (1) such novation is required under applicable Law to transfer the burden and/or obligations of such Transferred Contract or (2) Purchaser reasonably expects that novating such Transferred Contract would reduce applicable Transfer Taxes (and, for the avoidance of doubt, if the parties to a Transferred Contract have agreed that such Transferred Contract is to be novated (pursuant to this clause (z) or otherwise), this Agreement shall not constitute an assignment or attempted assignment of such Transferred Contract nor shall this Agreement amount to an agreement for the sale of any interest in such contract). The Parties shall cooperate fully with each other to the extent necessary in connection with the foregoing.

6.4    Public Disclosures; Confidentiality.

(a)    The Parties agree that each may issue a press release announcing the execution of this Agreement (the “Initial Press Releases”), with the content of the Initial Press Release to be approved by the other Party (which approval shall not be unreasonably withheld, conditioned or delayed). Except for the Initial Press Releases, unless otherwise required by Law or the rules and regulations of any stock exchange on which such Party’s stock (or the stock of their direct or indirect holding company) is traded or quoted, no press release or other public announcement or comment pertaining to the transactions contemplated by this Agreement will be made by or on behalf of any Party or its Affiliates without the prior written approval of the other Party (which approval shall not be unreasonably withheld, conditioned or delayed). If in the judgment of either Party upon the advice of outside counsel such a press release or public announcement is required by Law or the rules or regulations of any stock exchange on which such Party’s stock (or the stock of their direct or indirect holding company) is

6.5    Access to Records.

(a)    Exchange of Information. Save as may otherwise be required pursuant to applicable Law or in order to comply with reporting, disclosure, or filing requirements imposed on Purchaser or any of its Affiliates (including under applicable securities Laws) by a Governmental Authority having jurisdiction over the Purchaser or any of its Affiliates, Seller will, for a period of three (3) years (or, in respect of any records required to be retained under applicable Tax Laws, six (6) years) from the Closing Date, make available for inspection by Purchaser, at Purchaser’s expense, on reasonable notice during working hours any books and records relating to the Transferred Assets retained by Seller which are reasonably necessary for the operation and conduct of the Business or to comply with reporting, disclosure, or filing requirements imposed on Purchaser or any of its Affiliates (including under applicable securities or Tax Laws) by a Governmental Authority having jurisdiction over the Purchaser or any of its Affiliates. The Seller will allow Purchaser to take copies of any of the books and records reasonably required by Purchaser and shall instruct the employees, auditors and other professional advisers of Seller to provide to Purchaser all information that it may reasonably require.

(b)    Ownership of Information. Any information owned by a Party that is provided to a requesting Party pursuant to this Section 6.5 shall be deemed to remain the property of the providing Party. Unless specifically set forth herein, nothing contained in this Agreement shall be construed as granting or conferring rights of license or otherwise in any such information.

(c)    Record Retention. Except as required by applicable Law, and to the extent permitted by applicable data protection and privacy Law, each Party agrees to

use its reasonable commercial efforts to retain copies of the books and records relating to the Business and the Transferred Assets, in any form or media, other than Excluded Assets (the “Books and Records”) in their respective possession or control for a period of three (3) years (or, in respect of Tax related Books and Records, six (6) years), following the Closing Date.

(d)    Limitation of Liability. No Party shall have any liability to any other Party in the event that any information exchanged or provided pursuant to this Section 6.5 is found to be inaccurate. No Party shall have any liability to any other Party if any information is destroyed or lost after commercially reasonable efforts by such Party to comply with the provisions of Section 6.5(c).

(e)    Other Agreements Providing For Exchange of Information. The rights and obligations granted under this Section 6.5 are subject to any specific limitations, qualifications or additional provisions on the sharing, exchange or confidential treatment of information set forth in this Agreement.

(f)    Confidential Information. Nothing in this Section 6.5 shall require either Party to violate any agreement with any third parties regarding the confidentiality of confidential and proprietary information; provided, however, that in the event that either Party is required under this Section 6.5 to disclose any such information, that Party shall use all commercially reasonable efforts to seek to obtain such third party’s consent to the disclosure of such information and implement requisite procedures to enable the disclosure of such information.

6.6    TUPE and Employee Benefits.

(a)    TUPE to Apply.

The Seller and the Purchaser hereby acknowledge that the transfer of the Business contemplated hereby is one to which TUPE applies. The Seller and the Purchaser hereby further acknowledge that pursuant to TUPE, the contracts of employment of the Transferred Employees shall, with effect from the Closing, be transferred to the Purchaser. The Parties acknowledge that they are each required to engage in an information and consultation process with their respective employees in respect of the Purchase under TUPE and they shall each comply with all such obligations and to indemnify one another in accordance with the terms of Article IX in respect of Losses suffered by the other Party arising out of any failure to comply with such requirements.

(b)    Discharge of Obligations

(c)    Information on Employment

(d)    Seller Obligations

(e)    Purchaser Obligations

(f)    Notice to Transferred Employees

(g)    Liability for Retained Employees.

(h)    Post-Closing Benefit Plan Participation. From and after the Closing, Purchaser shall use commercially reasonable efforts to cause any employee benefit plans of Purchaser and its Affiliates that are made available to the Transferred Employees after the Closing (“Purchaser Plans”) to take into account for purposes of eligibility and benefit accruals (other than benefit accruals under any defined benefit pension plan or as would result in a duplication of benefits), services prior to the Closing by such Transferred Employees to Seller (and any predecessors thereof that previously employed such Transferred Employees and as to which Seller recognized such years of service) as if such service were with Purchaser and its Affiliates. With respect to each Transferred Employee who elects to participate in Purchaser Plans following the Closing, and such Transferred Employee’s dependents, Purchaser shall, and shall cause its applicable Affiliate to, use commercially reasonable efforts to (i) waive or cause to be waived any pre-existing condition exclusions to coverage, any evidence of insurability provisions, any active at work requirement and any waiting period or service requirements that did not exist or had been waived or otherwise satisfied under Seller’s comparable medical, dental, pharmaceutical and vision benefit plans prior to the Closing and (ii) apply towards any deductible requirements and out-of-pocket maximum limits under its benefit plans applicable to the year in which the Closing occurs, any amounts paid by such Transferred Employee toward such requirements and limits under Seller’s and/or Seller’s Subsidiaries’ benefit plans for such applicable year. For the avoidance of doubt, nothing in this Agreement or any Transaction Document shall operate to transfer the Seller Pension Scheme, to the Purchaser or otherwise make the Purchaser liable in respect of the Seller Pension Scheme.

(i)    Post-Closing Maintenance of Remuneration and Benefits. The Purchaser agrees (without prejudice to its obligations pursuant to Section 6.6(b)) that, it shall, at a minimum, for the period of 12 months immediately following the Closing, in respect of each Transferred Employee who remains in employment with the Purchaser or its Affiliates, at least maintain the same base salary or wage rate, as was provided to each such Transferred Employee immediately prior to the Closing; and provide a benefits package which is, in the aggregate, not less than the value of the existing benefits available to such Transferred Employee immediately prior to the Closing.

(j)    Severance Obligations. The Parties intend that the transactions contemplated by this Agreement shall not constitute a separation, termination, or severance of employment of any Transferred Employee prior to or upon the consummation of the Closing. Without limiting the provisions of this Section 6.6(i), Seller shall bear any costs related to, and shall indemnify and hold harmless Purchaser and its Affiliates from and against, any claim made against Purchaser (or Purchaser’s

(i)    Excluded Employee-Related Liabilities. Seller and its Subsidiaries shall remain responsible for (x) all Liabilities arising under Benefit Plans of Seller or its Subsidiaries and (y) all Liabilities with respect to (A) Business Employees that relate to the period on or prior to Closing Date (specifically including Liabilities regarding any claim in connection with equity awards, vested or unvested, and other entitlements under short or long term equity incentive plans of Seller, in each case, granted prior to Closing), whether such claims are made prior to, on, or following the Closing Date and (B) Retained Employees. Seller agrees that Purchaser shall not assume any Benefit Plan of the Seller or its Subsidiaries. For the purposes of this Agreement, all Liabilities and obligations of the Seller described in this Section 6.6(j)(i) and Sections 6.6(a), 6.6(b), 6.6(c), 6.6(d) and 6.6(f) are collectively referred to as the “Excluded Employee-Related Liabilities”.

(ii)    Assumed Employee-Related Liabilities. Except where the Liability arises as a result of Seller’s breach of any of its obligations under this Agreement, Purchaser and its Affiliates shall be responsible for (x) all Liabilities under Purchaser or its Affiliates’ benefits plans to Transferred Employees, and (y) all other Liabilities with respect to Transferred Employees that relate to the period after the Closing, including Liabilities for any claims brought by any Transferred Employees or any Governmental Authority with respect to any Transferred Employee against the Seller

or any of its Subsidiaries after Closing to the extent such claims are the result of Purchaser’s failure to comply with applicable Law or Contracts in connection with the Transferred Employee’s employment or the termination thereof following Closing. For the purposes of this Agreement, all Liabilities of the Purchaser described in this Section 6.6(j)(ii) and Section 6.6(e) are collectively referred to as the “Assumed Employee-Related Liabilities”.

(k)    Vacation. Following the Closing, Purchaser or its applicable Affiliate will honor, as to each Transferred Employee, all accrued and unpaid hours of vacation, personal hours or days earned and sick leave applicable to such Transferred Employee as of the Closing Date relating to the period through the Closing Date (the aggregate dollar amount that would be payable to such Transferred Employees if the accrued and unpaid vacation, personal hours or days and sick leave were paid in cash to such Transferred Employees as of the Closing Date based on their compensation in effect at the time of transfer of employment, the “Accrued PTO Amount”).

(l)    Other Accruals. No later than five (5) Business Days before the Closing Date, and with respect to Transferred Employees, Seller shall, and shall cause its Affiliates to, provide Purchaser with proper accruals regarding accrued but unpaid vacation, personal hours or days earned and sick leave as well as the Accrued PTO Amount. With the exception of Business Employees’ unpaid commission and bonus amounts earned prior to the Closing Date, which shall be paid by Seller in the first payroll cycle after the Closing Date, other compensation and benefit accruals for elements such as but not limited to (i) payroll, (ii) payroll and other employer Taxes, (iii) retirement plan payables, (iv) employee stock purchase plan, (v) expenses and (vi) reimbursements (fuel, tuition or professional membership) shall be settled by Seller prior to the Closing Date.

(m)    Administration. Following the date hereof and subject to applicable Law, the Parties shall reasonably cooperate in all matters reasonably necessary to effect the transactions contemplated by this Section 6.6, including exchanging information and data relating to workers’ compensation, employee benefits, and employee benefit plan coverages and, in the case of Seller, making the Business Employees available during business hours to Purchaser and its Affiliates as may be reasonably requested by Purchaser or its Affiliates during the TUPE information and consultation period provided that (i) a Seller representative shall be present during any such meeting with Business Employees and (ii) talking points and script of meeting shall be agreed jointly acting reasonably in advance of any such meeting and the Purchaser and its Affiliates agree to follow the agreed form script).

(n)    No Third-Party Beneficiary. This Section 6.6(n) shall be binding upon and inure solely to the benefit of each of the Parties, and nothing in this Section 6.6(n), expressed or implied, is intended to confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 6.6(n). Without limiting the foregoing, no provision of this Section 6.6(n) will create any third-party beneficiary rights in any current or former employee of Seller or any Business Employees in respect of continued employment (or resumed employment) or any other matter. Nothing in this Section 6.6(n) is (i) deemed to establish, amend, or modify any Benefit Plan, Purchaser Plan or any other employee benefit plan, policy, program, agreement or

(o)    Updated Business Employee List. Seller shall deliver to Purchaser an updated version of Section 1.1(a) of the Disclosure Schedules (the “Business Employee List”) at least fifteen (15) days prior to the Closing Date. Any changes to the Business Employee List following the date hereof shall be mutually agreed to by Purchaser and Seller on or prior to the Closing Date (such agreement of either party shall not be unreasonably withheld, conditioned or delayed).

6.7    Non-Solicitation; No-Hire.

(b)    From and after the Closing Date until the one year anniversary of the Closing Date, Purchaser covenants and agrees, that it will not, and will cause each member of the Purchaser Group to not, directly or indirectly, solicit for employment, hire, employ, engage or offer employment to, or seek to induce or influence to leave employment with Seller, any Restricted Employee (other than, for the avoidance of doubt, Transferred Employees); provided, that the foregoing shall not be deemed to prohibit (i) Purchaser from engaging in general media advertising or general employment solicitation that is not targeted towards such Restricted Employees or (ii) solicitations, targeting, or hiring, employing, engaging or offering employment to, former employees of Seller or any of its Affiliates. For purposes of this Section 6.7(b), “Restricted Employees” mean (i) employees of Seller who directly interface with Purchaser’s employees in providing services under the Transition Services Agreement and (ii) employees of Seller who are assigned to work in the Facility or in the Excluded Business as of the Closing.

6.8    Tax Matters.

(a)    Transfer Taxes. All transfer, recordation, stamp duties, excise, license, or similar fees or taxes (collectively, “Transfer Taxes”) shall be borne by Purchaser. The definition of Transfer Taxes shall not include VAT which shall be dealt with in accordance with Section 6.8(b). Any Tax Returns that must be filed in connection with any Transfer Taxes shall be prepared by the Party that customarily has primary responsibility for filing such Tax Returns pursuant to the applicable Laws under and according to which the respective Tax Returns are due to be filed. Seller and

(b)    VAT. The Parties agree that the Purchase Price shall be exclusive of VAT. The Parties intend that the sale is a sale to which sections 20(2)(c) and section 26(2) of the VAT Act apply such that the sale shall be deemed not to be a supply of goods or services for the purposes of the VAT Act. The Purchaser warrants that the Purchaser is an Accountable Person as defined by Section 2(1) of the VAT Act for the purposes of section 20(2)(c) of the VAT Act. The Purchaser shall indemnify and keep the Seller indemnified against any loss, cost or liability which arises as a result of such warranty being or becoming untrue or incorrect in any respect due to the act, neglect or default of the Purchaser. To the extent that VAT is chargeable, the Purchaser will pay such VAT to the Seller as is due on the sale within ten days of the Seller providing to Purchaser a valid VAT invoice.

(c)    Tax Returns and Payment of Taxes.

(ii)    Purchaser shall remit when due or cause to be remitted when due any amount of Taxes due in connection with the Transferred Assets and/or Transferred Employees for any taxable period beginning on or after the Closing Date; provided, however, that for the avoidance of doubt Purchaser shall not be liable for any Excluded Liabilities. Purchaser shall duly file or cause to be duly filed, any Tax Return required to be filed in respect of any Tax which it is required to pay pursuant to the immediately preceding sentence.

(d)    Cooperation and Assistance.

(i)    The Parties shall make commercially reasonable efforts to cooperate with each other in the filing of any Tax Returns and the conduct of any audit or other proceeding. They each shall execute and deliver such powers of attorney and make available such other documents as are reasonably necessary to carry out the intent of this Section 6.8.

relate to taxable periods that do not begin after the Closing Date. Such retention shall be in accordance with the record retention policy of the respective Party. Each Party shall give any other Party reasonable access to all such records, documents, accounting data and other information as well as to its personnel and premises to the extent necessary for a reasonable review or a Tax audit of such Tax Returns and relevant to an obligation under this Section 6.8.

6.9    Mail Handling.

6.10    Wrong Pockets.

(a)    not intended to be transferred to Purchaser pursuant to the transactions contemplated by this Agreement and the other Transaction Documents was transferred at, prior to or after the Closing (each such Asset, a “Held Asset”), Purchaser shall, and shall cause its Affiliates to (i) promptly assign and transfer all right, title and interest in such Held Asset to Seller or its designated assignee without delivery of any incremental consideration therefor, and (ii) pending such transfer, (A) hold in trust such Held Asset and provide to Seller or its designated assignee all of the benefits associated with the ownership of the Held Asset, and (B) cause such Held Asset to be used or retained as may be reasonably instructed by Seller; and

(b)    intended to be transferred to Purchaser pursuant to the transactions contemplated by this Agreement and the other Transaction Documents was not transferred at, prior to or after the Closing (each such Asset, an “Omitted Asset”), Seller shall, and shall cause its Affiliates to (i) promptly assign and transfer all right, title and interest in such Omitted Asset to Purchaser or its designated assignee without delivery of any incremental consideration therefor, and (ii) pending such transfer, (A) hold in trust such Omitted Asset and provide to Purchaser or its designated assignee all of the benefits associated with the ownership of the Omitted Asset, and (B) cause such Omitted Asset to be used or retained as may be reasonably instructed by Purchaser.

6.11    Release of Liens; Accounts Payable.

6.12    Shared Contracts.

(a)    Following the date hereof, the Parties shall use reasonable efforts to enter into or to grant, and to cause each third party counterparty to a Shared Contract that is set forth in Section 6.12, of the Disclosure Schedules (each a “Specified Shared Contract”) to enter into or to grant, any new agreements, bifurcations or consents as are reasonably necessary to permit Purchaser to operate the Business on an independent basis following the Closing, derive those claims, rights and benefits, and to assume any obligations and economic burdens, as each such Person derives from such Specified Shared Contract immediately prior to the Closing (such portion of the claims, rights benefits, obligations and economic burdens that are related to the Business, is referred to herein as the “Business Portion” and such portion of the claims, rights, benefits, obligations and economic burdens that are related to Seller and the other members of Seller Group and their respective subsidiaries and their businesses (other than the Business), is referred to herein as the “Non-Business Portion”). If, on the Closing Date, any such third party agreement, bifurcation or consent, as the case may be, is not obtained with respect to a Specified Share Contract, Seller and Purchaser shall, for a period of twelve (12) months following the Closing, (a) continue to use commercially reasonable efforts to enter into or to grant, and to cause each third party counterparty to such Specified Shared Contract to enter into or to grant, any such new agreements, bifurcations or consents, as applicable, (b) cooperate (at their own expense) reasonably and lawfully following the Closing in a mutually acceptable arrangement under which Purchaser, on the one hand, and Seller, on the other hand, would, where commercially reasonable and in compliance with applicable Law, obtain the appropriate claims, rights and benefits and assume and perform the related obligations and bear the related economic burdens of the Business Portion of such Specified Shared Contract (in the case of Purchaser) and the Non-Business Portion of such Specified Shared Contract (in the case of Seller), including by means of subcontracting, sublicensing or subleasing arrangements, or enforcement by the party to such Specified Shared Contract for the benefit (and at the expense) of Purchaser or any of its subsidiaries, or Seller that is an intended beneficiary thereof pursuant to this Section 6.12 and (c) pay, reimburse and/or otherwise be responsible for the Business Portion of all license fees payable to any licensor by any of the foregoing or their respective Subsidiaries under any such Specified Shared Contract on a pro rata basis (based on the relative proportions of such license fee attributable to the Business Portion and Non-Business Portion of such Specified Shared Contract).

(b)    Notwithstanding anything else set forth in this Section 6.12, neither Party nor any of its Affiliates shall (i) be required to take any action pursuant to Section 6.12(a) that would (x) result in a violation of any obligation which such Party or its Affiliates has to any third party, (y) constitute a breach or violation of any applicable Law (whether by operation of law or otherwise), or (z) adversely affect the rights of Purchaser and its Affiliates thereunder (unless the prior written consent of Purchaser has been obtained), (ii) be obligated to pay (or cause to be paid) (x) fees, costs or expenses in connection with their obligations under Section 6.12(a) (other than immaterial administrative or legal costs and expenses) or (y) any consideration to any third party who is requested to enter into or to grant any such new agreements, bifurcations or consents, or (iii) be required to take any action in connection with any Shared Contract that is not a Specified Shared Contract.

(c)    If the arrangements in Section 6.12(a) cannot be made or completed in respect of a Specified Shared Contract within the period of twelve (12) months following the Closing, at Purchaser’s request, Seller may (at Seller’s expense) seek to terminate the relevant Specified Shared Contract save in circumstances where material or unreasonable termination fees would apply. In the event that the Specified Shared Contract cannot be so terminated (or Purchaser does not make the request to so terminate), Seller and Purchaser shall cooperate and make such other arrangements between them, on terms reasonably satisfactory to Purchaser, as are permitted by the Specified Shared Contract to implement so far as possible the effective transfer of the benefit and burden of the Specified Shared Contract to Purchaser.

During the Interim Period, Seller shall not, and shall cause its Affiliates and its and their respective Representatives not to, directly or indirectly, (i) initiate, solicit or knowingly encourage or facilitate the making or submission of any Business Acquisition Proposal, (ii) participate in any discussions or negotiations with any Person regarding a Business Acquisition Proposal (provided, that informing a Person of the existence of this Agreement after any such Person contacts Seller, any of its Affiliates or any of its or their respective Representatives regarding a Business Acquisition Proposal and of the restrictions set forth in this Section 6.12 shall not be a breach of this Section 6.12) or (iii) furnish any information to any Person with respect to, or agree to or otherwise enter into, any Business Acquisition Proposal. From and after the date hereof, Seller shall, and shall cause its Affiliates and its and their respective Representatives to, discontinue and not engage in any solicitation efforts or negotiations with respect to or in furtherance of any Business Acquisition Proposal. Seller shall promptly (and in any event within two (2) Business Days after receipt thereof by Seller, any of its Affiliates or any of its or their respective Representatives) advise Purchaser orally and in writing of any Business Acquisition Proposal, request for information with respect to any Business Acquisition Proposal or inquiry with respect to or which would reasonably be expected to result in a Business Acquisition Proposal; the material terms and conditions of such request, Business Acquisition Proposal or inquiry; and the identity of the Person making the same.

6.13    Business Materials; Transferred Personal Property.

ARTICLE VII
CONDITIONS TO CLOSING

7.1    Conditions Precedent to Obligations of Purchaser and Seller.

The respective obligations of the Parties to consummate and cause the consummation of the Purchase shall be subject to the satisfaction (or waiver, in whole or in part, by the Party for whose benefit such condition exists in its sole discretion, to the extent permitted by applicable Law) on or prior to the Closing Date of each of the following condition:

(a)    No Injunction, etc. No Governmental Authority of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any Law or Order that is in effect on the Closing Date that has or would have the effect of prohibiting or enjoining the Purchase or making the transactions contemplated by this Agreement illegal.

7.2    Conditions Precedent to Obligation of Purchaser.

(a)    Accuracy of Representations and Warranties of Seller. (i) The representations and warranties of Seller contained in this Agreement, taken as a whole (other than Seller Fundamental Representations) (disregarding any exception or qualification of such representations and warranties that that are qualified by the terms “material”, “in all material respects”, or similar words or phrases) shall be true and correct in all material respects on the Closing Date (except to the extent such representations and warranties by their terms speak as of an earlier date, in which case they shall be true and correct in all material respects as of such date), and (ii) the Seller Fundamental Representations shall be true and correct in all but de minimis respects on the Closing Date (except to the extent such representations and warranties by their terms speak as of an earlier date, in which case they shall be true and correct in all but de minimis respects as of such date)

(b)    Covenants of Seller. Seller shall have performed and complied in all material respects with all covenants contained in this Agreement and the Transition Services Agreement to be performed by it prior to the Closing;

(c)    Officer’s Certificate. Purchaser shall have received a certificate signed by an authorized executive officer of Seller, dated the Closing Date, to the effect that the conditions specified in Sections 7.2(a) and 7.2(b) are satisfied;

(d)    Section 980 of the TCA. Seller shall have delivered to Purchaser either a CGT Clearance Certificate in respect of the Purchase Price or a letter from the auditors of the Seller addressed to (and in a form satisfactory to) Purchaser confirming that none is required;

(e)    Stamp Duty. Seller shall have delivered its Irish tax reference number to Purchaser to the extent reasonably required by Purchaser in order to make an Irish stamp duty filing in connection with the purchase of the Transferred Assets;

(f)    Certain Consents. The approvals, consents, novations, ratifications or waivers listed in Schedule 7.2(f) hereto, in each case in a form reasonably satisfactory to Purchaser, shall have been obtained;

(g)    Employee Consultations. Seller shall have complied with its obligations under Sections 6.6(a) and 6.6(b);

(h)    Facility Cleaning. Seller shall have certified to Purchaser that it completed the cleaning of the Facility in accordance with usual cleaning practices on the Facility (together with documentation of the compliance with the cleaning standards in the validated manufacturing process to the extent applicable; documentation showing how cleaning limits were set; how adequacy of cleaning was verified on equipment and the Facility surfaces; and how ductwork was protected);

(i)    Release of Liens. All Liens shall have been released from the Transferred Assets, including the AIB Charges; and

(j)    Closing Deliverables. Purchaser shall have received the deliverables required under Section 8.3 hereof.

7.3    Conditions Precedent to Obligation of Seller.

(a)    Accuracy of Purchaser’s Representations and Warranties. (i) The representations and warranties of Purchaser contained in this Agreement (other than Purchaser Fundamental Representations) (disregarding any exception or qualification of such representations and warranties that that are qualified by the terms “material”, “in all material respects”, “Purchaser Material Adverse Effect”, or similar words or phrases) shall be true and correct in all material respects on the Closing Date (except to the extent such representations and warranties by their terms speak as of an earlier date, in which case they shall be true and correct in all material respects as of such date), and (ii) the Purchaser Fundamental Representations shall be true and correct in all but de minimis respects on the Closing Date (except to the extent such representations and warranties by their terms speak as of an earlier date, in which case they shall be true and correct in all but de minimis respects as of such date);

(b)    Covenants of Purchaser. Purchaser shall have performed and complied in all material respects with all covenants contained in this Agreement and the Transition Services Agreement to be performed by it prior to the Closing;

(c)    Officer’s Certificate. Seller shall have received a certificate signed by an authorized executive officer of Purchaser, dated the Closing Date, to the effect that the conditions specified in Sections 7.3(a) and 7.3(b) are satisfied; and

(d)    Closing Deliverables. Seller shall have received the deliverables required under Section 8.2 hereof.

8.1    Closing Date.

Unless this Agreement shall have been terminated pursuant to Article X hereof, the closing of the Purchase and the other transactions hereunder (the “Closing”) shall take place through the electronic exchange of deliverables and wire transfer of funds at 8:00 a.m. Dublin Time and in such other places as are necessary to effect the transactions to be consummated at the Closing, on the third Business Day immediately following the satisfaction or, to the extent permitted by Law, waiver of all of the conditions in Article VIII (other than those conditions which by their nature are to be satisfied or, to the extent permitted by Law, waived at the Closing but subject to the satisfaction or, to the extent permitted by Law, waiver of such conditions), or at such other time, date and place as shall be fixed by mutual agreement of the Parties; provided, that notwithstanding the satisfaction of the conditions to the obligations of Purchaser and Seller under Article VIII (or, to the extent permitted by Law, the waiver of such conditions by the Parties entitled to waive such conditions). The date on which the Closing occurs is referred to herein as the “Closing Date”. The effective time (“Effective Time”) of the Closing for tax, operational and all other matters shall be deemed to be 12:01 a.m., local time in each jurisdiction in which the Business is conducted, on the Closing Date.

8.2    Purchaser Obligations.

At the Closing, Purchaser shall, or shall cause one or more of its Subsidiaries to deliver to Seller the Purchase Price less the amount of the Redemption Payment, by wire transfer of immediately available funds to an account designated by Seller (provided that Seller shall have delivered to Parent wire instructions no later than three Business Days prior to the Closing Date), (ii) deliver to AIB by wire transfer of immediately available funds to an account designated by AIB, on behalf of Seller, a sum equal to the amount outstanding in respect of AIB Loan (including all principal, accrued interest, fees and/or penalties), as set out in the letter of confirmation to be delivered to the Purchaser pursuant to Section 8.3(a)(vi) (the “Redemption Payment”) and (iii) deliver to Seller the following in such form and substance as are reasonably acceptable to Seller:

(a)    an executed copy of an Assignment and Assumption Agreement, substantially in the form of Exhibit E (the “Assignment and Assumption Agreement”);

(d)    the other documents described in Section 7.3.

For the purposes of this Section 8.2, Seller hereby irrevocably authorizes and instructs Purchaser to pay (or to procure the payment of) the Redemption Payment to AIB in accordance with Section 8.2 and confirms that the receipt of such funds by AIB shall be sufficient evidence of payment and shall be in full and final discharge of Purchaser’s obligation to make such payments.

8.3    Seller Obligations.

(ix)    the other documents described in Section 7.2;

ARTICLE IX
INDEMNIFICATION

9.1    Survival.

(a)    Subject to Section 9.1(b), each representation and warranty contained in Article IV and Article V shall survive the Closing and shall terminate on the eighteen (18) month anniversary of the Closing Date, except that (i) the Seller Fundamental Representations and Purchaser Fundamental Representations shall survive the Closing, and shall terminate on the six (6) year anniversary of the Closing Date and (ii) the representations and warranties contained in Section 4.14 shall survive the Closing Date and shall remain in full force until 60 days past the expiration of the applicable statute of limitations for the Taxes in question (taking into account any extensions or waivers thereof). The covenants and agreements contained in this Agreement (i) that are required to be performed in whole prior to the Closing shall survive the Closing and shall terminate on the eighteen (18) month anniversary of the Closing Date and (ii) that require performance after the Closing shall survive until the expiration of the applicable statute of limitations (taking into account any extensions or waivers thereof).

(b)    Notwithstanding anything herein to the contrary, the obligations to indemnify and hold harmless a Person pursuant to this Article IX in respect of a breach of representation or warranty, covenant or agreement shall terminate on the applicable survival termination date (as set forth in Section 9.1(a)), unless an Indemnified Party shall have made a claim for indemnification pursuant to Section 9.2 or Section 9.3, subject to the terms and conditions of this Article IX, prior to such survival termination date, as applicable, including by delivering an Indemnification Claim Notice to the Indemnifying Party. Notwithstanding anything herein to the contrary, if an Indemnified Party has made a claim for indemnification pursuant to Section 9.2 or Section 9.3 and delivered an Indemnification Claim Notice to the Indemnifying Party prior to such survival termination date, then such claim (and only such claim), if then unresolved, shall not be extinguished by the passage of the deadlines set forth in Section 9.1(a).

9.2    Indemnification by Seller.

Subject to the limitations set forth in this Article IX, from and after the Closing, Seller agrees to indemnify, defend and hold Purchaser, each of its Affiliates and each of their respective Representatives (collectively, the “Purchaser Indemnified Persons”) harmless from and in respect of any and all Losses that they may incur arising out of, relating to or resulting from:

(a)    any breach or inaccuracy of any representations or warranties of Seller set forth in Article IV or the certificate delivered pursuant to Section 7.2;

9.3    Indemnification by Purchaser.

Subject to the limitations set forth in this Article IX, from and after the Closing, Purchaser agrees to indemnify, defend and hold Seller, its Affiliates and each of their respective Representatives (collectively, the “Seller Group Indemnified Persons”) harmless from and in respect of any and all Losses that they may incur arising out of, relating to or resulting from:

(a)    any breach or inaccuracy of any representations or warranties of Purchaser set forth in Article V or the certificate delivered pursuant to Section 7.3(c);

(d)    (i) any Transfer Taxes allocable to Purchaser pursuant to Section 6.8(a) and (ii) any VAT pursuant to Section 6.8(b).

9.4    Limitations on Indemnification.

The Person making a claim for indemnification under this Article IX is referred to herein as the “Indemnified Party” and the Party against whom such claims for indemnification are asserted under this Article IX is referred to herein as the “Indemnifying Party”. Notwithstanding anything herein to the contrary and other than with respect to Fraud, the indemnification obligations of an Indemnifying Party pursuant to this Agreement shall be subject to the following limitations:

(a)    De Minimis. No Indemnifying Party shall be liable to an Indemnified Party for, and no Indemnified Party shall be entitled to, any indemnification for Losses pursuant to Section 9.2(a) or Section 9.3(a), as the case may be (other than with respect to breaches of Purchaser Fundamental Representations and Seller Fundamental Representations), unless the amount of any indemnifiable Losses in respect of indemnification pursuant to Section 9.2(a) or Section 9.3(a), as the case may be (other than with respect to breaches of Purchaser Fundamental Representations and Seller Fundamental Representations), would exceed, on a single claim (or a group of claims relating to the same facts or circumstances, event or transaction) $25,000, and then only to the extent such Losses exceed $25,000; provided, however, to the extent that the cumulative Losses in excess of such $25,000 threshold exceed $250,000, then all of such Losses from the first dollar shall be taken into account in determining whether cumulative Losses exceed the Deductible and will be recoverable to the extent such Losses exceed the Deductible in accordance with this Section 9.4(b).

(b)    Deductible. No Indemnifying Party shall be liable to an Indemnified Party for, and no Indemnified Party shall be entitled to, any indemnification for Losses pursuant to Section 9.2(a) or Section 9.3(a), as the case may be (other than with respect to breaches of Purchaser Fundamental Representations, Seller Fundamental Representations and breaches of any representation or warranty set forth in Section 4.14), unless the aggregate of all indemnifiable Losses in respect of indemnification pursuant to Section 9.2(a) or Section 9.3(a), as the case may be (other than with respect to breaches of Purchaser Fundamental Representations, Seller Fundamental Representations and breaches of any representation or warranty set forth in Section 4.14), would exceed on a cumulative basis $650,000 (the “Deductible”), and then only to the extent such Losses exceed the Deductible.

(c)    Maximum Amount. The maximum amount of indemnifiable Losses that an Indemnifying Party shall be liable for, or that may be recovered by an Indemnified Party, in the aggregate pursuant to Section 9.2(a) or Section 9.3(a), as the case may be (other than with respect to breaches of Purchaser Fundamental Representations, Seller Fundamental Representations and breaches of any representation or warranty set forth in Section 4.14), shall be $10,000,000. The maximum amount of indemnifiable Losses that an Indemnifying Party shall be liable for, or that may be recovered by an Indemnified Party, in the aggregate pursuant to Section 9.2(a) (with respect to breaches of the Seller Fundamental Representations), Section 9.3(a) (with respect to breaches of Purchaser Fundamental Representations), Section 9.2(b) and Section 9.3(b) shall be the Purchase Price. There shall be no cap on the amount of indemnifiable Losses that an Indemnifying Party shall be liable for, or that may be recovered by an Indemnified Party with respect to, Section 9.2(c), and/or Section 9.3(c).

(d)    Insurance and Other Payments. Payments by an Indemnifying Party pursuant to Section 9.2 or Section 9.3 in respect of any Loss shall be limited to the amount of any Liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment actually received by the Indemnified Party (or its Affiliates) from any third parties (other than the Indemnifying Party) in respect of any such claim, net of any costs of recovery, and increases in premiums.

(e)    No Duplication. Losses shall be determined without duplication of any other Loss for which an indemnification claim has been made or could be made under any other representation, warranty, covenant or agreement. The Indemnified Parties shall not be entitled to recover more than once for the same Loss.

(f)    No Setoff Rights. Neither Party shall have any right of setoff of any amounts due and payable, or any amounts arising, under this Agreement against any other amounts due and payable, or liabilities arising, under the Transition Services Agreement. The payment obligations under this Agreement, and the Transition Services Agreement remain independent obligations of each Party, irrespective of any amounts owed to any other Party under this Agreement or the or Transition Services Agreement, as the case may be.

(g)    WAIVER. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT AS A RESULT OF FRAUD, NO PARTY SHALL

(h)    Conflicting Claims. Notwithstanding anything herein to the contrary, (i) none of the Transferred Liabilities (or the transfer thereof) shall (x) diminish any Purchaser Indemnified Person’s recovery for Losses under this Agreement to the extent such Losses relate to any breach by the Seller Group of any of its representations, warranties or covenants in this Agreement, any of the Transaction Documents or any of the certificates delivered hereunder or thereunder, in each case by any member of the Seller Group or (y) prevent the inclusion of any portion of any Transferred Liability and (ii) none of the Excluded Liabilities (or the retention thereof) shall diminish any Seller Group Indemnified Person’s recovery for Losses under this Agreement to the extent such Losses relate to any breach by Purchaser of any representations, warranties or covenants in this Agreement, any of the Transaction Documents or any of the certificates delivered hereunder or thereunder, in each case by Purchaser.

9.5    Indemnification Procedures.

(a)    Claim Procedure. In order for any Indemnified Party to be entitled to make a claim for indemnification under this Article IX, such Indemnified Party shall deliver a written notice (an “Indemnification Claim Notice”) to the Indemnifying Party, as promptly as reasonably practicable after it acquires knowledge of the fact, event or circumstance giving rise to a claim for Losses pursuant to this Article IX. Each Indemnification Claim Notice shall specify in reasonable detail the nature of, the facts, circumstances and the amount or a good faith estimate (only to the extent ascertainable) of the potential Losses against which such Indemnified Party seeks indemnification for, such claim asserted, and the provisions of this Agreement upon which such claim for indemnification is made; provided, however, that any failure by such Indemnified Party to give such prompt Indemnification Claim Notice shall not relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party is actually and materially prejudiced thereby. After delivery of an Indemnification Claim Notice to the Indemnifying Party, (i) the Indemnified Party which has provided such Indemnification Claim Notice shall, upon written request from the Indemnifying Party, supply and make available to the Indemnifying Party and its Representatives (at the Indemnifying Party’s cost and expense) all relevant information in its or its Affiliates’ possession relating to the claim reasonably requested by the Indemnifying Party (except to the extent that such action would result in a loss of attorney-client privilege; provided, that such Indemnified Party shall use its commercially reasonable efforts to provide such information in such format to the Indemnifying Party, or on an outside counsel only basis or in such other manner which would not result in the loss of such attorney-client privilege) and (ii) the Indemnified Party shall, and shall cause its Representatives, to (A) be reasonably available to the Indemnifying Party and its Representatives (at the Indemnifying Party’s cost and expense) during normal business

hours to discuss such claim, (B) render to the Indemnifying Party and its Representatives such assistance as may reasonably be requested, (C) provide reasonable access to such properties, facilities, books, records, accountant work papers and other documents or information in their possession or that may be reasonably obtained as the Indemnifying Party and/or its Representatives may reasonably require (at the Indemnifying Party’s cost and expense) (provided, that the accountants of the Indemnified Party shall not be obligated to make any working papers available to the Indemnifying Party or its Representatives unless and until such Party or such Representative, as applicable, has signed a customary confidentiality and hold harmless agreement relating to such access to working papers in form and substance reasonably acceptable to such accountants), and (D) otherwise cooperate with the Indemnifying Party and its Representatives in good faith (at the Indemnifying Party’s cost and expense). Without limiting the foregoing, such cooperation shall include the retention and (upon the Indemnifying Party’s request) the provision to the Indemnifying Party or its Representatives of books, records and other documents and information which are actually and reasonably relevant to such claim.

(b)    Direct Claims. Any claim by an Indemnified Party on account of a Loss which does not result from a Third-Party Claim (a “Direct Claim”) shall be asserted by the Indemnified Party by delivering an Indemnification Claim Notice with respect to such Direct Claim to the Indemnifying Party promptly; provided, however, that any failure by such Indemnified Party to give such prompt Indemnification Claim Notice shall not relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party is actually and materially prejudiced thereby. The Indemnified Party shall allow the Indemnifying Party and its Representatives to investigate the matter or circumstance alleged to give rise to the Direct Claim, and whether and to what extent any amount is payable in respect of the Direct Claim and the Indemnified Party as provided in Section 9.5(a). The Indemnifying Party may, within thirty (30) days after receipt of an Indemnification Claim Notice with respect to such Direct Claim, deliver to the Indemnified Party a written response disputing such claim, which response must state in reasonable detail the reasons why the Indemnifying Party disputes such claim, together with reasonable supporting detail. If the Indemnifying Party fails to deliver a written response disputing such claim within such thirty (30) day period, the Indemnifying Party will be deemed to have waived its right to dispute such claim and such claim shall have been deemed to have been agreed to by the Indemnifying Party.

(c)    Deemed withdrawal of Direct Claims. Save to the extent to which such Direct Claim has previously been satisfied, settled or withdrawn, any Direct Claim by an Indemnified Party shall not be enforceable against the Indemnifying Party and shall be deemed to have been withdrawn unless (except as agreed by the Parties otherwise) Proceedings in respect of such claim are commenced, subject to Section 9.5(d), by the Indemnified Party within nine months of service of notice of any dispute by the Indemnifying Party pursuant to Section 9.5(b).

(d)    Contingent Liabilities. Where any Direct Claim by an Indemnified Party relates to a Loss which, at the time that such claim is notified to the Indemnifying Party is a contingent liability, the Indemnifying Party shall not be under any obligation to make any payment to an Indemnified Party in respect thereof and unless and until such time as the contingent liability ceases to be contingent and becomes actual

and is due and payable. If an Indemnified Party has issued a notice in respect of such Direct Claim in accordance with Section 9.5(b) before the expiry of the relevant time periods for making such a claim against relevant the Indemnifying Party set out in Section 9.1(a), the 9 month time period in Section 9.5(c) shall be deemed to commence upon the date which the liability ceases to be contingent and becomes an actual liability and is due and payable.

(e)    Third-Party Claims.

(i)    If any Indemnified Party receives notice of the assertion or commencement of any action made or brought by any Person who is not a party to this Agreement or an Affiliate of a party to this Agreement (a “Third-Party Claim”) against such Indemnified Party with respect to which such Indemnifying Party may be obligated to provide indemnification under this Agreement, such Indemnified Party shall deliver an Indemnification Claim Notice with respect to such Third-Party Claim to the Indemnifying Party promptly; provided, however, the failure to give such prompt Indemnification Claim Notice shall not relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party is actually and materially prejudiced thereby. Such Indemnification Claim Notice by the Indemnified Party shall describe the Third-Party Claim in reasonable detail, and where reasonably practicable, shall include copies of all letters, claims, complaints, filings, documents and correspondence received by the Indemnified Party or its Representatives with respect thereto.

(ii)    The Indemnifying Party shall have the right, but not the obligation, to investigate, participate in, or by giving written notice to the Indemnified Party within thirty (30) days of receipt of the Indemnification Claim Notice relating to such Third-Party Claim to assume and control the defense of, or settle (subject to Section 9.5(e)(v)), any Third-Party Claim at the Indemnifying Party’s expense and by the Indemnifying Party’s own counsel, and the Indemnified Party shall cooperate in good faith in such defense.

(iii)    In the event that the Indemnifying Party timely notifies the Indemnified Party it desires (and is permitted pursuant to Section 9.5) to assume and control the defense of any Third-Party Claim pursuant to Section 9.5(e)(ii), it shall diligently prosecute such Third-Party Claim and it shall have the right to take such action as it deems necessary to avoid, dispute, defend, appeal or make counterclaims pertaining to any such Third-Party Claim in the name and on behalf of the Indemnified Party. The Indemnified Party shall have the right, at its own cost and expense, to participate in the defense of any Third-Party Claim that the other Party has assumed the defense of with counsel selected by it subject to the Indemnifying Party’s right to control the defense thereof; provided, that if there exists a conflict of interest between the Indemnifying Party and such Indemnified Party as has been determined by the Indemnified Party’s outside legal counsel or if there are one or more different defenses to such Third-Party Claim, then the Indemnified Party shall have the right to claim the reasonable and documented costs and expenses of one (1) counsel and one (1) local counsel in each applicable jurisdiction as indemnifiable Losses to the extent the Indemnified Party is entitled to be indemnified for such Third-Party Claim.

(iv)    If the Indemnifying Party elects not to compromise or defend such Third-Party Claim or is not permitted to defend such Third-Party Claim, fails to promptly notify the Indemnified Party in writing of its election to defend as provided in this Agreement, or fails to diligently defend the Third-Party Claim, the Indemnified Party may, subject to the provisions of this Article IX, pay, compromise or defend such Third-Party Claim and seek indemnification for any and all Losses based upon, arising from or relating to such Third-Party Claim. Each of the Indemnified Party and the Indemnifying Party shall keep the other and the other’s Representatives reasonably informed concerning the status of any such Third-Party Claim and any related proceedings and all stages thereof. Each of the Parties and the Indemnifying Party and the Indemnified Party shall cooperate in good faith with each other in all reasonable respects in connection with the defense of any Third-Party Claim, including making available (subject to the confidentiality provisions of this Agreement) and retaining records relevant or relating to such Third-Party Claim and furnishing, without expense (other than reimbursement of actual out-of-pocket expenses) to the defending party, management employees of the non-defending party as may be reasonably necessary for the preparation of the defense for, and the defense of, such Third-Party Claim.

(v)    Notwithstanding any other provision of this Agreement, the Indemnifying Party shall not compromise or otherwise enter into any judgment or settlement of any Third-Party Claim without the prior written consent of the Indemnified Party, other than a compromise, judgment or settlement that (A) is on exclusively monetary terms with, subject to the limitations in Section 9.4, such monetary amounts paid by the Indemnifying Party concurrently with the effectiveness of the compromise, judgement or settlement, (B) does not involve any finding or admission of violation of Law or admission of wrongdoing by the Indemnified Party and (C) provides in customary form, an unconditional release of, or dismissal with prejudice of, all claims against any Indemnified Party potentially affected by such Third-Party Claim. If the Indemnified Party has assumed the defense pursuant to Section 9.5(e), it shall not agree to any settlement without the written consent of the Indemnifying Party (which consent shall not be unreasonably withheld, conditioned or delayed).

9.6    Mitigation.

9.7    Treatment of Indemnification Payments.

ARTICLE X
TERMINATION

10.1    Termination Events.

(b)    after October 14, 2021 (the “Outside Date”), by any Party by notice to the other Party if the Closing shall not have been consummated on or prior to 5:00 p.m. Central Time on the Outside Date; provided, however, that the right to terminate this Agreement under this Section 10.1(b) shall not be available to any Party whose failure or whose Affiliate’s failure to perform any of its representations, warranties, covenants or other obligations under this Agreement has been the primary cause of, or otherwise primarily resulted in, the failure of the Closing to occur on or prior to such date;

(d)    by Seller if (i) Seller is not in material breach of any of its representations, warranties, covenants or other obligations hereunder that renders or would render the conditions set forth in Sections 7.2(a) or 7.2(b) incapable of being satisfied and (ii) Purchaser is in material breach of any of its representations, warranties, covenants or other obligations hereunder that renders or would render the conditions set forth in Sections 7.3(a) or 7.3(b) incapable of being satisfied, and such breach is either (A) not capable of being cured prior to the Outside Date or (B) if curable, is not cured within the earlier of (x) thirty (30) days after the giving of written notice by Seller to Purchaser and (y) three (3) Business Days prior to the Outside Date; or

(e)    by Purchaser if (i) Purchaser is not in material breach of any of its representations, warranties, covenants or other obligations hereunder that renders or would render the conditions set forth in Sections 7.3(a) or 7.3(b) incapable of being satisfied and (ii) Seller is in material breach of any of its representations, warranties, covenants or other obligations hereunder that renders or would render the conditions set forth in Sections 7.2(a) or 7.2(b) incapable of being satisfied, and such breach is either (A) not capable of being cured prior to the Outside Date or (B) if curable, is not cured

10.2    Effect of Termination.

In the event of any termination of this Agreement as provided in this Article X, this Agreement shall forthwith become wholly void and of no further force and effect, all further obligations of the Parties under this Agreement shall terminate and there shall be no liability on the part of any Party (or any Affiliate or Representative of such Party) to any other Party (or such other Persons), except that the provisions of Sections 6.4, 10.2 and Article XI of this Agreement shall remain in full force and effect and the Parties shall remain bound by and continue to be subject to the provisions thereof. Notwithstanding the foregoing, the provisions of this Section 10.2 shall not relieve either Party of any liability for Fraud or for willful misconduct or intentional breach of this Agreement.

ARTICLE XI
MISCELLANEOUS

11.1    Notices.

Attention:     Alan Fuller
Email:          alan.fuller@mccannfitzgerald.com

Attention:     Alan Fuller
Email:          alan.fuller@mccannfitzgerald.com

Connaught House, 1st Fl

        

11.2    Bulk Transfers.

11.3    Severability.

11.4    Further Assurances; Further Cooperation.

Subject to the terms and conditions hereof, each of the Parties agrees to use commercially reasonable efforts to execute and deliver, or cause to be executed and delivered, all documents and to take, or cause to be taken, all actions that may be reasonably necessary or appropriate, in the reasonable opinion of counsel for Seller and Purchaser, to effectuate the provisions of this Agreement (for the avoidance of doubt, including any and all steps required to procure the release of the AIB Charges), provided, that all such actions are in accordance with applicable Law. From time to time, Seller or its Subsidiaries (as appropriate) will execute and deliver such further instruments of conveyance, transfer and assignment and take such other action, at Purchaser’s sole expense, as Purchaser may reasonably require to more effectively convey and transfer to Purchaser any of the Transferred Assets, and Purchaser will execute and deliver such further instruments and take such other action, at Seller’s sole expense, as Seller or its Subsidiaries may reasonably require to more effectively assume the Transferred Liabilities.

11.5    Counterparts.

This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument. Copies of executed counterparts transmitted by electronic signature (including by means of e-mail in .pdf format) shall be considered original executed counterparts for purposes of this Section 11.5.

11.6    Expenses.

11.7    Assignment; Successors and Assigns.

11.8    Amendment; Waiver.

11.9    Remedies.

(c)    Each of Seller and Purchaser hereby agrees not to raise any objections to the availability of the equitable remedy of specific performance to prevent or restrain breaches or threatened breaches of this Agreement by Seller or Purchaser, as applicable, and to specifically enforce the terms and provisions of this Agreement to prevent breaches or threatened breaches of, or to enforce compliance with, the covenants and obligations of Seller or Purchaser, as applicable, under this Agreement. The Parties hereto further acknowledge and agree that (i) by seeking the remedies provided for in this Section 11.9, a Party shall not in any respect waive its right to seek at any time any other form or amount of relief that may be available to a Party under this Agreement (including monetary damages) and (ii) nothing set forth in this Section 11.9 shall require any Party to institute any proceeding for (or limit any Party’s right to institute any proceeding for) specific performance under this Section 11.9 prior or as a condition to exercising any termination right under Article X (and pursuing damages after such termination (subject to the terms of this Agreement)), nor shall the commencement of any Proceeding pursuant to this Section 11.9 or anything set forth in this Section 11.9 restrict or limit any Party’s right to terminate this Agreement in accordance with the terms of Article X or pursue any other remedies under this Agreement or otherwise that may be available then or thereafter.

11.10    Third Parties.

This Agreement does not create any rights, claims or benefits inuring to any Person that is not a Party nor create or establish any third-party beneficiary hereto (including with respect to any Business Employee); provided, however, that, notwithstanding the foregoing, Purchaser Indemnified Persons and Seller Group Indemnified Persons are intended third-party beneficiaries of, and may enforce, Article IX.

11.11    Governing Law.

Other than Sections 2.1, 8.3 and 11.16, this Agreement, and all claims or causes of action (whether in contract, tort or otherwise) that may be based upon, arise out of or relate to this Agreement or the negotiation, execution or performance of this Agreement (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with this Agreement) shall be governed by and construed in accordance with the law of Ireland, without giving effect to any laws, rules or provisions that would cause the application of the laws of any jurisdiction other than Ireland. Sections 2.1, 8.3 and 11.16, and all claims or causes of action (whether in contract, tort or otherwise) that may be based upon, arise out of or relate to Sections 2.1, 8.3 and 11.16 or the negotiation, execution or performance of Sections 2.1, 8.3 and 11.16 (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection

with Sections 2.1, 8.3 and 11.16) shall be governed by and construed in accordance with the law of the State of Delaware.

11.12    Dispute Resolution.

(a)    As between Purchaser and Parent, each of Purchaser and Parent hereby irrevocably and unconditionally (a) submits, for itself and its property, to the exclusive jurisdiction of the Delaware Court of Chancery (or, only if the Delaware Court of Chancery declines to accept jurisdiction over a particular matter, any Federal court of the United States of America sitting in the State of Delaware), and any appellate court from any thereof, in any Proceeding arising out of or relating to Sections 2.1, 8.3 or 11.16 or the negotiation, execution or performance of Sections 2.1, 8.3 and 11.16 (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with Sections 2.1, 8.3 or 11.16), or for recognition or enforcement of any judgment, and agrees that all claims in respect of any such Proceeding shall be heard and determined in such Delaware Court of Chancery (or, only if the Delaware Court of Chancery declines to accept jurisdiction over a particular matter, any Federal court of the United States of America sitting in the State of Delaware), (b) waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any Proceeding arising out of or relating to Sections 2.1, 8.3or 11.16 or the negotiation, execution or performance of Sections 2.1, 8.3 or 11.16 (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with Sections 2.1, 8.3 or 11.16) in the Delaware Court of Chancery, any Federal court of the United States of America sitting in the State of Delaware, or in any Delaware State court, (c) waives, to the fullest extent permitted by Law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court, and (d) agrees that a final judgment in any such Proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law. Each of Purchaser and Parent hereto agrees that service of process, summons, notice or document by registered mail addressed to it at the applicable address set forth in Section 11.1 shall be effective service of process for any Proceeding brought in any such court.

(b)    Except as set forth in Section 11.12(a), any and all such disputes that cannot be resolved by the Parties shall be settled solely and exclusively by arbitration in New York, New York pursuant to the commercial rules then in effect of the International Chamber of Commerce, and the merits of the dispute shall be resolved in accordance with the laws of Ireland. The arbitration shall be conducted by an arbitration panel consisting of three (3) arbitrators, each of whom shall be knowledgeable in the subject matter hereof. Each of Purchaser, on one hand, and Parent and Seller, on the other hand, shall select one of the arbitrators, and the two selected arbitrators shall select the third arbitrator. The arbitrators will provide a written explanation to the Parties of any arbitration award. Any decision rendered by the arbitration panel shall be binding, final and conclusive upon the Parties, and a judgment thereon may be entered in, and enforced by, any court having jurisdiction over the Party against which an award is entered or the location of such Party’s assets, and the Parties hereby irrevocably waive any objection to the jurisdiction of such courts based on any ground, including without limitation, improper venue or forum non-conveniens. Except where clearly prevented by the subject matter of the dispute, all Parties shall continue performing their respective obligations

11.13    Disclosure Schedules.

11.14    Entire Agreement.

11.15    No Joint Venture.

Nothing in this Agreement creates a joint venture or partnership between the Parties. This Agreement does not authorize any Party (i) to bind or commit, or to act as an agent, employee or legal Representative of, another Party, except as may be specifically set forth in other provisions of this Agreement or (ii) to have the power to control the activities and operations of another Party. The Parties are independent contractors with respect to each other under this Agreement. Each Party agrees not to hold itself out as having any authority or relationship contrary to this Section 11.15.

11.16    Parent Guarantee.

(b)    Parent hereby represents and warrants to Purchaser that: (i) Parent is duly organized, validly existing and in good standing under the laws of the State of Delaware, (ii) Parent has full power and authority to execute and deliver this Agreement and to perform its obligations under this guaranty and Sections 2.1 and 8.3, (iii) the execution and delivery by Parent of this Agreement and the performance of its obligations under this guaranty and Sections 2.1 and 8.3 have been duly authorized by all requisite corporate action on the part of Parent and (iv) this Agreement has been duly executed and delivered by Parent, and this guaranty and Sections 2.1 and 8.3 constitutes legal, valid and binding obligations of Parent, enforceable against Parent in accordance with its terms, except as enforceability may be affected by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar Laws relating to or affecting creditors’ rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and the implied covenant of good faith and fair dealing.

11.17    Section Headings; Table of Contents.

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