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EXHIBIT 2.3
Stibbe Simont Xxxxxxx Duhot
Ref.: PS/Settlement Agreement.006
SETTLEMENT AGREEMENT
1a. The private limited liability company PANTAPHARMA B.V., incorporated
under the laws of the Netherlands, duly represented by its statutory
director, X.X. Xxxxxx, hereinafter to be referred as: "Pantapharma";
1b. The private limited liability company B.V. WISTERIA, incorporated under
the laws of The Netherlands, duly represented by its statutory director
Pantapharma, hereinafter to be referred as: "Wisteria";
1c. The company EUROMED, INC., incorporated under the laws of Nevada, United
States of America, duly represented by one of its statutory directors,
X.X. Xxxxxx, hereinafter to be referred as: "EuroMed, Inc.";
1d. The private limited liability company EUROMED EUROPE B.V., incorporated
under the laws of The Netherlands, duly represented by one of its
statutory directors, Wisteria, hereinafter to be referred as: "EuroMed
B.V.";
1e. The private limited liability company MUTARESTES B.V., incorporated
under the laws of The Netherlands, duly represented by its statutory
director, File B.V., duly represented by its statutory director R.W.L.
Xxxxxxx, hereinafter to be referred as: "Mutarestes";
1f. The private limited liability company GALENICA B.V., incorporated under
the laws of The Netherlands, duly represented by its statutory director
Wisteria, hereinafter to be referred as: "Galenica";
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lg. The private limited liability company CONFEDERA B.V., incorporated
under the laws of The Netherlands, duly represented by its statutory
director, Pantapharma, hereinafter to be referred as: "Confedera";
lh. ADRIAAN XXXXXXXX XXXXXX, residing at Velp (Gld), The Netherlands,
Xxxxxxxxxxxxxxx 00 (6881 AG), hereinafter to be referred to as:
"Xxxxxx";
Parties 1a. up to and including 1h. will be collectively referred to
as: "the EuroMed-group";
AND
2a. The private limited liability company NTP ADVIES B.V., incorporated
under the laws of The Netherlands, duly represented by its statutory
director, N.Th.X. Xxxxxxxxxx, hereinafter to be referred as: "NTP";
2b. The private limited liability company USUS NOTUS B.V., incorporated
under the laws of The Netherlands, duly represented by its statutory
director, A. Doets, hereinafter to be referred as "Usus";
2c. NICOLAAS THEODOOR XXXX XXXXXXXXXX, residing at Bergen NH, The
Netherlands, Xxxxxxx van Xxxxxxx 0 (1861 CD), hereinafter to be
referred to as "Roozekrans";
2d. XXXXXX XXXXX, residing at Zaandijk, The Netherlands Lagedijk 72
(1544 BH), hereinafter to be referred as "Doets";
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WHEREAS:
a. Pantapharma is the statutory director of Wisteria, which latter company
is a major shareholder in EuroMed, Inc., which in turn owns all of the
issued and outstanding shares of EuroMed B.V.;
b. EuroMed B.V. holds all of the issued and outstanding shares in the
capital of Mutarestes, which in turn owns all of the issued and
outstanding shares of the private limited liability company Pluripharm
International B.V. (hereinafter: "Pluripharm"), which in turn owns all
of the issued and outstanding shares of the private limited liability
company Financieringsmaatschappij De Nieuwe Wereld B.V. (hereinafter:
"DNW");
c. EuroMed B.V. holds all of the issued and outstanding shares in the
capital of Galenica and Confedera;
x. Xxxxx and Xxxxxxxxxx and their former personal holding companies
(Nydima B.V. and NTP Consult B.V.) have agreed in June 1996 to
(indirectly) sell their shares in Mutarestes to EuroMed B.V. The
parties then involved have entered into several share purchase
agreements (hereinafter: "the SPA's 1996"). Within the framework of
the SPA's 1996, 850,000 restricted EuroMed, Inc. shares (hereinafter:
"the 850,000 EuroMed, Inc. Shares") were issued by EuroMed, Inc. at the
expense of EuroMed B.V. to Doets and Roozekrans;
e. The transaction mentioned under d. was achieved through the following
stages: (i) Doets and Roozekrans have sold their shares in their
personal holding companies to EuroMed B.V.; (ii) these personal holding
companies have sold their shares in Mutarestes to EuroMed B.V. and
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(iii) EuroMed B.V. has sold the shares in these personal
holding companies to a subsidiary of MeesPierson.
f. the parties involved have entered into three uniform management
agreements which were signed on July 5, 1996 (hereinafter:
"the Management Agreements") whereby Doets and Roozekrans were
appointed as managers for Pluripharm and Xxxxxx for Confedera
and Galenica;
g. The Parties have made certain claims against each other and
have agreed to settle their differences on the terms contained
in the agreement (hereinafter: "the Agreement");
THE PARTIES HEREBY AGREE AS FOLLOWS:
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ARTICLE 1 RETURN OF THE 850,000 EUROMED, INC. SHARES
1.1 Subject to the terms and conditions contained herein Doets and
Roozekrans agree to return for the benefit of EuroMed B.V. the
850,000 EuroMed, Inc. Shares on 3 April, 1997 to EuroMed, Inc.
and EuroMed, Inc. accepts the 850,000 EuroMed, Inc. shares from
Doets and Roozekrans. Doets and Roozekrans agree to return
their 850,000 EuroMed, Inc. shares to EuroMed, Inc. in
consideration of receiving full and final release from the
EuroMed-group as defined in article 3 hereof.
1.2 The return of the 850,000 EuroMed, Inc. Shares will be effected
by handing over the original certificates with the numbers
E0020 (Doets) and E0022 (Roozekrans) by Doets and Roozekrans
to Mr. J.H.M. Carlier, civil law notary of the firm Stibbe
Simont Xxxxxxx Duhot, until the legal opinion mentioned in
article 2 hereof has been furnished to Doets and Roozekrans.
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ARTICLE 2 REPRESENTATIONS AND WARRANTIES
2.1 Each member of the EuroMed-group represents and warrants that
EuroMed, Inc. has full corporate power and authority to
execute and perform the Agreement and the transactions
contemplated thereby in accordance with their terms.
2.2 At or prior to the signing of the Agreement, each member of the
EuroMed-group represents and warrants that the execution and
the performance of the Agreement and the transactions
contemplated thereby have been duly authorized by all necessary
corporate actions on the part of EuroMed, Inc.
2.3 At or prior to the signing of the Agreement, each member of the
EuroMed-group represents and warrants that no consent,
authorization, approval of the United States Securities and
Exchange Commission, Federal Trade Commission or any other law
of the United States of America or any State "Blue Sky Law" is
required on behalf of EuroMed, Inc. in connection with the
execution and performance of the Agreement and the transactions
contemplated thereby.
2.4 EuroMed, Inc. will furnish a legal opinion of the United
States counsel to EuroMed, Inc. in the usual format which
opinion will confirm:
- that EuroMed, Inc. has full corporate power and
authority to execute and perform the Agreement and the
transactions contemplated thereby in accordance with
their terms;
- that the execution and the performance of the
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Agreement and the transactions contemplated thereby have been
duly authorized by all necessary corporate actions on the part
of EuroMed, Inc. so that EuroMed, Inc. is authorized to receive
the 850,000 EuroMed, Inc. Shares and in particular that the
850,000 Shares may be transferred without restriction;
- that no consent, authorization, approval of the United States
Securities and Exchange Commission, Federal Trade Commission or
any other law of the United States of America or any State "Blue
Sky Law" is required on behalf of EuroMed, Inc. in connection
with the execution and performance of the Agreement and the
transactions contemplated thereby.
2.5 If the legal opinion will not be furnished ultimately on 12 April, 1997
NTP, Usus, Doets and/or Roozekrans may rescind the Agreement but only in
case it is reasonably likely that any of the legal facts as referred in
to article 2.4 is/are not correct or valid as a result of which the
Agreement will be (wholly or partly) null and void and such
deficiency/deficiencies has not been cured before 22 April, 1997. In
case such rescission, the civil law notary will return the original
certificates of the 850,000 EuroMed, Inc. Shares to Doets and
Roozekrans. If the legal opinion will be furnished before or on 12
April, 1997 the civil law notary will delivery the original certificates
of the 850,000 EuroMed, Inc. Shares to EuroMed, Inc.
ARTICLE 3 INDEMNIFICATION & WAIVER OF CLAIMS
3.1 Each member of the EuroMed-group will indemnify, defend
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and hold NTP, Usus, Doets and Roozekrans and their employees, agents,
attorneys and affiliates harmless from and against any and all losses,
claims, causes of action, obligations, demands, assessments, penalties,
liabilities, costs, damages, attorneys' fees and expenses, asserted
against or incurred by third parties (such as, but not limited to
shareholders and creditors of EuroMed, Inc.) by reason of or resulting
from: (a) any claim arising from this Agreement and/or any other
agreement executed in connection with this transaction contemplated
hereby and/or (b) any claim arising from the SPA's 1996, the Management
Agreements and/or the activities and duties performed by Doets and
Roozekrans, except when arising form the unlawful action or omission for
which Doets and/or Roozekrans may be blamed personally ("verwijtbaar
onrechtmatig handelen of nalaten").
3.2 Each member of the EuroMed-group hereby fully releases NTP, Usus, Doets
and Roozekrans and their employees, agents, officers, directors,
attorneys and affiliates and waives its right to claim inter alia
damages and on the same basis NTP, Usus, Doets and Roozekrans hereby
fully release each member of the EuroMed-group and their employees,
agents, officers, directors, attorneys and affiliates and waive their
right to claim inter alia damages with respect to any claim, such as but
not limited to any claim (i) resulting from or in connection with the
SPA's 1996 or (ii) resulting from the Management Agreements and/or the
activities and duties performed by Doets and Roozekrans or (iii)
resulting from any event in connection with the financial position of
the Euromed-group, the delisting of the Nasdaq or any other event which
occurred as of June 19, 1996 or (iv) resulting from any event, act or
omission by Doets and
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Roozekrans with respect to the EuroMed-group and in their possible
capacity as member of the Board of Directors of EuroMed, Inc.
3.3 Each member of the EuroMed-group represents and warrants that it has not
assigned or transferred any of the claims mentioned in article 3 hereof
to any third party. On the same basis NTP, Usus, Doets and Roozekrans
represent and warrant that they have not assigned or transferred any of
the claims mentioned in article 3 hereof to any third party.
3.4 It is explicitly understood that the settlement of disputes and the
releases as mentioned in this article is considered to be a settlement
agreement as meant by article 7:900 of the Dutch Civil Code as of the
date the certificates are handed over to EuroMed, Inc. as provided in
article 2.5.
ARTICLE 4 TREATMENT OF CLAIMS
4.1 In case Doets and/or Roozekrans, Usus and/or NTP will be sued by a third
party concerning an event for which the indemnification of article 3
applies, EuroMed, Inc. will deal diligently with this claim on behalf of
the abovementioned persons and legal entities as "dominus litis".
4.2 EuroMed, Inc. will inform Doets and Roozekrans fully and quickly about
the pending claim and will furnish copies of all documents concerning
the claim to Doets and Roozekrans.
4.3 The costs for and arising from any legal proceeding or settlement with
respect to such claim will be for the
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account of EuroMed, Inc. except when arising from the unlawful
action or omission for which Doets and/or Roozekrans may be
blamed personally ("verwijtbaar onrechtmatig handelen of
nalaten"), in which case the costs will be for the account of
Doets and Roozekrans. The reasonable costs for copies of all
documents concerning the claim and the reasonable postal charges
will be for the account of Doets and Roozekrans.
4.4 Doets and Roozekrans may appoint a counsel who may interfere
with the legal proceedings and/or negotiations on their behalf
and on behalf of Usus and/or NTP. The costs for this counsel
will be for the account of Doets and Roozekrans.
4.5 Doets en Roozekrans will not give any support (unless required
by law) to third parties who have the intention to file a claim
against the EuroMed-group with respect to the agreements and
actions mentioned in article 3.1 under a and b. The
EuroMed-group will not give any support (unless required by law)
to third parties who have the intention to file a claim against
Usus, NTP, Doets and Roozekrans with respect to the agreements
and actions mentioned in article 3.1 under a and b.
ARTICLE 5 CONFIDENTIALITY
5.1 Each party shall keep the terms of the Agreement confidential,
and shall make no press release or public disclosure, either
written or oral, regarding the transactions contemplated by the
Agreement without the prior knowledge and consent of the other
parties hereto; provided that the foregoing shall not prohibit
any disclosure (i) by press release or filing that is required
by law (such as United States securities laws),
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copies of which shall be made available to Doets and Roozekrans, (ii) to
advisors, financiers or lenders of any party and (iii) to the
Shareholders meeting of EuroMed, Inc.
ARTICLE 6 MANAGEMENT AGREEMENTS & RELEASE
6.1 EuroMed B.V. confirms hereby the resignation of Doets and Roozekrans as
managers in accordance with the Management Agreements as of respectively
13 February, 1997 and 1 April, 1997.
6.2 As of the date of termination of the Management Agreements (for Doets
at 13 February, 1997 and for Roozekrans at 1 April, 1997), EuroMed B.V.
acknowledges that NTP, Usus, Doets and Roozekrans will be released from
any liabilities and will be fully discharged with respect to their
position as managers except from liability arising from the unlawful
action or omission for which Doets and/or Roozekrans can be blamed
personally ("verwijtbaar onrechtmatig handelen of nalaten"). The
non-competition clause of the Management Agreements (article 5) cannot
be enforced against Doets and Roozekrans.
6.3 EuroMed B.V. will pass on 3 April a shareholders resolution in which
EuroMed B.V. (i) confirms the resignation of Doets and Roozekrans as
statutory directors of Mutarestes and (ii) provides a general release of
Doets and Roozekrans from any and all liabilities and fully discharges
them with respect to their position as statutory directors.
ARTICLE 7 CHOICE OF LAWS
7.1 The Agreement and the rights and obligations of the
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parties hereto are governed by and construed and enforced in accordance
with the laws of The Netherlands. Any dispute arising under the
Agreement shall be exclusively settled by the competent Court of
Amsterdam, The Netherlands.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
today 03 April 1997.
/s/ X.X. XXXXXX /s/ X.X. XXXXXX
---------------------------------- ----------------------------------
Pantapharma B.V. B.V. Wisteria
/s/ X.X. XXXXXX /s/ X.X. XXXXXX
---------------------------------- ----------------------------------
EuroMed, Inc. EuroMed Europe B.V.
/s/ X. XXXXXXX /s/ X.X. XXXXXX
---------------------------------- ----------------------------------
Mutarestes B.V. Galenica B.V.
by: X. Xxxxxxx
/s/ X.X. XXXXXX /s/ X.X. XXXXXX
---------------------------------- ----------------------------------
Confedera B.V. A.F. Xxxxxx
/s/ N.T.P. ROOZEKRANS /s/ A. DOETS
---------------------------------- ----------------------------------
NTP Advies B.V. Usus Notus B.V.
/s/ N.T.P. ROOZEKRANS /s/ A. DOETS
---------------------------------- ----------------------------------
N.T.P. Roozekrans A. Doets
