EXHIBIT 10.2
CONFIDENTIAL
STOCK PURCHASE AGREEMENT
by and among
RAKEPOLL FINANCE N.V.
BIO-RAKEPOLL N.V.,
BIOTECHNA U.A.B.,
GATIO INVESTMENTS B.V.,
and
SICOR INC.
July 24, 2001
TABLE OF CONTENTS
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ARTICLE 1 PURCHASE AND SALE OF STOCK OF GATIO....................................................................1
1.1 Purchase and Sale..............................................................................1
1.2 Closing........................................................................................1
1.3 Purchase Price.................................................................................1
1.4 Payment of Purchase Price......................................................................1
1.5 Payment of Sales or Other Taxes................................................................2
1.6 Effect of Transaction..........................................................................2
(a) Directors and Officers of the Subsidiaries............................................2
ARTICLE 2 REPRESENTATIONS AND WARRANTIES OF SELLER...............................................................2
2.1 Organization, Good Standing, Qualification and Capitalization..................................2
2.2 Obligations With Respect to Capital Stock......................................................3
2.3 Valid Issuance of Stock of Subsidiaries........................................................3
2.4 Authority; No Conflicts........................................................................4
(a) Authority.............................................................................4
(b) Third Parties Consents................................................................4
(c) Governmental Entities Approvals.......................................................4
2.5 Financial Statements; No Undisclosed Liabilities...............................................4
2.6 Insurance......................................................................................5
2.7 Absence of Changes.............................................................................5
2.8 Properties.....................................................................................7
2.9 Taxes.........................................................................................10
2.10 Employees.....................................................................................11
2.11 Compliance with Law...........................................................................11
2.12 Litigation....................................................................................12
2.13 Contracts.....................................................................................12
2.14 No Default....................................................................................13
2.15 Compliance with Other Instruments.............................................................13
2.16 Proprietary Rights............................................................................14
2.17 Bank Accounts and Special Deposits............................................................15
2.18 Brokers or Finders............................................................................15
2.19 Related Parties...............................................................................15
2.20 Books and Records.............................................................................16
2.21 Environmental.................................................................................16
2.22 Voting Arrangements...........................................................................17
2.23 Full Disclosure...............................................................................17
2.24 Certain Payments..............................................................................17
2.25 Title.........................................................................................18
ARTICLE 3 FURTHER REPRESENTATIONS AND WARRANTIES OF SELLER......................................................18
3.1 Purchase Entirely for Own Account.............................................................18
3.2 Disclosure of Information.....................................................................18
3.3 Investment Experience.........................................................................18
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3.4 Foreign Investor..............................................................................18
3.5 Restricted Securities.........................................................................19
3.6 Further Limitations on Disposition............................................................19
3.7 Legends.......................................................................................20
3.8 Directed Selling Efforts......................................................................20
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF PURCHASER...........................................................21
4.1 Authority; No Conflicts.......................................................................21
(a) Authority............................................................................21
(b) Third Parties Consents...............................................................21
(c) Governmental Entities Approvals......................................................21
4.2 Organization, Good Standing and Qualification.................................................22
4.3 Brokers and Finders...........................................................................22
4.4 Valid Issuance of Common Stock................................................................22
4.5 Governmental Consents.........................................................................22
4.6 Conflicts.....................................................................................22
4.7 SEC Documents; Material Contracts.............................................................22
ARTICLE 5 COVENANTS RELATING TO CONDUCT OF BUSINESS.............................................................23
5.1 Ordinary Course...............................................................................23
5.2 No Other Bids.................................................................................23
5.3 No Acquisitions...............................................................................23
5.4 No Dispositions...............................................................................24
5.5 Indebtedness..................................................................................24
5.6 Benefit Plans, Etc............................................................................24
5.7 Other Actions.................................................................................24
5.8 Advice of Changes; Government Filings.........................................................24
5.9 Accounting Methods............................................................................24
5.10 Dividends.....................................................................................24
5.11 Liabilities...................................................................................24
5.12 Contracts.....................................................................................24
ARTICLE 6 ADDITIONAL AGREEMENTS.................................................................................25
6.1 Access and Information........................................................................25
6.2 Notice of Changes.............................................................................25
6.3 Certain Defaults..............................................................................25
6.4 Consents......................................................................................25
6.5 Notice of Breach..............................................................................25
6.6 Expenses......................................................................................25
6.7 Public Disclosure.............................................................................26
6.8 Section 338...................................................................................26
6.9 Registration on Form S-3......................................................................26
(a) Filing of Registration Statement.....................................................26
(b) Registration Expenses................................................................26
(c) Additional Company Obligations.......................................................26
6.10 Indemnification and Contribution..............................................................27
(a) Indemnification by Purchaser.........................................................27
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(b) Indemnification by Holder............................................................27
(c) Indemnification Procedures...........................................................28
(d) Contribution in Lieu of Indemnity....................................................28
(e) Controlling Persons Indemnified......................................................29
6.11 Transfer of Registration Rights...............................................................29
6.12 Reports Under the Exchange Act................................................................29
6.13 Equity Compensation...........................................................................29
6.14 Biopharma Ltd. Obligations....................................................................29
ARTICLE 7 CONDITIONS PRECEDENT TO THE CLOSING...................................................................30
7.1 Conditions to Each Party's Obligation to Effect the Transaction...............................30
(a) Government Approvals.................................................................30
(b) Legal Action.........................................................................30
(c) Statutes 30
(d) Management Intact....................................................................30
(e) Board of Director and Stockholder Approval...........................................30
7.2 Conditions to Obligations of Seller...........................................................31
(a) Representations and Warranties.......................................................31
(b) Performance of Obligations of Purchaser..............................................31
(c) Proceedings and Documents............................................................31
(d) Banking Undertaking..................................................................31
7.3 Conditions to Obligations of Purchaser........................................................31
(a) Delivery by Seller...................................................................31
(b) Representations and Warranties.......................................................31
(c) Performance of Obligations of Seller and the Subsidiaries............................31
(d) Opinions of Counsel to Seller and Counsel to each Subsidiary.........................32
(e) No Material Adverse Change...........................................................32
(f) Change in Laws or Regulations........................................................32
(g) Due Diligence........................................................................32
(h) Qualifications.......................................................................32
(i) Third-Party Approvals................................................................32
(j) Employees............................................................................32
(k) Proceedings and Documents............................................................33
(l) Antitrust Filings....................................................................33
(m) Director Resignations................................................................33
(n) Biofa AB Obligations.................................................................33
(o) Common Stock Restriction Agreement...................................................33
(p) Employment Agreement Amendments......................................................33
ARTICLE 8 INDEMNIFICATION; SURVIVAL OF REPRESENTATIONS AND WARRANTIES...........................................33
8.1 Indemnification by Seller.....................................................................33
8.2 Procedure for Indemnification.................................................................34
(a) Escrow Fund and Indemnification......................................................34
(b) Escrow Period........................................................................34
(c) Claims Upon Escrow Fund..............................................................35
(d) Objections to Claims.................................................................35
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(e) Resolution of Conflicts..............................................................35
(f) Third-Party Claims...................................................................36
8.3 Survival of Representations and Warranties of Seller..........................................36
8.4 Release of the Escrow Fund....................................................................36
8.5 Exclusions and Limitations....................................................................37
8.6 Release of the Escrow Fund....................................................................37
8.7 Liability of Purchaser........................................................................37
ARTICLE 9 TERMINATION, AMENDMENT AND WAIVER.....................................................................38
9.1 Termination...................................................................................38
9.2 Effect of Termination.........................................................................38
9.3 Amendment.....................................................................................38
9.4 Extension; Waiver.............................................................................38
ARTICLE 10 CONFIDENTIALITY......................................................................................38
ARTICLE 11 MISCELLANEOUS PROVISIONS.............................................................................39
11.1 Schedule Updates..............................................................................39
11.2 Successors and Assigns........................................................................39
11.3 Entire Agreement..............................................................................39
11.4 Governing Law and Dispute Resolution..........................................................39
(a) Governing Law........................................................................39
(b) Arbitration..........................................................................40
11.5 Notices.......................................................................................41
(a) If to Purchaser to...................................................................41
(b) If to Seller.........................................................................41
(c) If to Biotechna U.A.B................................................................42
(d) If to Gatio Investments B.V..........................................................42
(e) If to Rakepoll Finance N.V...........................................................43
11.6 English Language..............................................................................43
11.7 Cooperation...................................................................................43
11.8 Interpretation................................................................................43
11.9 Delays or Omissions...........................................................................44
11.10 Counterparts..................................................................................44
11.11 Severability..................................................................................44
ARTICLE 12 DEFINITIONS..........................................................................................44
12.1 Terms Defined in This Agreement...............................................................44
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STOCK PURCHASE AGREEMENT
This
STOCK PURCHASE AGREEMENT dated as of July 24, 2001, including all
Exhibits and Schedules attached hereto, (the "Agreement") by and among
SICOR
Inc., a corporation organized under the laws of the state of Delaware
("Purchaser"), Bio-Rakepoll N.V., a corporation organized under the laws of The
Netherlands Antilles ("Seller"), Biotechna U.A.B., a corporation organized under
the laws of the Republic of Lithuania ("Biotechna"), Gatio Investments B.V., a
corporation organized under the laws of The Netherlands ("Gatio"), and Rakepoll
Finance N.V. a corporation organized under the laws of The Netherlands Antilles
("Rakepoll Finance").
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained herein, the parties hereto agree as follows:
ARTICLE 1
PURCHASE AND SALE OF STOCK OF
GATIO
1.1 PURCHASE AND SALE. Subject to the terms and conditions and upon
satisfaction of the conditions contained in this Agreement, on the Closing Date
(as such term is hereinafter defined), Seller shall sell to Purchaser, and
Purchaser shall purchase and acquire from Seller, all of the outstanding capital
stock and equity interests of Gatio free and clear of any charge, claim,
community property interest, condition, equitable interest, lien, option,
pledge, security interest, right of first refusal or any restriction of any
kind, including any restriction on use, voting, transfer, receipt of income or
exercise of any other attribute of ownership (each, an "Encumbrance") (the
"Transaction"). All of the outstanding shares of capital stock and equity
interests of Gatio shall hereinafter be referred to as the "Gatio Shares."
1.2 CLOSING. The closing of the Transaction (the "Closing") shall be
held at the offices of Pillsbury Winthrop LLP, 00 Xxxxxxx Xxxxxx, Xxx Xxxxxxxxx,
XX 00000, on or about July 24, 2001, or at such other time and place as
Purchaser and Seller may agree upon in writing (the "Closing Date"). At the
Closing, Seller shall deliver, do and execute any other actions and documents
necessary to deliver and transfer to Purchaser, all of the certificates and
other documents representing the Gatio Shares against payment of the Purchase
Price in accordance with Sections 1.3, 1.4 and 1.5 below.
1.3 PURCHASE PRICE. The purchase price (the "Purchase Price") for the
Gatio Shares shall be 1,500,000 shares of the Common Stock of Purchaser (such
shares hereinafter referred to as "SICOR Common Stock") and US$10,000.
1.4 PAYMENT OF PURCHASE PRICE.
(a) Subject to all the terms and conditions of this Agreement, at the
Closing Purchaser shall deliver, do and execute any other actions and documents
necessary to deliver and transfer to Seller, or such designee or designees that
Seller may designate, an aggregate amount
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equal to 90% of the Purchase Price by transferring to Seller, or to such
designee as Seller may designate, certificates representing an aggregate of
1,350,000 shares of SICOR Common Stock.
(b) At the Closing, Purchaser shall deposit the remaining 10% of the
Purchase Price by delivering to U.S. Bank (the "Escrow Agent") an aggregate of
150,000 shares of SICOR Common Stock (the "Escrow Shares"), such deposit to
constitute an escrow fund (the "Escrow Fund") to be governed by the terms set
forth herein and in the Escrow Agreement substantially in the form of Schedule
1.4(b) attached hereto (the "Escrow Agreement"). The remaining amount of 10% of
the Purchase Price shall be paid by the Escrow Agent to Seller in accordance
with Section 8.2 below and the Escrow Agreement.
1.5 PAYMENT OF SALES OR OTHER TAXES. Any sales taxes, transfer taxes,
duties, charges, withholding obligations and other governmental obligations that
may be payable as a result of the execution of this Agreement or the
consummation of the Transaction, shall be paid by Seller. Seller shall timely
file, and Purchaser shall cooperate to file all tax returns which may be
required in connection therewith and shall indemnify and hold Purchaser harmless
with respect thereto.
1.6 EFFECT OF TRANSACTION.
(a) DIRECTORS AND OFFICERS OF THE SUBSIDIARIES. (i) The directors of
Gatio immediately following the Closing shall be Xxxx van Baarle, Xxxxx Xxxxxx
van der Werff and Xxxx Xxxxxxxxxx; and (ii) the directors of Biotechna
immediately following the Closing shall be Vladas Xxxxxxxx Xxxxxxx, Xxxxxxxx
Xxxxxxxx, Xxxxxx Xxxxxx, Xxxxxxx Xxxxxx and Xxxxx Xxxxx and the Managing
Director shall be Vladas Xxxxxxxx Xxxxxxx.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF SELLER
Except as disclosed or excepted in that section of the schedule attached
hereto as Schedule 2 (the "Seller Disclosure Schedule") corresponding to a
particular representation and warranty, Seller hereby represents and warrants to
Purchaser as of the date hereof as follows:
2.1 ORGANIZATION, GOOD STANDING, QUALIFICATION AND CAPITALIZATION.
(a) Seller is a corporation duly organized, validly existing and in good
standing under the laws of The Netherlands Antilles, and is qualified to do
business as a foreign corporation and is in good standing under the laws of each
other jurisdiction in which the nature of its business requires such
qualification, and has all requisite power and authority to own, lease and
operate its properties and to carry on its business as now being conducted.
(b) Except for its wholly owned subsidiary, Biotechna, or as disclosed
on Schedule 2.1(b), Gatio does not presently own or control, nor does it have
any agreement or other arrangement to acquire, directly or indirectly, any
interest in any other corporation, association, partnership, joint venture or
other entity. Except as disclosed on Schedule 2.1(b), Biotechna neither owns nor
controls, nor does Biotechna have any agreement or other
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arrangement to acquire, directly or indirectly, any interest in any other
corporation, association, partnership, joint venture or other entity.
(c) Schedule 2.1(c) contains a complete and accurate list for each of
Gatio and Biotechna (collectively, the "Subsidiaries;" each a "Subsidiary") of
its name, its jurisdiction of incorporation and other jurisdictions in which it
is qualified to do business. Each Subsidiary is a corporation duly organized,
validly existing and in good standing under the laws of its jurisdiction of
incorporation, and is qualified to do business as a foreign corporation and is
in good standing under the laws of each state or other jurisdiction in which the
nature of its business requires such qualification. Each Subsidiary has full
power and authority to own, lease and use its properties and to carry on its
business as now being conducted and as proposed to be conducted. Seller has
delivered to Purchaser complete and correct copies of the charter and bylaws and
other organizational documents of each of the Subsidiaries and any amendment
thereto (the "Organizational Documents") and complete and correct copies of the
minutes of all meetings and other corporate actions of the directors and of the
equity owners and or stockholders of each of the Subsidiaries since their
respective inceptions.
(d) The authorized, issued and outstanding capital stock and/or equity
interests of each of the Subsidiaries and the owners thereof are as set forth on
Schedule 2.1(d) hereto. The Gatio Shares are duly authorized and validly issued,
fully paid and nonassessable, and are owned, and will be owned immediately prior
to the Closing, by Seller, free of Encumbrances. All of the outstanding shares
of capital stock and equity interests of Biotechna (the "Biotechna Shares") are
duly authorized and validly issued, fully paid and nonassessable, and are owned,
and will be owned immediately prior to and following the Closing, by Gatio, free
of Encumbrances. No preemptive rights or other rights to subscribe for or
purchase exist with respect to the Gatio Shares or the Biotechna Shares (the
"Acquired Company Securities"). No legend or other reference to any Encumbrance
appears upon any certificate representing any of the Acquired Company
Securities. The rights, preferences and privileges of the Gatio Shares and
Biotechna Shares are as set forth in the Organizational Documents of Gatio and
Biotechna, as the case may be, previously provided to Purchaser.
2.2 OBLIGATIONS WITH RESPECT TO CAPITAL STOCK. There are no outstanding
options, warrants, rights (including conversion or preemptive rights) or
agreements for the purchase or acquisition from a Subsidiary or Seller of any
shares of such Subsidiaries' capital stock and/or equity interests, or to which
a Seller or a Subsidiary is a party or by which Seller or a Subsidiary is bound
obligating such Seller or Subsidiary to issue or sell any shares of capital
stock and/or equity interests of such Subsidiary or securities convertible into
or exchangeable for capital stock and/or equity interests of such Subsidiary or
obligating such Seller or Subsidiary to grant, extend or enter into any such
option, warrant, call, right, commitment or agreement.
2.3 VALID ISSUANCE OF STOCK OF SUBSIDIARIES.
(a) All of the outstanding Biotechna Shares have been authorized, issued
and registered in compliance with the Company Law of the Republic of Lithuania
and other applicable laws and regulations of the Republic of Lithuania.
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(b) All of the outstanding Gatio Shares have been authorized, issued and
registered in compliance with Civil Code, Articles 2:175(1) and 2:194(1) and
other applicable laws and regulations of The Netherlands.
2.4 AUTHORITY; NO CONFLICTS.
(a) AUTHORITY. (i) All corporate action on the part of Seller and the
Subsidiaries, their respective officers, directors, holders of capital stock
and/or equity interests necessary for the authorization, execution and delivery
of this Agreement by Seller and the Subsidiaries, the performance of all
obligations of Seller and the Subsidiaries hereunder and the authorization, sale
and delivery of the Gatio Shares and Biotechna Shares has been taken; (ii) each
of the Seller and the Subsidiaries has the capacity and authority to enter into
this Agreement and to carry out and perform its respective obligations
hereunder; and (iii) this Agreement constitutes the, legal, valid and binding
obligations of Seller and the Subsidiaries, enforceable in accordance with its
terms. Neither the execution, delivery and performance of this Agreement, nor
the consummation of the transactions contemplated hereby will result in any
violation of, be in conflict with, or constitute a default or give rise to a
right of termination, cancellation or acceleration under any provision of (1)
the charter or bylaws of Seller and the Subsidiaries or resolution of the board
of directors of Seller and the Subsidiaries, (2) the Organizational Documents of
any Subsidiary or any resolution of the board of directors of any Subsidiary;
(3) any judgment, decree or order or any agreement, contract, understanding,
loan, note, indenture or other instrument to which Seller or any Subsidiary is a
party or by which it is bound; or (4) any statute, rule or governmental
regulation applicable to Seller or any Subsidiary.
(b) THIRD PARTIES CONSENTS. Seller has obtained, or has caused the
Subsidiaries to obtain, all the necessary consents, waivers and approvals
("Consents") of third parties that are required to be obtained by Seller or any
Subsidiary in connection with the execution and delivery of this Agreement by
Seller and the Subsidiaries and the performance of the obligations of Seller and
the Subsidiaries hereunder. Except as set forth on Schedule 2.4(b), neither
Seller nor any Subsidiary is or will be required to give notice to any third
party in connection with the execution and delivery of this Agreement by Seller
or the transactions contemplated thereby.
(c) GOVERNMENTAL ENTITIES APPROVALS. Seller and the Subsidiaries have
obtained all necessary consents, authorizations, approvals and orders, and shall
have made all registrations, qualifications, designations, declarations or
filings with any court, administrative agency or commission or other
governmental authority or instrumentality and the Subsidiaries (a "Governmental
Entity") required on the part of or with respect to Seller and the Subsidiaries
in connection with the consummation of the transactions contemplated by this
Agreement. Except as set forth on Schedule 2.4(c) hereto, no consent,
authorization, approval or order of, or registration, qualification,
designation, declaration or filing with, any Governmental Entity is required by
or with respect to Seller or the Subsidiaries in connection with the
consummation of the transaction contemplated by this Agreement.
2.5 FINANCIAL STATEMENTS; NO UNDISCLOSED LIABILITIES. Seller has
delivered to Purchaser audited financial statements (balance sheet, statements
of operations, cash flow and changes in stockholders' equity) of each Subsidiary
for each of the fiscal years from inception to December 31, 2000 (the "Financial
Statements"). The Financial Statements fairly represent the
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financial condition and results of operations, changes in stockholders' equity
and cash flow of the Subsidiaries, are complete and correct in all respects and
have been prepared in accordance with generally accepted accounting principles
consistently applied, except, in the case of unaudited financial statements, for
the omission of footnotes. Except as set forth in the Financial Statements, no
Subsidiary has any liabilities, contingent or otherwise, other than (a)
liabilities incurred in the ordinary course of business subsequent to the date
of the Financial Statements and (b) obligations under contracts and commitments
incurred in the ordinary course of business and not required under generally
accepted accounting principles to be reflected in the Financial Statements,
which, in both cases, individually or in the aggregate, are not material to the
financial condition or operating results of such Subsidiary. No Subsidiary is a
guarantor or indemnitor of any indebtedness of any third party.
2.6 INSURANCE. Each of the Subsidiaries has in full force and effect
fire and casualty insurance policies, with extended coverage, in sufficient
amounts (subject to reasonable deductibles) to allow it to replace any of its
properties that might be damaged or destroyed. Each of the Subsidiaries has
general liability and products liability insurance in adequate amounts and for
risks normally insured against by a person carrying on the same business and
operations as such Subsidiary. All such insurance policies are valid,
outstanding and enforceable, are issued by an insurer that is financially sound
and reputable and will continue in full force and effect following the
consummation of the transactions contemplated by this Agreement. No claims
(whether successful, unsuccessful or settled) have been filed under, against or
in respect of any insurance policy (other than employee life, medical and dental
insurance) during the past five (5) years, except as disclosed in Schedule 2.6.
To the knowledge of Seller, the insurers have no right to terminate or reduce
the coverage of any such policies before the end of the applicable policy
periods and each Subsidiary has complied with its obligations under such
policies. Seller has delivered to Purchaser true and complete copies of all
policies of insurance to which any Subsidiary is a party or under which any
Subsidiary, or any director of any Subsidiary, is or has been covered at any
time since inception and true and complete copies of any pending application
with respect to policies of insurance. Schedule 2.6 sets forth any
self-insurance arrangement of a Subsidiary, any contract or arrangement for the
transfer or sharing of any risk of a Subsidiary and all obligations of the
Subsidiaries to third parties with respect to insurance (with identification of
the policy under which such coverage is provided). Schedule 2.6 sets forth any
claims, in excess of US$25,000, made under a policy of insurance of a
Subsidiary, together with a description thereof.
2.7 ABSENCE OF CHANGES. Since December 31, 2000, except as set forth in
Schedule 2.7 attached hereto or the transfer of assets between the Subsidiaries,
each Subsidiary has carried on its business and its activities only in the
ordinary and usual course and:
(a) There have been no changes in the business or financial condition of
each Subsidiary which, in the aggregate, have had a material adverse effect on
the business, assets or financial condition of such Subsidiary (a "Material
Adverse Effect");
(b) No Subsidiary has issued, or authorized for issuance, or entered
into any commitment to issue, any equity security, bond, note or other security
of such Subsidiary;
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(c) No Subsidiary has incurred any additional debt for borrowed money,
or incurred any obligation or liability except in the ordinary and usual course
of business and in any event not in excess of US$25,000 for any single item or
US$100,000 in the aggregate;
(d) No Subsidiary has paid any obligation or liability, or discharged,
settled or satisfied any claim, lien or encumbrance, except for current
liabilities in the ordinary and usual course of business and in any event not in
excess of US$25,000 for any single item or US$100,000 in the aggregate;
(e) No Subsidiary has declared or made any dividend, payment or
other distribution on or with respect to any of its share of capital stock
and/or equity interest;
(f) No Subsidiary has purchased, redeemed or otherwise acquired or
committed itself to acquire, directly or indirectly, any share or shares of its
capital stock and/or equity interest;
(g) No Subsidiary has mortgaged, pledged, or otherwise encumbered any of
its assets or properties, except for liens for current taxes which are not yet
delinquent and purchase-money liens arising out of the purchase or sale of
services or products made in the ordinary and usual course of business and in
any event not in excess of US$25,000 for any single item or US$100,000 in the
aggregate;
(h) No Subsidiary has disposed of, or agreed to dispose of, by sale,
lease, license or otherwise, any other asset or property, tangible or
intangible, except, in the case of such other assets and property, in the
ordinary and usual course of business, and in each case for a consideration
believed to be at least equal to the fair value of such asset or property and in
any event not in excess of US$25,000 for any single item or US$100,000 in the
aggregate;
(i) No Subsidiary has purchased or agreed to purchase or otherwise
acquire any securities of any corporation, partnership, joint venture, firm or
other entity; no Subsidiary has made any expenditure or commitment for the
purchase, acquisition, construction or improvement of a capital asset, except in
the ordinary and usual course of business and in any event not in excess of
US$25,000 for any single item or US$100,000 in the aggregate;
(j) No Subsidiary has entered into any transaction or contract, or made
any commitment to do any of the foregoing;
(k) No Subsidiary has adopted or amended any bonus, incentive,
profit-sharing, stock option, stock purchase, pension, retirement,
deferred-compensation, severance, life insurance, medical or other benefit plan,
agreement, trust, fund or arrangement for the benefit of employees of any kind
whatsoever, nor entered into or amended any agreement relating to employment,
services as an independent contractor or consultant, or severance or termination
pay, nor agreed to do any of the foregoing;
(l) Except as contemplated hereby, no Subsidiary has effected or agreed
to effect any change in its directors, officers or key employees;
(m) No Subsidiary has effected or committed itself to effect any
amendment or modification in its bylaws or other charter documents;
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(n) No Subsidiary has incurred any damage, destruction or similar loss,
whether or not covered by insurance, adversely affecting the assets, properties,
financial condition, operating results, prospects or business of such Subsidiary
(as such business is presently conducted and as it is proposed to be conducted),
for an amount exceeding US$100,000;
(o) Other than in the ordinary course of business and consistent with
past practices, no Subsidiary has entered into, made any amendment or terminated
any lease, contract, license or other agreement to which such Subsidiary is a
party;
(p) No Subsidiary has effected any substantial change in its accounting
practices, procedures or methods;
(q) No Subsidiary has made any loan to, guaranteed any indebtedness
of or otherwise incurred any indebtedness on behalf of any person in excess of
US$25,000;
(r) No Subsidiary has failed to pay or otherwise discharge when due any
material liability thereof;
(s) No Subsidiary has (i) entered into any agreement, arrangement or
transaction with, or made any commitments or promises to, any of its directors,
officers, employees, stockholders or affiliates, or with any relative,
beneficiary, spouse or affiliate of such persons, (ii) granted or announced any
increase in the wages, salaries, compensation, bonuses, incentives, pension or
other benefits payable by it to any of its employees, including, without
limitation, any increase or change pursuant to any plan or (iii) established or
increased or promised to increase any benefits under any plan, in either case,
except whereas required by applicable law.
(t) No subsidiary has allowed any Permit that was issued or otherwise
relates to any asset or the business to lapse or terminate or failed to renew
any such Permit or any insurance policy that is scheduled to terminate or expire
within 45 calendar days of the Closing;
(u) No Subsidiary has terminated, discontinued, closed or disposed of
any plant, facility or other business operation, or laid off any employees
(other than layoffs of fewer than 10 employees in any six-month period in the
ordinary course of business consistent with past practice) or implemented any
early retirement, separation or program providing early retirement window
benefits or announced or planned or any such action or program for the future;
(v) No Subsidiary has disclosed any secret or confidential intellectual
property (except by way of issuance of a patent or in the ordinary course of
business pursuant to customary nondisclosure agreements) or permitted to lapse
or go abandoned any intellectual property (or any registration or grant thereof
or any application relating thereto) to or under which it has any material
right, title, interest or license.
2.8 PROPERTIES.
(a) Schedule 2.8 reflects all of the real and personal property owned,
used, leased or otherwise held by each Subsidiary in its business. Seller has
delivered to Purchaser a copy of the deeds or other instruments by which the
Subsidiaries acquired such real property or obtained a leasehold interest in
such real property and copies of all title insurance policies, opinions,
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abstracts, surveys, certificates of occupancy, environmental reports and audits,
appraisals, permits, other title documents and other documents in possession of
the Seller or its Subsidiaries and relating to or otherwise affecting its leased
or owned real property, the operations of the Seller or any of its Subsidiaries
thereon or any other uses thereof. Each Subsidiary owns (with good and
marketable title to, in the case of real property) all assets and properties
listed on Schedule 2.8 and other assets that such Subsidiaries purport to own,
including without limitation the assets and properties reflected in the balance
sheet dated December 31, 2000 of each Subsidiary, free and clear of any
imperfections of title or Encumbrance of any nature whatsoever, except for the
lien of current taxes not yet delinquent. All of the fixed assets and properties
reflected on Schedule 2.8 are, and will be as of the Closing, in good condition
and repair and are adequate for the requirements of the business as presently
conducted by each Subsidiary. None of such assets or properties is in need of
maintenance or repairs that are material in nature or cost.
(b) Except as described in Schedule 2.8(b), there is no material
violation of any law (including, without limitation, any building, planning or
zoning law) relating to any of its leased or owned real property. Either the
Seller or a Subsidiary, as the case may be, is in peaceful and undisturbed
possession of each parcel of leased or owned real property and there are no
contractual or legal restrictions that preclude or restrict the ability to use
the premises for the purposes for which they are currently being used. All
existing water, sewer, steam, gas, electricity, telephone and other utilities
required for the construction, use, occupancy, operation and maintenance of its
leased or owned real property are adequate for the conduct of the Business as it
has been and currently is conducted. There are no material latent defects or
material adverse physical conditions affecting the Seller or any of its
Subsidiary's leased or owned real property or any of the facilities, buildings,
structures, erections, improvements, fixtures, fixed assets and personalty of a
permanent nature annexed, affixed or attached to, located on or forming part of
its leased or owned real property. Except as set forth in Schedule 2.8(b),
neither the Seller nor any of its Subsidiaries has leased or subleased any
parcel or any portion of any parcel of its leased or owned real property to any
other person, nor has the Seller or any of its Subsidiaries assigned its
interest under any lease or sublease listed in Schedule 2.8(a) to any third
party.
(c) With respect to each lease and sublease delivered to Purchaser
pursuant to Schedule 2.8(a):
(i) such lease or sublease, together with all ancillary documents
delivered pursuant to Schedule 2.8(a) is legal, valid, binding and
enforceable on the Seller or its Subsidiary, as applicable, and on the
other party thereto and in full force and effect and represents the entire
agreement between the respective landlord and tenant with respect to such
property;
(ii) except as otherwise set forth in Schedule 2.8(c)(ii), such
lease or sublease will not cease to be legal, valid, binding and
enforceable and in full force and effect on terms identical to those
currently in effect as a result of the consummation of the transactions
contemplated by this Agreement, nor will the consummation of the
transactions contemplated by this Agreement constitute a breach or default
under such
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lease or sublease or otherwise give the landlord a right to terminate
such lease or sublease;
(iii) except as set forth in Schedule 2.8(c)(iii) with respect to
each such lease or sublease (A) neither the Seller nor any of its
Subsidiaries has received any notice of termination or cancellation under
such lease or sublease and no lessor has any right of termination or
cancellation under such lease or sublease except in connection with the
default of the Seller or any of its Subsidiaries thereunder, (B) neither
the Seller nor any of its Subsidiaries has received any notice of a breach
or default under such lease or sublease, which breach or default has not
been cured, and (C) neither the Seller nor any of its Subsidiaries has
granted to any other person any rights, adverse or otherwise, under such
lease or sublease; and
(iv) none of the Seller, any of its Subsidiaries nor any other party
to such lease or sublease, is in breach or default in any material
respect, and no event has occurred that, with notice or lapse of time
would constitute such a breach or default or permit termination,
modification or acceleration under such lease or sublease.
(d) There are no condemnation proceedings or eminent domain proceedings
of any kind pending or threatened in writing against the Seller or its
Subsidiaries' leased or owned real property.
(e) All of the Seller or its Subsidiaries', as applicable, leased or
owned real properties are occupied under a valid and current certificate of
occupancy or similar permit, the transactions contemplated by this Agreement
will not require the issuance of any new or amended certificate of occupancy and
there are no facts that could reasonably be expected to prevent its leased or
owned real property from being occupied by the Seller or any of its
Subsidiaries, as the case may be, after the Closing Date in the same manner as
occupied by the Seller or such Subsidiary immediately prior to the Closing Date.
(f) No improvements on the Seller or its Subsidiaries' leased or owned
real property and none of the current uses and conditions thereof violate any
applicable deed restrictions or other applicable covenants, restrictions,
agreements, existing site plan approvals, zoning or subdivision regulations or
urban redevelopment plans as modified by any duly issued variances, and no
permits, licenses or certificates pertaining to the ownership or operation of
all improvements on its leased or owned real property, other than those which
are transferable with its leased or owned real property, are required by any
governmental authority having jurisdiction over its leased or owned real
property.
(g) Except as otherwise set forth in Schedule 2.8(g), there have been no
improvements of a value in excess of US$25,000 in the aggregate made to or
construction on any of the Seller or its Subsidiaries' leased or owned real
property within the applicable period for the filing of mechanics' liens.
(h) The rental set forth in each lease or sublease of the Seller or its
Subsidiaries' leased or owned real property is the actual rental being paid, and
there are no separate agreements or understandings with respect to the same.
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(i) Either the Seller or a Subsidiary, as the case may be, has the full
right to exercise any renewal options contained in the leases and subleases
pertaining to its leased real property on the terms and conditions contained
therein and upon due exercise would be entitled to enjoy the use of its leased
real property for the full term of such renewal options.
(j) Except as set forth on Schedule 2.8, no Subsidiary has any real
property under option to purchase. Each Subsidiary has satisfied all monetary
obligations to any party from which it leases or rents space to conduct its
operations.
(k) No substantial alterations are being made or are planned in any
premises of any Subsidiary set forth on Schedule 2.8 hereto. Each Subsidiary has
legal and valid occupancy permits and other required licenses or governmental
approvals for each of the properties and premises owned, leased, used or
otherwise held by such Subsidiary and listed on Schedule 2.8 hereto.
(l) No improvement, fixture or equipment of any Subsidiary in or on any
premises or properties owned, leased, used or otherwise held by such Subsidiary
and listed on Schedule 2.8 hereto, nor the occupation or leasehold with respect
thereto, is in violation of any applicable law, including, without limitation,
any zoning, building, safety, health or environmental law, and each of such
premises and properties is zoned for the purposes for which it is presently used
by such Subsidiary.
2.9 TAXES. Each Subsidiary has duly filed with the appropriate
governmental agencies of its jurisdiction of organization and all other
applicable jurisdictions all tax returns and reports required to be filed
(subject to permitted extensions applicable to such filings), and has paid or
accrued in full all taxes, duties, charges, withholding obligations and other
governmental liabilities as well as any interest, penalties, assessments or
deficiencies, if any, due to, or claimed to be due by, any governmental
authority (including taxes on properties, income, franchises, licenses, sales
and payrolls). (All such items are collectively referred to herein as "Taxes").
Seller has delivered to Purchaser copies of all such tax returns and reports
filed since inception. The Financial Statements reflect adequate provision for
all current and deferred Taxes. No Subsidiary is a party to any pending action
or proceeding, nor has any such action or proceeding been threatened in writing,
by any governmental authority for the assessment or collection of Taxes. No
liability for Taxes has been incurred other than in the ordinary course of
business. There are no liens for Taxes except for liens for property taxes not
yet delinquent. No Subsidiary is a party to any Tax sharing, Tax allocation, Tax
indemnity or statute of limitations extension or waiver agreement and, except as
to Seller, has ever been included on any consolidated combined or unitary Tax
return with any other entity, in each case under United States Tax law or under
any analogous provision under non-United States Tax law. Neither the execution
or delivery of this Agreement nor the transactions contemplated hereby will
cause Purchaser or any Subsidiary to become subject to, or to become liable for
the payment of, any Tax or cause any of the assets of any Subsidiary to be
reassessed or revalued by any taxing authority or governmental agency. All Taxes
that a Subsidiary is or was required by any legal requirements to withhold or
collect have been duly withheld or collected and, to the extent required, have
been paid to the proper governmental authority or other person. No Subsidiary is
liable for the Taxes of any other person.
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2.10 EMPLOYEES. Schedule 2.10 contains a true and correct list setting
forth all employees and consultants of each Subsidiary as of the date hereof,
together with their titles or positions, approximate dates of hire, regular work
location, current compensation, accrued vacation and service credited for any
vesting for any Employee Plans (as defined below). Except as set forth on such
schedule, no Subsidiary has any employment contract with any officer or employee
or any other consultant or person which is not terminable by it at will without
liability (with the exception of a notice period not exceeding 6 months), except
as the right of Biotechna to terminate its respective employees at will may be
limited by applicable law of the Republic of Lithuania. Except as set forth on
Schedule 2.10 hereto, no Subsidiary is a party to any representation or labor
contract, and no labor union represents any of the employees of a Subsidiary.
Other than as set forth on Schedule 2.10, no Subsidiary has deferred
compensation, pension, health, profit sharing, bonus, stock purchase, stock
option, hospitalization, insurance, severance or any other employee pension
benefit or welfare benefit plan (the "Employee Plans") or obligation covering
any of its officers or employees nor has any authorized officer of such
Subsidiary made any oral representations to employees with respect to the
foregoing. All Employee Plans of the Subsidiaries were formed and have been
maintained in compliance with applicable laws and have been funded to the extent
required by applicable law. All required contributions by each of the
Subsidiaries to any social welfare plan or other government plan for the benefit
of the Subsidiary's employees have been paid and are not in arrears. Each
Subsidiary has complied with all applicable equal employment opportunity and
other applicable laws related to employment. Except as set forth on Schedule
2.10 hereto, there are no disputes, actions, suits, claims, litigations or
proceedings pending or threatened in writing by, against or affecting any
Subsidiary, at law or in equity, in arbitration or mediation or before any court
or any governmental authority with respect to any Employee Plans or with respect
to any employees or former employees of any Subsidiary; no such action,
proceeding or investigation has been pending since inception and Seller is not
aware after due inquiry that there is any reasonable basis for any such action,
proceeding or investigation. Schedule 2.10 sets forth the following information
for any retired employees or directors of each Subsidiary or any dependant,
receiving benefits or scheduled to receive benefits in the future: name, pension
benefit, pension option election, retiree medical and life insurance and other
benefits.
2.11 COMPLIANCE WITH LAW. Schedule 2.11 sets forth all licenses,
franchises, permits, clearances, consents, certificates and other evidences of
authority of each Subsidiary which are necessary to the conduct of the business
of each such Subsidiary as now being conducted and proposed to be conducted
("Permits"). All such Permits are in full force and effect, and each Subsidiary
has been at all times and will be as of the Closing in full compliance with the
terms and requirements of any Permit. The business of each Subsidiary has been
conducted in accordance with all applicable laws, regulations, orders and other
requirements of governmental authorities, including, without limiting the
generality of the foregoing, all laws, regulations and orders relating to
employment practices and procedures and the health and safety of employees. No
Subsidiary has received any notice or other communication (whether oral or
written) from any governmental body or agency or any other person regarding any
actual, alleged, possible or potential violation of, or failure to comply with,
any legal requirement or any actual, alleged, possible or potential obligation
on the part of any Subsidiary to undertake, or to bear all of any portion of the
cost of, any remedial action of any nature. No event has occurred or
circumstance exists that may constitute or result, directly or indirectly, in a
violation of or a failure to comply
- 11 -
with any term or requirement of any Permit or result in the revocation,
withdrawal, suspension, cancellation or termination of, or any modification to,
any Permit.
2.12 LITIGATION. Except as provided for in Schedule 2.12, there is no
action, suit, proceeding or investigation pending or threatened in writing
against Seller or any Subsidiary which questions the validity of this Agreement,
or the right of Seller to enter into this Agreement or to consummate the
transactions contemplated hereby, or which might result, either individually or
in the aggregate, in any Material Adverse Effect including, but not limited to
claims by current or former stockholders or current or former employees of Biofa
AB. The foregoing includes without limitation actions, suits, proceedings or
investigations pending or threatened in writing involving the prior employment
of any of a Subsidiary's employees, their use in connection with such
Subsidiary's business of any information or techniques allegedly proprietary to
any of their former employers, or their obligations under any agreements with
prior employers. Neither the Subsidiaries nor, with respect to the Agreement and
the transactions contemplated thereby, Seller is a party or subject to the
provisions of any order, writ, injunction, judgment or decree of any court or
government agency or instrumentality. There is no action, suit, proceeding or
investigation by a Subsidiary currently pending or which a Subsidiary intends to
initiate.
2.13 CONTRACTS. Schedule 2.13 contains a complete list of each executory
contract and agreement (including, without limitation, oral and informal
arrangements to the extent the same are material to the business of the Seller
or any of its Subsidiaries) in the following categories to which a Subsidiary is
a party, or by which it is bound in any respect: (a) agreements for the
purchase, sale, lease or other disposition of equipment, goods, materials,
research and development, supplies, studies or capital assets, or for
manufacturing or the performance of services; (b) contracts or agreements for
the joint performance of work or services, and all other joint venture and
collaboration agreements; (c) management or employment contracts, consulting
contracts, termination and severance agreements; (d) notes, mortgages, deeds of
trust, loan agreements, security agreement, guarantees, debentures, indentures,
credit agreements and other evidences of indebtedness; (e) pension, retirement,
profit-sharing, deferred compensation, bonus, incentive, life insurance,
hospitalization or other employee benefit plans or arrangements (including,
without limitation, any contracts or agreements with trustees, insurance
companies or others relating to any such employee benefit plan or arrangement);
(f) stock option, stock purchase, warrant, repurchase or other contracts or
agreements relating to any share of capital stock and/or equity interests of
such Subsidiary; (g) contracts or agreements with agents, brokers, consignees,
sale representatives or distributors; (h) contracts or agreements with any
director, officer, employee, consultant or stockholder; (i) powers of attorney
or similar authorizations granted by such Subsidiary to third parties; (j)
royalty agreements and other contracts or agreements to which such Subsidiary is
a party, or otherwise subject, relating to technical assistance or to
Proprietary Rights (as defined in Section 2.16 below); (k) government loans; (l)
written warranties, guaranties or other similar undertaking with respect to the
contractual performance extended by a Subsidiary, (m) contracts or agreements
containing any covenants that in any way purport to restrict the business
activity of a Subsidiary or limit the freedom of a Subsidiary to engage in any
line of business or to compete with any person, (n) contracts or agreements
containing an express undertaking by a Subsidiary to be responsible for
consequential damages, (o) contracts or agreements which provide for payment to
or by a Subsidiary in excess of US$25,000 and (p) other contracts which are
material to such Subsidiary.
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Each Subsidiary has provided Purchaser with a true, correct and complete copy of
each contract listed on Schedule 2.13.
Except as set forth on Schedule 2.13 hereto (i) there are no agreements,
understandings or proposed transactions between a Subsidiary and any of its
officers, directors, affiliates or any affiliate thereof; (ii) no Subsidiary nor
any of its officers has entered into any contract or agreement containing
covenants limiting the right of such Subsidiary to compete in any business or
with any person. As used in this Agreement, the terms "contract" and "agreement"
include every contract, agreement, commitment, understanding and promise,
whether written or oral.
2.14 NO DEFAULT.
(a) Each of the contracts, agreements or other instruments referred to
in Section 2.13 of this Agreement with respect to a Subsidiary is a legal,
binding and enforceable obligation by or against such Subsidiary, subject to the
effect of applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the rights of creditors and the effect or availability of
rules of law governing specific performance, injunctive relief or other
equitable remedies. No party with whom a Subsidiary has an agreement or contract
is in default thereunder or, to the knowledge of Seller after due inquiry, has
breached any terms or provisions thereof which is material to the conduct of
such Subsidiary's business.
(b) Each Subsidiary has performed, or is now performing, the obligations
of, and such Subsidiary is not in default (or would by the lapse of time and/or
the giving of notice be in default) in respect of, any contract, agreement or
commitment binding upon it or its assets or properties. No third party has
notified a Subsidiary of any claim, dispute or controversy with respect to any
of the executory contracts of such Subsidiary, nor has a Subsidiary received
notice or warning of alleged nonperformance, delay in delivery or other
noncompliance by such Subsidiary with respect to its obligations under any of
those contracts, nor is Seller aware after due inquiry of any facts which exist
indicating that any of the other parties to those contracts intend to totally or
partially terminate or suspend their performance thereunder.
(c) There are no renegotiations of, attempts to renegotiate, or
outstanding rights to renegotiate any material amounts paid or payable to any
Subsidiary or with respect to any material performance of, or by a third party
to, a Subsidiary under current or completed contracts or agreements with any
third party. No third party has made written demand for such renegotiation.
2.15 COMPLIANCE WITH OTHER INSTRUMENTS. No Subsidiary is in violation or
default of any provisions of its Organizational Documents or of any instrument,
judgment, order, writ, decree or contract to which it is a party or by which it
is bound or, after diligent inquiry, to the best of Seller's knowledge, of any
provision of any statute, rule or regulation under the laws of its jurisdiction
of organization, or other jurisdiction applicable to such Subsidiary. The
execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated hereby and thereby will not result in any such
violation or be in conflict with or constitute, with or without the passage of
time and giving of notice, either a default under any such provision,
instrument, judgment, order, writ, decree or contract or an event which results
in the creation of any Encumbrance upon any assets of a Subsidiary or the
- 13 -
suspension, revocation, impairment, forfeiture or nonrenewal of any permit,
license, authorization or approval applicable to such Subsidiary, its business
or operations or any of its assets or properties.
2.16 PROPRIETARY RIGHTS.
(a) Except for changes which may result from the transfer of assets
between the Subsidiaries, Schedule 2.16 contains a complete list of all patents
and applications for patents, trademarks, trade secrets, trade names, service
marks, and copyrights, and applications therefor, owned or used by the
Subsidiaries or in which it has any rights or licenses, which Schedule 2.16
specifies, as applicable: (i) the title of the patent, trademark, trade name,
service xxxx, copyright or application therefor; (ii) the jurisdiction by or in
which such patent, trademark, trade name, service xxxx or copyright has been
issued or registered or in which an application has been filed, including the
registration or application numbers; and (iii) all licenses, sublicenses and
similar agreements to which a Subsidiary is a party. Seller and each of the
Subsidiaries have provided Purchaser with copies of all agreements with each
officer, employee or consultant of such Subsidiary providing such Subsidiary
with title and ownership to patents, patent applications, trade secrets,
inventions and inventions developed or used by such Subsidiary in its business.
All of such agreements are valid, enforceable and legally binding, subject to
the effect or availability of rules of law governing specific performance,
injunctive relief or other equitable remedies (regardless of whether any such
remedy is considered in a proceeding at law or in equity).
(b) Each Subsidiary owns or possesses or has the right to obtain valid
licenses or other rights to use all patents, patent applications, trademarks,
trademark applications, trade secrets, service marks, trade names, copyrights,
inventions, drawings, designs, proprietary know-how or information, or other
rights with respect thereto (collectively referred to as "Proprietary Rights"),
necessary to the business of such Subsidiary as now conducted and as proposed to
be conducted.
(c) The operations of each Subsidiary do not conflict with or infringe,
and no one has asserted to Seller or a Subsidiary that such operations conflict
with or infringe, any Proprietary Rights, owned, possessed or used by any third
party. There are no claims, disputes, actions, proceedings, suits or appeals
pending against a Subsidiary with respect to any Proprietary Rights, and none
has been threatened in writing against such Subsidiary.
(d) To the knowledge of Seller after due inquiry, there are no facts or
alleged facts which would reasonably serve as a basis for any claim that a
Subsidiary does not have the right to use and to transfer the right or use, free
of any rights or claims of others, all Proprietary Rights in the development,
manufacture, use, sale or other disposition of any or all products or services
presently being used, furnished or sold in the conduct of the business of such
Subsidiary as it has been and is now being conducted. The Proprietary Rights
including are free of any unresolved ownership disputes of which Seller or any
Subsidiary has been made aware with respect to any third party and, to the
knowledge of Seller after due inquiry, there is no unauthorized use,
infringement or misappropriation of any of such Proprietary Rights by any third
party, including any employee or former employee of such Subsidiary.
- 14 -
(e) Seller and each Subsidiary have delivered to Purchaser a list of any
proceedings before any patent or trademark authority to which such Subsidiary is
a party, a description of the subject matter of each proceeding, and the current
status of each proceeding, including, without limitation, interferences,
priority contests, oppositions, and protests, which list includes any pending
applications for reissue or reexamination of a patent.
(f) Seller and each Subsidiary has taken all the customary measures,
taking into consideration the circumstances, to maintain the confidentiality of
the Proprietary Rights necessary to the conduct of its business the value of
which to such Subsidiary is contingent upon maintenance of the confidentiality
thereof.
(g) To the knowledge of Seller after due inquiry, no employee of such
Subsidiary is in violation of any term of any employment contract, proprietary
information and inventions agreement, non-competition agreement, or any other
contract or agreement relating to the relationship of any such employee with
such Subsidiary or, to the knowledge of Seller after due inquiry, any previous
employer.
2.17 BANK ACCOUNTS AND SPECIAL DEPOSITS. Schedule 2.17 sets forth a true
and correct list setting forth the names and addresses of all banks, other
institutions and governmental departments at which the Subsidiaries have
accounts, deposits or safety deposit boxes, or special deposits required to be
held by such governmental departments with the nature of such account and the
names of all persons authorized to draw on or give instructions with respect to
such accounts or deposits, or to have access thereto, and the names and
addresses of all persons, if any, holding a power-of-attorney on behalf of such
Subsidiary. All cash in such accounts is held in demand deposits and is not
subject to any restriction or limitation as to withdrawal other than in the
ordinary course of business.
2.18 BROKERS OR FINDERS. Neither Seller nor any Subsidiary has dealt
with any broker or finder in connection with the transactions contemplated by
this Agreement. Neither Seller nor any Subsidiary has incurred, nor shall any
one of them incur, directly or indirectly, any liability for any brokerage or
finders' fees or agents' commissions or any similar charges in connection with
this Agreement or any transaction contemplated hereby.
2.19 RELATED PARTIES. Other than as set forth on Schedule 2.19 hereto, no
employee, officer, director or holder of capital stock and/or equity interest of
any Subsidiary, or any affiliate of any such person, has, either directly or
indirectly, (a) an interest in any corporation, partnership, firm or other
person or entity which furnishes or sells services or products which are similar
to those furnished or sold by such Subsidiary, any other Subsidiary or in any
corporation or other entity competitive with such Subsidiary or any other
Subsidiary; (b) except for employment or consulting or similar agreements, a
beneficial interest in any contract or agreement to which a Subsidiary is a
party or by which such Subsidiary may be bound; or (c) is indebted to a
Subsidiary, nor is a Subsidiary indebted (or committed to make loans or extend
or guarantee credit) to any of them except in the ordinary course of business.
The terms and conditions of each agreement, indebtedness or other arrangement
between a Subsidiary and any employee, officer, director or holder of capital
stock and/or equity interest of such Subsidiary or any other Subsidiary set
forth on Schedule 2.19 are arms-length terms and conditions.
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2.20 BOOKS AND RECORDS. All books of account, minute books, stock record
books and other records relating to the business of each Subsidiary are
complete, true and correct and have been maintained in accordance with sound
business practices. At the Closing, all of those books and records of a
Subsidiary will be in the possession of such Subsidiary.
2.21 ENVIRONMENTAL. Except as set forth on Schedule 2.21 hereto:
(i) Each Subsidiary is, and at all times since inception has been,
in compliance with all applicable environmental laws or regulations and
orders of any governments or governmental authorities, and with all
permits, certificates, approvals, licenses and other authorizations
relating thereto. The term "environmental laws or regulations" means those
statutes and regulations governing: (1) air emissions, (2) liquid
discharges to streams, ponds, ditches or other surface waters, (3) liquid
discharges to ground waters, (4) liquid discharges to publicly-owned
treatment works, (5) disposal of solid and/or hazardous wastes, (6)
marking, maintenance and/or removal of electrical equipment containing
PCBs, (7) manufacture and/or construction (including renovation) involving
asbestos materials, (8) activities in or adjacent to fresh water wetlands,
flood hazard areas, coastal zone management areas and/or historic
preservation areas, (9) registration, operation, testing and/or removal or
replacement of storage tanks for petroleum products and/or hazardous
substances, and (10) emergency, planning and community right-to-know laws,
including submission of hazardous substance inventory information to any
authorities under any applicable jurisdictions.
(ii) No Subsidiary has caused, nor is it causing, any disposals,
releases, or threatened releases of any Hazardous Materials (as defined
below) on or under any properties which such Subsidiary (A) owns, leases,
occupies or operates or (B) previously owned, leased, occupied or
operated; and no such disposals or releases occurred before such
Subsidiary took title to, or possession or operation of, any such
properties, or that any such disposals or releases are migrating or have
migrated off of such properties in subsurface soils, groundwater or
surface waters.
(iii) No Subsidiary has either (A) arranged for the disposal or
treatment of Hazardous Material at any facility or site owned or operated
by another person from which facility or site there has been a release or
there is a release or threatened release of a Hazardous Material, or (B)
accepted any Hazardous Material for transport to disposal or treatment
facilities or other sites selected by such Subsidiary, from which
facilities or sites there has been a release or there is a release or
threatened release of a Hazardous Material; any facility or site to which
such Subsidiary arranged for the disposal or treatment of Hazardous
Material under (A) above was duly licensed in accordance with applicable
laws and has not been listed in connection with any listing of sites under
any applicable law.
(iv) No Subsidiary has installed, used, buried or removed any
surface impoundment or underground tank or vessel or sump, drain or
pipeline which holds or held Hazardous Materials on properties owned,
leased, occupied or operated by such Subsidiary.
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(v) There has been no claim, and there are no pending or
threatened claims, including without limitation any litigation,
administrative proceedings or investigations or any other actions, claims,
demands, notices of potential responsibility or requests for information
brought or threatened, against any Subsidiary alleging the presence,
disposal, release or threatened release of any Hazardous Material on, from
or under any of the properties referenced in (ii) above or otherwise
relating to potential environmental liabilities, or any settlement reached
by such Subsidiary relating to any of the foregoing.
(vi) From the date hereof through and including the Closing Date,
Seller shall cause each Subsidiary to immediately provide Purchaser with a
copy of any notice, citation or complaint alleging that such Subsidiary is
not in compliance with any environmental laws or regulations.
As used in this Agreement, "Hazardous Material" means any material,
substance, waste or component thereof (whether a liquid, solid, or gas) that is
prohibited, controlled, or regulated by any governmental entity having
jurisdiction as a contaminant, pollutant, dangerous substance, toxic substance,
hazardous waste, hazardous substance, hazardous material, dangerous good or
petroleum, its derivatives, by-products or other hydrocarbons, pursuant to any
applicable environmental or health and safety law, rule, or regulation.
2.22 VOTING ARRANGEMENTS. There are no outstanding stockholder
agreements, voting trusts, proxies or other arrangements or understandings among
the holders of capital stock and/or equity interests of any Subsidiary relating
to the voting of their respective shares and/or interests.
2.23 FULL DISCLOSURE. Seller or its Subsidiaries has provided Purchaser
with all the information reasonably available to Seller and the Subsidiaries
that Purchaser has requested in connection with its due diligence activity on
each of the Subsidiaries and for deciding whether to consummate the Transaction
and all information that Seller, or its Subsidiaries, believes is necessary to
enable Purchaser to make such decision. Neither the Seller, nor its
Subsidiaries, are aware of any facts which pertain specifically to the Seller or
its Subsidiaries which could reasonably be expected to have a Material Adverse
Effect on the Seller or any of its Subsidiaries. No warranty or representation
or other statement of Seller contained in this Agreement or in any Schedule or
exhibit attached hereto, or in any other certificate, document, or instrument
furnished by Seller or a Subsidiary either pursuant to the terms of this
Agreement or in connection with the transactions contemplated hereunder,
contains or will contain any untrue statement of a material fact or omits or
will omit to state a material fact necessary to make the statement contained
therein or herein not misleading either individually or as a whole. Purchaser
acknowledges and confirms that it has, to the best of its knowledge, received
all written documents, books, certificates, agreements, or instruments
whatsoever it has requested and has, to the best of its knowledge, had access to
all documentation and information it considers appropriate and/or necessary for
the purpose of conducting an accurate and complete due diligence investigation
on Seller and each of the Subsidiaries (referred to as "Due Diligence").
2.24 CERTAIN PAYMENTS. Since inception, no Subsidiary or director,
officer, agent or employee of any Subsidiary, or any other person associated
with or acting on behalf of a Subsidiary, has directly or indirectly (a) made
any contribution, gift, bribe, rebate, payoff, influence payment, kickback or
other payment to a third party, private or public, regardless of
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form, whether in money, property or services, (i) to obtain favorable treatment
in securing business, (ii) to pay for favorable treatment of business secured,
(iii) to obtain special concessions or for special concessions already obtained,
for or in respect of any Subsidiary, or (iv) in violation or any legal
requirement, including but not limited to any provision of the Foreign Corrupt
Practices Act of 1977, as amended, (b) established or maintained a fund or asset
that has not been recorded in the books and records of a Subsidiary.
2.25 TITLE. Seller is the sole owner of the Gatio Shares listed opposite
Seller's name on Schedule 2.1(c) hereto. Gatio is the sole owner of the
Biotechna Shares listed on Schedule 2.1(c) hereto. The sale and delivery of
Gatio Shares to Purchaser pursuant to this Agreement will vest in Purchaser
legal and valid title to the Gatio Shares, free and clear of all Encumbrances of
any character whatsoever, other than Encumbrances created by Purchaser and
restrictions on transfer under applicable securities laws. Seller agrees to take
any and all action necessary to perfect the Transaction, including the
endorsement of share certificates, obtaining of waivers to rights of first
refusal, obtaining any necessary consents or approvals, and causing the transfer
of Gatio Shares to Purchaser to be recorded in the appropriate registry of such
corporation.
ARTICLE 3
FURTHER REPRESENTATIONS AND WARRANTIES OF SELLER
Seller further represents and warrants to Purchaser that:
3.1 PURCHASE ENTIRELY FOR OWN ACCOUNT. The SICOR Common Stock to be
received by Seller in accordance with the Transaction will be acquired for
investment for Seller's own account, not as a nominee or agent, and not with a
view to the resale or distribution of any part thereof, and Seller has no
present intention of selling, granting any participation in, or otherwise
distributing the same. By executing this Agreement, Seller further represents
that Seller does not have any contract, undertaking, agreement or arrangement
with any person to sell, transfer or grant participations to such person or to
any third person, with respect to any of the shares of SICOR Common Stock.
3.2 DISCLOSURE OF INFORMATION. Seller believes it has received all the
information it considers necessary or appropriate for deciding whether to
acquire the SICOR Common Stock. Seller further represents that it has had an
opportunity to ask questions and receive answers from Purchaser regarding its
business and the terms and conditions of the offering of the SICOR Common Stock
in connection with the Transaction.
3.3 INVESTMENT EXPERIENCE. Seller is an investor in securities of
companies in the developmental stage and acknowledges that it is able to fend
for itself, can bear the economic risk of its investment, and has such knowledge
and experience in financial or business matters that it is capable of evaluating
the merits and risks of the investment in the SICOR Common Stock.
3.4 FOREIGN INVESTOR. Seller is not a "U.S. person" as that term is
defined in Rule 902(o) of Regulation S promulgated by the United States
Securities and Exchange Commission ("SEC") under the Securities Act; (i) at the
time of execution of this Agreement,
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Seller was outside the United States and no offer to purchase the Company Shares
was made in the United States; (ii) Seller agrees that all offers and sales of
the Company Shares prior to the expiration of a period commencing on the Closing
and ending one year thereafter (the "Distribution Compliance Period") shall not
be made to U.S. persons or for the account or benefit of U.S. persons and shall
otherwise be made in compliance with the provisions of Regulation S; (iii)
Seller is not a distributor or dealer; (iv) the transactions contemplated hereby
(A) have not been and will not be pre-arranged by Seller with a purchaser
located in the United States or a purchaser which is a U.S. Person, and (B) are
not and will not be part of a plan or scheme by Seller to evade the registration
provisions of the Securities Act; (v) Seller shall take all reasonable steps to
ensure its compliance with Regulation S and shall promptly send to each
purchaser (A) who acts as a distributor, underwriter, dealer or other person
participating pursuant to a contractual arrangement in the distribution of the
SICOR Common Stock or receiving a selling concession, fee or other remuneration
in respect of any of the SICOR Common Stock, or (B) who purchases prior to the
expiration of the Distribution Compliance Period, a confirmation or other notice
to the purchaser stating that the purchaser is subject to the same restrictions
on offers and sales as Seller pursuant to Section 903(c)(2)(iv) of Regulation S;
and (vi) none of Seller or persons acting on his or her behalf have conducted
and shall not conduct any "directed selling efforts" as that term is defined in
Rule 902(b) of Regulation S; nor has Seller or persons acting on his or her
behalf conducted any general solicitation to the offer and sale of any of the
SICOR Common Stock in the United States or elsewhere. Seller agrees not to sell,
hypothecate, pledge or otherwise dispose of any interest in the SICOR Common
Stock to be acquired hereunder in the United States, its territories,
possessions or any area subject to its jurisdiction, or to any person who is a
national thereof or resident therein (including any estate of such person), or
any corporation, partnership or other entity created or organized therein,
unless such securities have been either registered under the Securities Act of
1933, as amended (the "Securities Act"), or are exempt from the registration
requirements of the Securities Act, in the opinion of counsel satisfactory to
Purchaser, and Seller has complied with any restrictions on transfer contained
in the Agreement.
3.5 RESTRICTED SECURITIES. Seller understands that the shares of SICOR
Common Stock it is acquiring are characterized as "restricted securities" under
the federal securities laws of the United States inasmuch as they are being
acquired from Purchaser in a transaction exempt from registration under the
Securities Act pursuant to Section 4(2) thereof and/or Regulation S promulgated
thereunder and that under such laws and applicable regulations such securities
may be resold without registration under the Securities Act only in certain
limited circumstances. In this connection Seller represents that it is familiar
with Rule 144 as promulgated under the Securities Act, as presently in effect,
and understands the resale limitations imposed thereby and by the Securities
Act. Seller realizes that the basis for the exemption may not be present if,
notwithstanding such representations, Seller has in mind merely acquiring the
SICOR Common Stock for a fixed or determinable period in the future, or for a
market rise, or for sale if the market does not rise. Seller has no such
intention.
3.6 FURTHER LIMITATIONS ON DISPOSITION. Without in any way limiting the
representations set forth above, Seller further agrees not to make any
disposition of all or any portion of the SICOR Common Stock unless and until:
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(a) There is then in effect a registration statement under the
Securities Act covering such proposed disposition and such disposition is made
in accordance with such registration statement; or
(b) Seller shall have notified Purchaser of the proposed disposition and
shall have furnished Purchaser with a detailed statement of the circumstances
surrounding the proposed disposition and (ii) if reasonably requested by
Purchaser, Seller shall have furnished Purchaser with an opinion of counsel,
reasonably satisfactory to Purchaser or its counsel, that such disposition will
not require registration of such shares under the Securities Act.
3.7 LEGENDS. It is understood that the certificates evidencing the SICOR
Common Stock may bear one or all of the following legends:
(a) "The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended. The securities
may not be sold or offered for sale or otherwise distributed except (i) in
conjunction with an effective registration statement in effect for the
securities under the Act or pursuant to an opinion of counsel satisfactory
to the Company that such registration or compliance is not required as to
such sale, offer or distribution; or (ii) unless sold pursuant to Rule 144
of such Act or in an offshore transaction (as defined in Regulation S
under such Act) in accordance with Regulation S. If the holder of these
securities is a non-U.S. person within the meaning of Regulation S under
such Act, such holder agrees not to, directly or indirectly, engage in any
hedging transaction with regard to this security or any common stock
issuable upon conversion of this security except as permitted by such
Act."
(b) Any legend required by the laws of the State of California,
U.S.A. or other jurisdiction.
(c) A legend setting forth the restriction on transferability
provided for in Section 3.6 hereof.
(d) "These securities may not be sold, hypothecated, pledged or
otherwise disposed of in the United States, its territories, possessions
or any area subject to its jurisdiction, or to any person who is a
national thereof or resident therein (including any estate of such
person), or any corporation, partnership or other entity created or
organized therein, unless such securities have been either registered
under the Securities Act of 1933, as amended, or are exempt from the
registration requirements of the Act, in the opinion of counsel
satisfactory to the Company."
3.8 DIRECTED SELLING EFFORTS. Seller will not engage in any activity for
the purpose of, or that could reasonably be expected to have the effect of,
conditioning the market in the United States for any of the SICOR Common Stock
received hereunder. To the best knowledge of Seller, neither the Company nor any
person acting for the Company has conducted any "directed selling efforts" as
that term is defined in Rule 902 of Regulation S.
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ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Except as contemplated by this Agreement, and as disclosed or excepted in
the schedule attached hereto as Schedule 4 (the "Purchaser Disclosure Schedule")
corresponding to a particular representation and warranty, Purchaser represents
and warrants to Seller as follows as of the date hereof:
4.1 AUTHORITY; NO CONFLICTS.
(a) AUTHORITY. Purchaser has full power and authority to execute and
deliver this Agreement and, subject to satisfaction of the conditions set forth
herein, to consummate the transactions contemplated hereby. This Agreement has
been duly authorized, validly executed and delivered on behalf of Purchaser and
is a valid and binding agreement enforceable against Purchaser in accordance
with its terms, except (i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting
enforcement of creditors' rights generally and (ii) as limited by laws relating
to the availability of specific performance, injunctive relief or other
equitable remedies. All corporate action on the part of Purchaser, their
respective officers, directors, holders of capital stock and/or equity interests
necessary for the authorization, execution and delivery of this Agreement by
Purchaser, the performance of all obligations of Purchaser hereunder and the
authorization, sale and delivery of the SICOR Common Stock has been taken.
Purchaser has the capacity and authority to enter into this Agreement and to
carry out and perform its obligations hereunder and this Agreement constitutes
the, legal, valid and binding obligations of Purchaser, enforceable in
accordance with its terms. Neither the execution, delivery and performance of
this Agreement, nor the consummation of the transactions contemplated hereby,
will result in any violation of, be in conflict with, or constitute a default or
give rise to a right of termination, cancellation or acceleration under any
provision of (1) the charter or bylaws of Purchaser or resolution of the board
of directors of Purchaser, (2) the Organizational Documents of Purchaser or any
resolution of the board of directors of Purchaser; (3) any judgment, decree or
order or any agreement, contract, understanding, loan, note, indenture or other
instrument to which Purchaser is a party or by which it is bound; or (4) any
statute, rule or governmental regulation applicable to Purchaser.
(b) THIRD PARTIES CONSENTS. Purchaser has obtained all the necessary
Consents, waivers and approvals of third parties that are required to be
obtained by Purchaser in connection with the execution and delivery of this
Agreement by Purchaser and the performance of the obligations of Purchaser
hereunder. Except as set forth on Schedule 4.1(b), neither Purchaser is or will
be required to give notice to any third party in connection with the execution
and delivery of this Agreement by Purchaser or the transactions contemplated
thereby.
(c) GOVERNMENTAL ENTITIES APPROVALS. Purchaser has obtained all
necessary consents, authorizations, approvals and orders, and shall have made
all registrations, qualifications, designations, declarations or filings with
any Governmental Entity required on the part of or with respect to Purchaser in
connection with the consummation of the transactions contemplated by this
Agreement. Except as set forth on Schedule 4.1(c) hereto, no consent,
authorization, approval or order of, or registration, qualification,
designation, declaration or filing with, any
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Governmental Entity is required by or with respect to Purchaser in connection
with the consummation of the transaction contemplated by this Agreement.
4.2 ORGANIZATION, GOOD STANDING AND QUALIFICATION. Purchaser has been
duly incorporated and is validly existing as a corporation and in good standing
under the laws of the State of Delaware and is qualified to do business and is
in good standing under the laws of each jurisdiction in which the failure to so
qualify would have a material adverse effect on its business, assets or
financial condition, and has all requisite power and authority to own, lease and
operate its properties and to carry on its business as now being conducted.
4.3 BROKERS AND FINDERS. Purchaser has not dealt with any broker or
finder in connection with the transactions contemplated by this Agreement.
Purchaser has not incurred, and shall not incur, directly or indirectly, any
liability for any brokerage or finders' fees or agents commissions or any
similar charges in connection with this Agreement or any transaction
contemplated hereby.
4.4 VALID ISSUANCE OF COMMON STOCK. The shares of SICOR Common Stock
(the "SICOR Shares") to be transferred to Seller pursuant to this Agreement have
been duly authorized and at the Closing will be validly issued and outstanding,
fully paid and nonassessable, and free and clear of any charge, claim, community
property interest, condition, equitable interest, lien, option, pledge, security
interest, right of first refusal or any restriction of any kind, including any
restriction on use, voting, transfer, receipt of income or exercise of any other
attribute of ownership, other than in compliance with Securities Act and the
restrictions set forth in Section 3.7 herein. The SICOR Shares are owned by
Purchaser and no other person has any right, title or interest in or to the
SICOR Shares. No preemptive rights or other rights to subscribe for or purchase
exist with respect to the issuance and transfer of the SICOR Shares pursuant to
this Agreement.
4.5 GOVERNMENTAL CONSENTS. Other than compliance with the Securities
Act, and such filings as may be required to be made with NASDAQ National Market
System(the "NASDAQ"), no consent, approval order or authorization of, or
registration, qualification, designation, declaration or filing with, any
governmental authority in any applicable jurisdiction on the part of Purchaser
is required in connection with the consummation of the transactions contemplated
by this Agreement.
4.6 CONFLICTS. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby will not conflict with or
result in a material breach of the terms, conditions or provisions of, or
constitute a material default under, the charter or by-laws of Purchaser or any
material contract, agreement or instrument to which Purchaser is a party or by
which it or any of its properties or assets are bound, or any existing
applicable law, rule or regulation of The Netherlands or any applicable decree,
judgment or order of any court, regulatory body, administrative agency or other
governmental body of The Netherlands having jurisdiction over Purchaser or any
of its properties or assets.
4.7 SEC DOCUMENTS; MATERIAL CONTRACTS. Purchaser has filed each
statement, annual, quarterly and other report, registration statement and
definitive proxy statement required to be filed (other than preliminary
material) by Purchaser with the SEC subsequent to December 31,
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1999 (the "SICOR SEC Documents"). As of their respective filing dates, the SICOR
SEC Documents complied in all material respects with the requirements of the
Securities Act or the Securities Exchange Act of 1934, as the case may be, and
none of the SICOR SEC Documents contained any untrue statements of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements made therein, in light of the circumstances in
which they were made, not misleading, except to the extent corrected by any
subsequently filed SICOR SEC Documents.
ARTICLE 5
COVENANTS RELATING TO CONDUCT OF BUSINESS
During the period from the date of this Agreement and continuing until the
Closing, the Subsidiaries will act, and Seller agrees to cause the Subsidiaries
to act, as follows (except as expressly contemplated by this Agreement or to the
extent that Purchaser shall otherwise consent in writing):
5.1 ORDINARY COURSE. Except for the transfer of assets between the
Subsidiaries, each of the Subsidiaries shall carry on its business in the usual,
regular and ordinary course, including the payment of all taxes, in
substantially the same manner as heretofore conducted, shall maintain and
preserve its respective assets in good condition and repair, reasonable wear and
tear excepted, and, to the extent consistent with such business, use all
commercially reasonable efforts consistent with past practice and policies to
preserve intact its respective present business organizations, use its best
efforts to keep available the services of its present key employees and preserve
its relationships with present and potential customers, providers and others
having business dealings with it to the end that its goodwill and ongoing
business shall be unimpaired at the Closing Date.
5.2 NO OTHER BIDS. Neither Seller nor any Subsidiary will, and each will
use its best efforts to ensure that Seller's and each Subsidiary's directors,
officers of employees do not, directly or indirectly, solicit or initiate or
encourage any discussions or negotiations with, or participate in any
negotiations with or provide any information to or otherwise cooperate in any
other way with any corporation, partnership, person or other entity or group
(other than Purchaser) concerning any sale of shares of capital stock and/or
equity interests of the Subsidiaries (an "Alternative Transaction"). Purchaser
shall be promptly notified in writing by Seller and the Subsidiaries of any of
the events referred to in this Section including a summary of the material terms
of any other bid.
5.3 NO ACQUISITIONS. Except for the transfer of assets between the
Subsidiaries, no Subsidiary will (a) acquire or agree to acquire by merging or
consolidating with, or by purchasing a substantial portion of the assets of, or
by any other manner, any business or any corporation, partnership, association
or other business organization or division thereof or (b) otherwise acquire or
agree to acquire any assets which are material, individually or in the
aggregate, to such Subsidiary except in the ordinary course of business
consistent with prior practice.
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5.4 NO DISPOSITIONS. Except for the transfer of assets between the
Subsidiaries, no Subsidiary shall sell, assign, lease or otherwise dispose of
any of its assets, individually or in the aggregate, except in the ordinary
course of business consistent with prior practice and in any event not in excess
of US$25,000 in the aggregate.
5.5 INDEBTEDNESS. Except for the transfer of assets between the
Subsidiaries, no Subsidiary shall incur any indebtedness for borrowed money or
guarantee any indebtedness or guarantee any debt securities of others except in
the ordinary course of business consistent with prior practice not to exceed and
aggregate of US$25,000.
5.6 BENEFIT PLANS, ETC. No Subsidiary shall adopt or amend in any
material respect any employee plan, benefit arrangement or any other agreement
with employees, and no Subsidiary shall increase compensation for its employees.
5.7 OTHER ACTIONS. Neither Seller nor any Subsidiary shall, and each
shall use best efforts to ensure that Biotechna's directors, officers, employees
and other agents do not, take any action that would, or reasonably would be
expected to, result in any of the representations and warranties set forth in
this Agreement being or becoming untrue in any material respect, or in any of
the conditions set forth in Article 7 not being satisfied.
5.8 ADVICE OF CHANGES; GOVERNMENT FILINGS. Seller and each Subsidiary
shall confer on a regular and frequent basis with Purchaser, report on
operational matters and shall promptly advise Purchaser, orally and in writing,
of any change or event having, or which, insofar as can reasonably be foreseen,
could have, a Material Adverse Effect on a Subsidiary or which would cause or
constitute a material breach of any of the representations, warranties or
covenants of Seller or a Subsidiary contained herein. Seller and each Subsidiary
shall promptly provide Purchaser or its counsel with copies of any filings made
by such Subsidiary with any governmental entity in connection with this
Agreement or the transactions contemplated hereby.
5.9 ACCOUNTING METHODS. No Subsidiary shall change the methods of
accounting for the business of such Subsidiary in effect at the date of the
Financial Statements, except as required by changes in generally accepted
accounting principles ("GAAP") and as concurred in by such Subsidiary's
independent auditors. Purchaser shall be notified immediately as to any such
change.
5.10 DIVIDENDS. No Subsidiary shall declare, set aside or make any
dividend or other distribution to holders of capital stock and/or equity
interests, or purchase, redeem or reclassify any of their capital stock and/or
equity interests, or effect any stock split, stock dividend, exchange or
recapitalization, or enter into any agreement in respect of the foregoing.
5.11 LIABILITIES. Except for the transfer of assets between the
Subsidiaries, other than in the ordinary course of business, no Subsidiary shall
waive any rights of material value, or cancel, discharge, satisfy or pay any
debt, claim, lien, encumbrance, liability or obligation, whether absolute,
accrued, contingent or otherwise, and shall not incur any obligations and
liabilities other than incurred in the ordinary course of business.
5.12 CONTRACTS. Except for the transfer of assets between the
Subsidiaries, other than in the ordinary course of business and consistent with
past practices, no Subsidiary shall enter into,
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make any amendment of or terminate any lease, contract, license or other
agreement to which such Subsidiary is a party.
ARTICLE 6
ADDITIONAL AGREEMENTS
6.1 ACCESS AND INFORMATION. Seller and each Subsidiary shall afford
Purchaser and its accountants, counsel, investment bankers and other
representatives full and complete access during normal business hours throughout
the period prior to the Closing Date to all of the properties, books, contracts,
commitments, records, facilities and personnel of each Subsidiary and, during
such period, shall furnish to Purchaser all information concerning the business,
properties and personnel of each Subsidiary as Purchaser may reasonably request.
Purchaser shall provide Seller with information and documentation necessary and
appropriate to enable it to determine whether to acquire the SICOR Common Stock.
6.2 NOTICE OF CHANGES. If, between the date hereof and the Closing Date,
any governmental authority shall commence any examination, review,
investigation, action, suit or proceeding against any party with respect to this
Agreement, each party shall give prompt notice thereof to the others, shall keep
the other parties informed as to the status thereof and shall permit the other
parties to observe and be present at each meeting, conference or other
proceeding and to have access to and be consulted in connection with any
document filed or provided to such governmental authority in connection with
such examination, review, investigation, action, suit or proceeding.
6.3 CERTAIN DEFAULTS. Seller and each Subsidiary shall give prompt
written notice to Purchaser of any notice of default received by it subsequent
to the date of this Agreement and prior to the Closing Date under any instrument
or agreement to which it is a party or by which it is bound which may affect
adversely the interests of Purchaser in this Agreement or any transaction
contemplated hereby. Purchaser shall give similar notice to Seller with respect
to any and all defaults which may affect adversely the interests of Seller in
this Agreement or any transaction contemplated hereby.
6.4 CONSENTS. Each of the parties shall use its best efforts to obtain
all authorizations, consents or other approvals required, respectively, to be
obtained by such party from any governmental authority or other person in
connection with consummation of the transactions contemplated by this Agreement.
6.5 NOTICE OF BREACH. Each of the parties shall immediately give notice
to the others of the occurrence of any event, or the failure of any event to
occur, that results in a breach of any representation or warranty contained
herein by such party or a failure by said party to comply with any covenant,
condition or agreement contained herein.
6.6 EXPENSES. Each party hereto shall pay its own expenses arising out
of the transactions herein contemplated (including legal, investment bankers,
accounting and travel fees and expenses).
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6.7 PUBLIC DISCLOSURE. Prior to the Closing, none of the parties hereto
shall make any public release of information concerning the terms and conditions
of this Agreement or the transactions contemplated hereby without the prior
joint review and approval of Purchaser and Seller, which approval shall not be
unreasonably withheld; provided, however, that the parties may each continue
such communications with employees, customers, suppliers, lenders, lessors,
shareholders and other particular groups as may be legally required or necessary
and not inconsistent with the best interests of the other parties hereto.
6.8 SECTION 338. At Purchaser's sole discretion, Purchaser may elect
under Section 338 of the United States Internal Revenue Code to treat the
purchase of Gatio Shares as a purchase of assets for United States federal
income tax purposes. In such event, Seller hereby agrees to cooperate in all
respects with such election.
6.9 REGISTRATION ON FORM S-3.
(a) FILING OF REGISTRATION STATEMENT. Purchaser shall use its best
efforts to secure effectiveness of, as soon as practicable, and shall file no
later than ninety (90) days after the Closing Date (unless such registration is
not permitted under the applicable rules and regulations of the Securities and
Exchange Commission (the "Commission")), a registration statement on Form S-3
(the "Registration Statement") with the Commission under the Securities Act to
register the resale of the SICOR Common Shares (the "Registrable Securities");
provided however, that in the event Purchaser fails (due to an action or
inaction of Purchaser) to be eligible to file a registration statement on Form
S-3, Purchaser shall file a registration statement on Form S-1.
(b) REGISTRATION EXPENSES. Purchaser shall pay all Registration Expenses
(as defined below) in connection with any registration, qualification or
compliance hereunder, and each holder of Registrable Securities (the "Holders")
shall pay all Selling Expenses (as defined below) and other expenses that are
not Registration Expenses relating to the Registrable Securities resold by such
Holder. "Registration Expenses" shall mean all expenses, except for Selling
Expenses, incurred by Purchaser in complying with the registration provisions
herein described, including, without limitation, all registration, qualification
and filing fees, printing expenses, fees and disbursements of counsel for
Purchaser, blue sky fees and expenses and the expense of any special audits
incident to or required by any such registration. "Selling Expenses" shall mean
all selling commissions, underwriting fees and stock transfer taxes applicable
to the Registrable Securities and all fees and disbursements of counsel for any
Holder.
(c) ADDITIONAL COMPANY OBLIGATIONS. In the case of any registration
effected by Purchaser pursuant to these registration provisions, Purchaser will
use its best efforts to: (i) keep such registration effective until December 31,
2006 (or such earlier date as all of the Registrable Securities have been sold
or may be sold under Rule 144(k)); (ii) prepare and file with the SEC such
amendments and supplements to the Registration Statement and the prospectus used
in connection with the Registration Statement as may be necessary to comply with
the provisions of the Securities Act with respect to the disposition of the
Registrable Securities; (iii) furnish such number of prospectuses and other
documents incident thereto, including any amendment of or supplement to the
prospectus, as a Holder from time to time may reasonably request; (iv) cause all
such Registrable Securities registered as described herein to be listed on each
securities
- 26 -
exchange and quoted on each quotation service on which similar securities issued
by Purchaser are then listed or quoted; (v) provide a transfer agent and
registrar for all Registrable Securities registered pursuant to the Registration
Statement and a CUSIP number for all such Registrable Securities; (vi) use its
best efforts to comply with all applicable rules and regulations of the
Commission, and make available to its security holders, as soon as reasonably
practicable, an earnings statement covering the period of at least twelve
months, but not more than eighteen months, beginning with the first month after
the effective date of the Registration Statement, which earnings statement shall
satisfy the provisions of Section 11(a) of the Securities Act; and (vii) advise
Holders of the issuance of any stop order by the SEC with respect to the
Registration Statement or any request by the SEC for an amendment to the
Registration Statement, and notify Holders of the happening of any event as a
result of which the prospectus included in the Registration Statement, as then
in effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing; (viii)
file the documents required of Purchaser and otherwise use its best efforts to
maintain requisite blue sky clearance in (A) all jurisdictions in which any of
the Registrable Securities are originally sold and (B) all other states
specified in writing by a Holder as may reasonably be required to sell such
Holder's Registrable Securities, provided as to clause (B), however, that
Purchaser shall not be required to qualify to do business or consent to service
of process in any state in which it is not now so qualified or has not so
consented.
6.10 INDEMNIFICATION AND CONTRIBUTION.
(a) INDEMNIFICATION BY PURCHASER. Purchaser agrees to indemnify and hold
harmless each Holder from and against any losses, claims, damages or liabilities
(or actions or proceedings in respect thereof) to which such Holder may become
subject (under the Securities Act or otherwise) insofar as such losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) arise out
of, or are based upon, any claim by a third party asserting any untrue statement
of a material fact contained in the Registration Statement, on the effective
date thereof, or arise out of any failure by Purchaser to fulfill any
undertaking included in the Registration Statement, and Purchaser will, as
incurred, reimburse such Holder for any legal or other expenses reasonably
incurred in investigating, defending or preparing to defend any such action,
proceeding or claim; provided, however, that Purchaser shall not be liable in
any such case to the extent that such loss, claim, damages or liability arises
out of, or is based upon (i) an untrue statement or alleged untrue statement
made in such Registration Statement in reliance upon and in conformity with
written information furnished to Purchaser by or on behalf of such Holder
specifically for use in preparation of the Registration Statement or (ii) any
untrue statement in any prospectus that is corrected in any subsequent
prospectus that was delivered to the Holder prior to the pertinent sale or sales
by the Holder.
(b) INDEMNIFICATION BY HOLDER. Each Holder, severally and not jointly,
agrees to indemnify and hold harmless Purchaser from and against any losses,
claims, damages or liabilities (or actions or proceedings in respect thereof) to
which Purchaser may become subject (under the Securities Act or otherwise)
insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of, or are based upon any claim by a
third party asserting (i) an untrue statement made in such Registration
Statement in reliance upon and in conformity with written information furnished
to Purchaser by or on behalf of such Holder
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specifically for use in preparation of the Registration Statement, provided,
however, that no Holder shall be liable in any such case for any untrue
statement included in any Prospectus which statement has been corrected, in
writing, by such Holder and delivered to Purchaser at least three business days
before the sale from which such loss occurred or (ii) any untrue statement in
any prospectus that is corrected in any subsequent prospectus that was delivered
to the Holder prior to the pertinent sale or sales by the Holder, and each
Holder, severally and not jointly, will, as incurred, reimburse Purchaser for
any legal or other expenses reasonably incurred in investigating, defending or
preparing to defend any such action, proceeding or claim.
(c) INDEMNIFICATION PROCEDURES. Promptly after receipt by any
indemnified person of a notice of a claim or the beginning of any action in
respect of which indemnity is to be sought against an indemnifying person
pursuant to this Section 6.10, such indemnified person shall notify the
indemnifying person in writing of such claim or of the commencement of such
action, and, subject to the provisions hereinafter stated, in case any such
action shall be brought against an indemnified person and the indemnifying
person shall have been notified thereof, the indemnifying person shall be
entitled to participate therein, and, to the extent that it shall wish, to
assume the defense thereof, with counsel reasonably satisfactory to the
indemnified person. After notice from the indemnifying person to such
indemnified person of the indemnifying person's election to assume the defense
thereof, the indemnifying person shall not be liable to such indemnified person
for any legal expenses subsequently incurred by such indemnified person in
connection with the defense thereof; provided, however, that if there exists or
shall exist a conflict of interest that would make it inappropriate in the
reasonable opinion of counsel for the indemnified person for the same counsel to
represent both the indemnified person and such indemnifying person or any
affiliate or associate thereof, the indemnified person shall be entitled to
retain its own counsel at the expense of such indemnifying person; provided,
however, that in the case of the immediately preceding proviso the indemnifying
person shall not be responsible for the legal expenses of more than one counsel
for all indemnified persons.
(d) CONTRIBUTION IN LIEU OF INDEMNITY. If the indemnification provided
for in this Section 6.10 is unavailable to or insufficient to hold harmless an
indemnified party under Section 6.10(a) or 6.10(b) above in respect of any
losses, claims, damages or liabilities (or actions or proceedings in respect
thereof) referred to therein, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as result of such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative fault shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by Purchaser on the one hand or a
Holder on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
Purchaser and the Holders agree that it would not be just and equitable if
contribution pursuant to this Section 6.10(d) were determined by pro rata
allocation (even if the Holders were treated as one entity for such purpose) or
by any other method of allocation which does not take account of the equitable
considerations referred to above in this Section 6.10(d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this Section
6.10(d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this Section
6.10(d), no
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Holder shall be required to contribute any amount in excess of the net amount
received by the Holder from the sale of the Registrable Securities to which such
loss relates. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Holders' obligations in this Section 6.10(d) to
contribute are several in proportion to their respective sales of Registrable
Securities to which such loss relates and not joint.
(e) CONTROLLING PERSONS INDEMNIFIED. The obligations of Purchaser and
the Holders under this Section 6.10 shall be in addition to any liability which
Purchaser and the respective Holders may otherwise have and shall extend, upon
the same terms and conditions, to each person, if any, who controls Purchaser or
any Holder within the meaning of the Securities Act.
6.11 TRANSFER OF REGISTRATION RIGHTS. The right to sell Registrable
Securities pursuant to the registration statement described herein will
automatically be assigned to each transferee of at least 50,000 SICOR Common
Shares. In the event that it is necessary, in order to permit a Holder to sell
Registrable Securities pursuant to the Registration Statement, to amend the
Registration Statement to name such Holder, such Holder shall, upon written
notice to Purchaser, be entitled to have Purchaser make such amendment as soon
as reasonably practicable. Notwithstanding the above provisions relating to
Registration Expenses, in the event that such an amendment is requested, the
Holder shall, at the request of Purchaser, be obligated to reimburse Purchaser
for reasonable Registration Expenses incurred by it in connection with such
amendment.
6.12 REPORTS UNDER THE EXCHANGE ACT. With a view to make available to
the Purchasers or Holders the benefits of Rule 144 promulgated under the
Securities Act and any other rule or regulation of the SEC that may at any time
permit a Purchaser or Holder to sell Securities to the public without
registration or pursuant to a registration on Form S-3, Purchaser will covenant
and agree to: (i) make and keep public information available, as those terms are
understood and defined in Rule 144, at all times after the Closing; (ii) file
with the SEC in a timely manner all reports and other documents required of
Purchaser under the Securities Act and the Exchange Act; and (iii) furnish to
any Purchaser or Holder, so long as the Purchaser or Holder owns any Securities
forthwith upon request, (A) a written statement by Purchaser that it has
complied with the reporting requirements of Rule 144, the Securities Act and the
Exchange Act, (B) a copy of the most recent annual or quarterly report of
Purchaser, and (C) such other information as may be reasonably requested in
order to avail any Purchaser or Holder of any rule or regulation of the SEC that
permits the selling of any such Securities without registration or pursuant to
such Form S-3.
6.13 EQUITY COMPENSATION. After the Closing Date, Purchaser shall offer
to certain employees of Biotechna equity compensation, in the form of options to
acquire an aggregate amount of shares of SICOR Common Stock not to exceed
233,000 shares.
6.14 BIOPHARMA LTD. OBLIGATIONS. Rakepoll and Seller acknowledge fully
responsibility for the obligations and liabilities of Biopharma Ltd. pre-Closing
and post-Closing and agree that neither SICOR nor the Subsidiaries will be
responsible for any of Biopharma Ltd.'s obligations or liabilities.
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ARTICLE 7
CONDITIONS PRECEDENT TO THE CLOSING
7.1 CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE TRANSACTION. The
respective obligations of each of the parties to effect the Transaction and the
transactions contemplated by this Agreement shall be subject to the fulfillment
at or prior to the Closing of the following conditions unless waived by each of
Purchaser and Seller:
(a) GOVERNMENT APPROVALS. All authorizations, consents, orders or
approvals of, or declarations or filings with, any governmental entity in
the Republic of Lithuania, The Netherlands, the United States or any other
applicable jurisdiction, as the case may be, deemed necessary or
appropriate by Purchaser or Seller for the consummation of the
transactions contemplated by this Agreement shall have been filed,
occurred or obtained, in each case subject to no term, condition or
restriction unacceptable to Purchaser or Seller. Purchaser and Seller
agree to cooperate with each other to the fullest extent practicable in
satisfying all applicable filing requirements, and in obtaining all
applicable regulatory approvals.
(b) LEGAL ACTION. No temporary restraining order, preliminary
injunction or permanent injunction or other order preventing the
consummation of the Transaction shall have been issued by any court in the
Republic of Lithuania, The Netherlands, the United States or any other
applicable jurisdiction, as the case may be, and remain in effect, and no
litigation seeking the issuance of such an order or injunction, shall be
pending which, in the good faith judgment of Seller or Purchaser, has a
reasonable probability of resulting in such order, injunction or damages.
In the event any such order or injunction shall have been issued, each
party agrees to use its reasonable efforts to have any such injunction
lifted.
(c) STATUTES. No statute, rule or regulation shall have been
enacted by the government of the Republic of Lithuania, The Netherlands,
the United States or any other applicable jurisdiction, or any state or
agency thereof which would make the consummation of the Transaction
illegal.
(d) MANAGEMENT INTACT. Each of Vladas Xxxxxxxx Xxxxxxx, Xxxxxx
Xxxxxxxxxxxx and Xxxxxxxx Xxxxxxxx shall be employees of Biotechna, and no
event or events shall have occurred which have affected, or could be
expected to affect, the ability of such persons to continue to serve as
employees in their present capacities of Biotechna following the
Transaction.
(e) BOARD OF DIRECTOR AND STOCKHOLDER APPROVAL. The Seller and
each of its Subsidiaries and Purchaser(i) shall have obtained all
necessary approvals of their respective Boards of Directors, (ii) and
shall have obtained all necessary approvals of their respective holders of
shares of capital stock to approve this Agreement and the Transaction.
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7.2 CONDITIONS TO OBLIGATIONS OF SELLER. The obligations of Seller to
effect the Transaction and the other transactions contemplated by this Agreement
shall be subject to the fulfillment at or prior to the Closing of the following
conditions, unless waived by Seller:
(a) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Purchaser set forth in this Agreement shall be true and
correct in all material respects as of the date of this Agreement and as
if made at and as of the Closing Date, except as otherwise contemplated by
this Agreement, and Seller shall have received from Purchaser a
certificate substantially in the form of Exhibit 7.2(a) to such effect.
(b) PERFORMANCE OF OBLIGATIONS OF PURCHASER. Purchaser shall have
performed in all material respects all obligations required to be
performed by them under this Agreement prior to the Closing Date, and
Seller shall have received from Purchaser a certificate substantially in
the form of Exhibit 7.2(b) to such effect.
(c) PROCEEDINGS AND DOCUMENTS. Purchaser shall have duly executed
this Agreement. All corporate and other proceedings in connection with the
transactions contemplated at the Closing and all documents incident
thereto shall have been delivered to Seller and be reasonably satisfactory
in form and substance to Seller, and Seller shall have received all such
counterpart original and certified or other copies of such documents as it
may reasonably request.
(d) BANKING UNDERTAKING. Prior to the Closing Date, Purchaser
shall have delivered to Seller and Rakepoll Finance an undertaking in the
form set forth as Exhibit 7.2(d) hereto.
7.3 CONDITIONS TO OBLIGATIONS OF PURCHASER. The obligations of Purchaser
to effect the Transaction and the other transactions contemplated by this
Agreement shall be subject to the fulfillment at or prior to the Closing of the
following conditions, unless waived by Purchaser:
(a) DELIVERY BY SELLER. Seller shall have executed and delivered
to Purchaser at the Closing certificates, assignments and such additional
documents as may be requested by Purchaser to transfer title to the Gatio
Shares to Purchaser.
(b) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Seller and each Subsidiary set forth in this Agreement, or
in any corporate document or instrument delivered in connection herewith,
shall be true and correct in all material respects as of the date of this
Agreement and as if made at and as of the Closing Date, except as
otherwise contemplated by this Agreement, and Purchaser shall have
received from Seller and each of the Subsidiaries a certificate or
certificates, substantially in the form of Exhibit 7.3(b), to such effect.
(c) PERFORMANCE OF OBLIGATIONS OF SELLER AND THE SUBSIDIARIES.
Seller and each of the Subsidiaries shall have performed in all material
respects all obligations required to be performed by each under this
Agreement prior to the Closing Date, and Purchaser shall have received
from Seller and each of the Subsidiaries a certificate, substantially in
the form of Exhibit 7.3(c), to such effect.
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(d) OPINIONS OF COUNSEL TO SELLER AND COUNSEL TO EACH SUBSIDIARY.
Purchaser shall have received opinions dated as of the Closing Date of
Xxxxxx Xxxxxxx Xxxxxxxxxx Xxxxxx, outside counsel to Seller and Gatio, and
of XxXxxxxxx, Will & Xxxxx Law Firm Jaskutelis, outside counsel to
Biotechna, covering the items substantially as set forth in Exhibit
7.3(d).
(e) NO MATERIAL ADVERSE CHANGE. Since the date of this Agreement
there shall have been no changes in the condition (financial or
otherwise), business, prospects, employees, operations, obligations or
liabilities of any Subsidiary which, in the aggregate, have had or may be
reasonably expected to have a Material Adverse Effect on the financial
condition, business, or operations of such Subsidiary.
(f) CHANGE IN LAWS OR REGULATIONS. Since the date of this
Agreement, no statute shall have been enacted and no rule or regulation
shall have been adopted by the Republic of Lithuania, The Netherlands,
United States or any agency or authority thereof which (i) has had or may
reasonably be expected to have a Material Adverse Effect on the condition
(financial or otherwise), business, net worth, assets, prospects,
properties, employees, operations, obligations or liabilities of Biotechna
or Gatio, as the case may be, or (ii) would prohibit the ownership or
operation of all or a material portion of the business or assets of
Biotechna or Gatio, as the case may be, or compel Biotechna or Gatio, as
the case may be, to dispose of or hold separate all or a material portion
of its respective business or assets, as a result of the Transaction, or
(iii) render any party unable to consummate the Transaction, or render the
Transaction economically not advantageous to Purchaser, except for any
waiting period provisions.
(g) DUE DILIGENCE. Purchaser shall have completed the due
diligence examination of Biotechna and Gatio, including without
limitation, the financial statements and projections, tax status,
accounting and actuarial methods, assets, liabilities and operations, the
results of which must be satisfactory to Purchaser. Seller acknowledges
that Purchaser has the absolute discretion to terminate this Agreement at
any time following the date of this Agreement and prior to Closing if it
is not satisfied in its sole discretion with its due diligence review.
(h) QUALIFICATIONS. All authorizations, approvals, or permits, if
any, of any governmental authority or regulatory body of the Republic of
Lithuania, The Netherlands, or of any state thereof that are required in
connection with the lawful sale or transfer of control of the Biotechna
Shares or the Gatio Shares to Purchaser pursuant to this Agreement shall
be duly obtained and effective as of the Closing.
(i) THIRD-PARTY APPROVALS. Any and all consents or approvals
required from third parties relating to contracts, agreements, licenses,
leases and other instruments, material to the business of the Subsidiaries
shall have been obtained.
(j) EMPLOYEES. Each Subsidiary shall have executed satisfactory
employee proprietary information and inventions agreements in the form
attached hereto as Exhibit 7.3(j) with all employees of such Subsidiary
that shall be retained in the business of such Subsidiary upon
consummation of the Transaction.
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(k) PROCEEDINGS AND DOCUMENTS. Seller and each Subsidiary shall
have duly executed this Agreement. All corporate and other proceedings in
connection with the transactions contemplated at the Closing and all
documents incident thereto shall have been delivered to Purchaser and be
reasonably satisfactory in form and substance to Purchaser, and Purchaser
shall have received all such counterpart original and certified or other
copies of such documents as it may reasonably request.
(l) ANTITRUST FILINGS. All filings requirements with the
Competition Council of the Republic of Lithuania, any applicable filing
requirements of The Netherlands and any other applicable filing
requirements in connection with the Transaction shall have been complied
with.
(m) DIRECTOR RESIGNATIONS. Prior to the Closing Date, Seller and
its Subsidiaries shall take all reasonable efforts to deliver to Purchaser
the resignations of such directors of the Subsidiaries as Purchaser shall
specify, effective on the Closing Date.
(n) BIOFA AB OBLIGATIONS. Prior to the Closing Date, all debts,
liabilities and obligations of Seller or its Subsidiaries to Biofa AB
shall have been satisfied and evidence of satisfaction of such debts,
liabilities and obligations shall have been delivered to Purchaser.
(o) COMMON STOCK RESTRICTION AGREEMENT. The individuals listed on
Schedule 7.3(o) shall enter into a Common Stock Restrictions Agreement,
substantially in the form attached hereto as Exhibit 7.3(o), with
Purchaser.
(p) EMPLOYMENT AGREEMENT AMENDMENTS. The individuals listed on
Schedule 7.3(q) shall enter into a Employment Agreement Amendment,
substantially in the forms attached hereto as Exhibit 7.3(p)(i) and
Exhibit 7.3(p)(ii), as the case may be, with Biotechna.
ARTICLE 8
INDEMNIFICATION; SURVIVAL OF REPRESENTATIONS
AND WARRANTIES
8.1 INDEMNIFICATION BY SELLER.
Seller and Rakepoll Finance shall jointly and severally indemnify and hold
harmless Purchaser and each of its agents, representatives, employees, officers,
directors, stockholders, controlling persons and affiliates (collectively, the
"Indemnified Persons," each an "Indemnified Person"), and shall reimburse the
Indemnified Persons for any loss, liability, claim, damage, expense (including,
but not limited to, costs of investigation and defense and reasonable attorneys'
fees and including any action brought or otherwise initiated by Purchaser) or
diminution of value, whether or not involving a third-party claim (collectively,
"Damages") arising from or in connection with (i) any inaccuracy in any of the
representations and warranties of Seller or any Subsidiary in this Agreement or
in any certificate or document delivered by Seller or any Subsidiary pursuant to
this Agreement, or any actions, omissions or statement of
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facts inconsistent with any such representation or warranty, (ii) any failure by
Seller or any Subsidiary to perform or comply with any covenant in this
Agreement, (iii) any claim by any person for brokerage or finder's fees or
commissions or similar payments based upon any agreement or understanding
alleged to have been made by any such person with Seller (or any person acting
on their behalf) in connection with this Agreement or (iv) any claim against
Purchaser or any Subsidiary by current or former stockholders or current or
former employees of Biofa AB. Seller and Rakepoll Finance acknowledge that the
above Damages, if any, would relate to unresolved contingencies existing at the
date hereof, which, if resolved at the date hereof, would have led to a
reduction in the aggregate Purchase Price. Seller and Rakepoll Finance's
obligation to indemnify Indemnified Persons pursuant to this Section 8.1 shall
exist (i) for a period of five years from the Closing Date for any inaccuracy in
the representations and warranties contained in Sections 2.16 and 2.21; (ii)
until thirty (30) business days following the expiration of the statute of
limitations applicable to the underlying claim for any claims by Purchaser based
upon any inaccuracy of the representations and warranties contained in Section
2.9 or upon fraud; and (iii) for a period of eighteen months from the Closing
Date for all other claims made pursuant to this Section 8.1. Notwithstanding the
foregoing, if Seller, Rakepoll Finance or the Escrow Agent (as defined below),
as the case may be, shall receive a Claim (as defined below), within the
applicable time period set forth in the preceding sentence, Seller and Rakepoll
Finance's obligation to indemnify Indemnified Persons shall survive as to such
claim until such Claim has been finally resolved.
8.2 PROCEDURE FOR INDEMNIFICATION.
(a) ESCROW FUND AND INDEMNIFICATION. Subject to the following
requirements set forth in this Section 8.2, the Indemnified Persons shall be
entitled to assert indemnification claims and receive indemnification payments
from the Escrow Fund, as defined in Section 1.4 above. Seller and Rakepoll
Finance's obligation to indemnify Indemnified Persons pursuant to Section 8.1
shall not be limited to the aggregate value of the Escrow Fund; provided,
however, that Seller or Rakepoll Finance shall not have any obligation to
indemnify Indemnified Persons under this Agreement of any sort whatsoever in
excess of US$5,000,000. Indemnified Persons shall receive indemnification
payments directly from Seller or, at the sole option of the Indemnified Persons,
Rakepoll Finance to the extent that Seller and Rakepoll Finance's obligations
exceed the aggregate value of the Escrow Fund or the Seller, Rakepoll Finance,
or the Escrow Agent, receives the Claim after the Escrow Period (as defined
below).
(b) ESCROW PERIOD. Subject to the following requirements, the Escrow
Fund shall be in existence immediately following the Closing Date and shall
continue until 5:00 p.m., California time, on the date which is eighteen months
after the Closing Date (the "Escrow Period"); provided that the Escrow Period
shall not terminate with respect to such amount (or some portion thereof) as
together with the aggregate amount remaining in the Escrow Fund is necessary in
the reasonable judgment of Purchaser, subject to the objection of Seller, or
Rakepoll Finance and the subsequent arbitration of the matter in the manner
provided in Section 8.2(f) hereof, to satisfy any unresolved Claims (as defined
below) for Damages. As soon as such Claims have been resolved, the Escrow Agent
shall deliver to Seller the remaining portion of the Escrow Fund not required to
satisfy any other such unresolved Claims.
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(c) CLAIMS UPON ESCROW FUND.
(i) Upon receipt by the Escrow Agent at any time during the Escrow
Period of a Claim in the form of a certificate signed by any officer of
Purchaser (a "Claim"):
(ii) stating that an Indemnified Person has paid or properly
accrued or reasonably anticipates that it will have to pay or accrue
Damages; and
(iii) specifying in reasonable detail the individual items of
Damages included in the amount so stated, the date each such item was paid
or properly accrued, or the basis for such anticipated liability, and the
nature of the misrepresentation, breach of warranty or covenant to which
such item is related and, to the extent known, a reasonable summary of the
facts underlying the Claim; and
provided that no objection is received from Seller or Rakepoll Finance in
accordance with Section 8.2(e), the Escrow Agent shall, subject to the
provisions of Section 8.2(e) hereof, deliver to Purchaser, as promptly as
practicable, a number of Escrow Shares held in the Escrow Fund in an amount
equal to such Damages (the "Delivery").
(iv) For the purposes of determining the number of Escrow Shares to
be delivered to Purchaser pursuant to Section 8.2 hereof, the Escrow
Shares shall be valued at the average of the closing price of SICOR Common
Stock on the 20 consecutive trading days ending on the trading day
immediately prior to the date of the Delivery, Settlement Memorandum (as
hereinafter defined) or Award (as hereinafter defined), as applicable.
Purchaser and Seller shall certify such fair market value in a certificate
signed on behalf of Purchaser and Seller and shall deliver such
certificate to the Escrow Agent.
(d) OBJECTIONS TO CLAIMS. At the time of delivery of any Claim to the
Escrow Agent, a duplicate copy of such Claim shall be delivered to the Seller
and for a period of thirty (30) days after such delivery the Escrow Agent shall
make no delivery to Purchaser of any Escrow Shares pursuant to Section 8.2(d)
hereof unless the Escrow Agent shall have received written authorization from
the Seller to make such delivery. After the expiration of such thirty (30) day
period, the Escrow Agent shall make delivery to Purchaser of the number of
Escrow Shares from the Escrow Fund determined in accordance with Section 8.2(d)
hereof, provided that no such payment or delivery may be made if Seller or
Rakepoll Finance shall object in a written statement to the Claim, and such
statement shall have been delivered to the Escrow Agent prior to the expiration
of such thirty (30) day period.
(e) RESOLUTION OF CONFLICTS.
(i) In case Seller shall object in writing to any Claim, Seller
and Purchaser shall attempt in good faith to agree upon the rights of the
respective parties with respect to such Claim. If Seller and Purchaser
should so agree, a memorandum setting forth such agreement shall be
prepared, dated and signed by both parties and shall be furnished to the
Escrow Agent (the "Settlement Memorandum"). The Escrow Agent shall be
entitled to rely on any such memorandum and distribute the Escrow Shares
from the Escrow Fund in accordance with the terms thereof.
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(ii) If no such agreement can be reached after good faith
negotiation, the parties shall settle the Claim in accordance with the
arbitration procedures set forth in Section 11.4, unless the amount of the
damage or loss is at issue in pending litigation with a third party, in
which event arbitration pursuant to Section 11.4 shall not be commenced
until such amount is ascertained or both parties agree to arbitration. The
decision as to the validity and amount of any Claim shall be binding and
conclusive upon the parties to this Agreement, and notwithstanding
anything in Section 8.2(e) hereof, the Escrow Agent shall be entitled to
act in accordance with such decision and make or withhold payments out of
the Escrow Fund in accordance therewith.
(f) THIRD-PARTY CLAIMS. In the event Purchaser becomes aware of a
third-party claim which Purchaser believes may result in a demand against the
Escrow Fund, Purchaser shall notify Seller of such claim, and Seller shall be
entitled, at its expense, to participate in any defense of such claim. Purchaser
shall have the right in its sole discretion to settle any such claim; provided,
however, that except with the consent of Seller no settlement of any such claim
with third-party claimants shall alone be determinative of the amount of any
claim against the Escrow Fund. In the event of any settlement without the
consent of Seller, then no information relating to the settlement may be
introduced in arbitration proceeding. In the event that Seller has consented in
writing to any such settlement and acknowledged that the claim by Purchaser is a
valid claim against the Escrow Fund, neither Seller nor Rakepoll Finance shall
have any power or authority to object under any provision of this Article 8 to
the amount of any claim by Purchaser with respect to such settlement.
8.3 SURVIVAL OF REPRESENTATIONS AND WARRANTIES OF SELLER. All
representations and warranties of Seller and the Subsidiaries contained herein
(including all schedules and exhibits hereto) or in any certificate or other
instrument delivered pursuant hereto at the Closing in connection with the
transactions contemplated hereby shall survive the Closing and (i) the
representations and warranties set forth in Sections 2.16 and 2.21 shall remain
in full force and effect for a period of five (5) years following the Closing
Date, (ii) the representations and warranties set forth in Sections 2.9 and any
representations and warranties set forth in Article 2 relating to a claim for
fraud shall remain in full force and effect until expiration of the statutes of
limitations applicable to such underlying claim and (iii) all other
representations and warranties shall remain in full force and effect for
eighteen (18) months following the Closing Date. None of the Seller's
representations and warranties shall be affected by any investigation conducted
for or on behalf of Purchaser with respect thereto or any knowledge acquired by
Purchaser or its respective officers, directors, employees, shareholders or
agents as to the accuracy or inaccuracy of any such representation or warranty.
The waiver of any condition based on the accuracy of any representation or
warranty, or the performance or compliance of any covenant or obligation, will
not affect the right to indemnification set forth in this Article 8.
8.4 RELEASE OF THE ESCROW FUND. Upon expiration of the Escrow Period,
the Escrow Agent shall immediately transfer all or any outstanding portion of
the Escrow Fund to the Seller in the event that no Claim has been notified by
the Purchaser pursuant to Article 8.2.(c) or such Claim has been settled by the
Arbitration pursuant to Article 8.2.(e).
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8.5 EXCLUSIONS AND LIMITATIONS.
(a) Anything in this Agreement or in any applicable law to the contrary
notwithstanding, the Seller and Rakepoll Finance's liabilities under Article
8.1. shall be subject to the following restrictions and limitations:
(i) Seller and Rakepoll Finance shall have no obligation until the
aggregate of all amounts that would otherwise be due pursuant to paragraph
8.1 exceeds US$75,000, provided that, if such limit is exceeded, Seller
and Rakepoll Finance's liability shall include the entire amount to be
indemnified;
(ii) in no event will Seller or Rakepoll Finance be responsible to
Purchaser with respect to:
(1) any actual or alleged breach of the representations and
warranties contained in this Agreement (other than
representations and warranties concerning title to any
properties (including absence of liens and encumbrances
thereon), taxes, labor matters or compliance with laws) of
which Seller is notified more than sixty (60) days following
the date upon which Purchaser becomes aware of such actual or
alleged breach, but only to the extent that Seller is
materially prejudiced by such failure of notification within
such time period; or
(2) any actual or alleged breach of the representations and
warranties concerning taxes, labor matters or compliance with
laws contained in this Agreement of which Seller is notified
more than thirty (30) business days following the date on
which any claim by the competent authorities or other
interested party or parties with respect to matters covered by
such representations and warranties is finally barred by the
applicable statute of limitations.
(3) Notwithstanding the provisions of sub-paragraphs (1) and (2)
above, Seller and Rakepoll Finance's obligations under
paragraph 8.1 shall survive the expiration of the time limits
provided therein in respect of any actual or alleged breach of
representations or warranties of the Sellers referred to
therein which is the subject matter of an arbitration
proceeding under Article 11.4 hereof or of a judicial dispute
as of the date of such expiration.
8.6 RELEASE OF THE ESCROW FUND. Upon expiry of the Escrow Period the
Escrow Agent shall immediately transfer all or any outstanding portion of the
Escrow Fund to the Seller in the event that no Claim has been notified by the
Purchaser pursuant to Article 8.2.(c) or such Claim has been settled by the
Arbitration pursuant to Article 8.2.(e).
8.7 LIABILITY OF PURCHASER. For a period of eighteen months following
the Closing, Purchaser shall be liable to Seller for all costs, damages and
reasonable expenses (including reasonable attorney's fees) suffered by Seller
arising out of any misrepresentation or breach of
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any warranty or breach of the covenants or other obligations of Purchaser under
or in connection with this Agreement.
ARTICLE 9
TERMINATION, AMENDMENT AND WAIVER
9.1 TERMINATION. This Agreement may be terminated at any time prior to
the Closing Date:
(a) By mutual agreement of Purchaser and Seller;
(b) By Seller if on or before July 30, 2001, any of the conditions
specified in Sections 7.1 and 7.2 has not been met or waived by Seller; or
(c) By Purchaser if on or before July 30, 2001, any of the conditions
specified in Sections 7.1 and 7.3 has not been met or waived by Purchaser.
9.2 EFFECT OF TERMINATION. In the event of termination of this Agreement
by Seller, on the one hand, or Purchaser, on the other, as provided above, this
Agreement, subject to provisions of Section 10.1 hereof, shall forthwith become
void and there shall be no liability on the part of any party hereto, except for
the willful breaches of this Agreement prior to the time of such termination and
except that the indemnification provisions pursuant to Article 8 hereof shall
survive termination for claims arising prior to the termination.
9.3 AMENDMENT. This Agreement may not be amended except by an instrument
in writing signed by or on behalf of Purchaser and Seller.
9.4 EXTENSION; WAIVER. At any time prior to the Closing Date, any party
may (a) extend the time for the performance of any of the obligations or other
acts of the other parties hereto (provided that the term of this Agreement shall
not be extended without the consent of all parties), (b) waive any inaccuracies
in the representations and warranties contained herein for its benefit or in any
document delivered to it pursuant hereto and (c) waive compliance with any of
the agreements or conditions contained herein for its benefit. Any agreement on
the part of a party hereto to any such extension or waiver shall not be valid
unless set forth in any instrument in writing signed on behalf of such party.
ARTICLE 10
CONFIDENTIALITY
During the term of this Agreement, and until five years from the Closing
Date, each party shall maintain in confidence all information disclosed by one
Party (the "Disclosing Party") to the other party, to the extent such
information is maintained as confidential by the Disclosing Party (the
"Confidential Information"), and shall not use or grant the use of the
Confidential Information except for the purpose of carrying out and consummating
the transactions contemplated by this Agreement. Each party shall limit internal
disclosure of the other Party's Confidential Information on a need-to-know basis
to those directors, officers and employees,
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provided that such persons are obligated in writing or otherwise bound by
fiduciary obligations to hold in confidence and not make use of the Confidential
Information for any purpose other than those permitted by this Agreement.
The obligations contained in Section 10.1 above shall not apply to the
extent that (a) a party is required to disclose information by law, order or
regulation of a governmental agency or a court of competent jurisdiction,
provided that such party shall provide written notice thereof to the Disclosing
Party and the Disclosing Party has sufficient opportunity to object to any such
disclosure or to request confidential treatment thereof; or (b) such party can
demonstrate by written documentation that (i) the information was public
knowledge at the time of such disclosure by the Disclosing Party, or thereafter
became public knowledge, other than as a result of acts attributable to such
other Party in violation hereof; (ii) the information was rightfully known by
the other party prior to the date of disclosure by the Disclosing Party; or
(iii) the information was disclosed to the other party on an unrestricted basis
from a third party not under a duty of confidentiality to the Disclosing Party.
Except as otherwise required by applicable law, regulation or order of a
governmental agency or court of competent jurisdiction, neither party shall use
the name of the other party or the other party's directors, officers or
employees (other than to the extent that a person may be a common director,
officer or employee) in any advertising, news release or other publication,
without the prior express written consent of the other party.
ARTICLE 11
MISCELLANEOUS PROVISIONS
11.1 SCHEDULE UPDATES. Seller and Purchaser shall each promptly disclose
to the other party if any material information contained in their respective
representations and warranties is incomplete or is no longer correct as of all
times after the date hereof until the Closing; provided however that any such
disclosure or correction shall not affect the rights of Purchaser pursuant to
Sections 7.3(b) or 8.1 of this Agreement.
11.2 SUCCESSORS AND ASSIGNS. No part of this Agreement or any rights,
duties or obligations described herein shall be assigned or delegated without
the express written consent of the parties hereto, except that Purchaser may
assign its rights, obligations and responsibilities to an affiliate of
Purchaser. Except as otherwise provided herein, the provisions hereof shall
inure to the benefit of, and be binding upon, the successors and assigns of the
parties hereto.
11.3 ENTIRE AGREEMENT. This Agreement constitutes the full and entire
understanding and agreement among the parties with regard to the subject hereof
and supersedes all prior agreements and understandings, both written and oral.
11.4 GOVERNING LAW AND DISPUTE RESOLUTION.
(a) GOVERNING LAW. This Agreement shall in all respects be governed by
and construed, and any decision by arbitrator(s) pursuant to this Article 11,
shall be rendered in accordance with, the substantive laws of the State of
California, (U.S.A.), without regard to its choice of law rules. Notwithstanding
the foregoing sentence, questions concerning arbitrability
- 39 -
under the dispute resolution provision hereof shall be governed exclusively by
the United States Arbitration Act.
(b) ARBITRATION. In the event of any dispute, controversy or claim
arising out of or relating to this Agreement, or to the breach or termination
hereof (a "Dispute"), the parties agree to resolve the same as follows:
(i) The parties to the Dispute shall use all reasonable attempts
to resolve the Dispute through consultations and negotiations. Within
twenty (20) days of written notice, pursuant to Section 11.5, that there
is a Dispute, the parties shall meet in New York or confer by telephone in
an effort to reach an amicable settlement and to explore alternative means
to resolve the Dispute expeditiously (e.g., mediation).
(ii) If the Dispute has not been resolved amicably within
forty-five (45) days after any party provides notice thereof, unless the
parties agree otherwise, the Dispute shall be resolved by final and
binding arbitration in London, England, in accordance with the Arbitration
Rules of the United Nations Commission on International Trade Law
("UNCITRAL"), as in effect on the date of this Agreement. The London Court
of International Arbitration shall serve as the appointing authority.
There shall be one arbitrator, who shall be neutral, independent and
impartial. The arbitrator may be of any nationality, but must have
knowledge and experience in the biotech industry. The language to be used
in the arbitral proceeding shall be English. The arbitrators shall render
a written award stating the reasons for the decision (the "Award").
Judgment on an Award or decision may be entered by any court of competent
jurisdiction, or application may be made to such a court for judicial
acceptance of the award or decision and any appropriate order, including
enforcement. The parties agree to exclude the right of appeal to the High
Court under any arbitration Act in relation to an award or a question of
law arising in the course of a reference under this clause.
(iii) Each of the parties hereto consents to the submission of any
Dispute for settlement by final and binding arbitration in accordance with
Subsection (b) above, and hereby waives any other forum that may apply to
it by reason of its present or future domicile, or for any other reason.
Such consent shall satisfy the requirements for an "agreement in writing"
pursuant to Article II of the United Nations Convention on the Recognition
and Enforcement of Foreign Arbitration Awards, done at New York on June
10, 1958.
(iv) The parties hereby agree to continue to perform their
obligations hereunder while any Dispute is pending.
(v) Each of the parties hereby undertakes to carry out without
delay the provisions of any arbitral award or decision.
(vi) The dispute resolution proceedings contemplated by this
Article 11 shall be as confidential and private as permitted by law. To
that end, the parties shall not disclose the existence, content or results
of any proceedings conducted in accordance with this Article 11, and
material prepared or submitted in connection with such
- 40 -
proceedings shall not be admissible in any other proceeding, provided,
however, that this confidentiality provision shall not prevent a petition
to vacate or enforce an arbitral award, and shall not bar disclosures
required by law. The parties agree that any decision or award resulting
from proceedings in accordance with these dispute resolution provisions
shall have no preclusive effect in any other matter involving third
parties.
(vii) All of the parties agree that any breach of the terms of this
Agreement may give rise to irreparable harm to any of them for which money
damages would not be an adequate remedy, and accordingly agree that, in
addition to other remedies, the non-breaching party shall be entitled to
enforce the terms of this Agreement by a decree of specific performance
without the necessity of proving the inadequacy as a remedy of money
damages.
11.5 NOTICES. Any notice, request, instruction or other document to be
given hereunder by any party to the other shall be in writing and delivered
personally or sent by certified mail, postage prepaid, by telecopy, or by
courier service, as follows:
(a) IF TO PURCHASER TO:
SICOR Inc.
00 Xxxxxx
Xxxxxx, XX 00000
Attn: Chief Executive Officer
Tel: (000) 000-0000
Fax: (000) 000-0000
with copies to:
Pillsbury Winthrop LLP
00 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx, Xx.
Tel: (000) 000-0000
Fax: (000) 000-0000
(b) IF TO SELLER:
Xxx-Xxxxxxxx X.X.
Xxxxxxxxxxxxxx 000
Xxxxxxx, Xxxxxxxxxxx Antilles
Attn: Xxxxxxxx Xxxxxxxxxx
Tel: +599.9-434.3643
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with copies to:
Avv. Xxxxxxx Xxxxxxxxxx / Avv. Xxxxxx Xxxxxx
Studio legale Xxxxxx Xxxxxxx Xxxxxxxxxx Xxxxxx
Xxx Xxxxx 00
0000 Xxxxxx - Xxxxxxxxxxx
Tel: + 00 00 000 00 00
Fax: + 00 00 000 00 00
and to:
Fidinam S.A.
Xxx Xxxxxx 0
XX-0000 Xxxxxx
Attn: Xxxx X. Xxxx
Tel: +41.91-973.1334
Fax: +41.91-973.1365
(c) IF TO BIOTECHNA U.A.B.:
Biotechna U.A.B.
V.Graiciuno 8
Vilnius, LT-2028 Lithuania
Attn: Vladas Xxxxxxxx Xxxxxxx
Tel: +(370 2) 660 200
Fax: +(370 2) 660 206
with copies to:
XxXxxxxxx, Will & Xxxxx Law Firm
LT-2600
Vilnius, Lithuania
Attn: Eugenija Sutkiene
Tel: (370 2) 791-000
Fax: (370 2) 227 955
(d) IF TO GATIO INVESTMENTS B.V.:
Gatio Investments X.X.
Xxxxxxxxxxxxxx 0000XX-0000XX Xxxxxxxxx
Attn: Xxxx van Baarle
Tel: +31.10-406.4444
Fax: +31.10-406.4555
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with copies to:
Fidinam S.A.
Xxx Xxxxxx 0
XX-0000 Xxxxxx
Attn: Xxxx X. Xxxx
Tel: +41.91-973.1334
Fax: +41.91-973.1365
(e) IF TO RAKEPOLL FINANCE N.V.:
Xxxxxxxx Xxxxxxx X.X.
Xxxxxxxxxxxxxx 000
Xxxxxxx, Xxxxxxxxxxx Antilles
Attn: Xxxxxxxx Xxxxxxxxxx
Tel: +599.9-434.3643
with copies to:
Avv. Xxxxxxx Xxxxxxxxxx / Avv. Xxxxxx Xxxxxx
Studio legale Xxxxxx Xxxxxxx Xxxxxxxxxx Xxxxxx
Xxx Xxxxx 00
0000 Xxxxxx - Xxxxxxxxxxx
Tel: + 00 00 000 00 00
Fax: + 00 00 000 00 00
and to:
Fidinam S.A.
Xxx Xxxxxx 0
XX-0000 Xxxxxx
Attn: Xxxx X. Xxxx
Tel: +41.91-973.1334
Fax: +41.91-973.1365
11.6 ENGLISH LANGUAGE. All notices or communications to be given or made
under this Agreement shall be in the English language, or, if in another
language, shall be accompanied by a translation into English certified by a
representative of the relevant party giving such notice or making such
communication.
11.7 COOPERATION. All parties agree to execute and deliver such other
documents, certificates, agreements and other writings and to take such other
actions as may be necessary or desirable in order to expeditiously consummate or
implement the transactions contemplated by this Agreement.
11.8 INTERPRETATION. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
- 43 -
11.9 DELAYS OR OMISSIONS. No delay or omission to exercise any right,
power or remedy accruing to any party to this Agreement, upon any breach or
default of another party under this Agreement, shall impair any such right,
power or remedy of such party nor shall it be construed to be a waiver of any
such breach or default, or an acquiescence therein, or of or in any similar
breach or default thereunder occurring; nor shall any waiver of any single
breach or default theretofore or thereafter occurring. Any waiver, permit,
consent or approval of any kind or character on the part of any party of any
breach or default under this Agreement, or any waiver on the part of any party
of any provisions or conditions of this Agreement, must be in writing and shall
be effective only to the extent specifically set forth in such writing. All
remedies, either under this Agreement, or by law or otherwise afforded to any
party, shall be cumulative and not alternative.
11.10 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which may be executed by less than all of the parties,
each of which shall be enforceable against the parties actually executing such
counterparts, and all of which together shall constitute one instrument.
11.11 SEVERABILITY. In the case any provision of this Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
ARTICLE 12
DEFINITIONS
12.1 TERMS DEFINED IN THIS AGREEMENT. The following capitalized terms
used herein shall have the meanings ascribed in the indicated sections.
Acquired Company Securities...........................................2.1
Agreement.................................................First Paragraph
Alternative Transaction...............................................5.2
Biotechna Shares......................................................2.1
Claim.................................................................8.2
Closing...............................................................1.2
Closing Date..........................................................1.2
Confidential Information.............................................10.1
Consents..............................................................2.4
Contract.............................................................2.13
Disclosing Party.....................................................10.1
Dispute..............................................................11.4
Employee Plans.......................................................2.10
Encumbrance...........................................................1.1
Environmental Laws or Regulations....................................2.21
Escrow Agent..........................................................1.4
Escrow Agreement......................................................1.4
Escrow Fund...........................................................1.4
Escrow Period.........................................................8.2
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Escrow Shares.........................................................1.4
Financial Statements..................................................2.5
GAAP..................................................................5.9
Gatio Shares..........................................................1.1
Governmental Entity...................................................2.4
Hazardous Material...................................................2.21
Holders...............................................................6.9
Indemnified Persons...................................................8.1
Material Adverse Effect...............................................2.7
NASDAQ................................................................4.5
Organizational Documents..............................................2.1
Permits..............................................................2.11
Proprietary Rights...................................................2.16
Purchase Price........................................................1.3
Purchaser Disclosure Schedule...................................Article 4
Registration Expenses.................................................6.9
Registrable Securities................................................6.9
Registration Statement................................................6.9
Restricted Securities.................................................3.5
Securities Act........................................................3.4
Seller Disclosure Schedule......................................Article 2
Selling Expenses......................................................6.9
Settlement Memorandum.................................................8.2
Shares................................................................3.6
SICOR.................................................................1.3
SICOR Common Stock....................................................1.3
SICOR SEC Documents...................................................4.7
SICOR Shares..........................................................4.4
Subsidiaries..........................................................2.1
Taxes.................................................................2.9
Transaction...........................................................1.1
UNCITRAL.............................................................11.4
[The remainder of this page intentionally left blank]
- 45 -
IN WITNESS WHEREOF, Purchaser, Seller, Biotechna, Gatio and Rakepoll
Finance have caused this Agreement to be executed, all as of the date first
above written.
SICOR INC.
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
BIO-RAKEPOLL N.V.
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
Biotechna U.A.B.
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
- 46 -
Gatio Investments B.V.
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
RAKEPOLL FINANCE N.V.
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
- 47 -
