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EXHIBIT 2.3
SHARE PURCHASE AGREEMENT
BETWEEN THE UNDERSIGNED:
- LABORATOIRES PEROUSE S.A., a corporation (societe anonyme) organized and
existing under French law whose registered office is located at ZA
x'Xxxxxxxxxx, Xxxxxx, 00000 Xxxxxx, Xxxxxx, registered with the Commercial
and Companies Registry of Beauvais under number B 317 883 999, duly
represented herein by Mr. Xxxx Perouse in his capacity as Chairman
(hereinafter referred to as the "Seller");
- Mr. Xxxx Perouse, of French nationality, residing in L'ISLE XXXX
(Val d'Oise), 00, xxx Xxxxx Xxxxxx, principal shareholder of the Seller
(hereinafter referred to as "Mr. Perouse");
on the one hand,
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AND
Xxxxxxxx Micro Science S.A.S., a corporation (societe anonyme simplifiee)
organized and existing under French law, whose registered office is
located at 00 Xxxxxxxxx xx Xxxx, 00000 Xxxxxxx-xxx-Xxxxx, Xxxxxx, duly
represented by Xx. Xxxx Xxxxxx in his capacity as President of Xxxxxxxx
Micro Science S.A.S. (hereinafter referred to as the "Purchaser");
on the other hand,
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The Seller, Mr. Perouse and the Purchaser are hereinafter collectively
referred to as the "Parties" and, individually, as a "Party".
FIRST OF ALL THE FOLLOWING WAS SET FORTH:
The Seller declares that it owns one hundred two thousand five hundred
(102,500) shares (hereinafter referred to as the "Shares") representing 100% of
the share capital, the voting rights and the rights to the profits of the
company Laboratoires Perouse Sterilisation S.A., a corporation organized and
existing under French law with a capital of ten million two hundred fifty
thousand (10,250,000) Francs divided into one hundred two thousand five hundred
(102,500) shares of one hundred Francs (FF 100) each, whose registered office
is located at 0 xxx Xxxxxxxxxx, 00000 Xxxxxxxx, Xxxxxx, registered with the
Commercial and Companies Registry of Beauvais under number B 344 047 097
(hereinafter referred to as the "Company").
The Company's activity is the sterilization of medical devices, healthcare
products, cosmetics, laboratory supplies, pharmaceuticals and packaging by
means of chemical processes (including ethylene oxide gas) or steam and the
development, production and quality control of sterilization equipment using
the same processes (the "Sterilization Activity"). Sterilization Activity does
not include sterilization by means of electron beams or gamma irradiation.
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2.
Negotiations have taken place between the Seller and the Purchaser with respect
to the acquisition by the Purchaser of the Company. The Seller has expressed
the wish that this acquisition take place by means of the acquisition of 100%
of the capital, the voting rights and the rights to the profits of the Company.
The Seller is disposed to sell and the Purchaser is disposed to acquire the
Shares under the terms and conditions hereinafter set forth.
THE FOLLOWING WAS THEN AGREED:
1 - PURCHASE AND SALE
The Seller hereby sells on the date hereof (the "Closing Date") all of the
Shares to the Purchaser, in such a manner that the Purchaser holds 100% of the
capital, the voting rights and the rights to the profits of the Company.
2 - PURCHASE PRICE
2.1 Purchase Price.
In consideration for the purchase of the Shares and subject to the
conditions and adjustments provided for herein, the Purchaser hereby pays to
the Seller, a total price of twenty seven million Francs (FF 27,000,000) (the
"Purchase Price").
2.2 Price Adjustment
2.2.1 Shareholders Equity.
The Seller and Mr. Perouse hereby represent and warrant that the
shareholders equity of the Company (the "Shareholders Equity") as of the
Closing Date (the "Closing Shareholders Equity") shall not be less than the
amount of the Shareholders Equity set forth on the balance sheet of the Company
as of 30 June, 1994 attached hereto as Annex A (the "30 June Balance Sheet").
2.2.2 Closing Balance Sheet.
The Seller and Mr. Perouse shall cause the Company's accountants SECA, 00
xxx, xxx xx Xxxxxxx Xxxxxxx, Xxxxxxxx, Xxxxxx ("SECA") to prepare the balance
sheet of the Company as of the Closing Date (the "Closing Balance Sheet") and
deliver the same to the Purchaser and the Purchaser's advisor, KPMG Corporate
Finance, 00 xxx, xxx xx Xxxxxxxx, Xxxxxxx-xxx-Xxxxx, Xxxxxx ("KPMG") no later
than twenty (20) days after the Closing Date. The Purchaser shall be
responsible for arranging for the Seller, Mr. Perouse and SECA access to the
documents necessary for preparation of the Closing Balance Sheet. The
Purchaser shall cause KPMG to examine the Closing Balance Sheet and, for that
purpose, will cause the Company to give access to such documents and
information as KPMG may require in order to effect such examination. The
Seller and Mr. Perouse shall cause SECA to provide such assistance as KPMG may
require. Within twenty (20) days after receipt of the Closing Balance Sheet,
the Purchaser shall deliver to
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3.
the Seller and Mr. Perouse a statement with respect to any proposed adjustments
to the Closing Balance Sheet as proposed by KPMG. If the Closing Balance Sheet
as examined by KPMG reveals any decrease in the Closing Shareholders Equity as
compared to the Shareholders Equity on the June 30 Balance Sheet (the
"Shareholders Equity Shortfall") then the Purchaser, Mr. Perouse and the Seller
shall negotiate in good faith to attempt to agree upon the actual amount of the
Closing Shareholders Equity no later than twenty (20) days after the Seller's
receipt of the KPMG audit statement. At the end of the last twenty (20) day
period, the more diligent Party will dispose of the delay of five (5) working
days to file a demand for arbitration to resolve any dispute in accordance with
Article 2.2.4 below.
2.2.3 Adjustment of Purchase Price.
2.2.3.1 Calculation. In the event of any Shareholders Equity Shortfall
and subject to the provisions of Article 2.2.3.2 below, the Purchase Price
shall be reduced in an amount equal to the Shareholders Equity Shortfall
provided that the following conditions are fulfilled:
(i) the Shareholders Equity Shortfall is a direct result of operations
in the ordinary course of business of the Company; and
(ii) there has been no breach of any of the representations or warranties
set forth in Article 6 below.
2.2.3.2 Deductible Amount. In the event of any Shareholders Equity
Shortfall for which the Purchaser makes a claim pursuant to Article 2.2.3.1
above, the Seller shall not be required to pay the first one hundred thousand
Francs (FF 100,000) of the amount so calculated, but shall only be liable for
the amount in excess of the amount of FF 100,000. Unless an arbitration
procedure is commenced in accordance with Article 2.2.4 below, the Seller shall
promptly pay to the Purchaser the amount of the claim less the deductible
amount. In the event of the Seller's failure to do so, the Amount shall be
paid from the Fund as hereinafter defined in Article 2.2.5.
2.2.3.3 Other Claims. In the event of any Shareholders Equity Shortfall
which occurs under circumstances in which the conditions of Article 2.2.3.1
above have not been fulfilled, the Seller shall pay to the Purchaser an amount
equal to three (3) times the amount of the Shareholders Equity Shortfall not
subject to any set off or deductible amount. The Seller shall promptly pay
such amount after the Purchaser's demand therefor unless arbitration is
instituted in accordance with the provisions of Article 2.2.4 below.
Otherwise, the amount of the claim shall be paid from the Fund as hereinafter
defined in Article 2.2.5.
2.2.4 Arbitration.
In the event of a dispute as to the amount of the Closing Shareholders
Equity, the Seller, Mr. Perouse and the Purchaser hereby agree to submit the
dispute to arbitration by Ernst & Young, Paris, France ("Ernst & Young"). In
the event that Ernst & Young shall be unable or unwilling to accept such a
mission, the more diligent Party may apply to the President of the Commercial
Court of Paris for the nomination of another auditing firm to take the place of
Ernst & Young. Ernst & Young or such other auditing firm shall deliver its
decision with respect to
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the Closing Shareholders Equity no later than forty-five (45) days following
acceptance of the appointment. The Party against whom the dispute is resolved
shall pay the fees of Ernst & Young or such other auditing firm.
2.2.5 Escrow Fund.
On the Closing Date, the Purchaser shall pay to Barclays Bank (the "Escrow
Agent") as escrow agent pursuant to the Escrow Agreement attached hereto as
Annex B the sum of five million Francs (FF 5,000,000) (the "Fund") which shall
be the Purchaser's security for any Purchase Price adjustment based on any
Shareholders Equity Shortfall.
2.2.6 Investment of the Fund.
The Fund shall be invested in liquid investment grade securities of
recognized quality. All interest or other income on the Fund shall be paid to
the Party or the Parties pro-rata to the portion of principal of the Fund paid
to such Party or Parties.
2.2.7 Termination of the Fund.
No later than five (5) days after the amount of the Closing Shareholders
Equity shall have been definitively determined, the Purchaser and the Seller
shall give joint written instructions to the Escrow Agent as to the payment of
the Fund.
2.3 Payment of the Purchase Price
The Purchase Price, less the amount of the Fund, shall be paid at the Closing
by bank check.
2.4 Dividends
The Seller and Mr. Perouse hereby represent and warrant to the Purchaser
that no dividends have been paid by the Company since January 1, 1994, except
for the distribution of reserves as set forth in Annex C hereto.
3 - CLOSING OBLIGATIONS
3.1 Simultaneously with the execution hereof, the following operations are
taking place:
3.1.1 Termination by mutual consent of the leases currently in force
between SCI Eugenie and SCI Xxxxx (collectively, the "Owners"), on
the one hand, and the Company, on the other hand, concerning the
land and buildings at Vaulx-en-Velin, without any obligation to the
parties to such leases to return the same to the original state or
to pay damages of any nature whatsoever and the execution, on
financial terms which are identical, by the Company, on the one
hand, and the SCI Xxxxx and SCI Eugenie, on the other hand, of the
commercial leases attached in Annex F-1 relating to all of the
buildings and land at
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Vaulx-en-Velin, specifically excluding the lease for
Vaulx-en-Velin executed by the Company and SCI Eugenie on January
25, 1994 as amended on February 21, 1994.
3.1.2 Termination by mutual consent of the current lease between the
Company and the Societe Civile Immobiliere Xxxxxxxxxx without any
obligation to the parties to such lease to return the premises to
their original state or to pay damages of any nature whatsoever,
and execution of a deed by SCI Xxxxxxxxxx and the Company as set
forth in Annex F-2 hereto, pursuant to which SCI Xxxxxxxxxx
transfers to the Company all of the buildings and land at Rantigny
(the "Rantigny Property") for a price of ten million Francs (FF
10,000,000), plus V.A.T. (the "Rantigny Purchase Price"), the
costs, fees and duties relating thereto to being paid by the
Purchaser. The Seller and Mr. Perouse hereby guarantee to the
Purchaser that the sale of the Rantigny Property is subject to
V.A.T. All registration duties which may become payable in respect
of the Rantigny Purchase Price or in respect of a part of such
price, to the extent and only to the extent that all or part of the
sale of the Rantigny Property is not subject to V.A.T., will be for
the account of the Seller, Mr. Perouse and SCI Xxxxxxxxxx jointly
and severally.
3.1.3 Delivery by the Seller to the Purchaser of the letters of
resignation of the Directors and General Managers (directeurs
generaux) of the Company, according to which such persons also waive
any claim for any reason whatsoever against the Company the text of
which resignation and release is set forth in Annex K hereto.
3.1.4 Delivery by the Seller to the Purchaser of the share transfer
registers, shareholders accounts, and registers of the Company's
minutes of General Meetings and Board of Directors Meetings.
3.1.5 Execution and delivery by Mr. Perouse and all the companies
directly or indirectly controlled by Mr. Perouse, on the one hand,
and the Purchaser, on the other hand of the agreement for the
exclusive provision of ethylene oxide sterilization services set
forth in Annex L hereto.
3.1.6 Termination on the Closing Date of the existing management
agreement between the Seller and the Company, without penalty to
either party to the said agreement.
3.2 With respect to the transactions described in Articles 3.1.1 and
3.1.2 above, Mr. Perouse represents and warrants that he controls the SCI's
Eugenie, Xxxxx and Xxxxxxxxxx, and jointly and severally guarantees, subject to
the terms and conditions of this Agreement, that the aforementioned parties are
validly executing and delivering the aforementioned commercial leases to the
Purchaser, and that SCI Xxxxxxxxxx is fulfilling all its obligations under
Article 3.1.2 above.
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6.
4 - REPRESENTATIONS AND WARRANTIES
4.1 Warranty Agreement. As of the Closing Date the Seller has executed,
for the benefit of the Purchaser, and delivered to the Purchaser the Warranty
Agreement as set forth in Annex E-1 hereof (the "Warranty Agreement").
4.2 Covenants of the Seller and Mr. Perouse. The Seller and Mr. Perouse
hereby covenant and agree for the benefit of the Purchaser that until the
Warranty Agreement has been terminated and the Seller has fulfilled all of its
obligations and agreements thereunder:
(i) The consolidated net worth of the Seller and its Affiliates or the
net worth of the Seller in the case in which the Seller shall no
longer have any majority participation in its affiliates
(collectively the "Net Worth") shall not at any time be less than
ten million francs (10.000.000 FF) during the five (5) years
starting on the Closing Date. However, if the Net Worth
becomes, at any time during this period, less than the said amount
of ten million francs (10.000.000 FF), the Seller shall furnish to
the Purchaser within a period of thirty (30) days, a supplementary
bank guaranty (the "Shortfall Guaranty") in accordance with the
guaranty letter of the Societe Generale set forth in Annex E-3
hereto for the amount of the difference between the ten million
francs (10.000.000 FF) and the actual Net Worth, the Shortfall
Guaranty in no case to be higher than five million francs (5.000.000
FF) less the current amount of the Bank Guaranty as defined in
Article 4.5 below. The amount of the Shortfall Guaranty shall be
adjusted each year based on the annual accounts of the Seller,
deduction being made for the current amount of the Bank Guaranty.
For the purposes of this article, if the cumulative amount of the
Shortfall Guaranty and the Bank Guaranty is in excess of five
million francs (5.000.000 FF), the amount of the Shortfall Guaranty
shall be adjusted in such a manner that the amount of the two
abovementioned guaranties shall be equal to five million francs
(5.000.000 FF).
(ii) no later than ninety (90) days after the end of each fiscal year of
the Seller, the Seller shall deliver to the Purchaser a certified
copy of the Seller's financial statements for the most recently
ended fiscal year and a certificate signed by the President and the
Chief Financial Officer of the Seller certifying as to the Seller's
compliance with the covenants and agreements set forth in this
Article 4.2 of this Agreement, a form of which certification is set
forth in Annex J hereto.
4.3 [Not used].
4.4 [Not used].
4.5 Bank Guaranty. The Seller's obligations under this Agreement and the
Warranty Agreement are guaranteed by Bank Societe Generale pursuant to the duly
executed bank guaranty in an initial amount of three million Francs (FF
3,000,000) in force for a period of three (3) years from the Closing Date which
the Seller and Mr. Perouse have delivered herewith to the Purchaser in the form
of Annex E-2 attached hereto (the "Bank Guaranty").
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7.
4.6 Computer Equipment Sublease. The Sellers hereby represent to the
Purchaser that the list of computer equipment set forth in Annex DC-1 hereto
constitutes all of the computer equipment currently used in the Sterilization
Activity (the "Computer Equipment"). The Computer Equipment is leased by the
Seller from SOFINABAIL pursuant to two separate leases dated September 18, 1990
and March 13, 1991, copies of which are attached hereto as Annex DD-1 and Annex
DD-2 respectively. The Seller has delivered herewith to the Purchaser the duly
executed sublease agreement pursuant to which the Seller agrees to sublease the
Computer Equipment to the Company for the agglomerate amount of forty three
thousand nine hundred and fourteen Francs (FF 43,914), from the Closing Date
until the termination of the respective leases and on such other terms and
conditions as provided in the draft sublease set forth in Annexe DE-1 hereto
(the "Sublease").
4.7 Computer Equipment Option to Purchase. At the end of the current term
of each lease for the Computer Equipment, the Company shall have the right to
acquire full right, title and ownership to the Computer Equipment for a
percentage of the termination payment as provided for under the lease in
question equivalent to the percentage of the rent paid as further described in
the Subleases. A copy of the authorization of Datika, the owner of the
software used by the Sterilization Activity to the transfer of same to
Purchaser is attached as Annex DC-2 hereto.
4.8 Sterilization Activity Property. The Seller and Mr. Perouse hereby
represent and warrant to the Purchaser that all of the property currently used
in connection with the Sterilization Activity is in the possession of the
Company on the date hereof and the Company has the legal right to possess and
use the same.
4.9 Vehicles. The Seller hereby represents and warrants to the Purchaser
as follows. The vehicles identified in Annex I hereto are the only ones used
in the Sterilization Activity (the "Vehicles") and that the Company has full
right and title to all the Vehicles except for the automobiles under lease
(copies of which leases are set forth in Annex DD-3 hereto). All the Vehicles
are in good condition subject to normal wear and tear. The Vehicles are all in
the possession of the Company on the date hereof. With respect to the leased
automobiles, the Company has the right to continue to lease them and shall be
able to acquire them in accordance with the provisions of the corresponding
leases.
5. - JUNE 30, 1994 BALANCE SHEET
The Seller and Mr. Perouse have delivered to the Purchaser the Company's
balance sheet for the period ended June 30, 1994, prepared by the management of
the Company (the "June 30 Balance Sheet"). The June 30 Balance Sheet takes
into account (i) the forgiveness of debt in the amount of three million seven
hundred and eighty two thousand, five hundred and fifty six Francs and twenty
two centimes (FF 3,782,556.22) owed by the Seller to the Company, this
forgiveness not being tax-deductible by the Company and (ii) the distribution
of reserves the payment of which has been effected by reduction of the debt
owed to the Seller as set forth in Annex C hereto. The Seller and Mr. Perouse
hereby represent and warrant to the Purchaser that
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the June 30 Balance Sheet has been prepared in accordance with accounting
principles and procedures applied on a basis consistent with those used to
prepare the Company's annual financial statements. The Seller hereby
represents and warrants to the Purchaser that the June 30 Balance Sheet
presents fairly the Company's shareholders equity at such date.
6. - CONDUCT OF BUSINESS
6.1 The Seller and Mr. Perouse hereby represent and warrant to the
Purchaser with respect to the period commenced February 1, 1994, and ended on
the date hereof and except as set forth in Annex H hereto, that the Company:
6.1.1 has not declared or paid any distribution of dividends or other
return on capital, subject to the distribution of reserves as set
forth in Annex C hereto;
6.1.2 has not modified any of its articles, by-laws or corporate bodies,
nor decided on the creation, at any time or on a set date, of new
shares or other securities representing a portion of the share
capital and/or giving right to a share of the profits of the
Company;
6.1.3 has not sold, transferred, mortgaged, pledged or submitted to any
restrictions on ownership, possession or enjoyment rights of, any
of its tangible or intangible assets, except in the ordinary course
of business and under such terms and conditions as are in
accordance with those of the market and professional practices, and
provided that they are not assets essential to the activities of the
Company or whose market value exceeds in aggregate 50,000 Francs;
6.1.4 has not entered into any contract, commitment or agreement
whatsoever other than those required in the ordinary course of
business and on the condition that they are entered into in
conditions in accordance with those of the market and professional
standards and respecting the legislation and regulations in force
and does not entail payments by or to the Company in excess of
50,000 Francs per contract, commitment or agreement;
6.1.5 has not terminated in advance any contract, commitment or
agreement whatsoever to which the Company is a party, subject to the
ordinary course of business;
6.1.6 has not decided on nor undertaken to grant in the future any
salary increase or increase in the remuneration or benefits nor to
provide any new benefits or advantages other than those existing on
January 31, 1994, for the benefit of any of its employees,
directors, corporate representatives or other managers, advisors or
consultants, subject to increases in the ordinary course of
business;
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6.1.7 has not hired any employee or proceeded with any recruitment or
recruitment undertaking;
6.1.8 has not terminated any management level employee;
6.1.9 has maintained its tangible assets in a good state of repair and
maintenance;
6.1.10 has been managed with due and proper care and has continued to
operate its business in the same way as done in the past, has
continued to benefit from the services of its directors, corporate
representatives and other managers, advisors and consultants and
employees and has maintained good relations with its clients,
distributors, suppliers and other entities or persons with whom it
has a business relationship, as well as any administration or
authority on which it depends.
6.2 The Seller and Mr. Perouse further represent and warrant to the
Purchaser as follows:
6.2.1 The aggregate debt of the Company as set forth in the June 30
Balance Sheet, entrey "Bank Loan", does not exceed at the Closing
Date the amount of 6,525,000 Francs disclosed in the Financial
Statements of the Company as of December 31, 1993 prepared by the
Cabinet SECA, less any scheduled repayment of such debt amount
pursuant to the underlying loan agreements.
6.2.2 [Not used].
6.2.3 The Seller has complete ownership, free of any pledge, lien,
encumbrance, restriction or charge, of the Shares and free of any
claim by any former shareholder of the Company.
6.2.4 Subject to any applicable statute of limitation, the installations
and the activity of the Company is and has always been completely
in accordance with the laws, regulations and individual
administrative decisions applicable thereto.
6.2.5 The transfer of the Shares to the Purchaser and/or the change in
control of the Company which results from such transfer does not
adversely affect the financial, legal, operational or commercial
position of the Company.
6.2.6 There does not exist any other factor of such nature as to
cause a professional buyer reasonably to determine not to proceed
with the purchase of the Shares under the terms and conditions
hereof.
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10.
6.2.7 The lease dated January 25, 1994, as amended on February 21, 1994,
for the rental of certain property in Vaulx-en-Velin has been
terminated and the Company has been fully reimbursed for (a) all
rents paid thereunder and (b) the increased rents paid on the
existing facility in Vaulx-en-Velin charged to the Company
subsequent to December 31, 1993.
7. - FRENCH GOVERNMENT REQUIREMENTS
The Parties hereby acknowledge the fulfillment of all the conditions required
by law and in particular sending the notice of the proposed investment to the
Ministry of Economy as required by the French regulation of foreign investments
in France.
8. - POST-CLOSING UNDERTAKINGS OF CONFIDENTIALITY AND NON-COMPETITION
8.1 The Seller and Mr. Perouse hereby agree to keep secret and
confidential all commercial, financial, technical or other information which
they have in their possession regarding the business of the Company, and its
clients, not including the information which is known publicly or available to
the public and deliver the same to the Purchaser on the Closing Date. In
addition, they agree not to use for their benefit or reveal to third parties
any commercial secrets, know-how or confidential information about the Company,
except that they may use such know-how or confidential information for the
purpose of the activities described in Article 8.3 hereafter.
8.2 The Seller and Mr. Perouse undertake, in their own names as well as in
the name of each of the companies which either one of them controls directly or
indirectly, for a period of five (5) years as from the Closing Date, not to
exercise any activity whatsoever in the field of Sterilization Activity,
whether directly or indirectly (through the intermediary of an entity which
either of them controls or manages, through a third party or otherwise) whether
a board member, an employee, manager in law or de facto, authorized
representative, consultant or otherwise within the territory defined by a
circle having a radius of three hundred twenty (320) kilometers around each
facility of the Company (the "Territory"). The Seller and Mr. Perouse each
undertakes, for the same period, not to hold directly or indirectly more than
five per cent (5%) of the voting rights or rights to dividends in an enterprise
which directly or indirectly exercises an activity in the field of
Sterilization Activity in the Territory. It will be considered that an entity
exercises an activity in the field of Sterilization Activity in the Territory
if either (i) it owns controls or otherwise operates a facility engaging in
Sterilization Activity within the Territory or (ii) any products sterilized by
such entity are delivered within the Territory regardless of the location of
the sterilization facility.
For purposes of the present provision, it shall not be deemed a violation
of the noncompetition obligation for the Seller to have an interest, even
majority interest, in the Belgian law company Caric Mediris ("Caric Mediris").
However, if the Seller acquires the control of
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Caric Mediris, it agrees and guarantees that Caric Mediris will respect the
noncompetition provision set forth in this Article 8.2.
8.3 The in-house steam sterilization and electron beam sterilization of
products manufactured by the Perouse group in facilities belonging to companies
owned and controlled by the Seller as they exist at the date hereof (as such
products and facilities are described in ANNEX G attached hereto) will not fall
within the scope of the non-competition undertaking stipulated in Article 8.2
above.
8.4 The Seller and Mr. Perouse agree that the Purchaser shall be entitled
to the declaration of an injunction in the event of any breach of their
obligations under this Article 8, and hereby submit to the jurisdiction of any
competent court for the granting of such injunctive relief. For the purpose of
enforcing its rights under this Article 8.4, the Purchaser need not institute
an arbitration proceeding pursuant to Article 10.13 hereof and may proceed
directly with court proceedings to obtain injunctive relief and enforce its
rights hereunder.
8.5 The Seller and Mr. Perouse hereby agree, subject to the provisions of
Article 8.3 above, on their behalf and on behalf of all of their controlled
affiliates, entities and persons as they exist today or in the future, to
procure all of their requirements for ethylene oxide sterilization services in
Continental Europe and Great Britain from the Company as such requirements
exist on the date hereto or in the future on the terms and conditions set forth
in Annex L hereto and such other agreements as may become necessary to effect
the foregoing.
9. - USE OF THE PEROUSE NAME AND ITS DERIVATIVES
9.1 The Purchaser and the Company may use the "PEROUSE" name and its
derivatives (such as Perouse Sterilisation") and the Perouse trademark and its
derivatives for a period of two (2) years as from the Closing Date. At the end
of the this period, the Company will have to, insofar as necessary, change its
corporate name in order that the "PEROUSE" name no longer appears and the
Purchaser will ensure that the companies of its group cease all usage of the
"PEROUSE" name.
9.2 Without prejudice to the non-competition undertaking provided in
Article 8 above, the Seller and Mr. Perouse undertake, in their own name as
well as in the name of the companies which they directly or indirectly control
or manage, not to use the name and the trademark "PEROUSE" and their
derivatives for any activity in the field of Sterilization Activity.
9.3 The Seller agrees to cause the companies Xxxxx Xxxx Xxxxxxxxx X.X. and
Laboratories Xxxxx X.X. to cease use of the name "PEROUSE" at the latest by
September 1, 1994.
9.4 The Seller hereby agrees to cause the Company to cease use of the name
"CARIC" at the latest by September 1, 1994.
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12.
10. - MISCELLANEOUS PROVISIONS
10.1 This Agreement will inure to the benefit of the Parties and shall be
binding upon them and their respective permitted successors and assigns.
10.2 It is expressly agreed between the Parties that the Purchaser may
assign to any company within its Affiliated group the rights and obligations
from which it benefits or for which it is responsible, pursuant to the
provisions of this Agreement, it being understood that it will remain jointly
and severally liable for the performance of said obligations by the assignee.
10.3 The Seller and Mr. Perouse may not assign, delegate or transfer all
or any part of their rights and obligations pursuant to this Agreement without
the prior written agreement of the Purchaser.
10.4 This Agreement constitutes the entire agreement between the Seller
and Mr. Perouse on the one hand and the Purchaser on the other hand, with
respect to the subject matter hereof. It invalidates and replaces any
discussion, agreement or letter of intent which may have taken place between
the Parties concerning the same purpose prior to its signature. No amendment
or waiver of any provision of this Agreement shall be binding unless executed
in writing by the Party to be bound thereby.
10.5 The Annexes to this Agreement form an integral part thereof.
10.6 [Not used].
10.7 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.
10.8 [Not used].
10.9 Neither the Seller, Mr. Perouse nor any of their Affiliates have
retained or employed any broker, finder, investment banker or person who could
have a valid claim against the Purchaser and/or the Company for a fee,
commission, brokerage or other compensation in connection with this Agreement
or the transactions contemplated hereby or taken any action or entered into any
agreement or understanding which would give any such person any such valid
claim against the Purchaser; and neither the Purchaser nor any of its
Affiliates has retained or employed any broker, finder, investment banker or
person who could have a valid claim against the Seller or Mr. Perouse for a
fee, commission, brokerage or other compensation in connection with this
Agreement or the transactions contemplated hereby or taken any action or
entered into any agreement or understanding which would give any such person
any such valid claim against the Seller or Mr. Perouse.
10.10 The invalidity of all or any part of any article of this Agreement
shall not render the remainder of that article or this Agreement invalid, and
the Agreement shall be carried out as nearly as possible according to its
original terms and intent.
13
13.
10.11 The failure to enforce or to require the performance at any time of
any of the provisions of this Agreement shall in no way be construed to be a
waiver of such provisions, and shall not affect either the validity of this
Agreement or any part hereof or the right of any Party thereafter to enforce
each and every provision in accordance with its terms. Any right of rescission
conferred upon the Parties shall be in addition to and without prejudice to all
other rights and remedies available to the Parties and no exercise or failure
to exercise such a right of rescission shall constitute a waiver of any other
right or remedy. The Closing shall not constitute a waiver by any Party of any
breach of any provision of this Agreement whether or not known to such Party at
the Closing.
10.12 This Agreement is governed by French Law.
10.13 Any dispute arising out of or in connection herewith, shall be
conclusively settled by arbitration conducted in both the French and English
languages in Paris, France, in accordance with the then-existing Rules of
Conciliation and Arbitration of the International Chamber of Commerce (ICC).
The Seller and Mr. Perouse shall jointly appoint one (1) arbitrator and the
Purchaser shall appoint one (1) arbitrator and these two (2) arbitrators shall
mutually agree upon the third arbitrator to constitute the arbitration panel of
three (3) members. If either Party fails to appoint an arbitrator within
thirty (30) days after the appointment of an arbitrator by the other Party, or
if the two (2) arbitrators fail to agree upon a third within thirty (30) days
after the appointment of the second arbitrator the most diligent Party may
apply to the ICC for the appointment of the defaulting Party's arbitrator, or
of the third arbitrator, as the case may be. The arbitrators shall understand
both French and English perfectly and either language will be acceptable for
oral and written pleadings. The arbitrators will make a finding based on legal
principles.
Nevertheless, when the amount of the claim or dispute in question,
including the amount of any counterclaim, is less than one million Francs (FF
1,000,000), the Parties agree to submit their dispute to a single arbitrator
appointed by the President of the Paris Commercial Court at the request of the
most diligent Party. However, if one of the Parties so wishes, it may within
fifteen (15) days of the date of the President of the Commercial Court's order,
name a second arbitrator. In such a situation, the other Party shall name a
third arbitrator within the same time period. The single arbitrator, or the
three arbitrators must understand French and English perfectly and the written
and oral pleadings shall be capable of being submitted in either language.
They shall make a finding based on legal principles and give their decision
within three (3) months of (i) the date of the President of the Commercial
Court's nomination, in the case of a single arbitrator, or (ii) the nomination
of the second and third arbitrators in the case of a plurality of arbitrators.
Such time limit may be extended by decision of the arbitration panel.
The award of the arbitrator(s) shall be final, binding and
executory, and judgment thereon may be entered in any court having jurisdiction
thereof. The arbitrators shall award costs and expenses of the arbitration,
including but not limited to fees and expenses of the arbitrators,
administrative expenses of the ICC, fees of counsel and other related expenses
of the Parties (the "Costs"). In making their award with regard to the Costs,
the arbitrators shall have regard to the outcome of the arbitration and to the
success or failure of the claims made therein. In the event
14
14.
that the Party which commenced the arbitration procedure does not provide proof
of at least a substantial part of all of its claims, such Party shall be obliged
to pay all the Costs.
10.14 Any notification or communication addressed by either one of the
Parties to the other under this Agreement must be made by registered letter
with notice of receipt and at the same time by telecopy sent to the persons and
addresses below:
To the Seller and/or Mr. Perouse
-------------------------------------------
Z.A. d'Outreville
00000 Xxxxxx
Xxxxxx
For the attention of Mr. Xxxx Perouse
Telecopy No: (33) 44.08.49.62
With a copy to:
Dutoit, Fouques, Carluis et Associes
Technopolis
Xxxx x'Xxxxxxxx xx Xxxxxxxxx
00000 Xxxxxxxxx Xxxxx
Xxxxxx
For the attention of Messrs Alain Carluis and Xxxxxx Xxxxxx
Telecopy No: (33) 44.23.29.21
and to:
SECA
00 xxx xxx xx Xxxxxxx Xxxxxxx
0000 Xxxxxxxx
Xxxxxx
For the Attention of Xx. Xxxxx Xxxxxx
Telecopy No: (33) 44.45.61.96
To the Purchaser:
-----------------
Xxxxxxxx Micro Science S.A.S.
00 Xxxxxxxxx xx Xxxx
00000 Xxxxxxx-Xxx-Xxxxx
Xxxxxx
15
15.
For the attention of Xx. Xxxx Xxxxxx
Telecopy No: (33) (0) 00 00 00 00
With a copy to:
Xxxxxxxx Laboratories Worldwide Inc.
Xxx Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
X.X.X.
For the attention of: Xx. Xxxxx X. Xxxx, Legal Department
Telecopy No: 0 (000) 000 0000
and to: Coudert Freres
00 xxxxxx xxx Xxxxxx-Xxxxxxx
00000 Xxxxx
Xxxxxx
For the attention of: Xx. Xxxxxx X. Xxxxx, III
Telecopy No: (33)(1) 43.59.66.55
The reception or communication date will be deemed to be that of the
telecopy.
Each one of the Parties may notify the other of any change in address,
fax number or addressee by respecting the above indicated procedure.
10.15 For the purpose of this Agreement unless the context requires
otherwise, Affiliate (and forms thereof such as Affiliated) means any person
(including any individual, trust, estate, partnership, corporation, limited
liability company or other juridical entity, business enterprise or
association) which is directly or indirectly controlled by, under common
control with, or controls any Party to this Agreement or in which any such
party has an ownership interest.
10.16 Terms used in this Agreement not defined herein shall have the
meaning attributed to them in the Warranty Agreement.
Signed in Paris, on July 22, 1994
In five (5) originals, one for the Purchaser and one for each of the Seller and
Mr. Perouse.
/s/ Xxxx Perouse /s/ Xxxx Xxxxxx
----------------------------- --------------------------
Mr. Xxxx Perouse Xxxxxxxx Micro Science S.A.S.
By: Xx. Xxxx Xxxxxx
Title: Chairman of Xxxxxxxx Micro
Science B.V., its President
16
16.
/s/ Xxxx Perouse
---------------------------------
LABORATOIRES PEROUSE S.A.
By: Mr. Xxxx Perouse
Title: Chairman
17
17.
SHARE PURCHASE AGREEMENT
LIST OF ANNEXES
Annex A June 30 Balance Sheet
Annex B Escrow Agreement
Annex C Dividends
Annex D Finance Leases and Computer Equipment
Annex DC-1 Computer Equipment
Annex DC-2 Copy of a fax dated February 7, 1994 from Datika
concerning the sale of the computing software
Annex DD-1 Copy of the finance lease dated September 18, 1990
Annex DD-2 Copy of the finance lease dated March 13, 1991
Annex DD-3 Copy of Automobile Leases
Annex DE-1 Computer Equipment Sublease
Annex E Warranty Agreement
Annex E-1 Warranty Agreement
Annex E-2 First Demand Guaranty of Banque Scalbert Dupont
Annex E-3 Guaranty Letter of Banque Scalbert Dupont
Annex F Real Estate
Annex F-1 Commercial Leases relating to Vaulx-en-Velin
Annex F-2 Deed relating to Rantigny
Annex G Description of Existing Facilities for In-House Steam and Electron
Beam Sterilization
Annex H Conduct of Business Exceptions
Annex I List of Vehicles
Annex J Form of Compliance Certificate
Annex K Form of Resignation and Release
Annex L Sterilization Services Agreement
18
18.
TABLE OF CONTENTS
page
1. - PURCHASE AND SALE.......................................... 2
2. - PURCHASE PRICE............................................. 2
2.1 Purchase Price....................................... 2
2.2 Price Adjustment..................................... 2
2.3 Payment of the Purchase Price........................ 4
2.4 Dividends............................................ 4
3. - CLOSING OBLIGATIONS........................................ 4
4. - REPRESENTATIONS AND WARRANTIES............................. 6
4.1 Warranty Agreement................................... 6
4.2 Covenants of the Seller and Mr. Perouse.............. 6
4.3 6
4.4 6
4.5 Bank Guaranty........................................ 6
4.6 Computer Equipment Sublease.......................... 7
4.7 Computer Equipment Option to Purchase................ 7
4.8 Sterilization Activity Property...................... 7
4.9 Vehicles............................................. 7
5. - JUNE 30, 1994 BALANCE SHEET................................ 7
6. - CONDUCT OF BUSINESS........................................ 8
7. - FRENCH GOVERNMENT REQUIREMENTS............................. 10
8. - POST-CLOSING UNDERTAKINGS OF CONFIDENTIALITY AND
NON-COMPETITION............................................ 10
9. - USE OF THE PEROUSE NAME AND ITS DERIVATIVES................ 11
10. - MISCELLANEOUS PROVISIONS................................... 12
