Dated 20th March 2003
ORTHOFIX INTERNATIONAL B.V.
- and -
INTAVENT LIMITED
AGREEMENT
for the sale and purchase of certain shares in
Intavent Orthofix Limited
THIS AGREEMENT is made on 20th March 2003 (the "Agreement")
BETWEEN:-
(1) INTAVENT LIMITED, a company incorporated under the laws of England and
Wales with company number 185450 and whose registered office is at Xxx
Xxx Xxxxx, Xxxxxxxx, Xxxxxxx XX0 0XX (the "Vendor"); and
(2) ORTHOFIX INTERNATIONAL B.V. a limited liability company organised under
the laws of The Netherlands having its registered office at Johannes
Xxxxxxxxxxxx 00, 0000 XX, Xxxxxxxxx, Xxx Xxxxxxxxxxx (the "Purchaser").
WHEREAS:
(A) Intavent Orthofix Limited (the "Company") a company incorporated under
the laws of England and Wales with registered number 2853159 has, at the
date of this Agreement, an issued share capital of 4800 B ordinary shares
of (pound)1 each (owned by the Vendor) (the "Contract Shares") and 5200 A
ordinary shares of (pound)1 each (owned by the Purchaser);
(B) The Vendor has agreed to sell the Contract Shares and the Purchaser has
agreed to purchase the Contract Shares upon the terms and conditions of
this Agreement.
THE PARTIES AGREE AS FOLLOWS:-
1. Interpretation
1.1 In this Agreement the following words and expressions and abbreviations
have the following meanings, unless the context otherwise requires:-
"Business Day" means a day (excluding Saturdays) on which banks generally
are open in London and New York for the transaction of normal banking
business;
"Company" shall mean Intavent Orthofix Limited, as more fully described
in Recital (A);
"Completion" means the completion of the sale and purchase of the
Contract Shares in accordance with clause 4;
"Completion Date" means the date on which Completion occurs;
"Confidential Information" means any information relating to the
business, contractual arrangements, financial or other affairs (including
future plans and targets) of and of:
(i) the Company and any member of the Target Group;
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(ii) the Purchaser and any member of the Purchaser Group; or
(iii) the Vendor and any member of the Vendor Group;
which is not in the public domain or which is trivial and obvious, and
any information in respect of which an obligation of confidence is owed
by any such person to any third party;
"Consideration" has the meaning given thereto in clause 3.1;
"Consideration Payment" has the meaning given thereto in clause 3.1;
"Contract Shares" has the meaning given in Recital (A);
"Encumbrance" means any mortgage, charge (fixed or floating), pledge,
lien, hypothecation, trust, right of set off or other third party right
or interest (legal or equitable) including any right of pre-emption,
assignment by way of security, reservation of title or any other security
interest of any kind however created or arising or any other agreement or
arrangement (including a sale and repurchase arrangement) having similar
effect;
"Purchaser Group" means the Purchaser, its subsidiaries, its holding
companies and the subsidiaries from time to time of such holding
companies, all of them and each of them as the context admits;
"Purchaser's Solicitors" means Xxxxxxxxx & Xxxxxxx, of 000 Xxxxxx,
Xxxxxx, XX0X 0XX;
"Shareholder Agreement" means the shareholder agreement, dated 27th
October 1993, relating to the Company made between (1) the Vendor, (2)
the Purchaser, (3) and the Company;
"Target Group" means the Company and its wholly owned subsidiary, Colgate
Medical Limited, a company incorporated under the laws of England & Wales
with company number 01311455 and with registered offices at 0 Xxxxxxx
Xxxxx, Xxxxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxx, XX0 0XX;
"Vendor Group" means the Vendor, its subsidiaries, its holding companies
and the subsidiaries from time to time of such holding companies, all of
them and each of them as the context admits;
"Vendor's Solicitors" means Pitmans, solicitors, of 00 Xxxxxx Xxxxxx,
Xxxxxxx, XXX 0XX;
"Warranties" means the warranties set out in clause 5 of this Agreement.
1.2 In this Agreement unless otherwise specified, reference to:-
1.2.1 "subsidiary" or "holding company" is to be construed in accordance
with section 736 of the Companies Xxx 0000;
1.2.2 "includes" and "including" shall mean including with limitation;
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1.2.3 a "party" means a party to this Agreement and includes its
assignees (if any) and/or the successors in title to substantially
the whole of its undertaking;
1.2.4 a "person" includes any person, individual, company, firm,
corporation, government, state or agency of a state or any
undertaking (whether or not having separate legal personality and
irrespective of the jurisdiction in or under the law of which it
was incorporated or exists);
1.2.5 "clauses", "paragraphs" are to clauses and paragraphs of, this
Agreement;
1.2.6 "writing" includes any methods of representing words in a legible
form other than writing on an electronic or visual display screen
or in other non-transitory form;
1.2.7 words denoting the singular shall include the plural and vice
versa and words denoting any gender shall include all genders;
1.2.8 The Law of Property (Miscellaneous Provisions) Xxx 0000 ("LPMPA")
applies to all dispositions made pursuant to this Agreement save
that the word "reasonably" shall be deleted from the covenant in
section 2(1)(b) of the LPMPA and the covenant in section 3(l) of
the LPMPA shall not be qualified by the words "other than any
charges, encumbrances, or rights which that person does not a
could not reasonably be expected to know about".
2. Sale and Purchase
2.1 Upon the terms and subject to the conditions of this Agreement, the
Vendor as legal and beneficial owner and with full title guarantee shall
sell and the Purchaser shall purchase the Contract Shares with effect
from Completion free from any Encumbrance together with all accrued
benefits and rights attached thereto.
2.2 The Purchaser shall not be obliged to complete the purchase of any of the
Contract Shares unless the Vendor completes the sale of all of the
Contract Shares simultaneously, but completion of the purchase of some
Contract Shares shall not affect the rights of the Purchaser with respect
to its rights to the other Contract Shares.
3. Consideration
The consideration (the "Consideration") for the sale and purchase of the
Contract Shares shall comprise and be satisfied by the payment by the
Purchaser to the Vendor of US$ 20,450,000 (the "Consideration Payment").
3.1 Any payment made by the Vendor in respect of a breach of any Warranty or
any other payment made by the Vendor pursuant to this Agreement shall be
and shall be deemed to be a reduction in the Consideration.
4. Completion
4.1 Completion shall take place at the offices of the Purchaser's Solicitors
(or at such other place as the parties may agree) immediately after the
execution of this Agreement.
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4.2 On Completion:
4.2.1 The Vendor shall deliver to the Purchaser:-
(a) transfers of the Contract Shares duly executed by the
registered holders in favour of the Purchaser (or as it may
direct) together with the relevant share certificates in
respect of such Contract Shares;
(b) a copy of the minutes of a meeting of the Vendor
authorising the execution of this Agreement by the Vendor
(such copy minutes being certified as true and correct by
the secretary of the Vendor).
4.2.2 The Vendor and the Purchaser shall procure that a board meeting of
the Company is held at which the transfer of the Contract Shares
to the Purchaser shall be approved for registration (subject to
the same being duly stamped with any required stamp duty).
4.3 Upon compliance by the Vendor with the provisions of clauses 4.2.1 and
4.2.2 the Purchaser shall at Completion pay by way of electronic transfer
the sum of US$20,450,000 to the Vendor's Solicitors at Natwest Bank,
Market Place, Reading, US Dollar Account Number xxxxxxxxxx, sortcode
xxxxxx and quoting swiftcode xxxxxxxx (who are irrevocably authorised
by the Vendor to receive the same and whose receipt shall be an effective
discharge of the Purchaser's obligations to pay such sum and the
Purchaser shall not be concerned to see the application of such amounts)
or as the Vendor may otherwise direct.
4.4 Forthwith following Completion, the Vendor shall, and shall procure that
any other person shall, without delay, send to the Purchaser all records,
correspondence, documents, files, memoranda, and other papers relating to
the Target Group which it may have in its possession or control (other
than any such which it shall have received in its capacity as a
shareholder in the Company and which it is properly entitled to retain).
5. Warranties:-
5.1 The Vendor warrants with the Purchaser as follows:-
5.1.1 the Vendor has obtained all corporate authorisations and all other
applicable governmental, statutory, regulatory or other consents,
licences, waivers or exemptions required to empower it to enter
into and to perform its obligations under this Agreement and each
document to be executed by it at or before Completion.
5.1.2 the Vendor's obligations under this Agreement and each document to
be executed at or before Completion or when the relevant document
is executed, will be enforceable in accordance with their terms.
5.1.3 the Vendor is the exclusive legal and beneficial owner of the
Contract Shares;
5.1.4 the Contract Shares are fully paid or credited as fully paid;
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5.1.5 the Contract Shares are not subject to any Encumbrance and no
person is entitled to any Encumbrance in relation to any of the
Contract Shares;
5.1.6 other than as provided in the Shareholder Agreement or the
Articles of Association, the Vendor is not under any obligation
(whether actual or contingent) to sell, charge, otherwise dispose
of, or create any Encumbrance over any of the Contract Shares or
any interest therein to any person.
5.1.7 the Vendor has no rights (exercisable now or in the future and
whether contingent or not) to call for the issue of any share or
loan capital in the Company and there is no agreement or
commitment to give or create any such rights.
5.2 The Purchaser warrants with the Vendor as follows:-
5.2.1 the Purchaser has obtained all corporate authorisations and all
other applicable governmental, statutory, regulatory or other
consents, licences, waivers or exemptions required to empower it
to enter into and to perform its obligations under this Agreement
and each document to be executed by it at or before Completion.
5.2.2 the Purchaser's obligations under this Agreement and each document
to be executed at or before Completion or when the relevant
document is executed, will be enforceable in accordance with their
terms.
5.3 In the event that either party is in breach of any of the Warranties (for
the purposes of this clause 5.3, the "Warrantor"), then, without
restricting the rights of the other party hereto (for the purposes of
this clause 5.3, the "Claimant") to claim damages on any basis available
to it, the Warrantor shall pay to the Claimant on demand the amount
necessary to put the Claimant into the position which would have existed
if the said Warranties had not been breached together with all costs and
expenses incurred by the Claimant as a result of such breach. Any amount
so payable shall be increased to ensure that the net amount received
shall, after the deduction of any taxation imposed for support of
national, state, federal, municipal or local government or any other
person and whether of the UK or any other jurisdiction, be equal to that
which would have been received had the payment and any increased payment
not be subject to such taxation.
5.4 Each of the Warranties shall be construed as a separate warranty, and
(unless expressly provided to the contrary) shall not be limited by the
terms of any of the other Warranties or by any other term of this
Agreement.
6. Shareholder Agreement
6.1 The Vendor and the Purchaser acknowledge that upon Completion the
Shareholder Agreement shall terminate. Notwithstanding the terms of the
Shareholder Agreement, the restrictive covenants contained in clause O
thereof shall cease to have effect as from Completion.
6.2 Notwithstanding the terms of the Shareholders Agreement:
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6.2.1 the Vendor hereby waives all and any rights against the Purchaser,
the Company or any member of the Target Group, which may have
arisen as a result of any breach by, or as a result of any other
act or omission of, the Purchaser or any member of the Target
Group occurring prior to Completion; and
6.2.2 the Purchaser hereby waives all and any rights against the Vendor
which may have arisen as a result of any breach by, or as a result
of any other act or omission of the Vendor prior to Completion
provided that this clause 6.2.2 shall not apply to any breaches of
the restrictive covenants contained in clause O of the
Shareholders Agreement occurring prior to Completion.
7. Restrictive Covenants
7.1 As consideration for the Purchaser agreeing to purchase the Contract
Shares, the Vendor covenants with the Purchaser, the Company and each
other member of the Target Group that (whether alone or jointly with
any other person, and whether directly or indirectly, and whether as
shareholder, participant, partner, promoter, director, officer, agent,
manager, employee, or consultant of, in or to any other person) it shall
not (and will procure that no member of the Vendor Group shall) for a
period of one year following Completion:
7.1.1 solicit or endeavour to entice away from or discourage from being
employed by the Company or any member of the Target Group any
person who is at Completion an officer, employee, or consultant of
the Company or any member of the Target Group (whether or not such
person would commit a breach of contract by leaving such
employment or engagement);
7.1.2 employ or engage or attempt to employ or engage or negotiate or
arrange the employment or engagement by any other person, firm or
company, of any person who is at Completion, or was at any time
during the period of one year prior thereto, an officer, employee,
or consultant of the Company or any member of the Target Group.
7.2 Each of the covenants in clause 7.1.1 and 7.1.2 shall be deemed to
constitute a separate agreement and shall be construed independently of
the others.
7.3 The parties consider the covenants in clause 7.1 to be reasonable, but if
a court of competent jurisdiction finds any of them to be unenforceable
the parties agree to accept any deletion as to scope of the restrictions
concerned which the court sees fit to impose or, if it does not see fit,
which is reasonably necessary to render the restrictions enforceable.
8. Confidential Information
8.1 The Vendor undertakes to the Purchaser and each member of the Purchaser
Group, the Company and each other member of the Target Group that,
subject to clause 8.3, it shall, and shall procure that each member of
the Vendor's Group shall, preserve the confidentiality of, and not
directly or indirectly reveal, publish, disclose, or transfer or use for
its own or any other purposes the Confidential Information (other than,
for the
avoidance of doubt, Confidential Information concerning the Vendor or the
Vendor Group).
8.2 The Purchaser undertakes to the Vendor and each other member of the
Vendor Group that, subject to clause 8.3, it shall, and shall procure
that each member of the Purchaser Group and the Company and each member
of the Target Group shall, preserve the confidentiality of, and not
directly or indirectly reveal, publish, disclose, or transfer or use for
its own or any other purposes the Confidential Information (other than,
for the avoidance of doubt, Confidential Information concerning the
Purchaser, each member of the Purchaser Group, the Company and each
member of the Target Group).
8.3 Clause 8.1 and Clause 8.2 shall not apply to:-
8.3.1 disclosure of Confidential Information to or at the written
request of the party to whom the information relates;
8.3.2 use or disclosure of Confidential Information required by law or
any applicable regulatory authority (where such requirement has
force of law) provided that the party seeking to make use or
disclose such information shall consult with the party to whom the
information relates prior to such use or disclosure; or
8.3.3 Confidential Information which enters the public domain other than
by (a) a breach of Clause 8.1 or Clause 8.2 (as the case may be)
or (b) a breach of any obligation of confidentiality by the person
disclosing the information.
8.4 The restrictions contained in this clause 8 shall continue to apply after
Completion without limit in time.
8.5 The Company and each member of the Target Group has the right to enforce
this clause 8 in accordance with the provisions of the Contracts (Rights
of Third Parties) Xxx 0000.
9. Announcements
9.1 No party shall disclose the making of this Agreement nor its terms
without the prior consent of the other party unless disclosure is
9.1.1 to its professional advisers; or
9.1.2 required by law or any applicable regulatory authority.
provided that this clause 9.1 does not apply to announcements,
communications or circulars made or sent by the Purchaser after
Completion to customers, clients or suppliers of the Company or any
member of the Target Group to the extent that it informs them of the
Purchaser's acquisition of the Contract Shares or to any announcements
containing only information which has become generally available.
9.2 The restrictions contained in clause 9.1 shall apply without limit of
time and whether or not this Agreement is terminated.
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10. Costs
Unless expressly otherwise provided in this Agreement each of the
parties shall bear its own legal, accountancy and other costs, charges
and expenses connected with the sale and purchase of the Contract Shares.
11. Effect of Completion
11.1 The terms of this Agreement (insofar as not performed at Completion and
subject as specifically otherwise provided in this Agreement) shall
continue in force after and notwithstanding Completion.
11.2 The remedies of the Purchaser in respect of any breach of any of the
Warranties shall continue to subsist notwithstanding Completion.
12. Further Assurance
During the period of twelve months following Completion the Vendor shall
from time to time forthwith upon request from the Purchaser at the
Vendor's expense do or procure the doing of all acts and/or execute or
procure the execution of all such documents in a form reasonably
satisfactory to the Purchaser for the purpose of vesting in the Purchaser
the full legal and beneficial title to the Contract Shares and otherwise
giving the Purchaser the full benefit of this Agreement.
13. Entire Agreement
Each party acknowledges and agrees with the other party that this
Agreement constitutes the entire and only agreement between the parties
relating to the subject matter of this Agreement and supersedes and
extinguishes any prior drafts, previous agreements, undertakings,
representations, warranties, and arrangements of any nature whatsoever,
whether or not in writing between the parties in connection with the
subject matter hereof.
14. Variations
This Agreement may be varied only by a document signed by each of the
Vendor and the Purchaser. Pursuant to section 2(3)(a) of the Contract
(Rights of Third Panties) Act 1999 the parties, in accordance with this
sub-clause, may without limit or restriction vary this Agreement or any
provision of it which may be enforced by a third party or otherwise amend
this Agreement in such a way as to extinguish or alter the third party's
entitlement under any such provision without the consent of that third
party
15. Waiver
15.1 A waiver of any term, provision or condition of, or consent granted
under, this Agreement shall be effective only if given in writing and
signed by the waiving or consenting party and then only in the instance
and for the purpose for which it is given.
15.2 No failure or delay on the part of any party in exercising any right,
power or privilege under this Agreement shall operate as a waiver
thereof, nor shall any single or partial
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exercise of any such right, power or privilege preclude any other or
further exercise thereof or the exercise of any other right, power or
privilege.
15.3 No breach of any provision of this Agreement shall be waived or
discharged except with the express written consent of the Vendor and the
Purchaser.
16. Rights Cumulative
The rights and remedies herein provided are cumulative with and not
exclusive of any rights or remedies provided by law.
17. Invalidity
If any provision of this Agreement is or becomes invalid, illegal or
unenforceable in any respect under the law of any jurisdiction:-
(a) the validity, legality and enforceability under the law of that
jurisdiction of any other provision; and
(b) the validity, legality and enforceability under the law of any
other jurisdiction of that or any other provision,
shall not be affected or impaired in any way.
18. Notices
18.1 Any notice, demand or other communication given or made under or in
connection with the matters contemplated by this Agreement shall be in
writing and shall be delivered personally or sent by fax or prepaid first
class post (air mail if posted to or from a place outside the United
Kingdom):-
In the case of the Purchaser to:-
Johannes Vermeerplein 11,1071 DV, Amsterdam, The Netherlands
Fax
Attention: The Company Secretary
with a copy to the Company at 0, Xxxxxxx Xxxxx, Xxxxxxxxxx Xxxx,
Xxxxxxxxxx, Xxxxxxxxx, XX0 0XX
In the case of the Vendor to:-
Xxx Xxx Xxxxx, Xxxxxxxx, Xxxxxxx, Xxxxxxxxx, XX0 0XX
Fax: 00000000000
Attention: The Company Secretary
and shall be deemed to have been duly given or made as follows:-
(a) if personally delivered, upon delivery at the address of the
relevant party;
(b) if sent by first class post, three (3) Business Days after the
date of posting;
(c) if sent by fax; on the Business Day next following the date of
despatch;
provided that, if, in accordance with the above provisions, any
such notice, demand or other communication would otherwise be
deemed to be given or made after 5.00 p.m. on a Business Day such,
notice, demand or other communication shall be deemed to be given
or made at 9.00 a.m. on the next Business Day.
18.2 A party may notify the other party to this Agreement of a change
to its name, relevant addressee, address or fax number for the
purposes of clause 18.1 provided that such notification shall
only be effective on:-
(a) the date specified in the notification as the date on which
the change is to take place; or
(b) if no date is specified or the date specified is less than
five Business Days after the date on which notice is given,
the date falling five Business Days after notice of any
such change has been given.
19. Counterparts
This Agreement may be executed in any number of counterparts which
together shall constitute one agreement. Any party may enter into this
Agreement by executing a counterpart and this Agreement shall not take
effect until it has been executed by all parties.
20. Third Party Rights
Except for the rights conferred on the Company and each other member of
the Target Group pursuant to clauses 6,7, and 8 and except where
expressly provided in this Agreement, nothing in this Agreement is
intended to confer on any person any right to enforce any term of this
Agreement which that person would not have had but for the Contracts
(Rights of Third Parties) Xxx 0000.
21. Governing Law and Jurisdiction
21.1 This agreement (and any dispute, controversy, proceedings or claim of
whatever nature arising out of or in any way relating to this Agreement
or its formation) shall be governed by and construed in accordance with
English law.
21.2 Each of the parties to this Agreement irrevocably agrees that the courts
of England shall have jurisdiction to hear and decide any suit, action or
proceedings, and/or to settle any disputes, which may arise out of or in
connection with this Agreement (respectively, "Proceedings" and
"Disputes") and, for these purposes, each party irrevocably submits to
the jurisdiction of the courts of England.
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IN WITNESS whereof this Agreement has been executed on the date first above
written
Signed by Xxxxx Xxxxxxx ) /s/ Xxxxx Xxxxxxx
for and on behalf of INTAVENT ) ----------------------------
LIMITED ) Name:
Signed by ) /s/ Xxxxx X. Xxxxxx
for and on behalf of ) ----------------------------
ORTHOFIX INTERNATIONAL B.V. ) Name:
