AGREEMENT FOR PURCHASE AND SALE OF STOCK OF
EON LABS, INC.
by and between
NOVARTIS CORPORATION,
as PURCHASER,
SANTO HOLDING (DEUTSCHLAND) GMBH,
as SELLER,
AND, FOR THE PURPOSES OF SECTION 12 ONLY, NOVARTIS AG
Dated as of February 20, 2005
TABLE OF CONTENTS
Page
Index of Defined
Terms........................................................................iii
Recitals.......................................................................1
1. Purchase and Sale of Stock................................................2
2. Purchase Price; Payment...................................................2
2.1 Purchase Price......................................................2
2.2 Payment.............................................................2
2.3 Interest............................................................2
3. Closing; Closing Date.....................................................2
4. Representations and Warranties of Seller..................................2
4.1 Capacity of Seller..................................................3
4.2 Ownership of the Stock..............................................3
4.3 Authorization of Agreement..........................................3
4.4 Non-Contravention...................................................3
4.5 Approvals and Consents..............................................4
4.6 Certain Representations Relating to the Company.....................4
5. Representations and Warranties of Purchaser and Parent....................4
5.1 Capacity of Purchaser...............................................4
5.2 Authorization of Agreement..........................................5
5.3 Non-Contravention...................................................5
5.4 Approvals and Consents..............................................5
6. Additional Covenants of Seller and Purchaser..............................5
6.1 Covenants of Seller Prior to Closing................................5
6.2 Deliveries at Closing...............................................6
7. Best Efforts..............................................................6
8. Conditions to Obligations of Purchaser....................................7
8.1 Representations and Warranties of Seller to be True;
Compliance with Covenants...........................................7
8.2 Hexal Purchase Agreement; Company Merger Agreement..................7
8.3 Consents; No Impediments............................................7
8.4 No Injunction.......................................................8
8.5 Deliveries..........................................................8
9. Conditions to Obligations of Seller.......................................8
9.1 Representations and Warranties of Purchaser and Parent
to be True; Compliance with Covenants...............................8
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9.2 No Injunction.......................................................8
9.3 Deliveries..........................................................8
10. Indemnification...........................................................8
10.1 Exclusion of Statutory Law..........................................8
10.2 Indemnification by Seller...........................................9
11. General Provisions........................................................9
11.1 Termination.........................................................9
11.2 Effect of Termination..............................................10
11.3 Amendment of Agreement.............................................10
11.4 Contents of Agreement; Integration; Parties in Interest;
Assignment, etc....................................................10
11.5 Governing Law; Jurisdiction........................................10
11.6 Severability.......................................................10
11.7 Notices............................................................11
11.8 Counterparts.......................................................11
11.9 Expenses...........................................................12
11.10 No Third Party Beneficiaries.......................................12
11.11 Language...........................................................12
11.12 Assignment.........................................................12
11.13 Headings...........................................................12
12. Obligation of Controlling Shareholder....................................12
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INDEX
Agreement...............................................................Forepart
Closing........................................................................3
Closing Date...................................................................3
Common Stock............................................................Recitals
Company.................................................................Recitals
Company Merger Agreement................................................Recitals
Company Reports...........................................................4.6(b)
HSR.........................................................................5.4
Hexal Purchase Agreement................................................Recitals
Organizational Documents.....................................................4.4
Parent..................................................................Forepart
Parties.................................................................Forepart
Party...................................................................Forepart
Purchase Price...............................................................2.1
Purchaser...............................................................Forepart
Purchaser Indemnified Parties...............................................10.1
Seller..................................................................Forepart
Shares..................................................................Recitals
-iii-
AGREEMENT FOR PURCHASE AND SALE OF STOCK
THIS AGREEMENT FOR PURCHASE AND SALE OF STOCK (this "Agreement") dated as of
February 20, 2005 is executed by and between:
Novartis Corporation, a company organized under the laws of the State of
New York ("Purchaser") with its principal office located at 000 Xxxxx
Xxxxxx, Xxx Xxxx, XX 00000 XXX;
Santo Holding (Deutschland) GmbH, a limited liability company organized
under the laws of Germany, with its principal office located at
Xxxxxxxxxxxx 0X, 00000 Xxxxxxxxx (Xxxxxxx) ("Seller"); and
for the purposes of Section 12 only, Novartis AG, a company organized under
the laws of Switzerland ("Parent") with its principal office located at
Xxxxxxxxxxxx 00, Xxxxx, Xxxxxxxxxxx.
Purchaser, Seller and Parent are sometimes referred to herein individually
as a "Party" and collectively as the "Parties."
RECITALS
WHEREAS, Seller owns 60,000,000 (sixty million) shares of common stock, par
value $ 0.01 ("Common Stock"), of Eon Labs, Inc., a corporation organized under
the laws of the State of Delaware (the "Company") with its principal office at
000 Xxxxxx Xxxxxx, Xxxx Xxxxxxx, XX 00000 XXX, which represents approximately
67.5% of the issued and outstanding capital stock of the Company; and
WHEREAS, Seller desires to sell to Purchaser, and Purchaser desires to purchase
from Seller, all of the shares of Common Stock owned by Seller and all other
rights relating thereto (the "Shares") upon the terms and conditions hereinafter
set forth;
WHEREAS, simultaneously with the execution hereof, an affiliate of
Parent is entering into an Agreement and Plan of Merger with the Company
providing for the purchase by Purchaser (or an affiliate thereof) of the
remaining shares of Common Stock not owned by Seller at a price per share of
Common Stock equal to U.S. $31.00 (thirty one U.S. dollars) on the terms and
subject to the conditions set forth therein (the "Company Merger Agreement");
WHEREAS, simultaneously with the execution hereof, Novartis (Deutschland) GmbH,
Xxxxx Xxxxxxxxxxx 0-00, X-00000 Xxxxxxxx (Germany) is entering into a Share and
Partnership Interest Sale and Transfer Agreement (Notarial Deed of February
16/17, 2005, Allg. Prot. 2005/1 of the notary public Prof. Xx. Xxxxxx Staehelin,
Basel with Dr. Xxxxxxx Xxxxxxxxxx, Mrs. Xxxxx Strungmann, Mrs. Xxxxxx Strungmann
und Xx. Xxxxxxx Strungmann, all Xxxxxxxxxxxxxxxxxx 00, 00000 Xxxxxxxxx, Xxxxxxx,
Dr. Xxxxxx Xxxxxxxxxx, Mrs. Cornelia Strungmann, Xx. Xxxxxx Strungmann, Mrs.
Xxxxxx Strungmann, Mrs. Fiona Strungmann, and Xx. Xxxxx Strungmann, all
Xxxxxxxxx 0, 00000 Xxxxxxxxx, Xxxxxxx, relating to the acquisition by Purchaser
of shares in A+T Vermogensverwaltung GmbH as well as partnership interests in
A+T
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Holding GmbH & Co. KG, on the terms and subject to the conditions set forth
therein (the "Hexal Purchase Agreement");
NOW, THEREFORE, in consideration of the mutual promises, agreements and
covenants hereinafter set forth, intending to be legally bound, the Parties
agree as follows:
1. PURCHASE AND SALE OF STOCK.
Subject to the terms and conditions of this Agreement, at Closing (as
defined below), (a) Seller shall sell, transfer, assign and deliver the
Shares to Purchaser (or its designee); and (b) Purchaser (or its designee)
shall purchase the Shares from Seller.
2. PURCHASE PRICE; PAYMENT.
2.1 PURCHASE PRICE.
The purchase price for the Shares (the "Purchase Price") shall be Euro
1.300.000.000 (Euro one billion three hundred million).
2.2 PAYMENT.
At Closing, Purchaser (or its designee) shall pay to Seller the
Purchase Price in immediately available Euro by wire transfer to such
account as designated by Seller, which designation shall occur at
least three (3) business days prior to the Closing Date (as defined
below).
2.3 INTEREST.
The Purchase Price shall bear interest per annum as from January 1st ,
2005 until the date of payment based on three months EURIBOR (Euro
Interbank Offering Rate) as of the Closing Date plus one percent. Any
interest shall be due and payable together with the principal amount
to which it relates.
3. CLOSING; CLOSING DATE.
Unless otherwise agreed to by Purchaser and Seller, the closing ("Closing")
of the purchase and sale of the Shares shall take place within 10 (ten)
business days following the date on which all of the conditions to Closing
set forth in Sections 8 and 9 hereto (other than closing deliveries) shall
have been satisfied or waived (such date, the "Closing Date").
4. REPRESENTATIONS AND WARRANTIES OF SELLER.
Seller represents and warrants to Purchaser and Parent as follows:
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4.1 CAPACITY OF SELLER.
Seller is a limited liability company duly organized and validly
existing under the laws of Germany, with full power, authority and
capacity to (a) own and hold the Shares; and (b) enter into, deliver
and perform all of its obligations under this Agreement.
4.2 OWNERSHIP OF THE STOCK.
All of the Shares have been duly authorized and validly issued, and
are fully paid up, and are owned by Seller free and clear of any and
all encumbrances or third party rights of any kind. There is no
outstanding obligation on the part of Seller to make any additional
contributions to the share capital of the Company. There are no
outstanding options, warrants or other rights of any kind, including
any right of conversion, pre-emption or right of first refusal
entitling any person to acquire from Seller any Shares. No proxy has
been given, appointed or granted which is still effective with respect
to any of the Shares, and Seller has sole power of disposition with
respect to the Shares. Upon delivery of the certificates for the
Shares at the Closing as provided herein, Seller will transfer to
Purchaser valid title to the Shares, free and clear of any liens,
security interests, pledges or encumbrances of any kind.
4.3 AUTHORIZATION OF AGREEMENT.
Seller has taken all necessary action on its part to authorize the
execution and delivery of this Agreement and the performance of its
obligations hereunder, and this Agreement is a valid and binding
agreement and obligation of Seller enforceable against Seller in
accordance with its terms.
4.4 NON-CONTRAVENTION.
Neither the execution, delivery or performance of this Agreement by
Seller, nor the consummation by it of the transactions contemplated
hereby, shall constitute a violation of or permit the termination of,
or create, or cause the acceleration of the maturity of any debt,
obligation or liability of Seller or result in the creation or
imposition of any security interest, lien, or other encumbrance upon
any of the Shares under: (a) any term or provision of the charter
documents or other similar organizational documents (the
"Organizational Documents" ) of Seller; (b) any loan, note or other
agreements of Seller with third parties; (c) any statute or law
applicable to Seller; or (d) any order, arbitration award, judgment or
decree by which Seller is bound, nor shall it result in a default
under any provision, term or condition of any understanding,
arrangement, agreement or other instrument or commitment or order of
any court to which Seller is a party or by which Seller is bound,
which in any such case would adversely affect the value of the Shares
or the ability of Seller to fulfill its obligations under this
Agreement.
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4.5 APPROVALS AND CONSENTS.
No approvals or consents of, or applications or notices to, third
persons or entities are necessary for the lawful consummation by
Seller of the transactions contemplated by this Agreement.
4.6 CERTAIN REPRESENTATIONS RELATING TO THE COMPANY.
To Seller's best knowledge (NACH BESTEM WISSEN):
(a) The representations and warranties made by the Company in the Company
Merger Agreement that are qualified by materiality or material adverse
effect (or words of similar effect) are true and correct, and the
representations and warranties made by the Company in the Company Merger
Agreement that are not qualified by materiality or material adverse effect
(or words of similar effect) are true and correct in all material respects.
(b) The Company has filed with the U.S. Securities and Exchange Commission
all reports required to be so filed (the "Company Reports"), and the
Company Reports (including the financial statements included or
incorporated therein) comply in all material respects with the applicable
requirements of the U.S. securities laws and with applicable accounting
standards and, as of their respective dates (or, if amended, as of the date
of such amendment), did not contain any untrue statement of a material fact
or material omission.
(c) The financial statements included or incorporated in the Company
Reports fairly present, in all material respects, the consolidated
financial position and results of operations of the Company and its
subsidiaries as of their respective dates in accordance with U.S. generally
accepted accounting principles consistently applied during the periods
involved (except as may be noted therein).
(d) Since December 31, 2003, except as disclosed in the Company Reports
filed prior to the date hereof, (i) the Company has conducted its business
only in the ordinary course and has not engaged in any material transaction
other than in the ordinary course, and (ii) there has not been any event,
occurrence, discovery or development which would, individually or in the
aggregate, reasonably be expected to result in a material adverse effect on
the business, financial condition or results of operations of the Company.
5. REPRESENTATIONS AND WARRANTIES OF PURCHASER AND PARENT.
Each of Purchaser and Parent represents and warrants to Seller as follows:
5.1 CAPACITY OF PURCHASER.
It is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization, and has
full corporate power and authority to enter into, deliver and perform
all of its obligations under this Agreement.
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5.2 AUTHORIZATION OF AGREEMENT.
It has taken all necessary corporate action on its part to authorize
the execution and delivery of this Agreement and the performance of
its obligations hereunder, and this Agreement is a valid and binding
agreement and obligation of it, enforceable against it in accordance
with its terms.
5.3 NON-CONTRAVENTION.
Neither the execution, delivery or performance of this Agreement by
it, nor the consummation by Purchaser of the transactions contemplated
hereby, shall constitute a violation of or permit the termination of,
or create, or cause the acceleration of the maturity of any debt,
obligation or liability of it under: (a) its Organizational Documents;
(b) any loan, note or other agreements of it with third parties; (c)
any statute or law applicable to it; or (d) any order, arbitration
award, judgment or decree by which it is bound, nor shall it result in
a default under any provision, term or condition of any understanding,
arrangement, agreement or other instrument or commitment or order of
any court to which it is a party or by which it is bound which in any
such case would adversely affect its ability to fulfill its
obligations under this Agreement.
5.4 APPROVALS AND CONSENTS.
No approvals or consents of, or applications or notices to, third
persons or entities are necessary for the lawful consummation by
Purchaser of the transactions contemplated by this Agreement other
than pursuant to the Xxxx Xxxxx Xxxxxx Antitrust Improvements Act of
1976, as amended and the regulations promulgated thereunder terminated
(the "HSR Act").
6. ADDITIONAL COVENANTS OF SELLER AND PURCHASER.
Seller covenants and agrees with Purchaser and Parent, until Closing,
as follows:
6.1 COVENANTS OF SELLER PRIOR TO CLOSING.
(a) Seller shall not: (i) sell, assign or otherwise dispose of, or pledge,
subject to lien or otherwise encumber any of the Shares; (ii) grant any
proxies or powers of attorney, deposit any securities of the Company into a
voting trust or enter into a voting agreement with respect to any
securities of the Company, or any interest in any of the Shares, except
with or to Purchaser (or its designee); (iii) take any action that would
make any representation or warranty, contained herein, untrue or incorrect;
or (iv) agree to do any of the foregoing.
(b) Seller shall use its best efforts (NACH BESTEN KRAFTEN BEMUHEN) to
cause the Company to operate diligently in the ordinary course of business,
consistent with past practice, and shall cause the Company to fulfill its
covenants and obligations under the Company Merger Agreement. Without
limiting the foregoing, specifically, Seller shall use best efforts (NACH
BESTEN KRAFTEN BEMUHEN) to cause the Company not to:
5
(i) modify or amend its Organizational Documents in any way that
would or would be reasonably expected to adversely affect the consummation
of the transactions contemplated by this Agreement including the timing
therefor;
(ii) incur any indebtedness for borrowed money that cannot be
repaid or retired within 30 (thirty) days at no penalty;
(iii) (1) declare, set aside or pay any dividends on, or make
any other distributions in respect of, any of its capital stock, other than
dividends and distributions by any subsidiary of the Company to the
Company; (2) split, combine or reclassify any of its capital stock, or
issue or authorize the issuance of any other securities, including in
respect of, in lieu of or in substitution for shares of its capital stock;
(3) purchase, redeem or otherwise acquire any shares of its capital stock
or any rights, warrants or options to acquire any such shares or other
securities; or (4) take any action to transfer value from the Company to
Seller or its other affiliates;
(iv) extend, modify, terminate, amend or enter into any contract
with any affiliate of the Company, except pursuant to intercompany
transactions in the ordinary course; or
(v) authorize or commit to do or agree to take, whether in
whether in writing or otherwise, any of the foregoing actions.
(c) Seller shall cause Dr. Xxxxxx Xxxxxxxxxx to remain in his current
position as an officer of the Company through the Closing.
(d) Seller shall inform Purchaser and Parent promptly if it learns of any
event, fact or circumstance, including a breach of one or more of its
representations and warranties, that may result in one or more conditions
to Purchaser's and Parent's obligations to effect the Closing not being
satisfied.
6.2 DELIVERIES AT CLOSING.
(a) At the Closing, Seller shall deliver, or cause to be delivered, to
Purchaser (or its designee) the certificates representing the Shares
duly endorsed in the name of Purchaser (or its designee), free and
clear of all options, liens, claims, charges, restrictions and other
encumbrances of any nature whatsoever; and
(b) At the Closing, Purchaser shall, or shall cause one or more of its
affiliates to, deliver the Purchase Price to Seller, as provided in
Section 2.
7. BEST EFFORTS.
Seller and Purchaser each hereby agree that they will cooperate and use
their respective best efforts (NACH BESTEN KRAFTEN BEMUHEN) to fulfill the
conditions precedent to each other party's obligations hereunder, including
securing as promptly as practicable all consents, approvals, waivers and
authorizations required in connection with the purchase and sale of the
Shares.
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8. CONDITIONS TO OBLIGATIONS OF PURCHASER.
The obligations of Purchaser under this Agreement shall be subject to the
satisfaction on or before the Closing Date of each of the following
conditions unless previously waived in writing by Purchaser:
8.1 REPRESENTATIONS AND WARRANTIES OF SELLER TO BE TRUE; COMPLIANCE WITH
COVENANTS.
The representations and warranties of Seller contained in this
Agreement that are qualified as to materiality or material adverse
effect (or words of similar effect) shall be true and accurate at and
as of the Closing Date as if made as of such date, and the
representations and warranties that are not qualified by materiality
or material adverse effect (or words of similar effect) shall be true
and accurate in all material respects as of the Closing Date as if
made as of such date. Seller shall have performed and complied with,
in all material respects, all obligations and covenants required by
this Agreement to be performed or complied with by Seller prior to or
on the Closing Date.
8.2 HEXAL PURCHASE AGREEMENT; COMPANY MERGER AGREEMENT.
The closing of the transactions contemplated by the Hexal Purchase
Agreement shall have been consummated or shall be consummated
contemporaneously with the Closing.
As of the Closing Date, the representations and warranties of the
Company contained in the Company Merger Agreement that are qualified
as to materiality or material adverse effect (or words of similar
effect) shall be true and accurate at and as of the Closing Date as if
made as of such date, and the representations and warranties that are
not qualified by materiality or material adverse effect (or words of
similar effect) shall be true and accurate in all material respects as
of the Closing Date as if made as of such date. The Company shall have
performed and complied with, in all material respects, all obligations
and covenants required by the Company Merger Agreement to be performed
or complied with by the Company prior to or on the Closing Date.
8.3 CONSENTS; NO IMPEDIMENTS.
All consents necessary to consummate the purchase and sale of the
Shares (including, without limitation, expiration of all applicable
waiting periods under the HSR Act) shall have been received in form
and substance reasonably satisfactory to Purchaser and no further
consents or approval shall be required, and no impediments shall
exist, to the consummation of the transactions contemplated by the
Company Merger Agreement. There shall be nothing preventing the
closing of the tender offer provided for in the Company Merger
Agreement from occurring contemporaneously with the Closing.
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8.4 NO INJUNCTION.
No governmental entity of competent jurisdiction shall have enacted,
issued, promulgated, enforced or entered any statute, rule,
regulation, or non-appealable judgment, decree, injunction or other
order that is in effect on the Closing Date and prohibits the
consummation of the Closing.
8.5 DELIVERIES.
Purchaser shall have received the certificates representing the Shares
and all other documents required hereunder to be submitted by Seller
to Purchaser at the Closing.
9. CONDITIONS TO OBLIGATIONS OF SELLER.
The obligations of Seller under this Agreement shall be subject to the
satisfaction on or before the Closing Date of each of the following
conditions unless previously waived in writing by Seller:
9.1 REPRESENTATIONS AND WARRANTIES OF PURCHASER AND PARENT TO BE TRUE;
COMPLIANCE WITH COVENANTS.
The representations and warranties of Purchaser and Parent contained
within this Agreement shall be true and accurate as of the Closing
Date as if made as of such date. Purchaser and Parent shall have
performed and complied with, in all material respects, all obligations
and covenants required by this Agreement to be performed or complied
with by each of them prior to or on the Closing Date.
9.2 NO INJUNCTION.
No governmental entity of competent jurisdiction shall have enacted,
issued, promulgated, enforced or entered any statute, rule,
regulation, or non-appealable judgment, decree, injunction or other
order that is in effect on the Closing Date and prohibits the
consummation of the Closing.
9.3 DELIVERIES.
Seller shall have received the Purchase Price required to be paid by
Purchaser pursuant to Section 2.
10. INDEMNIFICATION.
10.1 EXCLUSION OF STATUTORY LAW.
Seller and the Purchaser hereby expressly exclude the applicability of
Sections 434 to 453 German Civil Code (BURGERLICHES GESETZBUCH, BGB)
as well as any and all statutory warranty claims there under. Seller
and the Purchaser further agree that the representations and
warranties made by Seller in Section 4 hereto,
8
in particular, do not qualify as guarantees (BESCHAFFENHEITSGARANTIEN)
within the meaning of Sections 443, 444 German Civil Code
(BURGERLICHES GESETZBUCH, BGB) and that the consequences of any breach
of the representations and warranties set forth in Section 4 hereto
are exclusively governed by the terms and conditions of this
Agreement.
Furthermore Seller and the Purchaser confirm that the limitations to
the representations and warranties as specified in this Section 10
(and by way of reference in the Hexal Purchase Agreement) or otherwise
in this Agreement shall form an integral part of the representations
and warranties and that the representations and warranties set forth
in Section 4 hereto are only given subject to such provisions and
limitations
10.2 INDEMNIFICATION BY SELLER.
Seller hereby agrees that it shall indemnify, defend and hold harmless
Parent, Purchaser, their affiliates, and their respective directors,
officers, shareholders, partners, employees and representatives and
their heirs, successors and assigns (the "Purchaser Indemnified
Parties") from, against and in respect of any Losses incurred or
suffered by or asserted against any of the Purchaser Indemnified
Parties, directly or indirectly relating to or arising out of (a) any
breach of any representation or warranty made by Seller contained in
this Agreement and (b) any breach of any covenant or agreement of
Seller contained in this Agreement, in each case (a) and (b) to the
same extent, on the same terms and conditions and subject to the same
limitations (including, without limitation, survival periods,
deductibles and caps (expressed as a percentage of the Purchase
Price)) and procedures as Purchaser and its affiliates are indemnified
for such matters in the Hexal Purchase Agreement; provided that in the
event of any Loss, Seller shall be responsible under this Agreement
only for the amount of Loss equal to the total amount of such Loss
multiplied by a fraction, the numerator of which is the number of
Shares and the denominator of which is the total number of shares of
Common Stock outstanding as of immediately prior to the Closing.
11. GENERAL PROVISIONS.
11.1 TERMINATION.
This Agreement may be terminated and the transactions contemplated by
it may be abandoned at any time prior to Closing:
(a) by mutual written consent of Seller and Purchaser; or
(b) by either Seller or Purchaser on or after December 31, 2005 if the
Closing shall not have theretofore occurred; provided, however, that the
terminating party is not in material breach of its obligations hereunder or
under the Hexal Purchase Agreement.
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11.2 EFFECT OF TERMINATION.
In the event of the termination of this Agreement in accordance with
Section 11.1, this Agreement shall thereafter become void and of no
further effect, and no party hereto shall have any liability to the
other party hereto or their respective affiliates, directors, officers
or employees, except that nothing in this Section 11.2 will relieve
any party from liability for any breach of this Agreement prior to
such termination, for which liability the provisions of Articles 10
and 11 shall remain in effect in accordance with the provisions of
such Articles.
11.3 AMENDMENT OF AGREEMENT.
Any provision of this Agreement may be amended or waived if, and only
if, such amendment or waiver is in writing and signed, in the case of
an amendment, by each of the parties hereto, or in the case of a
waiver, by the party against whom the waiver is to be effective. No
failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein provided shall be cumulative
and not exclusive of any rights or remedies provided by applicable
law.
11.4 CONTENTS OF AGREEMENT; INTEGRATION; PARTIES IN INTEREST; ASSIGNMENT,
ETC.
This Agreement and the documents referred to herein set forth the
entire understanding of the Parties with respect to the subject matter
hereof. Any previous agreements or understandings, representations or
warranties between the Parties, or information exchanged by and
regarding the subject matter hereof, are merged into and superseded by
this Agreement. The terms and conditions of this Agreement shall be
binding upon and inure to the benefit of and, to the extent provided
herein, be enforceable by the respective successors and assigns of the
Parties.
11.5 GOVERNING LAW; JURISDICTION.
This Agreement shall be governed by the laws of the Federal Republic
of Germany. The exclusive place of venue shall be Munich. To the
extent that any of the parties are not businessmen (KAUFLEUTE) this
clause as to the exclusive place of venue shall only apply in the
cases of Section 38 para 3 no. 2 and Section 38 para 2 German Civil
Procedure Code (ZPO).
11.6 SEVERABILITY.
In the event that any portion of this Agreement shall be declared by
any court of competent jurisdiction to be invalid, illegal or
unenforceable, such portion shall be deemed severed from this
Agreement and the remaining parts hereof shall remain in full force
and effect as fully as if those such invalid, illegal or unenforceable
portions had never been a part of this Agreement.
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11.7 NOTICES.
Any notice that a Party is required or permitted to give pursuant to
this Agreement shall be in writing and shall be effective upon
receipt. Such notices shall be sent by facsimile to the facsimile
numbers specified below, unless notice of a change of facsimile is
given in writing, and shall be confirmed in writing, hand-delivered or
sent by public mail or private delivery service, with evidence of
receipt in each instance, to the addresses specified below unless
notice of a change of address is given in writing:
If to Seller:
Santo Holding (Deutschland) GmbH,
Xxxxxxxxxxxx 0X
X-00000 Xxxxxxxxx
Tel. x00 000 000000
Fax x00 000 0000000
with a copy (which shall not constitute notice) to:
Dr. Xxxxxx Xxxxxxxxxx
Xxxxxxxxx 0
X-00000 Xxxxxxxxx
Tel. x00 0000 00000
Fax. x00 0000 000000
If to Purchaser or Parent:
Novartis AG
General Counsel
Xxxxxxxxxxxx 00
0000 Xxxxx, Xxxxxxx
Tel.: x00 00 000 00 00
Fax.: x00 00 000 0000
11.8 COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original, but all of which shall be
considered one and the same agreement.
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11.9 EXPENSES.
Except as provided in Section 11, Purchaser and Seller shall each pay
its own taxes, costs and expenses (without limitation, costs, expenses
and fees of its investment bankers, legal counsel, accountants,
financial advisors, and other consultants and agents) in the
negotiation, preparation and implementation of this Agreement and all
transactions contemplated herein.
11.10 NO THIRD PARTY BENEFICIARIES.
Except as provided for herein, this Agreement shall not convey any
rights on a person not a party hereto.
11.11 LANGUAGE.
This Agreement has been executed only in the English language.
11.12 ASSIGNMENT.
Neither this Agreement nor any of the rights or obligations hereunder
may be assigned by either Party without the prior written consent of
the other Party; provided, however, that Purchaser shall have the
right to assign this Agreement and any of the rights (but not the
obligations) hereunder to any affiliate thereof.
11.13 HEADINGS.
The heading references herein are for convenience purposes only, do
not constitute a part of this Agreement and shall not be deemed to
limit or affect any of the provisions hereof.
12. OBLIGATION OF CONTROLLING SHAREHOLDER.
Whenever in this Agreement performance of or compliance with a covenant or
obligation is expressed to be required by Purchaser, Parent shall cause
Purchaser to perform or comply with such covenant or obligation, such that
any failure of Purchaser to perform or comply with any such covenant or
obligation shall be deemed to be a breach of such covenant or obligation by
Parent.
[Signature page follows]
12
IN WITNESS WHEREOF, each of the Parties has caused this Agreement to
be duly executed as of the day and year first written above.
SANTO HOLDING (DEUTSCHLAND) GMBH
By: /s/ Wolfgang Boorberg
-------------------------------------
Wolfgang Boorberg
(Authorized Signatury)
NOVARTIS CORPORATION
By: /s/ Xxxxx Xxxxxxx
-------------------------------------
Xxxxx Xxxxxxx
(Authorized Signatury)
NOVARTIS AG
By: /s/ Xxx Xxxxxxxxxx
-------------------------------------
Xxx Xxxxxxxxxx
(Authorized Signatury)
By: /s/ Xxxxx Xxxxxxx
-------------------------------------
Xxxxx Xxxxxxx
(Authorized Signatury)
[AGREEMENT FOR PURCHASE AND SALE OF STOCK SIGNATURE PAGE]
