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EXHIBIT 2.1
PURCHASE AGREEMENT
relating to the purchase of 80% of the issued
and outstanding shares in
EUROMED EUROPE B.V.
by
NEOPHARM B.V.
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PURCHASE AGREEMENT
THE UNDERSIGNED:
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1. NEOPHARM B.V., a private company with limited liability with seat at
Groningen, duly represented by Mr. M. Rijkeboer, hereinafter referred to as
"the Purchaser";
AND
2. EUROMED, INC. , a public company incorporated under the laws of Nevada,
United States of America, duly represented by its CEO, Mr. E.G. Xxxxxxx,
hereinafter referred to as "the Vendor";
TAKING INTO CONSIDERATION:
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A. EUROMED EUROPE B.V., hereinafter referred to as "the Company", is a closed
company with limited liability incorporated under the laws of the
Netherlands, with statutory seat at Oosterhout, the Netherlands, with an
issued and paid-up share capital consisting of 400 shares with a nominal
value of Dfl l00 each (hereinafter referred to as "the Shares").
B. The Company is the direct owner of subsidiary companies and affiliate
companies as defined below.
C. The Vendor is the sole owner of the Shares.
D. The Vendor wishes to sell 80% of the Shares (this 80% hereinafter referred
to as "the Sale Shares") and the Purchaser wishes to buy the Sale Shares
under the conditions as set forth hereinafter.
NOW IT IS HEREBY AGREED AS FOLLOWS:
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1. Sale and Purchase
1.1. The Vendor hereby sells to Purchaser and the Purchaser hereby
purchases from Vendor the Sale Shares, with numbers 1 up and including
320 free from all liens, charges and encumbrances and with all rights
attaching to them.
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1.2. Legal title to, and any risk attaching to, the Sale Shares shall pass
on Completion Date to Purchaser.
2. Purchase Consideration
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2.1. The total purchase consideration for the Sale Shares ("the Purchase
Price") is US $1,000,000 (one million United States dollars).
3. Completion
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3.1. Completion shall take place on such date as shall be mutually agreed
by the Purchaser and the Vendor being not later than December 15, 1997
("the Completion Date") in the offices of Xxxxxx Xx Xxxxx, 0000
Xxxxxxxxxxxxxx, Xxxxxxxxx the Netherlands.
3.2. On the Completion Date, the Purchaser and the Vendor shall execute a
notarial Deed of Transfer in favor of the Purchaser. The Vendor shall
procure that the Company shall acknowledge such transfer of the Sale
Shares by co-signing the Deed of Transfer.
3.4. Until Completion Date, Vendor warrants that the Company shall not
resolve to any material changes of its policy, strategies,
transactions or matters outside the ordinary course of business of the
Company, unless with the prior approval of Purchaser.
4. Payment of the Purchase Price
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4.1. On the Completion Date, the Purchase Price shall be paid by telephone
bank transfer to Vendor in accordance with instructions given by
Vendor. Prior to completion, an amount equal to the Purchase Price
shall be transferred to the third party account of the Notary. Payment
made by the Notary to Vendor in accordance with the instructions given
to the Notary, will discharge Purchaser for its obligations under this
Article 4.1.
5. Guarantees
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It is agreed and acknowledged that with respect to the Sale Shares and
the Company, Vendor does not give any representation, warranty or
guarantee whatsoever except those which are mentioned in this article.
The Vendor guarantees ("garandeert") to the Purchaser that each of the
following statements is true and accurate as of today and as at the
Completion Date, save as properly disclosed in writing to the
Purchaser, subject to Article 8.3 of this Agreement.
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As far as the Guarantees are given with regard to the Company, it is
implied that such guarantees are equally applicable to any of the
subsidiary or affiliated companies of the Company.
A. STATUS OF THE COMPANY
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5.1. The Company was incorporated by a notarial deed on 28 December 1995
and is registered with the Trade Registry of the Chamber of Commerce
and Industry for Westelijk Noord Brabant (Breda), the Netherlands,
under file number 79000. A Trade Registry Extract with respect to the
Company is attached to this Agreement as Exhibit 1 and is correct and
up to date in every respect. The Articles of Association of the
Company as presently in force are attached as Exhibit 2.
5.2. The Company is the owner of the following shares in the subsidiary and
affiliated companies:
-- Confedera B.V. (100%);
-- Galenica B.V. (100%);
-- Mutarestes B.V. (100%);
Mutarestes B.V. is the owner of 100% of the shares in Pluripharm
International B.V. Pluripharm International B.V. is the owner of 100%
of the shares in Financieringsmaatschappij de Nieuwe Wereld B.V. The
Company owns such shares including the voting rights thereto, free
and clear of any liens, security interests, charges, claims, options,
rights of first refusal, other than as appearing from the articles of
association of the relevant companies or shareholders or similar
agreements, as provided for in Exhibit 3.
5.3. The Company, through its subsidiary and affiliated companies, carries
on activities, in the field of wholesale of pharmaceutical products.
5.4. On Completion Date, the Sale Shares are free of any liens or charges,
and no depositary receipts ("certification") have been issued in
respect of them and the Vendor has free title to the Sale Shares. The
Sale Shares constitute 80% of the issued and outstanding share-capital
of the Company. The Sale Shares are fully paid-up, unencumbered and
free of any claims by third parties.
5.5 Neither the Company nor the Vendor has issued any outstanding options
or other rights to any person to acquire shares in the Company.
5.6. The Company has not issued to any person a right to share in its
profit, such as, but not limited to profit-sharing agreements and
staff bonuses.
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5.7. The Vendor has the power ("bevoegdheid") to enter into this
Agreement and to perform the obligations expressed to be assumed by it
and has taken all necessary corporate action to authorize the
execution and performance of this Agreement.
B. MANAGEMENT BOARD; POWERS OF ATTORNEY
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5.8. The Company has not granted any power of attorney or similar authority
to any person including, without limitation, any power of attorney or
similar authority to commit the Company in any way or to dispose of
assets of the Company or to operate any bank facilities, except as
mentioned in the Trade Registry Extract (attached as Exhibits 1 and
3).
C. INSOLVENCY
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5.9. No order has been made and no resolution has been passed for the
winding up of the Company and no meeting has been convened for the
purpose of the winding up of the Company.
5.10 No bankruptcy order has been made and no petition for such an order
has been presented in respect of the Company. No receiver
bewindvoerder) has been appointed in respect of the Company of all or
any of its assets. The Company is not insolvent. No distress
execution or other process has been levied on any of the Company's
assets or action taken to repossess goods in the Company's possession.
Purchaser is aware that Confedera B.V. and Galenica B.V. have been
granted temporarily "surseance van betaling" (suspension of payment)
by the relevant District Courts of Utrecht en Breda on 19 November
1997.
6. Breach of Guarantees
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6.1. All liabilities of the vendor arising as a result of any matter which
is subject of the warranties as referred to in Article 5 shall
terminate on the expiry of a period of I year as from the Completion
Date, except if the Purchaser has delivered any claim in writing,
stating description of facts and circumstances and the amount claimed,
to the Vendor prior to such times.
6.2. The Vendor's liability for damage with respect to the aforementioned
Guarantees is maximized up to the total of the Purchase Price as
determined above in Article 2 of this Agreement.
6.3. In the event of breach of any of the Guarantees by the Vendor or a
default by the Vendor of any other obligation contemplated by in this
Agreement, the Vendor or the Purchaser, as the case may be, shall upon
obtaining knowledge thereof notify the other party promptly in
writing. If such party has not taken appropriate measures
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within 30 days of such notification in order to remedy the breach or
default concerned, and a dispute arises in this respect between the
parties, then the affected party shall be entitled to institute
proceedings pursuant to Article 14 of this Agreement.
7. Confidentiality
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7.1 Vendor undertakes not to provide to any other person or use any
information regarding the Company, which information it knows or
should know is secret or confidential, or the distribution of which
may cause damage to Purchaser and/or the Company, unless it is
required to do so by virtue of or pursuant to statue or applicable
regulations or the requirements of any governmental or regulatory
body, provided that Vendor shall not disclose any such information
without the prior consultation with Purchaser, unless this
consultation is prevented by law.
8. Further Covenants
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8.1. Upon signing this Agreement, Purchaser undertakes to restore the
credit facility of both Galenica B.V. and Confedera B.V. to the extent
necessary to secure the support of the court appointed administrator
("bewindvoerder") for petitioning the relevant District Courts to
withdraw the temporarily granted "surseance van betaling" of Confedera
B.V. and Galenica B.V.
8.2. Ultimately on Completion Date Vendor shall resign as statutory
director of the Company and its subsidiary companies, as the case may
be, effective the Completion Date.
Vendor shall undertake that Xx. Xxxxxx, B.V. Wisteria and/or
Pantapharma B.V. shall resign as statutory director of the Company and
its subsidiary companies, as the case may be, effective the Completion
Date. On Completion Date, Purchaser shall, to the extent necessary,
confirm the "Settlement Agreement" to be concluded between Vendor, the
Company and its subsidiary companies on the one hand and Xx. Xxxxxx,
B.V. Wisteria and/or Pantapharma on the other hand. On Completion
Date Xx. X. Xxxxxx shall be appointed as statutory director of the
Company.
8.3. Vendor has made available to Purchaser, amongst others, (i) an
information Memorandum regarding Galenica B.V. and Confedera B.V.
prepared by Xxxxxxx & Wertheim Partners (attached to this Agreement as
Exhibit 4) (ii) a memorandum on the consolidated interim financial
statements of the Company for the period ended 30 September 1997,
prepared by the auditor of the Company, PaardeKooper & Xxxxxxx
accountants (attached to this Agreement as Exhibit 5). To the best of
Vendor's knowledge, the information contained in these memorandums is
accurate and complete.
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The Vendor knows of no information which is or may reasonably be
regarded as material to an accurate appraisal of the affairs of the
Company and which has not been disclosed to the Purchaser.
8.4 Purchaser is aware of a dispute between Pluripham International B.V.
on the one hand, and Singultus B.V. on the other hand, which dispute
has arisen out of an Assets and Liabilities Transfer Agreement dated 4
July 1997. This dispute concerns the entitlement to an amount of
f 1.000.000, -- as presently held in escrow account. It is agreed that
any costs and proceeds in connection with this dispute will be solely
for the account of Vendor. In case any action is required by Purchaser
in this respect, Purchaser undertakes to assist Vendor and/or
Pluripharm International B.V., as the case may be.
8.5 It is agreed that upon completion, the Articles of Association of the
Company will be amended to the effect that (i) a supervisory board
(the "Board") will be installed (with two members, one on behalf of
Vendor (initially being Mr. E.G. Xxxxxxx) and one on behalf of
Purchaser (initially being Mr. M. Rijkehoer); (ii) the Board shall be
entitled to receive financial information on the Company and its
subsidiaries on a monthly basis, and an audited financial statement on
an annual basis; and (iii) no material action may be taken without
unanimous approval of the members of the Board (such material actions
shall include, but not be limited to (a) the issuance of any equity
(or securities or instruments convertible or exercisable into equity
securities) of the Company or its subsidiaries; (b) the entering into
any transaction with an affiliate of Vendor or the Company; (c) the
increase in compensation of any executive officer or managing director
of the Company or any of its subsidiaries; (d) the sale or transfer of
all or substantially all of the assets or stock of the Company or any
of its subsidiaries; or (e) the liquidation, dissolution or winding-up
of the Company or any of its subsidiaries or the bankruptcy or
suspension of payment by the Company or any of its subsidiaries.
8.7 It is agreed that Purchaser will be responsible for the day to day
management of the Company and its subsidiary companies, as the case
may be. It is further agreed that Vendor will not interfere in the
normal conduct of business of the Company and its subsidiary
companies, as the case may be.
9 Assignment of Rights
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9.1. The Purchaser is entitled to assign all its rights under this
Agreement to any of its 100 subsidiaries or to a member of the
Purchasers Group in which Purchaser holds a majority interest or a
natural person related to the Purchaser. In the event of such
assignment by Purchaser, Purchaser shall procure that the assignee
assumes all then outstanding obligations of Purchaser under this
Agreement.
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10. Rescission
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10.1 Up to Completion Date, the Purchaser shall, in its sole judgement, be
entitled to rescind ("ontbinden") this Agreement, without intervention
of the Court being required, by notice to the Vendor, solely in the
event the relevant Districts Courts in Utrecht and Breda have not
approved of withdrawing the "surseance van betaling" (suspension of
payment) which was temporarily granted to Confedera B.V. and
Galenica B.V. on 19 November 1997. Purchaser shall not be entitled to
rescind this Agreement on any other ground or for any other reason.
11. Costs
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11.1. Each party to this Agreement will bear its own costs in relation to
the negotiating and preparing of this Agreement. The costs of the
Notarial Deed of Transfer will be for 50% for the account of each
party to this Agreement.
12. Governing Law, Disputes
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12.1. This Agreement shall be governed by the laws of the Netherlands.
12.2. All disputes arising in connection with this Agreement shall he
submitted to the competent Court in Amsterdam, the Netherlands.
13. Announcements
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13.1. No announcements with respect to this Agreement shall be made unless
agreed by parties or required by law.
13.2. The vendor undertakes to the Purchaser that it will not at any time
from the date hereof divulge or communicate to any person other than
to officers or employees of the Company whose province it is to know
the same or on the instructions of the Board of Directors of the
Company any confidential information concerning any aspect of the
Company and it shall use its best endeavors to prevent the publication
or disclosure of any such confidential information concerning such
matters.
This Agreement represents the entire understanding and agreement between the
Vendor and the Purchaser with respect to the purchase and sale of the Shares and
supercedes all previous agreements, both in writing and oral, including
correspondence.
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IN WITNESS WHEREOF the parties hereto have executed this Agreement in Amsterdam,
the Netherlands, on 26 November 1997 by their duly authorized representatives.
/S/ E. Xxxx Xxxxxxx /S/ M. Rijkeboer
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EuroMed, Inc. Neopharm B.V.
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ADDENDUM
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THE UNDERSIGNED:
1. NEOPHARM B.V., a private company with limited liability with seat at
Groningen, duly represented by Mr. M. Rijkeboer, hereinafter referred to as
"the Purchaser";
AND
2. EUROMED, INC., a public company incorporated under the laws of Nevada,
United States of America, duly represented by its CEO, Mr. E.G. Xxxxxxx,
hereinafter referred to as "the Vendor";
This letter is executed in addition to the Purchase Agreement entered into
between Vendor and Purchaser dated 26 November 1997 regarding the purchase of
80% of the issued and outstanding shares in EuroMed Europe B.V. ("the
Agreement"). Words in this Letter of Additional Understanding shall have the
same meaning as provided in the Agreement.
1. It is agreed that upon Completion, Vendor undertakes to increase the equity
of the Company by way of converting a loan made available by Vendor to the
Company to the amount of Dfl 5.500.00 (five million five hundred thousand)
into share capital of the Company. To the extent necessary, the Articles of
Association of the Company will be amended accordingly. All costs in
connection with the envisaged increase of capital will be for the account
of Vendor. Equity in the Company will be issued to Vendor and Purchaser in
such a way that upon completion of the increase of share capital as
mentioned in this clause, Purchaser will hold 80% of the issued and
outstanding share capital in the Company.
2. It is agreed that Vendor will indemnify, defend and hold Purchaser, and its
employees, agents, attorneys and affiliates harmless from and against any
and all losses, claims, cause of action, obligations, demands assessments,
penalties, liabilities, costs, damages, attorneys' fees and expenses,
asserted against or incurred by third parties (such as, but not limited to
shareholders and creditors of EuroMed, Inc.) By reason of or resulting (i)
from any claims made or initiated by Xx. X. Xxxxxx against Vendor and/or
its subsidiary and/or affiliate companies and/or its employees, or agents
and (ii) from any claims made or initiated by Xx. X. Xxxxxx against
Purchaser and/or its subsidiary and/or affiliate companies, and/or its
employees or agents.
3. It is agreed that Purchaser will pay one-third (1/3) of the purchase price
as mentioned in the Agreement under clause 2, on Monday 8 December 1997 and
the balance (2/3) on Completion Date on condition that ultimately on 8
December 1997 (i) Vendor has furnished to Purchaser written evidence of
board approval of the Board of Directors of EuroMed, Inc. unconditionally
approving and/or ratifying (a) the Agreement as signed on 26 November 1997
including this Addendum and (b) the Settlement Agreement signed on 27
November 1997 between the EuroMed Group and Xx. Xxxxxx, Pantapharma and
Wisteria; and (ii) the suspensions of
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payment of Galencia B.V. and Confedera B.V. have been withdrawn by the
relevant District Courts.
Signed at Amsterdam, the Netherlands on December 3, 1997, by:
/S/ E. Xxxx Xxxxxxx /S/ M. Rijkeboer
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Neopharm B.V. EuroMed, Inc.
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