EXHIBIT 2.1
NOTARIAL DEED
AGREEMENT ON THE
SALE AND ASSIGNMENT OF SHARES
Today, this sixteenth day of February twothousandone appeared before me, the
undersigning notary public
Xxxxxxx Xxxxx
with his official seat in Basel/Switzerland at his office in Xxxxxxxxxxxxxxx 00,
XX-0000 Xxxxx, Xxxxxxxxxxx
1. Xx. Xxxxx Preisenberger, born 24 October 1968, attorney-at-law, German
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citizen, with business address in D-80539 Munich/Germany, XxxxxxxxxxxxxxXx
00, resident in D-85570 Markt Schwaben/Germany, HeilmaierstraBe 19, proving
his identity by presenting his German identity card, according to his
declarations (but without taking any personal liability) here acting for
and on behalf of
a) Dr. Stefan Xxxx Xxxxxx, born February 16, 1957, German citizen,
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resident at XxxxxxxxXx 00, X-00000 Xxxxxxxxx/Xxxxxxx, presenting an
uncertified power of attorney dated 10 February 2001, a hereby
certified copy of which is attached hereto as Exhibit 1 A, according
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to the declarations of the attorney in fact Xx. Xxxxxx here acting on
behalf of Xxxxxx Vermogensverwaltung GbR, a German civil law
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partnership with its seat in Krailling/Germany, the partners of which
are listed in Exhibit 1 A (1) hereto, by virtue of powers of attorney
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granted to him by all the partners,
b) Xx. Xxxxxx Xxxxxx, born October 12, 1953, German citizen, resident at
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Xxxxxxxxxxxxx 00x, X-00000 Xxxxxxx/Xxxxxxx, presenting an uncertified
power of attorney dated 10 February 2001, a hereby certified copy of
which is attached hereto as Exhibit 1 B, according to the declarations
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of the attorney in fact Xx. Xxxxxx Xxxxxx here acting on behalf of
Xxxxxx GbR, a German civil law partnership with its seat in
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Gauting/Germany, the partners of which are listed in Exhibit 1 B (1)
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hereto, by virtue of powers of attorney granted to him by all the
partners,
c) Xxx. Xxxxx Xxxxxxx, born February 29, 1956, German citizen, resident
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at Xxxxxxxxxxxxxx 00, X-00000 Xxxxxxxxx/Xxxxxxx, presenting an
uncertified power of attorney dated 5 February 2001, a hereby
certified copy of which is attached hereto as Exhibit 1 C,
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d) Xx. Xxxxx Xxxxxxx, born February 27, 1941, German citizen, resident at
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Xxxxxxxxxxxxxx 00, X-00000 Xxxxxxxxx/Xxxxxxx, presenting an
uncertified power of attorney dated 5 February 2001, a hereby
certified copy of which is attached hereto as Exhibit 1 D,
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e) Xx. Xxxxx Xxxxxxx Xxxxxx, born October 23, 1969, German citizen,
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resident at XxxxxxxxxxxXx 00, X-00000 Xxxxxx/Xxxxxxx, presenting an
uncertified power of attorney dated 6 February 2001, a hereby
certified copy of which is attached hereto as Exhibit 1 E,
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f) German Equity Partners B.V., a company according to Duth law, with its
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seat in XX-0000 XX Xxxxxxxxx/Xxxxxxxxxxx, Rokin 55, registered with
the commercial register (Xxxxx van Koophandel) of Amsterdam under no.
33220336, presenting an uncertified power of attorney dated 12
February 2001, a hereby certified copy of which is attached hereto as
Exhibit 1 F, and with the promise (but without assuming any personal
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liability herefor) to submit to the Notary as soon as possible an
additional power of attorney with notarially certified signatures and
Apostille as well as a certified extract from the commercial register
(Xxxxx van Koophandel), which then shall be attached to this deed as
Exhibits 1 F(1) and 1 F(2),
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g) Banc Boston Investments Inc., with its seat in Boston/U.S.A., 175
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Federal Street, presenting a notarially certified power of attorney
dated 12 February 2001 with an apostille attached, a hereby certified
copy of which is attached hereto as Exhibit 1 G, and with the promise
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(but without assuming any personal liability herefor) to submit to the
Notary as soon as possible a Secretary's Certificate, which then shall
be attached to this deed as Exhibit 1 G(1),
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h) Kleinwort Xxxxxx European Mezzanine Fund II, an English partnership
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with its seat in London/UK (postal address c/o Indigo Capital Ltd., 00
Xxxxxxx Xxxxxx, Xxxxxx XX0X 0XX), presenting a notarially certified
power of attorney dated 12 February 2001 with an apostille attached,
the notary public certifying the power of the undersigning person to
act on behalf of Kleinwort Xxxxxx European Mezzanine Fund II, a hereby
certified copy of which is attached hereto as Exhibit 1 H,
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- the persons a) to h) hereinafter
collectively referred to as "Vendor" -
2. Xxxxxxx X. Xxxxxx, born 25 March 1968, German citizen, attorney-at-law, with
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business address in D-20354 Hamburg, WarburgstraBe 50, resident in D-22081
Hamburg, Weizenkamp 2, proving his identity by presenting his German
identity card, according to his declarations (but without taking any
personal liability) here acting for and on behalf of
a) ResMed Beteiligungs GmbH i.G., a German limited liability company in
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process of incorporation, with its seat in D-20354 Hamburg/Germany,
Xxxxxxxxxxxxxx 00,
- hereinafter referred to as "Buyer" -
presenting a certified power of attorney dated 8 February 2001, a
hereby certified copy of which is attached hereto as Exhibit 2 A(1),
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proving the power of representation of the undersigned person by
presenting Buyer's Articles of Incorporation ["Grundungsurkunde"]
including its By-laws ["Satzung"] (deed no. 226/2001 of the notary
public Dr. Ascan Pinckernelle in Hamburg dated 8 February 2001), a
copy of which is attached hereto as Exhibit 2 A(2),
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b) ResMed Inc., a Delaware corporation with its seat in 14040 Xxxxxxxxx
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Xxxxxx, Xxxxx, Xxxxxxxxxx 00000, X.X.X.
- hereinafter referred to as "ResMed" -
presenting a fax-copy of a power of attorney with the signature of the
undersigned person being certified by a notary, with the promise (but
without assuming any personal liability herefor) to submit to the
Notary as soon as possible the original of this power of attorney
(with Apostille) as well as a Secretary's Certificate, which then
shall be attached to this deed as Exhibits 2 B and 2 B(1).
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The acting Notary Public advised the persons appearing that unless the powers of
attorney presented to him have notarially certified signatures and notarial
confirmations (or equivalent evidence, e.g. by means of a certified extract from
an official Commercial Register, is provided) of the existing of and the
representation power for legal entities purported to be represented, the Notary
cannot examine neither the authenticity of the signatures nor the representative
capacity of the persons who purported to have signed the powers of attorney. The
Notary does not assume any liability as to the validity and scope of the powers
of attorney presented, which do not conform with the requirements mentioned
above, and of the powers of attorney, which are only alledged (powers of
attorney of the other partners in Xxxxxx Vermogensverwaltung GbR and Xxxxxx
GbR).
Nevertheless the persons appearing insisted on the immediate notarization and,
unless stated otherwise above, released each party from submitting subsequently
certified powers of attorney or other documents evidencing or supporting the
representative capacity.
The acting Notary advised the persons appearing that a notary who or whose
partners in the law firm have formerly acted as legal advisors to one of the
parties involved in the matter to be notarized would not be entitled to take
office as a notary in the matter at hand pursuant to (S) 233 Sect. 1(4) of the
Introductory Act of the Canton Basel-City relating to the Swiss Civil Code which
provision corresponds with the so-called "Vorbefassungsverbot" under the German
Act of Notarization ((S) 3 Sect. 1(7)). The acting Notary states that he himself
and his firm have not been involved in the matter at hand in the meaning of said
provisions. By approving the present Agreement, the Parties hereto shall confirm
such statement of the acting Notary.
The persons appearing requested this Deed including its Exhibits to be recorded
in the English language. The acting Notary Public who is in sufficient command
of the English language ascertained that the persons appearing are also in
command of the English language. After having been instructed by the acting
Notary, the persons appearing waived the right to obtain the assistance of a
sworn interpreter and to obtain a certified translation of this Deed including
the Exhibits hereto.
The persons appearing, acting as indicated declared with request for
notarisation the following:
SALE AND ASSIGNMENT AGREEMENT:
Sec. 1
Corporate Legal Relations
1. Vendor holds all shares in
MAP Medizin-Technologie GmbH
with its seat in Martinsried/Germany
- hereinafter referred to as "Company" -
registered with the commercial register of the local court of Munich under
HRB 122291. The share capital of the Company amounts to a total of DM
100,000. All contributions are fully paid in and have not been repaid.
2. In detail, shares in the Company are held as set out in Exhibit 4 A.
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3. The Company is the sole limited partner ["Kommanditist"] with a fixed
capital interest of DM 199,500 of MAP Medizintechnik fur Arzt und Patient
GmbH & Co. KG, a limited liability partnership ["Kommanditgesellschaft"]
with its seat in Martinsried, registered with the commercial register of
the local court of Munich under HRA 73312 (hereinafter referred to as "MAP
KG") and holds directly or indirectly, as the case may be, participations
in other companies as set out in Exhibit 4 B.
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The Company, MAP KG and MAP Beteiligungs GmbH are hereinafter collectively
referred to as "German Companies"; MAP Medizintechnik fur Arzt und Patient
(Schweiz) GmbH, MAP Medische Techniek voor Arts en Patient BV, MAP France,
Blue Medic and MAP Xxxxxx Medizintechnik fur Arzt und Patient GmbH are
hereinafter collectively referred to as "Foreign Subsidiaries"; MAP KG, MAP
Beteiligungs GmbH and the Foreign Subsidiaries, are hereinafter
collectively referred to as "Affiliates"; the Company and the Affiliates
hereinafter collectively referred to as "Group Companies".
4. Upon Buyer's and ResMed's explicit request, the Company will sell today by
separate agreement and will latest on 23 February 2001 assign all of its
shares in MAP Medische Techniek voor Arts en Patient B.V. with its seat in
's-Hertogenbosch/Netherlands to Buyer (hereinafter referred to as the "Dutch
Transaction").
Buyer hereby undertakes to indemnify Vendor and/or, in case that the
assignment of the Shares (as defined in Sec. 2 para. 1 below) is for
whatever reason legally or economically rewound ["ruckabgewickelt"], any of
the Group Companies (insofar, Buyer's undertaking shall constitute a
contract for the benefit of a third party in the sense of Sec. 328 para. 1
of the German Civil Code ["echter Vertrag zu Gunsten Dritter"]), for any and
all damages and losses incurred in connection with the Dutch Transaction.
Sec. 2
Sale and Assignment
1. Subject to para. 2, Vendor sells all shares specified in Sec. 1 para. 2 and
Exhibit 4 A (hereinafter referred to as "Shares") to the Buyer with effect
as of the date hereof (hereinafter referred to as "Effective Date")
including any and all profits not yet distributed and assigns them to the
Buyer who accepts such sale and assignment.
2. Those statements of approval required by law or by Buyer's and/or ResMed's
Articles of Association or By-laws for the effective acquisition of the
Shares and for the effective power of representation of the persons acting
on behalf of ResMed, in particular the approval of ResMed's Board of
Directors, have been made and copies of which are attached hereto as Exhibit
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4 C.
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Sec. 3
Purchase Price, Payment, Pledge
1. The purchase price for the sale and assignment of the Shares amounts to DM
114,508,000 (in words: German marks onehundredfourteen million
fivehundredeightthousand) (hereinafter referred to as "Initial Purchase
Price") and shall be payable by transfer to the joint account of Dr. Stefan
Xxxx Xxxxxx and German Equity Partners B.V. (account number 37291 with BHF-
BANK AG in Frankfurt am Main/Germany, bank routing no. 500 202 00), as
follows:
a) DM 28,627,000 (in words: German Marks twentyeight million
sixhundredtwentyseventhousand) within five (5) banking days upon the
date hereof and
b) the remainder in the amount of DM 85,881,000 (in words: German Marks
eightyfive million eighthundredeightyonethousand) within ninety (90)
days upon the date hereof.
2. The Initial Purchase Price shall increase by DM 3,000,000 (in words: German
Marks three millions) (hereinafter referred to as "Additional Purchase
Price", the Initial Purchase Price and the Additional Purchase Price
hereinafter collectively referred to as "Purchase Price") if the relevant
rules change, becoming effective before 1 July 2002, whereby goodwill from
a transaction as contemplated in this Agreement is no longer mandatorily
required to be amortized under U.S. GAAP.
The Additional Purchase Price shall be payable within five (5) banking days
after the aforementioned event has occurred by transfer to the account as
indicated in para. 1 above.
3. The individual vendors as listed in Exhibit 4 A hereto are entitled to any
parts of the Purchase Price as joint and several creditors
["Gesamtglaubiger"].
4. With regard to the Purchase Price, Buyer waives any right to set-off
["Aufrechnung"] as well as any right of retention ["Zuruckbehaltung"]
whatsoever.
5. As security for the Initial Purchase Price in its entirety, Buyer hereby
pledges the Shares as well as - subject to the Dutch Transaction becoming
effective - all shares in MAP Medische Techniek voor Arts en Patient B.V.
with its seat in 's-Hertogenbosch/Netherlands (together with the Shares
hereinafter collectively referred
to as "Pledged Shares") to Vendor who accepts such pledge. The pledge shall
include any and all pecuniary claims of Buyer arising from or in connection
with the Pledged Shares, in particular but not limited to rights to the
distribution of profits or liquidation proceeds, provided, however that
non-pecuniary rights, in particular voting rights remain with Buyer. Buyer
undertakes to refrain from all actions which might harm the value of such
pledge. In particular, Buyer shall not sell, assign, charge or otherwise
encumber or grant any option or other rights to any person to acquire all
or any part of the Pledged Shares or any rights or interests thereto until
the Initial Purchase Price has been fully paid in accordance with para. 1
above. Moreover, until such point of time, Buyer shall without Vendor's,
represented by Dr. Stefan Xxxx Xxxxxx, prior consent
- not take any measures which might substantially affect the legal,
financial or business situation of the Group Companies;
- not change the corporate legal relations of the Group Companies,
except for the Dutch Transaction;
- continue to operate the business of the Group Companies as usual and
use its best efforts to preserve their business organisation intact,
to retain the services of their present employees and to preserve the
goodwill of their customers and suppliers;
- not dispose of any assets or licence or transfer ownership of any of
their intellectual property outside of the ordinary course without
Vendors's consent; and
- do any intercompany transactions on an arm's length basis.
After signing of the present Agreement, Buyer shall resolve on the
reformation of the advisory boards ["Beirate"] of the Company and MAP KG
(hereinafter referred to as "Advisory Boards") to the extent that both
Advisory Boards shall then, until the Initial Purchase Price will have been
fully paid, identically consist of four persons, i.e. Xx. Xxxxxxxxxxx X.
Xxxxxxx, Mr. Xxxxxx Xxxxx, Xx. Xxxxxx Xxxx Xxxxxx and Xx. Xxxxxx Xxxxxxx.
This para. 5 shall terminate if and as soon as Buyer submits to Vendor an
unconditional Letter of Guarantee ["unbedingte Bankgarantie"] which is
payable on first demand ["zahlbar auf erste Anforderung"], issued by a bank
with good international
reputation in favour of Vendor, provided that this guarantee is without any
limitation securing the payment of the Initial Purchase Price.
Sec. 4
Vendors's Representations and Warranties
Vendor represents and warrants that the statements made under Sec. 1 including
Exhibits 4 A and 4 B and the following declarations are correct:
1. The Company is a legally effective existing company with limited liability
according to the provisions of the German Code for Companies with Limited
Liability ["Gesetz betreffend Gesellschaften mit beschrankter Haftung"]
entitled to run its business in the present form.
A current version of its valid Articles of Association of the Company (as
amended on 14 August 1998) is attached hereto as Exhibit 5 for
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identification purposes only.
The extract from the commercial register as attached hereto as Exhibit 6
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reproduces the current legal position of the Company completely and
correctly except that Xxx. Xxxxx Xxxxxxx is no longer managing director and
Xxxxxx Xxxx xxx Xxxxxxxxxxxx has been appointed managing director.
The other Group Companies are legally effective existing companies in the
legal form as indicated in Sec. 1 para. 3 and Exhibit 4 B.
2. The individual vendors as listed under Sec. 1 para. 2 and Exhibit 4 A hold
their shares in the Company as sole proprietors in their own name and on
their own account. The Shares are not subject to any rights of third
parties, and there are no claims to the granting of such rights or to the
transfer of shares. In particular, the Shares are not attached or pledged
(except for a pledge granted to Dresdner Bank AG on the basis of a Loan
Agreement dated 14 August 1998 (and the Attachments 4-8 thereto) (the Loan
Agreement and its Attachments 4-8 hereinafter collectively referred to as
"Dresdner Bank Loan Agreement") (a copy of the Dresdner Bank Loan Agreement
is attached hereto as Exhibit 7 for identification purposes only), provided
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that such pledge does not constitute a security for loans other than those
loans shown or otherwise referred to in the Annual Financial Statements as
defined under para. 4 below) or charged with a sub-participation or
otherwise. The Shares are not subject to execution of a last will or to the
conditions of an estate of prior and succeeding heirs.
The Company and MAP KG respectively hold their shares in the Affiliates as
indicated in Sec. 1 para. 3 above and Exhibit 4 B as sole proprietors in
their own name and on their own account. These shares are not subject to any
rights of third parties, and there are no claims to the granting of such
rights or to the transfer of shares. In particular, these shares are not
attached or pledged, (except for the Dresdner Bank Loan Agreement, provided
that such pledge does not constitute a security for loans other than those
loans shown or otherwise referred to in the Annual Financial Statements as
defined under para. 4 below) or charged with a sub-participation or
otherwise.
3. Silent participations or loans with profit participation regarding the Group
Companies' profit do not exist and no shares, stock options (except as
provided on behalf of Kleinwort Xxxxxx European Mezzanine Fund II by
agreement dated 14 August 1998 and on behalf of Xxxxxx Xxxx xxx Xxxxxxxxxxxx
in his employment agreement, which options, however, have both been
terminated before the date hereof) warrants or derivative securites, no
other equity securities and no debt or convertible securities have been
issued with regard to the Group Companies, except as listed in Exhibit 8 or
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in Sec. 8 below.
4. The consolidated annual financial statements ["JahresabschluB"] of the
Company as of 31 December 1999 (hereinafter referred to as "Annual Financial
Statements" and "balance sheet date" respectively) which have been audited
by Xxxxxxxx, Hemmelrath & Partner GmbH Wirtschaftsprufungsgesellschaft
Steuerberatungsgesellschaft, Munich, on 14 April 2000 have been prepared
with the diligence of a prudent businessman on the basis of proper
accounting and in accordance with International Accounting Standards
("IAS"). These regulations and principles were applied unchanged and
consequently as of 31 December 1998 when consolidated annual financial
statements according to IAS had been prepared for the first time. All risks,
decreases in value and losses recognized when preparing the Annual Financial
Statements were considered by applying adequate depreciations, value
adjustments and reserves. The Annual Financial Statements are complete,
correct and present a true and fair view of the assets, liabilities, profits
and losses of the Company and the Group Companies as of the balance sheet
date and during the financial year ending on the balance sheet date. To the
best knowledge of Dr. Stefan Xxxx Xxxxxx and Xx. Xxxxxx Xxxxxx, neither the
Company nor the Group Companies had any contingent liabilities as at the
balance sheet date that were not disclosed in the Annual Financial
Statements.
5. As of 31 December 2000, the "liabilities due to banks" minus "cash" of the
Group Companies as defined in Exhibit 9 A did not exceed DM 30,200,000 (in
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words: German Marks thirty million twohundredthousand). Since then, the
Group Companies have not incurred any bank liabilities outside the ordinary
course of business and substantially outside the budget in Exhibit 9 B (i.e.
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not exceeding the budgeted amount by more than 5 %).
6. The Group Companies have been continued since the balance sheet date in the
scope of the normal and proper course of business. Since then, there have
not occurred or been carried out any extraordinary business or legal
transactions. Neither has there occured any event which solely or together
with other events has had a material adverse effect on the profit situation
of the Group Companies. To the best knowledge of Dr. Stefan Xxxx Xxxxxx and
Xx. Xxxxxx Xxxxxx, since the balance sheet date, defects or losses which -
in contrast to the current consolidated forecast for the Company's business
year ending on 31 December 2000 as enclosed as Exhibit 9 B -, solely or
cumulative, considerably negatively affect the Group Companies or their
financial standing have not occurred.
7. Vendor and/or employees and/or consultants of the German Companies do not
own any protection rights on the basis of which the German Companies may be
required to pay licence fees or the worldwide business of the German
Companies may be hindered or prohibited, except for such protection rights,
if any, of present or former employees of the Company based on the German
Act on Employees' Inventions ["Arbeitnehmererfindungsgesetz"]. All
intellectual property rights or licences to such rights necessary to run the
German Companies' business in its present form are held by the Group
Companies, however, provided that MAP KG (formerly: MAP Medizintechnik fur
Arzt und Patient GmbH) has entered into a license agreement with Xx. Xxxxx
Xxxxxxx dated 14 August 1998 with regard to various inventions and know-how
related to out-patient diagnostics of sleep disorder ("MESAM"/"POLYMESAM").
A copy of this license agreement is attached hereto as Exhibit 10 for
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identification purposes only.
8. Except as set out in Sec. 1 para. 3 and Exhibit 4 B the Company does not
hold an interest in any other business organisation.
9. To the best knowledge of Dr. Stefan Xxxx Xxxxxx and Xx. Xxxxxx Xxxxxx, the
Company is in possession of all permits necessary for the conduct of its
business and has fully complied with all material terms thereof.
10. Except as disclosed in Exhibit 11 or provided for in the Dresdner Bank Loan
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Agreement the Company has full and unencumbered title to all movable assets
employed in its business, and, to the best knowledge of Dr. Stefan Xxxx
Xxxxxx and Xx. Xxxxxx Xxxxxx, all such assets are, beyond normal wear and
tear, in good repair and full working order. To the best knowledge of Dr.
Stefan Xxxx Xxxxxx and Xx. Xxxxxx Xxxxxx, all stocks held by or on behalf of
the Company are stored in suitable conditions, and none of them have become
unusable or are of an age or condition to reduce their value below book-
value.
11. To the best knowledge of Dr. Stefan Xxxx Xxxxxx and Xx. Xxxxxx Xxxxxx, all
material contracts to which the Company is a party are in full force and
effect, and no party thereto is in default of its performance thereunder,
except that at explicit request of ResMed, Dresdner Bank has up to now been
informed neither about the transaction consummated by this Agreement nor
about the Dutch Transaction. The conclusion or performance of this Agreement
do not constitute a breach of, and will not entitle any third party to
terminate, any such contract, except as provided for in the Dresdner Bank
Loan Agreement.
12. The Company has not received any investment grants or other subsidies from
any public authority which may become repayable as a consequence of the
conclusion or performance of this Agreement.
13. To the best knowledge of Dr. Stefan Xxxx Xxxxxx and Xx. Xxxxxx Xxxxxx, all
of the assets of the Company have been kept fully insured at all times in
accordance with sound commercial principles. All premiums in respect thereof
have been fully and timely paid. There are no outstanding claims by the
Company against any insurer.
14. The Company is not a party to and has, to the best knowledge of Dr. Stefan
Xxxx Xxxxxx and Xx. Xxxxxx Xxxxxx, not been threatened with any legal,
administrative or arbitral proceedings in any jurisdiction, except the
lawsuit with Hoffrichter Medizintechnik GmbH with regard to the infringement
of intellectual property rights by Hoffrichter, whereby Hoffrichter has
threatened the Company and/or MAP KG with a counterclaim regarding an
alleged infringement of intellectual property rights by the Company and/or
MAP KG. No product liability claims against the Company are pending or have
been raised and resolved other than by a rejection of such claims during the
previous three years.
15. To the best knowledge of Dr. Stefan Xxxx Xxxxxx and Xx. Xxxxxx Xxxxxx, the
Company has at all times complied with all environmental legislation and
administrative rulings applicable to its business. To the best knowledge of
Dr. Stefan Xxxx Xxxxxx and Xx. Xxxxxx Xxxxxx, all assets, including all
premises, used by the Company in the conduct of its business are free of
environmental pollution.
16. Exhibit 12 sets out accurately relevant particulars of officers, directors,
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managers and key employees currently employed or contracted to be employed
by the Company; the Company has no works council ["Betriebsrat"] and the
Company is not a party to collective bargaining agreements. The Company has
not granted any pension benefits to any person. The Company has fully paid
all social security contributions as and when they were required to be paid.
17. To the best knowledge of Dr. Stefan Xxxx Xxxxxx and Xx. Xxxxxx Xxxxxx, all
contracts and other transactions between the Company on the one hand and any
of the Group Companies, any of its shareholders or any person who is a
member of the immediate family of such shareholder on the other hand have
been concluded and carried out on terms appropriate to contracts or
transactions with unrelated parties on an arm's length basis.
18. The Company has fully paid all taxes and duties payable by it and has, to
the best knowledge of Dr. Stefan Xxxx Xxxxxx and Xx. Xxxxxx Xxxxxx, made
full provision for all such taxes not yet assessed and due. The Company has
punctually filed all tax and customs returns when due, and the contents of
such returns are to the best knowledge of Dr. Stefan Xxxx Xxxxxx and Xx.
Xxxxxx Xxxxxx complete and accurate. No fiscal or customs authority has
notified the Company of any alleged inaccuracy of such returns or has
threatened the Company with legal or administrative proceedings in respect
thereof.
It is clarified that Vendor neither represents or warrants nor assumes any
liability for
- the future development of the financial or business situation of the Group
Companies,
- the ability of Buyer to achieve certain tax structures or to apply certain
accounting principles with regard to the transaction contemplated herein
under tax and/or commercial law, in particular to achieve a "step-up" for
German tax purposes or to apply the "Pooling" or "Purchase" method under
U.S. GAAP, and
- any consequences arising from the Dutch Transaction.
Sec. 5
Performance and Liability
1. In the event that one of the statements or declarations made by Vendor in
Sec. 4 above or elsewhere in this Agreement and its Exhibits should be
totally or partially incorrect, Vendor shall put the Company in a position
as if such incorrect statements were true ["Naturalrestitution"] or, at
Vendor's option, pay the amount in cash to the Company or, at Buyer's
option, to Buyer which corresponds to the loss of the Company in respect of
the incorrect statement. If Vendor fails to make the incorrect statement
true within a period of three (3) months following receipt of written notice
of such claim, Vendor shall pay the amount in cash to the Company or, at
Buyer's option, to Buyer which corresponds to the loss of the Company in
respect of the incorrect statement; reference is made to para. 5 below.
Reduction of the purchase price ["Kaufpreisminderung"], Rescission
["Wandelung"] - except for the event that the declarations of Vendor in Sec.
4 para. 2 are incorrect -, withdrawal ["Rucktritt"] from the present
Agreement as well as damage claims ["Schadensersatz"] - except as provided
for in the previous sentence - shall be excluded. Secs. 439 and 460 of the
German Civil Code ["Burgerliches Gesetzbuch"] shall apply mutatis mutandis.
Vendor and ResMed had agreed on a three step due diligence process, however,
ResMed and Buyer have waived their right to perform the third step of this
due diligence process.
2. Claims may only be brought by Buyer in regard to Sec. 4 above if and to the
extent ["Freibetrag"] that (i) an individual claim exceeds DM 50,000 and
(ii) the aggregate claims exceed DM 100,000.
3. The total liability of Vendor under Sec. 4 above shall in no event exceed 25
% of the Purchase Price.
4. Possible claims in connection with Sec. 4 para. 1 and 2 are subject to a
limitation period of ten (10) years after the date hereof; all other claims
of the Buyer and the Company due to this Agreement are subject to a
limitation period of twelve (12) months after the date hereof. Any claim
brought in respect of Sec. 4 para. 18 above shall terminate and expire six
(6) months after the non-appealable and final assessments for the periods
concerned.
5. The individual vendors as specified under Sec. 1 para. 2 and Exhibit 4 A are
severally liable ["teilschuldnerische Haftung"] for the performance of this
Agreement and for all claims of the Buyer arising from this Agreement in
relation of their respective shareholdings.
6. Buyer accepts that in accordance with the respective Articles of
Organization ["Gesellschaftsvertrge"], liabilities of Xxxxxx
Vermogensverwaltungs GbR and Xxxxxx GbR as well as their respective partners
arising from this Agreement shall be limited to the respective partnership
assets. On the other hand, Dr. Stefan Xxxx Xxxxxx and Xx. Xxxxxx Xxxxxx
hereby assume the obligations of Xxxxxx Vermogensverwaltungs GbR and Xxxxxx
GbR respectively resulting from this Sec. 5, if any, by way of a collateral
promise ["Schuldmitubernahme"/"Schuldbeitritt"].
Sec. 6
Buyer's Representations and Warranties
Buyer and ResMed represent and warrant that the statements made under Sec. 2
para. 2 as well as the following declarations are correct:
1. Buyer has been founded on 8 February 2001 and will upon registration with
the commercial register of the local court of Hamburg be a legally effective
existing limited liability company ["Gesellschaft mit beschrnkter Haftung"]
duly established under the laws of the Federal Republic of Germany; ResMed
is a legally effective existing corporation duly established under the laws
of the State of Delaware, U.S.A..
2. Buyer, ResMed and the person acting on their behalf have all requisite
corporate power and authority to execute and deliver the present Agreement,
to perform Buyer's and ResMed's obligations respectively under this
Agreement and to consummate the transaction contemplated herein.
3. All shares in Buyer are held by Xx. Xxxxxx XxXxxx in trust for ResMed and
will be transferred to ResMed without undue delay after execution of this
Agreement.
Sec. 7
Ongoing Services by Xx. Xxxxxx and Xx. Xxxxxx, Competition Clause
1. Dr. Stefan Xxxx Xxxxxx and Xx. Xxxxxx Xxxxxx undertake to continue, at
Buyer's discretion, to serve as the Company's Managing Directors on the
basis of their re-
spective present employment agreements for a period of nine (9) months from
the date hereof, provided that either Dr. Stefan Xxxx Xxxxxx or Xx. Xxxxxx
Xxxxxx shall be obliged to serve for an additional period of three (3)
months. After completion of such periods, the Parties shall procure that the
respective employment contracts are terminated without any obligation of the
Company to settlement payments and that Dr. Stefan Xxxx Xxxxxx and Xx.
Xxxxxx Xxxxxx are discharged ["entlastet"] as managing directors.
2. For a period of five (5) years hereafter, Dr. Stefan Xxxx Xxxxxx and Xx.
Xxxxxx Xxxxxx undertake not to produce and distribute products or perform
services worldwide, which are comparable or competitive products or services
that are produced, distributed or performed by MAP KG, nor shall they assist
any third parties directly or indirectly in the production and distribution
of such products or in performing such services, nor shall they participate
directly or indirectly in or advise or work in any other way in a company
which produces or distributes such products or renders such services.
Excluded from the above prohibition to compete is the purchase and
possession of stocks or securities (i) in ResMed or (ii) quoted at any
renowned stock exchange of a company that produces or distributes such
products or performs such services, for the purpose of capital investment to
the extent that Dr. Stefan Xxxx Xxxxxx and/or Xx. Xxxxxx Xxxxxx neither
directly nor indirectly acquire stocks or securities exceeding a total of 5
% of the share capital of the company concerned or which could be converted
into more than 5 % of the share capital.
Sec. 8
Other Obligations
1. Buyer shall procure that the Company and/or MAP KG, as the case may be,
makes all the payments as set out in Exhibit 13 within five (5) banking days
----------
after the date hereof.
2. Referring to Sec. 1 Para. 3 of this Agreement and Exhibit 4 B hereto,
a) Dr. Stefan Xxxx Xxxxxx shall assign his 5 % share in MAP Medizintechnik
fur Arzt und Patient (Schweiz) GmbH to MAP KG and do everything that is
required under Swiss law to put such assignment into effect without
undue delay;
b) Dr. Stefan Xxxx Xxxxxx, Xx. Xxxxxx Xxxxxx, Xxx. Xxxxx Xxxxxxx, Xx. Xxxxx
Xxxxxxx and Xx. Xxxxx Xxxxxxx Xxxxxx shall assign their respective
shares in MAP France to the Company and do everything that is required
under French law to put such assignment into effect without undue delay;
c) Xx. Xxxxx Xxxxxxx Xxxxxx shall assign his share in Blue Medic to MAP
France and do everything that is required under French law to put such
assignment into effect without undue delay;
d) Vendor shall procure that the remaining shareholders of Blue Medic (i.e.
Xx. Xxxxxxx Xxxxxx, Xx. Xxxx Xxxxx-Xxxx, Mrs. Xxxxxxx Danseux, Xx.
Xxxxxxxx Xxxxx and Xx. Xxxxxxxxx Xxxxx) assign their respective shares
in Blue Medic to MAP France and do everything that is required under
French law to put such assignment into effect without undue delay.
Buyer may require that the current shareholders as nominated in a) to d)
above assign their respective shares to third persons as designated by
Buyer.
3. Buyer shall procure that Xx. Xxxxx Xxxxxxx Xxxxxx will be released from his
duties as a President Directeur General of Blue Medic and discharged in
accordance with French law without undue delay.
Buyer shall further procure that (i) Dr. Stefan Xxxx Xxxxxx, Xx. Xxxxxx
Xxxxxx and Xxxxxx Xxxx xxx Xxxxxxxxxxxx as managing directors of any Group
Companies, as the case may be, and (ii) Dr. Stefan Xxxx Xxxxxx, Xx. Xxxxxx
Xxxxxxx and Xx. Xxxx Xxxxxx as Members of the Advisory Board of the Company
as well as of MAP KG will be discharged for the business year having ended
on 31 December 2000 without undue delay.
Sec. 9
Collateral Promise by ResMed
ResMed hereby unconditionally assumes any obligation of Buyer under the present
Agreement by way of a collateral promise
["Schuldmitubernahme"/"Schuldbeitritt"].
Sec. 10
Final Provisions
1. All costs related to the execution and performance of this Agreement shall
be borne by Buyer. As for the rest, each of the contracting parties shall
bear its own costs and taxes as well as the costs of its advisors and
auditors. In particular, the costs relating to the transaction contemplated
by this Agreement arising from the consultation of ING Barings and Xxxxxxxx,
Hemmelrath & Partner shall be borne by Vendor.
2. Any modifications and amendments to this Agreement including this para. 2
require the written form in order to be valid, unless notarization is
mandatory.
3. If any provision of this Agreement should be or become invalid, or if the
Agreement does not include a provision which is necessary, the remaining
provisions of this Agreement remain unaffected. Instead of the ineffective
provision or for filling the gap, such effective provision shall apply which
corresponds most closely to the intention of the contracting parties or
which would have been the intention according to the meaning and purpose of
this Agreement if they had been aware of the invalidity of the provision
concerned or of the gap respectively.
4. The Exhibits to this Agreement (unless attached for identification purposes
only) form an essential part of same. The section titles used in this
Agreement are meant solely for convenience and are of no significance for
its contents and interpretation. Declarations made in any provision or
Exhibit of this Agreement shall be deemed included also in all other
provisions or Exhibits of this Agreement to the same effect.
5. This Agreement and its performance shall to the extent permissible be
governed by the law of the Federal Republic of Germany without reference to
its conflict of law principles.
6. Exclusive place of jurisdiction for all disputes arising from or in
connection with this Agreement, including such concerning its effectiveness,
shall be the seat of the Company, as far as permissable under law.
(continued on next page)
IN WITNESS THEREOF this Notarial Deed including the Exhibits hereto
with the exception of the powers of attorney and similar documents
supporting the evidence of representation power (Exhibits 1A, 0X, 0X, 0X,
0X, 0X(0), 0X(0), 0X, 0X(0), 0X, 0X(0), 2A(2), 2B and 2B(1)),
with the further exception of the graphical presentation contained in
Exhibit 12, which was presented to the persons appearing for inspection and
which were discussed with the persons appearing, and
with the further exception of certain balance sheets and profit and loss
statements, lists of items, titles, rights and obligations contained in
Exhibits 9B and 12, in respect of which the persons appearing waived the
right to have them read aloud and which instead have been presented to the
persons appearing, were acknowledged and signed on each page by the persons
appearing, and
with the further exception of the Exhibits 5, 7 and 10, which are attached
hereto for identification purposes only and the content of which does not
form part of the parties declarations,
has been read aloud to the persons appearing and was confirmed and approved by
the persons appearing. The persons appearing then signed this Deed. All this was
done at the day herebelow written in the presence of me, the Notary Public, who
also signed this Deed and affixed my official Seal.
Basel, this 16th (sixteenth) day of February 2001 (two thousand and one)
