Exhibit 2.1
SHARE PURCHASE AGREEMENT
between
Xxxxx Holding GmbH
Xxxxxxxxxxxxxxx 00
D-79761 Waldshut-Tiengen
Germany
(the "Buyer")
and
Corange Deutschland Holding GmbH
Sandhofer Xxxxxxx 000
X-00000 Xxxxxxxx
Xxxxxxx
(the "Seller")
December 12, 2003
This Agreement is entered into on December 12, 2003, by Xxxxx Holding GmbH, with
its principal offices at Xxxxxxxxxxxxxxx 00, 00000 Xxxxxxxx-Xxxxxxx, Xxxxxxx
(the "Buyer"), and Corange Deutschland Holding GmbH, a German corporation with
its principal offices at Xxxxxxxxx Xxxxxxx 000, 00000 Xxxxxxxx, Xxxxxxx (the
"Seller"). The Buyer and the Seller are referred to collectively herein as the
"Parties".
Whereas, the Seller owns
all of the capital stock of the Pharma Waldhof Beteiligungs GmbH,
registered at Amtsgericht Mannheim, HRB 6731 (the "General Partner
Company"), and
as a limited partner all of the partnership capital of the Pharma Waldhof
GmbH & Co. KG, registered at Amtsgericht Mannheim, HRA 4484 (the
"Company"), as fully paid-up registered liable capital contribution and
whereas the General Partner Company is the general partner ("Komplementar")
of the Company,
all such outstanding capital stock being hereinafter referred to as the "Target
Shares" and both the General Partner Company and the Company hereinafter
referred to as the "Target"; and
Whereas, the Buyer had provided and will provide until Closing Date Seller with
questions (the "Due Diligence"); and
Whereas, the Buyer desires to purchase from the Seller, and the Seller is
willing to sell to the Buyer, the Target Shares in return for cash.
Now, therefore, the Parties agree as follows:
1. Purchase and Sale of Target Shares
(A) BASIC TRANSACTION
On and subject to the terms and conditions of this Agreement, the Buyer agrees
to purchase from the Seller, and the Seller agrees to sell to the Buyer the
Target Shares for the consideration specified in this ss.1 below.
(B) PURCHASE PRICE
(i) The Buyer agrees to pay to the Seller at the Closing (as defined in
this ss.1 below)
(aa) US$ 30'000.00 (United States Dollar thirty thousand) as
consideration for the General Partner Company; and
(bb) US$ 2'970'000.00 (United States Dollar two million nine hundred
seventy thousand) as consideration for the Company
(the "Purchase Price") in cash payable by wire transfer or delivery of
other immediately available funds.
(ii) In addition, the Buyer will pay to the Seller an amount equal to the
current open third party accounts receivable and cash on hand as set
forth in EXHIBIT I hereto preliminarily and to be updated to the value
as of the Closing Date, less the current third party accounts payable
as set forth in EXHIBIT II hereto preliminarily and to be updated to
the value as of the Closing Date with respect to the Target's existing
business at the Closing Date. Payment shall be made in immediately
available funds, due January 31, 2004. Five (5) months after the
Closing Date the amount of any unpaid accounts receivable which are
uncollectible in a timely manner, provided commercially reasonable
best efforts were used, shall be reimbursed by the Seller to the Buyer
and the rights of collection to such unpaid debt shall be transferred
to the Seller.
(iii) For the purchase of the Target's total product inventory value
preliminary set up in EXHIBIT III hereto to be adjusted to the Closing
Date, inventory of Products (as such products are defined in the
Supply & Services Agreement and quantities as disclosed during Due
Diligence to be adjusted to the Closing Date) and any pre-paid
Products in transit under the Target's purchase orders with its
suppliers, the Buyer shall pay to the Seller the net book product
value of Products in Euros of such total inventory on hand or in
transit as of the Closing Date. Payment shall be made in immediately
available funds, due January 31, 2004. If the Company and/or the Buyer
despite their best reasonable efforts were not able to sell the
Target's inventory prior to the first anniversary of the Closing, the
Seller agrees to scrap at his own cost the remaining Products. The
Buyer agrees that all inventories shall remain the property of Seller
as long and to the extent as such inventory is not fully paid up.
(iv) The Parties or their Affiliates will agree upon a separate Supply &
Services Agreement between the Company and Seller or one or more of
its affiliates concerning the supply of certain products to the
Company, and with respect to services to be defined to be provided to
the Company, as set forth in Exhibit IV.
(C) THE CLOSING
The closing of the transactions contemplated by this Agreement (the "Closing")
shall take place at the offices of the Company in Xxxxxxxxxx, Xxxxxxxxxx 000,
commencing at 9:00 a.m. local time on December 31, 2003 (the "Closing Date"),
provided the conditions to obligation to close as set forth in paragraph 6 below
as well as any other applicable terms and conditions of this Agreement have been
fulfilled by the Parties hereto.
(D) DELIVERIES AT THE CLOSING
At the Closing,
(i) the Seller will deliver to the Buyer the various certificates,
instruments, and documents referred to in ss.6(a) below,
(ii) the Buyer will deliver to the Seller the various certificates,
instruments, and documents referred to in ss.6(b) below,
(iii) the Buyer will deliver to the Seller the consideration specified
inss.1(b) (i) above.
(E) PREPARATION OF CLOSING DATE BALANCE SHEET
Without undue delay, but in no event later than six (6) weeks after Closing
Date, the Seller will prepare and deliver to the Buyer a balance sheet for the
Target as of the end of the business year 2003 (the "Financial Statements") in
addition to the financial statements disclosed to the Buyer during Due
Diligence.
2. Representations and Warranties Concerning the Transaction
(A) REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller represents and warrants to the Buyer that the statements contained in
this ss.2(a) are correct and complete as of the date of this Agreement and will
be correct and complete as of the Closing Date with respect to itself.
(i) Organization of Seller
The Seller is duly organized, validly existing, and in good standing under the
laws of the jurisdiction of its incorporation.
(ii) Authorization of Transaction
The Seller has full corporate power and authority to execute and deliver this
Agreement and to perform its obligations hereunder. This Agreement constitutes
the valid and legally binding obligation of the Seller, enforceable in
accordance with its terms and conditions. The Seller does not need to give any
notice to, make any filing with, or obtain any authorization, consent, or
approval of any government or governmental agency in order to consummate the
transactions contemplated by this Agreement.
(iii) Noncontravention
Neither the execution and the delivery of this Agreement, nor the consummation
of the transactions contemplated hereby, will
(A) violate any restriction of any government, governmental agency,
or court to which the Seller is subject or any provision of its
charter or bylaws;
(B) conflict with, result in a breach of, constitute a default under,
result in the acceleration of, create in any party the right to
accelerate, terminate, modify, or cancel, or require any notice
under any agreement, contract, lease, license, instrument, or
other arrangement to which the Seller is a party or by which it
is bound or to which any of its assets is subject.
(iv) Brokers' Fees
The Seller has no liability or obligation to pay any fees or commissions to any
broker, finder, or agent with respect to the transactions contemplated by this
Agreement for which the Buyer could become liable or obligated.
(v) Target Shares
The Seller holds of record and owns beneficially the Target Shares, free and
clear of any restrictions on transfer (other than any restrictions under
applicable laws), Taxes and security interests meaning any mortgage, pledge,
lien, encumbrance, charge, or other security interest ("Security Interests"),
options, warrants, purchase rights, contracts, commitments, equities, claims,
and demands. The Seller is not a party to any option, warrant, purchase right,
or other contract or commitment that could require the Seller to sell, transfer,
or otherwise dispose of any of the Target Shares. The Seller is not a party to
any voting trust, proxy, or other agreement or understanding with respect to the
voting of any of the Target Shares
(B) REPRESENTATIONS AND WARRANTIES OF THE BUYER
The Buyer represents and warrants to the Seller that the statements contained in
this ss.2(b) are correct and complete as of the date of this Agreement and will
be correct and complete as of the Closing Date.
(i) Organization of the Buyer
The Buyer is a corporation duly organized, validly existing, and in good
standing under the laws of the jurisdiction of its incorporation.
(ii) Authorization of Transaction
The Buyer has full corporate power and authority to execute and deliver this
Agreement and to perform its obligations hereunder. This Agreement constitutes
the valid and legally binding obligation of the Buyer, enforceable in accordance
with its terms and conditions. The Buyer does not need to give any notice to,
make any filing with, or obtain any authorization, consent, or approval of any
government or governmental agency in order to consummate the transactions
contemplated by this Agreement.
(iii) Noncontravention
Neither the execution and the delivery of this Agreement, nor the consummation
of the transactions contemplated hereby, will
(A) violate any restriction of any government, governmental agency,
or court to which the Buyer is subject or any provision of its
charter or bylaws;
(B) conflict with, result in a breach of, constitute a default under,
result in the acceleration of, create in any party the right to
accelerate, terminate, modify, or cancel, or require any notice
under any agreement, contract, lease, license, instrument, or
other arrangement to which the Buyer is a party or by which it is
bound or to which any of its assets is subject.
(iv) Brokers' Fees
The Buyer has no liability or obligation to pay any fees or commissions to any
broker, finder, or agent with respect to the transactions contemplated by this
Agreement for which the Seller could become liable or obligated.
3. Representations and Warranties Concerning the Target
(A) LIMITATIONS
No representations, either expressed or implied, are made or warranties given
other than those made or given in Section (b) or (c) below.
(B) REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Buyer the following matters:
(i) Corporate Organization and Qualification
The Target is duly organized and validly existing under the laws of its place of
incorporation and has the full corporate power and authority to own or use its
assets and properties and to conduct its businesses as the same are presently
being conducted.
The Target Shares including without limitation the Target's equity as stated in
the Financial Statement ("ausgewiesenes Eigenkapital") are legally and
beneficially owned, in their entirety, free and clear of any liens, pledges or
other third party rights by Seller, and are fully paid.
As of the Closing Date, there exists no authorization, obligation or arrangement
(present or future, absolute, contingent or otherwise) of the Target to issue or
sell shares to any person. No further capital, shares, or other equity
instruments in the Target have been or will be issued on or prior to the Closing
Date.
There exist no limitations under law, the articles of incorporation of the
Target, or, as of the Closing Date, any contracts by which Seller is bound that
would prevent Seller from entering into or performing their obligations under
this Agreement.
(ii) Financial Statements
The Financial Statements will be prepared by the Target and approved by the
authorized auditors of PriceWaterhouseCoopers, Dusseldorf branch, Germany, in
conformity with the Accounting Principles in accordance with HGB (German
Commercial Code) and fairly represent the financial position and results of
operations of the Target at the dates and for the periods set forth therein. The
same shall MUTATIS MUTANDIS apply with regard to the financial statements for
the years 2000, 2001 and 2002. There are no material adverse changes in the
financial statements up to the Closing Date.
(iii) Compliance with Law
The Target and each of its and their respective directors and officers has
complied with and presently is in compliance with all material laws,
regulations, reporting and licensing requirements and orders applicable to it or
its employees, and no competent governmental or administrative authority has
claimed in writing that the Target has violated any such material laws,
regulations, reporting and licensing requirements.
(iv) Taxes
All tax returns required to be filed prior to the Closing Date by or with
respect to the Target for all taxable periods ending on or prior to the Closing
Date have been or will be timely filed. All taxes, including taxes and related
duties as defined by sec. 3 Abgabenordnung (hereinafter: "Taxes"), becoming due
pursuant to such Tax returns on or prior to the Closing Date have been timely
paid or fully reserved against. The Seller will indemnify the Buyer or, at the
Buyer's election, the Target against any Tax liability, including respective
reasonable tax advisor's fees, of the Target arising in relation to any period
prior to the Closing Date to the extent not provided for in the Financial
Statements and against any liability to Tax arising before Closing Date except
for any transaction tax, which will be borne by the Seller. In the reverse case
Section 3(c)(vi) applies.
(v) Social Security and Pensions
The Target's Benefit Plans are managed by Swiss Life insurance company and in
addition since 2002 by the Chemie Pension Fonds, which were or are to be
disclosed during Due Diligence.
All social security, pension fund or similar payments due by the Target in favor
of its employees (collectively, the Benefit Plans) have been fully paid or
provisioned in the relevant financial statements as of the end of the years
2000, 2001 and 2002 and in the Financial Statements. All contributions required
to be made under the terms of any such Benefit Plans have been timely made or
have been reflected in the relevant financial statements.
(vi) Accounts Receivable, Accounts Payable, Material Contracts
The Target's third party accounts receivable and third party accounts payable as
listed in Exhibit I and Exhibit II hereto are complete and true. The Target's
currently effective contracts are listed in EXHIBIT V hereto, such list being
complete and true. The Target is in compliance with all obligations in the
contracts to which it is a party or by which its assets or properties are bound.
(vii) Litigation
There are no actions, suits or proceedings pending against, or threatened in
writing against the Target before any court or administrative board, agency or
commission which involve a claim by a governmental or regulatory authority, or
by a third party, as against the Target of an amount exceeding US$ 25'000.00
(United States Dollar twenty-five thousand). Seller is not aware of any actions,
suits or proceedings in accordance with the preceding sentence, which have been
threatened in writing to be filed or instituted against the Target. Neither the
Target nor any of its respective directors or officers are being prosecuted for
any criminal offense relating to the business of the Target, nor are any such
prosecutions pending or threatened.
(viii) Authorizations and Permits
As far as Seller is concerned, no authorizations, permits or consents are
required from any governmental or administrative authority, or any third party
for the consummation of the transactions contemplated in this Agreement. The
Target has all permits, licenses, orders and consents required in order to carry
on its business as presently conducted, all of which are in full force and in
effect and Target has not received any notice of termination or cancellation
thereof, it being understood that certain regulatory obligations (e. g. with
respect to the storage of certain classified chemical substances or to comply
with GMP regulations) may be covered by the Supply & Services Agreement as
mentioned in Exhibit IV below. Seller has no knowledge of any proposed change in
any law or regulation, the enactment of which would have a material adverse
effect on Target.
(ix) Compliance with Environmental, Health and Safety Laws
The Target
(A) has complied with all applicable environmental, health and safety
laws applicable to the Target, and no material action, suit or
proceeding by any third party or any governmental or
administrative authority is pending or threatened against the
Target alleging any failure to comply with any environmental,
health or safety laws in effect as of the date of this Agreement,
and
(B) has obtained and been in compliance with all of the terms and
conditions of all permits, licenses and authorizations required
under any environmental, health and safety laws.
(x) Insurance Coverage
The Target is covered by an appropriate self insurance concept for a business of
the same nature within the Seller's group, which will cease at the Closing Date.
(xi) Intellectual Property and Know-how
The Target owns or has adequate license for worldwide unlimited use of all the
trademarks, copyrights and other intellectual property rights, which are
necessary for the conduct of its business as it is now conducted, and by its
current conduct of business does not violate any third parties' rights,
including without limitation patent rights. Intellectual Property shall mean
product specifications, specific analytical product characterizations and
methods, drug master files, and manufacturing descriptions in the Seller's
possession related to Class III Products as defined in the Supply & Services
Agreement, as well as information with regard to the performance of the analysis
of Class I Products and Class II Products as defined in the Supply & Services
Agreement, in any event provided such analytical data, drug master files, and
manufacturing information are indispensable for the Target's business. If Seller
or its Affiliates possesses documents concerning Intellectual Property on behalf
of Target, Seller or its Affiliates shall provide Target upon request without
undue delay with such Intellectual Property. The Target owns the relevant
Know-how to conduct, and continue conduction after Closing Date, its current
business. Seller agrees to support or to have its Affiliates supporting to a
reasonable extent Target by giving relevant information at Seller's or its
Affiliates' premises concerning the Target's current business after the Closing
Date until December 31, 2006.
(xii) No further Representations and Warranties
No representations or warranties, either expressed or implied, are made by
Seller or any person acting (or purporting to act) on its behalf other than
those made in this Section (b).
(C) REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants as follows:
(i) Buyer is a corporation duly organized and validly existing under the
laws of its incorporation, and has the full corporate power, authority
and necessary governmental approvals to own or use its assets and
properties and to conduct its business as the same is presently being
conducted.
(ii) There exist no limitations under the law, the articles of
incorporation of Buyer, or any contracts by which Buyer is bound that
would prevent Buyer from entering into or performing its obligations
under this Agreement.
(iii) No authorizations, permits or consents are required from any
governmental or administrative authority or any third party (including
any shareholders of Buyer) for the consummation of the transactions
contemplated by this Agreement other than as set out herein.
(iv) There are no actions, suits or proceedings pending against Buyer or
any of Buyer's Affiliates before any court or administrative board,
agency or commission which involve a claim by a governmental or
regulatory authority, or by a third party, which would operate to
hinder or substantially impair the consummation of the transactions
contemplated by this Agreement. Buyer is not aware of any actions,
suits or proceedings in accordance with the preceding sentence, which
have been threatened in writing to be filed or instituted against
Buyer or any of Buyer's Affiliates.
(v) Buyer has procured that it will, and will on the Closing Date have,
the funds at its disposal necessary to pay the Purchase Price and to
consummate the transactions contemplated by this Agreement.
(vi) In the reverse case to Section 3(b)(iv) above, i.e. should any Tax
liability be over-provided for in the Financial Statements or should -
for whatever reason - already paid Taxes be refunded, Seller is
entitled to claim the respective amounts from Buyer or the Target. In
addition to the aforementioned, for a term of five (5) years after
Closing Date or longer if so required by law, Buyer shall be obliged
to disclose to Seller any relevant information and to provide Seller
with any relevant documents with respect to Tax issues prior to the
Closing Date. During that five (5) years period after the Closing
Date, Buyer shall grant Seller full access to the relevant files and
documents during normal business hours.
(vii) The Buyer will guarantee employment at unchanged conditions of all
Target staff for a period of three (3) years after the Closing Date
and shall have full responsibility for any and all employees of the
Target as of the Closing Date and liability for any future cost
incurred therewith. For the same period of time the Buyer will refrain
from dismissing any of the Target's staff with the exception for
reasons of cause ("Verzicht auf betriebsbedingte Kundigungen").
(viii) The Buyer shall keep and provide to Seller at any time any relevant
information about any changes in the Tax assessment for a term of
seven (7) years prior to Closing, due to tax audits, e.g.
4. Pre-Closing Covenants
The Parties agree as follows with respect to the period between the execution of
this Agreement and the Closing.
(A) GENERAL
Each of the Parties will use its reasonable best efforts to take all action and
to do all things necessary, proper or advisable in order to consummate and make
effective the transactions contemplated by this Agreement.
(B) NOTICES AND CONSENTS
The Seller will cause the Target to give any notices to third parties, and will
cause the Target to use its reasonable best efforts to obtain any necessary
third party consents, if any. Each of the Parties will (and the Seller will
cause each of the Target and its Subsidiaries to) give any notices to, make any
filings with, and use its reasonable best efforts to obtain any necessary
authorizations, consents, and approvals of governments and governmental agencies
in connection with the transaction.
(C) OPERATION OF BUSINESS
The Seller will not cause or permit the Target to engage in any practice, take
any action, or enter into any transaction outside the Ordinary course of
business. Without limiting the generality of the foregoing, the Seller will not
cause or permit the Target to
(i) declare, set aside, or pay any dividend or make any distribution with
respect to its capital stock or redeem, purchase, or otherwise acquire
any of its capital stock, or
(ii) otherwise engage in any practice, take any action, or enter into any
transaction having a material effect on the current financial position
of the Target.
(D) PRESERVATION OF BUSINESS
The Seller will cause the Target to keep its business and properties
substantially intact, including its present operations, physical facilities,
working conditions, and relationships with lessors, licensors, suppliers,
customers, and employees.
(E) FULL ACCESS
The Seller will permit and cause the Target to permit representatives of the
Buyer to have full access at all reasonable times, and in a manner so as not to
interfere with the normal business operations of the Target, to all premises,
properties, personnel, books, records (including tax records), contracts and
documents of or pertaining to the Target. The Buyer will treat confidential and
hold as such any information concerning the businesses and affairs of the Target
that is not already generally available to the public ("Confidential
Information") it receives from the Seller and the Target in the course of the
reviews contemplated by this ss.4(e), will not use any of the Confidential
Information except in connection with this Agreement, and, if this Agreement is
terminated for any reason whatsoever, will return to the Seller and/or the
Target all tangible embodiments (and all copies) of the Confidential Information
which are in its possession.
(F) NOTICE OF DEVELOPMENTS
The Seller will give prompt written notice to the Buyer of any material adverse
development causing a breach of any of the representations and warranties in
ss.3 above. Each Party will give prompt written notice to the other of any
material adverse development causing a breach of any of its own representations
and warranties in ss.2 above. No disclosure by any Party pursuant to this
ss.4(f), however, shall be deemed to prevent or cure any misrepresentation,
breach of warranty, or breach of covenant.
5. Post-Closing Covenants
The Parties agree as follows with respect to the period following the Closing.
(A) GENERAL
In case at any time after the Closing any further action is necessary to carry
out the purposes of this Agreement, each of the Parties will take such further
action (including the execution and delivery of such further instruments and
documents) as any other Party reasonably may request, all at the sole cost and
expense of the requesting Party (unless the requesting Party is entitled to
indemnification therefore under ss.7 below). The Seller acknowledge and agree
that from and after the Closing the Buyer will be entitled to possession of all
documents, books, records (including tax records), agreements, and financial
data of any sort relating to the Target.
(B) TRANSITION
Upon Buyers request, the Seller will use reasonable efforts to encourage any
lessors, licensors, customers, suppliers, or other business associates of the
Target to maintain the same business relationships with the Target after the
Closing as prior to the Closing.
(C) CONFIDENTIALITY
After the Closing Date, the Seller will treat and hold as such all of the
Confidential Information as defined in ss.4(e), refrain from using any of the
Confidential Information except in connection with this Agreement, and deliver
promptly to the Buyer or destroy, at the request and option of the Buyer, all
tangible embodiments (and all copies) of the Confidential Information which are
in its possession. In the event that the Seller is requested or required to
disclose any Confidential Information, the Seller will notify the Buyer promptly
of the request or requirement so that the Buyer may seek an appropriate
protective order or waive compliance with the provisions of this ss.5(c). If, in
the absence of a protective order or the receipt of a waiver hereunder, the
Seller is compelled to disclose any Confidential Information the Seller may
disclose the Confidential Information; provided, however, that the Seller shall
use its reasonable best efforts to obtain, at the reasonable request of the
Buyer, an order or other assurance that confidential treatment will be accorded
to such portion of the Confidential Information required to be disclosed as the
Buyer shall designate.
(D) COVENANT NOT TO COMPETE
For a period of five years from and after the Closing Date, the Seller including
its Affiliates will not engage directly or indirectly in any business that the
Target conducts as of the Closing Date in any geographic area in which any of
the Target and its Subsidiaries conducts that business as of the Closing Date,
provided that Seller may continue its business with products similar or equal to
those sold by the Target to the extent listed as Class II Products as defined in
the Supply & Services Agreement. For the avoidance of doubt: Subject to such
covenant not to compete shall not be any sales of any products, including
without limitation Class III Products as defined in the Supply & Services
Agreement, to or between Affiliates of the Seller, or the use for own
manufacturing, testing or other use such as quality control by the Seller or its
Affiliates. For purposes of this Agreement, the term "Affiliate" shall mean: i)
an organization, which directly or indirectly controls one of the Parties
hereto; or ii) an organization, which is directly or indirectly controlled by
one of the Parties hereto; or iii) an organization, which is controlled,
directly or indirectly, by the ultimate parent company of one of the Parties
hereto. For purposes of this Section, control is defined as owning fifty percent
or more of the voting stock of a company or having otherwise the power to govern
the financial and the operating policies or to appoint the management of an
organization. With respect to Seller, the term "Affiliate" shall not include
Genentech, Inc., 0 XXX Xxx, Xxxxx Xxx Xxxxxxxxx, Xxxxxxxxxx 00000-0000, U.S.A.
nor Chugai Pharmaceutical Co., Ltd, 1-9, Kyobashi 2-chome, Xxxx-xx, Xxxxx,
000-0000, Xxxxx.
(E) THIRD PARTY CLAIMS TO PRE-CLOSING DELIVERED PRODUCTS
In the event that any third party claims damages or compensation from the Buyer
or Target for damages or harm suffered due to Class II or Class III Products
which were delivered by the Target to customers prior to the Closing Date ,
Seller shall be responsible for such damages, provided that Buyer informs Seller
without undue delay of such claim, and Buyer shall use its best reasonable
efforts to support Seller in such matter. If such issue occurs Buyer and Seller
shall cooperate in good faith to reach a reasonable solution.
6. Conditions to Obligation to Close
(A) CONDITIONS TO OBLIGATION OF THE BUYER
The obligation of the Buyer to consummate the transactions to be performed by it
in connection with the Closing is subject to satisfaction of the following
conditions:
(i) the representations and warranties set forth in ss.2(a) and ss.3 (b)
above shall be true and correct in all material respects at and as of
the Closing date;
(ii) the Seller shall have performed and complied with all of their
covenants hereunder in all material respects through the Closing;
(iii) the Target shall have procured all of the third party consents
specified inss.4(b) above;
(iv) no action or proceeding shall be pending before any court or before
any arbitrator wherein an unfavorable injunction, judgment, order,
decree, ruling, or charge would
(A) prevent consummation of any of the transactions contemplated by
this Agreement,
(B) cause any of the transactions contemplated by this Agreement to
be rescinded following consummation,
(C) affect adversely the right of the Buyer to own the Target Shares
and to control the Target, or
(D) affect materially and adversely the right of the Target to own
its assets and to operate its businesses;
(v) the Parties and the Target shall have received all material
authorizations, consents, and approvals of governments and
governmental agencies necessary for this transaction, as well as the
Intellectual Property as defined in ss.3(b)(xi);
(vi) the relevant parties shall have entered into the Supply & Services
Agreement in form and substance as set forth in EXHIBIT IV attached
hereto and the same shall be in full force and effect;
(vii) all actions to be taken by the Seller in connection with consummation
of the transactions contemplated hereby and all certificates,
opinions, instruments, and other documents required to effect the
transactions contemplated hereby will be reasonably satisfactory in
form and substance to the Buyer.
The Buyer may waive any condition specified in this ss.6(a) if it executes a
writing so stating at or prior to the Closing.
(viii) no material adverse change to the business or affairs of the Target
has been occurred.
(B) CONDITIONS TO OBLIGATION OF THE SELLER
The obligation of the Seller to consummate the transactions to be performed by
it in connection with the Closing is subject to satisfaction of the following
conditions:
(i) the representations and warranties set forth in ss.2(b) above shall be
true and correct in all material respects at and as of the Closing
Date;
(ii) the Buyer shall have performed and complied with all of its covenants
hereunder in all material respects through the Closing;
(iii) no action or proceeding shall be pending before any court or before
any arbitrator wherein an unfavorable injunction, judgment, order,
decree, ruling, or charge would
(A) prevent consummation of any of the transactions contemplated by
this Agreement or
(B) cause any of the transactions contemplated by this Agreement to
be rescinded following consummation;
(iv) the Parties and the Target shall have received all other material
authorizations, consents, and approvals of governments and
governmental agencies necessary for this transaction;
(v) the relevant parties shall have entered into the Supply & Service
Agreement in form and substance as set forth in EXHIBIT IV and the
same shall be in full force and effect; and
(vi) all actions to be taken by the Buyer in connection with consummation
of the transactions contemplated hereby and all certificates,
opinions, instruments, and other documents required to effect the
transactions contemplated hereby will be reasonably satisfactory in
form and substance to the Seller.
The Seller may waive any condition specified in this ss.6(b) if they execute a
writing so stating at or prior to the Closing.
7. Remedies for Breaches of This Agreement
(A) SURVIVAL OF REPRESENTATIONS AND WARRANTIES
All of the representations and warranties of the Seller contained in ss.2 and
ss.3 above shall survive the Closing hereunder and continue in full force and
effect for a period of twelve (12) months thereafter. All of the other
representations and warranties of the Parties contained in this Agreement shall
survive the Closing and continue in full force and effect forever thereafter,
subject to any applicable statutes of limitations as well to respective
limitations agreed upon in this Agreement.
(B) INDEMNIFICATION PROVISIONS FOR BENEFIT OF THE BUYER
In the event the Seller breaches any of its representations, warranties, and
covenants contained herein, and, if there is an applicable survival period
pursuant to ss.7(a) above, provided that the Buyer makes a written claim for
indemnification against the Seller within such survival period, then the Seller
agrees to indemnify the Buyer from and against the entirety of all actions,
proceedings, investigations, charges, complaints, claims, demands, injunctions,
judgments, orders, damages, dues, penalties, fines, costs, reasonable amounts
paid in settlement, liabilities, obligations, Taxes, liens, losses, expenses,
and fees, including court costs and reasonable attorneys' fees and expenses the
Buyer may suffer through and after the date of the claim for indemnification
("Adverse Consequences") resulting from, arising out of, relating to the breach;
provided, however, that
(i) the Seller shall not have any obligation to indemnify the Buyer from
and against any Adverse Consequences resulting from, arising out of,
relating to the breach of any representation of warranty of the Seller
contained in ss.3 above until the Buyer has suffered Adverse
Consequences by reason of all such breaches in excess of a US$
50'000.- (United States Dollar fifty thousand) aggregate deductible
(after which point the Seller will be obligated only to indemnify the
Buyer from and against further such Adverse Consequences) and
(ii) there will be a US$ 3.'000'000. (United States Dollar three million)
aggregate ceiling on the obligation of the Seller to indemnify the
Buyer from and against Adverse Consequences resulting from, arising
out of, relating to, in the nature of, or caused by breaches of the
representations and warranties of the Seller contained in ss.2 and
ss.3 above.
(C) INDEMNIFICATION PROVISIONS FOR BENEFIT OF THE SELLER
In the event the Buyer breaches any of its representations, warranties, and
covenants contained herein, and, if there is an applicable survival period
pursuant to ss.7(a) above, provided that any of the Seller makes a written claim
for indemnification against the Buyer within such survival period, then the
Buyer agrees to indemnify the Seller from and against the entirety of any
Adverse Consequences the Seller may suffer through and after the date of the
claim for indemnification (including any Adverse Consequences the Seller may
suffer after the end of any applicable survival period) resulting from, arising
out of, relating to the breach; provided that there will be a US$ 3'000'000.-
(United States Dollar three million) aggregate ceiling on the obligation of the
Buyer to indemnify the Seller from and against Adverse Consequences resulting
from, arising out of, relating to, in the nature of, or caused by breaches of
the representations and warranties the Seller has made in accordance with the
terms and conditions of this Agreement.
(D) OTHER INDEMNIFICATION PROVISIONS
The foregoing indemnification provisions are in addition to, and not in
derogation of, any statutory, equitable, or common law remedy any Party may have
for breach of representation, warranty, or covenant, provided, however, that the
Buyer acknowledges and agrees that the foregoing indemnification provisions in
this ss.7 shall be the exclusive remedy of the Buyer for any breach of the
representations and warranties in ss.3 above.
All indemnification payments under this ss.7 shall be deemed adjustments to the
Purchase Price.
(E) THIRD PARTY BENEFICIARY RIGHT FOR EMPLOYEES
The representation and warranty made by the Buyer in ss.3(c)(vii) shall create a
right enforceable by each and any of the Target's employees against the Buyer
and/or the Target.
8. Tax Matters
All transfer, documentary, sales, use, stamp, registration and other such taxes
and fees (including any penalties and interest) incurred in connection with this
Agreement, shall be paid by Buyer when due, it being understood that Seller
shall be responsible for any Taxes levied because of payments received from
Buyer. Seller will reimburse any trade taxes ("Gewerbesteuer") levied on the
gain of the sale of the Target's shares. Buyer will, at its own expense, file
all necessary Tax returns and other documentation with respect to all such
transfer, documentary, sales, use, stamp, registration and other taxes and fees,
and, if required by applicable law, Seller will, and will cause its affiliates
to, join in the execution of any such Tax returns and other documentation.
9. Termination
(A) TERMINATION OF AGREEMENT
This Agreement may be terminated as provided below:
(i) the Buyer and the Seller may terminate this Agreement upon material
adverse changes or by mutual written consent at any time prior to the
Closing;
(ii) the Buyer may terminate this Agreement by giving written notice to the
Seller at any time prior to the Closing
(A) in the event the Seller has breached any material representation,
warranty, or covenant contained in this Agreement in any material
respect, the Buyer has notified the Seller of the breach, and the
breach has continued without cure for a period of 30 days after
the notice of breach or
(B) if the Closing shall not have occurred on or before December 31,
2003, by reason of the failure of any condition precedent under
ss.6(a) hereof (unless the failure results primarily from the
Buyer itself breaching any representation, warranty, or covenant
contained in this Agreement); and
(iii) the Seller may terminate this Agreement by giving written notice to
the Buyer at any time prior to the Closing
(A) in the event the Buyer has breached any material representation,
warranty, or covenant contained in this Agreement in any material
respect, the Seller has notified the Buyer of the breach, and the
breach has continued without cure for a period of 30 days after
the notice of breach or
(B) if the Closing shall not have occurred on or before December 31,
2003, by reason of the failure of any condition precedent under
ss.6(b) hereof (unless the failure results primarily from the
Seller itself breaching any representation, warranty, or covenant
contained in this Agreement).
(iv) This Agreement may not be terminated or rescinded after the Closing
for breach of a representation, warranty, or covenant contained in
this Agreement and the parties expressly waive any right to terminate
or rescind this Agreement, if any, following Closing. The other Party
accepts such waiver.
(B) EFFECT OF TERMINATION
If any Party terminates this Agreement pursuant to ss.9(a) above, all rights and
obligations of the Parties hereunder shall terminate without any liability of
any Party to any other Party (except for any liability of any Party then in
breach); provided, however, that the confidentiality provisions contained in
ss.4(e) above shall survive termination.
10. Miscellaneous
(A) PRESS RELEASES AND PUBLIC ANNOUNCEMENTS
No Party shall issue any press release or make any public announcement relating
to the subject matter of this Agreement prior to the Closing without the prior
written approval of the other Party; provided, however, that any Party may make
any public disclosure it believes in good
faith is required by applicable law or any listing or trading agreement
concerning its publicly-traded securities in which case the disclosed Party will
use its reasonable best efforts to advise the other Parties prior to making the
disclosure.
(B) NO THIRD PARTY BENEFICIARIES
This Agreement shall not confer any rights or remedies upon any person other
than the Parties and their respective successors and permitted assigns, and
other than set forth in Article 7(e) above.
(C) ENTIRE AGREEMENT
This Agreement (including the documents referred to herein) constitutes the
entire agreement among the Parties and supersedes any prior understandings,
agreements, or representations by or among the Parties, written or oral, to the
extent they related in any way to the subject matter hereof.
(D) SUCCESSION AND ASSIGNMENT
This Agreement shall be binding upon and inure to the benefit of the Parties
named herein and their respective successors and permitted assigns. No Party may
assign either this Agreement or any of his or its rights, interests, or
obligations hereunder without the prior written approval of the Buyer and the
Seller; provided, however, that the Buyer may
(i) assign any or all of its rights and interest hereunder to one or more
of its Affiliates and
(ii) designate one or more of its Affiliates to perform its obligations
hereunder in any or all of which cases the Buyer nonetheless shall
remain responsible for the performance of all of its obligations
hereunder.
(E) NOTICES
All notices, requests, demands, claims, and other communications hereunder will
be in writing. Any notice, request, demand, claim, or other communication
hereunder shall be deemed duly given if (and then two business days after) it is
sent by registered or certified mail, return receipt requested, postage prepaid,
and addressed to the intended recipient as set forth below:
If to the Seller: Copy to:
Corange Deutschland Holding GmbH X. Xxxxxxxx-Xx Xxxxx Ltd
Geschaftsfuhrung Corporate Law Legal, Diagnostics
Xxxxxxxxx Xxxxxxx 000 Grenzacher Strasse 124
D-68305 Mannheim XX-0000 Xxxxx
Fax: x00 (000) 0 00 00 00 x00 (00) 0 00 00 00
If to the Buyer:
Xxxxx Holding GmbH
Geschaftsfuhrung
Xxxxxxxxxxxxxxx 00
X-00000 Xxxxxxxx-Xxxxxxx
Xxxxxxx
Fax: +49 (77 41) 80 72 20
Any Party may send any notice, request, demand, claim, or other communication
hereunder to the intended recipient at the address set forth above using any
other means (including personal delivery, expedited courier, messenger service,
telecopy, or ordinary mail), but no such notice, request, demand, claim, or
other communication shall be deemed to have been duly given unless and until it
actually is received by the intended recipient. Any Party may change the address
to which notices, requests, demands, claims, and other communications hereunder
are to be delivered by giving the other Parties notice in the manner herein set
forth.
(F) AMENDMENTS AND WAIVERS
No amendment of any provision of this Agreement shall be valid unless the same
shall be in writing and signed by the Buyer and the Seller. No waiver by any
Party of any default, misrepresentation, or breach of warranty or covenant
hereunder, whether intentional or not, shall be deemed to extend to any prior or
subsequent default, misrepresentation, or breach of warranty or covenant
hereunder or affect in any way any rights arising by virtue of any prior or
subsequent such occurrence.
(G) SEVERABILITY
Any term or provision of this Agreement that is invalid or unenforceable in any
situation in any jurisdiction shall not affect the validity of enforceability of
the remaining terms and provisions hereof or the validity or enforceability of
the offending term or provision in any other situation or in any other
jurisdiction.
(H) EXPENSES
Each of the Parties and the Target will bear its own costs and expenses
(including legal fees and expenses) incurred in connection with this Agreement
and the transactions contemplated hereby. The Seller agrees that the Target does
not have borne or will bear any of the Seller' costs and expenses (including any
of their legal fees and expenses) in connection with this Agreement or any of
the transactions contemplated hereby.
(I) LAW AND VENUE
Any dispute, controversy or claim arising under, out of or relating to this
Agreement (and subsequent amendments thereof), its valid conclusion, binding
effect, interpretation, performance, breach or termination, including tort
claims, shall be referred to and finally determined by the competent courts of
the city of Freiburg im Breisgau, Germany.
All disputes, controversies or claims in connection with or arising from this
Agreement (including those on any statute of limitations, set-off claim, tort
claims and interest claims) shall be subject to the laws of the Federal Republic
of Germany.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
date first above written.
Xxxxx Holding GmbH
By: /s/ Xx. Xxxx Xxxxxxx
--------------------------------
Name: Xx. Xxxx Xxxxxxx
Title: Vice President - International
Corange Deutschland Holding GmbH
By: /s/ Xx. Xxxxxx Xxxxxxxx
--------------------------------
Name: Xx. Xxxxxx Xxxxxxxx
Title: Member of Management Board
